EVIDENCE
SPRING 1997
MIDTERM EXAMINATION
ANSWER KEY
FACT HYPOTHETICAL
Both parts One and Two of the midterm are based on the following United States v. Heckler fact scenario:
Patricia Heckler is on trial for allegedly making terroristic threats in violation of federal law. The government claims that on August 18, 1996, Ms. Heckler made a telephone call to a local construction supply company, Brix 'R Us, and said that there was a bomb on the premises that would explode in half-an-hour. The company immediately evacuated all its employees and customers and called the local police. The police bomb squad searched the company's facilities, but found no bomb. A police investigation of the bomb threat eventually led to Ms. Heckler's arrest. The case was then referred to the U.S. Attorney's office for federal prosecution. The case will be tried in federal court beginning next Monday, March 4, 1997, before Judge Willard Hartack, a notorious stickler for close adherence to the Federal Rules of Evidence.
Ms. Heckler worked as the chief purchasing agent for Brix 'R Us from mid-1988 until August of 1994. On August 18, 1994, Brix 'R Us suspended Ms. Heckler when auditors discovered that Ms. Heckler had been accepting kickbacks and rebates from suppliers in exchange for allowing the suppliers to overcharge Brix 'R Us. After investigating the matter, Brix 'R Us ultimately decided to fire Ms. Heckler. No criminal charges were brought against Ms. Heckler for accepting the rebates.
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. (Nine points) Part of the evidence against Ms. Heckler is testimony from Nick Dancer, the Brix 'R Us employee who answered the telephone on the morning of August 18, 1996, and heard the bomb threat. Whoever made the threat disguised his or her voice somehow, and the employee cannot identify the caller who made the threat. The telephone Mr. Dancer answered was equipped with "Caller I.D." which showed that the threatening call came from telephone number 699-6769. Mr. Dancer wrote down that number and immediately after he called the police, Mr. Dancer called 699-6769. When he dialed that number, a woman answered and said "Howdy! Patsy here." When Mr. Dancer said, "Who is this?" the woman hung up. The telephone number is assigned to a pay phone at a local bar, and the bartender on the morning of August 18, 1996, vaguely remembers seeing someone matching Ms. Heckler's description using the pay phone that morning. Mr. Dancer says that "Patsy" sounded "a lot like" Patricia Heckler, but he can't be sure. The prosecution wants to claim that Ms. Heckler answered the telephone when Mr. Dancer called 699-6769. What can the prosecution do to lay foundation for the telephone call to the pay phone at the bar?
Prosecution claims that Heckler was the person who answered the phone. Pursuant to Rule 901, the prosecution needs to introduce sufficient evidence to support a finding that the matter in question is what the prosecution claims. Evidence is needed to link Dancer's call to the location from which the threat was made and to link the person who answered Dancer's call to Heckler. To establish that the threat came from the bar, the prosecution can:
· Have Dancer or someone from the phone company testify about how Caller I.D. works (some of you used McKeever/McMillan as a guide).
· Have Dancer testify that he wrote down the number and then called that number.
· Have the bartender or someone from the phone company testify that 699-6769 is the number at the bar.
· You can use Rule 901(b)(6) as a starting point, but as several of you noted neither the business or personal sections of the rule quite work.
To establish that Heckler answered when Dancer called, the prosecution can:
· Have Dancer testify that the person who answered sounded like Heckler. 901(b)(5).
· Have Dancer listen to a tape of Heckler and testify that the person who answered sounds like the tape (this may give Dancer a better basis for his identification). 901(b)(5).
· Have the bartender testify that someone fitting Heckler's description was in the bar that morning.
· Find a witness to testify that Heckler goes by the nickname "Patsy" or always answers the phone "Howdy!" 901(b)(4).
The key is that the prosection needs sufficient evidence to permit the judge to find that a jury could reasonably conclude that Dancer talked to Heckler.
2. (Nine points) The prosecution would like to introduce evidence of an earlier incident involving Ms. Heckler. Sometime early in the morning of August 18, 1995, someone entered the Brix 'R Us offices, stopped up the sinks in the restrooms and turned on the water taps. By the time employees arrived to start the workday, the offices were flooded. A night security guard told police that he had seen a car with the license plate numbers JDW 981 parked across the street from the office that night at about 3:00 a.m. A check of the license plate numbers showed that the car was registered in Ms. Heckler's name and the guard's description of the driver matched Ms. Heckler's general appearance. Ms. Heckler was charged with trespassing and criminal mischief, but was acquitted after a full jury trial. The prosecution would like to introduce evidence of this prior act against Ms. Heckler at her trial for making terroristic threats. What should the prosecution do and what should the prosecution argue to persuade Judge Hartack that evidence of the 1995 incident is admissible? Is the prosecution likely to be successful?
