ID: (Word Count = 49Rt::\

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1 ID: Evidence TUrner 1) (Word Count = 49Rt::\ QUESTION 1 The issue here,5-$1hether this character evidence of Buffy is admissible. Under Rule 404a, a character trait of a person is inadmissible.if offered for the purpose of showing conformity therewith on a particular occasion. Here, the prosecutor is likely introducing this evidence to show that the fingerprints that the crime technician found on the door were likely put there the night of the murder because if they had been put there earlier, Buffy would have scrubbed them off, in conformity with her character for cleanliness. Since the prosecutor is offering Buffy's testimony of cleanliness to prove conformity therewith, he is offering her character as circumstantial evidence that Anthony's fingerprints were put there recently, it violates Rule 404 (a). The rationale for this rule is that such character evidence has low probative value blc people do not always act in conformity with their character. Buffy may have missed a week. In addition, this is unreliable evidence that the fingerprints were left there the night of the murder because even based on Buffy's testimony, she cleans only once every two weeks, so that fingerprints could have been left two weeks ago when Anthony came to pick up Angela for visitation. Moreover, this evidence may unduly prejudice Anthony since the jury might be so impressed that she cleans so often, and conclude that the prints must have been left there the night of the murder. Thus, the judge should not allow this character evidence. The prosecution might also try to argue that this evidence goes to show Buffy's habit. Habit evidence is admissible to show conformity therewith under Rule 406. However, for the action to be a habit of an individual, it must not be a violational action, but an automatic response to a a particular trigger. Here, there is no trigger other than the passage of time. The defense can argue that cleaning the doors, even if it generally happens every two weeks is not an automatic response to the passage of two weeks, and requires a decision on the part of Buffy to clean the doors. However, if a judge were to decide that this was habit evidence, the prosecution could argue that the relevancy is that this testimony is probative of the fact that these fingerprints were left recently. Although this is relevant to the case, the judge, in applying the 403 balancing test would likely not find that any prejducial effects outweigh the probative value of this evidence. There is little if any unfair prejudice, confusion of issues, waste of time, or misleading the jury. QUESTION 2 The issue here is whether the statutory presumption can be given in the jury instructions. Under Rule 301, a proponent of a presumption, who has the burden of persuasion, has the burden of proving a basic fact, and if the basic fact is proved so that a jury could reasonably conclude that it is true, the presumed fact is presumed. The opponent then has the burden of rebutting either the basic fact or the presumed fact. If he successfully rebuts, the presumption disappears, and the proponent is left with circumstantial evidence to prove the connection between the basic fact and the presumed fact that is no longer presumed. If he doesn't successfully rebut, the presumption goes to the jury. Here, in order to take advantage of the presumption, the prosecution has the burden of proving that the basic fact exists. The basic fact is that an individual is a registered owner of a handgun or other weapon. If the prosecution can prove this fact so that a jury could reasonably conclude that it is true, the presumed fact that such individual is in possession of such weapon at all Page 2 of 10

