Professor Franks

Final Examination, Fall 2003

1.  Carefully analyze the facts and grasp the issues in each question before beginning to write.  Spend time reading the question slowly and carefully.

2.  State the issues and answers to each question concisely.  Lengthy answers are not necessary.

3.  Do not repeat questions in your answers.  Write neatly and legibly on only one side of each page.

4.  Number your answers to correspond with the question, e.g., "II-E."

5.  If you feel it necessary to assume additional facts in any of the questions, give the facts that must be added and state why.

6.  Do not write in the margin of the book.

7.  All major questions are equally weighted unless otherwise indicated.  Subparts are approximately equal but may be weighted slightly differently according to the number of issues involved in that subpart.

8.  Write your pin number and the name and section number of the course on which you are being examined on the cover of each examination book.

9.  If you use more than one book, indicate "Book One," "Book Two" and so forth on the cover of each book and write your fictitious name and number and the name and section number of the course on the cover of each examination book.

10.  A GOOD ANSWER IS NOT NECESSARILY A LONG ANSWER.

With two prior convictions for shoplifting, Johnston is arrested for yet another shoplifting incident––this time for taking a diamond from a jewelry store.  His attorney, L. S. Yew, files a motion in limine to prevent the prosecutor from using his client's prior convictions to impeach him in the event he takes the stand.  The motion is denied, and Johnston elects not to testify.

At trial, the prosecutor calls witnesses who saw the prior incidents of shoplifting.  They are allowed to testify over defense objection.  The jury convicts.

Three days after the trial, the judge receives a letter from a juror telling that the jury violated the court's instructions not to consider the failure of the defendant to testify.  The defense moves for a new trial based on juror misconduct.  The judge refuses to allow the juror to testify and refuses to receive the letter into evidence.

What errors would you anticipate Mr. Yew would claim on appeal?  Discuss each point fully, and then decide each point.

II-A.  The definition of hearsay in Article 801(D) specifically excludes some statements which are simply defined as being nonhearsay.   Please list those statements.  Use a separate line or short paragraph for each item and limit your reply to no more than one sentence per item on the list.  Lengthy discussion is neither needed nor desired.

II-B.  Please list the exceptions of Article 803 (witness available).  Use a separate line or short paragraph for each exception and limit your reply to no more than one sentence per exception.  Lengthy discussion is neither needed nor desired.

II-C.  Please list the exceptions of Article 804 (witness unavailable).  Use a separate line or short paragraph for each exception and limit your reply to no more than one sentence per exception.  Lengthy discussion is neither needed nor desired.

II-D.  Please list the elements and use of a dying declaration.  Use a separate line or short paragraph for each element and limit your reply to no more than one sentence per element.  Lengthy discussion is neither needed nor desired.

II-E.  Please explain what is meant by the term "verbal act."  Discuss as necessary.

II-F.  When can the character of the defendant be used in a criminal trial, and how is it used?  Discuss as necessary.

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