LAW 5009 FINAL EXAM STUDYING - FINAL

LAW 5009 FINAL EXAM STUDYING - FINAL Justin Collins is being charged with the murder of Peewee Davis. At the trial, the state prosecutor has introduced evidence that proves that Justin Collins murdered Peewee Davis. T ...

LAW 5009 FINAL EXAM STUDYING - FINAL Justin Collins is being charged with the murder of Peewee Davis. At the trial, the state prosecutor has introduced evidence that proves that Justin Collins murdered Peewee Davis. This was done through the testimony of a little boy by the name of “D.T.I.” Justin believes that he is going to lose and have to go to prison for the rest of his life. In an effort to convince the jury that he is innocent, Justin would like to call his neighbor, Tawanda Sparkman, to testify that she has known Justin Collins for the past ten years and that he has a reputation in the community for being non-violent. You are the judge in this case and have been asked to determine if Justin Collins can introduce this evidence through the testimony of Tawanda Sparkman. How should the judge rule? 1) rule that the evidence is inadmissible character evidence 2) rule that character evidence is not admissible to prove that a def. acted in conformity therewith 3) rule that a defendant may offer character evidence under provisions of article 404A(1) in his defense to prove that he acted in conformity therewith 4) rule the evidence admissible only if you can show that the prosecution first opened the door to the inadmissible character evidence Same facts as question 1, except that this time, the prosecution would like to call Prisca Zeigler to the stand to testify in its case in chief that she has known Justin Collins for 2 years, and is familiar with his reputation as a drug dealer and violent person. As the judge would you allow the state to introduce this evidence in its case in chief? 1) no, the state may not introduce evidence of a defendant’s character to show that he acted in conformity therewith, unless it can be shown that the defendant first opened the door 2) yes, the judge should allow this evidence in because this evidence is relevant to the issue before the court 3) allow the evidence in because character is a central issue in the case 4) only allow the character evidence to be introduced for purposes of impeachment The prosecution of Kerry for the assault and battery against James. Kerry has claimed self defense In the prosecution’s case in chief to prove that Kerry was the first aggressor in the fight. The prosecution calls Margret (she will testify that she has lived in the same community as Kerry for many years, that she is familiar with Kerry’s community reputation for violence or peacefulness and Kerry’s reputation is that he is a very violent person.) Kerry objects strenuously. Which of the following statements is correct? Or how should the judge rule? 1) the judge should sustain Kerry’s objection because the evidence is hearsay, which no exception applies- NO b/c there is an exception (character evidence is an exception) 2) the court should sustain the objection because this is impermissible character evidence- CORRECT3) the court should overrule the objection because Kerry’s character is in issue- NO 4) the court should overrule the objection if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice- NO (403 analysis will never be the right answer regarding character) The prosecution of Kerry for perjury. Kerry has claimed he testified truthfully to the prosecutor’s questioning during trial. In the prosecution case in chief to prove that Kerry was a liar, The prosecution calls Margret (she will testify that she has lived in the same community as Kerry for many years, that she is familiar with Kerry’s community reputation for violence or peacefulness and Kerry’s reputation is that he is a liar.) Kerry objects strenuously. Which of the following statements is correct? Or how should the judge rule? 1) the judge should sustain Kerry’s objection because the evidence is hearsay, which no exception applies 2) the court should sustain the objection because this is impermissible character evidence 3) the court should overrule the objection because Kerry’s character is an element of the crime 4) the court should overrule the objection if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice The prosecution of Ms. Rayborn for the molestation for her child. Ms. Raybon claims that she was not the one who committed the crime. To prove that Ms. Rayborn did in fact molest her child, the prosecution offers evidence that 3 years earlier, Ms. Rayborn had been accused of molesting another child by the dept. of social services, and an investigation had been done that found her to be at fault. Ms. Rayborn now objects to the introduction of that evidence, claiming that it is impermissible character evidence, and at the very least highly prejudicial. You are the judge in this case, how should you rule in Ms. Rayborn’s objection? 1) it is impermissible to offer evidence of other crimes, wrongs, or acts 2) that the evidence is impermissible character evidence 3) evidence is admissible unless the court finds that the evidence’s probative value is outweighed by the danger of unfair prejudice 4) the evidence is admissible, regardless of the boundaries of probative value and unfair prejudiceThis is a rape trial involving Justin Collins and Samantha Perdue. Justin has been accused of the rape of Samantha on Friday evening at 7:45PM right after the law school barrister’s ball. During the rape trial, Justin would like to offer DNA evidence that indicates that Samantha had a sexual relationship with BoBo on Saturday morning at 9 O’clock, and that BoBo was a young man who pretends to be Justin Collins. What is the criteria that Justin must meet before he can offer such evidence? At the trial, Justin attempts to offer this evidence without having notified the prosecution. How should the judge rule? 1) the evidence is admissible and allow it in 2) the evidence is inadmissible because Justin failed to follow the pretrial requirements under article 412 3) allow the evidence in if Justin can show that the evidence is relevant and that the evidence is being offered to show the source of semen, injury, or another person is responsible for the assault within 72 hours. 