Chapter 5_Questions
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CHAPTER 5
Direct Examination of Witnesses’s Relevance
5.1 Defendant is charged with armed robbery and first-degree murder. The charges stem from a
broken drug transaction. At trial the prosecution calls four witnesses, including the two victims, who were driving around
looking for crack cocaine when the robbery and shooting happened.
During the direct examination of one of the witnesses, the following happens:
Q. (By prosecutor) When did you first see the defendant?
A. When we were driving around, about midnight.
Q. Had you ever met the defendant before?
A. Sure, we knew him.
Q. What name did you know him by?
Defendant: Objection, your honor. May we have a side bar?
Judge: Yes. Approach. [Lawyers come to the bench.] How’s the witness going to answer?
Prosecutor: He
=
s going to say that he knew the defendant by the name of “Psycho.”
Judge: Defense, what
'
s your objection based on?
1.
What objections and motions should be made?\
Objection to Character Evidence: The defense could object to the introduction of the name "Psycho" as
it implies a certain character trait of the defendant which isn't directly relevant to the crime charged.
Motion in Limine: Before the trial starts, the defense could have filed this motion to prevent the
prosecution from bringing up or referring to the defendant by that nickname to ensure that it does not
prejudice the jury.
2.
What are the best arguments to support the objections?
Prejudicial Effect: Referring to the defendant by the name "Psycho" is prejudicial. It implies a negative
character trait and could lead the jury to make assumptions about the defendant's propensity for violence
or criminal activity.
Irrelevance: The nickname "Psycho" doesn't bear directly on the facts of the crime charged, hence it's
not relevant.
Rule 404 of the Federal Rules of Evidence: This rule prevents the introduction of character evidence to
prove that on a particular occasion the person acted in accordance with the character. Here, the
prosecution might be using the nickname to imply that the defendant has a violent nature
.
3.
What are the best arguments to oppose the objections?
Identification: The prosecution could argue that the nickname "Psycho" is how the witness and others
identified and knew the defendant, and it is merely being used for identification purposes.
Not Character Evidence: The prosecution might argue that they aren't introducing the nickname to prove
the defendant's character but for some other purpose, such as identification or to explain the nature of the
relationship between the defendant and the witness.
Complete Story: The prosecution could also argue that the jury should get the full picture of the
interactions, relationships, and context to make a fully informed decision.
4.
What are the proper rulings?
The judge would likely sustain the objection to character evidence, finding that the prejudicial effect of
the name "Psycho" outweighs its probative value. While the name might have some value for
identification, there are likely other ways to identify the defendant without resorting to a prejudicial
nickname.
If the defense had filed a Motion in Limine before the trial, and the judge granted it, then the prosecution
would be barred from introducing the nickname. If the prosecution violated this, it could result in a
mistrial or other sanctions.
5.
How else could these issues have been resolved?
Stipulation: Before the trial, both parties could stipulate to certain facts to avoid prejudicial or
controversial evidence from being presented. For instance, they could agree to refer to the defendant by
his legal name only.
Redaction or Substitute: The prosecution could ask the witness about knowing the defendant without
delving into the specific nickname. For instance, "Did you know the defendant by a particular name or
alias?" and once the witness affirms, they can move on without specifying the name.
Cautionary Instruction: If the evidence does get introduced, the judge could give a cautionary instruction
to the jury, emphasizing that they should not draw any negative inferences from the nickname or use it
as evidence of the defendant's character or propensity for crime.
5.3
The defendant, Mejia, is charged with conspiracy to distribute cocaine and possession with intent
to distribute cocaine. The case is now on trial. In the prosecution’s case-in-chief, testimony from DEA agents and a co-
conspirator, Escobar, showed that Escobar had driven a car to Mejia
’
s house, that Mejia was not home,
and that Escobar then returned to a nearby hotel. When he arrived at the hotel, Escobar was arrested, his
car was searched, and cocaine was found in a hidden compartment. The prosecution’s next witness, another DEA agent, obtained a search warrant for Mejia’s car,
which the agents had seen Mejia driving five days earlier. The car was seized in Mejia
’
s garage and
searched. That search discovered that Mejia
’
s car contained electronically operated hidden
compartments, but no drugs or drug residue was found in those compartments. Before that agent is
called as a witness, and before the jury is brought into the courtroom, the following happens:
Defendant: Your honor, before the next DEA agent testifies, we ask the court to rule on our previously
filed motion in limine to preclude the prosecution from introducing any evidence of the results of the
search of my client’s car.
Judge: What’s your argument?
1. What objections and motions should be made?
The defense has filed a motion in limine to preclude the prosecution from introducing any evidence of the results of the search of the defendant's car. The defense is likely making this motion on the grounds that the search of the defendant's car was illegal or violated the Fourth Amendment.
6.
What are the best arguments to support the objections?
The defense may argue that the search of the defendant's car was illegal because there was no probable cause to search the car, or because the search warrant was invalid. They may also argue that the search violated the Fourth Amendment because it was an unreasonable search.
7.
What are the best arguments to oppose the objections?
The prosecution may argue that the search of the defendant's car was legal and valid, and that the
evidence obtained from the search should be admissible at trial. They may argue that the search was conducted with a valid warrant, or that the search was conducted incident to Escobar's arrest,
and therefore did not require a warrant.
8.
What are the proper rulings?
The judge must consider the arguments of both parties and make a ruling on whether the evidence obtained from the search of the defendant's car is admissible at trial. If the judge finds that the search was illegal or violated the Fourth Amendment, they may exclude the evidence. If the judge finds that the search was legal and valid, they may allow the evidence to be presented at trial.
9.
How else could these issues have been resolved?
If the defense's motion in limine is denied, they could still raise objections to the admissibility of the evidence at trial. For example, they could argue that the evidence is irrelevant, or that it is unfairly prejudicial. The judge would need to consider these objections and make a ruling on whether the evidence should be admitted.
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9.4
Abel and two co-defendants are charged with bank robbery. Before trial the prosecution notifies the defense that one co-defendant, Ehle, had agreed to
become a prosecution witness against Abel. When the defense learns this, it notifies the prosecution that it will call Mills as a defense
witness. Mills will testify that he knew both Abel and Ehle, had done prison time with both of them, and
that Ehle told him that he (Ehle) intended to falsely implicate Abel in order to receive preferable
treatment from the government.
When the prosecution learns this, it notifies the defense that it will recall Ehle as a rebuttal
witness. Ehle will testify that all three, Ehle, Abel, and Mills, were members of the “Aryan
Brotherhood,” a prison gang, and that the gang required its members to deny membership in the gang
and to commit perjury to benefit other members of the gang.
The defense then files a motion in limine to bar the rebuttal evidence. At the hearing the
following happens:
Judge: Defense, this is your motion to preclude. What’s your argument?
1.
What objections and motions should be made?
Motion in Limine: The defense already made this motion to preclude or bar the prosecution from
introducing evidence about the “Aryan Brotherhood” and the related assertions about the gang's rules.
Objection to Character Evidence: The defense should object to the introduction of the fact that the
defendants were members of a prison gang as it is a character evidence and may prejudice the jury.
Objection to Hearsay: The defense can claim that Ehle’s statements about the gang's rules might be
hearsay.
2.
What are the best arguments to support the objections?
Prejudicial Effect: Introducing evidence that the defendants were members of the “Aryan Brotherhood”
is highly prejudicial. It can unduly influence the jury's opinion of the defendants, making them see the
defendants in a negative light irrespective of their guilt or innocence regarding the bank robbery.
Relevance: The gang membership might not be directly relevant to the facts of the bank robbery.
Rule 404(b) of the Federal Rules of Evidence: This rule prohibits using crimes, wrongs, or other acts to
prove a person’s character in order to show that on a particular occasion the person acted in accordance
with the character. The gang membership might fall under this rule.
Hearsay: The statements made by Ehle about the gang's rules are out-of-court statements offered for the
truth of the matter asserted.
3.
What are the best arguments to oppose the objections?
Impeachment: The prosecution could argue they are offering the evidence to impeach Mills'
credibility, not to prove character, suggesting that Mills might be lying due to his gang affiliation and
the gang's rules.
Rule 608(b) of the Federal Rules of Evidence: While this rule generally bars extrinsic evidence of
specific instances of a witness's conduct to attack the witness's character for truthfulness, there are
exceptions when it's probative of truthfulness or untruthfulness. Prosecution might argue the gang
rule about perjury fits this.
Completeness Doctrine: To get the full context of Mills' potential bias and motive to lie, the jury
should be aware of the gang affiliations and rules.
4.
What are the proper rulings?
The judge might sustain the objection to character evidence, finding that the prejudicial effect of gang
membership could outweigh its probative value regarding the bank robbery. However, the judge could
allow the evidence for the limited purpose of assessing Mills' credibility but would need to provide a
cautionary instruction.
The hearsay objection could be overruled if the judge determines that the statement about the gang's
rules is more probative for assessing credibility than for the truth of the gang rule itself.
5.
How else could these issues have been resolved?
Cautionary Instruction: If the evidence is admitted, the judge can instruct the jury that the evidence of
gang membership is only to be considered for assessing Mills' credibility and not to make any inferences
about the defendants' character or guilt in the bank robbery.
Stipulation: The defense and prosecution could agree to a version of events or facts to be presented to
avoid delving into the prejudicial aspects of the testimony.
Alternative Evidence: The prosecution could seek other ways to impeach Mills' credibility without
referring to the gang affiliation or its rules.
5.5
This is a products liability case involving a Jimmy four-wheel drive vehicle manufactured by the
defendant. Plaintiff claims that a design and manufacturing defect in the Jimmy’s rear axle and axle
assembly caused the vehicle’s rear axle to fracture, causing the vehicle to go out of control and roll over.
That accident killed plaintiff
=
s wife, the driver of the vehicle. Defendant claims the accident was caused solely by driver error, which in turn was caused by the
driver’s intoxication. She consumed a number of alcoholic beverages after work. Her blood alcohol level
was measured at 0.174 at the hospital and at 0.21 at the Medical Examiner
’
s lab. (A level of 0.10 is
presumptive evidence of intoxication in the state.)
Before trial plaintiff filed a motion in limine to exclude all reference to the deceased’s
consumption of alcoholic beverages and to her blood alcohol level. At a hearing on the motion, the
following happens:
Judge: Counsel, I’ve read your motion and I
’
m puzzled. Why should evidence of the deceased’s
intoxication be inadmissible in this kind of case?
1.
What objections and motions should be made?
Motion in Limine: The plaintiff already made this motion to exclude any reference to the deceased’s
consumption of alcoholic beverages and her blood alcohol level.
Objection to Prejudicial Evidence: If during the trial, the defendant tries to introduce the evidence, the
plaintiff can object based on its prejudicial nature.
2.
What are the best arguments to support the objections?
Prejudicial Effect: Introducing evidence of the deceased's intoxication can unduly influence the jury's
opinion, potentially shifting the blame from the alleged defect to the deceased’s conduct.
Relevance: If the plaintiff can demonstrate that the defect in the vehicle was the primary or sole cause of
the accident, then the deceased’s intoxication might not be directly relevant.
Distracting from the Main Issue: The core of the case is the alleged design and manufacturing defect.
Discussing the deceased's alcohol consumption can divert attention from the primary issue.
3.
What are the best arguments to oppose the objections?
Causation: The defendant could argue that evidence of intoxication is crucial to their claim that the
accident was caused by driver error due to intoxication, not by any product defect.
Complete Picture: The jury should have all relevant facts to understand the circumstances surrounding
the accident fully.
State's Legal Limit: With the deceased's blood alcohol level being above the state's legal limit, it
provides a strong indication of potential driver impairment, which the defendant would argue is relevant
to the case.
4.
What are the proper rulings?
The judge could find that while the evidence of intoxication is prejudicial to the plaintiff's case, it is also
highly relevant to the defendant's claim that the accident was due to driver error resulting from
intoxication. Therefore, the judge might deny the motion in limine, allowing the evidence to be
presented.
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However, to ensure that the evidence is used appropriately, the judge might give a cautionary instruction
to the jury, emphasizing that they should consider the evidence of intoxication only in the context of
determining the cause of the accident and not to assign moral blame to the deceased.
5.
How else could these issues have been resolved?
