Problems

Chapter 2
2.1 2.2 2.3 2.4 2.5 2.6 2.7 2.8 2.9 2.10 2.11
Chapter 3
3.1 3.2 3.3 3.4 3.5 3.6 3.7 3.8 3.9 3.10 3.11
Chapter 4
4.1 4.2 4.3 4.4 4.5 4.6 4.7 4.8 4.9 4.10 4.11 4.12 4.13 4.14 4.15 4.16 4.17 4.18 4.19 4.20
Chapter 5
5.1 5.2 5.3 5.4 5.5 5.6 5.7 5.8 5.9 5.10 5.11 5.12 5.15 5.16 5.17 5.18 5.19 5.20 5.21 5.22 5.23 5.24 5.25 5.26 5.27 5.28 5.29 5.30 5.31 5.32 5.33 5.34 5.35 5.36 5.37 5.38 5.39 5.40 5.41 5.42 5.43 5.44 5.45 5.46 5.47 5.48 5.49 5.50 5.51 5.52 5.53 5.54 5.55 5.56 5.57 5.58
Chapter 6
6.1 6.2 6.3 6.4 6.5 6.6 6.7 6.8 6.9 6.10 6.11 6.12 6.13 6.14 6.15 6.16 6.17 6.18 6.19 6.20 6.21 6.22 6.23 6.24 6.25 6.26 6.27 6.28
Chapter 7
7.1 7.2 7.3 7.4 7.5 7.6 7.7 7.8 7.9 7.10 7.11 7.12 7.13 7.14 7.15 7.16 7.17 7.18 7.19 7.20 7.21 7.22 7.23 7.24 7.25 7.26 7.27 7.28 7.29 7.30 7.31 7.32 7.33 7.34 7.35 7.36 7.37 7.38 7.39 7.40 7.41 7.42 7.43 7.44 7.45 7.46 7.47 7.48 7.49 7.50 7.51 7.52 7.53 7.54 7.55 7.56 7.57 7.58 7.59 7.60 7.61 7.62 7.63 7.64 7.65
Chapter 8
8.1 8.2 8.3 8.4 8.5 8.6 8.7 8.8 8.9 8.10 8.11 8.12 8.13 8.14 8.15 8.16 8.17 8.18 8.19 8.20 8.21 8.22 8.23 8.24 8.25 8.26 8.27
Chapter 9
9.1 9.2 9.3 9.4 9.5 9.6 9.7 9.8 9.9 9.10 9.11 9.12 9.13 9.14 9.15 9.16 9.17 9.18 9.19 9.20 9.21 9.22 9.23 9.24 9.25 9.26 9.27 9.28 9.29 9.30 9.31 9.32
Chapter 10
10.1 10.2 10.3 10.4 10.5 10.6 10.7 10.8 10.9 10.10 10.11 10.12 10.13 10.14 10.15 10.16 10.17 10.18 10.19
Chapter 11
11.1 11.2 11.3 11.4 11.5
Chapter 12
12.1 12.2 12.3 12.4 12.5 12.6 12.7 12.8 12.9 12.10 12.11 12.12 12.13 12.14 12.15 12.16 12.17 12.18 12.19 12.20 12.21 12.22 12.23 12.24 12.25 12.26 12.27 12.28 12.29 12.30
Chapter 13
13.1 13.2 13.3 13.4 13.5 13.6 13.7 13.8 13.9 13.10 13.11 13.12 13.13 13.14 13.15
Chapter 14
14.1 14.2 14.3 14.4 14.5 14.6 14.7 14.8 14.9 14.10 14.11 14.12 14.13 14.14 14.15 14.16 14.17 14.18 14.19 14.20 14.21 14.22 14.23 14.24 14.25 14.26 14.27 14.28 14.29 14.30

CHAPTER 2

The Role and Power of the Trial Judge:
Evidentiary Objections Before and During Trial

2.1 The defendant is charged with importation and possession of marijuana with intent to distribute.

The defendant and her boyfriend had crossed from the U.S. into Mexico to do some shopping, and returned later in the day. At the border the defendant was driving the boyfriend’s van. The van was searched, and border agents found 89 packages weighing a total of 151 pounds in a false compartment in the van’s ceiling.

After she was arrested, the defendant took a polygraph exam. The exam showed that the defendant was not being deceptive when she denied knowing that there was marijuana in the van at the time she drove the van to the border. Before the trial starts the defense moves in limine to admit the results of the polygraph exam.

In addition, the defense also moves to bar the testimony of a U.S. Customs agent who is expected to testify in the prosecution’s case that he has been a border agent for several years, that during those years “on a number of occasions I’ve talked to individuals in organizations that smuggle marijuana across the border, and they explain that nobody in their right mind would entrust that amount of marijuana to someone that doesn’t know what they’re doing.”

The following then happens:

Judge: I have two defense motions, one to admit results of a polygraph examination, the other to preclude the anticipated testimony of a government witness. Counsel, why do I need to hear or rule on these motions at this time?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

2.2 Huddleston is charged with selling stolen videotapes in interstate commerce on April 17, [-1]. The issue is whether Huddleston knew the tapes were stolen when he sold them.

The case is now on trial. During the prosecution’s case-in-chief a record store owner testifies as follows:

Q. (By prosecutor) Mr. Toney, do you know Guy Huddleston?

A. Yes, I do.

Q. How do you know him?

A. On February 15, [-1], he offered to sell me new 12 inch black and white televisions for $28 each. And he said he could get several thousand more of them. I bought 38 of the televisions.

Defense: Objection.

Prosecutor: Your honor, this evidence is being offered under Rule 404(b) to prove the defendant’s knowledge.

Defense: Maybe so, but the jury shouldn’t hear it yet.

Judge: Counsel, approach the bench and tell me why you think the jury should not hear this evidence.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

2.3 This is a Medicare fraud case. The defendant, Winkle, and others are charged with conspiracy to defraud the federal government of money claimed to be due for Medicare services. The charges are based on fraudulent invoices for the sale of medical devices.

The case is now on trial. The prosecution calls Jones as a witness in the prosecution’s case-in-chief. Jones testifies he sold the devices at inflated prices, and that he did so because Winkle told him to do so during a lunch conversation they had on February 14, 2000.

In the defense case Winkle is called as a witness, and the following happens:

Q. (By defense) Mr. Winkle, did you have a conversation with Jones over lunch on February 14, 2000?

A. Yes, I did.

Q. What did you say to him and what did he say to you?

Prosecutor: Objection, your honor. That’s hearsay.

Judge: Defense, is there anything else you wish to add at this time?

Defense: Nothing other than I believe the defendant has the right to tell the jury his version of what happened during that conversation.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

2.4 The defendant, Gomez, is charged with conspiracy to import cocaine into the United States.

The case is now on trial. The prosecution offered and the trial judge admitted a record of telephone calls from Gomez’s residence in the United States to a telephone in Venezuela. The telephone calls corroborated the testimony of a prosecution witness who said Gomez authorized him to buy and transport the drugs from Venezuela.

When offering the record of telephone calls, the prosecution was unable to establish a business records foundation under FRE 803(6). Instead, the exhibit was received under the residual hearsay exception, FRE 807.

The defense did not object at the time the record was offered and admitted. The defense did, however, object to the record at the end of that court day, on the ground that the defense did not receive the pretrial notice required by FRE 807. The judge overruled the objection. At the end of the trial, the jury convicted Gomez.

At a hearing on the defendant's motion for new trial the following happens:

Defense: We contend it was error for the court to admit the telephone calls record. The prosecution did not give us the notice required by FRE 807 and it has given you no reason for failing to give notice.

Judge: Prosecution, is there any reason why I should not find failure to give the defense notice is grounds for a new trial?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

2.5 This case is an indemnity claim. The plaintiff, a general contractor who builds homes, was previously sued by a home purchaser for injuries sustained in a fall against a shower door which broke upon impact. That shower door was manufactured by the defendant, a subcontractor. Plaintiff is now seeking from the defendant all attorney's fees and costs expended in the defense of the previous claim.

Before trial the plaintiff and defendant agree to a stipulation that the amount of attorney's fees and costs incurred in the defense of the previous claim totaled $16,838. In plaintiff’s case-in-chief the stipulation is offered in evidence, and there is no objection.

At the close of the plaintiff’s case, defendant moves for a directed verdict (judgment as a matter of law), and the following happens:

Defense: Your honor, we are entitled to a directed verdict because here the law is clear—there can be no recovery of attorney’s fees and costs incurred in the defense of an indemnity claim.

Judge: Plaintiff, that seems to be a correct statement of law. Is there any reason why I should not grant the defendant’s motion?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

2.6 The defendant, Ohler, is charged with possession of marijuana with intent to distribute.

Four year ago, Ohler had been convicted of possession of methamphetamine. Before trial, the prosecution asked for and received a ruling allowing it to use the defendant’s prior felony conviction as impeachment evidence under FRE 609.

In the defense case-in-chief Ohler testifies. To reduce the impact of the anticipated cross-examination using her prior felony conviction, Ohler testifies to her prior conviction during direct examination. At the end of the trial, the jury convicts Ohler.

After trial the defense files a motion for new trial. At the hearing on the motion the following happens:

Defense: Your honor, in support of our motion for new trial, we contend that your honor erroneously granted the government's motion to use Ms. Ohler’s prior conviction for impeachment purposes.

Judge: Why should I consider that issue at this time?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

2.7 This is a 42 U.S.C. 1983 civil rights lawsuit brought by a prisoner, Wilson, against a jail guard, Williams. Wilson alleges that Williams attacked and beat him without reason.

Wilson has a prior conviction for murder. Wilson agreed that the prior murder conviction was admissible against him for impeachment purposes, but before trial moved in limine to bar any mention of the fact that the murder was of a police officer. The trial judge denied the motion, saying: “I am going to allow the defense to use the fact that the murder was of a police officer for impeachment purposes when the plaintiff testifies.”

The case is now on trial. The plaintiff is testifying. During the plaintiff’s cross-examination the following happens:

Q. (By defense) Mr. Wilson, within the past ten years you were convicted of murder, weren’t you?

A. Yes.

Q. And that murder was of a police officer, wasn’t it?

A. Yes.

Q. You received a sentence of life imprisonment for that murder of a police officer, didn’t you?

A. Yes, I did.

At the end of the trial, the jury returned a verdict in favor of the defendant. At a hearing on plaintiff's motion for new trial, the following happens:

Plaintiff: Your honor, we contend it was error for you to allow the defense to say the plaintiff was convicted of killing a police officer.

Judge: Can you raise that issue at this time?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

2.8 This is a 42 U.S.C. 1983 civil rights action brought by Ricketts against a police officer, Davis, and the city that employed him. Ricketts claims that Davis beat him when he objected to Davis mistreating a suspect. Ricketts claims that Davis chased him in a police vehicle, caught up with him, threw him to the ground, and struck him.

Before trial Ricketts notifies the defense that he intends to offer in evidence a police department tape of a police radio message in which someone is saying “run him over.” Ricketts contends the voice on the tape is that of Davis.

At a FRE 104(a) hearing, the following happens:

Judge: I have heard Davis testify at pre-trial hearings. I am now familiar with his voice. After listening to the tape I am not personally satisfied that the voice on the tape is that of Davis. For that reason I am going to sustain defendant’s objection to admission of the tape unless the plaintiff has something further that will change my mind.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

2.9 The defendant, Dougherty, is charged with being a convicted felon in possession of a firearm.

The case is now on trial. In order to prove the prior conviction was in fact a felony, the prosecution in its case-in-chief offers a copy of the indictment in that case. When the prosecution offers the indictment, the following happens:

Defense: I object. That indictment is not certified and therefore has not been authenticated.

Judge: Prosecution, it looks like this indictment is not certified.

Prosecution: Judge, I assure you it will be before our case is closed.

Judge: Very well, I will admit the document subject to it being certified.

Both sides later rest. The prosecution never offered proof of certification. The defense did not renew its objection or move to strike the document. At the conclusion of the trial, the defendant is convicted.

At the hearing on the defendant’s motion for a new trial, the following happens:

Defense: Your honor, we are entitled to a new trial because you allowed in evidence a copy of an indictment that was not certified.

Judge: Prosecution, why shouldn’t I grant a new trial?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

2.10 This is a medical negligence case. The case is now on trial.

Plaintiff's expert testifies that the defendant doctor breached the standard of care when he waited too long before performing a C-section operation on a pregnant woman to deliver a baby in distress. The expert testifies that he bases his opinion in part on a report prepared by another nonparty doctor who is not available to testify. The following then happens:

Q. (By plaintiff) Dr., what did that doctor’s report say?

Defendant: I object. The report is hearsay.

Judge: I’ve performed the weighing test authorized under FRE 703. Although the report is not admissible as substantive evidence, I believe the probative value of the jury hearing its contents substantially outweighs any unfair prejudice there may be.

Defendant: But judge, what about the danger the jury will misuse the evidence?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

2.11 The defendant, Vitale, is charged with engaging in the business of dealing in firearms without a license. The case is now on trial.

A police officer is the main prosecution witness. The officer testifies that he engaged in a weapons transaction with Vitale in a tavern. During the officer's direct examination, the following happens:

Q. (By prosecutor) Officer, why did you go to that tavern?

A. I received information of possible criminal activity conducted at this particular tavern.

Defense: Objection. That is hearsay.

Judge: I will allow him to explain why he was there.

The trial proceeded, and Vitale was convicted. At a hearing on the defendant’s motion for a new trial, the following happens:

Defense: Your honor, allowing the police officer to testify to why he went to that tavern deprived the defendant of a fair trial.

Judge: Defense, why do you believe that was an error that justifies granting a new trial?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?


CHAPTER 3

Opening Statements

3.1 This is a burglary case. During the prosecution’s opening statement, the following happens:

Prosecutor: You will hear testimony during the course of this trial from witnesses that this defendant told them he was involved in an earlier theft incident, approximately two weeks before the break-in at the restaurant that this defendant is charged with today.

Defendant: Objection, your honor.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

3.2 This is a medical malpractice case. The plaintiff claims that the anesthesiologist’s improper use of a medical instrument during surgery broke her teeth. During the plaintiff’s opening statement, the following happens:

Plaintiff: After Mrs. Smith was released from the hospital, Dr. George reduced her bill. Later, he even called her and offered her money to settle the matter out of court. That sure sounds like he thought he was responsible for what he did to her, doesn’t it?

Defendant: Objection.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

3.3 This is a murder case. During the prosecution’s opening statement, the following happens:

Prosecutor: The evidence will show that the defendant fired two shots into her husband’s chest at a distance of less than three and a half feet, and then fired even more shots from further away.

The defense made no objections to the prosecution’s opening statement. During the trial, the prosecution calls an expert witness, who is unable to give an opinion as to the distance from which the shots were fired.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

3.4 This is a robbery and assault with intent to kill case. During the prosecution’s opening statement, the following happens:

Prosecutor: You should know that another person, Felix Wilson, was arrested for this same robbery and later confessed to the crime and implicated this defendant.

Defendant: Objection, your honor. May we be heard at side bar?

Judge: Yes. Counsel, approach the bench.

Defendant: Your honor, the prosecutor just stated that Wilson was arrested and confessed, but he isn’t going to testify. He’s not on the state’s witness list.

Judge: Is that true, counsel?

Prosecutor: Your honor, I didn’t mention the content of his confession, only that he confessed.

Judge: Will the state be calling Wilson during this trial?

Prosecutor: No, your honor.

Defendant: We still object.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

3.5 This is criminal case where the defendant is charged with being a felon in possession of a firearm. During the prosecution’s opening statement, the following happens:

Prosecutor: It will become clear to you during the course of this trial, ladies and gentlemen, that the defendant would do anything to stay out of trouble with the law except follow it.

Defendant: Objection, your honor.