4) this evidence cannot be admitted because of the danger of unfair prejudice, and the embarrassment that it can cause the victim Jonathan Walters had a daughter by the name of Karla Jenny. During the month of September 2011, he heard that Karla had been dating older men. In fact, John finds out that Joseph, who is 55 years old, is coming by to pick up Karla, who is 24 years old. John is furious, and tells Karla that she better not go out with that old man. Karla is very hard headed and decided to go out with the old guy anyway because she loves to spend money on her. During the evening hours, Karla sneaks out the house at 8 O’clock. Ms. Walters does not discover that she is missing until John Walters returns home. Ms. Walters and John Walters argue feverishly over the fact that she cannot control her daughter and that she is ruining their reputation in the Shreveport community. John calls Karla on the cell phone 84 times, and she refuses to answer so John goes out looking for her. Carrying his shotgun, he goes to 7 bars looking for Karla and her 55 year old boy friend, Joseph. When he stops at bar number 3, he tells the manager, “if you see Joseph, let him know that I am going to kill him.” The manager then tells John, “you better be careful, Joseph carries a gun.” At 11 O’clock that night, Joseph returns to the Walter’s residence and John is waiting on the front porch. As Joseph exits the car, john stands up and moves toward Joseph in a threatening manner screaming, “You old scoundrel, why are you messing with my daughter.” As he gets within a foot of Joseph with the shotgun in his hand, Joseph pulls out his 9mm and fires one shot into John Walker’s skull, killing him instantly. Prior to Joseph’s trial for the murder of John Walker, he notifies that he intends to claim self defense. The trail has started and Joseph has taken the witness stand. During direct examination, Joseph alleges that John Walters was the first aggressor and then attempts to speak about the facts that occurred just before the shooting. The prosecution objects on the grounds that Joseph is attempting to talk about the character of the now deceased John Walters. You are the judge, how should you rule?1) Overrule the objection and allow Joseph to testify as to the dangerous character of John Walters and further allow him to speak directly to the overt act, the hostile demonstration at the time of the offense. 2) Sustain the objection b/c Joseph did not properly allege the dangerous character of the victim and the facts do not demonstrate that there was in fact an overt act at the time of the offense. 3) Sustain the objection, but disallow the evidence anyway b/c its probative value is substantially outweighed by the danger of unfair prejudice. 4) Overrule the objection and allow Joseph to testify as to the dangerous character of John Walters but disallow his testimony as to the overt act or hostile demonstration. Even though Joseph murdered John Walters, Joseph and Karla began living together anyway. You’ve heard that old saying that you should listen to what your momma and daddy tell you, but Karla just didn’t listen. Joseph began to beat her furiously to beat her 6 days a week, but would always take off one day to go to church. The beatings went on for weeks, and Karla received counseling from Dr. Lloyd. In one of their sessions, Karla told Dr. Lloyd that she didn’t know how much longer she could take the physical abuse. One Friday evening around 10 O’clock, Joseph came home very drunk. He picked Karla up and threw her against a wall, breaking her clavicle and leg. Joseph refused to allow her to call an ambulance so she had to heal over time, without the assistance of medical personnel. Karla then met a young man named James during a therapy session. James told Karla that he loved her and that she did not have to take the abuse from Joseph any longer. When Joseph found out that Karla was seeing James, he became furious, and forbid Karla from ever seeing James again. Karla was so afraid of Joseph that she his in her bed room for 27 days straight without leaving. She did not eat, and wished that she was dead. She began to hallucinate and saw Joseph as the green eyed monster. One night, Karla decided that she would take her own life. She put the gun to her head, but realized that she was not the one who deserved to die, Joseph was. She hid behind the door and waited for Joseph to come home. As Joseph opened the door, she emptied a 9mm clip in his chest, killing him instantly. The state charges Karla with the 1st degree murder of Joseph. At the trial, Karla would like to introduce evidence that she had been the victim of domestic violence for the past 6 years and would also like to call an expert witness to talk about why Karla felt the need to take Joseph’s life. The state objects alleging that this evidence is inadmissible. You are the judge. How should you rule? 1) Disallow the evidence b/c Karla did not first plead self-defense and allege a hostile demonstration or overt act. 2) Disallow the evidence b/c this case is not about the dangerous character of the victim. 3) Disallow the evidence b/c of the danger of unfair prejudice is not outweighed by its probative value. 4) Allow the evidence if Karla can prove that she lived in a familial circumstances with Joseph and plead self defense.- CORRECTThis is the prosecution of Hector for the murder of Cindy. To prove that he acted in self defense, Hector called Maryland, who has known Hector for many years, and to testify that she has known Hector for many years and that Hector is a peaceful person. The prosecution objects. Which is the correct statement? 1) The court should sustain the objection because Hector may not offer character evidence to prove that he acted in conformity therewith on a particular occasion. 2) The court should sustain the objection b/c although character evidence is admissbale, in this situation, Hector may only prove character by offering evidence of his community reputation for honesty. 3) The court should sustain the objection b/c the witness is biased. 