Cautionary Instruction: As mentioned, if the evidence is admitted, the judge can instruct the jury on the
proper context in which to consider the deceased’s intoxication.
Stipulation: The parties could potentially come to an agreement or stipulate to certain facts surrounding
the accident, which could limit or define the way the intoxication evidence is presented.
Expert Testimony: Both parties could present expert witnesses to provide opinions on the role (or lack
thereof) of the deceased's intoxication in causing the accident. This might help the jury weigh the
intoxication evidence against the alleged product defect.
5.7
This is a 42 U.S.C. 1983 civil rights lawsuit against police officer Berry, who shot and killed
Sherrod while attempting to arrest Sherrod. The case is brought by Sherrod’s father as administrator of
Sherrod’s estate.
The case is now on trial. Berry testifies on direct examination he was investigating a robbery that
happened shortly before he saw a car with two suspects in it near the scene of the robbery. Sherrod was
the driver. Berry ordered the two men in the car to raise their hands. They did not. Berry and his partner
approached the car with guns drawn. The direct examination then continues as follows:
Q. (By defense) What happened as you approached the car?
A. I looked into the vehicle.
Q. What did you see?
A. I saw the driver, Sherrod, make a quick movement with his right hand into the left inside pocket of
his coat, as if he was going to reach for a weapon. That
=
s when I fired my gun at the driver.
On cross-examination the following happens:
Q. (By plaintiff) After you fired your gun at Sherrod, you opened the car door, didn’t you?
A. Yes.
Q. And then you conducted a search of Sherrod?
Defense: I object.
Judge: Counsel, please approach the bench. [Lawyers approach.] Plaintiff, where are you going with
this?
Plaintiff: I want to show the police searched Sherrod and did not find a gun or any other weapon.
1.
What objections and motions should be made?
The defense made an objection during cross-examination when the plaintiff began inquiring about the
post-shooting search of Sherrod.
2.
What are the best arguments to support the objections?
Impeachment: The defense could argue that the plaintiff is trying to impeach the officer’s testimony
regarding his fear of Sherrod reaching for a weapon by showing that no weapon was found, which might
be improper or irrelevant.
Irrelevance: The defense might also argue that whether or not a weapon was found on Sherrod after the
shooting is irrelevant. The officer's decision to shoot was based on his perception of a threat at that
specific moment, not on what was discovered after the fact.
3.
What are the best arguments to oppose the objections?
Credibility & Reasonableness: The plaintiff can argue that the presence or absence of a weapon is
directly relevant to assessing the credibility of Officer Berry's testimony and the reasonableness of his
belief that he was in imminent danger. If no weapon was found, it could suggest that the officer's
perception or judgment was flawed.
Central Issue: The main issue in a §1983 excessive force claim is whether the officer's use of force was
"objectively reasonable" in light of the facts and circumstances confronting him. The discovery (or non-
discovery) of a weapon post-shooting directly informs that analysis.
4.
What are the proper rulings?
The judge could allow the line of questioning by the plaintiff. Given that the case involves a
determination of the reasonableness of Officer Berry's actions, the fact that no weapon was found on
Sherrod could be relevant to the jury's evaluation of the case.
If the judge permits the line of questioning, it's possible that they could give a limiting instruction to the
jury, emphasizing that the absence of a weapon does not automatically make Officer Berry's actions
unreasonable, but it is one factor they can consider in assessing the overall circumstances.
5. How else could these issues have been resolved?
Stipulation: The parties could have stipulated to certain facts prior to trial, such as the fact that no
weapon was found on Sherrod. This would allow the fact to be presented to the jury without going
through the line of questioning.
Limiting Instruction: As mentioned, if the evidence is admitted, the judge can give the jury guidance on
how to properly consider the absence of a weapon in their deliberations.
Direct Testimony: Instead of waiting for cross-examination, the plaintiff could have introduced evidence
of the search and its results during its case-in-chief through another witness or method, potentially
avoiding the need for the cross-examination on that point.
5.8
This is a wrongful death case brought by the plaintiff
=
s estate against an airline. The deceased,
Smith, a college football player, was killed in an airplane crash during his senior year in college.
Smith was a guard on Notre Dame
=
s football team. He expected to be drafted by the NFL and
play professionally. The estate is suing to recover (among other damages) Smith
=
s lost future earnings
as a professional football player.
Smith died over the Christmas holidays of his senior year. He had completed four years of
college eligibility and had expressions of interest from several NFL teams, but the NFL draft had not yet
occurred when he died. He was a starting guard during his junior and senior years and was voted on the
All-American second team in his senior year.
To prove Smith
=
s expected future earnings as a professional football player, plaintiff seeks to
introduce evidence of the contracts five other members of his Notre Dame team who were seniors with
Smith received from their NFL teams. These were:
(1) Johnson, the starting quarterback in his senior year, was drafted in the 5th round of the NFL draft and
received a contract of $1,000,000 for each of three years.
(2) Williams, the starting running back for two years and an All-American first team member in his
senior year, was drafted in the 1st round of the NFL draft and received a contract of $2,000,000 for each
of five years.
(3) James, the other starting offensive guard in his senior year, was drafted in the 6th round of the NFL
draft and received a contract of $500,000 for each of two years.
(4) Henderson, a starting defensive end for two years and an All-American second team member his
senior year, was drafted in the 3rd round of the NFL draft and received a contract of $1,000,000 for each
of three years.
(5) Haynes, a starting defensive back for three years and the punt and kickoff returner and an All-
American second team member his senior year, was drafted in the 2nd round of the NFL draft and
received a contract of $1,500,000 for each of five years.
The defense objects. At a pretrial hearing, the following happens:
Judge: This is a hearing on defendant’s motion to preclude certain evidence the plaintiff intends to
introduce at trial. Defense, what’s your objection to this evidence?
1. What objections and motions should be made?
The defense is objecting to the introduction of evidence regarding the contracts received by other
members of the Notre Dame football team who were seniors with Smith.
2. What are the best arguments to support the objections?
The best argument to support the objection is that the contracts of other football players are irrelevant to
Smith's future earnings as a professional football player.
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3. What are the best arguments to oppose the objections?
The best argument to oppose the objection is that the contracts of other football players are relevant to
show Smith's expected future earnings as a professional football player, as they provide a basis for
comparison to estimate Smith's potential earnings.
4. What are the proper rulings?
The proper rulings depend on the judge's evaluation of the relevance and probative value of the
evidence. If the judge finds that the evidence is relevant and probative, then it should be admitted. If the
judge finds that the evidence is irrelevant or lacks probative value, then it should be excluded.
10. How else could these issues have been resolved?
The issues could be resolved by the parties reaching a settlement agreement or by the plaintiff presenting additional evidence to support Smith's expected future earnings.
5.9
The defendant is charged with armed bank robbery. According to the prosecution, the defendant,
while armed with a handgun, entered the bank, threatened a teller, and took cash from the bank. The
defendant was arrested for the robbery two weeks later. Before trial, through discovery, the defense learns that the prosecution has the following
evidence:
(1) A bank teller will identify the defendant as the person who entered the bank and said: “I’ve got a
gun, give me all the money,” and forced her to hand over the cash in her teller drawer. The teller will say
that the defendant had his right hand in a jacket, and was gripping what looked like the brown wooden
handle of a gun, although she could not see the rest of the gun.
(2) A friend of the defendant who will say that, a few hours after the bank robbery, he was with the
defendant when he saw the defendant throw a revolver with a brown handle into a nearby river.
(3) A police officer will say that he arrested the defendant two weeks after the robbery, and that he
searched the defendant
=
s car following his arrest. That search revealed a shotgun with a cut-off barrel
under the passenger seat.
(4) Another police officer will say that he executed a search warrant on the defendant
=
s home the same
day the defendant was arrested. That search disclosed numerous weapons and ammunition, including
two revolvers, two automatic handguns, several rifles and shotguns, and two fully automatic machine
guns.
The defense moves to preclude the testimony of the defendant
=
s friend and the two police
officers. At a hearing on the motion, the following happens:
Judge: This is the defendant’s motion to preclude certain evidence. Counsel, proceed with your
argument.
1.
What objections and motions should be made?
Motion to Preclude Testimony of the Defendant's Friend: The defense can move to exclude the friend's
testimony on the basis of relevancy, arguing that the friend’s observation is not directly connected to the
alleged crime.
Motion to Preclude Evidence of Weapons from the Car and Home: The defense can object based on
relevancy and the potential for prejudice. They could argue that the presence of other weapons, not
directly linked to the crime, could unduly prejudice the jury.
2. What are the best arguments to support the objections?
For Excluding the Friend's Testimony: The defense could argue that the testimony is hearsay, and it's not
a direct observation of the crime. Even if the friend saw the defendant throw something into the river,
it’s not concrete proof it was the weapon used in the alleged robbery.
For Excluding Weapons Evidence from Car and Home: The defense could argue that:
These weapons were not the ones used in the crime, thus making them irrelevant to the current case.
Introducing such evidence can unduly prejudice the jury by painting the defendant as a dangerous
person, irrespective of the specific crime charged. This can cloud the jury’s judgment and prevent a fair
trial.
The prejudicial effect outweighs the probative value, as per Rule 403 of the Federal Rules of Evidence.
3.
What are the best arguments to oppose the objections?
For the Friend's Testimony: The prosecution can argue that the testimony directly links the defendant to
a weapon matching the description of the one supposedly used in the crime, strengthening the case that
the defendant was the robber.
For Weapons Evidence from Car and Home: The prosecution could contend that:
-
The presence of numerous weapons suggests the defendant had the means to commit an armed
robbery.
-
The shotgun found in the car could be linked to the crime or demonstrate the defendant's
predisposition for carrying firearms.
-
The sheer quantity and nature of weapons might help establish motive or intent.
4. What are the proper rulings?
For the Friend's Testimony: The judge could allow this testimony, as it provides circumstantial evidence
linking the defendant to the crime. The friend's observation of the defendant discarding a gun is relevant
to the prosecution's narrative.
For Weapons Evidence from Car and Home: The judge has to weigh the probative value versus the
prejudicial effect.
-
The shotgun in the car might be deemed admissible, especially if the prosecution can provide any
linkage to the robbery.
-
The weapons from the home might be seen as too prejudicial, especially if there's no direct link
between those weapons and the robbery. It might be more appropriate to exclude this evidence to
prevent the jury from making decisions based on the defendant's character or perceived
dangerousness, rather than the facts of the alleged crime.
5. How else could these issues have been resolved?
Plea Bargain: Before reaching trial, the defense and prosecution could have negotiated a plea deal,
which might result in a reduced charge or sentence in exchange for a guilty plea.
Stipulations: Both parties could agree to certain facts beforehand, reducing the need for potentially
prejudicial evidence.
Limiting Instructions: If some or all of the evidence is admitted, the judge could give instructions to the
jury on how to properly consider the evidence, emphasizing that they should not make decisions based
on the defendant's character or on unrelated facts.
5.10
This is a personal injury case. Plaintiff claims he was injured when the defendant drove through a
stop sign and struck the plaintiff
=
s car in the intersection.
Through discovery, plaintiff learns that one year before the collision at issue the defendant received a
traffic citation for driving through the same stop sign. He pleaded guilty to the violation and received a
$50 fine.
The case is now on trial. Just before the plaintiff is ready to rest his case-in-chief, the following happens:
Plaintiff: At this time, I offer a certified copy of the guilty plea and judgment reflecting the defendant
=
s
traffic conviction one year before this collision and concerning the same stop sign at issue in this case.
Defense: I object.
Judge: Sustained.
The case then proceeds. In his case-in-chief the defendant testifies he could not see the sign because the
city had planted some tall bushes in front of it, obscuring his vision. During cross-examination, the
following happens:
Q. (By plaintiff) One year before this collision, didn’t you receive a traffic citation for going through
that very same stop sign?
Defense: I object and move for a mistrial.
Judge: Plaintiff, how did this citation get any more relevant than it was the last time you brought it up?
1.
What objections and motions should be made?
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Plaintiff's Offering of the Certified Copy
: The defense should object based on relevancy and
prejudicial effect. Specifically, they could object that the prior incident is not directly related to the
current case and can unduly prejudice the jury against the defendant.