2 I.D Evidence Turner times takes over. Here, the parties stipulated the basic fact that Anthony Daniels was a registered owner of the guns. The burden of going forward then shifts to Anthony Daniels to show that the presumed fact is not true. He must show this so that a jury could reasonably conclude that the presumed fact is not true. To rebut the presumption that he was in possession of the guns at all times, Anthony offered proof of a pawn ticket showing that he had pawned the gun, and thus, was not in possession of the gun. This pawn ticket is hearsay evidence. Hearsay evidence is an out of court statement by an out of court declarant offered to prove the truth of the matter asserted therein. This ticket was made out of court, by Sam, who is an out of court declarant. It is an assertion since it states a factual proposition as being true that Anthony had pawned the gun. It is being offered by Daniels to prove the truth of the assertion, showing that the pawn shop, and not he, was in possession of the gun in order to rebut the presumption. Generally, hearsay evidence is not admissible. However, there is a business records exception that allows admission of the record if the following conditions are met: (1) there is a regularly conducted business activity --here the pawn shop is a business (2) the record is regularly kept in the course of business --here a pawn ticket is made for every transaction to show that the pawn shop has possession in order for the pawner to redeem, (3) the record is important to business --otherwise there would be no record of who left what and when, (4) the record was made at or near the time of the transaction --here, the ticket is made at the time the sale is made, (5) the record is made by a person who has a duty to report -here it is Sam Levine, the owner of the pawn shop. The indicia of reliability that substitutes for crossexamination is that if a record is important to a business, the business cannot function without accurate recorde keeping, and the motivation to have the business do well indicates the trustworthiness of the business record. However, the proponent of the business record has to have the person who made the record or a custodian testify to all of these factors. The prosecution has a good case that Sam Levine cannot testify to the validity of the ticket. First, the prosecution can impeach the credibility of Sam, who took the stand, by showing a prior inconsistent statement. During the investigation Sam testified that the writing on the ticket was similar to his writing, but now he is testifying that he is fairly certain that the writing is not his. A person would generally know his own handwriting. Therefore, the prosecution can question why Sam thought the handwriting was his earlier, but is now saying it is not his. This tends to show that Sam is an unreliable witness and may not be telling the truth. Since the prior inconsistent statement was not made under oath, it cannot be offered for substantive purposes, but can be offered to impeach Sam. Further, it is circumstantial evidence that this pawn ticket is not genuine. Also, Sam testified that the duplicate of the pawn ticket was not in his records. He also could not find the revolver, and had no record of what happened to the firearm. Rule 803(7) allows a party to introduce evidence that a record which would normally be kept in the course of business, is not anywhere to be found after diligent searching, in order to prove the nonoccurrence or nonexistence of the record, and the information contained in the record, unless the circumstances indicate that such evidence is untrustworthy. Here, it was already established above that such a record would qualify under the business records exception. The police officer, if allowed to testify, could say that this was the first time his merchandis and records did not match for a period of fifteen years. Also, Sam testified that such a record is normally kept, and was upset when he couldn't find the records. There is no reason to doubt that this evidence is untrustworthy. The facts do not suggest that Sam had any reason or motive to "not find" the records. Thus, the fact that the record is no where to be found can be admitted to show that the record was never made, and hence, that Anthony never left the gun. Since Anthony's whole strategy to rebut the presumption that he had the gun at all times in his possession is to show that the pawn shop had the gun, he has to produce enough evidence so that a jury could reasonably conclude that the presumed fact is not true. Based on the above -- Page 3 of 10

3 ID Evidence Turner Sam's statement that the handwriting on the pawn ticket is not his, as well as his inability to locate the business record, shows that the pawn transaction likely did not occur. Therefore, Anthony has not rebutted the presumption, and the presumption should be instructed to the jury. In a criminal case, there is no mandatory or irrebutable presumptions. Therefore, even if a judge finds that a presumption does apply, must word instructions so as not to suggest a directed verdict in the prosecution's favor, or tell the jury how to decide. Thus, the judge could include the words "You may, but need not infer that because Anthony was a registered gun owner.. he was likelv in POSSA.c;S of the gun at all time. QUESTION 3 The first issue is whether this statement is inadmissible hearsay. Generally hearsay is inadmissible. Hearsay is an DOCS by an OOCD, offered to prove the truth of the matter asserted. Here, Donna Daniels is testify to an out of court statement that she made to Anthony in which she stated that his boss had been k.illed. At.the time the statement was made Donna was an out of court declarant. However, the statement was not offered for its truth, to show that Slick Case had actually been killed. Rather, it was offered to show the effect that the statement had on Anthony. It was a necessary predicate for his response of shock. Although the statement is not offered for its truth, it is still relevant because Anthony's response is circumstantial evidence that Anthony didn't know about the killing. People who act surprised or shocked that someone is killed probably are not themselves the killers. Therefore, this statement is probative of the fact that Anthony did not do the killing because he didn't know about it and was shocked when he heard. l-jowever, Donna is testifying to her opinion that Anthony was shocked. Since she is not.estifying as an expert, and her testimony does not require specialized knowledge, she is a lay witness. Under 701 her opinion that Anthony is shocked is admissible if it was based on her perception of the facts, and her opinon is rationally based upon those facts. Here, she is basing her opinion on the look she saw on Anthony's face. This is a sensory perception through her sight. Although an argument could be made that even the look that she saw on his face required an interpretation --maybe speculative --, a rational person, by looking at a person's face and seeing certain characterisitics here, could made the inference that that person was in shock. Therefore, this was a rational inference based on facts that she could see, and a reasonable person could interpret. Thus, it is admissible. The next issue is whether Anthony's out of court statement that he "knew that Porsche would finally do him in" is admissible, It is hearsay b/c it was made out of court by Anthony. However, it is not being offered for the truth of the matter asserted, that the Porshe finally did him in. Rather, it goes to show Anthony's state of mind. It goes to show that he thought the Porsche had killed Slick, rather than a shooting. This state of mind is relevant because it is circumstantial evidence that Anthony did not do the killing. People who think that a person was killed by a means other than shooting, are not the ones who did the shooting. Since his belief is his own, and doesn't require cross-examination of the out of court statement, this is reliable evidence that he did not do the shooting. Thus, it is admissible. QUESTION 4 The statement adout 8Uffy being in bed with Slick at the time of the crime could be Paae 4 af10

