Mid-term Exam

Evidence § 4 - Fall 2005

Professor Fox

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 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 55 potential points on the both the mid-term and the final exams for a total of 110 potential points. Final grades for the course will be based on a 100-point scale. You will have one and one-half hours to complete each exam. Keep your answers short or you will not finish.

Laptop Users Only: You may use a laptop computer to type the exam. If you use a laptop, during the exam you may not (1) use a network or wireless card; (2) use e-mail, instant messaging, or in any other way consult with any other person; or (3) use any online or legal research services. To preserve anonymity, either (a) e-mail your answers to Renate Behrendt, Administrative Coordinator – Academic Affairs, who will forward the answers to me, at rbehrendt@wmitchell.edu; or (b) download your answers to a floppy disk or flash drive. (I will return the disk or drive to you.) In either case, be sure to include your exam number with your answers. You must return this exam as well as your answers.

Part I - Fact Pattern Analysis

(25 points – 40 minutes)

Plaintiff, an aspiring model and actress, and another woman posed nude for a freelance photographer. Both did so with the express understanding that the photos would be published in Soft Core magazine (SC), a magazine that purports to portray women in a “respectful” and “tasteful” manner. SC eventually published some of Plaintiff’s photos. Despite the publication, and perhaps because of it, Plaintiff’s career skyrocketed and she appeared in numerous commercials, television dramas and movies over the next several years.

Subsequently, Hard Core magazine (HC), a magazine that features sexually explicit photos of women, articles that ridicule racial and religious minorities, and cartoons and jokes that most people would find highly offensive, hired the photographer. It did so in large part because Plaintiff had by then attained celebrity status and the photographer retained an inventory of photos of her. HC then published previously unpublished nude photos of Plaintiff and the other woman. The text accompanying the HC photos strongly implied that the two women were involved in a torrid sexual relationship.

Plaintiff sued the photographer and HC (jointly referred to as Defendants) alleging that publication of the photos had injured her reputation by portraying her in a false light in two respects: first, by insinuating, falsely and contrary to her public persona, that she is a lesbian; and second, by insinuating falsely that she had consented to having her pictures published in HC. (You may assume that these “false light” claims of injury to reputation are viable under applicable state tort law.) Plaintiff further alleged that she has suffered a substantial reduction in income subsequent to the publication of her photos in HC. Defendants dispute that any diminution in Plaintiff’s income is attributable to the publication of her photos in HC and point out that nude pictures of her had been in the public domain for a number of years.

1. Plaintiff seeks to introduce evidence concerning her dating history in order to establish that she is a “straight” woman. Defendants object that this is improper character evidence and that in any event evidence concerning specific acts of dating is not a proper method of proof. How should the trial court rule and why? (5 points)

2. Plaintiff seeks to introduce evidence that HC, unlike SC, is a publisher of hard core pornography and other vulgar, tasteless and offensive material. Defendants object that this is improper character evidence. How should the trial court rule and why? (5 points)

3. Assume that the trial court overrules the objection in question 2 above. Plaintiff then presents an hour-long slide show consisting of over 100 slides of the most explicit, vile, offensive photos, cartoons and jokes selected from HC magazines published over a period of many years. On what basis would you expect HC to object? How should the trial court rule and why? Would your answer be the same or different if HC offered to stipulate that its magazine contains hard core pornography and other vulgar, tasteless and offensive material? (5 points)

4. Assume that the jury returns a substantial verdict for Plaintiff. HC then files a motion for a new trial in which it alleges that it learned after the jury’s verdict that Plaintiff and the photographer had secretly entered into a settlement agreement whereby the photographer agreed to testify consistent with his deposition in exchange for Plaintiff agreeing not to seek to collect any damages the jury might award her from the photographer. Plaintiff responds that HC’s motion should be denied because the settlement agreement and any discussions leading to it would not have been admissible at trial in any event. How should the trial court rule and why? (5 points)

5. In further response to HC’s motion for a new trial, Plaintiff contends that HC’s motion constitutes an impermissible attempt to impeach the jury’s verdict. How should the trial court rule and why? (5 points)

Part II - Hearsay Quiz

(20 points - 35 minutes)

In one or two sentences, explain whether evidence in the questions below is hearsay within the meaning of FRE 801(a)-(c). Also consider whether the evidence is excluded from the definition of hearsay by FRE 801(d)(2)(A) or (B). Each question is worth two points.