Later in the prosecution’s opening statement, the following happens:

Prosecutor: And finally, folks, you will learn that the defendant is a convicted felon, because he was convicted of a felony—aggravated assault—three years ago.

Defendant: Objection.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

3.6 This is a burglary case. During the prosecution’s opening statement, the following happens:

Prosecutor: What you are going to hear today from the defendant is a cock-and-bull story about what he was doing when he was caught red-handed trying to steal a pickup truck.

Defendant: Objection, your honor.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

3.7 This is a sexual assault case. During the prosecution’s opening statement, the following happens:

Prosecutor: I feel that this is one of the most serious cases of sexual assault that I have ever seen, or that you will ever see or hear about in your lifetime. I’m sure that you will feel the same way I do when you have heard all the evidence.

Defendant: Objection.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

3.8 This is a theft case. During the defense’s opening statement, the following happens:

Defendant: I would like to go over with you some of the underlying principles of law, the presumption of innocence, and the burden or proof that the prosecution has in this case. First, they must prove to you that my client acted purposefully and knowingly.

Prosecutor: Objection.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

3.9 This is an assault case. During the prosecution’s opening statement, the following happens:

Prosecutor: I’m going to give you some information now about the meaning of reasonable doubt, and tell you a little bit about what goes on in a criminal trial.

Defendant: Objection.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

3.10 This is a sexual assault case. During the prosecution’s opening statement, the following happens:

Prosecutor: You will hear from two witnesses for the defense today, including the defendant’s own mother.

Defendant: Objection, your honor.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

3.11 This is a burglary case. During the prosecution’s opening statement, the following happens:

Prosecutor: I anticipate that you will hear the defendant’s sister give you an alibi for her brother when she testifies. She will tell you that he could not have committed this robbery because the defendant was with her at the time. I want you to listen very carefully to her, but I’ll tell you this. She’s lying.

Defendant: Objection, your honor.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?


CHAPTER 4

Direct Examination of Witnesses:
Basic Considerations

4.1 This a criminal case. The defendants are charged with the murder of two Navajo police officers. The victims’ bullet-ridden bodies were discovered in their police vehicles, which had been burned and left in a remote area of the reservation.

Raymond Flatt is one of the prosecution’s witnesses at a pretrial hearing on the defense’s motions to dismiss the indictment and to suppress statements. Flatt was sworn in as a witness and testified, but his direct and cross-examinations exposed numerous inconsistencies regarding his recollection of the events on which the charges are based. Flatt had made prior statements to FBI agents, defense investigators, the grand jury, and others, all of which were inconsistent with each other, and which Flatt admitted making when he testified at the hearing.

At the conclusion of the hearing, the following happens:

Defendant: Your honor, we move that the testimony of Flatt be stricken for the purposes of these motions, and we further move that Flatt be precluded from testifying at the trial of this case. These inconsistencies, which he admitted making, have totally destroyed the witness’s credibility, both for purposes of these motions and for any later trial.

Judge: Counsel, what's the evidentiary basis for your motion?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

4.2 This is a criminal case. Defendant is on trial for conspiracy to distribute cocaine. The state’s principal witness is the defendant’s co-conspirator. In the co-conspirator's testimony in two previous trials (against other co-conspirators) she admitted having used substantial amounts of cocaine during the period covered by her testimony. She also admitted to using Xanax, an anti-depressant, prescribed for her while she was in custody in the pending case.

Defendant makes a motion in limine to compel the co-conspirator witness to submit to a psychiatric examination to determine her competency as a witness. At the hearing on the motion the following happens:

Judge: Defense, what’s your authority for this motion?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

4.3 This is a criminal case in which the defendant is charged with income tax evasion. The defendant is representing himself without a lawyer.

Before trial, defendant files a “Motion to Challenge the Oath.” In the motion defendant states that he is unable to take the traditional oath, and proposes an alternative oath that would replace the word “truth” with the phrase “fully integrated honesty.” Thus, the oath would read: “Do you affirm to speak with fully integrated honesty, only fully integrated honesty and nothing but fully integrated honesty?” At the hearing, the following happens:

Judge: Mr. Ward, I understand that you for personal reasons have a preference for an alternative oath, and object to the traditional oath. My question is, what law is there that requires the court to administer your proposed alternative oath?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

4.4 This is a civil proceeding brought by a taxpayer against the Internal Revenue Service. At a hearing, the taxpayer refused, on religious grounds, to swear or affirm before testifying. The following occurs at the hearing:

Judge: Ms. Ferguson, why are you objecting to taking the standard oath?

Plaintiff: My religious beliefs are such that swearing or affirming would denounce the very existence of God. I’m willing to take an alternative oath. I=m willing to declare that the facts I am about to give are, to the best of my knowledge and belief, accurate, correct, and complete.

Judge: Defense, any objection to that oath?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

4.5 This is a habeas corpus petition challenging the defendant’s conviction for second-degree murder and rape eight years ago. The petition alleges that the jury which convicted the defendant was improperly influenced during the trial, and that his right to an impartial jury was violated.

An evidentiary hearing is now being held. Evidence presented at the hearing disclosed that, while the jury was deliberating, two men had approached a young female juror and talked to her. The defendant requested the trial court to investigate the incident, but the judge refused, nor did the judge address the jury about the incident. The jury then deliberated for several more days, eventually returning a guilty verdict.

At the hearing, witnesses who testified included the defendant’s trial counsel, the court bailiff, and nine of the twelve jurors, including the juror who was approached. Their testimony showed that the juror in question had been approached in an elevator during the course of deliberations by two men whom the juror believed were friends of the defendant. The men said something to the effect of, “Hey baby, I want to talk to you.” They asked her if she was a member of the defendant”s jury, to which she replied yes. The men may have asked her other questions. The juror was frightened by the incident, and reported it to the other jurors and the bailiff.

Several of the jurors recalled the incident and testified at the hearing that the young female juror appeared upset by the incident. The jurors themselves did not discuss the incident in any detail during their deliberations.

At the conclusion of the testimony, the following happens:

Judge: Defense, this is your petition. Why do these facts, if true, violate any statutory or constitutional rules?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

4.6 Defendant is being tried for selling cocaine. On the first day of jury deliberations, the trial judge called the lawyers, court clerk, and court reporter into his chambers. The following then happens:

Judge: A short while ago one of the jurors, Ms. Rose, came to me and told me that last night her former brother-in-law paid her a visit. He asked her about her involvement in this trial and told her that a member of the defendant's family had approached him. Ms. Rose said that this has caused her to be concerned for her family. She said that she told other jurors that she had had a visitor last night, but nothing further. I told her not to return to the jury room until we decided what to do. I now want to hear from both sides, prosecution and defense, on how I should handle this situation.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

4.7 The defendant, a lawyer, is charged with criminal contempt. The charge is based on the lawyer’s previous representation of a client, Calloway, who was facing various drug charges in Vermont. Faced with an imminent trial date, the lawyer advised Calloway to remain in California, and arranged through his law clerk to have Calloway’s mother admitted to a hospital. On the day of trial, the lawyer advised the court that Calloway was still in California because the defendant's mother had been hospitalized for a heart attack, and asked for a continuance, which was denied. Following an investigation, the lawyer was charged with criminal contempt for making misleading statements to the court.

At the trial of the criminal contempt charge, the judge called the law clerk, Hallett, as a witness. Without conducting any direct examination, the judge allows the parties to cross-examine her. The following then occurs:

Defendant: We object, your honor, to this procedure.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

4.8 This is a personal injury case. Plaintiff claims the defendant was negligent in placing and failing to maintain a warning sign at a curve on a county road and that this negligence was the proximate cause of her automobile accident.

The case is now on trial. At the beginning of the trial the judge entered a standard order excluding testifying witnesses from the courtroom. The plaintiff is unable to be present at the trial because she still is hospitalized, so plaintiff’s lawyer has the plaintiff’s mother sit at counsel table during the trial. The following then happens during the plaintiff's case-in-chief:

Judge: Plaintiff, call your next witness.

Plaintiff: Your honor, we call Mrs. Wilmer, the plaintiff's mother, as our next witness.

Defendant: Objection, your honor.

Judge: What will she testify about?

Plaintiff: She’ll testify about the plaintiff's medical condition from the date of the injury to the present time.

Defendant: We object.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

4.9 This is a criminal case in which the defendant is charged with conspiracy to distribute a controlled substance.

The case is now on trial. The prosecutor in the opening statement says that one of defendant’s co-conspirators confessed to the crime and confirmed defendant’s involvement. However, during the prosecution's case-in-chief the co-conspirator is called as a witness and testifies that the police fabricated his confession, and that his confession implicating the defendant is not true.

In rebuttal, the prosecution then calls the co-conspirator’s ex-girlfriend as a witness. She came to court with the co-conspirator and listened while he testified. The following then happens:

Defendant: Your honor, we object to this witness and ask to be heard.

Judge: Please approach the bench. [Lawyers approach.] What will this witness testify about, prosecution?

Prosecutor: Your honor, this witness is the co-conspirator’s former girlfriend. She will testify that he told her he was willing to say anything to get the defendant out of jail. Her testimony will impeach the co-conspirator's earlier testimony which, needless to say, surprised us.

Judge: Defense, what’s the ground for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

4.10 This is a civil rights action. The plaintiff, a prison inmate, claims that a prison guard improperly confiscated his medication, which he needed to control epilepsy, resulting in the plaintiff having repeated seizures.

At trial, the defense calls a nurse at the prison. On direct examination the nurse testifies that the plaintiff failed to pick up his medication from the prison infirmary on seven different dates. She testified that she had reviewed portions of the prisoner's medical file relating to the dispensing of medication. The nurse read from the records the dates on which the prisoner failed to pick up his epilepsy medication from the prison infirmary. The file has not been admitted in evidence. The following then happens:

Plaintiff: Your honor, we object to the nurse testifying about the contents of the medical file.

Judge: Approach. [Lawyers approach the bench.] What's the basis for your objection?

Assume the objection is overruled. On cross-examination by plaintiff's lawyer, the nurse stated she was not on duty on the days that the plaintiff failed to obtain his medication, and that her knowledge of the subject came from her review of the medical charts, which someone else had prepared. The following then happens:

Plaintiff: Your honor, we renew our objection to this witness’s testimony.

Judge: Approach. [Lawyers again approach the bench.] Basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

4.11 The defendant is charged with illegally transporting a pistol in interstate commerce.

At trial the prosecution called a Massachusetts gun shop owner. The owner testified that he had owned his gun shop for years, that he had ordered the pistol from a South Carolina telemarketing firm, and that he received the pistol some time after ordering it. The direct examination then continues as follows:

Q. (By prosecutor) Are you familiar with that particular model gun?

A. Oh yes. That gun is manufactured in Brazil.

Defendant: Objection, your honor.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

4.12 This is an age discrimination case brought by a former employee against his former employer. Before trial, defendant took the plaintiff's deposition, where the following happened:

Q. (by defendant): Mr. Dimaso, what evidence do you have that you were terminated from employment because of your age?

A. Well, they brought in a 22-year-old. It seems pretty obvious to me that they got rid of me so they could get in the young guy.

Q. Is it your contention that someone was hired to replace you?

A. I have no idea.

Q. So you have no actual knowledge of whether or not you were replaced by Mr. Barnes, the 22-year-old?

A. No, I know that’s what happened. My boss told me that Mr. Barnes had already moved to town and had been here almost a month already.

Q. Do you know if Mr. Barnes was already an employee of the company before he moved?

A. I don=t know.

Before trial defendant made a motion in limine to bar the plaintiff from testifying on the matters he testified about during his deposition. At the hearing on the motion, the following happens:

Judge: Counsel, I’ve reviewed the plaintiff's deposition testimony, which you anticipate the plaintiff will also testify to at trial. Why should this testimony be excluded?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

4.13 This is a personal injury and wrongful death case brought against a car manufacturer. Defendant makes a motion in limine to exclude excited utterances made by two witnesses to the accident and to preclude those witnesses from testifying at the trial. At the hearing on the motion the following happens:

Judge: Defense, why should these statements and testimony be precluded?

Defendant: Your honor, we have statements from other persons that these two witnesses had been drinking in a bar, and that both had several drinks of hard liquor, before the accident. These eyewitnesses were too drunk to see anything.

Judge: Assuming that your witness statements are accurate, what rule of evidence are you basing your motion on?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

4.14 The defendant is charged with conspiracy to sell cocaine and heroin. The case is now on trial. During its case-in-chief, the prosecution introduced in evidence tape recordings of conversations between the defendant and a government informant. That informant is then called as a witness. During the direct examination the following occurs:

Q. (By prosecutor) Mr. Leader, you’ve heard the tape recordings of your conversations with the defendant?

A. Yes.

Q. I want to ask you about some of the words you and the defendant were using during those conversations. When you use the word “batteries,” what does that mean?

Defendant: Objection.

Judge: Overruled.

A. Batteries means cocaine.

Q. What does the word “butter” mean?

Defendant: Same objection, your honor. May we be heard at side bar?

Judge: Yes. Approach the bench. [Lawyers approach.] Counsel, what's the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

4.15 Plaintiff is suing the railroad for personal injuries received when its freight train collided with her truck. She claims the railroad was negligent in maintaining the crossing gate, which was not down when she approached the crossing. She also claims that the train was traveling too fast, failed to brake properly, and neglected to blow its warning whistle.

The case is now on trial. Plaintiff calls the train's conductor as a witness. During the direct examination the following happens:

Q. (By plaintiff) Mr. Haley, you claim that as you approached the crossing you were operating the train at the posted speed and using the brakes properly?

A. That's right.

Q. But you’ve been ticketed in the past for exceeding the posted speed limit, haven’t you?

A. No.

Q. And you’ve been ticketed in the past for improperly using the brakes, haven’t you?

A. No.

Later in the plaintiff's case the following happens out of the jury’s presence:

Plaintiff: Your honor, in light of the train conductor's denials, we now intend to introduce in evidence his employment records, which show that he has been cited for various safety violations during his career, including speeding and failing to brake properly.

Defendant: We object. Those records show 9 citations, for a variety of things, over a 29-year career.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

4.16 Defendants, two brothers, are charged with importing marijuana and conspiracy to import marijuana from Mexico into Texas.

The prosecution's star witness is the pilot of defendants’ airplane. That pilot gave a statement to Mexican police and DEA agents, after his arrest, that implicated both himself and the two defendants in the smuggling scheme. However, when called to testify before a grand jury in a related case, the pilot refused to answer any questions. He was then given immunity from prosecution and testified. In his testimony the pilot denied that he or the two defendants had any involvement in any drug smuggling scheme and said that his statements to Mexican police and DEA agents were wholly fabricated and resulted from torture. The prosecutor in the present case knew what happened before the grand jury.

The case is now on trial. In the prosecution's opening statement the following happens:

Prosecutor: The key witness in this case is a pilot named Carpenter. He’s the one who flew to Mexico with the money and was to pick up the marijuana. But Carpenter is going to be a hostile witness. He's going to claim that he was in Mexico on legitimate business, and that any statements he made were a result of his being tortured by the Mexican police. If he testifies that way, we=re going to show that he’s lying, and we’re going to call the DEA agents and prove to you that, after he was arrested, Carpenter freely admitted to being in on the scheme with the two defendants.

Defendant: Objection, your honor, that's improper.

During the prosecution’s case-in-chief, Carpenter is called as a witness. The following then happens out of the presence of the jury:

Defendant: Once again, your honor, we object to Carpenter being called as a witness by the prosecution under the circumstances that exist.

Judge: What’s the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

4.17 This is a drug conspiracy case. The case is now on trial. During the prosecution’s case-in-chief, an informant is called as a witness. During the direct examination, the following happens:

Q. (By prosecutor) Mr. Piper, on what date did you have your first telephone conversation with the defendants?

A. Well, [witness looks at notes he is holding] the first one was on April 18.

Defendant: Your honor, we object to the witness referring to any notes he has with him.

