1994 Evidence Final Examination

EVIDENCE

Section III, Professor Franks

Final Examination, Fall 1994

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., "I-A-4."

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 fictitious name and 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.

QUESTION I

85 per cent of test

GENERAL BACKGROUND

Clyde Crumwell, D.C., married Cindy Sue Riggins back in 1984, and they moved to Sarepta, Louisiana, where Clyde opened his office as a doctor of chiropractic medicine.¹ Cindy is the very prim and proper daughter of a prominent Monroe socialite and of a retired air force colonel lately turned Baptist preacher. Now Clyde is seated in your law office (all divorce lawyers north of Alexandria having refused to touch the case), and he has just paid you a very handsome retainer to handle his divorce and all related matters, of which there soon will be many. He tells you his story:"Counsel, I'm not gay, but I like to cross-dress. I always told Cindy Sue that my weekend trips to New Orleans once a month were for Chiropractic Association meetings, but that wasn't true. She never suspected until last Friday night. Friday, I stayed late at my chiropractic office to put on a dress and heels, intending to head down to New Orleans to let the good times roll. Just as I was putting on my lip gloss, of all things Cindy Sue waltzed in through the front door. I could have sworn the door was locked, but evidently Cindy has a key to my office. Cindy Sue was accompanied by my son, Charlie, who is eight years old. When Cindy Sue saw me, she let out this blood-curdling scream. Then she yelled that she was going to kill me, and she ran for the revolver that I always keep in my office desk. To keep Cindy Sue from getting her hands on the gun, I whacked her in the mouth with this (Dr. Crumwell hands you, his lawyer, a large acrylic paperweight).

"I ran out the back door. She was attending to her jaw and didn't see me leave, so I quickly ducked under my office building, which sits about two feet off the ground on concrete pilings. Cindy Sue then found my gun. I could hear her up in the building screaming and peppering bullet holes into my $170,000 x-ray machine. It's ruined. A neighbor must have called the sheriff, but they didn't find me that night. The cops surrounded the place, but they never even looked under the pilings. I stayed hidden beneath the building. The mud ruined my chartreuse lace evening gown and a perfectly charming crimson taffeta collar. I couldn't really run anywhere. My six-inch red high heels wouldn't permit me to run, and anyway the neighbors would have noticed me dressed, well, shall we say strangely for Sarepta. So I froze my bejezus off under there in nothing but a lace gown. I was there for at least six hours. I came out after midnight when I knew the coast was clear.

"The D.A. just yesterday filed aggravated battery charges against me, and Cindy Sue's testimony will be that I dislocated her jaw with the paperweight. She says I tried to kill her and she shot only in self defense, missing me but accidentally hitting my x-ray machine.

"Cindy Sue has since told me that she is going to turn me in to the Louisiana Department of Revenue and Taxation. She knows I lied about some deductions on my state income tax return.

"Cindy Sue has also filed for divorce on grounds of adultery. If my patients learn about this, I'm ruined."

PLEASE ANSWER THE FOLLOWING QUESTIONS

I-A. In prosecuting the aggravated battery charge, the district attorney will call Dr. Sam Suture. He will testify that he treated Cindy Sue at the emergency room on the night of the altercation, and that she said each of the following things. State any basis you may have to object and the court's probable ruling as to each of the following:

I-A-1. "Cindy Sue told me her husband bashed her with a paperweight.

I-A-2. "She said her husband had abused her on numerous prior occasions.

I-A-3. "She also said she shot at him in self defense, missing him and accidentally hit his x-ray machine.

I-A-4. "She was distressed because her husband cross dresses."

I-B. Dr. Crumwell has a 1983 criminal misdemeanor conviction for possession of marijuana. You are concerned that if you call him as a witness in the criminal case the prosecution will seek to impeach him with this conviction and its details. Discuss.

I-C. Can this misdemeanor conviction for possession of marijuana and the details of the crime be used to impeach Dr. Crumwell in his divorce? Discuss.

