Problems from Handout #2,



Problems from Handout #3,

Evidence Fall 2008,

Professor John Barkai

HEARSAY HYPOTHETICALS

Are the following statements hearsay?

1 Auto accident. In court, plaintiff's witness testifies, "The red car drove through the red light."

2 Same case. Cop testifies, "When I got to the accident scene, an eyewitness told me the red car ran the red light."

3 Same. Cop testifies "When I got to the accident scene, an eyewitness told me the red car was at fault."

4 Same. Cop testifies "I got the eyewitness to write out what he saw. Here's the written statement." Is the written statement hearsay?

5 Same. What the eyewitness wrote was notarized by a priest, who was passing by at the time of the accident. Is the notarized statement hearsay?

6 Same. Eyewitness testifies "I told the cop at the scene that the red car ran the light."

7 Same. Cop testifies "At the scene, I asked the crowd who ran the light, and a tall guy pointed to the Defendant."

8 Eyewitness #2 testifies that the red car had a green light. D then offers eyewitness' prior written statement to cop, written during the post-accident investigation, that the red car had the red light. Is the written statement hearsay? Admissible?

9 Treason prosecution. Prison guard testifies that "Yesterday Lord Cobham told me that he and Sir Walter Raleigh were planning to cut the throat of the soon-to-be king."

10 Testimony that a tracker dog went from the dropped glove to O.J. and wagged its tail.

11 Contract action. P claims D said "I accept your offer."

12 Defamation action. P claims that D said, "P is a lying pig."

13 Prostitution case. Cop testifies that defendant said "Want to have sex for money?" "Asobi masho ka?" [translated 'Would you like to play?']

14 D has P's car. Issue: Did P give or loan her car to D? P testifies that she told the defendant that "You can borrow my car for a week."

15 Negligence case. Auto accident. P, driver of car # 1, is injured. Is mechanic's statement to driver # 2 (D), "Your brakes are bad," made before the accident, admissible?

16 A passenger in D's car was hurt in accident and sues. Can D introduce his own statement, which he made to the passenger, to show that the passenger assumed the risk of riding with D? The statement was, "I have to get these brakes fixed"

17 Will contest. A witness testifies that 5 months before he died, the deceased said "My son Larry is a no good spendthrift bum." Larry objects. Is that hearsay?

18 Criminal insanity defense to a murder prosecution. W testifies that before the crime, the defendant said, "I am the Pope and I am on a mission from God."

19 What if the defendant said "I think I am the Pope."

20 On the issue of whether P was suffering from a heart condition, evidence that P's doctor transferred P to the cardiac ward of the hospital.

21 During a post-robbery investigation, a cop describes to a suspect (later the Defendant) what the criminal was wearing during the crime. D says to his wife, "I don't have any clothes like that do I honey?" Wife faints. Is the fainting hearsay?

22 Same case, but during the investigation, the cop asks the wife, "What was your husband wearing yesterday?" Wife hands cop a shirt. Is handing the shirt hearsay?

23 Prosecution for illegal bookmaking. While raiding the house, FBI agents answer the phone and hear "Give me U.H. this weekend for $50."

24 Prosecution for reckless driving. When the police stopped the car, a passenger was overheard by the police to say, "I would never ride with him again."

25 Bob is charged with battery. Witness will testify that the victim called out, "Bob, let me go."

26 If you are using conduct or implied assertions as circumstantial evidence of a person's belief, and you are trying to prove the truth of that belief, is it hearsay?

PRIOR STATEMENT PROBLEMS

1. In a slip-and-fall case, the plaintiff calls a witness to testify that moments before the plaintiff slipped in a certain area, the ground was full of mud and "muck." On cross examination, Wanda was asked if she had stated in a deposition just three weeks after the accident that the surrounding area "looked damp, but was actually firm and solid." Is the witness's prior statement admissible? If it is admitted, is it allowed as (a) impeachment? (b) for the truth of the matter asserted? (c) both impeachment and substantive evidence? or (d) neither impeachment nor substantive evidence? (JB Note: SF)

2. At trial, Lenny is cross-examined about the contents of a briefcase he was carrying two years earlier. Lenny responds to plaintiff's counsel by saying, "The briefcase only contained two pairs of socks and no classified papers."

a. If one month prior to trial, Lenny had made a prior inconsistent statement to a friend, Melissa, about the contents of the case ("The case had two top secret documents," said Lenny.) Can the statement to Melissa be offered for the truth of the matter asserted?

b. If Lenny had made the prior statement about the briefcase to the police during an interrogation, would it be admissible for the truth of the matter asserted?

c. If the prior inconsistent statement to the friend (a) is elicited on cross-examination, can Lenny testify on redirect examination that, "I told my wife, Shari, two years ago that the case contained only two pairs of socks and nothing else."

3. The defendant testifies in a civil suit about the accounting books kept by his company, Gilko and Associates. On cross-examination Bob is asked whether the figures he quoted were recently created "due to the potential multi-million dollar judgment in this lawsuit." On re-direct examination, Bob indignantly stated, "Hey, I told my partner more than one year ago, before I had ever heard of this lawsuit, that those were the correct figures?'

a. If Bob's statement is objected to as hearsay, what ruling and why?.

b. Does it matter whether Bob's prior statement is under oath?

4. Rebecca gave a "7-11" Store cashier a counterfeit $20 bill, and the cashier called the police. When the police arrived, the cashier pointed to Rebecca as the person who handed her the counterfeit bill. Rebecca was arrested and later prosecuted.

a. At trial, almost two years later, the cashier testified that she does not remember what the robber looked like. The cashier then testifies that she does remember identifying a person as the robber in the store just after the robbery. Is the cashier's testimony about this prior identification hearsay? Is it admissible?

b. The day Rebecca was charged with passing a counterfeit bill, a stock boy came down to the police station and picked Rebecca out of a line-up as the person who passed the $20 bill. By the day of trial, the stock boy has moved to the mainland and is not available as a witness at trial. May the police officer testify about the stock boy's identification of Rebecca?

ADMISSIONS PROBLEMS

Are the following statements admissible? Why or why not?

PARTY: self; adoptive/tacit (silence)

VICARIOUS: authorized; employee (agent/servant); co-conspirator

HAWAII: deceased in wrongful death; predecessor in interest, in litigation

1 Slip and fall in Long's Drugs. Clerk who saw the fall comes by and says, "Sorry you fell. I was just getting ready to mop up that mess." Is the clerk's statement admissible against Longs?

2 Auto accident "Dart out" case. Billy Boy was hit on his bike by a car. W1 heard driver say the next day, "I am real sorry about the little boy. I never saw him." (G)

3 In Billy Boy's case, W2 heard the driver say, "It must be my fault."

4 W3 heard Billy Boy's mother (who didn't see the accident) say, "I knew my son's wild bike riding would get him in trouble some day." (G)

5 Two brothers are in a dispute over who owns a family heirloom. Before the dispute arose, W heard B1 say, "B2 is great. He is letting me use his heirloom." B2 later sues B1 to establish ownership of heirloom. Is B1's statement admissible against him? (TG)

6 Criminal case. Dan is charged with robbing a store. W testifies that she saw Dan running away from the store right after the robbery. Admissible?

