BASIC EVIDENCE
HYPOTHETICALS - I
For
STATE v. RAUSCH
I. JURY INSTRUCTIONS OR ANNOTATED DEFINITIONS FOR FIRST DEGREE
MURDER, JUSTIFICATION, RAPE, AND WRONGFUL DEATH.
AMCI ("Matters in Consequence")
o First Degree Murder
Merle Rausch is charged with the offense of murder in the first degree. To sustain this charge, the state must prove [the following things] beyond a reasonable doubt]:
? That Merle Rausch acting alone committed murder in the first degree.
? That with the purpose of causing the death of William Jones caused his death.
Definitions
"Purpose" - a person acts with purpose with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.
o Justification
Merle Rausch asserts as a defense to the charge of first degree murder that deadly physical force was necessary to defend himself. This is a defense only:
Merle Rausch asserts as a defense to the charge of first degree murder that deadly physical force was necessary to defend himself. This is a defense only if:
First: Merle Rausch reasonably believed that William Jones was about to use unlawful deadly physical force.
AND
Second: Merle Rausch only used such force as he reasonably believed to be necessary.
[A person is not justified in using deadly physical force if he knows that the use of deadly physical force can be avoided with complete safety].
• (by retreating). (However, he is not required to retreat if he is [in his dwelling and was not the original aggressor] [a law enforcement officer acting in the line of duty] [assisting at the direction of a law enforcement officer].
• [by surrendering possession of property to a person who claims a lawful right to it].
Merle Rausch, in asserting this defense is required only to raise a reasonable doubt in your minds. Consequently, if you believe that this defense has been shown to exist, or if the evidence leaves you with a reasonable doubt as to his guilt of first degree murder, then you must find him not guilty.
Definitions
"Reasonably believes" or "reasonable belief" means the belief that an ordinary, prudent man would form under the circumstances in question and one not recklessly or negligently formed.
"Deadly physical force" means physical force that under the circumstances in which it is used is readily capable of causing death or serious physical injury.
"Unlawful physical force" means physical force that is employed without the consent of the person against whom it is directed and the employment of which constitutes a criminal offense or tort or would constitute such an offense or tort except for a defense other than the defense of justification or privilege.
"Physical force" means any bodily impact, restraint, or confinement, or threat thereof.
AMCI
RAPE
______is charged with the offense of rape. To sustain this charge the state must prove the following things beyond a reasonable doubt:
First: That ______(defendant) engaged in sexual intercourse with ______(victim); and
Second: That he did so by forcible compulsion.
That ______(victim) was incapable of consent because she was physically helpless.
Definitions
"Sexual intercourse" means the penetration, however, slight, of the labia majora by a penis.
"Forcible compulsion" means physical force, or a threat, express or implied, of death or serious physical injury to, or kidnaping of, any person.
"Physically helpless" means that a person is unconscious or is physically unable to communicate lack of consent.
• Wrongful Death
16-62-102 - Wrongful Death Actions – Survival
(a)(1) - Whenever the death of a person shall be caused by a wrongful act, neglect, or default and the act, neglect, or default is such as would have entitled the party injured to maintain an action and recover damages in respect thereof, if death had not ensued, then, and in every such case, the person who, or company, or corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death may have been caused under such circumstances as amount in law to a felony.
(2) - The cause of action created in this subsection shall survive the death of the person wrongfully causing the death of another and may be brought, maintained, or revived against the personal representatives of the person wrongfully causing the death of another.
(b) - Every action shall be brought by and in the name of the personal representative of the deceased person. If there is no personal representative, then the action shall be brought by the heirs at law of the deceased person.
(c)(1) - Every action authorized by this section shall be commenced within three (3) years after the death of the person alleged to have been wrongfully killed.
(2) - If a nonsuit is suffered, the action shall be brought within one (1) year from the date of the nonsuit without regard to the date of the death of the person alleged to have been wrongfully killed.
(d) - The beneficiaries of the action created in this section are the surviving spouse,
children, father and mother, brothers and sisters of the deceased person, persons standing in loco parentis to the deceased person, and persons to whom the deceased stood in loco parentis.
(e) - No part of any recovery referred to in this section shall be subject to the debts of the deceased or become, in any way, a part of the assets of the estate of the deceased person.
(f)(1) - The jury, or the court in cases tried without a jury, may fix such damages as will be fair and just compensation for pecuniary injuries, including a spouse's loss of the services and companionship of a deceased spouse and any mental anguish resulting from the death to the surviving spouse and beneficiaries of the deceased person.
(2) - When mental anguish is claimed as a measure of damages under this section, mental anguish will include grief normally associated with the loss of a loved one.
(g) - The judge of the court in which the claim or cause of action for wrongful death is tried or is submitted for approval of a compromise settlement, by judgment or order and upon the evidence presented during trial or in connection with any submission for approval of a compromise settlement, shall fix the share of each beneficiary, and distribution shall be made accordingly. However, in any action for wrongful death submitted to a jury, the jury shall make the apportionment at the request of any beneficiary or party.