During Cross-Examination
: The defense should object on the same grounds (relevancy and prejudicial
effect) when the plaintiff brings up the citation during cross-examination. Additionally, they moved for a
mistrial due to the introduction of evidence that had previously been ruled inadmissible.
2.
What are the best arguments to support the objections?
Relevancy: The defense can argue that a past traffic violation does not necessarily relate to or prove the
defendant's negligence or liability in the current incident.
Prejudicial Effect: Introducing a past violation can unduly prejudice the jury against the defendant,
making them seem like a habitual rule-breaker. This might cloud the jury's judgment and prevent the
defendant from receiving a fair trial.
3.
What are the best arguments to oppose the objections?
Impeachment: Given the defendant's testimony that he couldn't see the sign due to bushes, the plaintiff
can argue that the prior violation is now relevant to impeach the defendant's credibility. If the defendant
had a prior issue with the same stop sign, it undermines his claim that he only missed the sign this time
because of the bushes.
Prior Acts as Proof of Negligence: The plaintiff might contend that the defendant's prior violation at the
same stop sign indicates a pattern of negligence or disregard for traffic signs, which is directly related to
the current case.
4.
What are the proper rulings?
Plaintiff's Offering of the Certified Copy
: The judge was correct in sustaining the defense's objection
at this point. The past traffic violation had not been made relevant by the facts presented in the trial up to
this point.
During Cross-Examination
: After the defendant's testimony about the bushes obscuring the stop sign,
the prior violation becomes relevant for impeachment purposes. The judge could overrule the defense's
objection and deny the motion for a mistrial, allowing the plaintiff to question the defendant about the
prior violation to challenge his credibility.
5.
How else could these issues have been resolved?
Direct Examination Clarification
: The defense could have preemptively addressed the prior traffic
violation during the defendant's direct examination, framing it in a way that might mitigate its potential
impact.
Limiting Instructions
: If the judge allows the evidence of the prior violation, they could give a limiting
instruction to the jury, clarifying that they should only consider the prior violation as it relates to the
defendant's credibility and not as evidence of a habitual pattern of behavior.
Stipulation
: Before trial, the parties could have stipulated certain facts related to the stop sign and any
related incidents, reducing the need for potentially prejudicial evidence or testimony.
5.11
The defendant is charged with possession and sale of cocaine. The defendant was arrested when he
tried to sell one kilogram of cocaine to someone who turned out to be an undercover police officer.
The case is now on trial. In the defense
=
s case-in-chief the defendant calls his pastor. During the direct
examination the following happens:
Q. (By defendant) Rev. Lawson, you’ve known Mr. Diaz for how long?
A. Most of his life.
Q. Do you know Mr. Diaz’s character traits for being prone to criminal conduct or activity?
Prosecutor: Objection, your honor.
Judge: Basis?
Later in the defense case the defendant calls the defendant
=
s mother. During the direct examination the
following happens:
Q. (By defendant) Mrs. Paganelli, does your son have a character trait for being prone to large-scale
drug dealing?
Prosecutor: Objection, your honor.
Judge: Basis?
1. What objections and motions should be made?
For the Pastor’s Testimony
: The prosecutor should object on the basis of relevance and potentially
improper character evidence.
For the Defendant’s Mother’s Testimony
: The prosecutor should similarly object based on relevance
and improper character evidence. Further, there's potential bias when a family member testifies about the
defendant's character.
2. What are the best arguments to support the objections?
Relevance
: The prosecutor can argue that general testimony about the defendant's character does not
directly pertain to the specific charge of possessing and selling cocaine. The traits in question need to be
directly relevant to the crime charged.
Improper Character Evidence
: Under the Federal Rules of Evidence (and similar state rules),
character evidence is generally inadmissible to prove that a person acted in accordance with that
character on a particular occasion. While there are exceptions where the defendant can introduce
evidence of their own good character, the questions posed might be too broad or not directly relevant to
the crime charged.
3. What are the best arguments to oppose the objections?
Defendant’s Right to Present Favorable Evidence: The defense can argue that the defendant has a right
to present evidence that is favorable to him, especially when it comes to character witnesses. This can
help to paint a fuller picture of the defendant's life and personality for the jury.
Relevant Character Traits: The defense can argue that the character traits being questioned – propensity
for criminal conduct and propensity for large-scale drug dealing – are directly relevant to the charges at
hand.
4.
What are the proper rulings?
For the Pastor’s Testimony
: The judge could rule in favor of the prosecutor's objection if they
determine that the testimony is too broad and doesn't specifically address relevant character traits.
Alternatively, if the judge sees the character trait as relevant to the charges, they might allow the
testimony but provide specific instructions to the jury about how they should consider it.
For the Defendant’s Mother’s Testimony
: The objection might be sustained, given that the mother's
testimony could be viewed as biased and the question regarding "large-scale drug dealing" might be seen
as too specific and leading.
5. How else could these issues have been resolved?
Rephrased Questions: The defense attorney could have more broadly asked about the defendant's
character for truthfulness, honesty, or law-abiding nature, rather than zeroing in on a propensity for
criminal or drug-related activity.
Stipulation or Limiting Instruction: The defense and prosecution could potentially stipulate to certain
character evidence or agree to its limited introduction, subject to a limiting instruction from the judge to
the jury about how they can consider such evidence.
More Preparation: The defense attorney could have prepped the witnesses more thoroughly to ensure
they are comfortable and knowledgeable about the character traits being asked about, and can provide
concrete examples if needed.
5.12
This is a murder prosecution. The defendant, a police officer, raises the affirmative defenses of
self-defense.
On the night of the shooting, defendant and a friend went into a nightclub. They were frisked at the door
by the bouncer, Rodriguez (the victim). When Rodriguez frisked the defendant, he noticed the defendant
was carrying a handgun, but Rodriguez let him into the nightclub when the defendant showed his police
badge. Later in the evening, when the defendant started to leave the nightclub, a fight erupted between
the defendant and Rodriguez. During the struggle Rodriguez was fatally shot.
The case is now on trial. Prosecution and defense witnesses gave differing accounts of how the fight got
started and what happened during the struggle between the defendant and Rodriguez. According to some
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accounts, the defendant pulled his handgun first; according to others, it was Rodriguez who tried to grab
the defendant
=
s handgun.
In the defense case-in-chief the defendant also sought to introduce evidence of a domestic violence
dispute involving Rodriguez two years earlier. Outside of the hearing of the jury, the following occurs:
Judge: Defense, exactly what is this evidence you’re offering?
Defendant: Your honor, two years ago Rodriguez was in a domestic altercation with his wife. Police
were called. The police report shows that when the responding officers arrived at the Rodriguez house,
Rodriguez acted belligerently towards the officer and yelled: “Get your ass off my property or I’ll kill
you.” Rodriguez also pointed a gun at the responding officers. We plan to prove what happened through
one of the officers who was present.
Judge: Prosecution, any objection?
1.
What objections and motions should be made?
The prosecution would likely object on the basis of relevance. Additionally, the prosecution could object
on the grounds that this is improper character evidence being used to prove action in conformity
therewith.
2. What are the best arguments to support the objections?
Relevance: The prosecution could argue that a two-year-old domestic incident involving Rodriguez has
no bearing on the current case, especially as it concerns an altercation with a different person in a
different context.
Improper Character Evidence: Under the Federal Rules of Evidence (and similar state rules), evidence of
a person's character or character trait is not admissible to prove that on a particular occasion the person
acted in accordance with the character or trait. The prosecution could argue that introducing this past act
is an attempt to paint Rodriguez as a violent or aggressive person and thereby suggest he acted violently
on the night in question.
3. What are the best arguments to oppose the objections?
Pertinent Character Trait in a Self-Defense Case: The defense could argue that in a case where self-
defense is claimed, evidence of the victim's violent or aggressive character is directly pertinent and can
be admissible. The past act of Rodriguez threatening police officers with a gun could be viewed as
evidence of his violent and aggressive character.
Rebuttal of Prosecution's Case: If the prosecution's case paints Rodriguez as non-aggressive or non-
violent, the defense could argue that the evidence is necessary to rebut that portrayal and give a more
accurate representation of Rodriguez's character.
4. What are the proper rulings?
The judge has a few options here, depending on how they weigh the arguments:
Exclude the Evidence: The judge might rule that the incident is too remote in time or not sufficiently
similar to the current case to be relevant.
Admit the Evidence with Limiting Instructions: The judge could allow the evidence but provide the jury
with specific instructions about how they can use the information (e.g., they can consider it only for the
purpose of determining whether Rodriguez was the initial aggressor).
Admit the Evidence: If the judge believes the evidence is directly pertinent to the defendant's claim of
self-defense, they might admit it without any limiting instructions.
5. How else could these issues have been resolved?
Stipulation
: The parties might have come to an agreement or stipulation about certain facts or character
traits of Rodriguez to avoid the need for introducing potentially prejudicial evidence.
In Limine Motion
: The defense could have filed a motion in limine before the trial started to get a
ruling on the admissibility of this evidence, thereby avoiding the need to address it in the middle of the
trial.
More Specific Limiting Instructions
: If the judge decides to admit the evidence, they could craft very
specific instructions to the jury about how they should and should not consider the past act, ensuring that
it doesn't unduly prejudice the defendant's case.
5.13
This is a federal civil rights lawsuit brought by the plaintiff against two police officers. Plaintiff
claims that one of the police officers shot and killed her husband, and that the shooting was unjustified.
The defense is self-defense.
Police were called to the scene of an automobile accident. One of the drivers, Perrin, left the
scene and walked to his nearby home. The police went to Perrin’s home and attempted to interview him.
After a delay, Perrin opened the door and spoke to the officers, but was acting erratically. He then went
back inside his home. Moments later, Perrin opened the door quickly and physically attacked the
officers, who tried to subdue him.
The case is now on trial. In the defense case Officer Anderson testified that he feared he was about
to lose consciousness during the struggle, since Perrin had repeatedly kicked him in the face and chest,
and chokeholds were not subduing him. Anderson then took out his gun and fatally shot Perrin.
The defense also wishes to call as witnesses four police officers, all of which had experienced
previous encounters with Perrin. They would testify about five separate incidents where they were
exposed to Perrin's apparent hatred of uniformed officers and his consistently violent and uncontrollable
reactions to the police during those episodes. The plaintiff previously made a motion to preclude the testimony of the four police officers, but the
judge had not ruled on the motion. The following then happens:
Judge: Before the jury comes back from the break, I
=
d like to hear arguments on plaintiff
=
s motion to
preclude the testimony of four police officers. This needs to be decided now. Plaintiff, it’s your motion.
Why should this testimony be barred?
1. What objections and motions should be made?
The plaintiff's motion is to preclude the testimony of the four police officers regarding prior encounters
with Perrin, which portrays him as having a hatred for uniformed officers and showing violent reactions
towards them.
2. What are the best arguments to support the objections?
Relevance
: The plaintiff can argue that prior incidents with other officers are not directly relevant to the
specific incident at hand. The issue is whether the shooting was justified, not whether Perrin had
negative interactions with other officers in the past.
Improper Character Evidence
: The plaintiff can assert that the defense is trying to introduce evidence
of Perrin's prior acts to suggest that on the night of the shooting he acted in accordance with that
character, which is impermissible under the Federal Rules of Evidence.
Undue Prejudice
: The plaintiff can claim that even if there's some relevance to the officers' testimony,
its prejudicial effect far outweighs any probative value, as it risks painting Perrin as an inherently violent
person.
3. What are the best arguments to oppose the objections?
Supporting Self-Defense Claim: The defense can argue that the officers' testimony gives context to why
Officer Anderson might have genuinely feared for his life during the altercation, making the shooting
reasonable in his perspective.
Perrin's Propensity for Violence Towards Officers: While generally character evidence is not admissible
to show action in conformity therewith, the defense can claim this is not about general character but a
specific and consistent reaction of Perrin towards uniformed officers, which would be pertinent to
understanding the circumstances of the encounter.
Rebuttal: If the plaintiff has made claims or introduced evidence suggesting that Perrin was generally
non-violent or had no issues with the police, the defense might argue that the testimony of the four
officers is necessary to rebut that portrayal.
4. What are the proper rulings?
Exclude the Evidence
: The judge could rule that the previous incidents with other officers are not
directly relevant to the specific incident in question and risk unduly prejudicing the jury against Perrin.
