Restricted to Get a Passing Grade, You Must Hand in the Questions Along with Your Answers

RESTRICTED -- TO GET A PASSING GRADE, YOU MUST HAND IN THE QUESTIONS ALONG WITH YOUR ANSWERS!

EVIDENCE

Professor Friedman

Winter Term 1989

Final Exam

Friday, May 5, 9:30 am.

You will be given several minutes to read these instructions before the exam begins. You will then have two hours to complete the exam. THIS IS AN OPEN BOOK EXAMINATION. You may bring any materials you wish. You should have the Federal Rules of Evidence, the McCormick hornbook, and your class materials with you.

The exam consists of two Parts, each of which, along with the two parts of the midterm, will count approximately equally in your exam grade for the course. Part I consists of 20 multiple choice questions, each graded equally. For each question, mark down on the sheet provided the best answer of the four or five choices given. If two answers are accurate but one is more informative, the more informative one is better. Make sure there is one, and only one, clearly indicated answer marked for each question. There is no penalty for an incorrect answer. Unless otherwise noted, the questions in this Part are set in a jurisdiction that applies the Federal Rules of Evidence and of Civil and Criminal Procedure. Assume unless otherwise stated that any trial is before a jury. When you finish Part I, you may go on to Part II without delay.

Part II calls for three brief essays, labeled A(1), A(2), and (B). Please adhere as closely as you can to the indicated time guidelines: I am seeking very brief essays, and you should budget your time very carefully! 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. 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. BE LEGIBLE -- if I can't read it, I won't! Please begin each answer in Part II on a separate page.

Finally: Good luck!

II.

A. The Government has brought charges of conspiracy and other crimes against Arthur "Bucky" Barrett and Russell "Buzzy" Adams, arising out of the theft and sale of a collection of postage stamps. The theft, from a philatelic museum, occurred in August 1986. Ben Tilley, another alleged conspirator who is now dead, allegedly sold some of the stamps in November of that year. Federal agents seized the remainder in February 1987. Over the next several weeks, the agents separately arrested Barrett, Adams, Tilley, and a fourth alleged conspirator, Marla Kirzner. Tilley died shortly afterwards. Kirzner, who was a dealer in rare stamps, pleaded guilty to one count of interstate transportation of stolen postage stamps.

(1) (18 minutes)

At the trial of Adams, which is held first, the Government seeks to introduce the testimony of James Melvin, in substance as follows:

"In January 1987, I was at a card game with Ben Tilley. He said, 'Buzzy and I have been having some real trouble unloading a large collection of stamps we got recently.' I said, 'You mean Bucky, don't you?' And he said, 'No, Bucky wasn't involved. It was Buzzy. Anyway, I thought we found somebody to clear the stamps for us, but she only bought a few of them.'"

You are an assistant to the prosecutor. Write her a very brief memo indicating what objection or objections you anticipate to this evidence and what arguments she might offer in response, and evaluating your chance of success. If your assessment depends on knowledge of other facts not stated here, indicate what they are and what bearing they have.

(2) (22 minutes)

At the trial of Barrett, the Government introduces the testimony of Kirzner, to the following effect:

"Tilley telephoned me in November 1986 and asked me if I wanted to buy a large collection of rare stamps. I said I'd talk to him, and I met him at a hotel room in Boston. He had Bucky Barrett with him. [Kirzner points to Barrett] He was a chatty guy. He told me that his role in the burglary had been to find the wires belonging to the alarm system and take the system out of operation. Tilley was the one in charge, though; he did all the talking when we discussed the stamps. I agreed to buy a small portion of the collection."

The Government also introduces the testimony of Michael Bass, an assistant to Kirzner, who testifies in substance as follows:

"One day in November 1986, we were in Boston for a show, and my boss told me that she'd bought some stamps from this guy Tilley. She gave me an envelope that she said had payment in it and told me to deliver it to Tilley and pick up the stamps. So I went to the room, and this guy Barrett [pointing to Barrett] was there. I gave him the envelope, he gave me the stamps, we each checked to make sure we had what we wanted, we did, and I left."

Now assume that you are an assistant to the defense attorney. (Don't worry about you change of role -- this is hypothetical!) Ideally, she would like to introduce the transcript from Melvin's testimony from the Adams trial. If she is not allowed to do that, she would like to put Melvin on the stand to give the same testimony as in the Adams trial. (She prefers the transcript because she would rather not have to rely on Melvin.) She also would like to present the testimony of Thomas Delaney that in March 1987 he was having lunch with Adams when Adams said, "I hear Bucky has gotten into trouble over that stamp museum job. Too bad, because I happen to know he wasn't involved."

Write a very brief memo to your boss indicating what objection or objections you anticipate to the Melvin and Delaney evidence and what arguments she might offer in response, and evaluating your chance of success. Once again, if your assessment depends on knowledge of other facts not stated here, indicate what they are and what bearing they have.

B. (20 minutes)

Dirksen was driving his car around a bend in Winding Road when he collided with the car of Powell, who was backing out of her driveway. Both cars were damaged, and after exchanging license and telephone numbers the drivers each went their separate ways. According to Powell, Dirksen called her the next day, and they had the following conversation.

D: I wonder if we can take care of this matter without getting lawyers involved.

P: I don't see why not. It seems pretty simple. You were driving quite fast, young man.

D: That's not the point. I had the right of way. If you were looking over your shoulder, you would have seen me in plenty of time and stopped.

P: Of course I was looking. I guess if that's the way you're going to be, we will need lawyers.

Powell has now brought suit against Dirksen, and Dirksen has counterclaimed. In her case-in-chief, Powell has testified that she looked both ways before pulling out of the driveway, and that she would have seen Dirksen in time if he had not been driving very quickly. Wicks has also testified for her. He has said that he saw the accident, and that Dirksen was driving around the bend very fast. In his case-in-chief, Dirksen has testified that he was driving at a "moderate" speed, and that just before the collision he saw Powell, and noticed that she was looking straight through her front windshield.

You are assisting Powell's counsel, who now wants to bring to the jury's attention part or all of the telephone conversation that Powell says she had with Dirksen. Advise her on what theory of relevance and by what procedure she should try to do this. Advise her also what objections to anticipate and what responses to offer, and evaluate her chances of success.