4 ID Evidence Turner characterized as character evidence of Buffy which is inadmissible under 404. However, defesne counsel could argue that they did not admit the evidence to show conformity with it but to provide context for Anthony's actions. Specifically, it goes to provide evidence that Anthony was so upset when he saw the two in bed together, that he shot without thinking. This would undermine the Murder one charge since it was not premediated under this argument. Although the prosecution could argue that the real reason for offering this character evidence was to make Buffy look bad, the stated purpose is important, and the judge should allow. It also goes to show a prior inconsistent statement to impeach the credibility of Buffy who is on the stand. Earlier, Buffy testified that she was fully clothed. The defense is trying to prove that she was not fully clothed. However, Buffy stuck to her story. Later, on cross examination of another of the prosecution's witnesses, the defense asked what Buffy was wearing. His testimony is extrinsic evidence to show that Buffy was not fully clothed. What Buffy was or was not wearing is not material to any issue in the case. Any inconsistency is only offered for the purposes of impeaching, and this is impeachment as to a collateral matter. Extrinsice evidence to show a collateral inconsistency is not admissible because of the transactional costs, and the low probative value that it has to any issue. However, the prosecution had already called the witness to testify to material matters, and the defense was able to get the collateral matter out of him. Thus, the rationale for not allowing extrinsic evidence to show collateral inconsistencies doesn't apply, and the testimony should be allowed. There QUESTION 5 The issue is whether this hearsay is admissible. Hearsay is not admissible unless an exception applies. See definiton above. An exception to the hearsay rule is if an out of court statement qualifies as a present sense impression. A present sense impression is a statement describing an event or condition made while the declarant is perceiivng the event or condition, or immediately thereafter. Buffy is claiming that she heard, through her senses, that Angela was calling "Daddy". If this is so, Angela's identification of Anthony through her sense made while she was perceiving him, would fall under the present sense impression. The rationale for this exception is that if a person makes a statement while perceiving an event, there is no time to make a story up. Thus the hearsay danger of insincereity is not present, and there is no danger of memory problems. The problem is that Angela is not testifying, and Buffy as to what she remembered hearing through her sense of hearing as the event occurred. However, at the time that Buffy was perceiving the event, she was drunk, and the other side can argue that her ability to perceive the event is flawed. Particularly since Buffy testified to the detective that she had no reason to believe that Anthony would kill Slick, there is reason to distrust her statement as to what she heard since it contradicts her earlier statement. Because of this, the dangers of hearsay are present of insincerity, memory, and perception, and the exception should not apply.. Prosecution might also argue that this is an excited utterance exception to the hearsay rule. An excited utterance is a statement relating to a shocking or startling event made while the declarant is still under the stress of the event. The indicia of reliability that substitutes for cross is that if a person makes a statement under the shock of an event, he or she is unable to make up or fabricate a story. Here, the statement was made approximately four hours after the event. The prosecution wants to show that due to the shock of perceiving the shooting, Buffy was still under the stress and her statement made while under that stress was an excited utterance. Although it is true that a state of shock can exist for several hours so that anything said during that time could be characterized as an excited utterance, the facts show that Buffy had been up all night drjnking coffee which would take the drunken stupor away. It wasn't until after her drunken stuper left that she made the statement. Thus, she was not under the stress Page 5 of 10

