Final Exam

Evidence § 2 - Fall 2001

Instructions: This is an open book exam. You may use any written source (except another student’s exam paper) you choose in answering the questions set forth below. Assume that the Federal Rules of Evidence (FRE) apply throughout the exam. Cite specific provisions of the FRE and applicable case law whenever appropriate. There are 110 potential points on the exam. The exam will be graded on a 100-point scale.

Part I - Fact Pattern Analysis

(40 points - 65 minutes)

1. Sara Jane Olson, f/k/a Kathleen Soliah, was arrested in June 1999 in St. Paul, Minnesota, where she had been living with her husband, an emergency room physician, and her three daughters. She had been indicted by a Los Angeles County (California) grand jury 23 years earlier on charges that she had conspired with Bill and Emily Harris to kill Los Angeles police officers by planting pipe bombs under squad cars.

According to the prosecution, Olson was a member of the Symbionese Liberation Army (SLA), a terrorist organization that sought to incite a violent revolution and overthrow the United States government. SLA members allegedly committed various crimes, including kidnapping newspaper heiress Patty Hearst, killing the head of the Oakland, California schools, credit card fraud and several bank robberies, in support of those objectives The prosecution intends to offer evidence linking SLA members to stolen credit cards, false identifications and a closet full of materials to make bombs found in the Harris’ apartment.

The SLA allegedly committed a bank robbery in Sacramento, California in order to secure funds to purchase a car to drive the conspirators to Los Angeles for the bomb attempt. A customer was shot and killed in the bank robbery. Hearst will supposedly testify that Olson and her then-boyfriend later drove around Los Angeles looking for targets and eventually settled on the police cars. The prosecution claims to have a letter ordering fuses that Olson wrote just days before nail-packed pipe bombs were found under the cars. The letter is in Olson’s handwriting and contains her fingerprints. The prosecution further claims that it has a diagram of potential bomb sites that has Olson’s fingerprint on it.

The defense, on the other hand, contends that Olson was a supporter but not a member of the SLA and was not privy to any of the internal workings of the core group. The defense denies that Olson was in Los Angeles at the time of the attempted bombings or that she participated in any other violent activities. Olson claims to not recall the letter or the diagram.

(a) On behalf of the prosecution, how would you argue that evidence concerning the SLA, its terroristic tactics and its revolutionary objectives is relevant in the prosecution of Olson? Would it make a difference if the defense was willing to stipulate concerning these matters? (5 points)

(b) On behalf of the defense, how would you respond to the prosecution’s argument in (a) above? (5 points)

(c) What must the prosecution establish before Hearst would be permitted to testify concerning the activities of Olson and her then-boyfriend? How would it do so? (5 points)

(d) What must the prosecution establish before the letter and diagram would be admissible in evidence? How would it do so? (5 points)

(e) The defense is contemplating having Olson testify in her own defense. If it does so, the defense would like to call friends and family members to testify that Olson is a credible person. Would this evidence be admissible? (5 points)

(f) The defense intends to portray Olson as a caring mother who was involved in her community and who led an exemplary, peaceable life for more than two decades. Would this evidence be admissible? (5 points)

2. Kent R. Jones is charged with first- and second-degree murder and first-degree criminal sexual conduct for allegedly raping and then brutally killing Linda Jensen in her Big Lake Township, Minnesota home in February 1992. The prosecution has established through DNA analysis that body fluid found on Jensen matches a sample taken from Jones.

Jones testified that he and Jensen met through Cub Scout activities that their children were involved in. He does not dispute the DNA evidence offered by the prosecution. To the contrary, Jones explained the presence of his body fluid on Jensen by testifying that he and Jensen had been having an affair and that they had sex at his home the day prior to her death. Jones denied any involvement in Jensen’s death and testified that he was home with his wife during the entire day that Jensen was killed. His wife, Deborah Jones, corroborated Jones’ alibi defense. She testified, “My husband was home with me. I know that because of our structured routine at that time.” Deborah Jones further testified that she did not notice any cuts, bruises or scratches on Kent or any bloody clothing.

(a) Kent and Deborah Jones were convicted of insurance fraud in 1998. Assume that this offense is punishable by imprisonment for more than one year. Would the prosecution be permitted to introduce evidence that Kent and/or Deborah had been convicted of insurance fraud? For what purpose? (5 points)

(b) Would your answer in (a) above be the same or different if insurance fraud were punishable by imprisonment for less than a year? (5 points)

Part II - The Underlying Theory

(40 points - 65 minutes)

Each question below is worth ten points.

1. In an action for defamation in which the plaintiff claims injury to reputation, the defendant seeks to present evidence that the plaintiff had been convicted of a felony and violated his subsequent parole, had several convictions for driving under the influence, and had failed to file tax returns and to pay child support and alimony. Briefly explain whether this evidence would be barred by FRE 404(a) or permitted by FRE 405(b).