Judge: Mr. Piper, do you need the notes to testify about these various telephone conversations?

Witness: I can testify generally about the conversations, but if you=re going to ask me details like the exact date and time a specific call happened, or exactly what somebody said during a specific call, I need to refer to the notes I made at the time of those calls.

Judge: But you have a general recollection of the calls?

Witness: yes.

Judge: And you remember the general contents of the calls?

Witness: Yes.

Defendant: We still object to this procedure.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

4.18 Plaintiff, a waitress, is suing her employer under the Fair Labor Standards Act, alleging violations of the minimum wage and overtime compensation provisions.

The case is now on trial. During the plaintiff's direct examination, the following happens:

Q. Ms. Doty, what hours and days did you work at the Pancake House back in June of last year?

A. Well, I was scheduled to work most days until 4 pm, but I=d usually have to stay later to cover if someone on the dinner shift came late. It was pretty hard on me, since I=d been on my feet since 6 am, and I had to do this pretty often. I=d have to look at my notes to tell you exactly which days I had to work overtime, though.

Defendant: Objection, your honor, to the witness referring to any notes. They’re hearsay.

Judge: Ms. Doty, when did you make those notes?

Witness: A gentleman from the Labor Department asked me to make a schedule of the times I=d worked to help me remember. He said it would be a long time before trial, and he didn’t want me to forget.

Judge: What did you use to make those notes?

Witness: I looked at a calendar, and that helped me remember.

Judge: What can you remember without looking at your notes?

Witness: I can remember how long I worked there, and approximately the number of hours I worked per week. I just can=t remember off the top of my head the specific days that I had to work overtime. That’s what I need the notes for.

Defendant: Same objection, your honor.

Plaintiff: I offer in evidence Doty’s notes as Plaintiff's Exhibit No. 5.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

4.19 Plaintiff sues her employer for wrongful termination, which she claims occurred after she complained about sexual harassment from her supervisor.

One of the defendant’s in-house lawyers made notes during the meeting at which the decision to terminate the plaintiff was made. During the discovery stage of the litigation, that lawyer was deposed. Before his deposition the lawyer reviewed his notes of the meeting to prepare for the deposition. This fact came out during the deposition.

Following the deposition, plaintiff made a motion that the defendant be compelled to turn over the notes. At a hearing on the motion, the following happens:

Judge: Plaintiff, it’s your motion. Why are you entitled to get the lawyer’s notes of the meeting?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?


4.20 The defendant, King, a lawyer, is charged with insurance fraud. In the prosecution case, Gale, a lawyer who is cooperating with the prosecution, testifies that he had been filing false and fraudulent insurance claims. When he came under FBI scrutiny, he arranged to have the fraudulent cases transferred to King. King denies any knowledge of the fraud.


During Gale’s direct examination the following happens:


Q. (By prosecutor) Did there come a time when you talked to King about the cases?

A. Yes. I met him at his office two years ago, in late July. I asked him if he was familiar with car accident cases, with the process of settlement, and what it takes to settle.

Q. Did he respond?

A. Yes. He said he had experience with these kinds of cases.

Q. What did you understand him to mean by that?

Defense: I object.

Judge: I will allow it.

A. I believed he was referring to car accident cases where the injuries were exaggerated and the medical reports were bought. I think he knew exactly what he was getting into.

Q. What is your opinion based on?

A. On what people said about King, my conversation with him, and the way we were handling the phony cases.

Defense: I move to strike all of the witness’s testimony concerning the defendant’s state of mind.

Judge: I will hear you out of the jury’s presence.


1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?


CHAPTER 5

Direct Examination of Witnesses:
Relevance

5.1 Defendant is charged with armed robbery and first-degree murder. The charges stem from a broken drug transaction.

At trial the prosecution calls four witnesses, including the two victims, who were driving around looking for crack cocaine when the robbery and shooting happened.

During the direct examination of one of the witnesses, the following happens:

Q. (By prosecutor) When did you first see the defendant?

A. When we were driving around, about midnight.

Q. Had you ever met the defendant before?

A. Sure, we knew him.

Q. What name did you know him by?

Defendant: Objection, your honor. May we have a side bar?

Judge: Yes. Approach. [Lawyers come to the bench.] How’s the witness going to answer?

Prosecutor: He's going to say that he knew the defendant by the name of “Psycho.”

Judge: Defense, what's your objection based on?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.2 The defendant is charged with being a felon knowingly possessing a firearm, specifically a pipe bomb made of carbon dioxide cartridges, in [-2].

Before trial, the defense moves to preclude the testimony of Warden, a former friend of the defendant. At the hearing on the motion, the following happens:

Defendant: Your honor, this is our motion to preclude the testimony of Warden, an acquaintance of my client about 20 years ago. Based on the prosecution’s pretrial disclosures, we believe Warden will testify that sometime between [-11] and [-7], he saw my client in possession of pipe bombs and carbon dioxide cartridges. We object to this anticipated testimony and ask that it be precluded.

Judge: What’s the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.3 The defendant, Mejia, is charged with conspiracy to distribute cocaine and possession with intent to distribute cocaine.

The case is now on trial. In the prosecution’s case-in-chief, testimony from DEA agents and a co-conspirator, Escobar, showed that Escobar had driven a car to Mejia's house, that Mejia was not home, and that Escobar then returned to a nearby hotel. When he arrived at the hotel, Escobar was arrested, his car was searched, and cocaine was found in a hidden compartment.

The prosecution’s next witness, another DEA agent, obtained a search warrant for Mejia’s car, which the agents had seen Mejia driving five days earlier. The car was seized in Mejia's garage and searched. That search discovered that Mejia's car contained electronically operated hidden compartments, but no drugs or drug residue was found in those compartments. Before that agent is called as a witness, and before the jury is brought into the courtroom, the following happens:

Defendant: Your honor, before the next DEA agent testifies, we ask the court to rule on our previously filed motion in limine to preclude the prosecution from introducing any evidence of the results of the search of my client’s car.

Judge: What’s your argument?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?



5.4 Abel and two co-defendants are charged with bank robbery.

Before trial the prosecution notifies the defense that one co-defendant, Ehle, had agreed to become a prosecution witness against Abel.

When the defense learns this, it notifies the prosecution that it will call Mills as a defense witness. Mills will testify that he knew both Abel and Ehle, had done prison time with both of them, and that Ehle told him that he (Ehle) intended to falsely implicate Abel in order to receive preferable treatment from the government.

When the prosecution learns this, it notifies the defense that it will recall Ehle as a rebuttal witness. Ehle will testify that all three, Ehle, Abel, and Mills, were members of the “Aryan Brotherhood,” a prison gang, and that the gang required its members to deny membership in the gang and to commit perjury to benefit other members of the gang.

The defense then files a motion in limine to bar the rebuttal evidence. At the hearing the following happens:

Judge: Defense, this is your motion to preclude. What’s your argument?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?



5.5 This is a products liability case involving a Jimmy four-wheel drive vehicle manufactured by the defendant. Plaintiff claims that a design and manufacturing defect in the Jimmy’s rear axle and axle assembly caused the vehicle’s rear axle to fracture, causing the vehicle to go out of control and roll over. That accident killed plaintiff's wife, the driver of the vehicle.

Defendant claims the accident was caused solely by driver error, which in turn was caused by the driver’s intoxication. She consumed a number of alcoholic beverages after work. Her blood alcohol level was measured at 0.174 at the hospital and at 0.21 at the Medical Examiner's lab. (A level of 0.10 is presumptive evidence of intoxication in the state.)

Before trial plaintiff filed a motion in limine to exclude all reference to the deceased’s consumption of alcoholic beverages and to her blood alcohol level. At a hearing on the motion, the following happens:

Judge: Counsel, I’ve read your motion and I=m puzzled. Why should evidence of the deceased’s intoxication be inadmissible in this kind of case?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.6 Defendant and others are charged with conspiracy to smuggle aliens into the United States for profit. The defendants, crew members of the Xing Da, a fishing boat that was boarded by the Coast Guard and found to have over 100 undocumented Chinese nationals on board, are charged with having various roles in the conspiracy, from captain of the boat to enforcers to keep the aliens under control during the 54 day transit from China.

Before trial the prosecution serves notice on the defense that it intends to introduce the following evidence at trial:

(1) Living and sanitary conditions in the Xing Da’s hold were filthy;

(2) The boat lacked required safety and emergency devices such as life jackets and rafts;

(3) Some of the defendants repeatedly beat the aliens during the transit.

Defendants object to this evidence. At the hearing on the objections, the following happens:

Judge: Defense, what's the basis for your objections?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.7 This is a 42 U.S.C. 1983 civil rights lawsuit against police officer Berry, who shot and killed Sherrod while attempting to arrest Sherrod. The case is brought by Sherrod’s father as administrator of Sherrod’s estate.

The case is now on trial. Berry testifies on direct examination he was investigating a robbery that happened shortly before he saw a car with two suspects in it near the scene of the robbery. Sherrod was the driver. Berry ordered the two men in the car to raise their hands. They did not. Berry and his partner approached the car with guns drawn. The direct examination then continues as follows:

Q. (By defense) What happened as you approached the car?

A. I looked into the vehicle.

Q. What did you see?

A. I saw the driver, Sherrod, make a quick movement with his right hand into the left inside pocket of his coat, as if he was going to reach for a weapon. That's when I fired my gun at the driver.

On cross-examination the following happens:

Q. (By plaintiff) After you fired your gun at Sherrod, you opened the car door, didn’t you?

A. Yes.

Q. And then you conducted a search of Sherrod?

Defense: I object.

Judge: Counsel, please approach the bench. [Lawyers approach.] Plaintiff, where are you going with this?

Plaintiff: I want to show the police searched Sherrod and did not find a gun or any other weapon.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.8 This is a wrongful death case brought by the plaintiff's estate against an airline. The deceased, Smith, a college football player, was killed in an airplane crash during his senior year in college.

Smith was a guard on Notre Dame's football team. He expected to be drafted by the NFL and play professionally. The estate is suing to recover (among other damages) Smith's lost future earnings as a professional football player.

Smith died over the Christmas holidays of his senior year. He had completed four years of college eligibility and had expressions of interest from several NFL teams, but the NFL draft had not yet occurred when he died. He was a starting guard during his junior and senior years and was voted on the All-American second team in his senior year.

To prove Smith's expected future earnings as a professional football player, plaintiff seeks to introduce evidence of the contracts five other members of his Notre Dame team who were seniors with Smith received from their NFL teams. These were:

(1) Johnson, the starting quarterback in his senior year, was drafted in the 5th round of the NFL draft and received a contract of $1,000,000 for each of three years.

(2) Williams, the starting running back for two years and an All-American first team member in his senior year, was drafted in the 1st round of the NFL draft and received a contract of $2,000,000 for each of five years.

(3) James, the other starting offensive guard in his senior year, was drafted in the 6th round of the NFL draft and received a contract of $500,000 for each of two years.

(4) Henderson, a starting defensive end for two years and an All-American second team member his senior year, was drafted in the 3rd round of the NFL draft and received a contract of $1,000,000 for each of three years.

(5) Haynes, a starting defensive back for three years and the punt and kickoff returner and an All-American second team member his senior year, was drafted in the 2nd round of the NFL draft and received a contract of $1,500,000 for each of five years.

The defense objects. At a pretrial hearing, the following happens:

Judge: This is a hearing on defendant’s motion to preclude certain evidence the plaintiff intends to introduce at trial. Defense, what’s your objection to this evidence?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.9 The defendant is charged with armed bank robbery. According to the prosecution, the defendant, while armed with a handgun, entered the bank, threatened a teller, and took cash from the bank. The defendant was arrested for the robbery two weeks later.

Before trial, through discovery, the defense learns that the prosecution has the following evidence:

(1) A bank teller will identify the defendant as the person who entered the bank and said: “I’ve got a gun, give me all the money,” and forced her to hand over the cash in her teller drawer. The teller will say that the defendant had his right hand in a jacket, and was gripping what looked like the brown wooden handle of a gun, although she could not see the rest of the gun.

(2) A friend of the defendant who will say that, a few hours after the bank robbery, he was with the defendant when he saw the defendant throw a revolver with a brown handle into a nearby river.

(3) A police officer will say that he arrested the defendant two weeks after the robbery, and that he searched the defendant's car following his arrest. That search revealed a shotgun with a cut-off barrel under the passenger seat.

(4) Another police officer will say that he executed a search warrant on the defendant's home the same day the defendant was arrested. That search disclosed numerous weapons and ammunition, including two revolvers, two automatic handguns, several rifles and shotguns, and two fully automatic machine guns.

The defense moves to preclude the testimony of the defendant's friend and the two police officers. At a hearing on the motion, the following happens:

Judge: This is the defendant’s motion to preclude certain evidence. Counsel, proceed with your argument.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.10 This is a personal injury case. Plaintiff claims he was injured when the defendant drove through a stop sign and struck the plaintiff's car in the intersection.

Through discovery, plaintiff learns that one year before the collision at issue the defendant received a traffic citation for driving through the same stop sign. He pleaded guilty to the violation and received a $50 fine.

The case is now on trial. Just before the plaintiff is ready to rest his case-in-chief, the following happens:

Plaintiff: At this time, I offer a certified copy of the guilty plea and judgment reflecting the defendant's traffic conviction one year before this collision and concerning the same stop sign at issue in this case.

Defense: I object.

Judge: Sustained.

The case then proceeds. In his case-in-chief the defendant testifies he could not see the sign because the city had planted some tall bushes in front of it, obscuring his vision. During cross-examination, the following happens:

Q. (By plaintiff) One year before this collision, didn’t you receive a traffic citation for going through that very same stop sign?

Defense: I object and move for a mistrial.

Judge: Plaintiff, how did this citation get any more relevant than it was the last time you brought it up?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?



5.11 The defendant is charged with possession and sale of cocaine. The defendant was arrested when he tried to sell one kilogram of cocaine to someone who turned out to be an undercover police officer.

The case is now on trial. In the defense's case-in-chief the defendant calls his pastor. During the direct examination the following happens:

Q. (By defendant) Rev. Lawson, you’ve known Mr. Diaz for how long?

A. Most of his life.

Q. Do you know Mr. Diaz’s character traits for being prone to criminal conduct or activity?

Prosecutor: Objection, your honor.

Judge: Basis?

Later in the defense case the defendant calls the defendant's mother. During the direct examination the following happens:

Q. (By defendant) Mrs. Paganelli, does your son have a character trait for being prone to large-scale drug dealing?

Prosecutor: Objection, your honor.

Judge: Basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.12 This is a murder prosecution. The defendant, a police officer, raises the affirmative defenses of self-defense.

On the night of the shooting, defendant and a friend went into a nightclub. They were frisked at the door by the bouncer, Rodriguez (the victim). When Rodriguez frisked the defendant, he noticed the defendant was carrying a handgun, but Rodriguez let him into the nightclub when the defendant showed his police badge. Later in the evening, when the defendant started to leave the nightclub, a fight erupted between the defendant and Rodriguez. During the struggle Rodriguez was fatally shot.

The case is now on trial. Prosecution and defense witnesses gave differing accounts of how the fight got started and what happened during the struggle between the defendant and Rodriguez. According to some accounts, the defendant pulled his handgun first; according to others, it was Rodriguez who tried to grab the defendant's handgun.

In the defense case-in-chief the defendant also sought to introduce evidence of a domestic violence dispute involving Rodriguez two years earlier. Outside of the hearing of the jury, the following occurs:

Judge: Defense, exactly what is this evidence you’re offering?

