Legal Evidence and Objections in Hypothetical Criminal Cases, Exams of Law

Download Legal Evidence and Objections in Hypothetical Criminal Cases and more Exams Law in PDF only on Docsity! file:///J|/Backups/WEB%20ARCHIVE/OLDSITE/Full%20Jan%2030%202008/exams/Content/fevs95.htm[1/23/2009 8:28:28 AM] Exam # EVIDENCE -- FINAL EXAMINATION 595 Last four digits of 55 #_ The Federal Rules of Evidence are applicable. Closed book and closed rules. Each question counts one point. You have two and a half hours. One of the quizzes will be dropped if lower than the grade on the final. The exam has been edited so that questions do not run over from one page to the next. That causes the bottom margin to be large on some of the pages l) State v. Theater for showing "Debbie Does Dallas," alleged to be a pornographic movie. Officer is called as a witness. Officer testified that he watched the movie in Theater and offered to testify to the sexual acts depicted in the movie. Defense counsel's objection to Officer's description of the movie should be sustained on the grounds of: i) hearsay; ii) Best Evidence; iii) lack of authentication * * * * a) (i) and (ii) b) (ii) and (iii) c) (i) only file:///J|/Backups/WEB%20ARCHIVE/OLDSITE/Full%20Jan%2030%202008/exams/Content/fevs95.htm[1/23/2009 8:28:28 AM] d) (ii) only e) none of the above 2) State v. Druggie for conspiracy to distribute a controlled substance. The State calls Officer to testify to a phone number on a scrap of paper found in D's possession. Officer testified that she lost the scrap of paper but that she wrote the number down in an incident report prepared at the time. Officer testified that she has no present memory of the number but that she accurately recorded the number in her report. Officer offers to testify to the number. If an objection is made on Best Evidence grounds: i) the judge should decide whether the destruction of the note was in good faith before allowing other evidence of its contents; ii) the Officer's written report of the number must be produced; iii) the Officer may read to the jury the number as written in the report a) all of the above are correct b) (i) and (ii) are correct c) (ii) and (iii) are correct d) (i) only is correct e) (ii) only is correct file:///J|/Backups/WEB%20ARCHIVE/OLDSITE/Full%20Jan%2030%202008/exams/Content/fevs95.htm[1/23/2009 8:28:28 AM] signed and acknowledged by X's son stating that X died on a certain date. The affidavit: i) self-authenticates; ii) is hearsay; iii) is the Best Evidence of the date of X's death a) all of the above b) (i) and (ii) c) (i) and (iii) d) (ii) and (iii) e) (i) only 8) H v D corporation for injuries sustained when H slipped on a broken bottle of syrup in D's grocery store. The following exchange occurred between M, a customer, and N, the store manager, before the fall: M: "There's a broken bottle of syrup in Aisle l.~ N: "Thanks for letting us know. We'll take care of it." This exchange is: i) admissible to give D notice of the condition ii) admissible to prove the existence of the condition a) both (i) and (ii) are correct b) (i) only c) (ii) only d) neither (i) nor (ii) is correct file:///J|/Backups/WEB%20ARCHIVE/OLDSITE/Full%20Jan%2030%202008/exams/Content/fevs95.htm[1/23/2009 8:28:28 AM] 9) After the fall referred to in (8) 0, an employee of the store, made the following statement, "That syrup was on the floor all day." Which of the following would defeat the admission of the statement on H's behalf? a) D did not authorize O to make the statement b) D intended O's statement to be used only internally c) O had no personal knowledge of the condition d) O's duties did not include the condition of the floor 10) W, H's wife, would testify that she heard a crash and turned to see H lying on the floor. B, a bystander, said, "He slipped in that pool of syrup that's been there all day!" Bystander is unavailable at trial. W's testimony to B's statement is: a) admissible as an excited utterance; b) admissible as a present sense impression; c) both (a) and (b) are correct; d) inadmissible because B is unavailable at trial 11) W would further testify that she helped H to his feet, took him to the hospital, waited for an hour to see an emergency room doctor and that during this period he constantly complained of pain in his lower back. The best theory of admissibility is: a) non-hearsay; file:///J|/Backups/WEB%20ARCHIVE/OLDSITE/Full%20Jan%2030%202008/exams/Content/fevs95.htm[1/23/2009 8:28:28 AM] b) statement of present physical condition; c) statement for the purpose of medical treatment; d) excited utterance 12) H offers the emergency admitting report into evidence through the testimony of the records clerk who testifies that it is a record of the hospital maintained in the ordinary course of business. The "history" portion of the report states in part, "H slipped on syrup that had been on the floor all day." Should defendant's objection to this portion of the report be sustained? Why or why not? 13) Store calls Q, a customer, to testify that he saw H walking without looking and that he yelled "Mister, don't step in that syrup," just before H slipped. Is Q's testimony admissible over a hearsay objection? Why or why not? 14) Q would further testify that when he got home after the accident he told his wife, "This guy wasn't watching where he was going and fell in some syrup. I yelled at him to watch out but he slipped anyway." P objects on hearsay grounds and defense counsel points out that Q is present in court to be cross-examined. Should the objection be sustained? Why or why not? 15) State v. D for mass murder of his family. Defense of insanity. X would testify