Exam Number _______________

School of Law

Mr. Fischer December 12, 1998


1. This is the second part of the examination and consists of two essay questions and 5 pages (pages 1 through 5).

2. You will have two hours to complete the essay portion of the examination.

3. You may have with you your copy of the rules supplement booklet and a single piece of standard sized paper on which you may have written anything you wish. Except for these two things, this is a closed book examination.

4. Times are suggested for each part of the essay question. The suggested times are intended as a guide to aid you in budgeting your time and are indicative of the relative value of the questions.

5. Unless otherwise specified in the question the litigation involved in the essay questions occurs (or will occur) in the courts of the State of Jefferson, one of the states of the United States. The courts of Jefferson tend to follow the generally accepted view with regard to the law of evidence. However, they will consider variations and modern approaches (such as those contained in the Federal Rules of Evidence) in appropriate cases. The State of Jefferson does NOT have a dead man's statute.

6. Read the questions carefully and be certain you understand the facts given and the question asked before you answer. Make sure that you answer the question that is asked. Organize your answer before you begin to write.

7. Each answer should be self-contained. Thus, you should not "incorporate by reference" anything from one answer to another.

8. Use a pen, write legibly, write on only one side of a bluebook page, and leave a margin.

Essay I

[80 minutes]

You work for a law firm. A partner calls you into her office and tells you that she has been appointed a special prosecutor in a criminal case in FEDERAL COURT. Defendant is charged with armed robbery of a bank in 1994. Defendant was at large from the time of the robbery until his recent apprehension. The main problem that I have in this prosecution is identifying defendant as the robber. The evidence on identity is as follows.

There are three eyewitnesses to the robbery, but they are unable to identify defendant as the robber. One month after the robbery, defendant had his facial appearance drastically altered by plastic surgery. After recovering from surgery, defendant moved to a distant state where he lived under an assumed name until his recent apprehension.

There is a bank surveillance photograph of the robber taken at the time of the robbery. The security officer of the bank will testify to the circumstances under which the photograph was taken, and that the camera system takes accurate pictures. There is a witness, Wanda Wilks, who knew defendant in 1994 prior to the plastic surgery. She is willing to testify that she recognizes defendant as the person in the surveillance photograph. The evidence also shows that Wanda has a conviction for arson for setting fire to the barn of a neighbor that she disliked. She is currently serving time in a federal prison as a result of that conviction. There is another witness, Robert Rains, who knew defendant in 1993-1994. If called as a witness, he will testify that the person in the surveillance photograph is not the defendant. There is yet another witness, Sue Shaw, who would testify, if called, that she knows Robert Rains, and people who know him, and that Robert has an excellent reputation for being very perceptive, and having an excellent memory.

One other item of evidence is a letter that the police received from a person purporting to be Elmer Earl. Evidence is available to clearly establish that Elmer Earl is defendant's now-deceased uncle (from defendant's father's side of the family). Shortly after the robbery the police sent a properly addressed letter to Elmer Earl containing a print of the surveillance photograph made from the original negative. The letter asked Elmer if the person in the picture was the defendant. The letter that the police received in response stated that the writer could not answer the question because he had not seen defendant since he was a small child. The writer stated, however, that the photo bore a striking resemblance to the appearance of defendant's father thirty years earlier (when the father was the same age as defendant in 1994). There is a police witness that can testify to the content and the mailing of the letter the police sent to Elmer. The witness can testify that the letter purporting to be from Elmer was received twelve days after the first letter was mailed. The witness can identify the exhibit as being that letter.

Please advise me as to whether we have enough evidence to get past a motion for a directed verdict on the question of defendant's identity as the robber. Also, if we can get to the jury, how likely do you think it is that the jury will find that defendant is the robber? Fully explain the reasons for your conclusions.

Essay II

[40 minutes]

A partner calls you into his office and tells you the following. I represent Ajax Construction Company in a lawsuit brought against it by Bella Buyer. She is suing Ajax for breach of warranty in the sale of a house that Ajax built and sold to Bella.

In order to recover against Ajax, Bella must prove that the house was defective when Ajax sold it, and that one or more Ajax employees were negligent in creating the defect. Bella claims that the house's forced air heating and cooling system was defective at the time of sale because it was improperly installed.

The forced air system consists of a furnace and air conditioner blower unit in the basement of the house connected to outlet vents in each room by duct work. The duct work is concealed in the interior walls and ceilings of the house and is made of sheet-metal tubes that fit together to form a closed pipe that delivers the air from the blower to the room vents.

After Bella had lived in the house for several years, she noticed that the blower began delivering a greatly diminished stream of air from the blower to the room vents. As a result, the forced air system no longer adequately heats and cools the house.

I would like your help with the following evidence. I have learned that Bella plans to call Wanda Williams as an expert witness. If permitted to do so, Wanda will testify to the following things:

1) She has been engaged in the heating and cooling contacting business for twenty years. During that time she has designed and installed numerous heating and cooling systems. She also sells component parts for such systems to other contractors, including Ajax.

2) She inspected Bella's house and found that all vents delivered almost no air to the rooms.

3) Bella's system is defective because it delivers insufficient amounts of air to the rooms.

4) There are a variety of things that can cause a system to malfunction by delivering insufficient amounts of air. One possibility is that the ducts can become physically blocked because, for example, an animal builds a nest in the duct. Another possibility is that the individual components (tubes) comprising the duct separate as the house settles. Once separation occurs, most of the forced air is disbursed within the walls and ceilings before it gets to the room vents. This separation can occur only if the individual components are not attached together with sheet metal screws at the time they are fitted together and installed.

5) Good workmanship requires that the components be attached with sheet metal screws.

6) Bella's system is defective because the components comprising the ducts were simply fitted together at the time of installation but not attached with screws to hold them in place, and they have now separated in many places.

7) There are two reasons for the above-opinion.

a) First, it is the most likely explanation because all the vents in the house are working improperly. It is unlikely that other causes, such as animal nests, would cause such complete blockages. It seems unlikely that animals would build nests in every duct in the house.

b) Two months after Bella's house was built, the Ajax construction foreman (who had worked in that capacity for Ajax for three years) called Wanda about some duct components she had supplied to Ajax for a different job. He told her that his crew was having trouble installing the ducts on that job because the components kept slipping apart after being fitted together. Wanda explained to the foreman that he had to always fasten the components together with sheet metal screws on every job. The foreman thanked her for the tip.

Please advise me about the admissibility of Wanda Williams' testimony and what use Bella can make of it.