RESTRICTED--TO GET A PASSING GRADE, YOU MUST HAND IN THE

QUESTIONS ALONG WITH YOUR ANSWERS!

EVIDENCE: THE SEQUEL

Prof. Friedman

Tuesday, May 10, 1988, 9 - 11:30 a.m.

You will be given several minutes to read these instructions. You will then have two and one-half hours to complete the exam. The exam is budgeted for two hours, and you will have time to check over your answers -- if you stick to the time guidelines. (Yes, that is a tautology, but don't ignore it.)

This is an open-book exam. You may have with you any materials you wish. You should have the Federal Rules of Evidence with you. But don't spend very much time with your books!

There are two parts to the exam, each graded for 60 points. Part I consists of 20 multiple choice questions, each graded for three points. There is no penalty for an incorrect answer. Unless otherwise noted, the questions in Part I are set in a jurisdiction that applies the Federal Rules of Evidence and of Civil and Criminal Procedure. For each question, mark down on the first page of your first bluebook (or, if you are typing, on the first sheet of your answers) the best answer of the four or five choices given. Do not include any part of your answers to Part II on the sheet on which you answer Part I. If two answers are accurate but one is more informative, the more informative one is better. Assume unless otherwise stated that any trial is before a jury. Make sure there is one, and only one, clearly legible letter marked for each question. When you finish Part I, you may go onto Part II without delay.

The number of points allocated to each question in Part II represents the approximate number of minutes you should spend on that question. I am serious about these guidelines: Some of the questions could evoke long essays, but I am seeking very brief ones. There is no formal space limit in this Part, but please bear in mind the following: Perception and understanding of issues, crisp and organized expression, a sense of proportion, and sound, imaginative analysis will be rewarded. Excess verbiage and none-responsive statements will hurt your grade. Assume throughout that your reader is familiar with the facts of each problem and with the law of evidence, but that he has not thought through the application of the law to these facts.

BE LEGIBLE -- if I can't read it, I won't! Please begin each answer in Part II on a separate page.

The questions in Part II are set in the State of Confusion, a new state that has not yet adopted an evidence code and that treats all sources of American evidentiary law as persuasive authority.

GOOD LUCK!

II.

(60 points)

MAKE SURE YOU HAVE READ THE INSTRUCTIONS GOVERNING THIS PART!

21. (7 points)

Should the jurisdiction adopt a parent-child testimonial privilege? State very briefly why or why not. Then, on the assumption that the jurisdiction does adopt such a privilege, state very briefly what the bounds of such a privilege should be.

22. (8 points)

"To the extent the rules of evidence are meant to improve the truth-determining ability of our adjudicative system, they should be very flexible. To the extent the rules are meant to influence outside behavior, they should be quite clear, even rigid." To what extent do you agree or disagree? Explain in a very brief essay, illustrating with specific topics covered in this course.

23. (10 points)

A problem adapted from Judge Hillman's materials: Durgin is accused of assault with a deadly weapon -- to wit, a pistol, which he allegedly pointed at police officers, while they were trying to arrest him. The prosecution offers as part of its case-in-chief the following evidence: (a) The testimony of Garber, a grocer, that Durgin was drunk and disorderly in her store, and that she called the police to ask them to arrest him; (b) Durgin's record of two felony convictions for armed robbery, one for a mugging and one for the holdup of a hardware store; (c) Proof that an arrest warrant was outstanding for Durgin, for bank robbery. What arguments can be offered by the prosecution for the admission of each of these? How likely will they prevail?

24. (15 points)

Dean is on trial for raping Valerie, a piano teacher. Dean's counsel has asserted in his opening statement that the evidence will show that Dean never had any sexual contact with Valerie. According to Valerie's testimony, after she had dinner with Dean one night, they went back to her apartment, and there he raped her. Valerie testifies that as a result of the rape she became pregnant, and soon after underwent an abortion.

The defense wishes to ask Valerie on cross-examination to acknowledge that, for a period of three months, ending just two days before her dinner with Dean, she maintained a sexual relationship during scheduled lesson times with one of her students, a 16 year-old boy named Wallace Wexler. If the defense is allowed to pursue this line and Valerie denies the relationship, the defense wishes to put Wexler on the stand to testify that they did have such a relationship. As a clerk to the trial judge, state very briefly the arguments you would expect each side to make with respect to these items of evidence, and advise the judge how to rule. If you believe that to rule appropriately the judge needs more facts, indicate specifically what they are.

25. (5 points)

Devlin is testifying in his own defense in a trial for armed robbery. The prosecution seeks to prove that eight years ago Devlin pleaded guilty to a charge of armed robbery. Because that offense was his first one, he received a relatively light sentence of nine months imprisonment. Discuss, in a very brief essay, whether the prosecution should be able to ask Devlin about this conviction, and whether, assuming they are allowed to ask him about it but he denies it, the prosecutor may introduce an official record of the conviction. Disregard any hearsay problem.

26. (5 points)

In the Sacco-Vanzetti trial, on p. 131 of the edited version of the transcript used in class, Katzmann asked Guadenagi, "Are you a member of the [Sacco-Vanzetti] Defense Committee?" Was this a proper question? Suppose that Katzmann, instead of asking this question of Guadenagi, waited until rebuttal, one month after Guadenagi had testified, and then asked a witness of his own, Mazzilli, questions designed to elicit that Guadenagi was a member of the Defense Committee. Would that be proper? If you need more facts to help you answer, indicate what they are.

27. (10 points)

Recall Capt. Van Amburgh, one of the ballistics experts for the Sacco-Vanzetti prosecution, p. 65 et seq. Assume the following:[*] In another murder case, in Bridgeport, Conn., Van Amburgh gave a definite opinion that the fatal bullet had come from the suspect's weapon. Six other experts disagreed, however. The prosecuting attorney, after reviewing with Van Amburgh the pictures by which Van Amburgh had compared the marks on a test bullet to those on the murder bullet, decided that the comparison was inexact. Charges against the suspect were not brought. The defense learns this information while Van Amburgh is testifying on direct. To what extent can it use the information, and how?

[*] * For curiosity's sake only: The facts apparently were as stated here, or reasonably close, except that the other case occurred after the Sacco-Vanzetti trial (but before the executions).