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.
|Relevant question: When did she admit the adultery to Fred?||
6 points ________
|Were they married on date of communication?||
6 points ________
|If during the marriage, the spousal communication privilege applies||6 points ________|
|Privilege belongs to both spouses||6 points ________|
|Privilege survives divorce||6 points ________|
|Spousal witness privilege inapplicable in non-criminal cases||6 points ________|
I-B. In January 1995, Chuck and Brenda went to a psychologist for marriage counselling. In a joint session, Chuck admitted to Dr. Phroide in Brenda's presence that he had committed adultery with Flo. You wish to call Dr. Phroide, but his attorney will claim privilege. Can you force Phroide to testify? Discuss.
|No spousal communication privilege in a divorce||6 points ________|
|Was privilege waived by discussion being in presence of husband?||6 points ________|
|Or does medical joint-therapy privilege override to prevent disclosure?||6 points ________|
|Discussion of policy considerations||6 points ________|
I-C. A bartender tells you a woman is furious with you. "Just cuz I was ballin' this jerk Chuck Churner, some lawyer makes me go to court." From the description, it is obviously Flo Flooze. You want to use her statement to the bartender. Discuss specifically how if at all you can use the statement at trial.
|Not an excited utterance||6 points ________|
|Flo should be brought to court and should testify||6 points ________|
|If Flo testifies differently, she may be impeached with her statement||6 points ________|
|Either by asking her about the statement||6 points ________|
|Or by calling the bartender as a witness||6 points ________|
|If Flo unavailable, her is a statement against interest||6 points ________|
|Discussion of pecuniary versus penal interest||6 points ________|
|Need for corroboration if against only penal interest||6 points ________|
I-D. In 1991, Chuck committed adultery with Passionada. Chuck admitted the adultery in a letter to Brenda, and Brenda forgave him. Brenda wishes to use the letter. Can she? How? Discuss.
|Evidence of other "crimes" generaly inadmissible||6 points ________|
|Except to show system, intent and plan||6 points ________|
|In this case, evidence will probably be admitted||6 points ________|
I-E. In 1992, Chuck subscribed to Centerfold Girls, the subscription coming to his office. In 1993, he entertained a client, Bill Dittser, at The Topless Club. Brenda wishes to use these incidents as part of her adultery evidence. May she? Discuss.
|The evidence is irrelevant to any issue in the case||6 points ________|
|Probative value is outweighed by danger of prejudice and confusion||6 points ________|
Chuck's stock in the firm is community and will need to be valued. Percival Pennypincher, CPA, Chuck's accountant for years, will testify that the stock is worthless. He bases this conclusion on the "book value" method of appraisal, which most accountants reject as inadequate.
II-A. May Percival Pennypincher testify as to the value of the business using th "book value" method of appraisal? Discuss.
|Pennypincher will qualify as an expert||12 points ________|
|Since Daubert, basis of expert's opinion need not be generally accepted||12 points ________|
|Court must perform a balancing test||12 points ________|
|General acceptability is only one factor now||12 points ________|
|Pennypincher may testify||12 points ________|
|Opposition may discredit Pennypincher through other testimony||12 points ________|
II-B. You found an article in the Journal of Accountancy entitled "How to Evaluate a Commodities Brokerage Business." You wish to use it to impeach Mr. Pennypincher. Can you? Explain in detail how if at all you might be allowed to do so. Discuss.
|Article is a learned treatise||12 points ________|
|Pennypincher must identify it as reliable authority||12 points ________|
|Either in court or on deposition||12 points ________|
|Or the court may take judicial notice that it is reliable authority||12 points ________|
|Which in this case is unlikely||12 points ________|
|Or counsel must have another expert testify to article's reliability||12 points ________|
III. On the custody issue, Brenda complains of Chuck's driving.
III-A. Specifically, Chuck was ticketed in 1995 by Officer Sam Jackson for allowing Brad to ride without a seat belt and Bobbie without a car seat. Chuck was found not guilty in city court.
III-A-I. May you introduce either the police report or a certified copy of the court record in any way? Discuss.
|The police report is inadmissible as an investigative report||6 points ________|
|Record of arrest and not guilty verdict is inadmissible for impeachment||6 points ________|
|Officer must be called to testify in court as to the facts of the arrest||6 points ________|
|If officer testifies differently, report may be used to impeach him||6 points ________|
III-A-2. When you call Officer Jackson as a witness, his memory lapses and he remembers nothing. Explain in detail how you will deal with this. If the 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.
|If he fails to remember, his present memory may be refreshed||6 points ________|
|Report is shown to him, read by him, and then handed back||6 points ________|
|If he still fails to remember, use report as past recollection recorded||6 points ________|
|Must show that the report was made or adopted when fresh in memory||6 points ________|
|And that the report reflects that knowledge correctly||6 points ________|
|Read into evidence but not taken to jury room||6 points ________|
III-A-3. Will Officer Jackson be allowed to testify as to the facts of the incident? Discuss.
|Yes||6 points ________|
|Parenting behavior is an issue in a child custody case||6 points ________|
|The failure to buckle up is relevant and not merely used for impeachment||6 points ________|
|Failure to convict in traffic court is irrelevant for this purpose||6 points ________|
|Test there is guilt beyond a reasonable doubt; test here is mere preponderance||6 points ________|
III-B. Only five months ago, Chuck was convicted of DWI. Assume this is relevant (as indeed it surely is in a child custody case). How exactly do you intend to prove the conviction? Discuss.
|Ask Chuck about it||6 points ________|
|Offer into evidence a certified copy of the judgment of conviction||6 points ________|
|Document is self-proving||6 points ________|
|There may be a question as to identity (is this the same Chuck Churner?)||6 points ________|
|In such case, officer still may be needed to identify Churner as defendant||6 points ________|
III-C. Chuck has witnesses, too. If allowed to testify, a nosy 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.
|Her lay opinion is probably admissible as to his parenting||6 points ________|
|Can she give a basis for her lay opinion?||6 points ________|
|Opinion testimony as to character is not admissible in Louisiana||6 points ________|
|Witness's opinion as to character will not get in||6 points ________|
|Only reputation in community is ever admissible in Louisiana||6 points ________|
|Correct way is to ask, "Are you familiar with the reputation of . . . ."||6 points ________|
|Since character is issue in custody case, proper evidence will be admitted||6 points ________|
Before Chuck moved out Christmas 1994, Brenda noticed alcohol and perfume. So Brenda recorded all calls made or received from any phone in the house. One conversation was captured while the two were still living together -- in which Chuck told Flo Flooze: "That sure was good last night." After Chuck moved out, Brenda 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?
|Call between Chuck and Flo was illegally taped||6 points ________|
|The first tape is inadmissible||6 points ________|
|Call between Brenda and Chuck was legally made with Brenda's consent||6 points ________|
|The second tape is admissible||6 points ________|
|Chuck's statement is an admission of a party||6 points ________|
|And, if he testifies, a witness's admission against interest||6 points ________|
|And if he denies adultery, it is a prior inconsistent statement||6 points ________|
|Brenda must identify the tape||6 points ________|
|Offer it into evidence||6 points ________|
|And then play it||6 points ________|
|Bonus for practical pointers on the taping of conversations||6 points ________|
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