Final Exam -- James Fox

Evidence Sec. 4 - Fall 1997



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

(50 points - minutes)

The National Labor Relations Act (Act) gives employees the right to organize and be represented by a labor organization. Under the Act, employers (acting through their supervisors or other agents) are prohibited, among other things, from threatening to retaliate against employees if they exercise this right.

XYZ Trucking Corporation (XYZ) is a non-union, nationwide trucking company. XYZ's employees, including dock workers and drivers, work at or out of service centers at various locations throughout the United States. The employees at a number of these service centers are seeking to be represented by the International Brotherhood of Teamsters.

As part of its efforts to combat unionization, XYZ has instructed its service center managers to conduct "captive audience" meetings with employees. These meetings are held on company time and employees are required to attend. During the course of one such meeting at XYZ's Minneapolis, Minnesota service center, Al Weber, the service center manager, told the assembled employees that XYZ would close the Minneapolis service center in the event that they voted for representation by the Teamsters. An employee surreptitiously tape recorded the entire meeting.

The General Counsel of the National Labor Relations Board (Board) prosecutes alleged violations of the Act. The General Counsel thus assumes a position equivalent to that of the plaintiff in civil litigation. The General Counsel has alleged, and XYZ denies, that the Minneapolis service center manager made the threat described above. Assume for the sake of simplicity that this is the only issue in the case.

(a) The General Counsel's first witness is an XYZ employee. What evidence must the General Counsel offer in order to establish that the employee is competent to testify? (5 points)

(b) After several preliminary questions, the General Counsel asks the employee what the service center manager said at the "captive audience" meeting. The employee testifies, "Mr. Weber said, 'If you vote for the Teamsters, XYZ will close the Minneapolis service center.'" XYZ's counsel objects and moves to strike the employee's testimony on the ground that it is hearsay. Follow the path through the hearsay thicket and identify two arguments that the General Counsel should make in response. (5 points)

(c) Assume XYZ's counsel further moves to strike the employee's testimony on the ground that the General Counsel has the burden of establishing personal knowledge; and that the General Counsel failed to establish that Weber had personal knowledge as to what XYZ planned to do in the event that the Minneapolis employees voted for union representation. How should the General Counsel respond? (5 points)

Assume that the judge denies XYZ's motions in (b) and (c) above. The General Counsel then rests his case. XYZ calls Weber to the stand. Weber denies making the statement attributed to him.

(d) On cross-examination, the General Counsel asks Weber if he has ever been convicted of a crime. XYZ's counsel objects. Should the objection be sustained or overruled? (5 points)

XYZ rests its case after Weber finishes testifying. The General Counsel then recalls the employee witness to the stand. The General Counsel discloses for the first time the existence of the tape recording that he claims conclusively establishes both that Weber testified untruthfully and that Weber made the comment attributed to him by the employee. (Assume for exam purposes that the General Counsel's actions did not violate any applicable discovery rules or were not otherwise improper.)

(e) What must the General Counsel establish before he can offer the tape recording in evidence? Assume that the General Counsel has made a transcript of the tape for the convenience of the administrative law judge. What must the General Counsel establish before offering the transcript in evidence? (5 points)

(f) XYZ's counsel objects to the receipt of the tape on the ground that extrinsic evidence of what Weber said is prohibited by FRE 608(b). Should the objection be sustained or overruled? (5 points)

(g) XYZ's counsel further objects to the receipt of the tape on the ground that extrinsic evidence of what Weber said is prohibited by the "collateral evidence" rule. Should the objection be sustained or overruled? (5 points)

(h) Assume that the judge admits the tape and transcript in evidence. XYZ's counsel then moves to strike the employee's testimony described in (b) above on the ground that under the "best evidence" rule the tape and transcript are the best evidence of what was said at the meeting. How should the administrative law judge rule? (5 points)



2. D is charged with picking V's pocket at the Mall of America. The prosecutor offers evidence that D has been convicted of picking pockets at Southdale, Rosedale, Ridgedale and Brookdale. What argument would you expect D's counsel to make in opposing the admission of such evidence? How would you expect the prosecutor to respond? Assume that the trial court rules that the prosecutor can introduce the evidence. What would you expect the defendant to ask the trial court to tell the jury? (10 points)

Part II - Presumption, Inferences and Burdens

(20 - points - 40 minutes)

In St. Mary's Honor Center v. Hicks, which is noted at pages 786 ff. of the casebook, the United States Supreme Court clarified the allocation of burdens set forth in Texas Department of Community Affairs v. Burdine, which is set forth in substantial part at pages 779 ff. of the casebook. In St. Mary's, the plaintiff alleged that he was demoted and subsequently discharged because of his race in violation of Title VII of the Civil Rights Act of 1964. The case was tried to the District Court without a jury. At trial, the plaintiff successfully established the elements of the prima facie case. The defendant then produced evidence of a non-discriminatory motive for demoting and then discharging the defendant, and thereby satisfied its burden of production. However, the District Court concluded that the defendant's proffered reasons were not the true reasons for its actions toward the plaintiff. The District Court nonetheless dismissed the plaintiff's case on the ground that "although [the plaintiff] has proven the existence of a crusade to terminate him, he has not proven that the crusade was racially rather than personally motivated."