4) the court should overrule the objection Will is an employee of SULC. He is the vice chancellor fro accounting and procedure. During the last 5 years, the president of the university has noticed that Will has been purchasing some very expensive homes and cares, to include 25 Rolex watches. The university has just learned, through a financial audit, that they are missing more than 5 million dollars from the university’s bank account. During the investigation, the auditor points to Will as the person who has had custody, control, and access to the funds. During the investigation, Will signed for over 5 million dollars in dummy temp. checks, naming himself as the payee. Margret, who works for the U.S. Attorney’s office, decides to charge Will with embezzlement. A trial has been set. Prior to trial, Margret notifies the defense of an intent to offer evidence that will had embezzled funds from his son’s trust account over the past 5 years. Will’s defense lawyer objects and files a motion in liminie attempting to prevent the prosecution from offering evidence of this other charged act, alleging that it is impermissible character evidence. How should the judge rule on the motion in liminie? Should the evidence be admitted or disallowed? 1) the evidence should be disallowed b/c it is impermissible character evidence and addresses other crimes, wrongs, or acts 2) the evidence should be allowed b/c character is an essential element of the crime charged 3) the objection should be overruled b/c it is permissible contradiction evidence 4) the evidence should be disallowed b/c it is not relevant and the probative value is substantially outweighed by the danger of unfair prejudice John and Marry are married, through the existence of the marriage, John tells Marry that he robbed the 7/11 store. 3 Months later, John is arrested by state police in 6a.m. The prosecutor intends to call John’s wife to ask her if John admitted to her that he robbed the 7/11 store by way of confession. The prosecutor alleges that the confession is admissible into evidence under 801(D)(2). The trial has just begun, and the judge calls you in as his law clerk and asks you “Is this proper as an exception under article 801(D)(2), or is this protected by the husband and wife confidential communication privilege?”A) You tell the judge that this is not admissible evidence under provisions of article 801D(2), because it is not an admission made outside of the marital relationship. B) you tell the judge that this qualifies as an exception to the hearsay rule under article 801(D)(2) C) you tell the judge that all communications made during the existence of a legal marriage are protected under the husband and wife communication privilege. D) You tell the judge that this is a violation of the confrontation clause under the Doctrine of Chances. Your name is attorney Rapper George. You are in your office Friday evening and have made no money all week. As you are about to leave, here comes Josh, a Mississippi and asks if he can talk with you for just a moment. Moments after he has arrived into your office, he tells you that he has just murdered his wife and he is on the run from the police. You’ve only been talking to him for about 15 minutes and determine that you will represent him at his upcoming prosecution. All of sudden, the police knocks on the door and forces their way in. They point the gun at you and ask you “Did Josh tell you that he just murdered his wife?” Before the lawyer answers, he calls you on the phone and asks you what to do. You being an up and coming law student, how should you advise Rapper George according to evidence law? A) The police has a gun pointing at you, tell him everything B) Advise the lawyer to refuse to reveal the content of the communication provided to him by the client protected by the lawyer-client privilege C) Advise him that these statements are non testimonial and cannot refuse to expose them D) Advise him that these statements are testimonial and that the prosecution must inform your client of his Miranda Rights. Amanda and Will are married, but their relationship has become very unsteady. Last Saturday night, Amanda and Will had a fight at a local bar. Both parties received injuries and had to go to a local hospital. Amanda received a fractured rib, so the prosecutor decided to prosecute Will for fracturing Amanda’s rib as opposed to prosecuting Amanda for striking Will in the face. Months before the trial, Will and Amanda seem to work things out and are back in their wholesome relationship. The prosecutor notifies Amanda that he intends to call Amanda as a witness in the upcoming trial. Amanda refuses that she is not going to testify, and that you cannot make her. She calls Karla Jenny and asks her “Can the prosecution make me testify against my husband?” A) You tell Amanda that the rules regarding privileges provide an exception when dealing with spousal abuse and that she can be required to testify by the prosecution. B) You tell Amanda that she has a 5th amendment right not to testify against her spouse. C) You tell Amanda that the Confrontation Clause does not apply to spouses. D) None of the above.QUESTION 1 on FINAL according to State v. Dillard, 55 So. 3d 56 for PRESENT SENSE IMPRESSION: 1. On July 4, 2011, Pat was working as a cashier at the Blue and Grey Store behind Campus. She looked out the window and noticed Derrick standing outside looking in, in a strange way. She told the manager of the store, Kathleen, that Derrick looked like he was casing the joint for a robbery. Kathleen disregarded what Pat told her and went to the back of the store. While Kathleen was in the back of the store, Derrick came in and demanded money from the cash register. Pat first refused to give him the money until Derrick pulled out his 9mm revolver. Pat then handed him all of his cash from the cash register. As Derrick exited the store, Pat screamed, “OMG I have just been robbed.” At the same time, Kathleen came from the back of the store and Pat pointed to the direction of Derrick as he was running out of the store. Kathleen asked Pat what happened. Pat said, “That same guy that I told you about, just robbed me. He has all of the cash. He has on an orange shirt, and black jeans.” Kathleen got into her vehicle and gave chase, looking for Derrick. She saw him walking down 5th street. As she approached him, he began to run. He ran into some neighbors houses and Kathleen loses him for a moment, but again finds him on the next boulevard. Derrick continues to run and Kathleen continues to chase him, until she loses site of him. Out of nowhere, comes Officer Bob. Kathleen flags down officer