EVIDENCE
Grading Key, Fall 2004
QUESTION I
138 points
I. Your evidence on adultery includes the following:
I-A. Britney's boyfriend, 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.
| Relevant question: When did he admit the adultery to
Gloria? |
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 2004, Britney and Bubba went to a psychologist for marriage counselling. In a joint session, Britney admitted to Dr. Phroide in Bubba's presence that he had committed adultery with Tex. 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 man is furious with you. "Just cuz I was ballin' this geek Britney Breathless, some lawyer makes me go to court." From the description, it is obviously Tex Looselips.
You want to use his statement to the bartender. Discuss specifically how if at all you can use the statement at trial.
| Not an excited utterance |
6 points ________ |
| Tex should be brought to court and should testify |
6 points ________ |
| If Tex testifies differently, he may be impeached with his statement |
6 points ________ |
| Either by asking him about the statement |
6 points ________ |
| |
|
| Or by calling the bartender as a witness |
6 points ________ |
| If Tex unavailable, his 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 2002, Britney committed adultery with
Ricky Redneck. Britney admitted the adultery in a letter to Bubba, and Bubba forgave her. Bubba wishes to use the letter. Can he? How? Discuss.
| Evidence of other "crimes" generally 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 2002, Britney subscribed to Hot
Male Sex, the subscription coming to her office. She also entertained
a client, Buffy Bedford, at La Bare's. Bubba wishes to use these incidents
as part of his adultery evidence. May he? 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 ________ |
QUESTION II
144 points
Britney's stock in the firm is community and will need to be valued. Bob Beancounter, CPA, Britney'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 Bob Beancounter testify as to the value of the business using the "book value" method of appraisal? Discuss.
| Beancounter 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 ________ |
| Beancounter may testify |
12 points ________ |
| Opposition may discredit Beancounter 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. Beancounter. Can you? Explain in detail how if at all you
might be allowed to do so. Discuss.
| Article is a learned treatise |
12 points ________ |
| Beancounter 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 ________ |
QUESTION III
162 points
III. On the custody issue, Bubba complains of Britney's driving.
III-A. Specifically, Britney was ticketed in 2001 by Officer Jarred
Jefferson for allowing Susie to ride without a seat belt and Sam without a car seat. Britney was found not guilty in city court.
III-A-1. 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 Jefferson 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 Jefferson 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, Britney 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 Britney 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 Britney Breathless?) |
6 points ________ |
| In such case, officer still may be needed to identify Britney as defendant |
6 points ________ |
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.
| 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 ________ |
QUESTION IV
66 points
Before Britney moved out Christmas 2003, Bubba noticed alcohol and perfume. So Bubba 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 Britney told
Tex: "That sure was good last night." After Britney moved out, Bubba captured a conversation between Britney and Bubba on December 31, 2003, in which Britney told her: "Bubba, I went to bed with
Tex. I'm so sorry." You want to introduce both tapes
into evidence. Can you? How?
| Call between Britney and Tex was illegally taped |
6 points ________ |
| The first tape is inadmissible |
6 points ________ |
| Call between Bubba and Britney was legally made with Bubba's consent |
6 points ________ |
| The second tape is admissible |
6 points ________ |
| |
|
| Britney's statement is an admission of a party |
6 points ________ |
| And, if she testifies, a witness's admission against interest |
6 points ________ |
| And if she denies adultery, it is a prior inconsistent statement |
6 points ________ |
| |
|
| Bubba 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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