EVIDENCE--KNAPP
SPRING 1996
MIDTERM EXAMINATION
ANSWER KEY
FACT HYPOTHETICAL
Both parts One and Two of the midterm are based on the following United States v. Norton fact scenario:
Dr. Warren Norton is on trial for allegedly making false and disparaging statements about agricultural products in violation of federal law. The government claims that during November of 1995, Dr. Norton caused false statements about the nation's turkey supply to be broadcast publicly. On November 2 of last year, Dr. Norton held a press conference and announced that studies he made demonstrate that "nearly seventy percent of the nation's turkey supply may be infected with a virus potentially dangerous to humans." Dr. Norton went on to encourage people to refrain from purchasing turkey because of the alleged virus problem. A federal investigation of Dr. Norton's studies revealed that his data demonstrated that he found the virus in only seven-tenths of one percent of the turkeys he studied (as opposed to seventy percent), and that there were no known cases of human illness resulting from people eating the few birds found infected with the virus.
Dr. Norton agrees he made erroneous statements at the press conference, but he disputes the government's claim that the turkey virus cannot cause illness in humans. Dr. Norton does admit, however, that there was a mathematical error in his report. He claims that because of a defective Pentium chip in his computer, his calculation of the percentage of turkeys infected was in error. Dr. Norton is asserting he lacked the necessary intent to disparage that is required to make his press announcement a violation of federal law. Instead, Dr. Norton claims that his misstatement was simply an innocent error. The case will be tried in federal court beginning next Monday, March 4, 1996, and the judge will be The Hon. Ruby Dixon, a notorious stickler for close adherence to the Federal Rules of Evidence.
PART ONE
The government prosecutors have asked for your help in preparing their case. Answer both of the following questions, explaining in a short essay how the government should argue for the admissibility of the evidence described.
1. (Eight points) The prosecution would like to introduce evidence of an earlier incident of erroneous public statements about poultry in which Dr. Norton was involved. In 1991, Dr. Norton was affiliated with a group called the Anti-Poultry Alliance (APA). At a press conference in December of that year, a representative of APA announced a study finding that eating a single average-sized portion of goose could increase cholesterol levels in an adult as much as 18 percent. There was widespread publicity about the APA announcement, but a poultry-raisers' trade association investigated and found that the study actually reported a maximum cholesterol increase of only 0.18 percent (one hundred times less than the APA announced increase). In the ensuing scandal, APA disbanded. Dr. Norton admits working on the 1991 study, but he has steadfastly denied responsibility for the erroneous announcement. The former director of APA is willing to testify, however, that Dr. Norton personally prepared the 1991 press release. The prosecution would like to introduce evidence of this prior act. What should the prosecution do and what should the prosecution argue to persuade Judge Dixon that evidence of the 1991 incident is admissible? Is the prosecution likely to be successful?
Rule 404(b) is the only viable route to admissibility of the evidence described. [Rule 608(b) would permit, at most, a cross-examinaton question about the incident.] In order to convince the judge to admit this evidence under 404(b) the prosecutor should:
· Give notice to the defense counsel.
· Argue that the evidence is relevant to help prove absence of mistake. Dr. Norton is basing his defense on a claim that the erroneous information about the turkey virus was an honest error resulting from a defective Pentium chip in his computer. The earlier incident also involved erroneous public statements about health risks associated with poultry. When confronted with the error, Dr. Norton also claimed that the error (an identical mathematical mistake) was his fault. The similarity of the two incidents and excuses is relevant to the prosecution to demonstrate absence of mistake. In a similar fashion, the prior bad act might also be used to demonstrate Norton's intent. The earlier goose incident might also be relevant evidence of Norton's anti-poultry motives.
· Convince the judge that a preponderance of evidence (federal) or clear and convincing evidence (Minnesota state) demonstrates Norton's commission of the prior bad act. This is potentially problematic, since Norton denied he was responsible for the goose error and he was not convicted of a crime in relation to the prior bad act. On the positive side of the equation, Norton's involvement in the earlier incident is undisputed and the former director of the APA is willing to testify that Norton was responsible for the mistake.
· Demonstrate a need for the evidence (since the prosecution must prove intent, evidence on absence of mistake will be very helpful) but not a need so great that a conviction would rest solely on the evidence of the prior bad act (Rule 403).
2. (Seven points) The prosecution would also like to impeach Dr. Norton, if he testifies, with his one criminal conviction. In 1985, Dr. Norton made threatening telephone calls to a poultry processing plant. Dr. Norton was arrested, charged with making terroristic threats, and brought to trial in August of 1985. Dr. Norton testified on his own behalf, but the jury found him guilty. The judge sentenced Dr. Norton to eighteen months in jail. Dr. Norton ended up serving only nine months in jail, however. What arguments can the prosecution make to persuade the judge to permit use of this conviction for impeachment purposes? Is the judge likely to allow the prosecution to use this conviction to impeach Norton if he testifies?
