Exam Number ______

Mr. Fischer May 10, 1997

1. This is the second part of the examination and consists of three essay questions and 4 pages (pages 1 through 4).

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.

I have the following item of evidence, and wonder what use I can make of it. Wally Williams was present at the accident scene when Fulton arrived to pick up plaintiff's car. Williams will testify that when Fulton saw plaintiff's car he said, "I saw this car heading east past my shop two hours ago. It must have been going 70 miles per hour." Fulton now denies ever having seen plaintiff's car before. He also denies having made the statement that Williams attributes to him. I'm a little rusty on the rules of evidence. Please explain what use, if any, I can make of Williams' testimony?

Essay II

[48 minutes]

Another partner asks you for help. He has brought a civil action in FEDERAL COURT on behalf of a twelve-year-old child against Dan Duggins for battery. Duggins is a friend of plaintiff's family. Plaintiff claims that Duggins attacked her while they were alone in her home. She states that he forcibly removed part of her clothing, and attempted to have sexual relations with her. He did not complete the act because another family member returned home unexpectedly and interrupted him. Duggins fled the house upon hearing the family member arrive.

Dan Duggins denies that the event took place. He claims to have been working that day. We expect that his secretary, Wanda Watts, will testify that he was in the office at the time of the attack. We also expect that Duggins will call several character witnesses to say that he has an excellent reputation for being a peaceful and law abiding person.

I need your help with the following items of evidence. We have a police report that includes a tape recording that the police routinely made of a 911 emergency phone. The police received the call three years prior to the incident in question. The caller was very upset. She identified herself as Wanda Watts, and said that she had been raped by Dan Duggins the day before. The report states that investigators interviewed Wanda Watts, but made no arrest. Wanda Watts told the investigating officers that she made the call but that it was a "mistake" because no rape occurred. If asked, we would expect Wanda to admit making the 911 phone call, but deny that the rape occurred. Can we use this evidence? If so, how and for what purposes?

Yet another partner asks you for help. She tells you the following: I represent the heirs under a will executed by the decedent one month prior to her death. The decedent executed the will in her home, and placed the original in her desk drawer after it was executed. The desk is in decedent's den, and the desk was used exclusively by decedent. After the decedent died, the will was missing from her desk, and has not been located. The heirs under the will believe that the decedent's son, Jake, surreptitiously destroyed the will because it left him far less property than he would receive by intestate succession. Jake was in decedent's home several times during the month prior to her death. It is very possible that he had access to decedent's desk when others in the household were not observing him.

The heirs have retained me to probate the lost will. In the probate proceeding the heirs have to prove that *[the] will was properly executed, which they can easily do. The opponent of the will, Jake, must prove that the decedent did *[not] revoke the will prior to her death.

I am concerned about the effect of a presumption that Jake intends to rely on. In our state it is presumed, upon proof that a testamentary will was last in testator's possession and that after death it cannot be found, the testator destroyed it with intent of revocation. Our jurisdiction uses the Thayer rule concerning the effect of presumptions.

I do have an item of evidence that might be of help. Jake's estranged wife, Wilma, will testify that within the month prior to decedent's death, Jake told Wilma privately that he was going to steal decedent's will and burn it.

Please advise me concerning the effect of the presumption in my case. Will I be able to get around the presumption?