for D that after the killings D told him "God told me to kill them all." Is X's testimony to D's statement admissible over an objection that the statement is hearsay and self-serving? Why or why not? file:///J|/Backups/WEB%20ARCHIVE/OLDSITE/Full%20Jan%2030%202008/exams/Content/fevs95.htm[1/23/2009 8:28:28 AM] 19) T's will, which has been probated, includes the following statement, "I leave all my worldly possessions to S, the most loving and honest of my seven children." Admissible over a hearsay objection to show that S is T's beneficiary under the will? Why or why not? 20) State v. D for robbery of V. D denies the event. D was caught within an hour and the police took V to the place where D was being held. V identified D as the person who had robbed him. At trial V would testify to the identification. What is the best theory of admissibility? a) prior statement of identification b) excited utterance c) present sense impression d) verbal act e) admission 21) On the facts of (20) assume that V makes a courtroom identification of D and defense counsel cross-examines V to show that he previously identified D in a suggestive situation (D was in the custody of two uniformed officers). The state calls Officer to testify to V's description of the robber -- which fits D very well. Officer's testimony of V's-description is: i) inadmissible unless V's description was made under oath; file:///J|/Backups/WEB%20ARCHIVE/OLDSITE/Full%20Jan%2030%202008/exams/Content/fevs95.htm[1/23/2009 8:28:28 AM] ii) admissible to rehabilitate the witness but not - admissible substantively iii) admissible if made before the suggestive showup but not admissible if made afterward a) all are correct b) (ii) and (iii) are correct c) (i) and (iii) are correct d) (ii) only is correct e) (iii) only is correct 22) State v. D for a ten year old homicide of V. The prosecution's case-is based in large part on the sworn written confession of X, made on his deathbed to Officer Jones. The pertinent part of the confession is as follows: "I know I'm going to die. D and I planned to kill V. D lured him into the woods and stabbed him to death. We hid his body in a shallow grave." Investigation uncovered V's body in the place described by X. X is long dead by the time of D's trial. When offered by the state, the confession is: i) admissible as a dying declaration ii) admissible as the admission of a co-conspirator iii) admissible as a declaration against interest file:///J|/Backups/WEB%20ARCHIVE/OLDSITE/Full%20Jan%2030%202008/exams/Content/fevs95.htm[1/23/2009 8:28:28 AM] a) (ii) and (iii) b) (iii) only c) (i) only d) (ii) only e) none of the above Questions 23 -- 32. On November 10 of last year at about 4:30 pm ten year old Johnny Parks was struck and badly injured by a City police car driven by Officer David Dugan. At the time Dugan was responding to a call of 'robbery in progress" at a nearby Convenient store. His flashing lights were on but his siren was not activated. Johnny was crossing the street to see his uncle, Peter Smith, who was sitting on the porch of his house directly across the road. Paula Parks, Johnny's mother, brought an action against Dugan and City, alleging that Dugan was negligent in driving at a high rate of speed without a siren and failing to keep a lookout. Dugan and the City have denied negligence and asserted that Johnny was negligent in crossing without looking. 23) Peter Smith is called as a witness for the plaintiff. If permitted he would testify that he was watching Johnny as Johnny came to the edge of the road, that Johnny looked both ways, and didn't see the car because the sun was in his eyes, started across, and was struck by the car. Over objection should the italicized portion of the testimony be allowed? Why or why not? 24) Smith would further testify that Johnny always looked both ways before crossing the street. Admissible? Why or why not? file:///J|/Backups/WEB%20ARCHIVE/OLDSITE/Full%20Jan%2030%202008/exams/Content/fevs95.htm[1/23/2009 8:28:28 AM] brought up initially during the mediation. a) (i) and (ii) are correct b) (i) only is c) (ii) only is correct d) neither (i) nor (ii) is correct 30) At trial Dugan testified that he had his lights on but no siren because the police procedure was to run without siren on "crimes in progress" calls as the car came within hearing distance of the reported crime in progress. Dugan testified that criminals would flee at the sound of the siren, thus frustrating the effort to apprehend them. After Johnny's death the City changed the police procedure to require the use of a siren in all high speed situations. The plaintiff would like to introduce this change in procedure to show that it is feasible to use a siren in responding to a crime in progress. Admissible? Why or why not? 31) To establish the extent of Johnny's injuries the plaintiff called Dr. Bones, an examining physician, who would testify that in his opinion Johnny suffers from permanent brain injury as a result of the accident. Dr. Bones" opinion is based on: i) A CAT scan and neurological tests, which have not been introduced into evidence; ii) A standard treatise on the brain iii) Johnny's statements during the course of an examination file:///J|/Backups/WEB%20ARCHIVE/OLDSITE/Full%20Jan%2030%202008/exams/Content/fevs95.htm[1/23/2009 8:28:28 AM] Which of the above is a proper basis (for evidentiary purposes) of Dr. Bones testimony? a) all of the above; b) (i) and (ii) c) (ii) and (iii) d) (i) and (iii) e) (ii) only 32) If Dr. Bones is permitted to give his opinion and state that the basis for his opinion are the matters in (31) should the judge give a limiting instruction that the