Defendant: Your honor, two years ago Rodriguez was in a domestic altercation with his wife. Police were called. The police report shows that when the responding officers arrived at the Rodriguez house, Rodriguez acted belligerently towards the officer and yelled: “Get your ass off my property or I’ll kill you.” Rodriguez also pointed a gun at the responding officers. We plan to prove what happened through one of the officers who was present.

Judge: Prosecution, any objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.13 This is a federal civil rights lawsuit brought by the plaintiff against two police officers. Plaintiff claims that one of the police officers shot and killed her husband, and that the shooting was unjustified. The defense is self-defense.

Police were called to the scene of an automobile accident. One of the drivers, Perrin, left the scene and walked to his nearby home. The police went to Perrin’s home and attempted to interview him. After a delay, Perrin opened the door and spoke to the officers, but was acting erratically. He then went back inside his home. Moments later, Perrin opened the door quickly and physically attacked the officers, who tried to subdue him.

The case is now on trial. In the defense case Officer Anderson testified that he feared he was about to lose consciousness during the struggle, since Perrin had repeatedly kicked him in the face and chest, and chokeholds were not subduing him. Anderson then took out his gun and fatally shot Perrin.

The defense also wishes to call as witnesses four police officers, all of which had experienced previous encounters with Perrin. They would testify about five separate incidents where they were exposed to Perrin's apparent hatred of uniformed officers and his consistently violent and uncontrollable reactions to the police during those episodes.

The plaintiff previously made a motion to preclude the testimony of the four police officers, but the judge had not ruled on the motion. The following then happens:

Judge: Before the jury comes back from the break, I=d like to hear arguments on plaintiff's motion to preclude the testimony of four police officers. This needs to be decided now. Plaintiff, it’s your motion. Why should this testimony be barred?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?



5.14 Defendant and two co-defendants are charged with conspiracy to manufacture and distribute marijuana. The defendant claims that one of the co-defendants, Johnson, coerced him into participating in the scheme to grow marijuana. The defense of coercion requires proof that the defendant had a well-grounded fear of immediate death or serious bodily harm if the criminal acts are not done.

The case is now on trial. The defendant testifies that Johnson had threatened to kill him if he refused to participate in the marijuana-growing venture. The defense then calls another witness, Seracki, to support his coercion defense. Seracki previously made a statement that Johnson “was a man of violent propensity” and that Johnson had previously threatened her when she was dating Johnson. Before Seracki takes the stand, the following happens out of the presence of the jury:

Prosecutor: Your honor, before Ms. Seracki takes the stand, we object to her testimony.

Judge: What’s the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.15 Defendant is charged with numerous counts of conspiracy, bank fraud, and false statements on income tax returns. The charges are based on several schemes to obtain bank loans by misrepresenting his financial condition.

The case is now on trial. In its opening statement, the defense stated that Moore was an honest man and that the defense would present character witnesses about Moore's general reputation. In the defense case-in-chief, the defense called several witnesses who described Moore as someone known to be honest and trustworthy in his personal and business dealings. One of those witnesses was Love, who had been Moore's lawyer in the past. During cross-examination of Love, the following happens:

Q. (By prosecutor) Mr. Love, did you know that Mr. Moore declared bankruptcy this year?

Defendant: Objection.

Q. Did you know that Mr. Moore defaulted on loans at five banks this year that totaled hundreds of thousands of dollars?

Defendant: Objection again, your honor. May we be heard?

Judge: Yes. Come to the bench. [Lawyers approach.] What’s the basis for your objections?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.16 Defendant is charged with armed bank robbery. The prosecution’s evidence is that the defendant and another man, while wearing a ski masks and carrying small handguns, took money from the bank tellers.

The prosecution also has evidence that, two weeks after the bank robbery, two men had entered a woman’s home (in the same town as the bank) wearing ski masks and carrying small handguns. She struggled with them, and during the struggle the mask of one of the men came off. She identified that robber as the defendant. The defendant was charged with burglary and assault. However, at the trial of this case the jury returned a verdict of not guilty.

The defendant then makes a pretrial motion to preclude the prosecution for introducing any evidence relating to the burglary and assault case. At a hearing on the motion, the following happens:

Judge: Defense, what is the evidentiary basis for your motion?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.17 Defendant is charged with armed robbery for taking the victim’s car at gunpoint.

A few days after the victim’s car was taken, a police officer saw the defendant driving a car without a proper license and attempted to pull the car over. The defendant sped away and tried to elude the police. After a chase, the car was pulled over, and the defendant attempted to flee, but was apprehended. The police officer learned that the defendant was a suspect in the carjacking reported earlier. The defendant was then arrested and charged with both armed robbery and eluding the police. Before trial the eluding charge was severed, and the prosecution elected to try the defendant on the armed robbery charge first.

Before trial the defense made a motion in limine to preclude the evidence of flight. At the hearing on the motion the following happens:

Judge: How many days were between the time of the carjacking and the time of the arrest?

Prosecutor: Three days.

Judge: And the car the defendant was driving, was that the same car that was earlier taken from the carjacking victim?

Prosecutor: No.

Judge: Defense, it’s your motion. What’s your argument?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.18 Defendant is charged with armed robbery. The charges are based on the robbery at gunpoint of a counter clerk at a truck rental firm on December 7, [-2]. Following an investigation, the defendant was arrested five weeks later.

At the preliminary hearing the arresting detective testified that following his arrest the defendant said that in early December he had been living in transient hotels and partying with a prostitute, drinking booze and smoking crack cocaine. The defendant also said that on November 27, [-2], when he started a four-week vacation, he had received five paychecks from his job totaling over $3,000 and that he had periodically cashed them in December. Records obtained from defendant's employer were consistent with his statement.

The defendant then files a written motion to preclude the detective from testifying at trial about the defendant's statement regarding what he had been doing in early December. At the hearing on the motion, the following happens:

Judge: Defense, why should the defendant's statement be precluded?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.19 Defendant is charged with arson with intent to defraud an insurer. According to the prosecution's theory of the case, the defendant hired another person to set fire to his own grocery store so that the defendant could collect $350,000 under his casualty insurance policy.

Before trial the defendant filed a motion in limine asking that the prosecution be prohibited from introducing evidence of the defendant's financial condition or prior wrongdoings. Specifically, the evidence was:

(1) Evidence from two banks that the defendant had borrowed more than $300,000 in the year before the fire, and that on the day of the fire the defendant was several months behind in his loan payments.

(2) Evidence from an accountant that in the year before the fire he had performed accounting services for the defendant, and that the defendant had instructed him to lower his calculation of the amount the defendant owed to the state for sales tax, and to understate the store's sales when calculating the amount of the federal corporate income tax.

At a hearing on the motion the following happens:

Judge: Counsel, I understand the evidence the prosecution wishes to introduce at trial. Why is that evidence inadmissible?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.20 This is a negligence case involving a private airplane, a Cessna Model 210N, manufactured by the defendant. Plaintiff claims that a structural failure caused the airplane to break up in flight and crash, killing the plaintiff's husband and two others.

Defendant claims that the pilot, plaintiff’s husband, flew into clouds, became spatially disoriented, and lost control of the airplane. He then overcompensated, and the extra force on the airplane exceeded its design limitations, causing the airplane to break up in flight and crash.

Plaintiff seeks to introduce at trial evidence of other similar accidents involving the Cessna Model 210N. Some of these involved structural failures, others involved unknown causes. Defendant objects. At the hearing on the motion, after both plaintiff's expert and defendant's employees testified, the following happens:

Judge: Counsel, what are the evidentiary considerations involved in ruling on the admissibility of this kind of evidence in this kind of case?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.21 This is a wrongful death and survival case. Plaintiff claims that her husband died in [-2] because his treating physician for many years, Dr. Seltzer, had prescribed steroids for Weil, but had led Weil to believe the medication he was taking for allergies was antihistamines.

Weil died unexpectedly at the age of 54. An autopsy showed that Weil had severe osteoporosis and that his bones had begun to crumble, leaving fragments of bone marrow in a fatal blood clot. Weil's condition may have been caused by his long-term use of steroids.

Discovery has disclosed the following:

(1) Dr. Seltzer had prescribed steroids to Weil from [-20] to [-2], when Weil died.

(2) Drug company records showed that Dr. Seltzer had purchased over 1.7 million tablets containing steroids between [-6] and [-2].

(3) Five former patients of Dr. Seltzer, who saw him for allergy conditions, had been prescribed medication that they were told were antihistamines and decongestants, but in fact were steroids.

Before trial defendant moved in limine to preclude the introduction of this evidence. At the hearing on the motion, the following happens:

Judge: This is the defendant’s motion to preclude certain evidence. Defense, what’s the evidentiary basis for excluding this evidence?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.22 Defendant is charged with the armed robbery of a bank. The issue is identity.

The bank was robbed by a man with a handgun, wearing a nylon stocking to mask his face, who jumped over the teller’s counter during the robbery and stuffed the bank’s money into a bag.

Six years ago the defendant was convicted of another bank robbery and sentenced to two years in prison. In that case the defendant was armed with a handgun, wore a nylon stocking over his face, jumped over the teller's counter during the robbery, and stuffed the money into a bag.

Before trial the prosecution serves notice that it intends to offer evidence of the defendant's prior armed bank robbery during its case-in-chief.

Defendant objects. At the hearing on the objection, the following happens:

Judge: Prosecution, exactly what evidence are you offering, and why is it admissible?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.23 Defendant is charged with kidnapping and aggravated sexual assault. The defense is mistaken identity.

The victim had been shopping at a mall and returning to her van in the mall parking lot. She had just gotten to the van when a man grabbed her, implied that he had a gun and threatened to shoot her, and forced her into the van. He then told her to kneel down and not look at him, and covered her head with a sweatshirt. He drove the van for a few minutes, asked if she had a boyfriend, demanded her driver's license, then stopped and raped the victim in the van. He then returned to the parking lot, and left the car keys on the ground near the front of the van.

Thirteen years ago the defendant was convicted of another kidnapping and sexual assault. He was sentenced to, and served, ten years imprisonment. In that case the defendant abducted the victim at knifepoint during the evening from a mall parking lot as she was getting into her car. The defendant drove the car to a wooded area, telling her not to look at him, demanded her driver’s license, then raped her outside the car. The defendant then drove back to the parking lot, and left the car keys outside the car.

Before trial the prosecution serves notice of its intent to introduce facts of the defendant's prior kidnapping and sexual assault as evidence in its case-in-chief. The defendant objects. At the hearing on the motion the following happens:

Judge: This is the defendant’s motion to preclude evidence of a prior crime. Why should this evidence be excluded?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.24 Roe is charged with conspiracy to distribute cocaine. His co-defendant, Weger, pleaded guilty before trial and is now a witness in Roe's trial. The defense is that there was no conspiracy, and that Roe was merely Weger’s customer.

In the prosecution’s case-in-chief, Weger testifies that he and Roe worked together to sell cocaine, and that some of the drug paraphernalia belonged to Roe. A police officer testified that a search of Weger’s home and trash found cocaine and drug paraphernalia, but a search of Roe's residence and trash found nothing; in fact, Roe never put out any trash for pickup by municipal trash workers.

Seven years ago Roe was convicted of possession of cocaine with intent to distribute. The prosecution intends to use the conviction during the trial, both in the prosecution's case-in-chief, and during the defendant's cross-examination if the defendant elects to testify. The defendant objects. During a hearing out of the jury's presence, the following happens:

Judge: The prosecution wants to introduce evidence of the defendant’s prior conviction for possession of cocaine. Before I hear from the defense, I want to know for what purpose the prosecution is offering this evidence.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.25 The defendant, Heath, is charged with possession of cocaine with intent to distribute and with carrying a gun in relation to drug trafficking. His defense is that he is a drug user and lacked any intent to distribute drugs.

Before trial begins, the defense files a motion in limine seeking to bar the admission of certain evidence. At the hearing on the motion the following happens:

Judge: Defense, what is your motion?

Defense: Your honor, I have received a 404(b) notice from the prosecution that it intends to offer evidence of an event that happened seven months before the arrest in this case. The evidence is that two police officers approached Mr. Heath and another man, Cannon, who were standing outside a house with three other people. The police officers searched Cannon and found a 35 gram rock of cocaine, empty blue plastic baggies, and two small baggies with rock cocaine in Cannon's mouth. They then searched Mr. Heath. They found on him a semi-automatic handgun and $209 in cash, and discovered that Mr. Heath was wearing a bulletproof vest. They arrested Mr. Heath for possession of the handgun and Cannon for possession of the cocaine. We move to bar this evidence.

Judge: Prosecution, why is this evidence admissible?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.26 Defendant is charged with several counts of aggravated sexual abuse of three children, his nieces, all under twelve years old.

The case is now on trial. In the defense case-in-chief the defendant's son Justin, 23 years old, testified. On direct examination Justin testified that he knew his father “couldn’t do anything bad to anyone.” During cross-examination the following happens:

Q. (By prosecutor) Justin, you say your father couldn’t do anything bad to anyone?

A. That’s right.

Q. Are you aware of the fact that your own sister has said that your father sexually abused her from the time she was a small child?

Defendant: Objection, your honor, and move for a mistrial.

Judge: Counsel, approach. [Lawyers approach the bench.] What’s the basis for your objection?

Later in the defense case the defendant testified and denied the charges. During cross examination the following happens:

Q. (By prosecutor) Mr. McHorse, were you good to your nieces?

A. I=m good to everyone.

Q. Isn’t it a fact that you sexually abused your half-sister when she was young?

Defendant: Objection.

Judge: Approach the bench. [Lawyers approach.] Basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.27 This is a criminal assault case. The defense is self-defense.

The case is now on trial. The defendant, Lewis, testifies in the defense’s case-in-chief. During the direct examination, the following happens:

Q. (By defense) Mr. Lewis, exactly what happened in the pool hall that night?

A. I was minding my own business, shooting pool with a friend and nursing a beer. Suddenly that guy, Jones, screamed and came at me with a pool cue. That's the only reason I stabbed him. I’m not the kind of guy who stabs people for no reason.

Later in the defense case Smith testifies. During the direct examination, the following happens:

Q. Mr. Smith, do you know Jones?

A. I do.

Q. How long have you known him?

A. Several years.

Q. How have you come to know him?

A. He lives in my neighborhood. I see him all the time.

Q. Do you have a personal opinion whether Jones is a violent person?

A. I sure do.

Q. What’s your opinion?

A. He's a real violent person, a real hothead.

Q. What do you base your opinion on?

A. Several things he’s done in the past. For instance...

Prosecution: Objection, your honor.

Judge: Basis?

In the prosecution’s rebuttal case, Wilson testifies. During the direct examination, the following happens:

Q. (By prosecutor) Mr. Wilson, are you familiar with Mr. Lewis’ reputation in the community for violence?

Defense: I object.

Judge: Basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.28 Defendant, Olden, a black man, is charged with kidnapping and rape. His accuser, a white woman, claims that Olden abducted her from a bar, drove her to a secluded area, and raped her. The defendant claims that the sex was consensual, and further claims that the only reason the victim had brought the charges is that Russell, the victim's live-in boyfriend, also a black man, had seen her leaving Olden's car after Olden drove her back to her home. The victim and Russell were involved in an extra-marital affair, although both were married to others.

The case is now on trial. During the cross examination of the victim, the following happens:

Q. (By defendant) Mrs. Matthews, you’re married, right?

A. Yes.

Q. You told us on direct examination that at the time of these claimed attacks, you were living with your mother, right?

A. Yes.

Q. But at the time of these claimed attacks, you were actually living with Russell, right?

Prosecutor: Objection, your honor.

Q. In fact, you brought these charges because you knew Russell had seen you getting out of Mr. Olden’s car that night, isn’t that right?

Prosecutor: Objection. May we be heard?