Admit with Limiting Instructions
: The judge might allow the evidence but caution the jury that they
can only use it to evaluate the reasonableness of Officer Anderson's perceptions and actions, not to
conclude that Perrin acted violently because "that's just how he is."
Admit the Evidence
: If the judge feels the testimony is directly pertinent to the defense's self-defense
claim and not unduly prejudicial, they might admit it without any limitations
.
5. How else could these issues have been resolved?
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Stipulation
: Both parties might have reached an agreement about certain facts or character traits of
Perrin to avoid the introduction of potentially prejudicial evidence.
In Limine Motion Before Trial
: Having the judge decide on the admissibility of the testimony before
trial begins would prevent mid-trial interruptions and give both parties a clearer picture of what evidence
will be considered.
Depositions
: The defense could have deposed the four officers before trial, giving the plaintiff a better
sense of their testimony and potentially leading to a resolution outside of court.
5.15
Defendant is charged with numerous counts of conspiracy, bank fraud, and false statements on
income tax returns. The charges are based on several schemes to obtain bank loans by misrepresenting
his financial condition.
The case is now on trial. In its opening statement, the defense stated that Moore was an honest
man and that the defense would present character witnesses about Moore
=
s general reputation. In the
defense case-in-chief, the defense called several witnesses who described Moore as someone known to
be honest and trustworthy in his personal and business dealings. One of those witnesses was Love, who
had been Moore
=
s lawyer in the past. During cross-examination of Love, the following happens:
Q. (By prosecutor) Mr. Love, did you know that Mr. Moore declared bankruptcy this year?
Defendant: Objection.
Q. Did you know that Mr. Moore defaulted on loans at five banks this year that totaled hundreds of
thousands of dollars?
Defendant: Objection again, your honor. May we be heard?
Judge: Yes. Come to the bench. [Lawyers approach.] What’s the basis for your objections?
1. What objections and motions should be made?
The defense might object on the grounds of relevance, prejudicial effect, improper character evidence,
and hearsay.
2. What are the best arguments to support the objections?
Relevance
: The defense can argue that Moore's bankruptcy and loan defaults are not directly relevant to
the charges of conspiracy, bank fraud, and false statements on income tax returns.
Undue Prejudice
: The mentioning of bankruptcy and loan defaults could be prejudicial as they might
paint the defendant in a negative light and sway the jury based on negative inferences.
Improper Character Evidence
: The defense can argue that the prosecutor is trying to introduce
evidence of Moore's other bad acts to suggest he acted in conformity with those acts on the charges he is
currently facing.
Hearsay
: If the prosecutor doesn't have documentary evidence or firsthand witnesses about the
bankruptcy or loan defaults, the defense can argue that the questions are based on out-of-court
statements being offered for the truth of the matter asserted.
3. What are the best arguments to oppose the objections?
Reputation for Truthfulness Opened by the Defense
: The prosecutor can argue that because the
defense introduced character evidence about Moore's honesty and trustworthiness, they have the right to
rebut this character evidence with specific acts that challenge this character portrayal.
Cross-Examination
: The prosecutor can argue that they have a right to test the knowledge and
credibility of the character witness (Love) by asking about specific facts or events that might contradict
or challenge the witness's assertion about the defendant's character.
4. What are the proper rulings?
Sustain the Objections
: The judge could find that the questions about bankruptcy and loan defaults are
either irrelevant, overly prejudicial, or improper attempts to introduce character evidence.
Overrule the Objections
: The judge could determine that because the defense opened the door by
introducing evidence of Moore's honesty and trustworthiness, the prosecutor has the right to challenge
this portrayal through cross-examination.
Limiting Instructions
: Even if the judge allows the questions, they might provide instructions to the
jury that they can only consider the questions and answers for assessing the credibility of the witness,
not as direct evidence of Moore's guilt or innocence on the current charges.
5. How else could these issues have been resolved?
Motions in Limine: Before the trial started, the defense could have filed a motion in limine asking the
court to prevent the prosecutor from introducing or referring to certain pieces of evidence or specific
facts, such as the bankruptcy or loan defaults.
Depositions: By deposing potential witnesses before the trial, both parties might have been better
prepared for what evidence or information could arise, allowing them to address it beforehand or come
to agreements on what is admissible.
Stipulation: Both sides could have come to an agreement on certain facts or character portrayals,
reducing the need for certain character witnesses or cross-examinations on those topics.
5.16
Defendant is charged with armed bank robbery. The prosecution’s evidence is that the defendant
and another man, while wearing a ski masks and carrying small handguns, took money from the bank
tellers.
The prosecution also has evidence that, two weeks after the bank robbery, two men had entered a
woman’s home (in the same town as the bank) wearing ski masks and carrying small handguns. She
struggled with them, and during the struggle the mask of one of the men came off. She identified that
robber as the defendant. The defendant was charged with burglary and assault. However, at the trial of
this case the jury returned a verdict of not guilty.
The defendant then makes a pretrial motion to preclude the prosecution for introducing any
evidence relating to the burglary and assault case. At a hearing on the motion, the following happens:
Judge: Defense, what is the evidentiary basis for your motion?
1. What objections and motions should be made?
The defense should file a motion to exclude evidence relating to the burglary and assault case based on
its prejudicial effect and its potential to mislead the jury.
2.
What are the best arguments to support the objections?
Prior Acquittal
: One primary argument is that the defendant was found not guilty in the burglary and
assault case. Introducing evidence from that case could unfairly prejudice the defendant since the jury in
that case did not find the evidence compelling enough to convict.
Irrelevance
: The defense can argue that the prior alleged crime is irrelevant to the charges at hand
(armed bank robbery) and will confuse and mislead the jury.
Prejudicial Effect
: Even if the evidence is deemed relevant, its prejudicial effect likely outweighs its
probative value. Introducing evidence of another crime may improperly influence the jury to believe that
the defendant has a propensity for committing crimes.
Potential for Confusion
: The defense can argue that introducing facts from another case could confuse
the jury and divert their attention from the facts relevant to the charged bank robbery.
3. What are the best arguments to oppose the objections?
Similar Modus Operandi
: The prosecution may argue that the methods used in both crimes (ski masks,
small handguns) are so distinctive and similar that it suggests the same person committed both. This
could be used to show identity or a signature method of committing the crime.
Counter to Defense Strategy
: If the defense strategy is to argue that someone else committed the bank
robbery, the prosecution can argue that the evidence from the burglary case is relevant to refute that
claim.
Not Being Used to Show Propensity
: The prosecution may argue that they're not trying to show the
defendant has a propensity for crime, but rather that the specific and unique circumstances of the
burglary are so similar to the bank robbery that it’s relevant for the jury to consider.
4. What are the proper rulings?
Exclude the Evidence: The judge could determine that the prejudicial effect of the evidence outweighs
its probative value, especially given the acquittal in the burglary case.
Admit the Evidence with Limitations: The judge might allow the evidence but give a limiting instruction
to the jury, telling them they can only consider the evidence for specific purposes (e.g., to determine
identity) and not to infer criminal propensity.
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Admit the Evidence: The judge could rule that the evidence is highly probative due to the unique
similarities between the crimes and thus is admissible without limitation.
5. How else could these issues have been resolved?
Motions in Limine: The defense did file a pretrial motion, which is an effective way to address
potentially prejudicial evidence before the trial begins. Addressing the issue in advance can avoid
surprises during trial and potentially tainting the jury.
Stipulation: The prosecution and defense could come to an agreement on certain facts or character
portrayals, limiting the need for certain pieces of evidence.
Direct Testimony Limitations: The defense could have asked that, if the evidence is admitted, direct
testimony regarding the burglary be limited in scope to avoid undue emphasis on the acquitted charges.
5.17
Defendant is charged with armed robbery for taking the victim’s car at gunpoint.
A few days after the victim’s car was taken, a police officer saw the defendant driving a car
without a proper license and attempted to pull the car over. The defendant sped away and tried to elude
the police. After a chase, the car was pulled over, and the defendant attempted to flee, but was
apprehended. The police officer learned that the defendant was a suspect in the carjacking reported
earlier. The defendant was then arrested and charged with both armed robbery and eluding the police.
Before trial the eluding charge was severed, and the prosecution elected to try the defendant on the
armed robbery charge first.
Before trial the defense made a motion in limine to preclude the evidence of flight. At the
hearing on the motion the following happens:
Judge: How many days were between the time of the carjacking and the time of the arrest?
Prosecutor: Three days.
Judge: And the car the defendant was driving, was that the same car that was earlier taken from the
carjacking victim?
Prosecutor: No.
Judge: Defense, it’s your motion. What’s your argument?
1. What objections and motions should be made?
The defense should maintain their motion in limine to exclude evidence related to the defendant's flight
from the police, arguing that it's overly prejudicial and not directly relevant to the charge of armed
robbery.
2. What are the best arguments to support the objections?
Prejudicial Effect: The defense can argue that introducing evidence of the defendant's flight could
unduly prejudice the jury against him. Jurors might assume guilt for the armed robbery based solely on
the flight, even though the flight could have been motivated by another reason, such as the defendant's
driving without a proper license.
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Lack of Direct Connection: The car the defendant was driving during the flight was not the same car as
the one carjacked, making the evidence of flight less directly connected to the crime in question.
Alternative Explanations: The defense might argue that there were alternative reasons for the defendant
to flee (fear, panic, unrelated criminal behavior, etc.), and not necessarily because of a guilty conscience
related to the carjacking.
Risk of Confusion: Introducing evidence of the defendant's flight might confuse the issues and divert the
jury's attention from the primary facts related to the armed robbery.
3. What are the best arguments to oppose the objections?
Consciousness of Guilt
: The prosecution can argue that the defendant's flight demonstrates a
consciousness of guilt. It's a common principle in criminal law that evidence of a defendant's flight can
be seen as indicative of guilt.
Timing
: The flight occurred only a few days after the carjacking, making it potentially relevant as
showing the defendant's state of mind.
Relevant to Police Identification
: The prosecution might contend that the flight led to the defendant
being identified as a suspect in the carjacking, thus it's part of the narrative explaining how the defendant
was linked to the alleged crime.
4. What are the proper rulings?
Exclude the Evidence
: The judge could determine that the prejudicial effect of the flight evidence,
especially given it was a different car, outweighs its probative value and risks confusing the jury.
Admit the Evidence with Limitations
: If the judge believes the evidence of flight shows a
consciousness of guilt, they might allow it but provide a limiting instruction to the jury, explaining that
they should not assume guilt from the flight alone.
Admit the Evidence
: The judge could find the evidence directly relevant and admissible without
limitations, particularly if they believe it's crucial for the prosecution's narrative.
5.
How else could these issues have been resolved?
Plea Bargaining
: Depending on the strength of the evidence against the defendant, both sides could
have negotiated a plea deal, potentially dropping or reducing some charges in exchange for a guilty plea
on others.
Stipulation
: To avoid the issue of introducing potentially prejudicial evidence, both sides could come to
an agreement on certain facts to present to the jury, sidestepping the need for certain pieces of evidence.
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Consolidation
: If the judge believed both charges were intrinsically linked, they might have chosen not
to sever the charges, allowing for a joint trial. This could address the relevance of the flight evidence as
it would pertain to both charges.
5.18
Defendant is charged with armed robbery. The charges are based on the robbery at gunpoint of a
counter clerk at a truck rental firm on December 7, [-2]. Following an investigation, the defendant was
arrested five weeks later.
At the preliminary hearing the arresting detective testified that following his arrest the defendant
said that in early December he had been living in transient hotels and partying with a prostitute, drinking
booze and smoking crack cocaine. The defendant also said that on November 27, [-2], when he started a
four-week vacation, he had received five paychecks from his job totaling over $3,000 and that he had
periodically cashed them in December. Records obtained from defendant
=
s employer were consistent
with his statement.
The defendant then files a written motion to preclude the detective from testifying at trial about
the defendant
=
s statement regarding what he had been doing in early December. At the hearing on the
motion, the following happens:
Judge: Defense, why should the defendant
=
s statement be precluded?
1.
What objections and motions should be made?
The defense has made a motion to preclude, or exclude, the testimony from the detective about the
defendant's statement regarding his activities in early December.
