EVIDENCE

SPRING 2000

KNAPP

FINAL EXAMINATION

INSTRUCTIONS

1. This final exam is a three-hour exam. The exam has three parts, each weighted as indicated. You need to answer all three parts, and all questions in each part.

2. All three parts of the exam are based on the United States v. Mills fact scenario distributed in class. Additional facts in the Mills scenario have been incorporated into the exam in each of the three parts.

3. This is an open book exam. You may refer to any written materials you wish while writing your answer.

4. Part One of the exam consists of two essay questions.

5. Part Two consists of two questions about the document distributed in class (a copy of which is attached).

7. In analyzing the memo and other potential evidentiary problems you may face at trial, please assume that:

a. This case will be tried before Judge Emma Hartack, who is notorious for her rigid adherence to the Federal Rules of Evidence. You know that Judge Hartack will take every evidentiary objection very seriously and apply the rules of evidence rigorously.

b. There are not meant to be any issues involving criminal law, criminal procedure, Constitutional law, Rule 807, or attorney-client privilege lurking in these questions. Consequently, do not write about these issues on the exam.

CASE FILE: UNITED STATES v. MILLS

These facts are identical to those distributed in class.

Penelope Mills is on trial for violation of several federal statutes, including making terroristic threats and conspiring to commit terroristic acts. Ms. Mills was arrested at her home on June 12, 1999, and will stand trial before Judge Emma Hartack on May 1, 2000.

Ms. Mills is the leader of an extremist animal rights organization known as Animal Rights Forever (ARF). During the first several months of 1999, ARF's attentions turned toward Lemveer Labs. Lemveer manufactures cosmetics and makes extensive use of test animals when developing new types of cosmetics. ARF members picketed Lemveer's facilities every weekday--the lab is closed on the weekend--for most of April and May of 1999. Ms. Mills spent a great deal of her time on the picket lines and was twice arrested for incidents stemming from her picketing. On one occasion, she threw red paint on the car driven by Lemveer's vice president for research and development. On another occasion, she blocked a van delivering test animals and tried to assault the driver. Ms. Mills was arrested for both these incidents, and pled guilty to two counts of misdemeanor disturbance of the peace.

Partly in response to the ARF protest, Lemveer Labs instituted new security measures. Lemveer installed a security fence surrounding its property, hired around-the-clock security guards, and required employees to report immediately any suspicious activities to its security director, Nila Jackson. Some Lemveer employees complained that the company was overreacting; company management believed, however, that ARF posed a real danger to Lemveer and its personnel.

As events unfolded, Lemveer management was right. In June, ARF abruptly stopped its picketing. On the night of Friday, June 4, Ms. Mills appeared at an animal rights rally and announced, "the time for cooperation and persuasion is over. If reason won't work, we must use force." The following week there were no demonstrators at Lemveer. During the week, however, some Lemveer employees reported seeing people they recognized as ARF picketers "lurking" near the labs and taking notes.

On Saturday, June 12, the FBI received a tip from an informant that "Mick from ARF was planning to blow Lemveer sky high." Acting on this tip, FBI agents arrested Michael Siracci. When his car was searched, agents discovered a powerful homemade bomb. Siracci had, at various times, been affiliated with ARF, as well as half a dozen other animal rights groups. One animal rights activist familiar with Siracci described him as "deeply dedicated to the cause, but a loner, a loose cannon, possibly dangerous." When FBI agents questioned him, Siracci freely admitted that he was planning on bombing Lemveer and told the agents that he was "acting on instructions from Sister Mills."

The FBI arrested Ms. Mills. When she was searched, agents found in her possession a slip of paper with a series of numbers written on it. Later investigation disclosed that the numbers were the entry codes for the security fence surrounding Lemveer. Ms. Mills alleges that she had no knowledge that Siracci or anyone else in ARF was planning to bomb Lemveer. She admits that she made statements at the rally that might have been misinterpreted, but she is adamant that she never had any intent to destroy the lab facilities. When she was initially arrested, she told agents that the slip of paper had her lottery numbers on it. She later admitted that she knew the numbers were the Lemveer entry codes, but said she was only planning on entering Lemveer "to liberate the animals."

PART ONE

The prosecutors from the U.S. Attorney's Office have been preparing for trial and have encountered the following evidentiary problems:

(Fifteen points) Ms. Mills has a prior conviction for forgery that the prosecutors know they can use for impeachment purposes if Mills takes the stand and testifies. Of her other half-dozen convictions, they believe the one most likely to be admitted for impeachment purposes is a 1995 conviction for burglary. In early 1995, when she was 38, Penelope Mills was involved in an incident at the Plump 'n Tastee Chicken Farms. Ms. Mills disguised herself as a government inspector, went to the Chicken Farms and, while there, took a set of keys from a receptionist's purse. Later that night, using the keys she had stolen, Ms. Mills went back to the chicken farms, entered one of the chicken barns, and began releasing some of the chickens from their cages. The receptionist had reported her keys missing, however, and Plump 'n Tastee had alerted the police that they suspected someone was planning to break into their facilities. Consequently, the police were present at the farms and arrested Ms. Mills after she had released several cages of birds. At her trial, Ms. Mills testified at length on her own behalf, but the jury convicted her of one count of felony burglary. The judge, noting that all the chickens had been recovered, sentenced her to thirty days in the county workhouse and eighteen months of probation. What arguments can the prosecution make to persuade Judge Hartack to admit this conviction for impeachment purposes? Are these arguments likely to be successful?