The United States Court of Appeals for the Eighth Circuit reversed. In the Court of Appeals' view, "[o]nce [the plaintiff] proved all of [the defendant's] proffered reasons for the adverse employment actions to be pretextual, [the plaintiff] was entitled to judgment as a matter of law."

The Supreme Court in turn reversed the Court of Appeals. The key language of the majority decision (written by Justice Scalia) is set forth below:

The presumption [that arises upon satisfaction of the elements of the prima facie case], having fulfilled its role of forcing the defendant to come forward with some response, simply drops out of the picture. The defendant's 'production' (whatever its persuasive effect) having been made, the trier of fact proceeds to decide the ultimate question: whether plaintiff has proven 'that the defendant intentionally discriminated against [him]' because of his race. The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination, and the Court of Appeals was correct when it noted that, upon such rejection, 'no additional proof of discrimination is required.' But the Court of Appeals' holding that the rejection of the defendant's proffered reasons compels judgment for the plaintiff disregards the fundamental principle of Rule 301 [of the Federal Rules of Evidence] that a presumption does not shift the burden of [persuasion], and ignores our repeated admonition that the Title VII plaintiff at all times bears the 'ultimate burden of persuasion.'

You may assume for exam purposes that Justice Scalia "got it right" in St. Mary's. Use the terms "presumption," "inference," "burden of production" and "burden of persuasion" to explain why the Supreme Court reversed the Court of Appeals. You may find it helpful to begin by defining these terms.

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 the defense of a product liability case alleging that a product was defective, evidence that other purchasers have not complained about the alleged defect.

2. In a bank robbery prosecution, D testifies in support of his "alibi" defense, "I told the police officers when they arrested me, 'I was at home when the bank was robbed.'"

3. In the same prosecution, the prosecution offers evidence that D told the police at the time of arrest, "I was at home when the bank was robbed," together with further evidence that D was not at home when the bank was robbed.

4. In the same prosecution, A, an alleged accomplice of D's who agreed to testify against D before a grand jury and at D's trial in exchange for dismissal of the charges against A, testifies on direct examination that D robbed the bank. On cross-examination, D's counsel seeks to impeach A by bringing out the terms of the agreement. On re-direct examination, A testifies, "I told the grand jury, "D robbed the bank.'"

5. In a case in which D is accused of sexually abusing his step-daughter, V, evidence that V refuses to be alone in a room with D

6. In the prosecution of D for stealing V's car, the prosecution offers an insurance claim form filled out by V to establish that the value of V's car was $5000.

7. In the same prosecution, the prosecution offers a properly authenticated incident report prepared by the arresting officer that V picked D's photograph out of an array and said, "That is the man who stole my car."

8. In a civil action subsequent to the prosecution in (7) above and brought by V against her insurance company, the insurance company offers V's claim form to contradict her testimony that the car stolen by D was worth $6000.

9. In the same civil action, the insurance company offers V's claim form to establish that the value of the car stolen by D was $5000.

10. In a case in which P, an automobile dealer, claims that D, an automobile manufacturer, improperly canceled the P's franchise, letters from P's customers complaining about P offered by D.

Part IV - Multiple Choice

(10 points - 15 minutes)

1. In which one of the following situations would the offering party be required to offer the "original" because of the so-called "best-evidence" rule?



2. Which one of the following is false?



3. Which one of the following is not governed by the FRE?



4. Which one of the following is potentially hearsay under the FRE?



5. Marv Albert's claim to fame is as a basketball broadcaster for NBC and, more specifically, as the voice of the New York Knicks. Albert's fame turned to notoriety when he was charged in Virginia with forcible sodomy. A key piece of evidence introduced by the prosecution was a photograph that showed multiple teeth marks on the alleged victim's back. After several days of lurid testimony concerning Albert's sexual proclivities and the prospect of more titillating details to come, Albert pleaded guilty to a lesser charge of assault and battery. NBC promptly fired Albert. Prior to being fired, Albert had considered resigning because:



Part V - Extra Credit

(10 points - 15 minutes)

Briefly explain whether expert testimony should be permitted in each of the two situations set forth below:

1. P was injured when she tripped over a baby crawling on the floor of a beauty salon. In support of her negligence action against the salon, P calls a safety expert, Professor Adams.

Q. (By plaintiff's lawyer) Professor Adams, are you familiar with the safety considerations that apply to retail businesses like beauty salons?

A. Yes. I have studied them for many years.

Q. Do you have an opinion as to whether a baby crawling on the floor of a busy beauty salon constitutes a safety hazard?

Defendant's counsel: Objection. This is not a proper area for expert testimony. (5 points)

2. In a personal injury action brought by P, an automobile mechanic, to recover for future economic losses, P calls a medical doctor as a witness.

Q. (By plaintiff's lawyer) Describe what, if any, limitations P has in the use of his right arm.

A. He has lost about 20 percent of his range of motion in the arm, and he cannot fully extend the arm. In addition, he has lost roughly half of his strength in that arm because of torn and ruptured ligaments in the elbow.

Q. Do you have an opinion as to whether P will ever be able to work as an automobile mechanic again?

Defendant's counsel: Objection. First, there has been no showing that the doctor is qualified to give such an opinion. And second, the opinion invades the province of the jury. (5 points)