2. What are the best arguments to support the objections?
Irrelevance
: The defense can argue that the defendant's activities and behavior in early December,
particularly with regard to partying, drinking, and drug use, are not directly relevant to the specific act of
armed robbery on December 7.
Prejudicial Effect
: Introducing details about the defendant's association with a prostitute and drug use
could unduly prejudice the jury against him. The jury might form negative judgments about his character
rather than focusing on the specific facts related to the robbery.
Unfair Character Evidence
: The defendant's activities could be seen as improper character evidence.
Under rules like the Federal Rules of Evidence Rule 404, evidence of a person's character or character
trait is not admissible to prove that on a particular occasion the person acted in accordance with the
character or trait.
Lack of Direct Connection
: While the defendant's statement about cashing checks in December might
be relevant as to his finances, the other details of his activities are not directly connected to the crime
charged.
3. What are the best arguments to oppose the objections?
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Motive or Opportunity
: The prosecution can argue that the defendant's statement provides context,
possibly suggesting a motive (financial desperation after spending money on drugs and partying) or
opportunity (cashing checks around the time of the robbery).
Explanation of Activities
: The defendant's statement about his activities during early December could
help to create a timeline or provide an explanation of his whereabouts and actions leading up to the
robbery.
Admission by Party-Opponent
: The prosecution can argue that the statement is an admission by the
defendant, making it inherently relevant.
4. What are the proper rulings?
Exclude the Entire Statement
: The judge could rule that the potential prejudicial effect of the
defendant's statement about his activities in early December outweighs its probative value.
Partial Admission
: The judge could allow the statement about cashing checks in December since it
provides a possible motive, but exclude details about partying, drug use, and association with a
prostitute due to their prejudicial nature.
Admit with Limiting Instruction
: If the judge decides to admit the evidence, they could provide the
jury with a limiting instruction, guiding them on how they should (or should not) consider the evidence
in their deliberations.
5. How else could these issues have been resolved?
Redaction: The defense and prosecution could come to an agreement to redact the statement, removing
or altering the most prejudicial details while retaining relevant information.
Stipulation: Both parties could agree on certain facts to present to the jury, thereby avoiding the
introduction of potentially prejudicial details.
Plea Bargain: If the evidence against the defendant is strong, and to avoid the introduction of potentially
damaging evidence at trial, both sides might negotiate a plea deal.
5.19
Defendant is charged with arson with intent to defraud an insurer. According to the
prosecution
=
s theory of the case, the defendant hired another person to set fire to his own grocery store
so that the defendant could collect $350,000 under his casualty insurance policy.
Before trial the defendant filed a motion in limine asking that the prosecution be prohibited from
introducing evidence of the defendant
=
s financial condition or prior wrongdoings. Specifically, the
evidence was:
(1) Evidence from two banks that the defendant had borrowed more than $300,000 in the year before the
fire, and that on the day of the fire the defendant was several months behind in his loan payments.
(2) Evidence from an accountant that in the year before the fire he had performed accounting services
for the defendant, and that the defendant had instructed him to lower his calculation of the amount the
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defendant owed to the state for sales tax, and to understate the store
=
s sales when calculating the amount
of the federal corporate income tax.
At a hearing on the motion the following happens:
Judge: Counsel, I understand the evidence the prosecution wishes to introduce at trial. Why is that
evidence inadmissible?
1. What objections and motions should be made?
The defense has filed a motion in limine to exclude evidence of the defendant's financial condition and
prior wrongdoings.
2. What are the best arguments to support the objections?
Irrelevance
: The defense can argue that being behind on loan payments does not directly correlate to
committing arson, and that such evidence is not directly relevant to the charge at hand.
Prejudicial Effect
: The introduction of the defendant's financial struggles and his alleged request to
understate taxes could unduly prejudice the jury against him, causing them to view him as dishonest and,
by extension, more likely to commit the charged crime.
Unfair Character Evidence
: The details about the defendant's alleged request to his accountant to
understate taxes can be seen as improper character evidence. Character evidence is generally
inadmissible to prove a person acted in conformity with that character or trait on a specific occasion
(similar to the Federal Rules of Evidence Rule 404).
Potential Confusion
: Introducing evidence of prior wrongdoings may confuse the jury and divert their
attention from the central issue of the trial: whether the defendant committed arson with intent to
defraud.
3. What are the best arguments to oppose the objections?
Motive: The prosecution can argue that the evidence of the defendant's financial struggles, including
being behind on loan payments, provides a motive for committing arson with intent to defraud an
insurer.
Intent: The evidence about the defendant's alleged request to understate taxes can demonstrate a
propensity or willingness to commit fraudulent acts for financial gain.
Full Picture: The prosecution can contend that this evidence provides the jury with a full picture of the
defendant's circumstances leading up to the alleged crime, making it relevant and necessary.
4. What are the proper rulings?
Exclude Both Pieces of Evidence
: The judge might determine that both pieces of evidence are overly
prejudicial and could distract the jury from the central issues.
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Admit Evidence of Financial Condition but Exclude Tax Evidence
: The judge might find that
evidence of the defendant's financial struggles is relevant as it provides a motive, but exclude the tax-
related evidence as it is more prejudicial than probative.
Admit with Limiting Instruction
: The judge could admit both or one of the pieces of evidence and
provide the jury with a limiting instruction, detailing how they can and cannot use that evidence in their
deliberations.
5. How else could these issues have been resolved?
Redaction: The defense and prosecution might agree to redact some of the most prejudicial details while
retaining relevant information.
Stipulation: The parties could agree on certain facts to be presented to the jury, thus avoiding the
introduction of certain evidence.
Plea Bargain: If the evidence against the defendant is compelling, both sides could negotiate a plea deal
to avoid a trial altogether.
5.20
This is a negligence case involving a private airplane, a Cessna Model 210N, manufactured by
the defendant. Plaintiff claims that a structural failure caused the airplane to break up in flight and crash,
killing the plaintiff
=
s husband and two others. Defendant claims that the pilot, plaintiff’s husband, flew into clouds, became spatially
disoriented, and lost control of the airplane. He then overcompensated, and the extra force on the
airplane exceeded its design limitations, causing the airplane to break up in flight and crash.
Plaintiff seeks to introduce at trial evidence of other similar accidents involving the Cessna
Model 210N. Some of these involved structural failures, others involved unknown causes. Defendant
objects. At the hearing on the motion, after both plaintiff
=
s expert and defendant
=
s employees testified,
the following happens:
Judge: Counsel, what are the evidentiary considerations involved in ruling on the admissibility of this
kind of evidence in this kind of case?
1.
What objections and motions should be made?
The defendant will likely object to the introduction of evidence regarding other similar accidents
involving the Cessna Model 210N on the grounds of relevance and prejudice.
2. What are the best arguments to support the objections?
Relevance
: The defendant can argue that each accident is unique and must be assessed based on its
individual circumstances. Simply because other Cessna Model 210Ns have had accidents does not
necessarily mean that they share the same cause or that the airplane is inherently flawed.
Prejudicial Effect
: Introducing evidence of other accidents could unduly prejudice the jury against the
defendant. The jury might infer that since other similar models have crashed, there must be something
inherently wrong with this particular model.
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Speculative Causes
: If the causes of some of the other crashes are unknown, introducing them could
lead to undue speculation by the jury.
3. What are the best arguments to oppose the objections?
Demonstrate Pattern: The plaintiff can argue that the evidence of other accidents is relevant to
demonstrate a pattern of structural issues or failures associated with the Cessna Model 210N.
Similarity of Accidents: If the conditions, nature, or outcomes of the other accidents are strikingly
similar to the one in question, they can provide a more robust context for the jury.
Counter Defense Theory: Given the defense's theory about pilot error, showing multiple accidents could
counter that assertion by suggesting a more pervasive structural or design issue.
Expert Testimony: The testimony of the plaintiff’s expert can help in drawing a connection between the
accidents, further bolstering their relevance.
4. What are the proper rulings?
Exclude All Evidence
: The judge might determine that the evidence of other crashes is not sufficiently
similar or is overly prejudicial.
Admit Some, Exclude Others
: The judge could determine that only those accidents with demonstrably
similar circumstances or confirmed structural failures are admissible, while excluding those with
unknown causes.
Admit with Limiting Instruction
: The judge could allow the evidence but provide the jury with a
limiting instruction, specifying how they should consider the evidence of other accidents.
5. How else could these issues have been resolved?
Stipulation: The parties could agree on certain facts to be presented to the jury without delving into the
details of every other accident.
Redaction: Specific details of the other accidents that are overly prejudicial or not relevant could be
redacted while presenting the core facts.
Alternative Evidence: Instead of focusing on other accidents, the plaintiff could rely more heavily on
expert testimony to demonstrate the potential structural flaws in the aircraft.
5.21
This is a wrongful death and survival case. Plaintiff claims that her husband died in [-2] because
his treating physician for many years, Dr. Seltzer, had prescribed steroids for Weil, but had led Weil to
believe the medication he was taking for allergies was antihistamines.
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Weil died unexpectedly at the age of 54. An autopsy showed that Weil had severe osteoporosis
and that his bones had begun to crumble, leaving fragments of bone marrow in a fatal blood clot. Weil's
condition may have been caused by his long-term use of steroids.
Discovery has disclosed the following:
(1) Dr. Seltzer had prescribed steroids to Weil from [-20] to [-2], when Weil died.
(2) Drug company records showed that Dr. Seltzer had purchased over 1.7 million tablets containing
steroids between [-6] and [-2].
(3) Five former patients of Dr. Seltzer, who saw him for allergy conditions, had been prescribed
medication that they were told were antihistamines and decongestants, but in fact were steroids.
Before trial defendant moved in limine to preclude the introduction of this evidence. At the
hearing on the motion, the following happens:
Judge: This is the defendant’s motion to preclude certain evidence. Defense, what’s the evidentiary basis
for excluding this evidence?
1. What objections and motions should be made?
The defense will likely move to exclude evidence of Dr. Seltzer's drug purchase history and the
experiences of other patients on the grounds of relevance, prejudice, and the potential for confusion.
2. What are the best arguments to support the objections?
Relevance
: The defense can argue that Dr. Seltzer's purchases of steroids do not necessarily prove that
he improperly prescribed them to Weil or that he misinformed Weil about the nature of the medication.
Prejudicial Effect
: Presenting evidence that Dr. Seltzer purchased a large quantity of steroids and the
testimonies of other patients might unduly prejudice the jury against Dr. Seltzer, leading them to assume
guilt by association.
Potential for Confusion
: Introducing evidence about other patients could confuse the issues in the
current case. Each patient's medical condition and prescription needs are unique, and mixing testimonies
could lead the jury away from the specifics of Weil's situation.
Absence of Direct Misrepresentation
: Just because other patients believed they were taking
antihistamines doesn't prove that Dr. Seltzer intentionally misled them or Weil.
3. What are the best arguments to oppose the objections?
Pattern of Behavior
: The plaintiff can argue that evidence of Dr. Seltzer's large steroid purchases and
testimonies from other patients show a pattern of behavior where Dr. Seltzer consistently misrepresented
the medications he was prescribing.
Corroborating Evidence
: The experiences of other patients can serve to corroborate the plaintiff's
claim that Weil was misled by Dr. Seltzer.
Relevance to the Core Issue
: Demonstrating that Dr. Seltzer had a habit of misrepresenting steroid
prescriptions to multiple patients underscores the likelihood that he did the same with Weil.
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Nature of Medication
: The sheer number of steroid tablets purchased can support the contention that
Dr. Seltzer was overly reliant on this form of medication, possibly to the detriment of his patients.
4. What are the proper rulings?
Exclude All Evidence
: The judge might decide that the evidence concerning Dr. Seltzer's drug purchase
history and other patients' experiences are overly prejudicial and not directly relevant to Weil's case.
Admit Some, Exclude Others
: The judge could allow evidence of the drug purchases as a potential
indicator of prescription practices but exclude testimonies from other patients due to their potential to
confuse the issues.
Admit with Limiting Instruction
: If the judge allows the evidence, they might provide a limiting
instruction to the jury, specifying how they should consider the evidence and not to generalize the
experiences of other patients to Weil's case.
6.
How else could these issues have been resolved?