7 P was badly injured when attacked by a large dog outside of D's warehouse. It is undisputed that D was out of the state on the day of the attack. D denies ownership of the dog. Two weeks later while trying to purchase theft insurance, D tells an insurance agent, "We should qualify for a low rate. Recently one of our watchdogs bit a prowler and laid him up." (F&S)

8 P claims he has a back injury. At trial, defendant wants to introduce a xerox copy of an employment application with the following notation: "Q: Physical disabilities?" To which P answered, "None." Admissible?

9 Would your answer be different if in the above question P instead attached a report of a health physical in which the doctor said that P is in "excellent health?"

10 Def. I owe you $10.

P. No, it's $20.

Def. (Silence) Is the silence admissible?

11 Can the prosecutor ask the defendant about his silence by asking on cross examination, "When detective Jones talked with you about the fight, isn't it true that you never said anything about acting in self defense?"

12 P is injured in rental car accident. Rental car company mechanic told the P's investigator that the rental car needed new brake linings. Can the investigator testify about the mechanic's statement?

13 Mechanic in the above question is fired for sloppy brake work before he makes the statement to the investigator. The investigator finds the mechanic at home and gets the above statement. Is the statement admissible?

14 A company driver takes the company truck home overnight for personal use, and that night he hits a pedestrian. The driver and the company both are sued by the pedestrian. The driver later tells a witness, "The brakes were bad." Admissible? Against whom?

15 P signs a civil complaint, alleging the accident happened on a rainy day. P later amends complaint to allege the weather was clear and dry. D wants to introduce the first complaint into evidence. Admissible? Binding?

16 Larry, Moe, and Curley methodically planned a series of bank robberies. Before the first robbery, when Larry told Curley to "Go steal a car," Groucho overheard that statement. When the three of them are tried for conspiracy to commit bank robberies, the prosecutor offers Groucho's testimony about Larry's statement in the trial of Larry, Moe, and Curley. Admissible? (SF:187)

17 Before Larry, Moe, and Curley were able to carry out their second robbery, the police learned of their plans and arrested them. During the arrest, Moe blurted out "Okay, so we were going to rob some banks. You wouldn't have caught us except you got lucky. Larry and Curley had mapped out ingenious plans." If the prosecutor offers Moe's statement, is it hearsay? Admissible?

18 Is there any change in the admissibility of Moe's statement above if the three defendants are charged only with attempted bank robbery and not conspiracy to rob a bank?

19 Does it matter if Larry, Moe, and Curley are tried jointly or separately?

20 How will Bruton v. U.S, 339 U.S. 122 (1966) affect the admissibility of Moe's statement?

21 A owns property. A says, "I know that X is living illegally on the property." A sells to B. X later sues B for title under adverse possession doctrine claiming open, notorious use. Is A's statement admissible against B?

PRESENT SENSE IMPRESSION &

EXCITED UTTERANCE PROBLEMS

OCD = out of court declarant; PA = prosecuting attorney; W = witness

Are the following statements admissible?

1 Two-car auto accident on H-1. W & OCD in a third car. W will testify for D that OCD said as P's car passed them, "They must be drunk. If they keep speeding we are going to find them wrecked up ahead." Admissible? Why or why not?

2 Dave says to W, "Come look at that hot rod in the red car. He just caused an accident." Admissible?

3 To prove Rick killed the OCD, can the prosecutor introduce testimony of W, who was talking to OCD by phone, when OCD said to him, "Rick is here. I'll talk to you later." Admissible?

4 Wrongful death of a Hawaiian Electric lineman. Deceased OCD lineman put away cellular phone and said to co-worker, "I just told them at central to cut the power off to this line". He touches the line and is electrocuted. Admissible?

5 Car and motorcycle accident. P wants to offer the statement that a few minutes after the accident, he heard an unidentified person say to another unidentified person, "I'm sorry, I didn't see him." Admissible?

6 Driver OCD says "Oh my God! The wheel is locked!" Can passenger W testify to that? Admissible?

7 Five weeks after a robbery, the robbery victim sees a picture in the business section (new promotions) of the Sunday newspaper and screams "That's the man! That's the man!" Admissible?

8 When P slips and falls on junk outside of a store, a person from the next store says, "Let me help you up. That junk has been here for several days." Admissible.

9 When P comes home at night, P tells spouse, "My Sure-track shoes couldn't keep me from falling today." Can P introduce this testimony using the spouse as W?

PRESENT STATE OF MIND OR PHYSICAL

CONDITION PROBLEMS

FRE803(3) / HRE803(b)(3)

1A After the accident, Tim Brown ran over to try and help Billy Boy. May Tim Brown testify to each of the following statements?

(a) Barbara Green, Billy Boy's mother, immediately yelled out, "Help, Billy's been hit by a truck. Why was the truck going so fast?"

(b) About one or two minutes after the accident Billy Boy stated in a calm voice, "Mother, my leg feels broken. I think the truck driver didn't see me."

(c) When the ambulance driver arrives fifteen minutes later, Barbara Green in an excited voice tells him, "He was hit by that truck (pointing). It didn't stop to let Billy cross the street. Billy says his leg feels broken."

2. OCD says,

A) "I am going to Crooked Creek."

Can it be used to prove your intent to go to Crooked Creek.

B) "I am afraid of Dr. Shepard."

Can it be used to prove she (murder victim) was afraid of the doctor in the homicide case against the doctor?

3. A) "I am going to Crooked Creek."

B) "I am going to Crooked Creek with Hillmon."

C) "I am going with Frank."

Can it be used to prove you went there?

4. "I am going to Crooked Creek with Hillmon."

Can it be used to prove Hillmon went there?

5. A) "I went to Crooked Creek with Hillmon."

Can it be used to prove you went there?

B) "Dr. Shepard has poisoned me."

Can it be used to prove Shepard poisoned the OCD?

6. "I am the President of the U.S." Admissible on issue of sanity of the declarant?

7. In a case about a contested will, Son sues because he was left out of the will. To prove Testator intentionally left Son out of the will, W will testify that Testator said:

A) "My son robbed me blind every chance he got."

B) "I intend to leave nothing to my son." (said 2 weeks before he signed the will)

C) "I left my son out of the will." (said 2 weeks after he signed the will)

Are these statements admissible? Are they hearsay or hearsay exceptions?