Bob and tells him that her store has just been robbed by a man wearing an orange shirt and black jeans, who the cashier called Derrick, and he was running ahead of her trying to avoid her. Kathleen leaves the police officer and drives back to the store.. While sitting in the parking lot trying to regain her breath, she has a heart attack and dies. The trial is now proceeding, and the state wants to offer the state wants to offer the statement made BY KATHLEEN to OFFICER BOB. Her statements give the description, name, and the fact that he she chased him. The state objects: hearsay. You represent the prosecution. Does this statement qualify as an exception to the hearsay rule? State the criteria for the exception and apply to the facts as presented. - STATEMENT IS HEARSAY, BUT EXCEPTION. PRESENT SENSE IMPRESSION. THEREFORE, THE UNAVAILABILITY OF THE DECLARANT IS IRRELEVANT AND THE STATEMENT WILL BE ALLOWED INTO COURT. QUESTION 2 on FINAL according to State v. Richardson, 46, 360 (La.App. 2 Cir. 6/22/11) for EXCITED UTTERANCE: During the late night or early morning hours of May 11, 1994, in Shreveport, Louisiana, 83– year–old C.T. was at home alone, asleep in her bedroom, when two black males broke into her home and attacked her. C.T. was unable to recall exactly what time the attack occurred or how long it lasted. She reported that, at some point during the attack, she was rendered unconscious or fell asleep and when she awoke, the men were gone. After she regained consciousness, C.T. found that her telephone was not working and went outside her home seeking help. Ms. Vivian Patterson, C.T.'s longtime next-door neighbor, heard her cries for help around 6:30 or 7:00 a.m. (TIME LAPSE DURING ATTACK) Ms. Patterson went outside and found C.T. wandering in her yard, crying hysterically and dressed in pajamas and a robe with bloodstains on it. C.T. saw Ms. Patterson and told her that one of the black menwho robbed her and kicked her had a tattoo on the right side of his face. Other neighbors heard the commotion and came outside their houses. Shortly thereafter, the police were called. Officers responding to the scene found the point of entry on the southwest side of the victim's house where a window screen and window panes had been removed. Following the initial investigation, no suspects were developed and the file ultimately became a “cold case.” The state of LA has filed charges against Jermone Dixon, claiming that he was the person that broke into C.T.’s home and robbery her. During the investigation, the state learned that C.T. told Vivian Patterson that one of the suspects had a tattoo on the right side of his face. During questioning, the state tried but was unable to get C.T. to speak about the description that she gave Mrs. Patterson the morning of the robbery. Ms. Patterson is afraid to testify, because the police have proven to be incapable of keeping the citizens safe. The state now wants to offer C.T.’s statement to Patterson as an excited utterance. Through the process of analysis, determine if the statement made to Ms. Patterson by C.T. is an excited uttereance. Why or why not? NOTE: the time span between the event and the statement the most important factor. - STATEMENT IS HEARSAY, BUT EXCEPTION – excited utterance – we do not know what time they men left her home, thus she was still under the excitement of the event. QUESTION 3 on FINAL according to State v. Hilton, 764 So.2d 1027 for INITIAL COMPLAINT OF SEXUAL ASSAULT AND WHETHER IT WAS OFFERED FOR THE TRUTH OF THE MATTER ASSERTED THEREIN: The trial has just begun and the state has decided to call Detective Mark Joseph to the stand. You are the defense council, and you have been notified by the state prosecutor that Mark Joseph will be called to testify to the following information: That he conducted an investigation involving child sexual abuse and as a result of that investigation, he interviewed Dr. Trombone Curtis and that Dr. Curtis told him that he had interviewed a male child by the name of Bobby Pitre and that little Bobby a 6 year old told him that he was the first person that he has ever told about the fact that his father had been playing with his tallywacker. As the defense counsel, What is your basis for objecting to the police officer testifying as to what Dr. Curtis told him during the investigation. NOTE: INITIAL COMPLAINT OF SEXUAL BEHAVIOR WOULD BE ALLOWED THROUGH Dr. CURTIS. IF Dr. CURTIS RECEIVED IT AS AN INITIAL REPORT OF SEXUALLY ASSAULTIVE BEHAVIOR AND WOULD QUALIFY AS NONHEARSAY. IF THE INVESTIGATOR ATTEMPTS TO TESTIFY AS TO WHAT DR. CURTIS TOLD HIM, YOU HAVE A HEARSAY PROBLEM AND YOU ALSO HAVE A VIOLATION OF CRAWFORD V. WASHINGTON BECAUSE THE STATEMENTS ARE CLEARLY TESTIMONIAL IN THE SENSE THAT THEY WERE TAKEN AS APART OF A ROUTINE INVESTIGATION IN ANTICIPATION OF TRIAL. ALSO, THE STATE MAY ATTEMPT TO LAY THE FOUNDATION, TO PROVE THAT DR. CURTIS IS UNAVAILABLE IF HE MEETS THAT CRITERIA. IT DEPENDS ON WHO YOU TELL, I.E. an older brother may not be relevant, but a complaint to a Dr. may be relevant. RESPONSIBLE PERSON. - STATEMENT WOULD BE NONHEARSAY IF THE STATEMENT WAS OFFERED BY DOCTOR. THE STATEMENT IS HEARSAY BECAUSE THE STATEMENT IS NOT BEING OFFERED BY THE DOCTOR WHO IS COVERED BY THE NONHEARSAY RULE OF THE INITIAL COMPLAINT OF SEXUAL ASSUALT. THUS, THE STATEMENT WILL NOT BE ALLOWED INTO EVIDENCE. If DOCTOR IS UNAVAILABLE, THEN THE DETECTIVE MAY BE ALLOWED TO TESTIFY AS TO THIS STATEMENT BUT ONLY IF IT FALLS UNDER THE EXCEPTION WHEN DECLARANT UNAVAILABLE IF THE OPPOSING PARTY HAD BEEN GIVEN A CHANCE TO CROSSEXAMINE. 