Evidence Sec. 3 - Fall 1996

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. The exam must be completed in this room or in the designated typing room. Assume that the Federal Rules of Evidence (FRE) apply throughout the exam. Cite specific provisions of the FRE whenever appropriate. There is a total of 110 points on the exam. The exam will be graded on a 100-point scale.

Part I - Fact Pattern Analysis

(60 points - 95 minutes)

1. On June 1, P decided to celebrate her graduation from the William Mitchell College of Law by buying a new Mercedes. After picking up the car, P drove to WMCL to make her final tuition payment. Three classmates, D, T and W were standing by the front door talking when P pulled up. P spoke briefly with D, T and W, and then asked them to watch her car while she ran inside to make the payment. When P came back, D, T and the Mercedes were gone. P asked W what happened to her car. W replied, "D took it." P sues D for conversion.

(a) At trial, P's counsel calls W and asks if he saw who took P's car. W responds, "T took it." P's counsel then asks W whether he told P on June 1 that D took the car. D's counsel objects and contends that P cannot impeach her own witness. Briefly explain whether the objection should be sustained or overruled. (5 points)

(b) Assume that D's objection in (a) above is overruled and that W denies ever having said that D took the car. P then takes the stand. P's counsel asks P what W said to her on June 1. D's counsel objects that such evidence is barred by the collateral evidence rule. Briefly explain whether the objection should be sustained or overruled. (5 points)

(c) Assume that D's objection in (b) above is overruled. P testifies that on June 1 W said that D took the car. D objects on grounds of hearsay and moves to strike P's testimony. On what basis would you expect P's counsel to argue that P's testimony is admissible? Assuming the trial court agrees, what would you expect D's counsel to do in response? (5 points)

(d) Assume that D's motion in (c) above is denied. P then rests her case. D responds by moving for a directed verdict. Briefly explain whether the motion should be granted or denied. (5 points)

2. Alonzo Ferguson is on trial for first-degree murder in the death of Allen Wheatley, Jr. The prosecution's theory of the case is that Ferguson is a member of the Rolling 30's Bloods gang; that shortly after Wheatley arrived in Minneapolis from Chicago, Ferguson told him that Bloods members did not like the color blue; that he should take off the blue sweatshirt that he was wearing; that Wheatley refused to do so; that Ferguson interpreted the refusal as a sign of disrespect; and that Ferguson then left, got a gun, and returned and shot Wheatley while the latter was inside a relative's home. Although there are no eyewitnesses to the shooting, the prosecution has a witness, Johny Edwards, who is prepared to testify that Ferguson told him that he (Ferguson) shot Wheatley. The prosecution is also prepared to introduce a picture of gang graffiti on the wall of Ferguson's bedroom.

Ferguson denies being a member of the Bloods gang and having anything to do with the murder. Ferguson admits that he talked to Wheatley and told him that Bloods members do not like the color blue; that Wheatley was in Bloods territory; that Wheatley responded that he would wear what he wanted to; and that he (Ferguson) then told Wheatley, in a friendly way, "I'm just letting you know how people are in this area."

(a) What is an evidential hypothesis? On behalf of the prosecution, formulate an evidential hypothesis in support of admitting the picture. (5 points)

(b) What argument would you expect Ferguson's counsel to make in response? Who is likely to prevail with respect to the admissibility of the picture? (5 points)

(c) What foundation must the prosecution establish before it can offer the picture in evidence? Suppose that Ferguson objects that the best evidence of the content of the wall is the wall itself. Does the prosecution have to bring in the wall (or at least a chunk of it)? (5 points)

(d) What foundation must the prosecution establish before Edwards will be competent to testify as to what Ferguson allegedly told him? Assume Ferguson objects to Edwards' testimony on grounds of hearsay. How would you expect the prosecution to respond? (5 points)

(e) One of Alonzo Ferguson's brothers, Reginald, was convicted of attempted second-degree murder and is currently in prison. Another brother, James, was convicted of first-degree murder and is currently serving a life prison term. On behalf of the prosecution, construct an evidential hypothesis in support of this evidence. Does this evidence meet the test of "relevance" set forth in FRE 401? (Put aside for the moment whether such evidence would be inadmissible for other reasons.) (5 points)

(f) What two different provisions of the FRE would you expect the defense to rely on in arguing against the admissibility of the evidence set forth in (e) above? (5 points)

3. Under the National Labor Relations Act (NLRA), an employer violates Section 8(a)(1) and (3) if it discharges (or otherwise discriminates against) an employee because of the employee's union organizing activities. An employer violates Section 8(a)(1) of the NLRA if it expressly or by implication threatens to discharge (or otherwise discriminate against) an employee for engaging in such activities. Such threats also support a finding that an employer was motivated by anti-union animus when it discharged (or otherwise discriminated against) an employee. Anti-union animus is an element of a Section 8(a)(1) and (3) discrimination case.

