#13109 - Practice Exam Answers - Evidence (Duke Beskind)

Charles

Charles’ scream is probably hearsay. 801 defines hearsay as an OCS made for TOMA. The scream is probably a statement because it’s not reflexive and is intended for positive information transfer. It’s offered for TOMA because Charles is accusing Dan for stealing the jacket. 802 provides that hearsay is inadmissible unless there is an exception. Here, Prosecution may argue an “excited utterance” exception under 803. An excited utterance is a statement made by the declarant while still under the stress of a startling event. Prosecution can argue that the startling event is seeing Mrs. Charles wearing the stolen jacket. Dan can argue that Charles isn’t under stress of the burglary since one week has passed since the burglary. Seeing someone wearing the same jacket doesn’t mean it’s been stolen and a reasonable person would not been startled when he sees someone wearing the same jacket as his on a street.

801(d)(2) also provides exclusions for hearsay. Prosecution can argue that Charles’ statement is a tacit adopted statement. When Dan hears Charles’ statement, Dan ran away. However, an ordinary person with FHK would reply if he doesn’t mean to accept the statement. Therefore, Dan seems to tacitly adopt the statement. Therefore it’s not hearsay because of this exclusion.

A fact is relevant if it’s probative and material. Dan can argue that the fact that he runs away is not relevant, because he just wants to avoid a confrontation with Charles. Therefore it doesn’t make the proposition that Dan commits the burglary more probable. Prosecution can argue that Dan’s behavior indicates a consciousness of guilt and therefore makes it more likely that Dan commits the burglary.

No original writing, authentication, or privilege problems.

Yank

702 allows expert testimony if he’s qualified, his opinion’s based on sufficient data and reliable principles and methods, and his application of scientific principles is reliable. Here the doctor hasn’t been qualified by Prosecution. Prosecution can argue that a dentist who regularly examines teeth has the qualifications. But Dan can argue that examining teeth and comparing teeth with bite mart are two different things. No proof is offered to show that his methods are reliable and are applied reliably.

Bob

Prosecution can object that Bob’s testimony is hearsay because it’s an OCS made by Dan and is used to prove Dan plans to use the cabin for 2 days. Dan can use R803 “state of mind” exception because the statement is forward looking statement showing Dan’s plan from 4/16 to 4/18.

D’s comments about the stove are not hearsay because it’s not TOMA, it simply shows Dan’s knowledge that the damage occurs and can corroborate his alibi.

Abel

Impeachment by PIS is not hearsay: while it’s an OCS by Bob, it’s not for TOMA. It’s used to impair Bob’s credibility by showing that he made a PIS.

Impeachment by PIS through extrinsic evidence (Abel’s testimony) is proper here because the issue is not collateral: the fact that Dan is away for two days is his alibi and is not a collateral matter, but rather the essence of Dan’s defense.

Guard

Guard’s testimony is hearsay within hearsay. Each step needs to have an exclusion or exception for the testimony to be admissible.

Watcher to Guard: hearsay because it’s Watcher’s OCS offered to prove TOMA that the car is incredibly fast. Victim can argue that it’s Watcher’s “present sense impression” under 803. Present sense impression is admissible if the statement is contemporaneous with the event; the speaker has perceived the event; and the statement describes the event. Here. Watcher’s statement is almost contemporaneous with the accident, and Watcher has FHK of the accident and is describing the accident to the guard.

It can also be an excited utterance because Watcher has perceived a startling car accident, and made a statement related to the accident while under stress of the startling event.

Relevance

Testimony is relevant because it makes the theory that Driver was speeding more probable. Speeding is a material fact to Victim’s theory of negligence.

Notebook

Notebook is relevant because it supports Victim’s theory that Driver is speeding and is therefore negligent. It makes Victim’s speeding more probable.

Notebook is the original document required by 1002. It’s properly authenticated by Guard because Guard says that he keeps those notes in the notebook. Walter’s claim is admissible hearsay as discussed above. Guard’s notes are admissible hearsay because it’s business record. A business record is admissible of the original source has FHK and the record is made at or near the time of the event. The record must also be an ordinary course of business.

Trial questions

Q1: On cross, prior specific bad acts relevant to character for untruthfulness can be asked about to impeach the witness. 608(b). However, here, Driver can argue that a conviction of assault does not reflect Guard’s character for truthfulness. Alternatively, the question can be admitted under 609: a prior conviction is admissible to impeach the witness. The conviction must be more than one year and the probative value must outweigh prejudicial effect. Here, Driver can argue that assault is a violent crime but it doesn’t prove that Guard isn’t truthful. If the question is allowed Driver will be associated with someone who committed a past crime and the prejudice of “birds of a feather flock together” outweighs the probative value of this evidence. Victim can argue, on the other hand, that the...