All of the questions involve a proceeding held on October 4, 2005, to determine whether Rev. Ryan Erickson, a Catholic priest, killed Dan O’Connell and James Ellison on February 5, 2002, at the O’Connell Family Funeral Home in Hudson, Wisconsin. The police theorize that O’Connell, a parishioner at Erickson’s church, learned that Erickson had been molesting children; that Erickson killed O’Connell to prevent him from disclosing this information; and that he killed Ellison because Ellison happened to be working with O’Connell that day. Although Erickson was deceased at the time of this proceeding, you may assume that he is treated as the defendant purposes of analyzing evidentiary issues.

1. Church records dating to 1979, when Erickson was six years old, containing allegations of sexual misconduct between Erickson and adolescent or pre-adolescent males.

2. Testimony by a friend of O’Connell’s that O’Connell told her on February 5, 2002, the day that he was killed, that he was meeting with Erickson that afternoon.

3. Further testimony by the friend, who is a school bus driver, that in the same conversation O’Connell asked her whether she had ever seen Erickson touch a child inappropriately.

4. As proof of when the two were killed, phone records indicating that O’Connell answered a call at 1:08 p.m. and that Ellison did not answer his cell phone at 1:22 p.m.

5. Testimony by a police officer that Erickson told the officer that he had heard that O’Connell’s body was found behind a desk; that Ellison was shot as he walked through the door; and that both victims had been shot once. None of this information had previously been publicly disclosed.

6. Testimony by a church deacon that in November 2004, Erickson told him, in apparent reference to the murders, “I’ve done it and they are going to get me” and “Do you know what they do with young guys in prison, especially priests?”

7. The transcript of an interview with Hudson police detectives on December 7, 2004, stating that a detective asked Erickson, “Do you think the person who killed [O’Connell and Ellison] can really live with themselves?” and that Erickson responded, “I don’t believe so. How could anyone?”

8. A note written by Erickson to his parents on or shortly before December 19, 2004, in which he said, in part, “I don’t know what else to do. This murder investigation is a turkey shoot . . . they want to hang it on someone, so use character assassination to achieve their goal. I did not murder anyone. I did not kill Dan or James!”

9. Testimony by a police officer that on December 19, 2004, Erickson hanged himself.

10. Testimony by several people that the church deacon referred to in question 6 above told them at Erickson’s funeral that Erickson could never have committed the murders.

Part III – Multiple Choice

(10 points - 15 minutes)

Each question is worth two points. Circle the correct answer on this exam sheet or include your answers to this question with your other answers.

1. All of the following are true except:

(a) The same item of evidence can be simultaneously relevant as to one party or issue and irrelevant as to another party or issue.

(b) Relevance is a relative concept in the sense that no item of evidence is inherently relevant or irrelevant.

(d) Relevance has a broader meaning under the FRE than at common law.

2. All of the following are false except:

(a) Evidence of remedial measures is admissible to prove feasibility, if controverted, and is admissible to prove ownership or control regardless of whether they are controverted.

(b) A narrow interpretation of “feasibility, if controverted” and “impeachment” promotes the policy objectives of FRE 407.

(c) Evidence that a party took remedial measures either prior to or subsequent to an accident is inadmissible under FRE 407.

(d) Evidence of remedial measures is irrelevant if offered to prove fault or other culpable conduct.

3. All of the following are true except

(a) FRE 404(a)(1) and (2) generally apply only to criminal cases.

(b) FRE 404(a)(3) applies to both civil and criminal cases.

(d) FRE 404(b) evidence can be used for inculpatory but not exculpatory purposes.