(h) - Nothing in this section shall limit or affect the right of probate courts having jurisdiction to approve or authorize settlement of claims or causes of action for wrongful death, but the probate courts shall consider the best interests of all the beneficiaries under this section and not merely the best interest of the widow and next of kin as now provided by 28-49-104.
HYPOTHETICAL - II
Based on Murder, etc.
II.PROBLEMS BASED ON MURDER, WRONGFUL DEATH, AND RAPE CASES
A. [The Murder Case]
1(a) At the scene of the shooting the first investigating officers discovers:
• a paint brush spattered with blood
• a 38 caliber pistol
• a torn poster of Donny Osmond
• the victim's wedding ring lying loosely on the ground near the victim's body.
• the victim's driver's license held tightly in the victim's hand.
• a photograph of the scene without the body in it.
• a cassette tape of men shooting guns (among 60 tapes of musicals).
• a long time acquaintance, John Shipp, of Merle Rausch will testify that Rausch confided in him the night after the killing "you know, Shipp, to be honest, I've had some dreams of killing him."
• To show that he had a legitimate fear of Jones, Rausch is prepared to testify that he had heard
before the killing that Jones had killed an old man, Mooney, in another town. The prosecutor
plans to offer rebuttal testimony that Mooney is, in fact, alive.
• A map of the street where the shooting occurred.
1(b) Testimony of a witness, Douglas Spear.
Mr. Spear will testify that he saw the deceased (William Jones) severely beat a
man (about the head and ______) after the two men had argued over a debt the
injured men purportedly owed Jones.
1(c) Testimony by a patron (John Buckles) of the tavern.
Mr. Buckles will testify that he recognized the Defendant-Rausch because he
had seen an talked to Rausch at several other bars in the past six weeks.
(2) [The Murder Case]
Direct versus Circumstantial Evidence
- neighbor saw Rausch shoot Jones
- patrons saw Rausch running away from victim after the shooting.
- gun found near victim registered to Rausch.
- neighbor saw Rausch drop the gun immediately after he heard the shot.
- gun found near victim has Rausch fingerprints on it.
(3) [The Murder Case]
Questions of Admissibility, Rule 104(a), Pages 9-12 of the Supplement
During a lawful search of Rausch's house the police claimed to have found a diary written by Rausch. In this diary Rausch described how he planned to kill Jones. Rausch objects to the introduction of this diary claiming it is a fake.
The prosecutor is prepared to produce six witnesses (all old derelicts who live under a train trestle a block from Dickson Street) who will testify that they heard on the street that Rausch kept such a diary. May a judge consider this testimony when determining the admissibility of the diary?
(4) Question of Admissibility, Rule 104(b) and 103(a)(2)
The investigating officer found a gun with no prints on them near the victim's (Jones) body. At trial, the prosecutor offers into evidence a pair of thin black gloves found near the spot where Rausch was caught by the patrons from the bar. Rausch objects to the admissibility of these gloves.
What must the prosecutor show to persuade the judge to admit this evidence? Assuming that the gloves are admissible, what if Rausch's attorney attempted to cross-examine the
investigating officer about police procedure that used zip lock bags to present evidence on suspects?What may the prosecutor argue to the judge in opposition to this offer?
(5) At the time of his arrest Rausch had the following items on his person:
(a) a picture of a bullet
(b) a picture of a pistol
(c) a picture of a gun holster
(d) a bullet shell casing
(e) a fragment of a shell casing
(6) Element's of the Case-in-Chief and the Case-in-Defense, Rule 401 - Relevance.
(a) Prosecutor in the Murder Case offers two witnesses who will testify that the defendant Rausch shot the deceased victim. Is this testimony relevant?
(b) Prosecutor in the Rape Case offers the same kind of evidence. Is it relevant?
(c) In the wrongful death action of Ms. Shirley Jones against defendant Rausch the wrongful death statute limits recovery of damages to funeral expenses and recurring loss based on the decedent's ability to earn income. At trial, Ms. Jones (plaintiff seeks to introduce 10 videotapes of various family outings showing the decedent's love and affection for his family and theirs for him. Is such evidence relevant?
(d) In the Rape Case the defendant offers witnesses who will testify that the prosecutrix engaged in group sex with the defendant the night before.
(e) In the Murder Case Rausch is prepared to testify that the bartender told him that Jones had a machete and intended to chop his head off.
(1) Is this proposed testimony by Rausch relevant?
(2) What if the bartender lied and Jones was not out to get him?
(3) What if Rausch cannot remember who told him that Jones was out to get him, is the testimony (evidence) relevant?