MEDICAL DIAGNOSIS OR TREATMENT PROBLEMS

FRE803(3)&(4) / HRE803(b)(3)&(4)

Plaintiff is in an accident at work. Immediately thereafter he walks across the street to a lawyer who has a doctor who works with him. As the lawyer drafts the complaint, the doctor examines the plaintiff. From this office, the plaintiff calls his wife and tells her what happened. She calls his personal doctor and tells him what happened. The personal doctor prescribes some medicine for his pain. For the next two years the plaintiff tells his friends about the accident.

Which of the following statements are admissible when they are made to the various people listed on the chart below?

|Statements made by plaintiff to: |Doctor working |Wife |Personal Doctor |Friends |

| |with the Lawyer | | | |

|a) I was feeling dizzy. | | | | |

|b) I tried to throw the switch. | | | | |

|c) It was out of order. | | | | |

|d) It hurt my back. | | | | |

|e) I have pain in it now. | | | | |

|f) I have a bruise on my leg | | | | |

|g) I injured my back 5 years ago too. | | | | |

PAST RECOLLECTION RECORDED PROBLEMS

FACTS: While witness (W) was walking down the street, he saw an accident and immediately wrote in his note pad, "The blue car went through the red light."

1 W is not available for the trial, but his notes are. Can the notes be offered into evidence as past recollection recorded?

2 W is available at trial, but does not remember. Are the notes admissible? Under what conditions? Can the Proponent of the evidence introduce the notes? Can the Opponent introduce the notes?

3 Driver of the blue car said to W, "I ran the red light." Is the statement admissible if it's included in W's notes above?

4 Pedestrian said to W, "I saw the blue car run the red light." Is that statement admissible if it is included in the notes?

5 W is actually a reporter for the newspaper. He calls his office and dictates notes regarding the accident to his secretary. Are the notes, as transcribed by the secretary, admissible?

7 Assume that W cannot remember the details of the accident at trial. Assume further that W did not dictate notes, but he did tell his secretary about the accident. The secretary does remember the conversation with W about the accident. Is the secretary's testimony admissible?

8 Jane is prosecuted for murder after allegedly participating in a drug deal that went sour. At trial, the government informant, Iggy, testified that Jane told him to call a certain telephone number for the drugs. That phone number linked Jane to the victim. Iggy wrote down the phone number two hours after learning about it. Iggy has taken too many drugs. He can't remember the phone number at trial. The paper with the number on it does not refresh his memory. Can the prosecutor introduce the paper?

9 What questions are necessary to lay the foundation for the notes under any of the above situations in which the notes would be admissible?

BUSINESS RECORDS PROBLEMS

RECORDS OF REGULARLY CONDUCTED ACTIVITY

1 A police officer took measurements at an auto accident scene of the Blue Car v. Yellow Car auto accident. However, the officer cannot remember the measurements at trial. What can be done at trial to get evidence about the measurements into evidence?

2 Hawaii Liquor Commission v. Jones. To prove that Cut-Rate Liquors had Thunderbird wine in stock on April 5th, may the plaintiff introduce inventory records made on March 31st? If yes, who could testify about the inventory records?

3 After a pedestrian, Mrs. P, was killed by bus, the bus driver was interviewed by the bus driver's supervisor. Driver signed a statement at the end of the interview in which he denied that he was negligent. The driver died before trial. Can bus company introduce the driver's statement in the trial of P's Estate v. The Bus Company?

4 A hospital record indicates that "patient suffered a broken leg and severe shock when hit by the car that went through a red light." Is the hospital record admissible?

5 Auto accident - Blue Car v. Yellow Car. Defendant, driver of the yellow car, wants to offer into evidence the police accident report written by Officer Jones on the day of the accident. The officer arrived 10 minutes after the accident. Is the report admissible?

6 Are the following parts of the Officer Jones' report admissible?

"A woman said that she had seen everything and that the blue car ran the red light."

7 Officer Jones' report also said:

"The driver of the yellow car told me that the driver of the blue car ran the light."

8 Officer Jones' report also said:

"The driver of the blue car said that the sun was in his eyes."

9 Officer Jones' report also said:

"The driver of the blue car said that he had been hurrying to get across town."

10 Officer Jones' report also said:

"The driver of the yellow car told me that she had a bad headache."

11 Officer Jones' report also said:

"Officer Smith told me that she was on the scene at the time of the accident. She said she saw everything. She said the blue car ran the light."

12 Officer Jones' report also said:

"Officer Lee told me that he heard the crash and arrived within 30 seconds, and that the driver of the yellow car said that the blue car had run the light.'

13 Officer Jones' report also said:

"A fellow officer Smith told me that she heard the crash and arrived within 30 seconds. A woman told her that she had seen everything, and that the blue car had run the light."

14 Issue: whether cargo in a Matson container got contaminated while in transport. It is normal business practice to clean and inspect containers before putting cargo inside, and to put information about the cleaning and inspecting into a report. The record in this case does not indicate any cleaning and inspection. Is the record admissible?

PUBLIC RECORDS PROBLEMS

HRE 803(B)(8) = FRE 803(8)

1 Police Officer Onscene arrived at the scene of a Honda v. Buick accident and prepared an accident report. The report included a statement to the officer from a bystander who said, "I can't believe the guy in the Buick made a left turn after the light had turned red." In a subsequent personal injury action, can the report be introduced by either party?

2 Can either party in the above accident introduce the records of the U.S. Meteorological Service showing the weather on the day of the accident?

3 Officer Onscene has been trained in accident reconstruction. Using point of impact, other measurements, vector analysis, and statements of bystanders, the officer concludes that the Buick ran the red light, and writes this conclusion in the report. Can the police officer testify as to her conclusion in court?

4 The police officer comes to court, but has done so many accident investigations, she cannot remember this particular accident. What can the Honda driver do?

5 The police officer died in the line of duty. Can the Honda driver introduce the officer's report?

6 If "yes," what foundation must be laid?

7 The driver of the Honda died as a result of injuries received during the crash. Is Onscene's report admissible in Buick driver's subsequent negligent homicide trial?

8 The Buick driver was tested for alcohol consumption by Officer Bier at the station and registered .18 blood alcohol consumption (legally drunk) using a breathalyzer. Bier wrote a report to this effect. Before the Buick owner's DUI trial, Officer Bier retired and moved to California to run Cut Rate Liquors L.A.. Is Bier's report admissible?

9 Bier returns to Hawaii and does testify in the Buick driver's trial. However, the person who gives the breathalyzer its monthly test and certifies in a log that the machine is accurate, is not available to testify. The police ask for your opinion as to whether they will be able to admit the evidence against the Buick driver. What is your opinion?

EXPERT TREATISE,

JUDGMENT OF PREVIOUS CONVICTION

& OTHER 803 HEARSAY PROBLEMS

1. Bobby the building owner sued his insurance company because it has not paid him on the insurance policy for his building that was destroyed by fire. The insurance company defends on the ground that Bobby set the fire and is therefore not entitled to the insurance proceeds. Bobby was convicted of arson of the building before his civil trial against the insurance company started. At the civil trial, can the insurance company introduce the fact that Bobby has previously been convicted of arson of his own building?

