EVIDENCE. Professor Franks. Final Examination, Fall 2013 GENERAL INSTRUCTIONS

Transcription

1 EVIDENCE Professor Franks Final Examination, Fall 2013 GENERAL INSTRUCTIONS 1. Carefully analyze the facts and grasp the issues in each question before beginning to write. Spend time reading the question slowly and carefully. 2. State the issues and answers to each question concisely. Lengthy answers are not necessary. 3. Do not repeat questions in your answers. Write neatly and legibly on only one side of each page. 4. Number your answers to correspond with the question, e.g., "II-7." 5. Do not write in the margin of the book. 6. All questions are equally weighted unless otherwise indicated. 7. Write your personal identification number and the name and section number of the course on which you are being examined on the cover of each examination book.

2 QUESTION I 33.3 per cent of test I. Please answer the following questions briefly and concisely, either true or false. : 1. A Louisiana court must take judicial notice of a Louisiana statute. 2. Dr. Daniels, an orthopedist, has been called by the defense and qualified as an expert. He testifies that the plaintiff is exaggerating her injuries. Dr. Daniels may base his opinion on inadmissible evidence from his examination of the plaintiff s medical chart. 3. In Louisiana, except in a place where there is a reasonable expectation of privacy, one may videotape a person without his or her consent. True or False? 4. In Louisiana, the scope of cross-examination is limited to matters covered on direct. True or False? 5. A judge may take judicial notice of those facts he knows to be true. True or False? 6. A witness may be impeached with his prior inconsistent statements only if those statements were made under oath in a judicial proceeding. True or False? 7. The spousal communications privilege may be claimed by either spouse (witness or defendant). True or False? 8. In past memory recorded, the document handed to the witness must have been made or adopted by the witness when the matter was fresh in his or her memory. True or False? 9. After the plaintiff or prosecution has made its opening statement, the defendant may opt to make an opening statement immediately or may reserve same to the start of the defense case. 10. Irrelevant evidence is never admissible. True or False? - 2 -

3 QUESTION II 66.7 per cent of test Please answer the following questions. If more than one answer appears correct, choose the best answer: 1. In Gerry Spence s chapter entitled "The Eye of the Wolf," Spence s close friend wrote Spence a letter. To what religion did the writer of that letter belong? A. Roman Catholic. B. Protestant Christian. C. Jewish. D. Mormon (Latter-day Saints). 2. To cross-examine an expert from a learned treatise, you must do one of three things. What are the three things? A. Have the work certified by the publisher as authentic, have your own expert identify it as authentic, or get the witness to admit it is authentic. B. Have the court take judicial notice, have it certified by the publisher as authentic, or get a witness to admit it is respected authority. C. Have the court take judicial notice, have your own expert identify it as authentic, or get the witness to admit it is authentic. D. Have the court take judicial notice, have your own expert identify it as respected authority, or get the witness to admit it is respected authority. 3. A lawyer tells the court during a trial, We invoke The Rule. What does she mean? A. The jurors must be questioned as to their legal eligibility to serve. B. Non-party witnesses are to be excluded from the courtroom. C. The jurors are to be instructed not to discuss the case during the trial. D. The lawyers are to cease all communications with non-party witnesses

4 4. In a criminal case, when may the prosecution call character witnesses to testify as to the reputation of the defendant for truth and veracity? A. Only after the defendant has taken the witness stand. B. Only after the defendant has claimed good character. C. Only if the defendant has a prior felony conviction. D. Never. 5. In a criminal case, when may the prosecution ask the defendant about a prior felony conviction? A. Only after the defendant takes the witness stand. B. Only after the defendant has claimed good character. C. Only if the defendant s prior felony conviction was within the last 10 years. D. Never. 6. Mini-hypo for Question 6: Defendant is charged with robbery. The sole evidence is the testimony of his ex-girlfriend that he confessed to her. At the time of the robbery, the police took fingerprints off the cash register tray that the robber had handled. The police have lost the prints and cannot find them. What argument should defense counsel make? A. The girlfriend s testimony is inadmissible because it violates the best evidence rule. B. The girlfriend s testimony is inadmissible because it violates the hearsay rule. C. The evidence lost must be presumed to be in defendant s favor, raising reasonable doubt. D. The case should be dismissed because of bad police work.. (Please continue on to next page.) - 4 -