matters are to be considered only as the basis for the doctor's testimony and not for the truth of what is contained therein as to: a) (i) and (ii) b) (i) and (iii) c) (ii) and (iii) d) (i) only e) (ii) only 33) State v D for murder of V. D denies the offense. D called W to testify that he was sitting in a car different from the location where the prosecution evidence indicates the shooting took place; that he saw V, X and Y standing in front of a house,, that he heard a shot, saw V clutch his stomach and V, X and Y file:///J|/Backups/WEB%20ARCHIVE/OLDSITE/Full%20Jan%2030%202008/exams/Content/fevs95.htm[1/23/2009 8:28:28 AM] then entered the house. The prosecution calls X who would testify that he was working on a construction site at the time described by W. D objects that this is impeachment on a collateral matter. Should the objection be sustained? Why or why not? 34) On the facts of (33) assume that W further testified on direct examination that about fifteen minutes after V, X, and Y entered the house that a postman delivered mail to the house. The prosecution calls a representative of the Postal Service who would testify that the day in question was a legal holiday and there was no mail service. D objects that this is impeachment on a collateral matter. Should the objection be sustained? Why or why not? 35) H and W died in a car wreck. Under their wills it benefits the heirs of H to prove that H died after W. The heirs of H call Officer to testify that when he arrived at the scene W was dead but H said, "Help her Officer, she's going to die." Officer's testimony to H's statement is admissible as: i) non-hearsay; ii) a statement of intent within the Hillmon doctrine; iii) a dying declaration * * * a) all of the above b) (i) and (ii) c) (i) and (iii) d) (i) only file:///J|/Backups/WEB%20ARCHIVE/OLDSITE/Full%20Jan%2030%202008/exams/Content/fevs95.htm[1/23/2009 8:28:28 AM] 39) The prosecutor seeks to impeach D by asking him whether he was convicted of felony assault with a gun five years earlier, for which he served two years in prison. How does the similarity of the former charge affect admissibility of the conviction? 40) Assume that in the previous case D claimed that he shot the victim because he had been told on the day of the killing that the victim "was looking to cut him." No knife was found on the victim. A transcript of D's testimony in the previous case is available. Should it be admitted over the defendants objection? Why or why not? 41) After D testified he called Y. a female resident of the hotel, to testify to an incident two years before in which V allegedly cut Y. The prosecutor objects. Y's testimony is: a) admissible to show V's character; b) admissible to show V's modus operandi; c) inadmissible because V is dead; d) inadmissible 42) Y would further testify that in her opinion V was a violent person. The prosecutor objects. Y's testimony is: a) admissible to show V's character; b) inadmissible because Y is not disinterested; c) inadmissible because the state has not offered evidence that Y was a peaceable person; d) inadmissible because irrelevant file:///J|/Backups/WEB%20ARCHIVE/OLDSITE/Full%20Jan%2030%202008/exams/Content/fevs95.htm[1/23/2009 8:28:28 AM] e) inadmissible because not in the form of reputation evidence 43) Y would further testify that D has the reputation of being a peaceable and truthful person. Assuming the state was permitted to ask D about the conviction referred to in (39), Y's testimony should be admissible: i) to show D to be a peaceful person; ii) to show D to be a truthful person a) both (i) and (ii) b) (i) only; c) (ii) only; d) neither (i) nor (ii) 44) Assume that Y is permitted to testify that D has the reputation of being a peaceful person. The state would attempt to ask Y whether she has heard that D was convicted of assault five years before. a) the state should be permitted to ask Y about D's conviction and prove its existence if Y has not heard of it; b) the state should be permitted to ask Y about D's conviction but should not be permitted to prove its existence if Y was not heard of it; c) the state should be permitted to ask Y about the conviction only if it was deemed admissible when offered to impeach D; file:///J|/Backups/WEB%20ARCHIVE/OLDSITE/Full%20Jan%2030%202008/exams/Content/fevs95.htm[1/23/2009 8:28:28 AM] d) the state should not be permitted to ask Y about the conviction because bad character of the defendant may be shown only by opinion or reputation evidence. 45) When interviewed by the police Y said that she and D were just acquaintances. The prosecutor has since found a witness (Z) who would testify that Y and D are in fact romantically involved. Assume Y testifies for D as set out above and describes her relationship with D as mere friends. The prosecutor would call Z to testify that Y and D are lovers. Defense counsel argues that this is an attempt to impeach by extrinsic evidence of a collateral fact. Should the objection be sustained? Why or why not? 46) State v. D for assault on V, who was struck by a hit and run driver. V can describe the car (an old red Honda civic) and three digits of a Kentucky license plate (MCN . . .). Licensing records show that there are six red Honda civics with Kentucky license plates beginning MCN. As a result of the ensuing investigation D was charged. At trial V would testify that "I saw the car as it sped away and I think the license started MCN." V's testimony should be: a) excluded unless V can say he is certain that the license began "MCN." b) excluded because the odds of the car belonging to D are only one in six; c) admitted as evidence of the character of D;