Stipulation
: Both parties might agree to certain facts or the nature of the prescriptions to reduce the
need for presenting potentially prejudicial or confusing evidence.
Focused Evidence
: Instead of presenting broad evidence, the plaintiff could present more focused
evidence that directly ties Dr. Seltzer's practices to Weil's situation.
Expert Testimony
: The plaintiff could rely more heavily on expert medical testimony to explain the
adverse effects of long-term steroid use and how it might have led to Weil's condition and death.
5.23
Defendant is charged with kidnapping and aggravated sexual assault. The defense is mistaken
identity. The victim had been shopping at a mall and returning to her van in the mall parking lot. She had
just gotten to the van when a man grabbed her, implied that he had a gun and threatened to shoot her,
and forced her into the van. He then told her to kneel down and not look at him, and covered her head
with a sweatshirt. He drove the van for a few minutes, asked if she had a boyfriend, demanded her
driver
=
s license, then stopped and raped the victim in the van. He then returned to the parking lot, and
left the car keys on the ground near the front of the van.
Thirteen years ago the defendant was convicted of another kidnapping and sexual assault. He
was sentenced to, and served, ten years imprisonment. In that case the defendant abducted the victim at
knifepoint during the evening from a mall parking lot as she was getting into her car. The defendant
drove the car to a wooded area, telling her not to look at him, demanded her driver’s license, then raped
her outside the car. The defendant then drove back to the parking lot, and left the car keys outside the
car.
Before trial the prosecution serves notice of its intent to introduce facts of the defendant
=
s prior
kidnapping and sexual assault as evidence in its case-in-chief. The defendant objects. At the hearing on
the motion the following happens:
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Judge: This is the defendant’s motion to preclude evidence of a prior crime. Why should this evidence
be excluded?
1. What objections and motions should be made?
The defense should file a motion in limine to exclude evidence of the defendant’s prior crime on the
basis of its prejudicial effect and potential to mislead the jury.
2. What are the best arguments to support the objections?
3. What are the best arguments to oppose the objections?
4. What are the proper rulings?
5. How else could these issues have been resolved?
5.24
Roe is charged with conspiracy to distribute cocaine. His co-defendant, Weger, pleaded guilty
before trial and is now a witness in Roe
=
s trial. The defense is that there was no conspiracy, and that
Roe was merely Weger’s customer.
In the prosecution’s case-in-chief, Weger testifies that he and Roe worked together to sell
cocaine, and that some of the drug paraphernalia belonged to Roe. A police officer testified that a search
of Weger’s home and trash found cocaine and drug paraphernalia, but a search of Roe
=
s residence and
trash found nothing; in fact, Roe never put out any trash for pickup by municipal trash workers.
Seven years ago Roe was convicted of possession of cocaine with intent to distribute. The
prosecution intends to use the conviction during the trial, both in the prosecution
=
s case-in-chief, and
during the defendant
=
s cross-examination if the defendant elects to testify. The defendant objects.
During a hearing out of the jury
=
s presence, the following happens:
Judge: The prosecution wants to introduce evidence of the defendant’s prior conviction for possession of
cocaine. Before I hear from the defense, I want to know for what purpose the prosecution is offering this
evidence.
1. What objections and motions should be made?
The defense should object to the introduction of evidence regarding Roe's prior conviction on the
grounds of relevance and undue prejudice. The motion in limine should be made to exclude the evidence of the prior conviction.
2. What are the best arguments to support the objections?
Relevance: The prior conviction is not directly relevant to the current charges of conspiracy. Even if Roe
had a prior conviction for a drug-related offense, it does not necessarily indicate involvement in the
present conspiracy.
Undue Prejudice: Introducing the prior conviction risks prejudicing the jury against Roe. They may
wrongly convict based on his past actions rather than the evidence of the current offense.
Propensity Evidence: Using the prior conviction as evidence may suggest that Roe has a propensity or
inclination to commit drug offenses, which is generally impermissible.
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Confusion of Issues: The introduction of the prior conviction can distract and mislead the jury from
focusing on the actual issues of the case.
3. What are the best arguments to oppose the objections?
Proof of Knowledge or Intent
: The prosecution could argue that the prior conviction is relevant to
show Roe's knowledge or intent regarding drug distribution, an essential element of the conspiracy
charge.
Impeachment
: If Roe chooses to testify, the prosecution might argue that the prior conviction is
relevant to challenge his credibility, given the conviction relates to truthfulness or dishonesty.
Absence of Mistake or Accident
: The prior conviction could be used to show that Roe's involvement
wasn't accidental or a one-time mistake.
4. What are the proper rulings?
Given the potential for undue prejudice, the judge should likely rule in favor of the defense to exclude
the prior conviction during the prosecution's case-in-chief. If Roe testifies, the judge may allow the
prosecution to use the conviction for impeachment purposes, but even then, with caution.
5. How else could these issues have been resolved?
The parties could agree to a stipulation
that allows certain facts to be admitted without
introducing the details of the prior conviction.
The judge could give a limiting instruction
to the jury, explaining the narrow purpose for which
the evidence of the prior conviction can be considered (if it is admitted).
The defense might consider having Roe provide a proffer
or preview of his potential testimony
to evaluate whether introducing the prior conviction would be unduly prejudicial in light of that
testimony.
Before trial, a motion for a bifurcated trial
could be made where the prior offense is tried
separately from the current charges.
5.25
The defendant, Heath, is charged with possession of cocaine with intent to distribute and with
carrying a gun in relation to drug trafficking. His defense is that he is a drug user and lacked any intent
to distribute drugs.
Before trial begins, the defense files a motion in limine seeking to bar the admission of certain
evidence. At the hearing on the motion the following happens:
Judge: Defense, what is your motion?
Defense: Your honor, I have received a 404(b) notice from the prosecution that it intends to offer
evidence of an event that happened seven months before the arrest in this case. The evidence is that two
police officers approached Mr. Heath and another man, Cannon, who were standing outside a house with
three other people. The police officers searched Cannon and found a 35 gram rock of cocaine, empty
blue plastic baggies, and two small baggies with rock cocaine in Cannon
=
s mouth. They then searched
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Mr. Heath. They found on him a semi-automatic handgun and $209 in cash, and discovered that Mr.
Heath was wearing a bulletproof vest. They arrested Mr. Heath for possession of the handgun and
Cannon for possession of the cocaine. We move to bar this evidence.
Judge: Prosecution, why is this evidence admissible?
1. What objections and motions should be made?
The defense should object to the introduction of evidence from the incident that occurred seven months
prior on the grounds of relevance, undue prejudice, and improper character evidence under Rule 404(b).
2. What are the best arguments to support the objections?
Relevance and Connection
: The prior incident does not directly pertain to the charges at hand. There's
no direct evidence from the previous event that Heath intended to distribute drugs.
Undue Prejudice
: The introduction of the prior incident, particularly the possession of a firearm and a
bulletproof vest, can unduly prejudice the jury against Heath. The jury might convict based on the
perception that Heath is a "bad person" rather than the actual evidence regarding the present charges.
Improper Character Evidence
: Introducing the prior event may suggest to the jury that Heath has a
criminal propensity or is the type of person who would commit the charged crimes, which is prohibited
by Rule 404(b)
3. What are the best arguments to oppose the objections?
Proof of Knowledge, Intent, or Modus Operandi
: The prosecution could argue that the prior incident
demonstrates Heath's knowledge or intent concerning drug-related activities or shows a particular
method of operation.
Absence of Mistake or Accident
: The prior incident can be used to argue that Heath's possession of
drugs and a gun in the current charges wasn't a mere accident or one-time occurrence.
Integral to the Narrative
: The prosecution might argue that the prior event provides essential context
or background to the current charges and helps establish a continuous sequence of events or motive.
4. What are the proper rulings?
Given the potential undue prejudice and the weak relevance of the previous incident to the current charges, the judge should likely rule in favor of the defense and exclude the evidence of the prior incident. The mere possession of a gun and a bulletproof vest does not directly indicate an intent to distribute drugs. However, the judge could consider the totality of the evidence and the arguments made by both sides in making this determination.
5. How else could these issues have been resolved?
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The parties could have engaged in pretrial negotiations or discussions to clarify what evidence would be
introduced and potentially come to agreements or stipulations about certain facts.
The judge could give a limiting instruction to the jury explaining the specific purpose for which they can
consider the evidence (if it is admitted).
The defense might seek to have the charges tried separately to avoid the potential prejudice from the
introduction of the evidence of the prior incident in relation to the current charges.
5.31
Plaintiff brings a civil rights action claiming that she was sexually harassed on the job.
Plaintiff is the only female police officer in a village police department that has nine officers. She
claims that the other officers sexually harassed her and created a hostile work environment by putting
pornographic calendars and magazines in the police station. She complained to her supervisors, but other
officers continued putting pornographic materials in the station. She claims that she was embarrassed
and humiliated by these actions.
The defense intends to introduce evidence at trial that during the time she was a member of the
police department plaintiff attended 2 parties where pornographic videos were shown, and attended 2
other parties where sexual acts were performed. Plaintiff objects. At a hearing on the objection the
following happens:
Judge: This is a hearing to determine the admissibility of certain other acts evidence. Plaintiff, what
=
s
the basis for your objection?
1.
What objections and motions should be made?
Plaintiff should object to the introduction of evidence about her attendance at parties with pornographic
content or sexual acts on the grounds of relevance, undue prejudice, and it being improper character
evidence.
2. What are the best arguments to support the objections?
Relevance
: The plaintiff's attendance at private parties where adult content was shown does not
necessarily correlate with her acceptance or comfort level with sexually explicit materials in her
professional environment. The context and nature of her attendance at these private events are different
from the workplace.
Undue Prejudice
: Introducing this evidence can unduly prejudice the jury against the plaintiff, making
them think less of her character or even blame her for the harassment. It might lead the jury to think she
was "asking for it" or that she condoned such behavior in a professional setting.
Improper Character Evidence
: The evidence may suggest to the jury that the plaintiff has a certain
type of character or disposition, which would be prohibited character evidence. It paints an unnecessary
picture of her personal life which isn't directly relevant to the harassment claims.
3. What are the best arguments to oppose the objections?
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Relevant to Plaintiff's Perception or Sensitivity
: The defense might argue that if the plaintiff was
comfortable with explicit content in her personal life, then she might not find similar content in the
workplace as harassing or creating a hostile environment. This could go to the heart of her claim about
her subjective experience of the work environment.
Relevant to Credibility
: If the plaintiff has made any representations that she is generally offended by
explicit content, this evidence could be used to challenge the credibility of those statements.
4. What are the proper rulings?
Given the potential undue prejudice and the weak relevance of the plaintiff's personal choices to her
experience in a professional setting, the judge should likely rule in favor of the plaintiff and exclude the
evidence of her attendance at these parties. Personal choices do not necessarily equate to acceptance or
endorsement of similar behaviors in a professional or work environment.
5. How else could these issues have been resolved?
Pretrial Motions and Discussions: Before reaching the point of litigation, both parties could have had
pretrial motions or discussions to clarify what evidence might be contentious and to negotiate its
admissibility.
Limiting Instruction: If the judge did decide to allow the evidence, they could give a limiting instruction,
explaining to the jury the specific reason the evidence is being admitted and how they should (and
should not) use it in their deliberations.
Alternative Evidence or Testimony: The defense might consider other ways to challenge the plaintiff's
claims without resorting to potentially inflammatory evidence about her personal life.
5.36
This is a breach of contract and tortious interference with contract case. Brod & Company, a
management company, had a contract with U.S. Home, a condominium developer, to manage a
condominium hotel and enter into rental agreements with the unit owners. After three months, U.S.
Home terminated the management contract, and Brod & Company brought this suit.
Plaintiff claims that the defendant intentionally terminated the contract without reason to
maximize its profits. Defendant claims that it was justified in terminating the contract because Brod &
Company had not managed the hotel properly in accordance with the contractual requirements.
During discovery plaintiff learned of two persons, Odom and Sierra, who had previously worked
for the defendant. Odom says that while he was an employee of the defendant, it had a policy of being
tough and never bending or compromising in its dealings with subcontractors. Sierra says that he worked
as a subcontractor for the defendant over eighteen months, and that during that time the defendant
breached five different contracts with him.
