EVIDENCE ESSAY SERIES
ESSAY QUESTION #2
MODEL ANSWER
Dan is charged with the murder of Vickie, who was strangled with a red scarf and left in a
garbage container. At the trial by jury, the following occurred:
1.
Roomi, Vickie's roommate, testified for the prosecution that Vickie told her as Vickie
was leaving their apartment on the night of her death, "Dan and I are going to see `The Graduate'
at First Theatre."
2.
At the prosecutor's request, the court took judicial notice that on the night of Vickie's
death, First Theatre was showing "The Graduate."
3.
Sally, who had dated Dan about a year prior to Vickie's death, testified for the
prosecution that when she rebuffed Dan's sexual advances he dragged her into an alley by some
garbage containers, produced a red scarf, and attempted to strangle her.
4.
The prosecution introduced into evidence Dan's constitutionally obtained written
statement that on the night of Vickie's murder he had gone alone to Second Theatre to see
"Cinderella." The prosecution then called Manny, the manager of Second Theatre, who produced
a photocopy of the Second Theatre's computer printout that listed the movies shown during the
two-week period around Vickie's death. It reveals that at no time during that period did Second
Theatre show "Cinderella." The photocopy of the computer printout was received into evidence.
5. Pro, a member of the same country club to which Sally belongs, testified for the defense that
Sally has a reputation at the club for lying about her golf scores.
Assume that in each instance all appropriate objections were made.
Was each item of evidence, 1 through 5, properly admitted? Discuss.
COPYRIGHT 2010 PATRICK GOULD, J.D., M.A.
MODEL ANSWER
1. ROOMI’S TESTIMONY: "Going to see 'The Graduate'"
RELEVANCE. In order to be relevant, a piece of evidence must be material and relevant.
Evidence is material when it is related to a substantial issue of fact in the case. It is relevant when
it either tends to prove or disprove the existence of a material fact at issue. The statement is
relevant to show that Vickie and Dan were together that night at some point in the evening on the
night that Vickie was killed, giving Dan the opportunity to kill Vickie. Thus, proof of the
asserted fact that Dan was with Vickie on the night of her murder would be probative of whether
Dan had opportunity to kill Vickie, a material issue in the case. Therefore, the statement is
relevant.
HEARSAY. Hearsay is an out-of-court statement offered for the truth of the matter asserted is
hearsay. The statement by Vickie, "Dan and I are going to see 'The Graduate' at First Theatre,"
is hearsay, because it is a statement that was made out of court and is being offered to prove the
truth of the matter asserted. Here, it shows that Dan was accompanying Vickie during the
evening in which she was killed. This statement will not be admissible unless there is a viable
hearsay exception.
PRESENT STATE OF MIND AS TO INTENT.
Hillmon Doctrine. Under the Hillmon doctrine, a person's present state of mind as to intent is
admissible as non-hearsay, and as substantive proof that declarant acted in conformity with their
statement. Here, the statement indicates that Vickie had the present state of mind to go to the
movie with Dan. However, the Hillmon exception applies only to show that the declarant, not a
third person, acted in conformity with the declarant's expressed intent or plan. Therefore, the
statement may only be used to solidify the actions of Vickie, and not the actions of Dan, because
Dan is not the declarant in this situation.
CONCLUSION. The statement may only be used to solidify the actions of Vickie, and not the
actions of Dan, because Dan is not the declarant in this situation.
2. JUDICIAL NOTICE of First Theatre Showing 'The Graduate'
The statement is relevant to prove that Vickie's intention was, in fact, true, that is, that she
intended to go to see the movie and that the movie was, in fact, playing.
The judge may take judicial notice of facts of common knowledge in the community or easily
ascertainable by accurate sources. Judicial notice is an evidentiary device to conserve time and
expense, it cannot be used to resolve factual issues. Here, the court took judicial notice that on
the night of Vickie's death, First Theatre was showing the movie 'The Graduate.' However, we
see no evidence that The Graduate really did show on the night in question. Stable events, such
as the phase of the moon on a particular night, would be subject to judicial notice, but variable
COPYRIGHT 2010 PATRICK GOULD, J.D., M.A.
events must be proven through testimony. While it may have been fairly easy for the prosecutor
to show that The Graduate was playing on the night in question, there is still a requirement that
it be proven with more clarity and specificity.
CONCLUSION. The court should have the prosecutor prove that The Graduate was showing
by providing testimony to that effect.
3. SALLY’S TESTIMONY.
RELEVANCE. Sally's testimony is relevant to show that Dan has violent tendencies, and
therefore, that it is more-likely than without the evidence that Dan killed Vickie. The evidence is
also probative that Dan is the killer because of the similar modus operandi involved in the two
incidents. The evidence is relevant.
CHARACTER.
The general rule is that character evidence is not admissible to prove that a person acted in
conformity with that character trait on any particular occasion. The statement arguably is
relevant to show that Dan is violent and capable of killing, and if for this reason, the evidence is
not admissible. Character evidence may only be admitted in a criminal trial if Dan opens the
door. Here, there is no evidence that Dan opened the door. However, even if the defendant
opens the door, specific prior bad acts may not be proved with extrinsic evidence. Here, the
prosecution seeks to bring in the prior bad act with specific evidence which is inadmissible. The
only way that this evidence could be admissible is if Dan had taken the stand and testified to this
exact transaction and thus, the testimony could be used to impeach. There are no facts indicating
direct testimony on this subject and thus, the statement cannot be offered for the relevance shown
above.