Judge: Yes. Approach the bench. [Lawyers approach.] It's the prosecution’s objection. What's the basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.29 The defendant is charged with sexual assault and sodomy. The defense is consent.

Before trial the defendant serves notice of his intent to introduce in evidence the following items:

(1) Two witnesses will testify that 24 hours after the claimed sexual assault, they saw the victim having sexual intercourse with her boyfriend;

(2) A medical expert will testify that it is highly unusual for a sexual victim to have sexual relations with anyone 24 hours after being sexually assaulted.

The prosecution objects to this evidence and requests a hearing. At the hearing the following happens:

Judge: Prosecution, why isn’t this offered evidence relevant under the facts of the case?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.30 This is a products liability case brought against a manufacturer of contraceptive products. Plaintiff claims that she was made infertile and suffers from pelvic inflammatory disease from using the defendant's inter-uterine device for a period of eleven months in [-4].

Defendant seeks to introduce at trial certain evidence it obtained through discovery. Specifically the defense seeks to introduce the following:

(1) Plaintiff has had eight sexual partners in nine years preceding her marriage to her husband in [-1].

(2) Plaintiff had an abortion in [-10].

(3) Plaintiff has been treated twice for sexually transmitted diseases before she used the defendant's IUD.

(4) Plaintiff's husband has had sexually transmitted diseases before his marriage to plaintiff.

Plaintiff moves in limine to bar the introduction of this evidence. At a hearing on the motion, the following happens:

Judge: I’m ready to hear the arguments of counsel. It’s your motion, plaintiff, so you go first.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.31 Plaintiff brings a civil rights action claiming that she was sexually harassed on the job.

Plaintiff is the only female police officer in a village police department that has nine officers. She claims that the other officers sexually harassed her and created a hostile work environment by putting pornographic calendars and magazines in the police station. She complained to her supervisors, but other officers continued putting pornographic materials in the station. She claims that she was embarrassed and humiliated by these actions.

The defense intends to introduce evidence at trial that during the time she was a member of the police department plaintiff attended 2 parties where pornographic videos were shown, and attended 2 other parties where sexual acts were performed. Plaintiff objects. At a hearing on the objection the following happens:

Judge: This is a hearing to determine the admissibility of certain other acts evidence. Plaintiff, what's the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.32 The defendant is charged with sexually assaulting a thirteen year old in [-2].

Before trial the prosecution notifies the defense that it intends to introduce evidence that the defendant had sexually assaulted his two daughters at various times in [-15] and [-14], when they were five and thirteen years old. In addition, the state seeks to introduce evidence that the defendant sexually assaulted his former wife when she was thirteen years old, and married her when she was fourteen.

In turn, the defendant notifies the state that he intends to introduce evidence of the victim’s sexual intercourse with her boyfriend during the three months before the alleged assault.

At a hearing on both the prosecution’s and defense’s motions to preclude the other side's evidence, the following happens:

Judge: I have two motions before me. I=d like to hear arguments on why the offered uncharged misconduct evidence is admissible or inadmissible. In particular, I=d like to hear arguments on the particular issues on which the evidence is offered, on the probative strength of that evidence, and on any countervailing concerns that may exist.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.33 Defendant is charged with the murder of his niece, a five year old, in [-1]. The coroner’s report indicated that death was caused by blunt trauma to the head and that the victim had signs of anal and vaginal trauma. A witness identified the defendant's vehicle as driving away from the location where the victim’s body was later found on the same day that the victim had disappeared from her home a few miles away.

The state filed a notice of intent to introduce at trial testimony from three women, all of whom would say that they had at one time taken a ride with the defendant and that the defendant subsequently raped or attempted to rape them. In [-7], Sue, 43, asked for a ride from Mills, but when his truck broke down he hit her over the head with a hammer and raped her several times. In [-3], Lisa, 15, accepted a ride from the defendant. The defendant drove past the place she needed to go, drove to an isolated area, and raped her. Finally, in [-4], Stephanie, 44, was walking home when the defendant offered her a ride. Instead of taking her home, the defendant drove to a secluded spot where he beat and raped her.

Defendant moves to preclude the state’s evidence. At the hearing on the motion, the following happens:

Judge: Defense, what’s your argument?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.34 This is a sexual assault case. The defendant is charged with sexually assaulting his nine-year-old niece. The defendant has filed a notice of intent to assert the affirmative defense of alibi.

Before trial the prosecution serves notice of its intent to introduce evidence in its case-in-chief that the defendant was convicted of sexually assaulting his five-year-old stepdaughter. The defendant objects and moves for a hearing.

At the hearing, the following happens:

Judge: How long ago was this prior conviction?

Prosecutor: Seven years ago.

Judge: What were the facts underlying the prior?

Prosecutor: In that case the defendant was convicted of having oral-genital contact with his five-year-old stepdaughter in another state. We’ve charged him here with having oral-genital contact with his nine-year-old niece.

Judge: Defense, what’s the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.35 In [-2], defendant is charged with sexual assault and murder. The victim, the defendant's niece, was found floating in a rural pond. An autopsy placed the time of death in the late afternoon to early evening. The autopsy also revealed vaginal trauma. Cause of death was blunt force trauma to the head. Eyewitnesses placed the defendant at the pond at the time of the victim's death.

The prosecution serves notice that it intends to introduce evidence of three other incidents involving the defendant. These three incidents all occurred in the same county, but were in different locations.

(1) In [-4], defendant picked up a 15-year-old victim who needed a ride to visit her mother in the hospital. Defendant took her during the evening to a secluded place, raped her, then drove her to the hospital where her mother was. The police were notified, and a warrant was issued for the defendant's arrest, but the defendant was not arrested until [-3].

(2) In [-6], defendant gave a ride to a 43-year-old victim to go to a store in the evening. (The defendant was the brother of the victim’s boyfriend.) The defendant's truck broke down on a rural road, defendant hit the victim in the head three times with a hammer, then raped her in the bushes near the truck. Later the victim managed to flee the defendant's truck. The police were called, and a warrant was issued for the defendant's arrest, but the defendant was not arrested until [-3].

(3) In [-3], the defendant gave a ride to a 44-year-old victim from a bar in the early morning hours. The defendant drove her to an isolated area, punched her in the face, and raped her. He then drove the victim to her home. This incident was not reported to the police at the time.

The defense objects to this evidence and requests a hearing. At the hearing the following happens:

Judge: Defense, this is your motion to preclude evidence of three other sexual assaults involving the defendant. What’s the evidentiary basis for your motion?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.36 This is a breach of contract and tortious interference with contract case. Brod & Company, a management company, had a contract with U.S. Home, a condominium developer, to manage a condominium hotel and enter into rental agreements with the unit owners. After three months, U.S. Home terminated the management contract, and Brod & Company brought this suit.

Plaintiff claims that the defendant intentionally terminated the contract without reason to maximize its profits. Defendant claims that it was justified in terminating the contract because Brod & Company had not managed the hotel properly in accordance with the contractual requirements.

During discovery plaintiff learned of two persons, Odom and Sierra, who had previously worked for the defendant. Odom says that while he was an employee of the defendant, it had a policy of being tough and never bending or compromising in its dealings with subcontractors. Sierra says that he worked as a subcontractor for the defendant over eighteen months, and that during that time the defendant breached five different contracts with him.

Before trial the defendant moves to bar Odom and Sierra from testifying at trial. At the hearing on the motion, the following happens:

Judge: This is the defendant’s motion to exclude evidence, in particular the anticipated testimony of two witnesses. Counsel, make your argument.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.37 This is a wrongful death case. Mrs. Vaughn, the deceased, was taken to her local hospital by her daughter, the plaintiff, to take a stress test. The test involved an injection of radioactive medicine and taking photographic images of the heart. After the test was completed, Vaughn left the hospital and went home. During the night she died of a cardiac arrest. Plaintiff claims that the treating doctor, Dr. Purohit, was negligent in diagnosing and treating Vaughn during the test.

All the medical experts agree that a patient complaining of chest and arm pain during or after such a stress test should not be discharged without further evaluation. Thus, the key issue is whether Vaughn complained of chest and arm pain during or after the test.

Plaintiff says that while Vaughn was undergoing the stress test, Vaughn complained to her of chest and arm pain and difficulty breathing, and was not connected to any monitors. Plaintiff says that when she asked Dr. Purohit, who was standing nearby, whether her mother's condition was normal, he reassured her it was and that she would be fine once she went home and rested.

Dr. Purohit in his deposition testified that he had no independent recollection of Vaughn's condition during the test. He has administered this stress test once or twice a day over ten years. At least a dozen of those patients had complained of chest pain after completing the test, and that each time this occurred he re-evaluated the patient by obtaining another EKG and performing a physical examination. A cardiac unit technician, Hurt, who cared for Vaughn during the test, testified in similar fashion.

Before trial plaintiff files a motion in limine to exclude this testimony of Dr. Purohit and Hurt at the trial. At the hearing, the following happens:

Judge: Counsel, I’m ready to hear your arguments on the motion.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.38 This is a personal injury case. Plaintiff was rear-ended at an intersection while attempting to make a left turn. Defendant claims the plaintiff stopped suddenly at the intersection without signaling.

The case is now on trial. In the plaintiff’s case-in-chief the plaintiff testifies. During the direct examination, the following happens:

Q. (By plaintiff) Ms. Johnson, what is your procedure when you enter an intersection to make a turn?

A. I always signal a turn before entering the intersection.

Defense: I object.

Judge: Basis?

Later in the plaintiff’s case, the plaintiff calls Smith, a friend of the plaintiff. During the direct examination, the following happens:

Q. (By plaintiff) Ms. Smith, how often do you commute with Ms. Johnson?

A. Usually twice a week. She always drives.

Q. Does she always signal when she turns?

Defense: Objection.

Q. What kind of driver is she?

Defense: Objection again, your honor.

Judge: Basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

5.39 The defendant is charged with being a felon in possession of a firearm. The earlier felony charged in the indictment against the defendant was assault causing serious bodily injury.

At a pretrial hearing, defense counsel tells the trial judge he will stipulate that the defendant has been convicted of a crime punishable by imprisonment exceeding one year at the time of the offense charged, and requests that the trial judge so instruct the jury.

Judge: What is the purpose of your motion?

Defense: I do not want the jury to know the nature of my client’s conviction. It was a violent crime. I ask that you bar the prosecutor from telling the jury the name of the prior conviction.

Prosecutor: I object to the defendant’s motion.

1. What is the best argument to support the defendant’s motion?

2. What is the best argument to oppose the motion?

3. What is the proper ruling?

5.40 The plaintiff, Brennan, was a commodities floor trader. He owned a disability policy issued by the Paul Revere Life Insurance Company. The policy provided benefits to its insured if he were to become unable to perform his job. Brennan was injured in an accident, which, he alleged, kept him from doing his job. He made a claim for benefits. Paul Revere would not pay and it terminated the policy. Brennan sues Paul Revere for breach of contract and unreasonable and vexatious delay in paying benefits.

In a pretrial motion, Paul Revere seeks to bar Brennan from offering evidence concerning a number of claims made by other persons on their Paul Revere disability policies. At the hearing, the following happens:

Judge: Plaintiff, what do you seek to prove with this evidence of other claims?

Plaintiff: I will prove that on twelve different occasions before this one over the past five years Paul Revere improperly denied disability claims, and I will prove Paul Revere had a company policy of not dealing with meritorious claims like these in a fair way, terminating the policies, and not paying the claims.

Judge: Defense, what is your objection to this proposed evidence?

1. What objections should the defendant make?

2. What are the best arguments to support the abjections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5.41 The defendant is charged with bank robbery. Before trial, the prosecution serves notice on the defense that it intends to offer evidence of two uncharged bank robberies. The defendant objects.

At a pretrial hearing, the following occurs:

Judge: Defense, what is your objection to this evidence?

Defense: It is improper propensity evidence.

Judge: Prosecution, what is your response to this objection?

Prosecutor: This evidence is offered under Rule 404(b), to prove the defendant committed the robbery charged in this case. There are six similarities in all three robberies. One, the robber wore sun glasses and a hat or hood to conceal his identity; two, the robber had the same physical characteristics – height of 5’9” to 6’, weight of 160 to 180 pounds, age of 20 to 30 years, and race – African-American; third, a demand note was given to the teller; fourth, the robber showed a semi-automatic handgun in his left hand; fifth, a plastic bag was given to the tellers to put the money in; and sixth, all three robberies were committed within two miles and six months of each other. In addition to those similarities, we will show that in the last robbery before the charged robbery the robber was given a dye pack which exploded, and in the charged robbery he told the teller not to include any dye packs.

Judge: Defense, what is your response?

1. What are the best arguments in support of the objection?

2. What are the best arguments to oppose the objection?

3. What is the proper ruling?

5.42 The defendant is charged with bank robbery. Before trial, the prosecution serves notice on the defense that it intends to offer evidence of an uncharged bank robbery that occurred ten days before and 25 miles from the bank robbery charged in the indictment. The defendant objects.

At a pretrial hearing, the following occurs:

Judge: Defense, what is your objection to this evidence?

Defense: It is improper propensity evidence.

Judge: Prosecution, what is your response to this objection?

Prosecutor: This evidence is offered under FRE 404(b), to prove modus operandi and identification of the defendant. I am prepared to make a showing that the two robberies were committed by the same man, the defendant.

Judge: Give me a summary of the facts you intend to prove.

Prosecutor: We will prove that in both cases the robber put on an orange ski mask before entering the banks; he entered both banks carrying a Louis Vuitton brand duffle bag in one hand and a handgun in the other; once inside the banks he vaulted over the teller counter and demanded money; he emptied the teller drawers at each bank by himself, but only after placing the handgun down; and he escaped in a blue Chevrolet Cavalier.

Judge: Defense, what is your response?

1. What are the best arguments in support of the objection?

2. What are the best arguments to oppose the objection?

3. What is the proper ruling?

5.43 William Smith is charged with being a felon in possession of a firearm. Police officers found the gun in a blue bag on the floor of the living room in an apartment. Smith was inside the apartment, but told the officers he did not own or possess the gun. He claimed it was not his apartment and he had no control over it.

The prosecution has served notice that it intends to introduce the following evidence during its case-in-chief:

(1) A police informant, Moore, will testify she helped Smith package cocaine in the apartment for ten days before the day of arrest.

(2) Moore will testify she saw Smith sell cocaine four times in the apartment during the ten days before the arrest.

Before jury selection begins, the defense says: “Your Honor, we object to the proposed testimony of Moore and ask that you bar the prosecution from making any reference to it.”

Judge: I will hear your objection and the prosecution’s response.

1. What are the defense objections to the proposed testimony?

2. What are the best arguments to support the objection?

3. What are the best arguments for admissibility of the testimony?

4. What is the proper ruling?

5.44 Ralph Taken Alive is charged with assaulting a federal officer, Officer Yellow, during the course of an arrest. Yellow claims Taken Alive grabbed him by the throat and pushed his head against the patrol car as he was trying to get the defendant into the car. Taken Alive claims the officer assaulted him for no reason, and that he was trying to defend himself.

Before trial, the prosecution gives notice that it intends to offer evidence in its case-in-chief of four prior instances where Taken Alive assaulted police officers who were trying to arrest him.

The defendant notifies the prosecution that he intends to offer two witnesses who will testify Yellow had a reputation in the community for being overly aggressive, quarrelsome, and violent.

Before jury selection, the following occurs:

Judge: I understand both sides have objections to certain evidence being introduced. First, I will hear from the defense, then from the prosecution.