4. All of the following are true except:

(a) Extrinsic evidence is generally admissible to prove a witness’ character for truthfulness or untruthfulness.

(b) Extrinsic evidence is generally admissible to show a witness’ bias.

(d) Extrinsic evidence is generally admissible to prove a witness’ prior inconsistent statement.

5. All of the following are recent headlines taken from CNN.COM except:

(a) “Woman Tried to Cut Baby from Neighbor” (a Pennsylvania woman beat her pregnant neighbor with a baseball bat before trying to cut out her unborn baby because the assailant wanted the baby for herself).

(b) “Wrong Man Pays Child Support to Peterson Mistress” (a DNA test showed that the man who had been paying Amber Frey, the former mistress of convicted murderer Scott Peterson, child support payments for nearly four years was not the child’s father).

(c) “Playmate Appeals to Supreme Court” (the United States Supreme Court has agreed to hear the appeal of former Playboy model Anna Nichole Smith contending that she is entitled to the $474 million estate of her deceased husband, J. Howard Marshall. Smith married Marshall in 1994 when she was 26 and he was 89; Marshall died the following year).

(d) “We Use Our Boats to Fish.”

(e) The correct answer is (d), which was actually a sign displayed by a Chicago Bears fan in reference to the Minnesota Vikings’ “Love Boat” scandal. All of the remaining answers were recent headlines taken from CNN.COM. L

Evidence Sec. 4

Mid-term Exam – Fall 2005

Outline of Answers

Professor Fox

Part I – Fact Pattern Analysis

This problem is based loosely on Douglass v. Hustler Magazine, Inc., 769 F.2d 1128 (7^th Cir. 1985). Further information about the plaintiff, Robyn Douglass, including television and movie credits, can be found at www.robyndouglass.com.

1. This “false light” case is analogous to a defamation case. Plaintiff’s character as a “straight” woman is relevant to the first of her “false light” claims. As a result of HC’s publication of the photos of plaintiff and the other woman and the strong implication that she is a lesbian and involved in a “torrid sexual relationship,” a specific trait of plaintiff’s character – her sexual orientation—is “in issue” in this case. FRE 404 does not regulate this use of character evidence. See ACN to FRE 404(a), second paragraph; casebook p. 220. Since plaintiff’s character is in issue, proof of specific instances of conduct (plaintiff’s dating history) would be permissible under FRE 405(b).

2. The “character” (i.e., nature) of HC magazine is relevant to the second of plaintiff’s false light claims. Plaintiff seeks to prove what kind of magazine HC is. Such evidence is not prohibited by FRE 404. That rule simply prohibits the use character evidence when offered to prove conduct consistent with character on a particular occasion. Plaintiff’s evidence is relevant for a different purpose. The publication of plaintiff’s photos in HC suggests that she voluntarily associated herself with HC. This reflects on her character as a person. Whether this association reflects poorly on plaintiff or not depends on the character of HC as a magazine.

An alternative argument is that FRE 404(a) and (b) both regulate the use of evidence to prove the character of a “person” and HC is not a person. Therefore, the rules governing the admissibility of character evidence are not applicable.

3. Plaintiff put on the slide show in order to establish the character of HC’s magazine and will argue that the slides are relevant for that purpose. The defendants will object, as the defendant did in Bocharski, that whatever relevance the slides have is substantially outweighed by the danger of unfair prejudice. In particular, the defendants would argue that plaintiff selectively chose the worst photos, etc. culled from HC magazines over a period of many years and created a risk of unfair prejudice by making HC appear to be even worse than it actually is. The fear is that the jury will punish defendants for what HC publishes and not for whatever economic injury plaintiff suffered. A stipulation is one device a court can use to minimize unfair prejudice. Jackson. However, as the court made clear in that case and in Old Chief, a party cannot force an opposing party to try a case in a sterile vacuum by proposing to stipulate to uncomfortable facts. Rather, a party is entitled to “tell[ ] a colorful story with descriptive richness.” Old Chief, p. 273. The bottom line is that the trial court has the discretion to limit the number or kind of slides, perhaps together with a stipulation, to strike a balance between descriptive richness and unfair prejudice.

