EVIDENCE
FALL 1997
MIDTERM EXAMINATION
ANSWER KEY
FACT HYPOTHETICAL
Both parts One and Two of the midterm are based on the following United States v. Marichal fact scenario:
Naomi Marichal faces trial on a charge of attempted arson. She is accused of attempting to set fire to an Internal Revenue Service office. According to the United States Attorney's office, Ms. Marichal broke into the IRS office at 3:15 a.m. early in the morning on April 15, 1996. She allegedly poured kerosene on several desks, lit the kerosene with a disposable lighter and then fled. Very little actual damage was done to the office, in part because the desks were made of metal and in part because the office's sprinkler system quickly extinguished the blaze.
F.B.I. agents investigated the crime, and a few days later arrested Ms. Marichal. She was one of the principal suspects in the investigation because she was a locally notorious tax protester with a prior conviction for malicious destruction of federal property. The case will be tried in federal court beginning next Monday, October 20, 1997, 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 parts of the following question, explaining in a short essay how the government should argue for the admissibility of the evidence described.
(Eighteen points) The prosecution would like to impeach Ms. Marichal, if she testifies, with her one criminal conviction for malicious destruction of federal property. In 1988, Ms. Marichal mailed her federal tax return to the IRS in a package, that when opened, sprayed out indelible red dye on hundreds of other returns and one very angry IRS worker. Ms. Marichal pled not guilty, went to trial, and testified that she was being framed by the federal government and had no involvement in the crime. The jury convicted her, and the judge in the case sentenced her to a fine of $5000.00 and fourteen months in prison. The judge, however, suspended the sentence and Ms. Marichal never ended up serving any time in prison.
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 Marichal if she testifies?
THE GOVERNING RULE FOR IMPEACHMENT USE OF THIS CONVICTION IS RULE 609.
· THERE IS NO INDICATION OF ANY ISSUE THAT WOULD MAKE THE CONVICTION INADMISSIBLE DUE TO 609(c) OR (d).
· IT HAS BEEN LESS THAN TEN YEARS SINCE THE DATE OF THE CONVICTION. (b)
· DESTRUCTION OF PROPERTY IS NOT A CRIME OF DISHONESTY. (a)(2)
· EVEN THOUGH MS. MARICHAL SERVED NO TIME, THE CRIME WAS STILL PUNISHABLE BY MORE THAN A YEAR IN JAIL. (a)(1)
· FACTORS DECREASING THE PROBATIVE VALUE OF THE CONVICTION INCLUDE ITS NATURE (PROPERTY CRIME), THE UNDERLYING FACTS (NO INDICATION OF DISHONESTY OR DECEPTION), AND THE FACT THAT IT IS RELATIVELY STALE AND THE ONLY CONVICTION ON DEFENDANT'S RECORD. THE FACT THAT DEFENDANT TESTIFIED AND THE JURY CONVICTED HER INCREASE THE PROBATIVE VALUE.
· PREJUDICE IS DECREASED TO THE EXTENT THAT THE CHARGED OFFENSE OF ARSON IS NOT SIMILAR TO THE CONVICTION OFFENSE OF DESTRUCTION OF PROPERTY (REMEMBER, THE JURY WON'T HEAR THAT THE CRIME INVOLVED THE IRS). THERE IS NO INDICATION THAT THERE IS A PARTICULAR NEED FOR DEFENDANT'S TESTIMONY SINCE WE HAVE NO INFORMATION ABOUT HER PLANNED DEFENSE.
Would the prosecution be more likely to persuade the judge to allow the government to use this conviction as Rule 404(b) evidence? Why or why not?
THE PROSECUTION MAY HAVE MORE LUCK CONVINCING THE JUDGE TO ADMIT THE CONVICTION FOR PROOF OF MOTIVE--ARGUING THAT DEFENDANT BEARS ILL WILL TOWARD THE IRS.
PART TWO
During trial of the case, several different witnesses testified for the prosecution 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 during its case-in-chief is the FBI agent who conducted the investigation leading to Ms. Marichal's arrest. The FBI agent testifies that when she went to Ms. Marichal's apartment, she did not answer the door. When the FBI agent entered the apartment, she found Ms. Marichal hiding in a closet. Defense counsel objects "Irrelevant!" How should the judge rule? Why?
OBJECTION OVERRULED! EVIDENCE OF FLIGHT IS RELEVANT TO THE ISSUE OF GUILT.
2. The FBI agent also testifies about her investigation of the scene of the attempted arson. The FBI agent testifies that she found the charred remains of a disposable lighter colored maroon and gold. Defense counsel objects, "Irrelevant, there has been no evidence introduced that this lighter is in any way connected with this crime. At side-bar, the prosecutor explains to the judge that the government plans on calling an arson investigator who will testify that the lighter had been used to start the fire. How should the judge rule? Why?
OBJECTION OVERULED! THE JUDGE MAY USE RULE 104b TO ADMIT THE EVIDENCE SUBJECT TO THE LATER PROOF FROM THE INVESTIGATOR.
OBJECTION SUSTAINED! THE JUDGE MAY USE RULE 104b TO EXLUDE THE EVIDENCE UNTIL THE INVESTIGATOR TESTIFIES.
3. Later in the government's case-in-chief, the prosecution calls Danny Pargman, one of Ms. Marichal's neighbors, to the stand. Mr. Pargman testifies that Ms. Marichal was a smoker and that he had frequently seen her light cigarettes with a disposable maroon and gold-colored disposable lighter. Defense counsel objects, "Irrelevant. There has been no evidence introduced that my client owned such a lighter at the time of the crime!" How should the judge rule? Why?
OBJECTION OVERRULED! RULE 406 PERMITS EVIDENCE OF A HABIT TO BE INTRODUCED WITHOUT CORROBORATION.
4. On cross-examination, defense counsel asks Mr. Pargman if, in his opinion, Ms. Marichal seems like a peaceful and law-abiding person. The prosecution objects, "Improper character evidence!" How should the judge rule? Why?
OBJECTION OVERRULED! RULE 404a1 PERMITS DEFENSE COUNSEL TO INTRODUCE EVIDENCE OF A PERTINENT TRAIT OF THE ACCUSED.
5. During the defense's case-in-chief, Ms. Marichal takes the stand. She asks that she not be given the normal oath, and instead asks to testify after stating, "I affirm that I must tell the truth and acknowledge that I testify today subject to criminal penalties for perjury." The prosecution objects that this "oath" is insufficient. How should the judge rule? Why?
OBJECTION SUSTAINED! THE PROFFERED OATH FAILS TO INCLUDE A DECLARATION THAT THE WITNESS WILL TESTIFY TRUTHFULLY.
6. During the cross-examination of Ms. Marichal, the prosecutor asks her, "Isn't it true that you frequently travel under an assumed name and routinely register at hotels using the name 'Mary Ellen Kithrow'?" Defense counsel objects, "Improper impeachment! Improper use of extrinsic evidence." How should the judge rule? Why?
OBJECTION OVERRULED! RULE 608b1 PERMITS THE PROSECUTOR TO INQUIRE ABOUT NON-CONVICTION MISCONDUCT. ASKING THE QUESTION IS NOT USE OF EXTRINSIC EVIDENCE.