(Fifteen points) One of the pieces of evidence the prosecutors would like to use is a statement Mr. Siracci made following his arrest. FBI agents arrested Mr. Siracci and placed him in custody with the County Sheriff's Office. While he was in the County Jail, Mr. Siracci talked with Deputy Ed Maravigli, whom Mr. Siracci had known since childhood. There is no Constitutional bar to admissibility of the statement, but there may well be some hearsay problems. According to Deputy Maravigli's report, the Deputy asked Mr. Siracci, "Mick, how did a good kid like you get mixed up in all this?" The report indicates that Mr. Siracci responded as follows:

"Eddy, you don't understand. This is a war--a holy war. That's exactly what Sister Mills told me on Friday night. She said, 'We are all soldiers in a holy war.' Innocents are suffering. Sister Mills has done violence to stop that suffering. She told me that if it took violent acts to stop that suffering, then that was justice. That's why I did what I did. I'm a soldier in a holy war."

Mr. Siracci now refuses to testify. The defense is certain to object that the statement is hearsay. What arguments can the prosecution make to persuade the judge to admit all or at least part of Mr. Siracci's statement? Can the prosecution simply introduce Deputy Maravigli's report?

PART TWO

One of the pieces of evidence the government would like to admit at trial is the attached memorandum, prepared by Rudy Phritzer from Lemveer's Consumer Relations Department. The author of the memo, Mr. Phritzer, is still in Curacao and has refused to appear for trial.

Please answer the following two questions:

(Ten points) What is the best argument the prosecution can make to overcome objections that the memo itself (as opposed to the statements in the memo) is hearsay? What can the prosecution do to lay foundation for the for the memo that Mr. Phritzer wrote?

(Thirty-two points) Assume you are successful in persuading Judge Hartack that the memo itself is not hearsay. At this point, counsel for Ms. Mills makes the following objection:

"Judge Hartack, this memo ought not be admitted for a whole host of reasons. First, it contains hearsay within hearsay and hearsay within hearsay within hearsay. That's double and triple hearsay, your honor! Second, some of the statements are from individuals we have no way of identifying. Third, information in this memo offends the best evidence rule. Fourth, the memo contains irrelevant and inadmissible prejudicial slander of my client. Fifth, much of the memo is simply unreliable. Sixth…"

At this point Judge Hartack interrupted and said, "Save your breath, counsel. I understand that there are several evidentiary problems with the memo, but I'm sure the prosecution has a good explanation about why I ought to admit at least some portions of this memo. Let's take it paragraph by paragraph. I will strike any portion of the memo that I find inadmissible."

Assuming that the prosecution wants to get in as much of the memo as possible, what are the best arguments for admissibility? Include any arguments about evidentiary issues you have spotted, even though opposing counsel may not have made that particular objection. Are your arguments likely to be successful? Why or why not?

PART THREE

At the Mills trial, several different witnesses testified during the prosecution's case-in-chief and the defendant's case-in-chief. Each of these twelve questions describes an objection made during testimony at trial. Please read through the questions sequentially since at times a series of questions will all refer to the direct and cross-examination of the same witness. Please answer each question by explaining in ONE OR TWO SHORT SENTENCES how Judge Hartack should rule on the objection made, and why the Judge should make that ruling:

For its first witness during its case-in-chief, the prosecution calls Vera Chang, a former member of ARF, who was present at the animal rights rally on June 4. The prosecutor asks Ms. Chang about a conversation that she had that night with Ms. Mills. Ms. Chang says, "Penelope Mills told me…" but before she can get any further defense counsel objects, "Hearsay!" How should the judge rule? Why?

Later during Ms. Chang's direct testimony, the prosecutor asks her "Do you believe that Ms. Mills was capable of violence?" Defense counsel objects, "Inadmissible character evidence!" How should the judge rule? Why?

According to Ms. Chang, on the night of the rally, Ms. Mills distributed a pamphlet about ARF's protest against Lemveer. The prosecutor asks Ms. Chang "What did the pamphlet say?" Defense counsel objects, "Best evidence!" How should the judge rule? Why?

Ms. Chang testifies on direct that she first met Michael Siracci on the night of the rally. The prosecutor asks Ms. Chang, "Did Mr. Siracci have a nickname?" Ms. Chang answers, "Yes, he told me to call him 'Mick.'" Defense counsel objects, "Hearsay!" How should the judge rule? Why?

