12-17-07 Evidence Takehome Exam Answer

12-17-07 Evidence Takehome Exam Answer - 800129754...

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800129754 MEMORANDUM To: Judge Wisdom From: 800129754 Date: December 18, 2007 Re: Admissibility of Testimony Defense Counsel Hopes to Elicit Question Presented Is the testimony defense counsel hopes to elicit from Plaintiff and/or Rouser admissible? Short Answer There are five issues to be considered: 1) Relevancy; 2) impeachment; 3) character evidence; 4) hearsay; 5) Limited Admissibility. For the reasons detailed below, cross-examination of Plaintiff on the subject of SPBPRL should be allowed, while testimony offered by Rouser to impeach plaintiff should be excluded. Discussion I. Relevancy Defense counsel may argue the proposed inquiry into Plaintiffs involvement with SPBPRL is necessary to develop his testimony that on direct examination tended to show Defendant was responsible for the bomb. Plaintiff, however, will argue against the relevancy of inquiry into alleged involvement with SPBPRL. Plaintiff may assert that any involvement by Plaintiff would have no bearing on Defendant arranging to have the bomb destroy Plaintiff’s bathroom. Plaintiff’s testimony on direct dealt mainly with this
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800129754 fact. However, Defendant denies such an arrangement and defense counsel, in his opening statement, indicated his intention to introduce evidence that it was Plaintiff who was responsible for the bomb. Relevant evidence is defined by Rule 401 as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Responsibility for the bomb, and whether that falls to Plaintiff or Defendant is a contested issue in the case. Thus any evidence making it more or less probable that one of the parties was responsible would satisfy Rule 401. Defendant is here trying to lay a foundation that will ultimately prove Plaintiff was responsible for the bomb through his involvement with an organization that purports to advocate the elimination of capitalism and the destruction of all property. This is therefore an issue of conditional relevance. The probative force of evidence dealing with Plaintiff’s alleged involvement with SPBPRL is conditioned on a fact to be demonstrated by other evidence. However, attempting to prove Plaintiff was responsible for the bomb is an integral part of Defendant’s presentation of his case. Defendant may find support for his position through Rule 104(a) and (b). The pertinent part of Rule 104(a) states “Preliminary questions concerning… the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except with respect to privileges.” Rule 104(b) states, “When relevancy of evidence depends upon the fulfillment of a condition of a fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
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This note was uploaded on 01/31/2010 for the course LAW 7330 taught by Professor Lushing during the Fall '05 term at Yeshiva.

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12-17-07 Evidence Takehome Exam Answer - 800129754...

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