1. What objections should the defendant make? What are the best arguments to support the objections?

2. What objections should the prosecution make? What are the best arguments to support the objections?

3. What are the best arguments each party can make to oppose the other side’s objections?

4. What are the proper rulings?

5.45 Jenkins is charged with possession of crack cocaine with intent to distribute. Postal Service agents had become suspicious of packages being sent to Jenkins’ home. They tracked a package delivered to Jenkins. After obtaining consent to search the home, the agents found the unopened package on a chair in the living room. It was found to contain crack cocaine.

At trial, Jenkins testifies that she received the packages for a friend and was paid $50 each time a package was picked up. But she denied knowing anything about the contents of the packages and she said she never asked.

On cross-examination of Jenkins, the following happens:

Q. (prosecution) You spoke to Agent Gibson at your home on the day of your arrest?

A. Yes.

Q. Didn’t you tell agent Gibson you had smoked crack cocaine in the past and that you currently were a crack cocaine user?

Defense: I object. This is not admissible evidence.

Judge: Prosecution, what is the purpose of this evidence?

1. What objections should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What is the proper ruling?

5.46 Thomas is charged with being a felon in possession of a firearm.

On September 14, [-2], police officers responded to a domestic disturbance call. The responding officers saw Thomas leaving the courtyard of the apartment building. Thomas’ sister ran out of the building, pointed at Thomas, and told the officers Thomas was the one who pointed a gun at her.

Thomas was arrested. While he was being handcuffed and searched the officers found a loaded .357 revolver in the bushes next to the building. Thomas’ sister said she saw Thomas throw the gun into the bushes. Thomas denied any knowledge of the gun.

At trial, in its case-in-chief, the prosecution informed the defense it intended to offer the following evidence:

(1) A photograph of one of Thomas’ tattoos, showing two crossed revolvers;

(2) Testimony that in May [-9] Thomas pleaded guilty to a state charge of unlawful possession of a weapon after he was pulled over in a car in which the gun was in plain view, and in [-5] Thomas again pleaded guilty to an unlawful possession of a weapon charge when he was arrested while walking on the street with a gun in his waistband.

Defense: I object to the prosecution’s proposed evidence. It is entirely irrelevant and unfairly prejudicial.

Judge: Prosecution, why should I allow any of this evidence?

1. What objections should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5.47 Tobol is charged with bank robbery committed in Flushing, New York. Witnesses say the robber, dressed as a Hasidic Jew, presented a holdup note to the teller. It read: “I got a bomb and a gun, put all the money in the bag and if I see any cops everybody dies.”

The robber showed the teller the purported bomb. It turned out the bomb was a hoax, composed of road flares, wires, and an alarm clock.

When the defendant was arrested, he denied committing the bank robbery, but he did tell police that one month before the bank robbery he planted a bomb in a house in Israel for a fee of $25,000. He said that bomb was real, that it went off, but no one was injured.

The prosecution serves notice that it intends to offer the defendant’s statement about the bomb in Israel. At a pretrial hearing the following happens:

Defense: I object to this evidence. The Israel bomb event has nothing to do with this case.

Judge: Prosecution, what is the relevance of this evidence?

1. What objections should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5.48 Becker sues ARCO Chemical Company, alleging violations of the Age Discrimination in Employment Act.

Becker, age 51, was employed by ARCO and its predecessor for 24 years. He worked in its physical testing laboratory at the time of his discharge.

Victor and Ramey were Becker’s supervisors during the pertinent time period. At trial, Becker seeks to prove Victor and Ramey fabricated evidence about another employee’s (Smith) work performance in order to facilitate that employee’s termination.

On direct examination of Becker, the following occurred:

Q. (by plaintiff): What did Victor and Ramey ask you to do?

A. They asked me to lie about Smith’s job performance.

Q. Did you lie?

A. No. I told them I wouldn’t do it.

Q. Did Victor and Ramey say anything?

A. Yes. They both said they would fire Smith without my help.

Defense: I object to this line of questioning. It is entirely irrelevant.

Judge: Plaintiff, what is the relevance of this testimony?

1. What objections should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5.49 In a post-trial proceeding, a federal prisoner claims his lawyer never told him about a plea offer from the prosecutor.

His lawyer is called to testify at the hearing. He says he had represented about fifteen criminal defendants in the federal courts before the day of his alleged omission. On direct examination by the Government he says he did tell the defendant about the plea offer. Then the prosecutor asks:

Q. Do you have any specific memory of what you told this defendant?

A. No.

Q. Then how can you say you told him about the plea offer?

A. Because I always pass on a prosecutor’s plea offer to my clients.

Defense: I object and I move to strike that last answer. He is not testifying from first-hand knowledge.

Judge: Mr. Prosecutor, what is your response?

1. What is the defense lawyer’s best objection to this evidence?

2. What is the best argument in support of the defense objection?

3. What is the prosecutor’s best argument in support of the testimony?

4. What is the proper ruling?

5.50 The defendant, Santos, is charged with sexually abusing a 16-year-old girl he met at a party on May 9, [-1]. The girl consented to the sexual relations, but the pertinent statute provides that a crime is committed unless the defendant reasonably believes the victim was at least 18 years of age.

Santos’ defense is that the girl told him she was 18 years old before they engaged in sexual relations. On direct examination, the girl testifies she told Santos she was 16. On cross-examination, the following occurs:

Q. (Defense) When you were examined at the hospital on May 9, [-1], did you tell medical personnel that you had not engaged in sexual intercourse with anyone other than the defendant in the previous 72 hours?

A. Yes.

Q. Isn’t it true that two months later you told police officers you did engage in sexual intercourse with someone other than the defendant on May 9, [-1]?

Prosecution: I object. These questions violate the rape shield statute.

Judge: Defense, doesn’t the statute bar this evidence?

1. What objections should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What is the proper ruling?

5.51 The defendant, Redmond, a counselor at an institution for drug-and-alcohol-abusing minors, is on trial for statutory rape. He is accused of trading cocaine to a 15-year-old female inmate in return for sex. Redmond denies the charge. At trial, during cross-examination of the minor female, the following happens:

Q. (Defense lawyer) Isn’t it true that eleven months before the date in question in this case you told your mother you had been forcibly raped by a man?

Prosecutor: I object.

Judge: Counsels, approach the bench. Defense, where are you going with this?

Defense: Your Honor, if we are allowed to continue we will prove that eleven months before the alleged incident in this case the witness told her mother she had been forcibly raped and she offered torn clothes as evidence. We also will show she later admitted making up the story and ripping her own clothes in order to get her mother’s attention. I don’t think the prosecution will contest the fact that the forcible rape story was false.

Judge: Prosecution, what is your response?

Prosecutor: We do not deny she made a false rape claim eleven months before this incident, but that is not admissible evidence in this case.

Judge: Prosecution, exactly what is the basis for your objection to this evidence?

1. What objections should the prosecution make?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What is the proper ruling?

5.52 This is a sexual assault prosecution. The defendant, Cardinal, is accused of taking the 13-year-old complainant, his niece by marriage, to an abandoned shack, forcing her into a bed and raping her. The defendant denies the charge. The case is now on trial. On cross-examination of the alleged victim, the following happens:

Q. (Defense lawyer) Isn’t it true that before the day in question you reported other instances of sexual assault by family members and then withdrew each one of those charges?

Prosecution: I object. This is not admissible.

Judge: Prosecution, what, exactly, is your objection?

1. What objections should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What is the proper ruling?

5.53 Stephens is charged with criminal sexual assault of Melissa W. Stephens admits he had sexual intercourse with Melissa W. on the floor of her trailer, but claims she consented.

Before jury selection, Stephens makes the following offer of proof for his intended testimony: “The two of us were doing it doggy fashion when I said to her, ‘don’t you like it like this?...Tim Hall said you did.’ After I made those statements she became very angry. She ordered me to stop and leave. I did as she asked. I got dressed and left.”

Judge: Prosecution, do you have any objection to that testimony?

Prosecution: I certainly do. It violates the Rape Shield Statute.

Judge: Defense, what is your response to that?

1. What are the best arguments for admissibility of the testimony?

2. What are the best arguments to support the objection?

3. What is the proper ruling?

5.54 This is a sexual harassment and sexual assault civil action brought under Title VII of the Civil Rights Act of 1964. The plaintiff, Jones, alleges Smith, a co-employee at Acme Corp., several times touched her on the breasts and buttocks and periodically made lewd suggestions to her. Jones alleges she complained several times about Smith’s conduct to her foreman, but nothing was done. She sues both Smith and Acme.

During discovery, the defendants learn the following about Jones:

(1) She has an illegitimate child.

(2) At her last job, six months before she was hired by Acme, she was fired for having sex with a coworker in the company locker room during work hours.

(3) While working for Acme she posed nude for Playgirl magazine.

(4) Her foreman at Acme several times admonished her for wearing provocative clothing, including short skirts and low-cut blouses.

(5) She often used swear words during work hours.

(6) She once told a co-worker she liked to pick up men in bars for sex.

During discovery, the plaintiff learns the following about Smith:

(1) In his last job, three months before being hired by Acme, he was disciplined for making unwanted contact with the breasts and buttocks of female co-workers during work hours.

(2) After being hired by Acme, he was arrested and fined $100 for touching the breasts of a female in a neighborhood tavern after work hours.

(3) On several occasions after work hours at Acme, while at parties and in taverns, he would show lewd photographs to females.

At a pre-trial hearing, Jones objects to the information concerning her conduct and Smith objects to the information concerning his conduct.

Judge: I will ask each counsel to tell me the nature of your objections and why this evidence is not admissible. First, I will hear from the plaintiff.

1. What are the plaintiff’s best objections and arguments for barring the information about her?

2. What are the defendant’s best objections and arguments for barring the information about him?

3. How should each side respond to the other side’s objections?

4. What are the proper rulings?

5.55 A high school student, Johnson, sued a guidance counselor, Stevens, and the high school that employed him, claiming sexual abuse under the Civil Rights Act, 42 USC 1983.

Johnson claims Stevens tried on numerous occasions to hug and kiss her, and at one point fondled her breasts and vagina.

At trial, the plaintiff calls Radwanski, a teachers’ associate in the high school’s restaurant training program and a friend of Stevens. The defense objects to her proposed testimony about an incident that allegedly took place shortly before the incident being tried. At an in limine hearing on the matter, Radwanski testifies as follows: “I had just walked into the office carrying lunch when Mr. Stevens picked me up and threw me over his shoulder.”

Q. (Plaintiff’s counsel) What happened next?

A. His hand went up my skirt and touched me on my panties in the crotch area while he was raising me off the floor. Then he let me down and a few of us, including Mr. Stevens, had lunch together.

Q. Did his finger linger on your crotch for any period of time?

A. I would have to say no, but it could have been a moment or two. I don’t know if the touching was intentional.

Defense: I object to this witness’s testimony and ask that it be barred. It is completely irrelevant.

Judge: I will hear arguments.

1. What is the defendant’s best objection to the evidence?

2. What are the defendant’s best arguments to support the objections?

3. What are the plaintiff’s best arguments to oppose the objections?

4. What is the proper ruling?

5.56 Huddleston is charged with selling stolen videotapes in interstate commerce on April 17, [-1]. The issue is whether Huddleston knew the tapes were stolen when he sold them.

The case is now on trial. During the prosecution's case-in-chief a record store owner testifies as follows:

Q. (By prosecutor) Mr. Toney, do you know Guy Huddleston?

A. Yes, I do.

Q. How do you know him?

A. On February 15, [-1], he offered to sell me new 12 inch black and white televisions for $28 each. And he said he could get several thousand more of them. I bought 38 of the televisions.

Defense: Objection.

Prosecutor: Your honor, this evidence is being offered under Rule 404(b) to prove the defendant's knowledge.

Judge: Counsel, approach the bench and tell me why you think the jury should not hear this evidence.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?


5.57 The defendant, Donegan, is charged with aggravated criminal sexual assault. The charges are based on incidents alleged to have occurred during a three-year period involving defendant and his two stepchildren, ages nine and twelve. The indictment alleges the defendant touched the children’s vaginas and made them touch his penis during the three-year period. The alleged conduct occurred with each child separately. The defendant denies the touching took place.


The prosecution has served notice that it intends to offer in its case-in-chief evidence of defendant’s prior conviction for indecent liberties with a child and the facts underlying that conviction. The defendant objects. At a conference in the judge’s chambers, the following happens:


Judge: Prosecution, what’s the purpose of this evidence?

Prosecutor: The purpose is to show the defendant has a propensity to sexually assault young children.

Judge: What are the facts of that prior conviction?

Prosecutor: It happened about twelve years before the first assault in this case. He was driving a car with two children as passengers. They were seven and eleven years old. He was not related to them. He touched their vaginas and made them touch his penis. A jury found him guilty.

Judge: Was this a single incident?

Prosecutor: Yes. It was all at the same time.

Judge: Defense, what’s the basis for your objection?


1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?


5.58 The defendant, Amos Gault, was an inmate at the state prison on the day a fight broke out. A camera showed Gault walking out of inmate Sam Brown’s cell. When the fight ended, Brown was found on his cell floor, stabbed to death. Gault is charged with his murder. Gault claims he killed Brown in self-defense when Brown attacked him with a knife.


At a FRE 104(a) hearing before trial, the following happens:


Prosecutor: Your Honor, we move to bar any evidence that Sam Brown committed specific acts of violence against others at any time before the events involved in this case.

Judge: Defense, what evidence do you seek to offer?

Defense: I will prove Brown attacked an inmate with a knife a month before this incident, and I will prove that on the morning of the fight Brown threatened another inmate with a knife.

Judge: Prosecution, what is your objection to that evidence?


1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?


CHAPTER 6

Direct Examination of Witnesses:
Hearsay and Non-Hearsay

6.1 The defendant, Frank Rosario, is charged with sexual assault and murder of a college student. In the prosecution’s case-in-chief the victim’s roommate testifies as follows:

Q. (By prosecutor) What happened around 1:15 A.M.?

A. I was awakened by a telephone call from my roommate at approximately 1:15 A.M. She told me that she had had a good evening and that she was next door at Ralph’s Grille with someone named “Frank.”

Defendant: Objection, your honor.

Later in the prosecution’s case in chief, a police officer testified as follows:

Q. (By prosecutor) After talking to the victim’s roommate, what did you do?

A. I started looking for someone named “Frank.”

Defendant: Objection.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

6.2 Defendant is charged with drug trafficking. At a pretrial hearing on a motion to preclude evidence, the arresting officer is called as a witness, and the following happens:

Q. (By prosecutor) When you searched him, what did you find?

A. A beeper - you know, a pager.

Q. What did you do with the beeper?

A. I seized it and took it back to the station.

Q. What happened there?

A. The beeper started beeping.

Q. What did you do?

A. I called the number displayed on the beeper.

Q. What happened when you called the number?

A. I identified myself as the defendant. The person on the other end asked: “Did you get the stuff?” I said: “Yes.” He asked: “Where is Dog?” I said: “He's not around.” I then arranged a meeting with the person to get the stuff.

Q. What happened at the meeting?

A. He never showed up at the agreed place.

At the end of the hearing, the following happens:

Defendant: Your honor, the defense moves to preclude the admissibility of the police officer's testimony about his conversation with the unknown person on the telephone.

Judge: What the basis, counsel?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

6.3 Defendant is on trial for bank robbery. In the prosecution’s case-in-chief the investigating officer is called as a witness. The following then happens:

Q. (By prosecutor) Officer Brown, when did you begin your investigation of the defendant?

A. On March 1, [-2].

Q. What caused you to begin your investigation on that day?

A. I received information from a confidential informant that the defendant...

Defense: Objection, Your honor, may we approach the bench?

Judge: You may. [Lawyers approach the bench.] Prosecution, what’s he going to say?

Prosecution: He's going to say he received information from a confidential informant that Williams was a suspect in the robbery.