4. QUESTION 4 on FINAL according to State v. Collins, 2010-0757 (La.App. 4 Cir. 5/11/11)for EXCITED UTTERANCE: Little Daddy Walker was at the car wash washing his vehicle when two unidentified males showed up at the carwash. Little Daddy asked the males to turn their music down, because it was too loud. One of the males became belligerent and told Little daddy Walker, “Who in the Sam Blazes do you think you are, telling me to turn my music down?” Little Daddy Walker said, “Ok, I am going to show you who I am.” He went to his car and go this shot gun and went back to the vehicle. First he shot the windows out of the vehicle and then he blew out the radio. The two boys ran on foot away from the car wash. Little Daddy gave chase. He shot one of the boys in the back of the head and he died instantly. He pointed the shot gun at the other boy, who had fell. He pulled the trigger, but the gun jammed. The second boy then begged for his life, “Please don’t kill me.” At the same time, Officer Dan arrived at the scene, just in time to hear the second boy say, “Please don’t kill me.” Little Daddy walker took off running and was later apprehended by the police. The trial of Little Daddy has just begun and the state has notified you of its intent to offer statement of the second boy at the scene, saying, “please don’t kill me.” Is the statement hearsay, or does it qualify as an exception to the hearsay rule? Explain your answer fully. - THIS STATEMENT IS HEARSAY, BUT IT IS AN EXCEPTION – EXCITED UTTERANCE. THE STATEMENT WILL BE ALLOWED IN. UNAVAILABILITY OF THE DECLARANT IS IRRELEVANT. QUESTION 4 on FINAL according to State v. BRUE, 2009-2281 (La.App. 1 Cir. 5/7/10) for THEN EXISTING MENTAL, EMOTIONAL, PHYSICAL CONDITION:NOTES: Biggest difference BETWEEN EXCITED UTTERANCE, PRESENT SENSE IMPRESSION AND THEN EXISTING MENTAL… is the PURPOSE FOR WHICH THE STATEMENT IS BEING MADE: Betty Riley, a young lawschool student, was dating Andrew Donaldson. Betty and Andrew began having problems in their relationship and Betty became extremely violent and she began following Andrew in and around town, just like a stalker. Andrew became fed up with her inability to control her temper and her propensity to demonstrate danger. One night he decided to take Hayden to the movies as a friendly gesture, but forgot to ask for permission from Betty. Betty followed them to the movies and waited outside on College, Dr. for them to leave the movies. She had her 9mm in her purse and she went up to the movie doors and as Andrew and Hayden were leaving, she confronted him about his friendship with Ms. Hayden. Ms. Hayden, not being a violent person, continued to walk. Betty pulled out the gun and shot at Hayden, severely wounding her. As Hayden was laying on the ground, she stated to Andrew, “I am in great pain. The bullet seems as if it has reached my heart. Boy Andrew, you told me she wasn’t violent.” Hayden was wounded so badly, that her parents did not want her to testify as to the statement. So, the state has decided to call Andrew to testify as to what he heard Hayden state on the night when she was wounded by Betty. Betty’s attorney objects and calls Andrew’s testimony HEARSAY. What hearsay EXCEPTION applies, if any? Please apply the hearsay analysis to the facts. Just identifying the exception will garner you NO POINTS. - PRESENT SENSE IMPRESSION AND THEN EXISTING MENTAL/EMOTIONAL/PHYSICAL CONDITION. Carla Jennings Richardson was married to Robert Brasheers. During the marriage, they had some problems. Robert was a baseball player, who did well at LSU, but afterwards fell on hard times. His wife Carla was very successful and graduated from law school at the top of her class. One Friday night after an LSU football game, Carla and Robert got into a big fight. Carla told Robert she was leaving him and that she was going to find herself another man. Two weeks after the fight, Carla was at the One American Place, Carla ran into her old friend, Chris. Carla and Chris became very friendly and decided that they were going to go out on a date even though Carla was still married. The date started off really well, but Chris drank too much. Chris then asked Carla if he could follow her home to have a night cap, but Carla refused. Carla left One American Place at 9 O’clock and Chris, who was a known stalker, followed her home. As Carla attempted to open her front door, Chris rushed her from behind and knocked her down and proceeded to assault her. He flat out raped her by the door and ran off. Carla called the neighbors, who then called the doctor’s office, not the hospital. The neighbor takes Carla to the Lake After Hours treatment facility. Carla tells her neighbor that she was raped and then tells the nurses at the Lake After Hours that she was injured and attacked and that she suffered bruises to the side of her abdomen. She further says that the person who raped her was Chris.TO THE NURSE IT IS MEDICAL TREATMENT AND DIAGOSIS. NEIGHBOR IT IS NONHEARSAY – INITIAL COMPLAINT OF SEXUAL ASSUALT – may also be then exisiting medical condition. Statements which are not hearsay: Consistent with the declarant's testimony and is one of initial complaint of sexually assaultive behavior. When Monroe told Officer Dunstan that he could get another rock of crack form “my buddy,” Beckham immediately got up form his chair, walked over to a stash of crack, that was packaged for distribution, and began to open it. By that action, Beckham indicated his endorsement of Monroe’s statement. NONHEARSAY - 801(D)(2) Personal, adoptive, and authorized admissions is being applied here. Monroe made the statement, and Beckham adopted Monroe’s statement By doing what Monroe told him to do, he adopted Monroe’s statement as his own 1. two possible witnesses 2. could use this info for impeachment 3. if Officer Dunstan is called as a witness, he is testifying as to what he saw 4. if someone tells you something, and you act on it, then you are adopting that person’s statement as your own Generally, a trial court's rulings on evidentiary issues will not be disturbed absent a clear abuse of discretion. State Farm Mut. Auto. Ins. Co. v. Smith 2011 WL 798813 John and Michael were riding together on I12. They got off I12, and drove down Plank Road. They stopped at the red light on the corner of Plank and Harding. Out of nowhere came Peter, driving at a high rate of speed, and slammed into the back of their 2011 Ford Focus. Peter was driving a 2005 Ford F-150 that tore that little care up very badly. Both John and Michael were rushed to the hospital. Both had to have emergency surgery on their back and neck. After they were released from the hospital, John began treatment with Dr. Rayborn. During the initial visit, Dr. Rayborn had John fill out a complete medical history that included prior instances of foreign diseases, and a prior injury suffered during a previous automobile accident. John was interviewed by Nurse Erin, who was told by John that he was in excruciating pain. Six months later, John meets with the lawyers representing Peter, but they cannot reach a settlement. A trial is set by