Before trial the defendant moves to bar Odom and Sierra from testifying at trial. At the hearing
on the motion, the following happens:
Judge: This is the defendant’s motion to exclude evidence, in particular the anticipated testimony of two
witnesses. Counsel, make your argument.
1. What objections and motions should be made?
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2. What are the best arguments to support the objections?
3. What are the best arguments to oppose the objections?
4. What are the proper rulings?
5. How else could these issues have been resolved?
5.37
This is a wrongful death case. Mrs. Vaughn, the deceased, was taken to her local hospital by her
daughter, the plaintiff, to take a stress test. The test involved an injection of radioactive medicine and
taking photographic images of the heart. After the test was completed, Vaughn left the hospital and went
home. During the night she died of a cardiac arrest. Plaintiff claims that the treating doctor, Dr. Purohit,
was negligent in diagnosing and treating Vaughn during the test.
All the medical experts agree that a patient complaining of chest and arm pain during or after
such a stress test should not be discharged without further evaluation. Thus, the key issue is whether
Vaughn complained of chest and arm pain during or after the test.
Plaintiff says that while Vaughn was undergoing the stress test, Vaughn complained to her of
chest and arm pain and difficulty breathing, and was not connected to any monitors. Plaintiff says that
when she asked Dr. Purohit, who was standing nearby, whether her mother
=
s condition was normal, he
reassured her it was and that she would be fine once she went home and rested.
Dr. Purohit in his deposition testified that he had no independent recollection of Vaughn
=
s
condition during the test. He has administered this stress test once or twice a day over ten years. At least
a dozen of those patients had complained of chest pain after completing the test, and that each time this
occurred he re-evaluated the patient by obtaining another EKG and performing a physical examination.
A cardiac unit technician, Hurt, who cared for Vaughn during the test, testified in similar fashion.
Before trial plaintiff files a motion in limine to exclude this testimony of Dr. Purohit and Hurt at
the trial. At the hearing, the following happens:
Judge: Counsel, I’m ready to hear your arguments on the motion.
1. What objections and motions should be made?
2. What are the best arguments to support the objections?
3. What are the best arguments to oppose the objections?
4. What are the proper rulings?
5. How else could these issues have been resolved?
5.38
This is a personal injury case. Plaintiff was rear-ended at an intersection while attempting to
make a left turn. Defendant claims the plaintiff stopped suddenly at the intersection without signaling.
The case is now on trial. In the plaintiff’s case-in-chief the plaintiff testifies. During the direct
examination, the following happens:
Q. (By plaintiff) Ms. Johnson, what is your procedure when you enter an intersection to make a turn?
A. I always signal a turn before entering the intersection.
Defense: I object.
Judge: Basis?
Later in the plaintiff’s case, the plaintiff calls Smith, a friend of the plaintiff. During the direct
examination, the following happens:
Q. (By plaintiff) Ms. Smith, how often do you commute with Ms. Johnson?
A. Usually twice a week. She always drives.
Q. Does she always signal when she turns?
Defense: Objection.
Q. What kind of driver is she?
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Defense: Objection again, your honor.
Judge: Basis?
1.
What objections and motions should be made?
For the first testimony by Ms. Johnson:
Defense should object on the grounds of relevance and improper character evidence.
For the testimony by Ms. Smith:
Defense should object to the question about signaling on the grounds of relevance and improper
character evidence.
Defense should also object to the question about the kind of driver Ms. Johnson is as it constitutes
an opinion or character evidence that isn't directly related to the accident in question.
2.
What are the best arguments to support the objections?
Relevance
: The general driving habits of the plaintiff, unless directly related to the accident, are not
relevant to determining what occurred during the incident in question.
Improper Character Evidence
: Testimony about habitual behavior or general traits can be seen as
trying to establish a character trait to prove that on a particular occasion the person acted in accordance
with the trait. Such character evidence is not generally admissible to prove conduct on a particular
occasion.
3.
What are the best arguments to oppose the objections?
Rebutting the Defense's Claim: If the defense is claiming the plaintiff has a habit of not signaling, then
evidence of the plaintiff's consistent behavior of signaling can be relevant to rebut that claim.
Lay Witness Testimony: Rule 701 of the Federal Rules of Evidence allows a lay witness to provide
opinion testimony if it is rationally based on the witness's perception, helpful to understanding the
witness's testimony or determining a fact in issue, and not based on scientific, technical, or specialized
knowledge. Thus, Ms. Smith can provide her opinion on Ms. Johnson's driving if it meets these
requirements.
4. What are the proper rulings?
For Ms. Johnson's testimony, the judge should likely sustain the objection on the grounds of improper
character evidence.
For Ms. Smith's testimony about signaling, the judge might sustain the objection if the defense's claim
does not specifically focus on the plaintiff's habit. If the defense has made an issue of the plaintiff's
habits, then the judge might overrule the objection.
For the question about the kind of driver Ms. Johnson is, the judge should sustain the objection as it
seeks an opinion not directly related to any fact in dispute and could be seen as character evidence.
4.
How else could these issues have been resolved?
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Pretrial Discussions: Both parties could engage in pretrial discussions to outline the scope of testimony, which could prevent such objections during the trial.
Limiting Instruction: If certain testimony is allowed, the judge can provide a limiting instruction to the jury, clarifying how they should consider the evidence.
Rephrasing the Questions: The plaintiff's attorney could try to phrase the questions more narrowly to directly address the incident at hand rather than general driving habits.
5.40
The plaintiff, Brennan, was a commodities floor trader. He owned a disability policy issued by
the Paul Revere Life Insurance Company. The policy provided benefits to its insured if he were to
become unable to perform his job. Brennan was injured in an accident, which, he alleged, kept him from
doing his job. He made a claim for benefits. Paul Revere would not pay and it terminated the policy.
Brennan sues Paul Revere for breach of contract and unreasonable and vexatious delay in paying
benefits. In a pretrial motion, Paul Revere seeks to bar Brennan from offering evidence concerning a number of
claims made by other persons on their Paul Revere disability policies. At the hearing, the following
happens:
Judge: Plaintiff, what do you seek to prove with this evidence of other claims?
Plaintiff: I will prove that on twelve different occasions before this one over the past five years Paul
Revere improperly denied disability claims, and I will prove Paul Revere had a company policy of not
dealing with meritorious claims like these in a fair way, terminating the policies, and not paying the
claims.
Judge: Defense, what is your objection to this proposed evidence?
1. What objections should the defendant make?
Paul Revere should object based on:
a. Relevance:
The evidence of other claims might not directly relate to Brennan's specific claim or
policy. b. Prejudicial Impact:
Evidence about other claims might unduly prejudice the jury against Paul
Revere. c. Hearsay:
Testimony or documents about what happened with other claimants might be considered
hearsay if offered for the truth of the matter asserted. d. 403 Balancing (assuming Federal Rules of Evidence):
The potential for undue prejudice, confusion
of the issues, or misleading the jury might substantially outweigh the probative value of the evidence.
2. What are the best arguments to support the abjections?
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a. Individualized Determinations:
Each insurance claim is unique and decided based on its specific
facts. Just because other claims were denied doesn't mean Brennan's was denied improperly. b. Potential to Mislead or Confuse the Jury:
Discussing other claims might divert attention from the
central issue – whether Brennan's claim was valid and improperly denied. c. Undue Prejudice:
The jury might develop a bias against Paul Revere based on the behavior in other
unrelated claims. d. Lack of Direct Evidence:
Brennan would need direct evidence of a company-wide policy to deny
claims, not just evidence of other denied claims.
3. What are the best arguments to oppose the objections?
a. Pattern of Behavior
: Brennan could argue that evidence of other claims demonstrates a consistent
pattern of behavior by Paul Revere, suggesting a company policy or practice of improperly denying
claims.
b. Probative Value
: Showing a pattern or practice could make it more likely than not that Brennan's
claim was also improperly denied, and it might support the claim of unreasonable and vexatious delay.
c. Not Hearsay if Offered for Another Purpose
: Brennan could argue the evidence of other claims is
not offered to prove the truth of those claims but rather to demonstrate Paul Revere's intent, motive, or
practice.
3.
What are the proper rulings?
While the judge's specific rulings would depend on the jurisdiction and the precise nature of the
evidence, based on the provided facts:
a. Relevance
: The evidence of other claims might be deemed relevant if Brennan can show they are
sufficiently similar to his claim and that they demonstrate a pattern or practice by Paul Revere.
b. Prejudicial Impact vs. Probative Value (403 Balancing)
: The judge would need to weigh the
potential prejudice against Paul Revere with the evidence's probative value. If the judge feels that the
evidence would unduly bias the jury or that its relevance is tenuous, they might exclude it. However, if
Brennan can make a strong case for its importance in demonstrating a pattern, it might be admitted.
c. Hearsay
: If the evidence is presented in a way that avoids hearsay pitfalls (e.g., not offering it for the
truth of the matter asserted but to show intent, motive, or practice), then this objection might be
overruled.
In conclusion, the admissibility of the evidence about other claims would hinge on Brennan's ability to
demonstrate its relevance and probative value in relation to his specific claim, while avoiding undue
prejudice and hearsay concerns.
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5.48
Becker sues ARCO Chemical Company, alleging violations of the Age Discrimination in
Employment Act.
Becker, age 51, was employed by ARCO and its predecessor for 24 years. He worked in its physical
testing laboratory at the time of his discharge. Victor and Ramey were Becker’s supervisors during the pertinent time period. At trial, Becker seeks to
prove Victor and Ramey fabricated evidence about another employee’s (Smith) work performance in
order to facilitate that employee’s termination.
On direct examination of Becker, the following occurred:
Q. (by plaintiff): What did Victor and Ramey ask you to do?
A. They asked me to lie about Smith’s job performance.
Q. Did you lie?
A. No. I told them I wouldn’t do it.
Q. Did Victor and Ramey say anything?
A. Yes. They both said they would fire Smith without my help.
Defense: I object to this line of questioning. It is entirely irrelevant.
Judge: Plaintiff, what is the relevance of this testimony?
1. What objections should be made?
The primary objection made by the defense is to the relevance of the line of questioning about Victor
and Ramey asking Becker to lie about Smith's job performance and their intent to fire Smith.
2. What are the best arguments to support the objections?
a. Irrelevance to Age Discrimination Claim: The core of Becker's lawsuit is age discrimination. The
alleged fabrication about Smith's performance might be unrelated to age discrimination against Becker,
making it irrelevant to the central issue in the case.
b. Potential Prejudice: Introducing evidence suggesting that the supervisors are willing to lie or act
unethically might unduly prejudice the jury against ARCO, even if it's not directly related to age
discrimination.
c. Hearsay: The statements by Victor and Ramey about their intent to fire Smith without Becker's help
might be considered hearsay if offered for the truth of the matter asserted.
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3. What are the best arguments to oppose the objections?
a. Character and Credibility of Supervisors: Becker could argue that the evidence shows the character
and credibility of Victor and Ramey, which is relevant because if they were willing to lie about Smith's
performance, they might also be willing to discriminate against Becker based on age or lie about the
reasons for Becker's termination.
b. Pattern of Unfair Treatment: This evidence might indicate a broader pattern of unfair or dishonest
treatment by the supervisors, supporting the argument that Becker's treatment was similarly unfair or
dishonest.
c. Not Offered for Truth: Regarding the hearsay objection, the plaintiff could argue that the supervisors'
statements about firing Smith are not being offered to prove the truth of the matter asserted (that they
would indeed fire Smith) but rather to show the supervisors' intent or motive.
4. What are the proper rulings?
The proper rulings would depend on the broader context of the case and the specific legal standards of
the jurisdiction. However, based on the provided facts:
a. Relevance:
The judge might find that the testimony about the supervisors asking Becker to lie has
some relevance to show their character, credibility, or a pattern of unfair treatment. On the other hand, if
the judge determines that this incident is too distant from the age discrimination claim, they might
exclude it.
b. Hearsay:
If the statements are being offered for the truth of the matter asserted, they might be
excluded as hearsay unless an exception applies. However, if they are offered for another reason, such as
to show the supervisors' intent or state of mind, they might be admissible.
c. Potential Prejudice:
The judge would have to weigh the probative value of the testimony against its
potential prejudicial impact. If the judge believes the evidence would unduly prejudice the jury against
ARCO, they might exclude it even if it has some relevance.