2. Can the Hawaii Liquor Control Commission introduce the public intoxication conviction of Walter Watkins to show that clerk Dan Jones sold liquor to an intoxicated person? Watkins' conviction was punishable to six months in jail. He served a 10-day sentence.

3. Paul Patient sued Dan the Doctor for medical malpractice for allegedly failing to come to the hospital when Paul needed his attention. Dan had admitted Paul to the hospital for an operation to repair a broken leg. One night at the hospital, at approximately 3 a.m., Paul complained of pain in the leg and lack of feeling in his toes. His toes were cold and bluish in color. These are indications that the cast was cutting off the circulation in Paul's lower leg. Dan's defense is that he was never informed of the seriousness of the symptoms. Paul, in his case-in-chief, seeks to introduce a textbook that during a deposition Dan recognized as a reliable authority. The relevant portion of the textbook states:

"One of the clearest symptoms that a leg has been cast too tightly is the loss of feeling resulting from decreased circulation."

Is the textbook admissible by Paul? (Guer 4.44)

4. Paula and David have an auto accident. David drives a truck for his Dad's Laundry. Both drivers claim the other ran a red light causing the accident. After the auto accident but prior to trial, David was convicted of driving under the influence of alcohol, a misdemeanor. Is that conviction admissible in the auto accident trial? After David's truck hit Paula, it ran up on the sidewalk striking Harriet. Harriet died and Dave was tried and convicted of negligent homicide, a felony. Is Dave's conviction for negligent homicide admissible in the auto accident case with Paula? Does it matter that the conviction will also be used against Dad's Laundry? (Guer 4.45)

5. Plaintiff seeks to establish the value of her property by showing the value of comparable properties. To establish the value of comparable properties, plaintiff seeks to introduce the "Guide to Real Estate," a monthly publication produced by local real estate agencies, showing residential properties for sale in the Honolulu area. Defendant objects. What ruling? (Guer 4.46)

6. Plaintiff brings suit on a life insurance policy, claiming he is entitled to double indemnity because of the accidental death of the insured. The insurance company seeks to introduce a certified copy of the insured's death certificate which states that death was the result of a heart attack. Plaintiff objects. What ruling? (Guer 4.47)

FORMER TESTIMONY PROBLEMS

1 Criminal case. W testifies before a grand jury that D committed the crime. If W is unavailable for trial, is W's grand jury testimony admissible at trial? Why?

2 Criminal case. W testifies at a preliminary hearing that D committed the crime. If W is unavailable for trial, is W's preliminary hearing testimony admissible at trial? Why or why not?

3 In the example above, if the defendant's lawyer did not cross examine W at the preliminary hearing, is the preliminary hearing testimony admissible at trial?

4 Civil case: At a pretrial deposition, W testifies that P ran the red light. If W is unavailable for trial, is W's deposition testimony admissible at trial against P?

5 Kekona testifies against defendant Lincoln at his criminal trial. Lincoln is convicted, but the case is reversed by the Supreme Court. If Kekona is unavailable for a second trial, is Kekona's testimony admissible?

FACTS: P1 & P2 are riding in a Taxi that has an accident with a bus. P1 sues Taxi (P1 v. Taxi Company). P1 testifies to facts that show that the taxi driver was negligent. WT (wit for Taxi) testifies that Taxi was not negligent. Jury finds for P1.

6 P2 now sues Taxi Company in another suit (P2 v. Taxi), again for negligence. Can P1's testimony be introduced by P2 against T?

7 Assuming P2 can find a good use for it, can P2 introduce WT's testimony against Taxi?

8 Can WT's testimony be introduced by T against P2?

9 P is seeking damages for an asbestos-related disease. In a earlier trial, W gave testimony about the amount of asbestos in Company A's product. In this case, P sues Company B involving a product similar to the one produced by Company A. Is W's testimony from the trial with Company A admissible in the trial with Company B?

10 Another P is seeking damages for asbestos-related disease, P sued Company X claiming that it had made some of the asbestos-containing products that P had worked with during his career as a pipefitter. May P offer testimony of unavailable W who testified at a trial involving similar products produced by Company Y, a company that had merged with Company X just before the current P filed suit?

11 Sam Smith brought a small claims case against Robert Jones and the Owens Construction Company for $500 in damages done to his truck. At the trial, Sally Smith, Sam's daughter, a passenger in the bed of truck, testified as to what she knew of the accident. At Billy Boy's trial, Sally Smith is unavailable. Is the testimony of Sally Smith at the small claims hearing admissible against Billy Boy when offered by either Sam Smith or Robert Jones? Is the prior testimony of Sally Smith admissible when offered by Sam Smith against Robert Jones and the Owens Construction Company?

12 The Owens Construction Company fired Robert Jones for leaving his job during working hours and using a company car for personal business. Robert Jones brought a case for unfair dismissal. In that case, the deposition of Mary Jackson was taken by counsel for Robert Jones. During the deposition, Mary Jackson answered several questions asked by counsel for Robert Jones and counsel for the Owens Construction Company relating to the details of the accident with Billy Boy. At the time of trial of the case brought by Billy Boy, Mary Jackson is visiting her parents across the country. May Billy Boy introduce into evidence the deposition testimony of Mary Jackson against the Owens Construction Company?

DYING DECLARATION PROBLEMS

1 Homicide prosecution. Victim (V) says to Witness (W): "I'm dying. X shot me." Admissible?

2 Homicide prosecution. V says to W: "Tell Fate Yanagi I love her." Admissible?

3 Attempted murder prosecution. V was shot; V recovered; V moved to India for spiritual enlightenment. V says to W: "X shot me. I may die from this". Admissible?

4 Homicide prosecution. V says to W: "Dr. Shepard poisoned me." Admissible?

5 In civil auto accident case, it is recorded in the hospital record of the patient, who knew he was dying, "Doctor, I saw his head nodding as he crossed the center line." Admissible?

6 Injured and dying in prison riot, declarant says, "Tom didn't mean to shoot the guard at the bank". Prosecutor wants to introduce that statement against Tom in his trial for bank robbery. Admissible?

7 In the above prison riot, a dying declarant says that "Tom had nothing to do with the robbery". Can the statement be offered by Tom in his robbery trial?

8 Declarant, obviously dying, is asked the following question, "Who shot you?" and answers: [by writing with his finger in his own blood] "Bob."

9 Suicide Note: "I am going to die now. I took poison".

Family of note writer sued insurance company to collect on life insurance policy on note writer. Insurance company defends on grounds the death was a suicide, not an accident, and suicide is excluded from the policy coverage. Admissible for life insurance company as a dying declaration?

10 Same law suit as above, only this time the suicide note reads:

"I am going to take poison soon (said 2 weeks before death)". Admissible for life insurance company as a dying declaration?