2. FRE 801(d) excludes from the definition of hearsay certain prior statements and admissions of a party opponent. FRE 803 and 804 create certain hearsay exceptions. The net effect is the same whether statements are treated as not hearsay under FRE 801(d) or as hearsay exceptions under FRE 803 or 804 – the statements are not rendered inadmissible by FRE 802. Why are certain prior statements and admissions treated differently for hearsay purposes than hearsay exceptions?

3. In Goeb v. Tharaldson, 615 N.W.2d 800 (Minn. 2000), the Minnesota Supreme Court concluded that the Frye “general acceptance” test continues to govern the admissibility of novel scientific evidence in Minnesota courts, and that trial court rulings in this regard would be subject to de novo review by appellate courts. How, if at all, does the role of Minnesota state trial courts differ from that of their federal counterparts in determining the admissibility of novel scientific evidence? How, if at all, does the role of Minnesota appellate courts differ from that of their federal counterparts in reviewing trial court decisions on admissibility?

4. “In all litigation, civil and criminal, a potential defense is failure of proof as to an essential element of the claim for relief or the crime charged.” Briefly explain what this statement means.

Part III - Hearsay Quiz

(20 points - 35 minutes)

Follow the path through the hearsay thicket to determine whether evidence offered in the following situations should be excluded by FRE 802. Give a brief explanation in support of your answer. Each question is worth two points.

1. In the prosecution of Sara Jane Olson for allegedly conspiring to kill police officers by blowing up police cars, a letter in Olson’s handwriting ordering fuses.

2. In the prosecution of Kent R. Jones for allegedly raping and killing Linda Jensen, testimony by a fellow inmate that Jones told him that he killed Jensen.

3. In the same prosecution, testimony by a former lover that Jones became angry and defensive when she mentioned the Jensen murder.

4. In the same prosecution, court records showing that Kent R. Jones and Deborah Jones had been convicted of insurance fraud.

5. In a slip-and-fall case arising out of a fall at a grocery store, a customer’s statement to the plaintiff to watch out because the floor was wet and slippery is offered by the plaintiff to prove that the grocery store was negligent.

6. In the same case, the customer’s statement is offered by the defendant to prove that the plaintiff was contributorily negligent.

7. In the same case, evidence that shortly after the accident the store manager fired the employee who was responsible for maintaining the store floors.

8. In a suit against an asbestos manufacturer alleging that the plaintiff contracted asbestosis as a result of contact with the manufacturer’s product, a medical report prepared by a physician hired by the manufacturer to assess claims made against it indicating that the plaintiff had asbestosis.

9. In the same case, a medical history form filled out by the patient prior to being examined by the physician indicating that the plaintiff had been exposed to asbestos.

10. In the prosecution of D for the murder of V on Saturday, testimony by V’s roommate that V told her, “I am going out with D on Saturday.”

Part IV - Extra Credit

(10 points - 15 minutes)

Circle the correct answer on this exam sheet. Each question is worth two points.

1. Although the Minnesota Rules of Evidence are patterned after and are substantially the same as the Federal Rules of Evidence, there are some differences. Which one of the following was not identified in class as being different:

(a) Prior consistent statement.

(b) Prior inconsistent statement.

(d) Sequestration.

2. Which one of the following is true?

(a) The dispute between Thayer and Morgan concerns whether the burden of pleading shifts.

(b) The dispute between Thayer and Morgan concerns whether the burden of production shifts.

(d) All of the above are true.

3. D is charged with selling marijuana. In which one of the following situations would the proposed testimony be permitted by the so-called “best evidence rule” without requiring production of the item indicated?

(a) The arresting officer testifies that she found some “green leafy stuff” in D’s apartment.

(b) The arresting officer testifies that she found a picture of D standing in a field of marijuana plants in D’s apartment.

(c) The arresting officer testifies that she found a handwritten ledger containing the notation “One lid sold to Bill” in D’s apartment.

(d) The arresting officer testifies that she found an answering machine tape containing the message “I need some more of that ‘green leafy stuff’” in D’s apartment.

4. In which one of the following situations would the offering party be required to produce the relevant “writing, recording or photograph” pursuant to the so-called “best evidence” rule?

(a) In a case seeking to recover lost earnings due to an accident, testimony concerning the plaintiff’s taxable earnings for the years immediately prior to and following the accident.

(b) In a securities fraud case, testimony that certain erroneous statements were made in a prospectus.

(c) In a criminal prosecution, testimony that the defendant admitted committing the crime charged and then signed a written confession.

(d) In a “kiddy porn” case, testimony that the “actors” and “actresses” were under age 18.

5. Sara Jane Olson laughed and smirked during the hearing to consider whether she should be allowed to retract her guilty plea and did not become somber until:

(a) The judge read a letter from one of her attorneys indicating that he failed to appear for the hearing because he missed his plane due to “karma” and “[t]herefore, in a state of dank frustration, I went home and went back to bed.”

(b) The judge described the conduct of the absent attorney as “absolutely absurd” and “unprofessional.”

(d) The judge described Olson’s attempt to weave the events of September 11 into her defense as “abhorrent and a disservice to those who died and the jurors of Los Angeles County.”

(e) The judge said he would “sleep just fine tonight” and denied her request. L