2004 Evidence Final Examination

EVIDENCE

Professor Franks

Final Examination, Fall 2004

GENERAL INSTRUCTIONS

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., "III-A-2."




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 personal identification 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 PIN 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.

BACKGROUND TO ALL FOUR QUESTIONS

Bubba Bumstead and Britney Breathless married in 1991. On December 25, 2003, the parties separated. They are now getting a divorce. You represent Bubba. On February 13, 2004, you filed for divorce in the Family Court of East Baton Rouge Parish on grounds of adultery. The Bumsteads have two children, Susie and Sam. The case is now coming up for trial. At issue are the divorce itself, custody of the two children, alimony, child support, and division of community property.

Britney runs a computer store, which operates as a corporation in which Britney owns all the stock. The corporation was formed during the marriage.

QUESTION I

27.1 per cent of test

Your evidence on Britney's adultery includes the following:

I-A. Britney's boyfriend, Larry "Tex" Looselips, was married to Gloria Faithful at the time of the adultery (December 2003). In January 2004, Gloria sued for divorce and was granted an uncontested Article 102 (no fault) divorce on July 28, 2004. Tex denies any adultery ever occurred. Gloria, angry at Tex, called your law office and told you that Tex admitted to her that he had committed adultery with Britney Breathless. Gloria now has changed her mind and says she will refuse to testify. Can you force her to do so? Discuss.

I-B. In early January 2004, Britney and Bubba went to a psychologist, Dr. Sigmund Phroide, for marriage counselling. In a joint session, Britney admitted to Dr. Phroide in Bubba's presence that she had committed adultery with Tex Looselips. As Bubba's attorney, you wish to call Dr. Phroide as a witness, but Dr. Phroide's attorney has advised you that he will claim privilege. Can you force him to testify? Discuss.

I-C. Your neighborhood bartender, Bud Weiser, tells you of a man who came in last night and told everyone that he is furious with you for having subpoenaed him to court. "Just cuz I was ballin' this computer geek Britney Breathless, some lawyer wants to make me go to court." From the bartender's description of the man, it is obviously Tex Looselips. You want to use Mr. Looselips's statement to the bartender. Discuss specifically how if at all you can use the statement at trial.

I-D. Back in 2002, over a period of six months Britney committed adultery from time to time with her then-assistant, Ricky Redneck. Britney admitted the adultery in a letter to Bubba begging him to take her back, and Bubba forgave her. Bubba wishes to use the letter in evidence. Can he? How? Discuss.

I-E. In 2002, Britney subscribed to Hot Male Sex magazine, having the subscription come to her office. In 2003, while on a business trip to Texas, she entertained a client, Buffy Bedford, by taking her to La Bare's, a club featuring male strippers. Bubba wishes to use these incidents as part of his adultery evidence. May he? Discuss.

QUESTION II

28.2 per cent of test

Britney's stock in the computer store is undoubtedly community property and will need to be valued for purposes of partition of the community. Bob Beancounter, CPA, has been Britney's accountant for years. He is prepared to testify on Britney's behalf that the corporate stock is worthless and should be valued at zero. He arrives at this conclusion by using the ultraconservative "book value" method of appraisal, which most accountants would reject as totally inadequate to evaluate an ongoing business.

II-A. May Bob Beancounter testify as to the value of the business using the "book value" method of appraisal? Discuss.

II-B. Your research has revealed an article in the Journal of Accountancy entitled "How to Evaluate a Computer Sales Business." The article, by Professor Heinrich Hossenpfeffer of Harvard Business School, says:

Book value is both obsolete and worthless as a method of valuing an ongoing business, such as a computer sales or service firm. One most often sees book value used today where an accountant friendly to a business owner tries to put a low figure on the value of the business for purposes of underpaying the heirs of a deceased partner or for purposes of undercompensating the owner's spouse when dividing property in a divorce.

You wish to use the article to impeach Mr. Beancounter. Can you? Explain in detail how if at all you might be allowed to do so. Discuss.

QUESTION III

31.8 per cent of test

On the custody issue, Bubba contends Britney is less than a perfect mother. He claims Britney drives the children around without car seats or seat belts, and that Britney has an alcohol problem and on one occasion was convicted of DWI. Please answer the following:

III-A. Specifically, Britney was stopped and ticketed in February 2004 by Officer Jarred Jefferson for allowing Susie, age 7, to ride without a seat belt and Sam, then age 4, without a car seat. At trial in City Court, Britney was found not guilty.

III-A-1. May you introduce either the police report or a certified copy of the court record of the criminal charge in any way? Discuss.

III-A-2. When you call Officer Jefferson as a witness at trial, his memory lapses and he remembers nothing. Explain in detail how you will deal with this. If the good officer persists in his amnesia, explain in further detail how you will deal with this. Under what circumstances, if any, is his written report admissible? Discuss.

III-A-3. Will Officer Jefferson be allowed to testify as to the facts of the incident? Discuss.

III-B. On another occasion, only five months ago, Britney was arrested for DWI. She was convicted. Assume this is relevant (as indeed it surely is in a child custody case). How exactly do you intend to prove the conviction? Discuss.

III-C. Britney has witnesses, too. If allowed to testify, a nosy neighbor, Granny Gabber, will testify that in her opinion Britney is an ideal parent and your client, Bubba, is the neighborhood liar. May she so testify? Discuss.

QUESTION IV

12.9 per cent of test

Weeks before Britney moved out on Christmas Day 2003, Bubba noticed she had been coming home late every night smelling of alcohol and men's aftershave. So Bubba went to his friendly Radio Shack and purchased a cassette recorder and a telephone connector of the type that automatically turns the cassette recorder on for the duration of the call whenever the line is used. Bubba installed the recorder at home, hiding it in the attic. The recorder recorded all calls made or received from any phone in the house.

One conversation was captured on December 18, 2003 while the two were still living together -- a call in which Britney told her boyfriend, Tex Looselips: "That sure was good last night. I hope my birth control is working."

After Britney moved out, Bubba continued recording all conversations. A full week after Britney moved out, the recorder captured a conversation between Britney and Bubba on December 31, 2003, in which Britney told him: "Bubba, I went to bed with Tex. I'm so sorry."

You want to introduce both tapes into evidence. Can you? How? Discuss.

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