11 Suicide Note: "I took poison. I couldn't stand it after Jenny and I stole the money from work."

If declarant recovers from the poison, is the statement admissible as a dying declaration if the declarant and Jenny are charged with embezzling funds from work?

12 "Get a priest. Larry shot me in the back." Admissible in murder trial of State v. Larry?

13 "I saw Harry shoot me. Please tell my auntie to take care of my children."

14 As Billy Boy was lying on the ground, Margaret Boyd, a school crossing guard, approached. She observed Billy Boy lying in obvious pain, blood pouring from his nose. His leg was all twisted. Margaret Boyd was the first person on the scene. She said, "Little boy, hold on tight, I am going to call an ambulance. You don't look good. Is there something I should tell your parents?" Billy Boy responded, "Tell Mom I didn't do anything wrong. I was walking my bike." Assume for purposes of this problem that at trial Billy Boy testifies that he cannot recall whether he was walking or riding his bicycle. May Margaret Boyd testify to Billy Boy's statements?

CHARACTER EVIDENCE PROBLEMS 1

1. Tort suit for damages in an automobile accident. Can plaintiff call a witness who will testify that the defendant is known to be a careless driver?

2. Same auto tort suit. Can plaintiff testify that he is a careful driver and has never had an accident?

3B. In the criminal assault case brought against Charlie, in its case-in-chief, the prosecution calls Mr. White to testify as follows:

(a) I have known Big Ed for five years at work and at home. I know him as a peaceful man. (revised G)

(b) Charlie's reputation for peacefulness is bad.

(c) At work only last week, I saw Charlie fighting with three other men.

4B In the criminal assault case brought against Charlie, Charlie calls Jim Turbin to testify. Discuss the admissibility of the following testimony by Turbin.

(a) I have known Big Ed at work for the last three years. I believe him to be a very violent person.

(b) On one occasion I saw Big Ed just walk up to a friend of mine and hit him over the head with a board.

(c) Early in the evening on July 8, I saw Big Ed remove a pair of brass knuckles from his locker at the plant, put them on and smash the windows of three cars in the parking lot.

(d) I have known Charlie for ten years. We are neighbors. I have talked to my neighbors about Charlie. Charlie has the reputation of being a gentle, peaceful, and truthful man. (mod).

(e) On two occasions, I was with Charlie when we broke up fights at our local lodge. I have never seen him hit anyone.

On cross-examination the prosecution asks Jim Turbin the following questions:

(f) You heard, haven't you, that Big Ed was given a commendation by the police department in May for breaking up a fight at a basketball game?

(g) Are you aware that Charlie was convicted of income tax evasion two years ago?

(h) You heard, didn't you, that Charlie was arrested for fighting at work only last week?

5. On rebuttal, the prosecution again calls Mr. Black to testify as follows:

(1) I have known Big Ed for five years at work and at home. I know him as a peaceful man.

(2) I also know Charlie. I met him on a few occasions. His reputation for peacefulness is bad.

(3) Last week I saw Charlie fighting with three other men.

6. Rambo was known around town as a "one man terrorist gang." He had burned down a house, shot three different people in the leg, and had been in 24 bar fights. Perry, the owner of Perry's Drugs, hired Rambo to serve as a security guard for the store. Perry gave Rambo a small-caliber pistol to carry while on duty. On his fifth day on the job, Rambo got into a fight with one of the customers and shot the customer in the leg. The customer brought suit against Perry, claiming negligent hiring.

Plaintiff's first witness is the mayor of the town who will testify that in her opinion, Rambo is extremely dangerous, if not lethal. She will also recount all of the prior incidents involving Rambo's violent behavior. Which parts of the mayor's testimony, if any, are admissible? (SF 53)

7. In this slander action, Dean Foster allegedly called the Budget Director of the University a "lazy jerk" after the Law School was denied its request to put a second floor on the law library. Which of the following evidence is admissible at trial? Why or why not?

(a) The Budget Director offers evidence that he worked past midnight on eighteen nights last month.

(b) The Budget Director offers evidence that he has a reputation in a the academic community for being very industrious.

(c) The Budget Director offers evidence that he is a peaceful, non-violent person.

(d) Dean Foster offers the testimony of Big Bucks, a former Budget Director of the University, who states that in his opinion, the current Budget Director is "lazy."

(e) Dean Foster offers evidence that the Budget Director has a reputation among academics for being a jerk. (SF 54)

8. Civil assault & battery suit arising out of alleged police brutality. Can the civilian plaintiff introduce evidence of prior acts of violence committed by the defendant police officer on other people the officer arrested?

CHARACTER EVIDENCE PROBLEMS 2 R 404(b)

1 In the prosecution for murder of V, can evidence be offered that V had threatened to expose D's participation in a land fraud scheme?

2 In the criminal assault trial of D, D claims as an alibi that he was on the mainland the day of the alleged assault. Can the prosecutor introduce evidence that D attempted to rob a 7-11 store in Kailua the same day as the assault?

3 Attempted murder charge. D and V are construction workers. D dropped a wrench while working 2 floors above V which landed on V's head. Can prosecutor offer evidence that D had provoked fights with V on 2 prior occasions?

4 P. Hearst is on trial for bank robbery. She claims duress; she was coerced by the members of the gang to join in the robbery. Can prosecutor offer evidence that one month after the bank robbery, D was at the scene of a sporting goods store robbery and was waiting outside while the gang members went inside. When a gang member was stopped shoplifting, P. Hearst fired an automatic rifle that allowed the person inside to escape?

5 Bookkeeper is charged with embezzling funds of Company A, and claims as a defense that it was an innocent mistake. Can the prosecutor offer evidence that D was accused of embezzling funds from Company B 6 years earlier and that company did not prosecute because D maintained it was an innocent mistake?

6 D is charged with burglarizing V's home. He denies it was him. Can prosecutor offer evidence from two other witnesses that D burglarized their homes in the same area?

7 Charge: Attempted murder and assault.

Def goes to see his estranged girlfriend who is working in a bar. He leaped up, grabbed her by the hair, said "Let's go", repeatedly stabbed her in the back and neck with a knife as he dragged her towards the door.

Can victim testify that in prior incidents defendant slapped, punched, threatened her with knife, held gun to her, raped her, and threatened her?

8 D is charged with sexually molesting a minor child? D claims the child made up the incident. Can the prosecutor offer evidence that D molested V on prior occasions?

SEXUAL ASSAULT PROBLEMS - R 412

The Facts:

A defendant (D) charged with sexual assault and the victim (V) know each other. At some time they have sex. V goes to hospital to be treated for injuries and files a rape charge with the police. The defendant claims it was consensual sex (and therefore no crime). May D admit the following evidence?

1 Testimony from W1 that V has a reputation for having sex with many men, and in W1's opinion, V would sleep with anyone she met.