B. Other Offered Evidence
• In the Rape Case Rausch wants to put six (6) witnesses on who will each testify that
Shirley Jones is a whore and has had many sexual liaisons over the past year with these
six men. Is this evidence relevant? Is it admissible?
• In the Murder Case, after the police rescued the murder-suspect Rausch from his captors he was arrested. The police found his locked car several blocks away. Using an instrument called a "Jimmy" the police unlocked Rausch's car and searched it. Inside they found a written plan written by Rausch entitled "This is how I intend to kill Jones." Is this written plan relevant? Is it admissible?
• In the Murder Case the suspect Rausch asked for his lawyer at the moment of his arrest. The arresting officer said he would allow him to talk to his lawyer later but at the moment he wanted to know why Rausch shot Jones. Rausch confessed. Is his confession relevant? Is it admissible?
C. Rule 403
(1) In the Murder Case, the prosecutor will rely heavily on photographic evidence to establish its case-in-chief. The prosecutor offers color photographs depicting the victim at the seen of the alleged murder. One photograph depicts the victim with blood all over his body and the surrounding shrubs and street. Another photograph is a close-up of the fatal wound. This latter photograph shows the point of entry of the bullet and bloody body fragments on the victim's clothing. Is this evidence relevant? Is it admissible?
(2) In the Murder Case, the prosecutor offers photographs of the victim taken in the morgue. These photographs are in black and white and color. They depict the victim's wounds from various angles after the blood had been cleaned off and before the autopsy had begun. The prosecutor intends for the pathologist to use this evidence to plot the trajectory of the bullet. Is this evidence relevant? Is it admissible?
(3) In the Murder Case, the prosecutor seeks to introduce at trial color photographs of Mr. Rausch at the time of his arrest. Mr. Rausch was unshaven and generally unkempt at the time of his arrest. At trial he had cleaned up considerably. He's wearing an Armani suit, Perry Ellis blue dress shirt and a tie by Versace. Should the judge admit the out of court photograph?
(4) In the Rape Case, the defendant claims mistaken identity. The prosecutor seeks to introduce evidence that Rausch has Type A blood and that tests performed on semen traces retrieved from the victim, showed that the rapist had Type A blood. Is this evidence relevant? Is it admissible?
(5) In the Murder Case, the defendant claims mistaken identity. The murder took place in Nita, Arkansas, a rural town of 4,000 people. At trial, the prosecutor introduced evidence showing that the defendant had the same general description, the same nickname ("Pooky") and the same address as the person linked to the crime by independent evidence. In his case-in-defense the defendant has several witnesses to testify that he was in Little Rock at the Roxy Night Club on the night in question. In rebuttal, the prosecution offers a mathematics professor from the University of Arkansas, Dr. Egbert Einstein. Dr. Einstein intends to testify that there is an extreme improbability, one in twelve million, of these characteristics belonging to a second person in Nita. Is this evidence relevant? Is it admissible?
(6) In the Rape Case, the defendant claims someone else did it. During the defendant's case-in-defense the defendant offers to call a police officer who will testify that during the two months that the defendant has been in jail, there have been six (6) rapes by persons generally matching the defendant's description. Is this evidence relevant? Is it admissible?
D. Rule 404(a) - "Propensity"
(1) In the Rape Case, the defendant offers testimony from twenty-three men that Shirley Jones had consensual sex with them over the past year and a half. Hence, the defendant intends to argue that his sex with Ms. Jones was consensual as well. Is this evidence admissible?
(2) In the Rape Case, the defendant, at a press conference, called Mrs. Jones a "slimy, scuzzy, tack head whore." Mrs. Jones filed a defamation action against Rausch. At trial, Rausch offers the testimony of twenty-three men who claim to have had consensual sex with Mrs. Jones in exchange for money or just for fun. Rausch claims that this evidence is admissible. Is he correct?
(3) In the Rape Case, Mrs. Jones' car was being repaired by "Eddie's Service Station." She claimed that she was attacked and raped by Rausch when she went to pick up her car. Mrs. Jones sues "Eddie's Service Station." (Civil action).
On what theory, and by asking what questions of whom, might Mrs. Jones' lawyer let the jury know that Rausch was twice convicted of rape while working as a mechanic for a service station?
(4) Assume Mr. Jones did not die. He and his wife file for divorce. As part of their divorce, both seek the custody of their 10-year-old son Kevin. Mr. Jones claims that Shirley sexually abused Kevin. Shirley denies that charge. May Mr. Jones introduce evidence that Shirley recently abused Billy, her 13-year-old son from a previous marriage?
(5) Again Mr. Jones does not die. In this hypothetical, Jones survives the gun shot and sues defendant Rausch for his injuries. At trial, Rausch attempts to testify and offer the testimony of a corroborating witness about previous instances of hostility by the plaintiff toward other persons who had flirted with his wife Shirley. The defendant offered this evidence to support his claim of self defense. Is this evidence admissible?