Judge Andrew Biden. During the trial, the lawyers for John want to introduce John’s medical records and the information listed therein through the testimony of nurse Erin b/c Dr. Rayborn will be out of town.USING THE RULE OF EVIDENCE, AND ALL EVIDENCIARY RULES AT YOUR DISPOSAL, CAN JOHN’S LAWYER INTORDUCE THE MEDICAL RECORDS THROUGH THE TESTIMONEY OF NURSE ERIN? First, ask: is there an out of court statement? Evidence is being offered to prove bodily injury. Evidence is relevant. Identify the business records exception as a possibility Then say if it fits this scenario Is Nurse Erin the right witness Yes, b/c she is a custodian or qualified witness The problem with offering this in 803(3) Then existing mental, emotional, or physical condition is that we don’t want a statement, we want the records Dr. Rayborn is out of town so she is unavailable, also could have been absent b/c of lawyer being unable to procure his attendance by process or other reasonable means Use when arguing records of regularly conducted business activity: (made at or near the time by, or from information transmitted by, a person with knowledge, if made and kept in the course of a regularly conducted business activity) THIS IS HEARSAY – BUT WILL BE ALLOWED IN REGARDLESS IF THE DECLARANT IS UNAVAILABLE BECAUSE OF REGULARY CONDUCTED BUSINESS RECORDS. State v. Simmons Public records are designed not for investigatory or police action, they are designed to facilitate some aspect of public life. Business records can be testimonial and non testimonial PUBLIC RECORDS AND REPORTS: 2011 WL 1938385 Public records are prepared for the public, not for police action, but to facilitate some aspect of public life. They are not prepared for trial purposes, but for the public. PUBLIC RECORDS CAN BE TESTIMONIAL AND NONTESTIMONIAL. Greg is a prosecutor for the 19th JDC. He has been assigned to prosecute Casey Anthony. He contacted the law school in hopes of getting a law student to help him prepare a memo that addresses when the State must be concerned about the confrontation clause involving a homicide case wherein the state prosecutors would like to introduce public records and memos that show that the defendant had contracted the HIV virus. The evidence will be introduced through a Board of Health Nurse who remembers the defendant coming in for his evaluation and the manner in which he cried once he found out that he was HIV positive. The board of health is a state agency responsible for providing FREE medical screenings for anyone who requests it. The defendant did not sign a health waiver, which authorizes the board of health to release information. Prosecutor asks you if a subpoena duces taken can be used to acquire these records and whether or not the information found within these records is admissible. Further he asks, does this information found within this record constitute a violation of Crawford v. Washington and Davis v. Washington? DOCUMENT REQUESTING MEDICAL RECORDS FROM BOARD OF HEALTH PUBLIC RECORDS NOT A VIOLATION OF CRAWFORDSTATEMENT IS HEARSAY, BUT EXCEPTION – PUBLIC RECORDS EXCEPTION – DUTY TO REPORT. STATEMENT WILL BE ALLOWED IN. - CUSTODIAN OF THE RECORD. Matthew is a military soldier assigned to Afghanistan. His wife and he were so in love when they first got married, but Rebecca started messing around on him. When Matthew returned from Afghanistan, Rebecca told him she wanted a divorce. Matthew begged Rebecca to reconsider, but Rebecca complained about his post traumatic war stress, how he walked the floor at night, carrying a loaded gun. Rebecca calls attorney Smith and files for a divorce. When they attempt to serve Matthew, he leaves his house, goes to his reserve unit, calls his commander and volunteers to return to Afghanistan. His commander is shocked, but happy to have a volunteer. He cuts the orders and sends Matthew to Afghanistan immediately. Rebecca’s lawyer is frustrated and goes forward with the hearing anyway without Matthew. At the trial, the judge decides to stop the trial and appoint a lawyer to represent Matthew. The newly appointed lawyer objects to the trial and alleges that Matthew is unavailable as a witness. You are the judge. You must first determine if Matthew meets the criteria for unavailability. You must list the criteria for unavailability and apply that criteria to these facts. UNAVILABLE.According to LA Code of evidence what is purpose of trial? - to resolve a dispute 2 component parts of a proper objection - timely and specific what right must be effective to overturn an appeal substantial and fundamental right when a court denies permissibility of evidence the court shall allow defense counsel an opportunity to do what? motion for proffer Weight and credibility. The preliminary determination by the court that evidence is admissible does not limit the right of a party to introduce evidence relevant to weight or credibility at the trial. evidence that is admissible for one party but not for another what can defense counsel request in order to keep evidence limited limiting instruction if D objects to a piece of evidence, and witness responds to question anyway ask the judge to admonish the jury, ask court to disregard the information, and motion strike what are judicial notice facts and 3 components A doctrine of evidence applied by a court that allows the court to recognize and accept the existence of a particular fact commonly known by persons of average intelligence without establishing its existence by admitting evidence in a civil or criminal action. Not reasonably disputed, generally known in the territory of the court, capable to be obtained from a source that cannot be reasonably questioned. identify 3 examples of when the court shall take judicial notice of a legal matter 1) federal law 2) state law 3) ordinances define an adjudicative fact An "adjudicative fact" is a fact normally determined by the trier of fact. what is presumption? A "presumption" is an inference created by legislation that the trier of fact must draw if it finds the existence of the predicate fact unless the trier of fact is persuaded by evidence of the nonexistence of the fact to be inferred.what are 2 types of burdens preponderance of the evidence, by clear and convincing evidence, or as otherwise required by law define burden of persuasion The "burden of persuasion" is