2 Testimony from W2 who says he had sex with the victim 2 weeks before the alleged incident.

3 Testimony from D that he had consensual sex with V a week before the alleged sexual assault.

4 A new defense. D wants to testify that "I didn't have sex with V, that night. It must be another guy."

5 D wants to testify that he knew of V's reputation for having sex with many guys.

6 D wants to call a witness who will testify that "V is a prostitute." D's defense is that he did not have sex with V.

7 D wants to call a witness who will testify that "V is a prostitute." D's defense is consent. D claims V did act as a prostitute that night. He paid money for sex.

8 D wants to offer testimony that V lives with a boyfriend and that V is falsely accusing D of rape to protect V's relationship with boyfriend. V doesn't want her boyfriend to know that she was having consensual sex with other guys.

HABIT PROBLEMS

1. Cars driven by Pablo (P) and Dell (D) crash at the four-way stop corner of First and Koa Streets at 6 p.m., July 2 last year. Are the following admissible?

(a) The plaintiff has a person who will testify that Pablo is a careful person.

(b) The plaintiff has a person who will testify that Pablo is a careful driver.

(c) The plaintiff has a person who will testify that Dell is "always in a rush."

(d) The plaintiff has a person who will testify that Dell is an alcoholic.

(e) The plaintiff has a person who will testify that Dell always has two beers at a bar next to his work place when he gets off work at 5 p.m.

(f) The defendant has a person who will testify that Dell usually stops at stop signs.

(g) The defendant has a person who will testify that Dell always stops at the stop sign at First and Koa Streets. (Friedman 18.56)

2. The defendant was accused of stealing a shirt from Liberty House. The defendant claimed at trial that he purchased the shirt but was not given a sales receipt. The prosecution then attempted to introduce evidence that it was the custom of Liberty House to give sales receipts with every purchase. Is the evidence admissible? (SF 69)

3. Hank McWhorter, the plaintiff, claims he was fired from the police force because he exercised his First Amendment right to freedom of speech. The plaintiff offers evidence at trial that the police department habitually fired individuals who exercised their First Amendment right, letting go several different people for speaking out. Is this evidence admissible? McWhorter v. City of Birmingham 906 F.2d 674 (1990)

(SF 69)

4A. Discuss the admissibility of the following items of evidence offered by the defendant Owens Construction Co., Inc.

(a) Testimony by Margaret Boyd that on each of five prior occasions when she had observed Billy Boy cross First Street, he did a wheely off the curb.

(b) Testimony by the shop foreman that the brakes on its fleet of fifty automobiles are inspected monthly and repaired immediately when necessary. (Graham)

Relevancy 407 - 411 Problems

1 P slips and falls on the top steps of an apartment's stairway. Two days after the accident, the landlord replaces the rotted, now broken stairs. Is evidence of the repair admissible at P's trial?

2 Same as above. The landlord defends by saying that she is not the owner of the building. Is evidence of the repair admissible?

3 Same as above. Two days before the accident the landlord replaced the bottom two stairs. Is evidence of the repair admissible?

4 P sues a small shop owner for a slip and fall on a sidewalk in front of the shop. The law provides that the shop owner is liable for upkeep on the sidewalk. Can P introduce the fact that two days after the accident, workers from the City repaired the sidewalk?

5 P is hit by ACME's truck. Two days before the accident, new brakes were ordered for the truck. Two2 days after the accident, the new brakes were installed on the truck. The driver was fired one week after the accident. Is testimony about the brakes or the firing admissible?

6 After a lawn-mower got away from the handler and injured a bystander, the manufacture changed the mower so that it now has a "deadman's switch," which shuts off the motor if the operator's hands leave the handlebars. The injured bystander sued the lawn-mover manufacturer claiming the mower had a design defect because it did not have a "deadman's" switch. Is testimony about the new "deadman's" switch admissible?

7 In above lawn-mower case, could Plaintiff introduce evidence that another manufacturer had installed a "deadman's" switch on their mower?"

8 Is testimony about adding a "deadman's" switch admissible if an engineer from the mower company testified at trial that the mower was the "best product on the market with state-of-the-art equipment."

After an auto accident, are the following statements of Dan, the defendant driver, admissible against Dan by the plaintiff?

9 Dan: "I'm sorry. I was slow hitting the brakes."

10 Dan: "I am insured for this kind of thing."

11 Dan: "Don't worry about the medical expenses. I'll pay them."

12 P and D are involved in an accident. Immediately after the accident, D goes to P and says, "My brakes were bad, will you settle it all for $500." P says: "No way!"

At trial, can P testify that D said "My brakes are bad"?

13 Can D be called by P as a W at trial and asked "Weren't your brakes bad?"

14 If D goes to the hospital and says "My brakes were bad, let me pay your $2,000 hospital bill," is the statement admissible?

15 Assume that P2 was also injured in the accident and settled her claim against D before trial. If P2 testifies for D at trial, is the settlement with D admissible?

16 In plea discussion with the Prosecutor, D says, "I hit that bum V but I'm not going to plead guilty unless you offer me a better deal than that." There is no better deal offered, so D goes to trial. Is D's statement to the prosecutor admissible?

17 D is arrested and given Miranda warnings. D talks with the arresting police officer and says, "I hit that bum V but I'm not going to plead guilty unless you help me get a reduced sentence." There is no reduced sentence, so D goes to trial. Is D's statement to the officer admissible?

18 D pleads guilty in court and during the plea D says that "I hit V." Later, D is allowed to withdraw his plea and go to trial. Can the prosecutor use D's in-court statement that he hit B against him at trial?

19 D pleads guilty to assault. V later sues D in civil suit for damages. Is D's plea admissible in the civil suit?

EXPERT WITNESS PROBLEMS

P sues D (an insurance company) to collect on a fire insurance policy. D refused to pay, claiming the P set the fire (arson). D calls F (the fire marshall) as a witness. The court has determined that F is an expert and may give an opinion.

Q: I would like to ask you some questions about factors that you considered when forming your opinion. What did you do during the investigation?

A: I spoke with FF the fire fighter in charge that night.

Q: What did she tell you?

A: She said the fire spread very rapidly from the time she arrived on the scene at 9 pm. [objection]

Q: Did she say anything else?

A: She had taken a 911 phone report of the fire from passerby who saw flames from windows on the 1st, 3rd, and 5th floors. [objection]

Q: What is the significance of the 911 report?

A: It shows 3 separate and non-communicating fires at the same time which is a strong indication of arson. The recognized authority Jane Byrne says in her book, Fire Investigation, that separate non-communicating fires indicates arson.

Q: Is the Byrne book a recognized authority?

A: Yes. Its a bible for us.

Q: Your Honor, I offer the Byrne book into evidence so that the jury can take it into the jury room and study it. [objection]

Q: What else did you base your opinion upon?

A: Laboratory tests from a fire department arson expert. [objection]

Q: What else did you base your opinion upon?