Admission of Sally's statement was improper character evidence in that it will cause the jury to
think that because he was violent once, he must have been violent on this occasion and murdered
Vickie. The evidence is not admissible to prove action in conformity with character.
TO SHOW MOTIVE OR IDENTITY.
Evidence of motive and identity through prior specific acts done by the defendant is admissible
where it is to prove something other than general conformity with character, such as motive or
identity. The argument will be that the fact that Dan has previously tried to strangle someone
who had rebuffed his sexual advances, and that fact provides a motive as to why he may have
murdered Vickie. Also, evidence may be admitted if the prior bad act is so similar as to be a
calling card specifically identifying the person. The courts will allow in evidence of prior
specific bad acts by the defendant which are so similar to the acts in question that they can be
deemed the signature of the perpetrator. Here, the fact that Sally says that Dan "produced a red
scarf, and attempted to strangle her" does tend to show that D was the one who perpetrated the
murder. Thus, the statement is admissible to prove identity or common plan.
COPYRIGHT 2010 PATRICK GOULD, J.D., M.A.
FRE 403 - Weighing Prejudice and Probative Value.
Under the FRE, the judge is given the power to exclude relevant evidence if the probative value
is outweighed by the prejudice to the defendant. Here, the prejudicial value is high since the jury
can use the evidence to conclude that Dan is violent and has a propensity for violence and will
convict him for this propensity. As noted above, the statements may not be used in this manner.
However, if used to show motive or identity, the probative value is high since it shows that Dan
has perpetrated a similar bad act therefore leading to an identification. In this case, the evidence
is likely admissible to show identity.
Limiting Instruction.
If the judge does admit the evidence, the judge should also issue a limiting instruction that the
evidence may not be used to show that Dan is violent or has a propensity for violence. The
limiting instruction must apply to the particular exception for bad acts described above, namely,
identity and common plan or scheme.
CONCLUSION.
Limiting Instruction.
If the judge does admit the evidence, the judge should also issue a limiting instruction that the
evidence may not be used to show that Dan is violent or has a propensity for violence. The
limiting instruction must apply to the particular exception for bad acts described above, namely,
identity and common plan or scheme.
4. MANNY’S TESTIMONY as Manager of Second Theatre
RELEVANCE. The statement is not offered for the truth of the matter asserted, but rather is
offered to show that Dan lied in his written statement which was constitutionally obtained. Thus,
the relevance is to show a consciousness of guilt leading to a false statement concerning an alibi
to the police. The evidence being offered by the prosecution is relevant because it would tend to
make it more likely that Dan lied to the police in his statement.
AUTHENTICATION.
In order for the record to be introduced into evidence, the prosecution must put on enough
evidence to allow the jury to reasonably conclude that the item is what it is purported to be. Here,
that requirement can probably be met with no problem by having the manager, Manny, testify
that the record is a record of movies shown at the theater during the specified period.
BEST EVIDENCE / ORIGINAL DOCUMENT RULE.
Manny has brought forth a photocopy of the computer printout. When the contents of a writing
are sought to be proved in court, the original document is required. However, under the federal
rules of evidence, a photocopy is admissible, if it can suitably be traced to the original document.
HEARSAY.
The statement of the computer printout is relevant to show that Dan lied in his statement and
therefore shows a consciousness of guilt through the false statement. Here , the record is coming
in for the truth of the matter asserted and is therefore hearsay.
COPYRIGHT 2010 PATRICK GOULD, J.D., M.A.
HEARSAY EXCEPTION: BUSINESS RECORDS.
The record can probably properly be admitted as a business record. A business record is a record
prepared by someone with a business duty at or near the time of the occurrence in the regular
course of the business. A sponsor for the record is required to prove the required elements. As
the manager, Manny should be a sufficient sponsor. He will need to establish through his
testimony that the theater normally keeps records of movies shown, that those records are
prepared at or near the time the movie is shown, and that the record is prepared by someone who
has a business duty to keep accurate records. Further, where the record is being used to prove
something by its absence from the record, the proponent must show that had the movie been
shown, it would have been recorded during the normal course of business. If all of these factors
were established, the document was properly admitted into evidence.
CONCLUSION. Here, Manny, the manager of Second Theater, produced the photocopy. As
manager, he may properly lay the foundation for the evidence.
5 PRO’S TESTIMONY Regarding Sally's Reputation for Lying About Golf Scores
RELEVANCE.
Sally has testified on direct examination that Dan dragged her into an alley and attempted to
strangle her. Since Sally has testified, she has put into issue her character for truth and veracity.
Thus, the defense may impeach a witness with a witness's reputation or another's opinion as to
the truth or veracity of the witness.
Admissibility to Show Character for Truthfulness and Veracity.
When Sally took the stand and testified about her prior relationship with Dan, she placed her
credibility for truthfulness in issue. As a result, the defense is allowed to introduce evidence that
she has a poor character for honesty. This is relevant to show it is more likely that she was lying
when she testified. In general, extrinsic evidence in the form of witnesses is allowed under the
Federal Rules of Evidence to provide evidence of character for honesty. However, such evidence
is limited to evidence in the form of reputation or opinion only, and no specific acts can be
described on direct.
CONCLUSION. Therefore, the admission of Pro's reference to Sally's golf scores was
improper. Pro was limited to the general reputation or opinion as to Sally for honesty and
truthfulness, assuming that the proper foundation could be laid showing that he had knowledge
of her reputation or had himself had an opportunity to formulate an opinion.
COPYRIGHT 2010 PATRICK GOULD, J.D., M.A.