4. FRE 408 prohibits the use of settlement agreements and settlement discussions to prove liability. It does not prohibit their use for other purposes. Bankcard America v. Universal Bancard Systems, Inc. If HC had known of the secret settlement between the plaintiff and the photographer, it could have used that evidence to establish that the photographer was biased or that his testimony should otherwise be discounted.

5. As explained by the Court in Tanner, FRE 606(b) prohibits use of juror testimony to undermine a verdict. It does not prohibit other attacks on a jury verdict. Here, HC is not seeking to impeach a jury verdict with juror testimony and plaintiff’s contention should be rejected.

Part II – Hearsay Quiz

1. The church records are hearsay, and the allegations contained in them are also hearsay (“Ryan Erickson did thus and so.”).

We will see later that such records may qualify as business records within the meaning of FRE 803(6) and be admissible on that basis. An additional exception would be required to admit the allegations themselves. We will also see how FRE 805 deals with these “hearsay within hearsay” situations.

2. O’Connell’s statement that he intended to meet with Erickson that afternoon is a statement made by an out-court-declarant and is offered to prove what it asserts (O’Connell intended to meet with Erickson that afternoon). It is hearsay.

We will see later that this statement likely qualifies as a hearsay exception under FRE 803(3).

3. The question implies that O’Connell believed that Erickson had inappropriately touched children but the statement is not being offered to prove that Erickson did so. There are two possible non-hearsay uses – circumstantial evidence of state of mind and effect on listener or reader. The question circumstantially implies that O’Connell believed Erickson had touched children inappropriately and provides him with a reason to want to meet with Erickson. The question also suggests that O’Connell had somehow learned that Erickson had touched children inappropriately and explains why he may have met with him on the day in question.

4. The conventional answer would be to treat the phone records as out-of-court statements offered to prove what they assert and therefore as hearsay. There is an alternative, technical analysis. FRE 801(a) defines “statement” as an assertion by a “person.” The phone records are almost certainly computer-generated. Thus, the argument would be that the phone records are not hearsay at all because not a “statement” of a “person.” (As a practical matter, courts ignore this technical argument and apply a hearsay analysis in determining admissibility.)

We will see that these records would almost certainly qualify as business records and be admissible as an exception under FRE 803(6).

5. There are two possibilities here – circumstantial evidence of memory or belief and admission of a party opponent. With regard to the former, the argument is that Erickson’s words are not being offered to prove the circumstances of O’Connell’s and Ellison’s death – police officers, crime scene photos, etc. can do that. Rather, the words are being offered to prove that he must have been at the scene of the crime in order to know how O’Connell and Ellison died. See problem 19, p. 360. With regard to the latter, the argument is that Erickson’s words are being offered to show inconsistency with any claim (for example, by his estate) that he did not commit the crime.

6. Admissible as an admission of a party opponent.

7. Circumstantial evidence of state of mind – the words circumstantially show Erickson’s despondency and thus explain why he might commit suicide.

8. There are two possibilities here. The first two sentences could be used circumstantially to show despondency. The second two sentences would be hearsay if offered to prove innocence.

9. This would almost certainly be treated as non-assertive conduct and therefore as not hearsay.

10. The church deacon’s testimony was admissible in question 6 to show that Erickson in effect admitted his guilt. The statements the church deacon made at Erickson’s funeral suggest either that Erickson did not make the earlier statements or that the circumstances were such that the church deacon did not believe Erickson if he did make the statements. Thus, the deacon’s funeral statements are being used for the non-hearsay purpose of impeaching or otherwise undermining his earlier testimony.

Part III – Multiple Choice

1. c. Relevance is a question of admissibility of evidence and is for the court to decide under FRE 104(a).

2. b. This is the policy analysis underlying the court’s decision in Ture v. McDonald.

3. d. So-called “reverse” FRE 404(b) evidence is exculpatory. U.S. v. Stevens.

4. a. See FRE 608(b).

5. d.