Evidence
Summer 2001
Judge James

EXAM INSTRUCTIONS

Please be absolutely sure to fill in your ID number on both the exam book and the Scan-Tron and RETURN ALL TEST MATERIALS TO THE PROCTOR.

This is a closed book exam consisting of 20 Pages.

-- Part I consists of an essay worth 35 points. You should take one hour and 15 minutes to complete Part I.

-- Part II consists of an essay worth 25 points. You should take 45 minutes to complete Part II.

-- Part III consists of 40 multiple choice and true/false questions worth 40 points. You should take one hour to complete part III.

Please write your essay answers to Part I and Part II in a separate exam book.

Use the Scan-Tron answer sheet for all the questions in Part III.

For true/false questions, mark "A" to indicate that the statement is "true"; mark "B" to indicate that the statement is "false."

TURN THE PAGE AND BEGIN EXAM WHEN PROCTOR INDICATES, ONLY.

PART I (35 points, 75 minutes)

Plaintiff, Annie Bond, claims she developed stomach cancer by consuming Xanadite, an ingredient in a microwave pizza sold by Brandon's Cheese Pizza (BCP), the defendant manufacturer. Annie seeks civil damages claiming that Xanadite is extremely dangerous. Annie also seeks punitive damages against BCP. She alleges that BCP had knowledge that the pizza contained a dangerous ingredient, Xanadite, and continued to sell it for years after they knew Xanadite caused cancer in laboratory rats. Discuss whether Annie may introduce the following items of evidence in her case in chief:

1. A letter from Tom Owen, a scientist who teaches at Turk University, dated January 10, 1997, found in BCP's company files. In the letter, Tom states that he was doing some research on food poisoning, discovered that Xanadite is very dangerous in microwave pizza, and asked to be hired by the company to do further research about it.

2. A memorandum written by Brandon Dicks, the company's president, to Matthew O'Connor, the company's chief scientist. The memorandum states that Brandon wanted Matthew to start work immediately on a new formula for the company's pizza that would replace the Xanadite with another ingredient because the Xanadite is extremely dangerous. In the memorandum, Brandon also indicated that he was intending to phase out the Xanadite, "no later than July 1998."

3. A journal (all scientist are required by the FDA to keep a record of ingredients used in food products) containing the ingredients and some handwritten notes of Matthew O' Connor, the company's chief scientist. In the handwritten notes(dated after the filing of Annie's lawsuit), O'Connor explains that he had tested the Xanadite and was replacing it with Teralite which did not have the same controversial properties as Xanadite.

4. A note written to Newton Issac, the company's chief of public relations, with an attached copy of a scientific article. The note states: "The attached article says that Xanadite is dangerous in foods. We use it to microwave pizza. This shows we've been selling something dangerous."

5. Testimony by Kay Wilson that her friend, Arla Barla, a worker in BCP's warehouse, once said to Wilson, "If you ever get a job here, be sure you don't get assigned to handling Xanadite. The stuff is unbelievably dangerous. Most of the people who work with it lose their hair and get rashes. See this bald spot!"

6. Testimony by Joseph Lamb that in June of 1998, while he was waiting outside Brandon's office, he overheard a heated conversation and saw an unidentified woman storm out of Brandon's office looking, "angry and crazy"; and saw her throw a box of Xanadite into a trash can and say to someone in Brandon's office, "We will be sued for this garbage!"

7. A statement by Annie that Connie Ferrow, a nurse in a cancer ward and her long time friend, after seeing Annie in the hospital with no hair said, "Oh my God, you've got Xanadite poisoning."

PART II (25 points, 45 minutes)

In January 2000, Jane Kelly, a fifteen year old girl, accompanied her family on a cruise from Los Angeles, California to Ensenada, Mexico. On the second day of the cruise, Jane Kelly and her family and friends noticed that Jeremy Tripp, a forty one year old man, was staring at her.

Jeremy appeared to be following Jane Kelly on several occasions when she disembarked from the ship to go shopping with her family and friends. Tripp also initiated several conversations with Jane Kelly while she was alone or without her parents. He told her he was a clothing designer and a model scout. He asked her what type of clothes she liked because he had just developed a new line of sportswear.

On the last day of the cruise, Tripp stopped Jane Kelly outside his cabin and told her he had just finished drawing his designs, and asked her if she wanted to see them. Jane Kelly declined. Later that day he gave Jane copies of his drawings of sport's clothing, which used her face as the model. He also gave her his business card. The business card had a note written on the back saying, " I just want to be friends. I want you to model my sportswear line. Maybe we can go out in 5 or 7 years." That evening at the final dinner for the cruise, Tripp gave Jane Kelly a note written on a napkin saying, "please be careful with your woman powers-you are incredibly beautiful," and, "I choose you".

Tripp is now charged with violating 18 U.S.C. §13, assimilating California Penal Code §647.6(a) "annoying and molesting a minor under the age of 18." The elements of the offense are:

1. That the defendant engaged in acts or conduct, directed at a minor under the age of 18 years, that would unhesitatingly disturb or irritate a normal person if directed at that person.

2. The acts or conduct were motivated by an unnatural or abnormal sexual interest in the alleged minor victim.

Discuss all of the issues in favor and against the introduction of the following evidence:

1. The government seeks to introduce the fact that Tripp was arrested in 1990 and charged with a misdemeanor, for masturbating in front of a 17-year old girl who was working as a recreation director on a cruise ship to Alaska. He was convicted of the charge in a trial six months later.

2. The government seeks to introduce testimony by Myrtle, the woman who owns the business next door to Tripp, who will testify that Tripp has a reputation for being attracted to underage girls (given the number of underage girls coming and going from his office). She will testify that every time he was near a young woman he would run up and give him his card, trying lure them into his office. She will also testify that she once saw him kissing and groping an "obviously underage girl," in the street outside his office.

3. The government seeks to introduce both the business card and the napkin as evidence of the crime. (The business card had a note written on the back saying, " I just want to be friends. I want you to model my sportswear line. Maybe we can go out in 5 or 7 years."  The note written on the napkin said, "please be careful with your woman powers-you are incredibly beautiful," and, "I choose you").

4. The government seeks to introduce the testimony of the waiter at Tripp's table at the final dinner of the cruise. The waiter will testify that Tripp was very intoxicated that night and repeatedly said, "Why doesn't she love me? I love her!"

5. The government seeks to introduce the testimony of a fellow passenger on the cruise who will testify that he noticed that Tripp seemed to be following and staring at Jane Kelly.