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Question 1
There are several areas through which the defense may challenge the admission of the 911 tape.
First, the defense may object to the form and content of the taped evidence. The Best Evidence Rule requires that the original of a recording be offered unless otherwise provided by the Federal Rules. An original is not required if it can be established that it has been lost or destroyed, is not obtainable, is in the possession of the opponent or is not related to a controlling issue. Here there is no information about whether the tape evidence is the original or not, however, because only a portion of the tape is being offered, it is likely not. Unless the Government can prove one of the exceptions mentioned, the original tape must be used. If it is not the original, the Judge should sustain the objection by the defense.
Since only a portion of the tape is being offered, the defense may also object on that basis. The defense may require the introduction of the remainder of the tape that should be considered along with it when it is necessary to explain the other portion, put the other part in context, will avoid misleading the triers of fact, or will ensure a fair and impartial understanding of the tape. For instance, if Jenna is later heard on the tape muttering in the background that she'll frame that so and so for murder after she commits suicide, the remainder would be pretty important to the understanding of the first part of the call to 911. If the defense can advance one of the reasons here for admitting the additional portion of the tape, the judge will rule in their favor.
Additionally, the defense may object to the evidence because it has not been properly authenticated. The 911 operator could be called as a witness to testify that the contents of the tape are as she experienced them at the time and that the tape is what it is claimed to be. If there is a process for maintaining the taped conversations, that process could be testified to in order to establish that the tape is what it is claimed to be. In addition, the chain of custody of the tape should establish that the tape is the same one in the events. Since we may be dealing with a copy or a.partial portion, this could be a more difficult thing to accomplish. On this matter, the judge should rule for the defense.
Even if the evidence is proper in form, it must be relevant. Evidence is relevant when it is probative of a fact in consequence to the determination of the action. The judge will rule on the issue of relevance. Here the 911 call would appear to be relevant to whether John was the one who attacked Jenna. However, relevant evidence may be excluded when its probative value is
substantially outweighed by the dangers of unfair prejudice, confusion of the issues or misleading the jury or by the considerations of undue delay, waste of time or cumulative evidence. The judge will rule on this balancing test and will likely find that the evidence not to be excludable. Under this rule the weight of the test favors admission.
Under the issue of relevance is the question of whether the taped statements contain inadmissible character evidence. Statements that convey that a person acted within their character on a particular occasion are not admissible with certain exceptions. Here, Jenna is talking about John's propensity to become violent under a set of circumstances. The defense could object on the basis that this is being offered as evidence of a violent character and that it was his propensity to use the violent character to commit the crime for which he was accused. The Government could make an alternate arguement that the evidence is being offered to show that John had motive and intent to commit the murder of Jenna as shown through his other bad
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acts of hitting and kicking her in the past and as such, the offering of this evidence would be an exception to the prohibition of admitting character evidence. On this claim, the judge would like rule to admit because of the proximity in time to the the other crime and the similarity to the circumstance of it. The judge may give the jury a limiting instruction to require them to limit their consideration of the taped testimony to only that which is allowed.
The defense could object that the tape is hearsay. Hearsay is an out of court statement offered to prove the truth of the matter asserted and was made by a person other than a testifying witness. Here the question is whether Jenna's statements on the tapes would be offered for the truth of the matter she is asserting. If relevant for the truth that John murdered Jenna they would be hearsay. If relevant to show that Jenna was afraid of John the tape would not be hearsay. Each individual sentence uttered by Jenna is considered a statement. The judge may rule that some of them are hearsay and others are not. The judge must consider each problematic statement individually in order to make a ruling. The statement starting with "get the police here right now!" could fall under the hearsay exception for excited utterances. It is a statement that relates to a startling condition or event made under the excitement and stress of the event. The judge would likely admit the statement if relevant. The other pertinent statements have already been discussed earlier in this essay.
Question 2
Part [a] The first issue is whether Wendy can testify against her husband at all. The Adverse Spousal Testimony privilege is applicable in federal cases only. Here the trial is in federal court and although it is not specified in the problem, this would appear to be for a federal charge of bank robbery. The privilege is triggered when one spouse is called to testify against the other spouse. Here Wendy has been called to testify against Hal. The privilege is held by the testifying spouse and the defendent spouse cannot prevent testimony. The privilege is only applicable in criminal cases. However, because Wendy and Hal are no longer married at the time of the trial, Wendy could not invoke the privilege in any case.
The marital Confidential Communications privilege is available to either spouse and prevents disclosure by the spouse who is the witness of any confidential communications made with the defendent during their marriage. The marriage need only to have existed at the time of the communication. The privilege may be invoked in both civil and criminal cases and does not cover any non-confidential communications. Unless either Wendy or Hal invoke the privilege there is no problem with Wendy's testimony to their confidential conversations during the marriage.
Considering the statements that Wendy is expected to testify to, the privilege mayor may not apply.