Rule 609 governs the admissibility of convictions used for impeachment purposes. If Norton testifies, the prosecution may be able to use the earlier conviction to impeach.
· There do not appear to be any issues related to 609(c), (d), or (e).
· Norton was convicted in August of 1985 and served nine months, so he was released in May 1986. There is not a 609(b) problem because Norton's trial begins in March of 1996--ten years has not elapsed.
· Making terroristic threats is not a crime involving dishonesty or false statement, so it is not "automatically" admissible pursuant to (a)(2).
· The crime was serious, however. Even though he served only nine months, Norton was sentence to a year-and-a-half in jail, so the crime was "punishable" by imprisonment in excess of one year.
· The judge will need to determine if the probative value of the conviction outweighs the prejudice (not the 403 standard, because witness Norton is the accused).
· Here, neither the nature of the crime nor the underlying facts seem to be highly probative of Norton's sincerity. Likewise, both the date of the conviction and the fact that it is the only conviction on Norton's record diminish the probative value. On the other hand, Norton went to trial, testified on his own behalf, and was convicted. This raises the probative value because it means that the earlier jury doubted Norton's sincerity.
· The prejudice of admitting the conviction is minimized because the two offenses--making terroristic threats and disparaging agricultural products--are not similar. [The underlying facts have much in common, but remember that the jury will hear only the nature and date of the conviction, along with the sentence served.] The prejudice is increased, however, because Norton will need to take the stand in order to present his defense of lack of intent due to mistake.
PART TWO
During trial of the case, several different witnesses testified for the prosecutor and the defendant. These five questions consist of five objections made during testimony at trial. Please answer each question by explaining in one or two short sentences whether the judge should sustain or overrule the objection, and why the judge should make that ruling.
1. One of the prosecution's witnesses during its case-in-chief is Francis Perdue. Mr. Perdue testifies about the nature of the virus that was the subject of Dr. Norton's study. According to Perdue, there has never been a recorded case of human illness resulting from ingestion of meat from turkeys suffering from the virus. On cross-examination, defense counsel asks, "Isn't it true that you have been a paid representative of the National Turkey Producers Association for the last twenty years?" The prosecutor objects "Irrelevant!" How should the judge rule? Why?
Overruled. The question seeks relevant evidence of the witness's bias.
2. During the defense's case-in-chief, Dr. Norton takes the stand to testify on his own behalf. He states that he never intended to make false statements about the virus or about turkeys, and that he was completely surprised to find out about the error in the press release. He testifies that he didn't become aware of the error until the middle of December, 1995, shortly before his arrest. On cross-examination, the prosecutor asks, "Dr. Norton, on December 1, on the Channel 11 five o'clock news, you said that you thought there might be a mistake in your calculations, correct?" Defense counsel objects "Improper impeachment. The prosecution has not introduced a videotape of that newscast!" How should the judge rule? Why?
Overruled. Pursuant to Rule 613, the prosecutor need not introduce the prior inconsistent statement before asking the witness this question. [Rule 608 is no help--telling a TV reporter that you made a mistake is not misconduct. Rule 612 is also no help--there is no indication that the witness is having memory problems.]
3. On cross-examination of Dr. Norton, the prosecutor also asks, "Doctor, when the FBI came to your office to arrest you, the agents found you shredding the early drafts of the November, 1995, press release, didn't they?" Defense counsel objects, "Irrelevant!" How should the judge rule? Why?
Overruled. The evidence meets the Rule 401 standard because it may help establish guilt--shredding the documents (like flight) could be evidence of a guilty conscience.
4. Following Dr. Norton's testimony, the defense calls Prof. Donna Trubach to the stand. Prof. Trubach testifies that, in her opinion and in the opinion of his colleagues in the scientific community, Dr. Norton is an extremely careful scientist who would never knowingly permit an erroneous calculation to be published. The prosecution objects, "Improper character evidence!" How should the judge rule? Why?
Overruled. This is proper character evidence because the defense may present evidence of the accused's character via opinion or reputation testimony.
Sustained. This is not evidence of a pertinent trait of character.
[Rule 608 is not much help, since Trubach's testimony in this question does not seem to be an opinion about Norton's truthfulness.]
5. Prof. Trubach also testifies that, in her opinion, Dr. Norton is an extremely honest man. On cross-examination, the prosecutor asks, "Did you know that Dr. Norton was censured by the University Ethics Council for falsifying the results of his experiments on the nutritional value of duck?" Defense counsel objects, "Improper impeachment. Improper use of extrinsic evidence!" How should the judge rule? Why?
Overruled. This question is not extrinsic evidence, it is permissible cross-examination about a specific instance. Rule 608(b)(2).