1995 Evidence Final Examination

EVIDENCE

Section III, Professor Franks

Final Examination, Fall 1995

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., "II-B."

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.

GENERAL BACKGROUND

Brenda Bullish and Chuck E. Churner married in 1982. On December 25, 1994, the parties separated. They are now getting a divorce. You represent Brenda. On February 15, 1995, you filed for divorce in West Baton Rouge Parish on grounds of adultery. The Churners have two children, Brad and Bobbie. 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.

Chuck runs a commodities brokerage business, which operates as a corporation in which Chuck owns all the stock. The corporation was formed during the marriage.

QUESTION I

30 per cent of test

I. Your evidence on the adultery is, to say the least, weak. Your evidence of adultery includes the following:

I-A. Chuck's girlfriend, Flo Flooze, was married to Fred Flooze at the time of the adultery (December 1994). Back in January 1995, Fred sued for divorce and was granted an uncontested Article 102 (no fault) divorce on July 28, 1995. Flo denies any adultery ever occurred. Fred, angry at Flo, called your law office and told you that Flo admitted to him that she had committed adultery with Chuck E. Churner. Fred now has changed his mind and says he will refuse to testify. Can you force him to do so? Discuss.

I-B. In early January 1995, Chuck and Brenda went to a psychologist, Dr. Sigmund Phroide, for marriage counselling. In a joint session, Chuck admitted to Dr. Phroide in Brenda's presence that he had committed adultery with Flo Flooze. As Brenda'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 woman who came in last night and told everyone that she is furious with you for having subpoenaed her to court. "Just cuz I was ballin' this jerk Chuck Churner, some lawyer wants to make me go to court." From the bartender's description of the woman, it is obviously Flo Flooze. You want to use Flo Flooze's statement to the bartender. Discuss specifically how if at all you can use the statement at trial.

I-D. Back in 1991, over a period of six months Chuck committed adultery from time to time with his then-secretary, Passionada Von Climax. Chuck admitted the adultery in a letter to Brenda begging her to take him back, and Brenda forgave him. Brenda wishes to use the letter in evidence. Can she? How? Discuss.

I-E. In 1992, Chuck subscribed to Centerfold Girls magazine, having the subscription come to his office. In 1993, he entertained a client, Bill Dittser, by taking him to The Topless Club. Brenda wishes to use these incidents as part of her adultery evidence. May she? Discuss.

QUESTION II

30 per cent of test

Chuck's stock in the commodities brokerage firm is undoubtedly community property and will need to be valued for purposes of partition of the community. Percival Pennypincher, CPA, has been Chuck's accountant for years. He is prepared to testify on Chuck'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 Percival Pennypincher 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 Commodities Brokerage Business." The article, by Professor Heinrich Grossflugzeug of Harvard Business School, says:

Book value is both obsolete and worthless as a method of valuing an ongoing service business, such as a commodities brokerage 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. Pennypincher. Can you? Explain in detail how if at all you might be allowed to do so. Discuss.

QUESTION III

30 per cent of test

III. On the custody issue, Brenda contends Chuck is less than a perfect parent. She claims Chuck drives the children around without car seats or seat belts, and that Chuck on one occasion was convicted of DWI. Please answer the following:

III-A. Specifically, Chuck was stopped and ticketed in February 1995 by Officer Sam Jackson for allowing Brad, age 7, to ride without a seat belt and Bobbie, then age 4, without a car seat. At trial in City Court, Chuck 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 Jackson 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 Jackson be allowed to testify as to the facts of the incident? Discuss.

III-B. On another occasion, only five months ago, Chuck was arrested for DWI. He 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. Chuck has witnesses, too. If allowed to testify, a nosey neighbor, Granny Gabber, will testify that in her opinion Chuck is an ideal parent and your client, Brenda, is the neighborhood liar. May she so testify? Discuss.

QUESTION IV

10 per cent of test

Before Chuck moved out on Christmas Day 1994, Brenda noticed he had been coming home late every night smelling of alcohol and perfume. So Brenda went to her friendly Radio Shack and purchased a cassette recorder and a telephone recorder connector of the type that automatically turns the cassette recorder on for the duration of the call whenever the line is used. Brenda 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, 1994 while the two were still living together a call in which Chuck told his girlfriend, Flo Flooze: "That sure was good last night. I hope your birth control is working."

After Chuck moved out, Brenda continued recording all conversations. A full week after Chuck moved out, the recorder captured a conversation between Chuck and Brenda on December 31, 1994, in which Chuck told her: "Brenda, I went to bed with Flo. I'm so sorry."

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

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