A: About 10 minutes after I arrived on the scene, a calm person on the street told me that he had seen a man running out of the building just before the fire started. [objection]

Q: What else did you base your opinion upon?

A: I saw "Tim Torchy," whom the department believes to be a professional arsonist standing across the street watching the fire. [objection]

CROSS OF THE EXPERT

Q: F, you found evidence of faulty electrical wiring during your investigation of this building didn't you?

A: Yes.

Q: Faulty wiring could have caused the fire, right?

A: It could have, but I concluded it was arson. [objection]

Q: I refer you to exhibit # 1, the Byrne book. Doesn't it say on page 227 that, "The primary rule of fire investigation is that you should not reach the conclusion of arson, unless and until you can rule out all accidental causes."?

A: Yes.

PRIVILEGE PROBLEMS

1) Father, who is charged with business fraud, talks with his daughter who is a 3L at U.H. Law School. He admits some shady business practices to his daughter. Can the daughter be called as a witness against her dad or is the conversation protected by a privilege?

2) Father then goes to see the lawyer for whom his daughter works as a law clerk. Father discusses his problem with the lawyer while his own daughter is in the office? Is the discussion with the lawyer in the daughter's presence privileged?

3) The lawyer thinks the father is disgusting, throws him out of the office, and refuses to take the case. Was the discussion with the lawyer privileged?

4) Father consults with Lawyer # 2, who takes the case, but is licensed to practice in Iowa, not Hawaii. Is father's discussion with Lawyer # 2 privileged?

5) Father also consulted with "Lawyer # 3" who is not licensed to practice law anywhere. He failed the bar 5 times. He finally just bought a copy of the Hawaii Rules of Evidence, printed a diploma on his computer, hung the diploma on his office wall, and then just started practicing law. Is father's discussion with Lawyer # 3 privileged?

6) D is arrested and calls a lawyer from the jail while a police officer stands next to him and listens. May the police officer testify to what D told her lawyer?

7) D is released from jail and goes to talk to her lawyer. The police have the law office bugged. May the person listening to the bug testify to what D told her lawyer?

7.5) Defendant, out on bail awaiting trial on a criminal charge, speaks with her attorney about the case using a cordless telephone. Unknown to Defendant, a glitch in the signals causes the conversation to be transmitted to Witness, who is located nearby speaking on her own cordless phone. Witness reports the conversation to the police, and the prosecution calls her to testify at trial about what she heard. Defendant objects on confidentiality grounds. How should the court rule? (LG 545 4)

8) Criminal co-defendants jointly consult a lawyer. D1 wishes to turn "state's evidence" and testify against D2 (in hopes of getting a "deal" from the prosecution). Can D1 testify to what D2 said during the meeting between D1, D2, and the lawyer?

9) In the problem above, can D1 testify to what he (D1) said during the meeting with D2 and the lawyer?

10) BUBBLES. D admits to his lawyer that he threw the first punch during a fight.

A) Can prosecutor ask D "Didn't you tell your lawyer that you threw the first punch?" B) Can prosecutor ask D "Didn't you throw the first punch?"

11) Murder case. D sent his attorney a package with the murder weapon and a note which reads: "Here is the gun I used in the shooting. You decide what to do with it." What should the attorney do with the note and the gun?

11.1) From his desk at work, Collin sends his lawyer an e-mail message seeking legal advice.  Collin's employer randomly monitors e-mail messages sent to and from Collin's workplace, in order to ensure the computer system is not misused.  Collin was informed of the monitoring when he joined the company, but has forgotten about it.  As it happens, Collin's employer does not read his message to his lawyer.  Is the message privileged?  Would the answer be different if the employer did read the message? (SK 578)

11.2) Breach of contract action. Plaintiff takes Defendant?s deposition, and asks Defendant about conversations she had with her attorney. Defendant objects on the basis of the attorney-client privilege. Plaintiff responds that the privilege does not apply because the deposition is part of the discovery process, not the trial, and the rules of evidence do not apply during discovery. What result should occur? (LG 545 6)

12) A few days after an auto accident, the defendant driver gave a statement to the insurance company's investigator who worked for the defendant's insurance company. The insurance company later gave the statement to the lawyer it hired to represent the defendant. Is that statement discoverable by the injured plaintiff or is it privileged? See, Dicenzo v. Izawa 723 P.2d 171 (1986)

13) Paki, a civil plaintiff, does not appear in court. Paki's lawyer refuses to disclose to the judge Paki's whereabouts or the identities of third parties who may know Paki's whereabouts. Are Paki's whereabouts and the identities of the third parties protected by a privilege? See, Sapp v. Wong 62 Haw. 34; 609 P.2d 137 (1980).

14) B Corporation consults with its attorneys about pending litigation against the company. A technician in B Corporation is told, by his supervisor, to cooperate with the attorneys and give them his statement. The technician is subpoenaed by the party suing B Corporation and will be asked to provide information about his communication with the attorneys for B Corporation. Will the technician and Corporation B be able to claim the attorney-client privilege? (SF: 248)

15) OLD MOVIES. D shoots V and a woman sees it. D says "Howzit beautiful? Will you marry me?" They get married. Can W be compelled to be a witness by the prosecution at D's trial?

16) SPOUSES. D returns home from seeing a lawyer and tells his wife that he told the lawyer that he shot V. Has D waived his privilege with his lawyer?

17) ALL IN THE FAMILY. In the problem above, after D tells his story about his meeting with the lawyer to his wife, his daughter walks into the room and he repeats the story. Has D waived his privilege?

18) First degree murder. Are the following statements privileged? D's former wife testified to what she heard, while she was married to D:

1) a conversation (in her presence) between D and an alleged accomplice during which they planned the murder;

2) when they were alone one night, her husband told her explicit details about the killing;

3) D's bragging to friends (in her presence) about his involvement in the murder while he was drinking in a bar.

See, State v. Levi 67 Hawaii 247; 686 P.2d 9 (1984)

19) An auto accident resulted in a death of one of the drivers. In a criminal, negligent homicide case is a statement privileged if the statement was made by the defendant driver to his doctor about the accident? The doctor will testify that in order to evaluate properly the condition of his patient, it was necessary for him to elicit from the patient the details of the accident in which he had been involved.

See, State v. Swier 66 Hawaii 448; 666 P.2d 169 (1983)

20) During a physical examination of the patient during a visit to the doctor, the doctor sees scars below X's belt. The doctor is called as a witness to testify about the scars. Is the view of the scars privileged?

21) Plaintiff is hurt in an auto accident. Plaintiff's lawyer sends her to a doctor for an opinion regarding the extent of plaintiff's permanent disability. Is the doctor's opinion privileged?

PRESUMPTION PROBLEMS

Hypos from L. Letwin, Evidence Law, (1986)

1 P was removed as a member of the Civil Service Commission because he was elected to his local Neighborhood Board. P's removal was done to comply with the following law:

HRS ?76-51 The office of any member of the civil service commission who occupies any elective or appointive office shall be conclusively presumed to have been abandoned and vacated by reason thereof and the governor shall thereupon appoint a qualified person to fill the vacancy.