5 Evidence Turner of the situation. The proseuction will argue that due to her drunken state, coupled with the shock of the crime, that it wasn't ~ntil she came out of this shock, that she was able to remember what she heard at that time. However, the indicia of reliability in an excited utterance is that a person will not make up a story while under the shock of the event. Since Buffy was drinking coffee, the effect of coffee on her would help to bring her senses back, and she could make the statement purposefully, choosing what she wnated to say. Thus, the indicia of reliability is not there, and the exception should not apply Thus, it is just hearsay, and inadmissible. QUESTION 6 The first issue is whether the judge can take judicial notice of the airline's flight schedule. A court can take judicial notice of adjudicative facts. These are facts that are relevent to the parties and the controversy. In order for a court to take judical notice, the facts have to be reasonably undisputed, and be a matter of general knowledge in the community, or facts that can easily be verified by consulting an accepted authority (i.e., almanac, treatise). The benefit of judicial notice is that the parties do not have to put forth evidence on that fact which saves time and judicial resources. The flight schedule is subject to reasonable dispute. Although this IS the tentative times, a plane can leave earlier or later, and arrive earlier and later. It doesn't take into consideration any delays or reason for a plane not conforming to this schedule. Particularly since the flight schedule is material to the case since it provides Anthony with an alibi, the judge should require the prosecution to prove the flight times the long way by having someone from the airport confirm that the relevant flight actually departed and arrived at these times. Moreover, the flight schedule is not a matter of general knowledge and cannot be verified by any other source other than the flight schedule itself or someone who can confirm the flight schedule. Thus, the judge should require a witness to confirm. The second issue is whether the judge can take judicial notice of the distances. This is an appropriate topic for judicial notice. It is unlikely that these distances would be disputed, nor even that State Highway 99 is a major highway. Further, it is likely generally known.in that community that the park is located 1/2 miles from the highway, that that highway leads into clear Springs, and that the distance from the park to the airport is about 60 miles. Thus, the judge should take judicial notice. However, since this is a criminal case, the judge must tell the jury that he has taken judicial notice, but they do not have to accept these facts still. QUESTION 7 The issue is whether this out of court statement by lago that he killed Slick is inadmisible he-arsay. See definition above. Here, this was an out of court statement by an out of court declarant (Iago) offered to prove the fact of the matter asserted (that lago killed Slick). Thus, this is hearsay, and is not admissible unless an exception applies. The relevant exception is a statement against interest. In order for this exception to apply, the declarant has to be declared unavailable, and the statement must be so far against his pecuniary or propriety interests at the time it was said, or would subject him to criminal or civil liability, that no reasonable person would make the statement unless.the statement were true. In addition, in a criminal case, a statement by an unavailable witness that would subject him to criminal liability and would exculpate the accused requires further corroboration to prove that the statement is trustworthy. ID: Page 6 of 10

6 ID: Evidence - Turner Here, the court will find that lago is technically unavailalbe based on the definition in Rule 804 because lago is privileged not to testify, and will refuse to testify. This is his right. Therefore, since in order to protect his own interests he will not testify, and his testimony is important, the court should allow his statement if it qualifies as a statement against interest even though he is unavailalble. The statement would subject lago to criminal liability because if he killed Slick, he would be punished for that. However, he made the statement while he was alrealdy in jail, and the prosecution can argue that he did not have anything to lose by making the statement. It was not against his interest at the time because he was already sitting in jail. However, if the state recognized the death penalty for murders, this could then be against his interest since the reasonable person would not admit to the murder if it meant death. BUt if jail was the only possibility, this may not be against his interst. Particu1arly if he was already in jail for all or most of his life. Moreover, it is relavant, because it is probative that lago and not Anthony committed the murder, and would not be unduly prejudicial to Anthony if it would get him off the hook. On the other hand, although this statement subjects lago to criminal liability, it is being offered to exculpate Anthony by showing that lago and not Anthony murder Slick. Therefore, the rule requires that there be corroboration to prove the trustworthiness of this statement. A judge could find that there is sufficient corroboration. First, the police and many others belive that lago acts as an enforcer for the Nita gambling mob. Other testimony shows that Slick was a heavy gambler because it was his first love and was always putting down bets with bookies. Further, even Anthony Daniels stated his belief that Slick was killed by the mob based on the rumor that he heard that if Slick did not pay up, the goons were going to break his knee caps. Further, the board recommended that Slick be fired because of his gambling problem. These facts are probably enough to corroborate lago's testimony that he killed Slick, based on the inference that since he enforced the gambling mob, and Anthony was a heavy gambler and hadn't paid up recently, lago got him. None of the facts show that lago would get him by shooting him, but violent punishment is inherently characteristic of a mob. Thus, if the court finds that the statement is not against lago's interest, his statement does not come in because the reliability of the statement is questionable, particularly since IAgo cannot be crossexamined. But if the court finds that the statement was against his interest at the time it was made, there is likely enough corroboration of the exculpatory statement to allow it in. QUESTION 8 The issue here is whether the prosecution can use Anthony's prior bad acts and convictions to impeach the credibility of his courtroom testimony. Since Anthony took the stand as a witness, he may be impeaced by any party (Rule 607). The first item is a prior bad act since he has not been convicted and comes in, if at all, under Rule 608. Under 608, a witness can be questioned about a prior bad act if it relates to the witness's propensity for truthfulness or untruthfulness. The rationale is that a witness's testimony has low probative value if it is untruthful and cannot be believed. In order for a prior bad act to relate to truthtelling, it must involves stealth, deception, or misrepresentation. On its face, it doesn't look like the side bets relate to truthfulness. However, the prosecution can argue that as an employee of the country club, Anthony is already being paid for working there, and by accepting money from customers, he IS going around his employer and the money his employer pays, by accepting more money from the bets. Obviously, his employer does not know about it since betting is a misdemeanor charge, and what employer of a country club would want an employee who broke the law. Thus, by accepting the bets, Anthony is feigning loyalty to his employer, a misrepresentation of sorts, that could impact the credibility of his testimony. In addition, the probative value of this prior act is not outweighed by unfair prejudice or other 403 considerations since betting does not relate to the actual crime at hand (murder), and is just used to undermine his credibility. Page 7 of 10