Since Heckler was never convicted of this prior act, the only way the prosecution can introduce evidence of this prior act is through Rule 404(b). The prosecution should:
· Give notice to the defense.
· Argue that the earlier offense is relevant to prove motive. The act helps prove motive because it evinces malice against Brix 'R Us, was on the anniversary date of the termination, and demonstrates that even a year later Ms. Heckler still carried a grudge against her former employer. Some of you argued that the offense helps establish intent, but there doesn't seem to be a question that the bomb threat was intended to harm Brix 'R Us. Identity is also a stretch because there is relatively little similarility between the two acts (though some of you fashioned good arguments for identity by focussing on the date of the acts and the prank-like nature of both.
· Argue there is clear and and convincing (or a preponderance of) evidence that Ms. Heckler committed the earlier act. The problem here is that Heckler was acquitted, but this is not determinative. The prosecution can point to the security guard's identification, the license plate match, and the fact that the earlier act was on the anniversary date of Heckler's termination as evidence of Heckler's involvement.
· Suggest that there is a need for additional evidence on motive--perhaps because the jury might believe it unlikelyHeckler would still be mad about losing her job. The prosecution may have trouble establishing that this evidence is really needed.
· Balance the argument for need with the 403 prohibition against relying exclusively on the prior act for proof of the relevant issue. This is not a problem because the prosecution has other evidence it can introduce to establish Ms. Heckler had a motive to harm her former employer.
PART TWO
During trial of the case, several different witnesses testified for the prosecutor and the defendant. These six questions consist of six 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. The prosecution's first witness is Maddie Yoshida. Ms. Yoshida testifies that Ms. Heckler told her that she was "going to scare the life out of the people at Brix 'R Us," when the two of them were drinking at a bar on August 16, 1996. On cross-examination, the defense counsel asks Ms. Yoshida if it is true that she is a paid informant for the F.B.I. Ms. Yoshida states that she has never been paid by the F.B.I. Defense counsel then produces records of F.B.I. payments to Ms. Yoshida and has them marked as an exhibit. The prosecutor objects, "Your honor, you can't use extrinsic evidence to impeach a witness!" How should the judge rule? Why?
Objection overruled. This is evidence of bias and extrinsic evidence may be used to help prove bias.
2. The prosecution's next witness is Officer Vincent Drelling. Officer Drelling testifies that he went to Ms. Heckler's place of work to arrest her. He states that when Ms. Heckler saw him standing in the office where she works, she started walking quickly toward the emergency exit. Defense counsel objects "Irrelevant!" How should the judge rule? Why?
Objection overruled. Evidence of flight may be relevant to help prove guilt.
3. During the defense's case-in-chief, Ms. Heckler takes the stand to testify on her own behalf. She states that she is not angry with Brix 'R Us, that she has found a new job and moved on with her life, and had nothing to do with the bomb threat. On cross-examination, the prosecution asks, "Isn't it a fact that while you worked at Brix 'R Us, you accepted kickbacks and rebates from suppliers, and then let those suppliers overcharge your employer?" Defense counsel objects, "Beyond the scope of direct!" How should the judge rule? Why?
Objection overruled. Rule 611(b) permits the prosecution to inquire into matters relating to witness credibility even if those issues were not raised on direct.
4. On cross-examination of Ms. Heckler, the prosecutor also asks, "Isn't it true that you were convicted of forging checks in November of 1986 and served six months in jail?" Defense counsel objects "Improper impeachment. That conviction is over ten years old!" How should the judge rule? Why?
Objection overruled. Rule 609(b) provides that a conviction cannot be used if more than 10 years has elapsed since the date of the conviction (November, 1986) or release (May, 1987), whichever is later. Ten years haven't passed since the date of release.
5. After Ms. Heckler testifies, the defense calls Gina Krumland to the stand. She testifies that she has known Ms. Heckler her entire life and that in her opinion Ms. Heckler is an extremely peaceful and law-abiding person. The prosecution objects, "Improper character evidence! We have not made an issue of Ms. Heckler's character!" How should the judge rule? Why?
Objection overruled. Rule 404(a)(1) provides that the accused may introduce evidence of a pertinent trait (peaceful and law-abiding) of the accused's own character..
6. Assume that the judge allows Ms. Krumland to give her opinion about Ms. Heckler (this may or may not be the ruling the judge should have made). On cross-examination, the prosecutor asks, "Did you know that Ms. Heckler once threatened to kill a roommate's cat because the roommate refused to lend Ms. Heckler her car?" Defense counsel objects, "Improper use of specific instances as character evidence!" How should the judge rule? Why?
Objection overruled. Once the accused has opened the door, Rule 405 permits the prosecution to cross-examine the character witness about specific instances relevant to the pertinent trait.