In NLRB v. Transportation Management Corp. (handed out in class), supervisor Patterson allegedly discharged employee Santillo because of the latter's union organizing activities. At the trial, an employee testifies on behalf of Santillo that Patterson referred to Santillo as two-faced and said he (Patterson) would get even with Santillo. Another employee testifies on behalf of Santillo that Patterson also said that he took Santillo's actions personally; that he had done Santillo favors in the past; and that he would remember Santillo's organizing activities if Santillo asked for a favor in the future. Both employees testify that Patterson made the statements shortly after he learned about Santillo's organizing activities but before Santillo was discharged.

Assume that Transportation Management's counsel objects to the employee testimony above on the ground that it is hearsay. Follow the path through the hearsay thicket and, on behalf of Santillo, identify three different bases for admitting the employees' testimony. (10 points)

Part II - Burdens

(10 - points - 20 minutes)

The National Labor Relations Board adjudicates cases filed under the National Labor Relations Act (NLRA). The General Counsel of the Board prosecutes such cases. Thus, for example, in Transportation Management (see Part I(3) above), the General Counsel would have prosecuted the case on behalf of employee Santillo.

In Transportation Management, the Board's General Counsel offered evidence that Santillo was discharged for an unlawful reason, and the company offered evidence that he was discharged for a lawful reason. The Supreme Court discussed the Board's allocation of burdens in a so-called mixed motive cases of this kind, i.e., cases in which the evidence suggests that an employer discharged (or otherwise discriminated against) an employee for both lawful and unlawful reasons:

The Board held that the General Counsel of course had the burden of showing that the employee's [protected union organizing] was a substantial or a motivating factor in the discharge. Even if this was the case, and the employer failed to rebut it, the employer could avoid being held in violation of Sections 8(a)(1) and 8(a)(3) by proving by a preponderance of the evidence that the discharge rested on the employee's unprotected conduct as well and that the employee would have lost his job in any event. It thus became clear, if it was not clear before, that proof that the discharge would have occurred in any event and for valid reasons amounted to an affirmative defense on which the employer carried the burden of proof [Ouch!] by a preponderance of the evidence.

What is an affirmative defense? How does it differ from an ordinary defense? What should the Court have said when it referred to the employer's "burden of proof"? (5 points)

The First Circuit Court of Appeals had disagreed with the Board's analysis of mixed motive cases in Transportation Management. According to the Court of Appeals, the General Counsel "had the burden of showing not only that a forbidden motivation contributed to the discharge but also that the discharge would not have taken place independently of the protected conduct of the employee." Briefly explain how the allocation of burdens adopted by the Board (and upheld by the Supreme Court) differs from allocation of burdens adopted by the Court of Appeals. (You may use diagrams if you wish.) Briefly explain which allocation is more favorable to employers (and, conversely, less favorable to employees). (5 points)

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. Each question is worth two points.

1. In a prosecution of D for knowingly receiving stolen goods, D's testimony that X gave him the diamond ring in question; told him that it was an anniversary gift for X's wife; and asked D to keep the ring until the anniversary so that X could surprise his wife.

2. In an action brought by P on behalf of her child, C, for damages allegedly suffered by C when D struck her in the throat and permanently damaged C's vocal chords, testimony by W that he recently heard C say, "I can talk just fine."

3. In an action by P, a franchisee, against D, the franchisor and supplier of goods used in P's business, a list, L1, prepared by P after termination of the franchise and offered by P to prove the value of goods P allegedly returned to D for credit.

4. In the same action, a second list, L2, prepared by P after termination of the franchise and offered by D to prove the value of goods P allegedly returned for credit.

5. In the prosecution of D for allegedly assaulting V, testimony by an ambulance driver that when he arrived at the scene, he (the driver) asked V what happened; and that V responded, "D hit me on the head with a bat."