Judge: Defense, what’s the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

6.4 The defendant is charged with the aggravated assault of an elderly man. The case is now on trial.

In the prosecution’s case-in-chief, the arresting police officer testifies he received a radio call to go to the intersection of 16th and Homan Streets. When he arrived there, he saw the victim lying on the ground, holding his head, bleeding profusely. A crowd of people was around him. During the direct examination, the following happens:

Q. (By prosecutor) What did you do next?

A. I called out. I said: “Who did this to this man?”

Q. Did anyone respond?

A. Yes. Several people in the crowd pointed at the defendant.

Defense: I object.

Judge: On what grounds?

Q. What did you do then?

A. I handcuffed the defendant and took him to our patrol car.

Q. As you took him to the car, did something happen?

A. Yes, several people in the crowd tried to attack the defendant with their fists. But I got him into the car.

Defense: I object.

Judge: On what grounds?

The next prosecution witness is one of the eyewitnesses. During his direct examination, the following happens:

Q. Do you see in this courtroom the man who beat up the elderly gentleman at 16th and Homan Streets?

A. No, I don=t see him.

Q. On the day of the attack, did you go to the police station for a lineup?

A. Yes.

Q. At that time, did you point out that man sitting over there and say he was the one who beat the elderly gentleman?

Defense: I object.

Judge: What's your basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

6.5 This is a contract case. Plaintiff claims that she entered into an oral contract with the defendant for the sale and delivery of goods. Plaintiff claims that the defendant never delivered the goods as promised. Defendant denies that a final binding agreement was ever reached.

The case is now on trial. In the plaintiff’s case-in-chief the plaintiff testifies. During the direct examination, the following happens:

Q. (By plaintiff) Ms. Wilson, when did your conversation with Mr. Richards, the defendant, take place?

A. It happened on October 1 of last year, at Mr. Richard’s office. Just the two of us were there.

Q. During that conversation, did the two of you reach an agreement?

Defense: Objection.

Q. What did you say and he say during that conversation?

Defense: Objection again.

Judge: Counsel, approach. [Lawyers come to the bench.] What is she going to say?

Plaintiff: She's going to say she said: “I will buy 1,000 women’s suits from your company for $50,000, to be delivered within 30 days, with payment in full within 30 days of delivery,” and that Richards said: “We have a deal, then.”

Judge: Defense, what's the basis for your objections?

Later in the plaintiff’s case, Henderson, one of Wilson’s employees, is called as a witness. During the direct examination, the following happens:

Q. (By plaintiff) Mr. Henderson, did Ms. Wilson talk to you about her deal with the defendant?

A. Yes, she did.

Q. When was that?

A. When she got back to the office from her meeting with Richards.

Q. What did she tell you was the deal she and the defendant had reached?

Defense: Objection.

Judge: Basis?

In the defense case-in-chief the defendant testifies. During the direct examination, the following happens:

Q. (By defense) Mr. Richards, you heard Ms. Wilson testify about the conversation she had with you in your office?

A. Yes, I did.

Q. Do you agree with her version of that conversation?

Plaintiff: Objection.

Q. Tell us what you said and she said during that conversation.

Plaintiff: Objection again.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

6.6 This is a fraudulent misrepresentation case. Plaintiff claims that defendant, a real estate agent, induced him into buying vacation property by falsely representing that the property had water less than 20 feet below the surface. Defendant denies he ever made such a statement.

The case is now on trial. Plaintiff testifies during the plaintiff's case-in-chief. During the direct examination, the following happens:

Q. (By plaintiff) Mr. Sherman, when did you have this conversation with Mr. Patrick, the defendant?

A. It was when we were walking around the lot, the day before I signed the purchase contract.

Q. What did you and Mr. Patrick say at that time?

Defense: Objection, your honor.

Judge: Approach. [Lawyers approach.]

Plaintiff: He's going to say he said: AI have to know if there's water on the property before I can build my retirement home on it.@ And the defendant said: AThat's no problem. You=ll find water everywhere here less than 20 feet down.@

Judge: What's objectionable about that?

Later in the direct examination, the following happens:

Q. Did you tell anyone about this conversation?

A. Sure, I told my wife about it. I told her that Mr. Patrick said...

Defense: Objection.

Judge: Basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

6.7 This is a defamation case. Plaintiff claims the defendant, her former employer, defamed her when he described her to a prospective employer as unreliable and dishonest. Defendant denies saying those words.

The case is now on trial. In plaintiff's case-in-chief, the prospective employer is called as a witness. During the direct examination, the following happens:

Q. (By plaintiff) Mr. Adams, did you have a telephone conversation with the defendant on March 1 of last year?

A. Yes, I called him on that date.

Q. How did you know it was Mr. Adams you talked to?

A. I recognized his voice. I=ve known him for years.

Q. What was said during that conversation?

Defense: I object.

Judge: Approach. [Lawyers approach.] How is the witness going to answer that question?

Plaintiff: He's going to say that the defendant said that plaintiff had worked for him, but he fired her because she was unreliable and dishonest.

Judge: Defense, what's the basis for your objection?

Later in the direct examination, the following happens:

Q. After the telephone call with the defendant, what did you do?

A. Later that morning I dictated a memo detailing the conversation, my secretary typed it, and I put the memo in the plaintiff's job application file.

Q. I=m showing you Plaintiff's Exhibit No. 1. Is that the memo?

A. Yes.

Plaintiff: Your honor, we offer Plaintiff's Exhibit No. 1 in evidence.

Defense: I object.

Judge: Basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

6.8 Defendant is charged with possession of cocaine with intent to deliver.

Two police officers met with a street informant. The informant said that he had just left a particular house which had lots of marijuana and coke in it, that he had been helping bag the drugs up for several hours, and that there were three young children inside the home as well as a male and female adult.

Based on this information, the two police officers formulated a plan to investigate the home immediately, particularly since they were concerned that young children were present with large amounts of drugs. In accordance with their plan, the police went to the house, got on an open back porch, looked into the house, and observed what appeared to be bags of drugs inside. The officers then made a warrantless entry, seized the bags, and arrested the adult occupants.

Before trial the defense moves in limine to preclude the admission of the police officers’ conversation with the informant. At a hearing on the motion the following happens:

Judge: This is the defendant's motion to preclude the informant’s conversation with the police officers. Defense, what’s the evidentiary basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

6.9 This is a sexual assault case. Defendant is charged with having sexually assaulted his minor stepdaughter. At trial the victim is called as a witness during the prosecution’s case-in-chief. During cross-examination the following happens:

Q. (By defendant) Jill, you testified earlier that the molestation began when you were eleven, isn=t that true?

A. Yes.

Q: Didn’t you make a statement to Officer Thomas, that the molestation started when you were three?

A. Well, I know for sure that it started when I was eleven, but I remember instances from when I was very young.

Q. You also testified that defendant dragged you out of the house when you were twelve? Is that right?

A. Yes.

Q. But, didn’t you tell Officer Thomas that he had carried you out of the house?

A. Not exactly like that.

The following happens on redirect of the victim:

Q. (By prosecutor) In your statement to Officer Thomas, didn’t you also mention that the incidents of abuse had occurred as far back as you could remember, but from the time of eleven forward, the abuse was constant and severe?

Defense Counsel: Objection, your honor. May we be heard?

Judge: Please approach the bench. [Counsel approach.] What’s the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

6.10 The defendant, Canamore, is charged with knowingly entering the vehicle of another without authority to do so. She was arrested while driving the car, which was stolen.

The case is now on trial. In the defense case Canamore testifies. She says that she did not know the car was stolen and that she had borrowed it from Reed. During the direct examination the following happens:

Q. (By defense) Ms. Canamore, before you entered the car, did you talk to anyone?

A. Yes.

Q. Who did you talk to?

A. Randy Reed.

Q. Who is he?

A. He's a friend of my brother.

Q. What did you say and what did he say?

Prosecutor: Objection. That is hearsay.

Judge: It sounds like hearsay to me. Defense, any response?

Defense: Your honor, I would like to make an offer of proof out of the presence of the jury.

Judge: Very well. The jury is excused. Proceed with your offer of proof.

Q. (By defense) Ms. Canamore, what did you say and what did Randy Reed say?

A. I asked Randy if he could loan me the car, and he said yes, it was his brother's car, and I could borrow it.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

6.11 The defendant, Blurton, is charged with armed robbery of a Wal-Mart store. The defense is that Blurton did not actually intend to rob the store, because Blurton thought he was committing a “staged” robbery.

Following his arrest, Blurton told the police that Mayfield, an assistant manager at the store, was a former Navy Seal who worked for the CIA. Blurton said that the CIA had been trying to infiltrate a drug cartel, and that Mayfield had recruited him to be part of that infiltration. He said the Wal-Mart robbery was staged to convince the drug cartel that Blurton was a wanted and dangerous man, which would make it easier for him later to infiltrate the drug cartel. Blurton said he had to put on a good show during the robbery because the Wal-Mart had surveillance cameras.

The police, thinking that Mayfield might be involved in the robbery, tape-recorded several telephone conversations between Blurton and Mayfield, without Mayfield's knowledge. During those conversations, Mayfield repeatedly affirms Blurton’s statements that they were involved in a CIA operation and a staged robbery.

The case is now on trial. In the defense case the defense intends to introduce the tape recordings and transcripts of those recordings in evidence. The prosecution objects. Out of the jury’s presence, the following happens:

Prosecutor: I object, your honor.

Judge: Defense, why should these out-of-court statements be admissible now?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

6.12 Defendant is charged with conspiracy to possess heroin with intent to distribute. Defendant's former roommate was the other charged co-conspirator. Before trial the roommate pleaded guilty. At the trial of the defendant the roommate is called as a witness in the prosecution's case-in-chief. The following then happens:

Q. (By prosecutor) Mr. Jones, at the time of your arrest, were you and the defendant living together?

A. Yes.

Q. On the day you were arrested, the police found in your residence 30 grams of heroin. Did you see the defendant with that heroin in your residence on that day?

A. No.

Q. Mr. Jones, at your pre-trial hearing, were you asked this question and did you give this answer? Question: Just before you were arrested, what was the defendant doing? Answer: He was weighing and packaging the heroin.

Defendant: Objection, your honor.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

6.13 This is a retrial of the defendant for second-degree murder. At the first trial, a witness testified during the prosecution's case-in-chief. At the retrial, the witness is again called by the prosecution, when the following happens:

Q. (By prosecutor) Did you see the defendant in the passenger seat of the victim's car during the night of September 10?

A. No sir. I spent the evening at home, watching wrestling on TV.

Q. Didn’t you testify at the first trial, as well as during your police interrogation, that you in fact saw the victim and defendant driving together that night?

A. I did say that, but I was coached and threatened by the police into making that statement.

Prosecutor: Your honor, I offer in evidence the videotape of the police questioning, Exhibit No. 10, as well as the transcript of the witness's testimony at the first trial, Exhibit No. 18, as substantive evidence.

Defendant: Your honor, we object.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

6.14 This is a sexual assault prosecution. Defendant is charged with sexually assaulting his minor daughter. The alleged assault occurred in June, but the daughter did not report the incident to the police until August. Earlier, in April of the same year, defendant, who was divorced from his wife, had petitioned the local court for primary custody of his daughter. A hearing on the petition had been scheduled for August, about the same time the daughter reported the incident to the police.

At the trial of the sexual assault charge, the defendant’s daughter is called as a witness during the prosecution's case-in-chief. The following then happens on cross-examination:

Q. (By Defendant’s lawyer) Lisa, you would like to continue living with your mother, wouldn’t you?

A. Yes.

Q. Do you understand that your mother and father are fighting over where you should live?

A. Yes.

Q. What do you think will happen if they go to court?

A. Well, if my dad goes to jail, then I will have to live with my mother.

Q. Did you make up this story, so that your dad would go to jail, and you could stay with your mom?

A. No, that’s not true.

In rebuttal the prosecution calls a neighbor, who testifies as follows:

Q. (By Prosecutor) Ms. Franklin, do you baby-sit Lisa?

A. Yes, sometimes.

Q. Did you baby-sit Lisa during July of last year?

A. Yes.

Q. What did Lisa tell you in July?

Defendant: Objection, your honor. May we be heard?

Judge: Approach. [Lawyers approach the bench.] How's the witness going to answer that question?

Prosecutor: She’s going to say that in July of last year Lisa told her that her father had sexually assaulted her.

Judge: Defense, what’s your objection to that testimony?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

6.15 This is an automobile negligence case involving an intersection collision. Four months before the start of the trial, a witness told an investigator for defendant's insurance company that defendant ran a red light. A statement written by the investigator was signed by the witness.

At trial the witness is called during the plaintiff’s case-in-chief. The witness testifies that the light was red when the defendant's black Chevrolet entered the intersection. The following happens on cross-examination:

Q. (By defendant) Isn’t it true that two weeks ago you had dinner with plaintiff’s attorney?

A. Yes.

Q. Isn’t it true that plaintiff’s attorney paid for both you and your girlfriend’s dinner?

A. Yes.

Q. So now you’re telling us that the defendant ran the red light, is that right?

A. Yes.

On redirect examination, the following happens:

Q. Four months ago, an investigator asked you about the collision?

A. Right.

Q. Had you discussed the accident with anyone before then?

A. No.

Q. How long have you known plaintiff’s lawyer?

A. About one month. My wife’s boss is his wife.

Q. Did you sign the statement saying what you saw?

A. Yes.

Q. At that time, did you say “the light was red for the black Chevrolet when it entered the intersection”?

Defendant: Objection.

Q. I’m showing you what's been marked as Exhibit No. 7. Is that the statement you signed?

A. Yes.

Plaintiff: We offer Exhibit No. 7.

Defendant: Same objection, your honor.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

6.16 The defendant is charged with assault with intent to commit murder.

On the day of the assault, April 12, the defendant was an inmate of the federal prison in Lompoc, California. He is accused of attacking and brutally beating a guard, Foster, with a metal pipe. As a result of the beating, Foster’s skull was fractured, and he remained hospitalized for a month. His memory was severely impaired.

Foster was interviewed by an FBI agent on April 19. At that time he was unable to remember his attacker's name. But Foster was much improved by May 5. On that date he named his attacker - the defendant - and described the attack. He identified the defendant from an array of photographs.

The case is now on trial. On direct examination, Foster describes feeling the blows to his head and seeing blood on the floor. He clearly remembers identifying the photo of the defendant as his assailant in the May 5 interview with the FBI agent.

On cross-examination, the following happens:

Q. (By defense) Did you receive visitors at the hospital other than the FBI agent?

A. Yes, but I cannot remember who they were.

Q. Did any of your visitors suggest my client was your attacker?

A. I don=t remember.

Q. Do you remember seeing who struck you at the time of the attack?

A. No, I can’t remember that.

Q. Did you see the face of the person who attacked you?

A. I don’t remember.

Defense: Your honor, I move to strike the witness’s direct testimony concerning the identification of my client’s photo on May 5.

Judge: What’s the basis for your motion?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

6.17 Defendant has been charged with conspiracy to distribute and possession with intent to distribute cocaine.

After his arrest, the defendant was questioned about his trip from New Jersey to Alabama. Defendant stated that he met a certain “Tony” in a Newark bar, and that “Tony” asked him to travel with him to Alabama and to drive a car back to Newark. Defendant denied being accompanied by anyone else on this trip and denied any knowledge that the car contained cocaine.

In the prosecutor’s case-in-chief the arresting officer is called as a witness, and the following happens:

Q. (By prosecutor) Officer Jones, where you present at the questioning of the defendant?

A. Yes, I did the questioning.

Q. Did you ask him about the contents of the car in which he was traveling?

Defendant: Objection, your honor.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

6.18 The defendant is charged with money laundering. Through pretrial discovery the prosecution disclosed that among the exhibits the prosecution intended to introduce in evidence at trial were several “To Send Money” forms from a Western Union office, allegedly written and sent by the defendant. Defendant moved to preclude the admission in evidence of the forms during the trial.