I-D. In defending Dr. Crumwell's aggravated battery case, you hired an expert, Captain Alcide Alzheim, recently retired after 35 years as a ballistics instructor at the Louisiana State Police Training Academy. At your request, Captain Alzheim examined the x-ray machine and determined that the various bullet holes were all fired into the machine at point blank range, not from one location in the room but from various points around the machine. Captain Alzheim even wrote a report to you stating that, in his opinion, the person shooting into the machine walked around the machine in a tight circle, pumping bullets into it from all directions. His report clearly contradicts Cindy Sue's "I shot only in self defense" testimony. But when you call the elderly Captain Alzheim as a defense witness at trial, his memory lapses and he remembers nothing. Explain in detail how you will deal with this. If the good captain persists in his amnesia, explain in further detail how you will deal with this. Under what circumstances, if any, is his written report to you admissible?

I-E. The day after the altercation, Dr. Crumwell telephoned his wife to beg her forgiveness. During this call, he confessed to his wife in confidence that on one of his trips to New Orleans he had had intimate relations with a prostitute. Now she wishes to use his statement against him in the divorce case to prove adultery. Can she? Discuss.

I-F. The district attorney also wishes to use the above statement (I-E) against Dr. Crumwell in the criminal prosecution. Can she? Discuss.

I-G. Dr. Crumwell says his wife's story about a dislocated jaw is baloney. "She has TMJ syndrome, and her jaw is always going out. She's been to the dentist many times for this. Last year she even told me that her dentist, Dr. Toby Toothworthy, wanted to refer her for corrective surgery. She wouldn't hear of it. She has complained to me many times over the years, telling me each time her jaw pops out." You wish to subpoena the records of Dr. Toothworthy and call him as a witness at trial, but the prosecution claims his records and testimony are privileged. Discuss.

I-H. The morning after the altercation, Dr. Crumwell told his receptionist, Katie Keyboard, "I hit Cindy with the paperweight all right, but I did it only to stop her as she was reaching for my gun." Under what circumstances, if any, may you as Dr. Crumwell's attorney call Katie Keyboard as a witness and bring out this statement? Discuss.

I-I. If Katie Keyboard testifies on your client's behalf, may the district attorney cross examine her on whether Dr. Crumwell ever wore women's clothing or kept women's clothing at the office? Discuss.

I-J. May the prosecution call Reverend Arthur Dimmesdale to testify that in his opinion Dr. Crumwell is a philandering transvestite unworthy of belief? Or that Dr. Crumwell's reputation for truthfulness in Sarepta is poor? Under what circumstances, if any, may this witness be so called? Discuss.

I-K. You want to call the parties' child, Charlie, to testify at the criminal trial that your client decked his beloved only when she reached for the gun and said she was going to kill him. Can you? How? Discuss.

I-L. What is your ethical obligation with regard to the paperweight? Can the district attorney subpoena you and force you to disclose where you got the paperweight?

I-M. Your client has learned that Cindy Sue has gone to the Louisiana Department of Revenue and Taxation to turn him in for bogus tax deductions. If charges are filed and she is permitted to testify, she will say that she accompanied her husband on a trip to Los Angeles for a "chiropractic seminar" but that they really spent all four days at Disneyland. She will also say that he told her that another claimed deduction, for a business trip to Miami (on which she did not accompany him), was likewise bogus, because he told her he did not actually attend any part of the seminar, but spent the entire week lounging on the beach. If you raise all possible objections on behalf of your client, what of the above can you keep Cindy Sue from testifying to in a Louisiana state criminal prosecution for state income tax evasion? Does it make any difference if the couple are divorced at the time of trial?

QUESTION II

15 per cent of test

II-A. List the circumstances under which proof of subsequent remedial measures is admissible in a Louisiana negligence or products liability case.

II-B. Is an unindicted co-conspirator's out-of-court statement in which he tells the police, "I did it, but it was all Joe Blow's idea," admissible against Joe Blow in a criminal prosecution? Does this depend on whether the unindicted co-conspirator is available to testify at trial? Discuss.

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¹Truth is stranger than fiction. This basic fact situation (cross-dressing doctor hiding under office while wife shoots his x-ray equipment) actually happened. The names and places have been changed to protect the guilty. The jawbreaking violence and the paperweight are embellishments to the true story, however. In real life, no criminal charges were ever brought and your professor settled this one ever so quickly and quietly that not even the judge suspected that this was anything other than a routine noncontested divorce.

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