P has filed suit for wrongful discharge.

1A At trial, P claims that a neighborhood board position is not an elective office. Corporation counsel argues that it is. P wants no instruction to be given to the jury (claiming the bubble burst). Corporation counsel says the proper instruction is "if you find that P did occupy an elective office, you must find that the office was abandoned and vacated." Should the judge give that instruction?

1B Suppose P does not contest that the neighborhood board position is an elective office, but P wants to offer evidence that he has not abandoned and vacated his civil service commission because his neighborhood board position is part-time, can be done on the evenings and weekends, and in no way interferes with his civil service commission position. Is that evidence admissible?

2 P sues to recover $300 from D, a mail order photography store on the mainland. P claims he sent a money order for $300 to D, but never received the camera that he ordered. As proof of payment, P testifies that he placed a money order in an envelope properly addressed to D, he put the correct postage on the envelope, and he deposited the envelope in a U.S. mail box.

2A D rests without cross-examining P or offering any evidence contradicting P's claim that he had sent the money. D then moves for dismissal arguing that P has offered insufficient evidence of mailing to meet his burden of proof. What ruling on D's motion to dismiss? Is P entitled to any instruction? If so, how should the instruction read?

2B Same case. After P rests, D offers a witness who testifies that on the date P claims to have mailed the letter, P was hospitalized and in traction, and thus incapable of mailing a letter. No one from D's business testifies that they did not receive the letter. What is the proper instruction for the jury?

2C Same case. Instead of the hospital testimony, D offers the testimony of D's mailroom clerk who maintains regular, routine business records of all incoming mail orders on money received. The clerk says that if money was received, he would have a record of it. He says that he has no such record, and therefore no money was received from P. D rests.

P then asks for alternative instructions that 1) the letter is presumed to have been received by D, or 2) that the jury is to believe that the money was received by D unless the jury believes the testimony that the money was not received. What instruction should the court give?

2D Same case. D offers both the evidence that P was hospitalized and that there was no receipt of money. P then asks for an instruction that if the jury finds that the letter was properly addressed and mailed then they must find that the letter and check was received. Should that instruction be given?

3 Civil suit by P (mother) against D (a life insurance company) to collect on a $50,000 life insurance policy on P's son. As evidence of son's death, P testifies that 1) her son ran away from home when he was 18 years old, 2) she has not heard from him in 6 years, and 3) she knows of no one who has heard from him. P offers no other evidence of the son's death.

3A D rests without cross-examining or offering any witnesses, and moves for dismissal, arguing that P has offered insufficient evidence of the death of her son to meet her burden of proof. What should the court rule?

3B Same case. D offers evidence that P received a letter from her son 4 years after he left. D does not offer any evidence that the son is alive at the time of trial. P asks for a presumption instruction. What should the instruction say?

3C Same case. D offers evidence that one year ago the Bombay police had arrested a person whose fingerprints matched those of the son. The person was released from custody shortly after the prints were taken. There is no further information about this person. What presumption instruction should be given?

3D D offers both the fingerprint evidence and the letter evidence. P asks for a presumption instruction that if the jury resolves the basic facts in favor of P, then it must find for P, unless the jury believes that D, by a preponderance of the evidence, has established that the son is alive today. What ruling?

JUDICIAL NOTICE PROBLEMS

1. Tort suit from an auto accident at University and Dole. P asks the court to take judicial notice of the following facts (1) that there was no rain in Honolulu on the day of the accident and (2) that the pavement at the intersection was dry. In support of request for judicial notice, P produces a copy of the official weather bureau record for Honolulu for the day of the accident, which shows no precipitation was recorded. Should judicial notice be taken?

2. SUBPOENA. D is cited to show cause why he should not be held in contempt of court for failing to appear as a witness in a trial after being served with a subpoena. D denies he received the subpoena. The prosecutor asks the court to take judicial notice that D was served with the subpoena, directing the court's attention to a properly executed return of service filed by the sheriff and included as part of the record of the case. The prosecutor also asks the court to take judicial notice of the fact that D was previously held in contempt for failure to appear at an earlier hearing of the same case, and was twice held in contempt at trials on the mainland.

3. FOOTBALL FAN. D is charged with robbery and claims as an alibi that he was watching football with friends. The prosecutor wants the court to take judicial notice that TV Guide shows no football game of any type on television at time of the robbery.

4. Government of Virgin Islands v Gereau.

Nine-day jury deliberation. Later, one juror said the bailiff told her "they should hurry up so I can get home." Bailiff denied the conversation. Judge believed the bailiff because he knew she was interested in earning extra money from extra work. Did the court take proper judicial notice? Was it error?

5. DEADLY WEAPON

D is a karate expert charged with "assault with a deadly weapon, to wit: his hands." Prosecuting attorney gets the judge to take judicial notice that the hands of a karate expert qualify as a deadly weapon under the statute. D wants to introduce evidence from another karate expert that karate is not a dangerous sport and that the hands of an expert are not dangerous weapons. Should the judge admit D's evidence?

6. Prosecution of Defendant for robbing a convenience store. Defendant claims she was in church attending Sunday services when the robbery took place. The prosecutor asks the court to take judicial notice that the date of the robbery fell on a Wednesday, not a Sunday, and provides the court with a Sierra Club calendar. May the court take judicial notice? (LG 73 1)

7. Same facts. The prosecutor asks the court to instruct the jury that the day on which the robbery occurred was a Wednesday. Defendant objects. How should the court rule? (LG 74 2)

8. Defendant appeals a judgment for Plaintiff in a negligence action arising from an accident in which Defendant?s car struck Plaintiff while Plaintiff was crossing the street. At trial, Plaintiff alleged that Defendant was going 50 miles per hour in a school zone, where by law the speed limit is 25 miles per hour. However, Plaintiff failed to offer evidence that the location of the accident was a school zone. On appeal, Plaintiff asks the court to take judicial notice that the block where the accident occurred is a school zone. Defendant does not deny the truth of this fact, but claims that it would be improper for the court to take judicial notice on appeal. How should the court rule? (LG 74 3)

9. Personal injury action by Plaintiff against Defendant arising from the head-on collision after Defendant?s car crossed the center line. Plaintiff claims this occurred because Defendant was not paying attention. Defendant claims her car suddenly ran through a deep puddle, causing her to lose control. Defendant claims she was driving carefully and that because she was unfamiliar with the area, she had no way to anticipate such a large puddle on an otherwise dry road. (It had rained two days before but had been dry since then.) Defendant asks the court to take judicial notice that a large puddle often forms at this location and remains for up to a week or two after a rainstorm. The judge is personally aware that this is true. Should the court take judicial notice? (LG 74 5)

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