In conclusion, while the testimony does provide insight into the character of the supervisors, its direct
relevance to Becker's age discrimination claim is debatable. The judge would need to carefully weigh
the relevance against potential prejudice and other evidentiary concerns.
5.49
In a post-trial proceeding, a federal prisoner claims his lawyer never told him about a plea offer
from the prosecutor. His lawyer is called to testify at the hearing. He says he had represented about fifteen criminal
defendants in the federal courts before the day of his alleged omission. On direct examination by the
Government he says he did tell the defendant about the plea offer. Then the prosecutor asks: Q. Do you have any specific memory of what you told this defendant?
A. No.
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Q. Then how can you say you told him about the plea offer?
A. Because I always pass on a prosecutor’s plea offer to my clients.
Defense: I object and I move to strike that last answer. He is not testifying from first-hand knowledge.
Judge: Mr. Prosecutor, what is your response?
1. What is the defense lawyer’s best objection to this evidence?
The defense lawyer's best objection is that the lawyer's testimony is not based on personal recollection or first-hand knowledge regarding this specific case, but rather on a general practice or habit.
2. What is the best argument in support of the defense objection?
Lack of Personal Recollection: The defense can argue that the lawyer's assertion is not based on a
specific memory or direct knowledge related to the case at hand. Instead, the testimony is a generalized
statement about the lawyer's typical practices. This could be deemed speculative with respect to the
specific events in this case.
3. What is the prosecutor’s best argument in support of the testimony?
Habit or Routine Practice (FRE 406): The prosecutor can argue that under the Federal Rules of
Evidence, evidence of a person's habit or an organization's routine practice may be admitted to prove
that on a particular occasion the person or organization acted in accordance with the habit or routine
practice. The lawyer's consistent practice of always conveying plea offers to his clients can be deemed a
habit and thus admissible to show he likely did so in this particular case.
4.
What is the proper ruling?
Based on the Federal Rules of Evidence, the testimony could be admitted under Rule 406 if the judge
finds that the lawyer's practice of always passing on plea offers is sufficiently regular and consistent to
qualify as a "habit." If so, the lawyer's testimony about his general practice could be deemed relevant
and admissible to suggest that he acted in conformity with that habit in this particular instance.
If the judge is not convinced that this constitutes a habit or believes that this doesn't provide a substantial
basis to infer the occurrence in this specific case, they might sustain the objection and strike the
testimony.
Given the circumstances and potential implications of a plea offer not being conveyed, the judge will
carefully weigh the reliability and relevance of the testimony against its potential shortcomings.
5.54
This is a sexual harassment and sexual assault civil action brought under Title VII of the Civil
Rights Act of 1964. The plaintiff, Jones, alleges Smith, a co-employee at Acme Corp., several times
touched her on the breasts and buttocks and periodically made lewd suggestions to her. Jones alleges she
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complained several times about Smith’s conduct to her foreman, but nothing was done. She sues both
Smith and Acme.
During discovery, the defendants learn the following about Jones:
(1) She has an illegitimate child.
(2) At her last job, six months before she was hired by Acme, she was fired for having sex with a
coworker in the company locker room during work hours.
(3) While working for Acme she posed nude for Playgirl magazine.
(4) Her foreman at Acme several times admonished her for wearing provocative clothing, including
short skirts and low-cut blouses.
(5) She often used swear words during work hours.
(6) She once told a co-worker she liked to pick up men in bars for sex.
During discovery, the plaintiff learns the following about Smith:
(1) In his last job, three months before being hired by Acme, he was disciplined for making unwanted
contact with the breasts and buttocks of female co-workers during work hours.
(2) After being hired by Acme, he was arrested and fined $100 for touching the breasts of a female in a
neighborhood tavern after work hours.
(3) On several occasions after work hours at Acme, while at parties and in taverns, he would show lewd
photographs to females.
At a pre-trial hearing, Jones objects to the information concerning her conduct and Smith objects to the
information concerning his conduct.
Judge: I will ask each counsel to tell me the nature of your objections and why this evidence is not
admissible. First, I will hear from the plaintiff.
1. What are the plaintiff’s best objections and arguments for barring the information about her?
a. Irrelevance: Information about Jones' past behavior, including her having an illegitimate child, her
conduct at a previous job, posing for a magazine, and personal life choices, do not relate directly to the
claims of sexual harassment or assault by Smith. Thus, they are not relevant to proving or disproving the
allegations in this case.
b. Prejudicial Impact: Evidence such as Jones' past employment termination, her magazine appearance,
or her personal life choices might inflame the jury's emotions and prejudice them against her. The
prejudicial effect of such evidence far outweighs its probative value.
c. Character Evidence: The evidence seeks to attack Jones' character by insinuating she has a certain
propensity or disposition. Under Federal Rules of Evidence (FRE) 404, character evidence is generally
not admissible to prove a person acted in conformity with that character on a specific occasion.
d. Past Sexual Behavior: Under FRE 412 (commonly known as the Rape Shield Law), evidence of the
victim's past sexual behavior is generally not admissible in civil cases involving sexual misconduct.
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2. What are the defendant’s best objections and arguments for barring the information about him?
a. Irrelevance: Smith might argue that incidents from his previous job and those occurring after work
hours at Acme do not directly relate to the allegations made by Jones and thus should be excluded.
b. Character Evidence: The evidence presented about Smith's behavior outside of Acme seeks to
establish a propensity for a type of behavior. Under FRE 404, this kind of evidence is typically not
admissible to show action in conformity with a specific character.
c. Prejudicial Impact: Smith could argue that the evidence against him, especially his past discipline and
arrest, would unduly prejudice the jury, making them more likely to side with Jones based on past
unrelated incidents.
3. How should each side respond to the other side’s objections?
Plaintiff's Response: Jones should emphasize that evidence of Smith's prior behavior directly relates to
the case because it establishes a pattern of behavior consistent with her allegations. It demonstrates
Smith's propensity to engage in unwanted sexual contact, which is central to the claims in this case.
Defendant's Response: Smith should argue that Jones' past behavior, especially in the workplace, may be
relevant to her credibility, especially if she's alleging that the contact was unwanted. Smith might also
argue that Jones' past behavior provides context to the environment at Acme and her interactions with
Smith.
4. What are the proper rulings?
a. For Plaintiff's Evidence: Evidence of Smith's past inappropriate behavior with coworkers is likely
relevant as it shows a pattern of behavior consistent with the allegations. His after-work activities might
be more of a borderline issue, but if they show a consistent pattern, they could be admissible. The arrest
for touching a woman might be deemed prejudicial but could be seen as relevant due to its similarity to
the current allegations.
b. For Defendant's Evidence: Most of the evidence about Jones appears to be inadmissible. Her having
an illegitimate child, posing for a magazine, and personal life choices are largely irrelevant to the case
and could be prejudicial. The evidence of her being fired from a previous job for a sexual encounter
might be seen as highly prejudicial and might be barred under FRE 412. The admonishment for wearing
provocative clothing, if it can be linked directly to the harassment claims, might be relevant but is also
problematic due to potential victim-blaming. Lastly, her use of swear words is likely irrelevant to the
allegations of sexual harassment or assault.
5.55
A high school student, Johnson, sued a guidance counselor, Stevens, and the high school that
employed him, claiming sexual abuse under the Civil Rights Act, 42 USC 1983.
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Johnson claims Stevens tried on numerous occasions to hug and kiss her, and at one point
fondled her breasts and vagina. At trial, the plaintiff calls Radwanski, a teachers’ associate in the high school’s restaurant
training program and a friend of Stevens. The defense objects to her proposed testimony about an
incident that allegedly took place shortly before the incident being tried. At an in limine hearing on the
matter, Radwanski testifies as follows: “I had just walked into the office carrying lunch when Mr.
Stevens picked me up and threw me over his shoulder.”
Q. (Plaintiff’s counsel) What happened next?
A. His hand went up my skirt and touched me on my panties in the crotch area while he was raising me
off the floor. Then he let me down and a few of us, including Mr. Stevens, had lunch together. Q. Did his finger linger on your crotch for any period of time?
A. I would have to say no, but it could have been a moment or two. I don’t know if the touching was
intentional.
Defense: I object to this witness’s testimony and ask that it be barred. It is completely irrelevant.
Judge: I will hear arguments.
1. What is the defendant’s best objection to the evidence?
2. What are the defendant’s best arguments to support the objections?
3. What are the plaintiff’s best arguments to oppose the objections?
4. What is the proper ruling?
5.58
The defendant, Amos Gault, was an inmate at the state prison on the day a fight broke out. A
camera showed Gault walking out of inmate Sam Brown’s cell. When the fight ended, Brown was
found on his cell floor, stabbed to death. Gault is charged with his murder. Gault claims he killed
Brown in self-defense when Brown attacked him with a knife.
At a FRE 104(a) hearing before trial, the following happens:
Prosecutor: Your Honor, we move to bar any evidence that Sam Brown committed specific acts of violence against others at any time before the events involved in this case.
Judge: Defense, what evidence do you seek to offer?
Defense: I will prove Brown attacked an inmate with a knife a month before this incident, and I will prove that on the morning of the fight Brown threatened another inmate with a knife.
Judge: Prosecution, what is your objection to that evidence?
1.
What objections and motions should be made?
Irrelevance (FRE 401): The prosecutor could argue that past acts of violence committed by Brown are not directly relevant to the events of the day in question.
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Prejudicial (FRE 403): Introducing evidence of prior violent acts by Brown could unduly prejudice the jury against him, potentially leading them to believe he was inherently violent, thus clouding their judgment on the specific facts of this case.
Character Evidence (FRE 404(b)): This rule prohibits using evidence of a crime, wrong, or other act to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character. The prosecutor could argue that introducing Brown's prior violent acts would be impermissible character evidence
.
2.
What are the best arguments to support the objections?
Irrelevance (FRE 401): The prosecutor could argue that past acts of violence committed by Brown are not directly relevant to the events of the day in question.
Prejudicial (FRE 403): Introducing evidence of prior violent acts by Brown could unduly prejudice the jury against him, potentially leading them to believe he was inherently violent, thus clouding their judgment on the specific facts of this case.
Character Evidence (FRE 404(b)): This rule prohibits using evidence of a crime, wrong, or other act to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character. The prosecutor could argue that introducing Brown's prior violent acts would be impermissible character evidence.
3.
What are the best arguments to oppose the objections?
Self-Defense: Gault's defense is that he acted in self-defense. The defense could argue that evidence of Brown's prior violent acts, especially with a knife, is directly relevant to Gault's state of mind and his belief that he was in imminent danger.
Exception to Character Evidence: While FRE 404(b) prohibits character evidence in most situations, it allows for the evidence if it's used for purposes other than to show action in conformity therewith. In this
case, the defense could argue the evidence is necessary to prove a pertinent trait of the victim's character
(i.e., his violent tendencies).
Probative Value > Prejudicial Effect: The defense could argue that the probative value of Brown's prior violent acts in supporting Gault's self-defense claim substantially outweighs any prejudicial effect to Brown.
4.
What are the proper rulings?
It's up to the judge's discretion based on the evidence presented and the arguments made. However, the judge might consider:
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The evidence of Brown attacking another inmate a month before might be admissible since it's close in time and similar in nature (using a knife), thus relevant to Gault's state of mind and the reasonableness of his belief that he was in imminent danger.
The evidence of the threat on the morning of the fight is even more closely related in time and could be highly relevant to Gault's perception of the threat posed by Brown. The judge might admit this as well.
5. How else could these issues have been resolved?
Stipulation: The parties could agree or "stipulate" to certain facts, which would then be presented to the jury without going into the details of the prior acts. For example, they might stipulate that Brown had violent tendencies without detailing each prior act.
Limiting Instruction: If the judge admits the evidence, they could give the jury a limiting instruction, directing them on how they can and cannot use the evidence. For instance, they might be instructed to consider the evidence only for the purpose of evaluating Gault's state of mind and not to infer Brown's general character.
In Camera Review: The judge could review the evidence outside the presence of the jury to determine its
admissibility.
Balancing Test: The judge could weigh the probative value of the evidence against its prejudicial effect (as under FRE 403) to determine whether it should be admitted.
Johnny being nervous laying th
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