the burden of a party to establish a requisite degree of belief in the mind of the trier of fact as to the existence or nonexistence of a fact. What is an inference? An "inference" is a conclusion that an evidentiary fact exists based on the establishment of a predicate fact. what are the 3 burdens of proof, and define with percentages Burdens: Preponderance of the evidence (51%), Clear and convincing evidence (51-70%), Beyond a reasonable doubt (70% and higher) burden of production in a criminal case is on the prosecution, but can shift to defense under what? When an affirmative defense is raised What is a predicate fact? A "predicate fact" is a fact or group of facts which must be established for a party to be entitled to the benefits of a presumption. It is the underlying fact What is the triggering event of a presumption? Predicate fact Define prima facia On its face. Legislation providing that a document or other evidence is prima facia evidence or proof of all or part of its contents or of another act establishes a presumption establishes a fact but is not a conclusive evidence of its existence 401 relevance what is relevant evidence? something that causes you to understand or be influenced; a link 1) any evidence (evidence is anything having some significance) 2) having any tendency 3) to make the existence of any fact 4) that is of consequence to the determination of the action 5) more probable or less probable 6) than it would be without the evidencewhat is RED? R – relevant E – excluded D – disallowed Is it relevant (R)? Has it been excluded (402) by the U.S. Constitution, LA Constitution, LA Code of Evidence, or other legislation (E)? And (D), has it been disallowed (403)- based on whether or not its probative value has been substantially outweighed by unfair prejudice, confusing, or a waste of time Threshold for relevant evidence is low Character evidence can be proved by reputation only- no opinion What is difference from placing one’s character in issue rather than at issue? the only way a person’s character gets to be in issue 1) defendant offers a character trait of it on (his own) has to be offered by the defendant FIRST before the defense can rebut it; the defendant opens the door by offering his character trait if a person’s character is at issue, it means that their character is an element of truth and is admissible as evidence (NECESSARY ELEMENT OF PROOF) In order for a person’s character to be AT ISSUE, they must be involved with the 4 big crimes: 1. Perjury 2. Negligent Entrustment or Hiring 3. Entrapment 4. Defamation Under 404A, can a prosecutor 1st introduce evidence of negative character No; generally character evidence is not admissible except: when the accused first opens the door by first talking about his character when regarding a victim, accused must first offer evidence of an overt act or hostile demonstration; if a familiar relationship with accused and victim, then accused must first claim self defense, but does not need to demonstrate an overt act or hostile demonstration What is familiar circumstance for defense Domestic Violence Exception. In order to bring up character of the victim, and there is a familiar relationship (husband-wife, parent-child, or concubinage relationship)with accused and victim, then accused must first claim self defense, but does not need to demonstrate an overt act or hostile demonstration Can defense bring in info regarding liability insurance? No- evidence of insurance or lack thereof is not admissible on the issue of negligence or culpable conduct, but could be admitted when relevant to other issues. The issue of admissibility should be resolved by the use of the balancing test. Even though you can’t use a fact that a person doesn’t have liability insurance to prove negligence, what can you use it for? That he owns the car That he was possessing the car How may a defendant show evidence of his good character? General reputation only Prosecutor can require into what on cross examination Specific instances Can prosecutor call a new witness call a new witness to testify into new acts No, rule 404(B) holds that evidence of other crimes, wrongs, or acts is not admissible unless it is used to show the accused’s motive, opportunity, intent, preparation, plan, knowledge, or identity; the prosecution must first provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial, or when it relates to conduct that constitutes an integral part of the act in the present proceeding. Can defendant attack character of witness in his case in chief? 404a(2) Yes, if character is at issue May attack character of victim by showing hostile demonstration or overt act; or if there is a familiar relationship with accused and witness, self defense must be claimed, but there does not need to be evidence of an overt act or hostile demonstration. During the trial, Legros, a New Orleans prosecutor, intends to offer evidence that during plea discussions, Julian Johnson admitted to strangling Bulah to death. You are a quick thinking defense counsel and object. The swift Legros responds that she is not offering it as part of a plea negotiation, but as cross examination for perjury. How should the judge rule? According to Article 410: any statement made in the course of any court proceeding concerning any plea discussions with an attorney for or other representative of the prosecuting authority regarding either of the foregoing pleas is not admissible against the party who made the plea or was a participant in the plea discussions. However, a statement is admissible when: in a criminal proceeding for perjury or false statementsif the statement was under oath, on the record, and in the presence of other counsel. Under what circumstances may prosecutor use prior convictions in his case in chief? rule 404(B) holds that evidence of other crimes, wrongs, or acts is not admissible unless it is used to show the accused’s motive, opportunity, intent, preparation, plan, knowledge, or identity; the prosecution must first provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial, or when it relates to conduct that constitutes an integral part of the act in the present proceeding. Witnesses 600 John has been convicted of a municipal offense called carrying an open container can this evidence be brought in under 404(B)? Yes, if it is