5 7. Mini-hypo for Questions 7, 8 and 9: Paul, plaintiff in a personal injury action against Donald, called William as a witness to testify that Donald's pickup, in which Paul had been riding, ran a red light. William, however, testified that Donald's car did not run the light. Paul then called Rebecca to testify that Donald's car did run the light. The trial judge should rule that Rebecca's testimony is: A. Admissible because Paul was surprised by William's testimony. B. Admissible because Rebecca s testimony was relevant to material issues. C. Inadmissible because Paul cannot impeach his own witness. D. Inadmissible because Paul is bound by the testimony of his own witness. 8. On cross-examination of Rebecca, Donald's attorney asked Rebecca if she was drunk at the time she witnessed the accident, and Rebecca responded, "No, I have never in my life been drunk." Donald's attorney then sought to prove by Harriet that Rebecca was drunk on New Year's Eve two years before the accident. The trial judge should rule that Harriet's testimony is: A. Admissible to impeach Rebecca by showing that she had an imperfect recollection of recent events. B. Inadmissible because a witness cannot be impeached by proof of specific acts of misconduct. C. Admissible to show that Rebecca is not the kind of person on whom one should rely for ascertaining the truth. D. Inadmissible because the question of whether Rebecca has ever been drunk is a collateral matter. 9. Donald then called Keisha as a witness and asked her if she knew Rebecca's reputation for veracity in the community where Rebecca resided. The trial judge should rule that this question is: A. Objectionable because it is collateral to the issues on trial. B. Objectionable because the question asks for hearsay. C. Unobjectionable because it is proper impeachment of Rebecca. D. Unobjectionable only if Keisha knows Rebecca personally

6 10. Mini-hypo for Questions 10 and 11: You are handling a jury case representing two plaintiffs who were riding together when the car in which they were riding was rear-ended. The man is married, but the girl riding with him is his mistress. Both are asking for damages for their whiplash injuries. Your clients were headed to a motel at the time of the accident. You know the defense will relish exploiting this fact. Is the fact admissible? A. Yes, their intended route of travel is relevant. B. No, their intended route of travel is irrelevant. C. No, their intended route of travel is relevant but the danger of prejudice outweighs the probative value. D. Yes, because they probably were in a hurry to get to the motel. 11. You wish to object to questions about your clients relationship, with the term friends to be the only description of the relationship allowed. What is your best way to raise such an objection? A. Object immediately when the defense begins questioning either of your clients about the relationship. B. File a motion in limine in advance of the trial to declare the issue improper for inquiry. C. When the defense begins questioning about their relationship, ask the court to retire the jury so you may make an objection out of hearing of the jury. D. Ask the court to instruct the jury to disregard the sexual activities of your clients. 12. Mini-hypo for Question 12: Jones sues Smith, a merchant, for injuries suffered by Jones in an staircase accident on stairs leading to stores on the second floor of a strip mall. At trial, Jones wishes to offer evidence that two days after the accident Smith replaced the worn-out rubber treads on the staircase. May he do so, and when? A. No, not if Smith is only a merchant and not the owner of the building. B. No, unless Smith claims lack of control of the staircase or that repair was not feasible. C. Yes, if the repair was accomplished immediately following the accident. D. Yes, if the proximate cause of the accident was the original rubber treads