On direct examination, Ms. Chang testifies that she saw Ms. Mills talking with Mr. Siracci for several minutes the night of the rally. On cross-examination, defense counsel asks, "When you first talked with the FBI, following my client's arrest, you told the agents that you believed that Ms. Mills had never met Mr. Siracci, didn't you?" The prosecutor objects, "Hearsay!" How should the judge rule? Why?

One of the prosecutor's next witnesses is Dr. Raymond Bleer, an FBI expert on forensics and fingerprints. Dr. Bleer examined the slip of paper listing the Lemveer security fence codes that was found in Ms. Mills' possession at the time of her arrest. Dr. Bleer testifies that he found trace amounts of ammonia nitrate on the paper and that ammonia nitrate was one of the chemicals Mr. Siracci used in building his bomb. Dr. Bleer also testified that he did not find Mr. Siracci's fingerprints on the slip of paper. The prosecutor asks him if he was surprised by this, and Dr. Bleer answered, "No, the investigating agent's report indicated that Siracci subject routinely wore latex gloves." Defense counsel objects, "Hearsay!" How should the judge rule? Why?

On cross-examination, defense counsel asks Dr. Bleer, "Isn't it true sir, that when you were in college you very nearly failed your organic chemistry course?" The prosecutor objects, "Irrelevant!" How should the judge rule? Why?

During its case-in-chief, the defense calls Marte Neumann to the stand. Ms. Neumann is a long-time member of ARF who was with Ms. Mills when she first learned that Mr. Siracci had been arrested. According to Ms. Neumann, when Ms. Mills learned that the FBI had found a bomb in Siracci's car, she said "Oh no, I can't believe that idiot would really do something like that!" The prosecutor objects, "Hearsay!" How should the judge rule? Why?

On cross-examination, the prosecutor asks Ms. Neumann, "Isn't it true that you have frequently told fellow animal rights activists that you would 'lie, steal, or cheat' to help any member of ARF who was in trouble?" Defense counsel objects, "Improper impeachment!" How should the judge rule? Why?

Near the end of its case-in-chief, Penelope Mills takes the stand to testify on her own behalf. Defense counsel asks her if she talked with Michael Siracci at the animal rights rally. Ms. Mills testifies that she did. Defense counsel then asks, "Did he tell you anything about his plans to bomb Lemveer?" Before she can answer "No," the prosecutor objects, "Hearsay!" How should the judge rule? Why?

Defense counsel next asks Ms. Mills, "During your conversation with Mr. Siracci, what did you tell him?" Ms. Mills is prepared to testify that she told him not to do anything to jeopardize human life, but before she can, the prosecutor objects, "Hearsay!" How should the judge rule? Why?

On cross-examination, the prosecution asks Ms. Mills, "During a conversation with one of the attorneys from our office about a possible plea bargain, didn't you say…" Before the prosecutor can get any further, defense counsel objects, "Inadmissible!" How should the judge rule? Why?

LEMVEER LABS

Creating a More Beautiful World for You

Creating a More Beautiful You for the World

TO: NILA JACKSON, DIRECTOR OF SECURITY

FROM: RUDY PHRITZER, CONSUMER RELATIONS

RE: SECURITY REPORT

DATE: JUNE 11, 1999

Nila, pursuant to Security's new policy, this is a report of "suspicious activities" I was made aware of today and earlier this week. I know that technically I'm supposed to report on the same day of the incident, but it wasn't until today's call that I really thought that any of this was a cause for concern.

Let me start at the beginning. On Monday morning, June 7, I picked up the print out of the calls that came in over the weekend on the consumer contact line. One of them seemed a little weird. It was a call from a woman who identified herself as the "Chief Communications Officer" from that group Animal Rights Forever. She left a voice mail message that said something like this was our "final warning," and that if we didn't stop our testing we would be sorry.

Wednesday, Phil Birnbaum over in Public Relations called me and told me that someone named Penny Mills had called him and asked him if he was going to be at work on Monday. Apparently she told him to expect a busy day. I didn't think much more about it, but later that day I got a call from that same ARF Communications Officer--I recognized her voice. She asked me if I had talked to Penny Mills. I told her no, and she said, "Look out. Penny and her friend Mick are serious people. They'll know what to do to stop you."

Yesterday, on Thursday, I answered a call from someone who said she was "Director Mills." She asked me if the labs were closed during the weekend. I asked her why she wanted to know, and she just said she didn't want "any casualties."

The call I got today has me really worried. The guy said he was a science teacher and was asking questions about whether we had tours of our labs. When I told him we didn't have tours, things got creepy. This guy said he could get into our labs any time he wanted--that he had our numbers. I asked him what he meant and he just laughed and said "no fence can protect you murderers." I asked him what he was going to do, and he said "I'm going to get these numbers to someone who will use them. Mick doesn't take prisoners. He's all business." Then he hung up. Nila, I'm worried. Should we call the police?