used to show motive, opportunity, preparation, plan, knowledge, identity, absence of mistake of accident and must provide defense with adequate notice. Or when it relates to integral part of the crime * If question is the same, but is article 609.1 instead of 404(B) then: Yes, because in a criminal case, every testifying witness subjects himself to examination of his criminal convictions. Generally, only the fact of a conviction, the name of the offense, the date thereof, and the sentence imposed is admissible. Jerry is seen standing in front of the bank everyday attempting to catch the bus. Over the last year you can set your clock to the 5:00 arrival. Is this evidence of character or evidence of habit? Yes. A habit is a course of behavior of a person regularly repeated under like circumstances. Evidence of the habit of a person or of the routine practice of an organization is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. The Green River Killer was charged with the murder of one young lady. He was alleged to have strangled over 100 ladies by use of rope, fishing line and anything else he could find. At trial, Robertson intends to offer evidence of the murder of the prior 99 victims. What would be your best argument for excluding the other ladies? What would be your best argument other including the other 99 ladies? EXCLUDE: Article 404(B) states that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person to show that he acted in conformity therewith. INCLUDE: Article 404 (B) also states that evidence of other crimes, wrongs, or acts, is admissible for the purpose of proving motive, intent, opportunity, preparation, plan, knowledge, identity, or absence of mistakeor accident. In this case, the Killer’s intent, opportunity and planning are evident by his acts of strangulation of all of his victims. What is standard of proof for other crimes evidence Sufficient to support a finding The burden of proof required for the admissibility of other crime evidence should be “sufficiency to support a finding” rather than clear and convincing. (p. 414) How does code define hostile demonstration or over act? Any act of the victim which manifests to the mind of a reasonable person a present intention on the part of the victim to kill or to do great bodily harm. Distinguish b/t 404(A)(2) and 404(B)(2) 404(A)(2) deals with dangerous character 404(B)(2) deals with prior threats What is integral acts evidence Evidence of other crimes (RES GESTAE) – part and parcel means that it is an integral part of a larger chain of criminal activity Must prieur notice be detailed? Yes, notice as to other crime evidence must specify the purpose for which it is being offered. This is a safeguard of Prieur, which allows the accused to know the purpose for which the other crime evidence is to be introduced so that he may be better prepared to meet such evidence. Does the fact that a conviction is remote in time preclude its admissibility? In a civil case- 10 yeas In a criminal case- no time limit Yes, the trial judge will allow questioning of an accused’s prior conviction if it is not too remote from the present offense (Johnson Safeguard). What is lustful disposition exception? 412.2 on p.404. It permits the prosecution to offer circumstantial evidence of a defendant’s prior sexual misconduct to establish the defendant’s specific intent. In John’s aggravated rape trial of a 6 year old boy, the prosecutor introduced evidence of a prior rape of a three year old. The Judge denied the defense objection. What is the standard of review for the Judge’s decision? Harmless error Time for filing motions dealing with 412? 72 hoursthe rape shield statute in LA is 412, how do we know? In sexual assault cases, the victim’s character is not sufficiently relevant to warrant admissibility by the prosecution or defense. The Rape Shield statute is also intended to reduce the possibility of appealing to a jury’s emotions, to avoid confusion of the issues, and to encourage rape victims to report rape to police. Hope claims that no Hope attacked her, Hope calls Pole Head to testify that he saw Hope Sustain- issue is opinion- cant bring that in How do you authenticate a piece of evidence? Who, what, when, where, why, and how- showing relationship evidence has to trial and why evidence is relevant Section 3 witness A witness must testify based on his Personal knowledge of the matter A witness must be ----- and a presiding judge shall not ----; a jury shall not ----as a ----- A witness must be competent and a presiding judge shall not testify in the trial that he is the judge over. A juror should not testify as a witness in the case in which he/she is sitting as a juror. When attacking credibility intrinsically, a lawyer may examine: Any matter having a reasonable tendency to disprove the truthfulness or accuracy of his testimony Attacking credibility extrinsically; 5 ways 607D- Bias, interest, corruption, or defect of capacity, prior inconsistent statements, evidence contradicting the witness’ testimony 609(B) 609(C) 609(F) 609.1- name 3 instances when the details of a criminal conviction may become admissible: 1) When the witness has denied the conviction or denied recollection thereof; 2) When the witness has testified to exculpatory facts or circumstances surrounding the conviction;3) When the probative value thereof outweighs the danger of unfair prejudice, confusion of the issues, or misleading the jury 701 and 702 Daubert- Foret factors NEW TEST – Daubert-Foret Test – QUALIFYING OF THE EXPERT AND HIS EXPERTISE/OPINION 1. The testability of the expert’s theory or technique a. Has it ever been tested? Can you reproduce his test results? It is accepted by other experts? 2. Whether the theory or technique has been subjected to peer review and publication a. Have the other experts stated opinion? 3. The known or potential rate of error a. How often has it been successful? 4. Whether the methodology is generally accepted in the scientific community. a. Part of the old rule – generally accepted name 3 privileges and their holders Patient/doctor- patient is the holder Lawyer/client- client is the holder Accountant/client- client is the holder Give example of a joint holder privilege Husband/wife Name 2 different types of spousal privileges 1) confidential communication privilege 2) spousal witness privilege