EVIDENCE FINAL EXAM

Summer 1999

PROFESSOR JEFF BROWN


This is a closed book exam. Total time is three hours. The exam consists of 2 essay questions. I recommend you spend 1.5 hours on each essay question. You are free to allocate your time as you wish. Each question is of equal weight. Answer each question in the blue book(s). Be sure to write your exam number on your blue book (s) and on the exam questions. Turn in all questions, scratch paper and blue book(s) after the conclusion of the exam.

QUESTION 1

( 1 1/2 hours , 50%)

Bates is a recently released felon with a record of two robbery convictions. He conceives of a plan to heist delivery trucks and sell "hot" merchandise. He attempts to recruit Fink, but Fink declines. However, in three successive weeks Bates and three others, Cabot, Davis and Williams hold up ten large trucks and take their merchandise. One driver is beaten to near death.

After several heists, Bates contacts Zeeland and sells large amounts of supplies of retail able goods at below-market prices. Zeeland had done business with Bates on the same basis before Bates' last prison term.

After the robberies, Fink informs police of Bates' previous offer. The police go to the driver with a photo spread, and he makes an identification of Bates and the one who pistolwhipped him. A valid warrant is obtained for electronic surveillance of his house. The following conversation is picked up:


 Arrests are made afterwards, and Williams cooperates with the police. He tells them that Bates, Cabot and Davis engaged in a plan to knock-off night time drivers at various sleeping points on a random basis. He was the driver. Williams tells police that the goods were sold to Zeeland.

Bates, Cabot, Davis and Williams are all charged with ten counts of robbery and one count of assault with a deadly weapon on the driver.
 The prosecution will produce Fink. The injured driver is too critical to testify. However, his hospital records are available and they indicate the cause and nature of the injuries and a videotape exists of his identification. The police inspector who monitored the electronic surveillance and took Williams' statement died, leaving a police report recounting the statement.  Cabot, Davis and Williams decline to testify. Bates may testify but seeks an in limine ruling on his priors before trial.  Discuss the evidence that can be introduced against them individually or collectively, and the possible objections and rulings thereto. The rules of evidence are identical to federal rules.

Zeeland is tried separately. The police will attempt to call Williams if he convicted in his own trial, but Williams now has decided not to cooperate and will deny he knows of Bates' sales to Zeeland. Discuss the possible evidence against him, and the objections and rulings thereto.

 

 

QUESTION 2

1 1/2 hours, 50 %


Prescott is an employee of James Co., a legal services firm. She quits in October and goes to work for Hite another legal service firm in December, but quits again in March.

In April, her attorney sends a letter to Day, the James Co. president, alleging that he engaged in multiple acts of sexual harassment against her which caused her to leave and give up a promising career. The alleged acts included unwanted touching, offers of intimacy, graphic discussion of sexual matters and off-color jokes.

After reviewing the letter, Day's investigator determines that Prescott made three other complaints against former employers, including against the president of Hite. The president of Hite told the investigator that she complained falsely about his off-color jokes, but he settled for a few thousand dollars. Another employer complained that she alleged groping by an employee, who denied her charge. In addition, the investigator ascertains that several liens have been filed against her house for unpaid bills ranging between $50 to several thousand dollars. A former friend revealed to the investigator that Prescott's live-in boyfriend told her (the friend) a week before the letter to Day "we're going to have to shake a big tree to stay afloat." Finally, it is ascertained that Prescott was hospitalized three years ago for a psychiatric disorder.

Prescott's investigator, however, learns that Day pled guilty to soliciting a prostitute two years ago, that he told an off-color joke a year ago at a woman's luncheon group, that he attempted to fondle a female at last year's Christmas party. Moreover, they obtained from an unknown source a confidential memo from law firm retained by the Board of Directors last November warning them that Day's attitude toward female employee could create legal problems. The memo contained summaries of interviews with subordinates employees, it was forwarded by the Board to Day with a note: "FYI." A month later the Board required all employees to attend a session on sexual harassment. In addition Prescott told a James employee before leaving: "I can't stay with what Day has done to me."

Prescott's attorney to Day concluded: "we don't have to make a big deal out of this. We hope you can discuss this and resolve it informally." Unfortunately, litigation commenced against Day and James Corp. in state court where rules of evidence are identical to the federal rules. Day seeks damages in excess of a hundred-thousand dollars. A statute allows a presumption of hostile work environment if pleadings allege specific acts of sexual harassment.

Assume that all witnesses are available. Discuss the admissibility of the evidence, the ability to impeach and the effect of any evidentiary presumption.