6. In a medical malpractice action against D, a surgeon, in which P alleges that D negligently failed to remove a sponge during an operation, testimony by W, a nurse, that she said to D during the operation, "There's a sponge missing."

7. In the same action, testimony by W that D responded to her statement by nodding his head.

8. In a personal injury action arising out of an automobile accident, a duly authenticated police officer's report quoting a bystander's statement that D ran a red light.

9. In the same action, a duly authenticated accident report prepared by a police detective following a legally-required investigation in which the detective concluded that P ran a red light.

10. In support of a motion to change the venue of D's criminal prosecution on grounds of adverse pre-trial publicity, results of a survey indicating that 75 percent of the respondents believed D was guilty.

Part IV - Multiple Choice

(10 points - 15 minutes)

1. In which one of the following situations would leading questions generally not be permitted?

(a) Direct examination of a forgetful witness.



(b) Direct examination of an adverse witness.



(c) Cross-examination of an adverse witness by the non-adverse party.



(d) Cross-examination of an adverse witness by the adverse party.

2. Which one of the following is false?

(a) A prior inconsistent statement must be shown to a witness before questioning the witness about it.



(b) A prior inconsistent statement may in some circumstances be used as substantive evidence.



(c) Prior inconsistent statements are subject to the collateral evidence rule.



(d) Prior inconsistent statements are subject to the best evidence rule.

3. Which one of the following is false?

(a) Presumptions are a procedural device used to allocate burdens.



(b) Presumptions are a procedural device for promoting policy objectives.



(c) Presumptions are a procedural device for shifting the burden of pleading.



(d) Presumptions are a procedural device that cannot be used to establish an element of a criminal offense.

4. In which one of the following situations would the so-called "best evidence" rule require the offering party to produce the relevant "writing, recording or photograph"?

(a) In the prosecution of D for selling counterfeit goods, watches bearing counterfeit trademark inscriptions.



(b) In a copyright action in which P alleges that D stole the lyrics to P's song and published them as his own, transcripts of sound recordings of the two songs made by P and D.



(c) In an action to recover payment for services rendered, bills submitted by the plaintiff to the defendant.



(d) In an action against a lessee for unpaid rent, title documents establishing that P purchased the premises from the lessor and received an assignment of any future rental proceeds.

5. A grade school teacher was asking her students what their parents did for a living. Timmy stood up and proudly said, "My mother is a doctor." The teacher said, "How very nice. And what about you, Amy?" Amy replied, with obvious pride, "My dad is a policeman." The teacher said, "That's a very important job." She then asked Billy what his father did for a living. Billy enthusiastically responded, "He plays the piano in a brothel." The teacher was aghast and quickly changed the subject to geography. Later the same day, the teacher called Billy's father, informed him what Billy had said, and asked for an explanation. Billy's father responded:

(a) By falsely denying what Billy said.



(b) By truthfully denying what Billy said.



(c) By confirming what Billy said.



(d) By saying, "I'm actually a law professor. But how could I explain a thing like that to a child?"

Part V - Extra Credit

(10 points - 15 minutes)

P was raped by an unknown assailant while staying as a guest at D's hotel. P subsequently brought suit alleging that D had negligently failed to provide her with reasonably safe lodging.

During P's case in chief, P testified that someone knocked on her door; that she opened the door to see who was there; and that a person she did not recognize pushed his way into her room and raped her. The trial court permitted P to testify, over D's objection, that the hotel doors had neither safety chains nor peep holes. However, the trial court refused to permit P to further testify that the hotel had installed such devices after P's lawsuit was filed.

During D's defense, D's general manager testified that the hotel had retained a security consultant several years earlier; that the consultant recommended that the hotel not install safety chains or peep holes because they gave guests a false sense of security and, for this reason, decreased rather than increased safety; and that there was nothing else the hotel could do to make the premises safer for its guests.

(a) P's counsel moves to strike the testimony of D's general manager concerning the security consultant's recommendations as both irrelevant and hearsay. Briefly explain whether the motion should be granted or denied. (5 points)

(b) Assume P's motion in (a) above is denied. Assume further that D had in fact installed safety chains and peep holes subsequent to the filing of P's lawsuit. Did the trial court properly sustain D's objection to P's testimony in this regard? Assume that D's general manager testifies as set forth above. Should the trial court permit P's counsel to elicit such testimony from D's general manager during cross-examination? (5 points)