7 13. Which of the following is not a reason to admit evidence of subsequent remedial measures? A. If the preventive measure was readily and easily available before the accident B. If the defendant denies ownership of the thing repaired C. If the defendant claims remedial measures would not have been possible D. If the claim is founded on a theory not involving negligence or culpable conduct 14. Mini-hypo for Question 14: Suing for personal injuries, Larry calls his wife, Shawna, as a witness. If allowed, she will testify that before the accident Larry mowed the lawn every weekend and took the garbage out every day. She will testify that now he makes her take the garbage out and he hires a service to cut the grass. She will also tell that he complains daily of pain every time he gets up in the morning, that she saw he was in great pain this past Monday, and that he also said the pain started when he went to the file cabinet at his place of employment. Which of the following items of Shawna s testimony are admissible? A. All of the proposed testimony is admissible. B. Larry s statement about the garbage and lawn mowing only. C. Larry s statements about the garbage and lawn mowing, and his complaints of pain when he gets up in the morning. D. None of Larry s statements is admissible. 15. Mini-hypo for Question 15: In a civil case, it is necessary for the plaintiff to prove the value of his brand-new 2014 car, totaled in the accident. Which of the following may plaintiff not use? A. The testimony of a used car dealer. B. The Kelley Blue Book. C. The deposition testimony of the defendant. D. A notarized statement from the dealership that sold plaintiff the car

8 16. Mini-hypo for Question 16: Smith, Brown and Jones joined forces to burglarize the Baton Rouge Gold Company. The day after the burglary, Brown offered to sell the stolen gold coins to Fenster. Brown then told his aunt, Louise, that he made $10,000 in the burglary. When finally arrested, Smith told the police that it was all Brown s and Jones s idea. Which of the following is admissible against all three defendants? A. All of the proposed testimony is admissible. B. Only Smith s statement to the police is admissible. C. Only Brown s offer to sell the stolen coins to Fenster is admissible. D. None of the statements is admissible. 17. Mini-hypo for Question 17: Following an armed robbery, the police visit the two defendants, Harry and Ryan, who share an apartment. During the course of the police interrogation in the apartment, and before the police give Miranda warnings to them, Harry looks at Ryan and says, It seems they ve got us. Against whom is the statement admissible? A. It is admissible against neither, since Miranda warnings had not been given. B. It is admissible only against Harry and in no case against Ryan. C. It is admissible against both unless Ryan denied the crime. D. It is admissible against both as a co-conspirator statement. 18. Mini-hypo for Question 18: Jim Jones s wife is trying to commit him to a mental institution. She testifies that he told her, and that she later learned he also told his boss, I am Barack Obama. Are the statements admissible? A. Both statements are hearsay and will not be admitted. B. One of the two statements is not hearsay, while the other is inadmissible. C. Both statements are hearsay, and both will be admitted under exceptions. D. One statement is admissible hearsay, the other inadmissible hearsay. (Please continue on to next page.) - 8 -

9 19. Mini-hypo for questions 19 and 20: Litigating a question of privilege or easement across lands, plaintiff seeks to introduce a letter written by and handed to him by the defendant, another letter he was sent via the mails by a neighbor who is not a party to the action, and the three acts of sale (deeds), certified by the clerk of court, under which he, his non-party neighbor, and the defendant each acquired title to their property. Assume all are relevant. Which of the following is correct? A. Plaintiff must identify his own act of sale; the other two are inadmissible. B. All documents are admissible without need for further authentication. C. Only the neighbor will need to identify his act of sale. D. None of the acts of sale are admissible without in-court authentication. 20. Which of the following four statements is incorrect? A. The letter from defendant is admissible if defendant admits having written it or if plaintiff testifies how he got it. B. The letter from neighbor is admissible hearsay only if the neighbor testifies differently. C. The letter from the neighbor is admissible only if he is unavailable as a witness. D. Both letters are inadmissible. QUESTION III Extra credit 1. In not more than one handwritten page, identify the principle of evidence law that you feel most important to safeguard our rights as citizens of this still-free country