Exam Number ______

School of Law

Mr. Fischer July 6, 1999


1. This is the second part of the examination and consists of three essay questions and 3 pages (pages 1 through 3).

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

[25 Minutes]

You work for a law firm. A partner calls you into his office and tells you the following: I represent Paula in a personal injury action against Donald that arose out of a hit and run accident. My evidence shows that Paula was struck by a white 1996 Dodge Intrepid when she was in a pedestrian crosswalk in an intersection. Paula states that the driver of the car was a man who was reading a map and talking on a cell phone as he drove. Paula cannot identify the driver because she could not see his face. She also did not notice the license number of the car. Donald owns a white 1996 Dodge Intrepid and a cell phone. I do have some evidence identifying Donald as the driver of the Intrepid that hit Paula, but I would like to bolster my case if possible. I have the following evidence, and I would like your advice about it:

I have a witness, Wilbur who will testify that the year before Paula was hit, he was almost run over by a white 1996 Dodge Intrepid while in the same crosswalk in the same intersection where Paula was hit. Wilbur could not see the driver's face because the driver (who appeared to be male) was reading a book and talking on a cell phone as he drove. Wilbur quickly jumped out of the way to avoid being hit. Wilbur can testify about the make, model, and color of the car, but he did not notice the license number. Wilbur, however, was carrying a new camera at the time, and snapped a picture of the car after it went by. He had the film developed at Kmart. The photograph shows that the car had the license plate number issued to Donald. Wilbur can testify that he has not used his camera very much, but he is very pleased by the quality of the pictures that it takes.

Please advise me as to what use, if any, I can make of this evidence.

Essay II

[55 minutes]

Another partner calls you into her office and tells you the following: I have been appointed a special prosecutor in a case where Doaks is charged with armed robbery of a gas station. Doaks denies committing the crime. The main issue in the case will be establishing Doaks' identity as the robber. I have one eyewitness who will identify Doaks. This is the employee of the station who was on duty at the time of the robbery. Her testimony is shaky in several respects, however, and I would like to bolster it. Please advise me as to what use I can make of the following evidence:

Vern, a customer in the station at the time of the robbery, voluntarily came to the police station to give a statement shortly after the robbery. Vern left the station after giving his statement. As he was leaving, a plain clothes police officer escorted Doaks into the station for questioning. Vern and Doaks passed each other in the hall. When Vern noticed Doaks, he screamed loudly and appeared very nervous and agitated, and he ran out of the station.

Subsequently Vern attended a police lineup that included Doaks. Vern told the police that he did not recognize the robber in the lineup. I am confident that if I called Vern as a witness at trial, he would state that he is unable to identify Doaks as the robber. In any event, I have been unable to serve Vern with a subpoena compelling him to attend the trial. As far as I can tell, he is no longer in this jurisdiction. Therefore, I cannot count on being able to use him as a witness.

We do have a tape recording of a properly authorized police wiretap that can be authenticated. In the recording a voice that can be identified as belonging to Rudolf states to an unknown person that Doaks asked him (Rudolf) to visit Vern and convince him that it would be unhealthy for him (Vern) to identify Doaks as the robber. Rudolf stated that he was going to have a "nice visit" with Vern, and then both parties to the conversation laughed. The conversation took place prior to the lineup.

Please advise me as to what use, if any, I can make of this evidence, and what problems I may encounter in getting it admitted. Fully explain your reasons.

Essay III

[40 Minutes]

A partner tells you that he is representing a defendant in a criminal bank robbery case in FEDERAL COURT. The defense is alibi. The partner would like to call Wilma as a witness to help support the defense. Wilma is willing to testify in court verifying defendant's alibi. The partner is concerned, however, about the degree to which Wilma could be impeached. He is a little rusty on the subject of impeachment and rehabilitation, and would like your help.

The partner knows the following about Wilma: She has a misdemeanor conviction for assault, for which she served four months in county jail. The assault occurred when Wilma sneaked up behind the victim and hit him on the back of his head with a rock. Wilma has no other convictions, but she was recently arrested for felony stealing, a crime that carries a maximum penalty of five years in prison. Her stealing case has not yet come to trial.

The partner does have several witnesses who will testify that Wilma has a very good reputation for truth and veracity. On the day that the defendant was arrested for the robbery, Wilma also made a statement to the police verifying the defendant's alibi. This statement was given prior to her stealing arrest.

Please advise the partner how this evidence can be used to affect Wilma's credibility