EVIDENCE
SUMMER 2003
JUDGE MARIA-ELENA JAMES
EXAM INSTRUCTIONS
1. This is a three-hour examination. This is a closed book test consisting of 18 pages.
2. Write your Exam number on your exam envelope, at the top of all exam materials. Do not use your name, student ID number, or Social Security Number on any exam materials.
3. There are two parts to this exam:
GOOD LUCK!!!
PART II Essay (50pts, 90 min)
Case Overview
Avelino and Lydia were a married couple with three children having marital problems. Despite alleged incidents of physical abuse and child molestation Lydia kept re-uniting with Avelino. During their periods of separation, Avelino would harass, stalk, and at times sexually assault Lydia until she returned. Lydia left her home on numerous occasions due to physical and sexual abuse inflicted onto her and the children.
Lydia sought refugee in a women's shelter in Ukiah and filed a formal report against Avelino. She was told to keep the children away from Avelino and a temporary restraining order was issued. Avelino continued to harass and threaten Lydia, her children, and her family. He further threatened to have her deported to Mexico.
Lydia returned home to Avelino with her children. Avelino threatened that Child Protective Services would remove the children from the home because she violated the restraining order. Lydia's mother, Sara, came from Mexico to help. The women caused Avelino to leave the home. While outside the home, his behavior increased in intensity and frequency until he murdered Lydia, shot Sara, and then turned the gun on himself. Sara and Avelino survived.
Avelino is being prosecuted for the murder of Lydia. The prosecution attempts to offer the following evidence at the Murder trial. Identify and discuss all arguments for and against the prosecution in admitting the evidence:
1. A tape recording of a 911 call in December 2000 by a neighbor who stated “that jerk Avelino is beating his woman again.” Detective John Edwards responded to the call. As he arrived at the residence, Lydia came running out of the house screaming “he's going to kill me.” Officer Edwards will testify that he asked, “Who beat you like that?” and she pointed at Avelino. Edwards testified that she appeared “hysterical.” He also saw multiple injuries to the victim's forehead, eye, cheek, lips, and neck. Lydia refused to press charges against Avelino. As a result, he was released.
2. That Avelino pled nolo contendre in 1992 for felony Assault and Battery on his ex-girlfriend Lucia. His probation was revoked in 1995 when he broke into her home and sexually assaulted her. Testimony of Lucia as to the details of the assault and that Lydia had a reputation for being “docile and sweet” among their friends.
3. Testimony of Sara that Lydia kept a diary. The prosecution attempts to offer several photocopied pages from the diary into evidence. Although Sara could not remember the specific dates, she was often asked to write out a description of many of Avelino's assaults on Lydia, who was often too shaken to write them herself. She will testify that Lydia told her to take the Diary to the police if anything should happen to her. One entry contains a handwritten note dated the day of the murder saying “I' am going to see Avelino and tell him that I am in love with Paul, so he will leave us alone.”
4. Testimony by Dr. Janis Blake, the treating Psychologist of the couple's child, six-year-old Amelia, who is unable to testify. Dr. Blake would testify that after putting the child under hypnosis, the child recalled seeing her father breaking into her mother's home and stabbing her mother on the day in question. She also recalled that her father had been molesting her for two years. In Dr. Blake's opinion, the child is telling the truth because he confronted Avelino with the accusation during a joint counseling session with Amelia and the defendant just stared angrily at Amelia.
5. Testimony by a Lisa Traun, a juror who sat on the jury during Avelino's trial for Lucia's assault, declaring that during the trial the defendant approached her at a bar and said “I will get you if things don't go my way.” Traun will also disclose that during deliberations all the jurors who live in the defendant's neighborhood talked about how Avelino is known around town as a dangerous man and told her she should not report the threat.
END OF EXAM