(1) If the privilege is invoked in regard to this statement it must first be shown that it was meant to be a confidential communication. If the privilege is not claimed it will be waived. Failures to object in a timely and appropriate manner can constitute a waiver as well. Hal's attorney will object to Wendy's testimony as hearsay. Testimony by Wendy (no privilege invoked) would be subject to the rules of hearsay because she is testifying to an out of court statement offered to prove the truth of the matter asserted that was made by Hal. However, admissions by a party-opponent are not hearsay when the statement is offered against a party and is the party's own statement. In criminal cases, statements made by an accused made prior to arrest are admissible against him as admissions. The sequence of events here would
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ID: DOO1312 Evidence^ Rebecca Cochran
expert's testimony must be reliable, that is, based on sufficient facts or data, is from reliable priniciple and methods and the expert applied those reliably to the facts. The judge will consider this using the Daubert factors as expanded under Kumho Tire to include technical and specialized testimony and which clarified that the trial court is to determine the reliabilty of the testimony and will admit testimony where it meets the sufficient threshold of reliability.
To determine whether Early meets the qualifications to be an expert her education credentials will be considered. She received her two degrees from a top university and her graduate degree is a business degree that has a relationship and training in regard to financial markets including stocks. While licensure is not required, if it is generally found that an expert in securities will be licensed the court can weigh that in its finding. Since Early is a manager in a stock brokerage and does not deal with stocks and has not done so for at least ten years, the proponent will have to show that this is not a barrier to her providing competent testimony about stock transactions. Additionally, the court will have to determine whether the methods Early used to prepare her testimony are an accepted method of analyzing the data she plans to present in her testimony. The opponent will certainly argue that Early's lack of direct involvement with trading and stocks lessens her ability to testify as an expert. Additionally, the can argue that the long absence from contact with that subject diminishes her reliability. Further, they can argue that there are others that have more recent experience that would be able to testify in a more reliable way than Early.
The court will also review whether the testimony by Early will assist the factfinder to decide the case. If the evidence is "sufficiently tied to the facts of the case" it will be found to do so. Here evidence of the unauthorized trades v. the trend of the general stock market or a representative sample of it could be considered sufficiently tied to the question of whether the trades resulted in the loss of a large sum of money.
The Rule 403 balancing test may still exclude testimony in some cases.
In all, I would tend to say that the court could permit the testimony of Early because she has the qualfications to be an expert. She may not be the best expert, but she does have the knowledge to present the data here.
[b] There are two types of summary charts. They are Summary charts under Rule1006 and Pedagogical summary charts where testimony and evidence already offered at trial are contained. Here we have the former of the two. Rule 1006 allows that summaries of the contents of voluminous writings that cannot be conveniently examined in court can be presented by chart or summary. Here there is two months worth of data from multiple sources that would not be easily reviewed if not put into a more friendly format. The underlying materials used to make the summary or chart must be admissible, however. Newspapers and periodicals are considered self-authenticating so the information gleaned from the Wall Street Journal and the newspaper would be admissible. The information about the stock trades themselves was taken from monthly brokerage statements sent from the Defendant to the Plaintiff. The best evidence rule would require the production of the originals, however, duplicates could be admitted as an original unless there was a question raised to their authenticity or it would be unfair to admit them. Further, the documents would have to be authenticated which could be done by testimony. Additionally, the documents themselves would have to be available for inspection if requested.
PROP. fi of R
Question
[a] When a witness cannot recall a matter, a writing may be used to refresh their memory. First, counsel must establish that the witness's memory is exhausted. We don't know if that happened here. Then, counsel can show it to the witness and let them read it silently. That is what appears to have happened here and it is allowed. There was no objection that the writing did not pertain to the testimony or that any parts of the writing were objectionable. The judge ruled correctly.
[b] Evidence of Measures taken after an injury caused by an event that would have made the injury less likely if taken previously are not admissible to prove negligence. This is a policy driven rule to encourage people to make corrections to conditions after an event without penalty. Evidence of the subsequent measures may be offered for other purposes such as proving ownership or impeachment. Here the purpose was to correct safety issues and that relates directly to the issue in the negligence case. The judge ruled correctly.
[c] A witness may testify to first hand knowledge of an event. However, it must be relevant
- that is probative of a fact in consequence to the determination of the action. The judge's ruling would be correct if the testimony was relevant and there is not enough information to determine this. For instance, if the company's claim of Sam's own negligence is based upon Sam running the machine at an unsafe speed, Anne's observation is likely to be relevant.
[d] Martin's testimony involves hearsay in the form of the letter she received from Fran. It is an out of court statement that she had seen the accident. The question is whether there is an exception under the hearsay rule that would allow the introduction of the letter. While Fran described the event in detail in her letter, she did not make the writing immediately after the event or during the event so it would not be a present sense impression. There is no evidence that Fran is unavailable to testify and that she could not be compelled to do so. That she wishes not to testify is irrelevant. The letter is hearsay and there is no exception to the rule. The judge did not rule correctly in allow the testimony about the letter.
[e] The court may call a witness on its own motion. The judge was correct here. The court may interrogate the witness it calls. Either party may object to the calling of the witness. They may do so at the time or at the next available chance when the jury is not present. All parties may cross-examine the witness. The other rules as to relevance and hearsay apply.
Question
Greenburg would be testifying as a lay witness. His testimony would be limited to
opinion or inferences that are based upon his perception or experience, help to
det~rmine facts at issue and are not based on scientific, technical or other specialized
knowledge. Greenburg is testifying from first hand knowledge of his own experience
which is allowed if relevant to the facts in consequence of the case. He had hairloss
before using the product so his hairloss after using the shampoo mayor may not be
attributible to the use of the product. The defense will object that the testimony is not
relevant.
P",,.,o I'; "f A