7 Thus, the judge should allow the betting act. ID Evidence Turner The next item also comes in, if at all, under Rule 608 since it is not a conviction. Again, on its face, running around on his wife does not seem that it would relate to the witness's truthfulness. On the one hand, if Buffy did not know he was running around, he was acting faithful to her, while doing somethjng else on the side. This act would be untruthful implicitly. On the other hand, Buffy testified in her deposition that she knew that he was roving around for female companionship. If his act was open between them, he wouldn't be doing it behind her back. However, the facts show that when she caught him in the act with the Hooters girl, she kicked him out. Thus, it is safe to assume that he was roving behind her back, and it was not an accepted fact between them. This roving indicates a degree of stealth in attempting not to get caught. Thus, it does have probative value of his truthtelling propensity. However, the prejudicial impact of this testimony his high because running around on your spouse is not accepted by the general population. This would make the jury look poorly at him, not because his credibility as a witness is poor, but because he is a "bad" person for running around on his wife. Thus, under the balancing test, the judge should keep this out. The last item comes in, if at all, under Rule 609 since it is a conviction. Since it is a conviction of the accused, it can only come in if the conviction was punishable by death or imprisonment in excess of one year, or it involves a crime of dishonesty. (I don't know for sure what bookmaking is, but I gathered that it involves dishonesty and false statement because it is untruthful records). If it is a crime of dishonesty, it comes in no matter what the punishment test, and even without a balancing test of probative against prejudicial. Moreover, the conviction was less than ten years ago. Thus, the judge shou!d allow the evidence of the conviction because it has probative value on Anthony's credibility. QUESTION 9 The judge should allow Suzanne to testify. The defense counsel would object because her testimony includes hearsay. See definition above. This is an out of court statement by an out of court declarant at the time, and it is offered to prove the truth of the matter asserted --that Tony Daniels was on the return flight. Although this looks like hearsay, under 801, this is not hearsay because it is a prior identification. Suzanne made a prior identification of the man on the plane on that day. If she testifies in court and identifies Anthony as the person she saw on the plane, it will show the consistency of her statement and will go to prove that Tony could have done the crime. Generally, prior consistent statements are not allowed if the witness has not first been charged by the other side of improprer motive or recent fabrication of her story. However, prior identifications are an exception to this rule because of their reliability. Out of court identification is a real identification under non-suggestive circumstnaces. This is in contrast to an incourt identification where there is really only one person to identify as the defendant. Thus, they are more reliable, and are admissible, and are even categorized as nonhearsay. They can be used for substantive proof. Thus, since this is a prior identification, her words, although assertions that the individual is Anthony Daniels, is not hearsay, and admissible. The relevance of this, if admissible, is that Tony Daniels had the opportunity to commit the crime because he was not at the park, but had come back to town. The balancing test does not kick it out because the high probative value outweighs any negative effects, such as the 1ransacitonal cost of calling this witness. Page 8 of 10

8 ID: Evidence Turner It could also be an adoptive admission of who she though was Tony. An admission is offered by an opponent of the party who made the statement. As long as the admission is relevant to the case, it is admissible for the truth. Although it looks like hearsay based on hearsay definition, it is categorized as non-hearsay because it is so probative of truth. Here, when the flight attendant identified him, he did not dispute her idntiifcation. A reasonable person would have disputed the indentifiacation if he was not the person she identified. Thus, by not saying anything to contradict her, he has accepted her identification, and has admitted by this that he is Tony Daniels. 2) 3) 4) 5) 6) 7) 8) 9) 10) 11) 12) 13) 14) 15) 16) 17) 18) Page 9 of 10

9 ID Evidence Turner 19) 20) 21) 22) 23) 24) 25) END OF EXAM Page 10 of 10