At the hearing on the motion, evidence was presented that when a customer at a Western Union office wishes to wire money to another person, the clerk has the customer fill out a “To Send Money” form. The form contains, among other things, the name of the customer/sender, the name of the recipient, and the amount sent. Evidence was also presented that the names of the customer/sender and recipient were pseudonyms (that is, not the actual names of either the customer/sender or the recipient). Finally, evidence was presented that the Western Union clerk identified the defendant as the customer/sender of the forms.

Judge: Defense, what is the evidentiary basis for your motion that the Western Union forms should be kept out?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

6.19 Defendant is charged with drug trafficking. The prosecution is seeking to have audiotaped conversations between the defendant and a government informant admitted into evidence. These tapes record the defendant delivering narcotics to the informant for money.

Prior to trial the government informant died. The defendant filed a motion in limine to preclude the audiotapes during the trial. At the hearing on the motion, the following happens:

Judge: Defense, it’s your motion to preclude. On what basis should this evidence be precluded?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

6.20 Defendant is charged with child-luring. An element of the offense is that the defendant attempted to lure a minor into a vehicle or building for the purpose of committing a criminal offense. The basis of the charge is that the defendant, while driving a car, tried to get an 8-year-old girl riding a bicycle to get into his car.

At a pretrial hearing, a police officer testified about another incident involving the defendant that had happened 16 months earlier. The police officer questioned the defendant about an incident in which the defendant had approached a young girl in a store. The defendant told the officer that he had held two plums near his groin and told the girl that “girls should eat fruit to get big like him.” The defendant also said that “I was never interested in older women, just young girls,” and that “I have this thing with young girls that I can=t help.” The following then happens:

Judge: Defense, it’s your motion to preclude. What’s the basis for your objecting to the admissibility of the police officer’s testimony at trial?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

6.21 This is an assault with a deadly weapon case. The investigating officer testifies at the preliminary hearing that after his arrest the defendant signed a short written statement that said: “I know I did it. I know I got to go down. I hit her in the head with an ax. I didn’t mean to hit her in the head with an ax.”

Defendant moves before trial to bar the admission of this testimony. At a hearing on the motion, the following happens:

Judge: Prosecution, what do you intend to introduce at trial?

Prosecution: We’re going to show the defendant said, “I know I did it. I know I got to go down. I hit her in the head with an ax.”

Judge: What about the last portion of his statement?

Prosecution: No, we=re not going to offer that.

Judge: Defense, it’s your motion to exclude. What’s your argument?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

6.22 This is an aggravated assault case. The victim and defendant were involved in a fight in a tavern. The victim claims the defendant attacked him during an argument over who was going to get the pool table next. Defendant raises self-defense, claiming the victim attacked him first.

At the preliminary hearing a police officer, Byrne, testified he received a radio message reporting a disturbance at the tavern. When he arrived, Byrne walked into the tavern, saw the victim with blood flowing from his face, and asked: “What’s going on here?” The defendant looked in Byrne’s direction and immediately ran out the back door of the tavern.

Byrne gave chase and caught up to the defendant as he was trying to unlock a car a short distance away. Byrne said: “You beat that guy up, didn’t you?” The defendant said nothing. Byrne then told the defendant he was under arrest, handcuffed him, and led him back to the tavern. On the way, Byrne said: “If you’ve got some reason why you beat that guy up, better tell me now.” The defendant said nothing.

Before trial defendant moves in limine to preclude Officer Byrne’s testimony. At a hearing on the motion, the following happens:

Judge: I have before me a motion to preclude testimony from the arresting officer. Counsel, exactly what parts of Officer Byrne's anticipated testimony are you objecting to, and for what reasons?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

6.23 Plaintiff is suing his insurer, seeking damages under a fidelity insurance policy. The policy provides for coverage for theft or dishonest acts by employees until the time when the insured discovers the theft or dishonest act of the employee. The policy was issued in March [-4]. In July [-4] the plaintiff made a claim on the policy, claiming that it had just discovered that an employee, James Pagnotta, had committed dishonest acts against the company. The defendant denied the claim on the ground that plaintiff had knowledge of the employee’s dishonesty prior to the effective date of the policy.

During discovery, defendant obtained an internal memorandum written by a private investigation firm hired by the plaintiff. That memorandum described a meeting in March [-4] between representatives of the firm and the plaintiff's secretary-treasurer, Sidney Cooper. That meeting was held ten days before the insurance policy was issued. During that meeting Sidney Cooper was told that the investigation had uncovered information that implicated plaintiff's employee, James Pagnotta, in the theft of cash and merchandise from plaintiff's warehouse.

At the pretrial hearing on plaintiff’s motion to preclude the admission in evidence of the private investigation firm's internal memorandum, the following occurs:

Judge: Plaintiff, what's the basis for your objection to the admissibility of this record?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

6.24 Four defendants—Bias, Shawn, Young, and Miller—are charged with conspiracy to commit armed robbery. Before trial, Bias moves to suppress the testimony of Young, a co-defendant who has agreed to testify as a prosecution witness, that he had a conversation with Bias shortly before the robbery and that Bias said he was “in.” At the hearing on the motion the following happens:

Judge: This is the defendant's motion to suppress the testimony of co-defendant Young regarding a conversation he had with co-defendant Bias. Prosecution, what is the foundation evidence you intend to present at trial that bears on this admissibility issue?

Prosecutor: Your honor, we have four pieces of evidence relevant to this issue. First, a bank employee will testify that she knew Bias, and that Bias had conversations with her regarding when armored truck deliveries were made to the bank. Second, we have eyewitnesses that will put Bias outside the bank at the time of the robbery. Third, we have the police officer who arrested Bias shortly after the robbery, who will testify that he recovered $30,000 in cash from the getaway car, from the side of the car where Bias was sitting, right after the car was pulled over. Finally, we have Young's testimony that he talked with Bias shortly before the robbery, and that Bias said he was “in.”

Judge: Assuming that the prosecution actually presents that evidence at trial, what's your position on this , defense?

Defendant: We object to Young’s anticipated testimony, your honor.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

6.25 This is a personal injury case brought against a trucking company. Plaintiff claims the defendant’s truck failed to yield the right of way at an intersection, causing a collision with plaintiff's car. The company denies the driver was negligent.

The case is now on trial. In the plaintiff's case-in-chief, plaintiff calls as the first witness the truck driver. During the plaintiff's adverse examination, the following happens:

Q. Mr. Slater, you’re the driver of the truck that was involved with the collision with Mr. Sullivan’s car, right?

A. That's right.

Q. Right after the crash, didn’t you tell the police officer at the scene: “I fell asleep. I told the boss not to make me work two shifts in a row.”?

Defense: Objection, your honor.

Judge: Basis?

Later in the plaintiff’s case-in-chief, the police officer is called as a witness. During the direct examination, the following happens:

Q. (By plaintiff) Officer O’Connor, when you arrived at the scene, did you talk to the truck driver?

A. Yes.

Q. What did the truck driver tell you?

Defense: Objection.

Judge: Basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

6.26 This is a slip and fall case. Plaintiff was injured when she slipped and fell in the defendant’s fast food restaurant. Plaintiff claims the floor was wet and slippery when she fell. Defendant denies liability.

The case is now on trial. Plaintiff calls as her first witness in her case-in-chief another customer who was in the restaurant at the time. That customer was deposed before trial, and in her deposition testified that she had seen the plaintiff slip and fall, and that shortly afterwards, a cook standing behind the grill said: “We should have mopped up that spill an hour ago.”

Before the customer takes the stand, the following happens:

Defendant: Your honor, before the jury returns from the break, we have an objection to what we anticipate plaintiff's first witness, Ms. Collins, will say based on her previous deposition testimony.

Judge: Very well. What's Ms. Collins going to say you find objectionable, and what’s the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

6.27 The defendant, Butler, is charged with conspiring with Jones to commit an armed bank robbery. Jones was killed by a bank guard during the robbery. The defendant was arrested as he sat in the driver's seat of a car parked just outside the bank, its motor running.

The case is now on trial. The prosecution calls an undercover informant, Maxwell, in its case-in-chief. During the direct examination, the following happens:

Q. (By prosecutor) On the day before the robbery, did you speak with Jones?

A. Yeah. He came to my house in the afternoon.

Q. What did he say to you?

A. He said he and Butler were going to do the bank job the next day, and he asked me to loan him my Smith & Wesson .38.

Defense: I object to that answer and move that it be stricken.

Judge: On what basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

6.28 This is a personal injury lawsuit filed by Lucas Smith. Frank Evans was standing at the corner of Elm and Main on May 1 [-3] when a black Cadillac went through the intersection and struck Smith, who was crossing the street. When Officer O'Meara arrived at the scene ten minutes later Evans told him he saw the black Cadillac go through the red light at a high rate of speed just before striking Smith. O'Meara included that statement in his report, along with his observations of tire skid marks leading to the point of impact. Evans made the same statement, in writing, to Smith's investigator two weeks before the trial.

At trial, Evans testifies that he saw the black Cadillac go through the red light at a high rate of speed before striking the pedestrian.

During cross-examination, the defense lawyer asks:

Q: Isn't it true that in February of last year Lucas Smith hired you to be a foreman at his plant?

A: Yes.

Q: Good job?

A: I like it.

Q: In fact, you suffered a stroke one month after the day Mr. Smith was struck by the car, didn't you?

A: Yes.

Q: Since then you have trouble remembering things, haven't you?

A: Sometimes.

After this cross-examination, the plaintiff's lawyer asks to be heard at sidebar. He says: "Judge, on redirect of Mr. Evans I intend to ask about the statement he made to Officer O'Meara on the day of the accident and the statement he gave my investigator two weeks ago. I am offering those statements for their truth."

Defense counsel responds: "I object to those statements for any purpose.

Judge: I want to hear more arguments from both of you. I will excuse the jury. (add our questions)

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?


CHAPTER 7

Direct Examination of Witnesses:
Hearsay Exceptions

7.1 Defendant is charged with arson of a building with intent to defraud an insurer.

At the same time that police and fire fighters were responding to a fire alarm at the Four Coins Restaurant building, the police dispatcher received a call on the 911 line. The caller said that “At least one man has run from the building. He got into a car with the possible plate of NFT 543. This could be a possible arson.” The caller did not identify himself, saying “I’d rather not get myself involved”, nor were the police able to trace the call to learn the caller’s identity. Further investigation found that the license number was registered to a car owned by the defendant.

Before trial the defense moves to preclude the admissibility of the tape recording of the 911 call, as well as a transcript of the call. At the hearing on the motion, the following happens:

Judge: Defense, I’m now ready to hear your arguments on why the 911 evidence, the tape recording as well as the transcript, should be precluded. Please proceed.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.2 This is a felon in possession of a firearm case. The defendant and his wife were involved in an argument. The argument became heated enough that the wife called the police through the 911 system. The tape recording of the telephone call contained the following:

Caller: Would you send a car to 308 Bell?

Dispatch: 308 Bell?

Caller: Yeah, please hurry.

Dispatch: What’s the problem?

Caller: He pulled a gun on me.

Dispatch: OK, you stay on the phone, OK?

Caller: I can’t. Here he comes.

Before trial the defendant moves in limine to preclude evidence of the telephone call. At the hearing on the motion, the following happens:

Judge: This is defendant's motion to preclude evidence of a 911 telephone call. Defense, what’s your argument?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.3 Defendant, Jones, is charged with several counts of possession of drugs and weapons.

In the early morning hours, a 911 caller reported: “I hear a loud disturbance from Joe Jones’ apartment, number 304, directly above my apartment.” Police were dispatched to that address.

Seven minutes after the initial call, police received a second 911 call, from a nearby convenience store pay telephone. The caller identified herself as Louise Hawkins and asked the police to go to apartment 304. The caller said “My husband just pulled a gun on me, a big handgun with a clip. It looked like some kind of automatic.” The caller also said “There’s also drugs and everything else in that apartment up there.”

The police dispatcher relayed the information to the police who were on their way to the apartment. When the police arrived, they found the defendant in the hallway outside apartment 304. A search of the premises and a storage locker revealed both crack cocaine and a loaded semi-automatic pistol.

Before trial defendant moves to preclude the admission of the two 911 calls at trial. At a hearing on the motion, the following happens:

Judge: Counsel, what’s the evidentiary basis for your motion?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.4 Dennis and his brother, Otis, are charged with murdering Johnson. Eyewitnesses had seen the two defendants fighting with the victim outside a bar after midnight. Shortly afterwards, the victim was found shot in the head.

The case against both defendants is now on trial. In the prosecution case-in-chief, an eyewitness testifies. During direct examination the witness said that he had seen Otis, one or two minutes after the shooting, leaving the scene and tucking a gun under his shirt. During the direct examination, the following happens:

Q. (By prosecutor) When you saw Otis, that was shortly after the shooting?

A. Yes, sir.

Q. Were you still all excited and everything?

A. Yes, sir.

Q. And was Otis excited?

A. He didn’t look excited to me.

Q. And Otis told you that his brother had shot Johnson because he had taken a swing at his brother?

Defense: Objection, your honor.

Judge: What’s the basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?



7.5 Defendant is charged with armed robbery. The victim, Claro, his wife, and his young son were in the parking lot of a supermarket. Two persons approached and asked Claro for the time. As Claro looked at his watch, one of the men pulled a knife and demanded all his cash. Claro surrendered his cash and his watch and the two men fled in a green mini-van.

Soon after the van drove away, a stranger approached Claro, told him he had seen the robbery and had gotten the number of the getaway car, and gave him a piece of paper with a license plate number written on it. Claro reported the robbery to the police and turned over the piece of paper. The license plate number was registered to the defendant. Claro and his wife later identified the defendant as the robber with the knife during a photographic identification.

The case is now on trial. In the prosecution's case-in-chief, Claro testifies. During the direct examination, the following happens:

Q. (By prosecutor) Mr. Claro, shortly after the robbery, did someone else approach you in the parking lot?

A. Yes, a man gave me a license plate number.

Q. How soon was that after you were robbed?

A. About three or four minutes.

Q. The man who gave you the number, had you ever seen him before?

A. No.

Q. How did he look?

A. He looked kind of scared.

Q. What did the man say to you?

Defendant: Objection.

Judge: Approach the bench. (Lawyers come to the bench.) What is the witness going to say?

Prosecutor: Your honor, he's going to say that the man said he saw the robbery and wrote down the license number of the getaway car.

Judge: I take it you also intend to introduce the slip of paper in evidence?

Prosecutor: Absolutely. The police inventoried the slip when they got it from Mr. Claro.

Judge: I take it the defense objects to that?

Defendant: Yes, your honor.

Judge: What’s the basis for your objections?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?



7.6 Webb is charged with the murder of Griffis. Griffis was found in an alley shot six times in the back and side.

The first officer on the scene, Officer Salabura, arrived in the alley a few minutes after the shooting and found Griffis lying on the ground, moaning and calling for help. Salabura asked Griffis if he knew who shot him, and Griffis responded “Little Gage.” Paramedics then arrived and took Griffis to the hospital.

About one hour after the shooting, in the hospital's emergency room, another police officer, Officer Magliano, again asked Griffis who shot him, and Griffis again said “Little Gage.” At that time Griffis was lying on a gurney, covered with bandages and attached to a catheter and an IV.

About three hours after the shooting, Officer Magliano returned with Chris Taylor, a friend of Griffis. They saw Griffis in a room in the intensive care unit. Magliano told Griffis that he had “about a fifty-fifty chance” of survival and that “it doesn’t look good for you.” Griffis then said: “Chris, Little Gage did me, man. Little Gage did me. Help me get him.”

Griffis died eight days after the shooting. Other witnesses established that the defendant was known as “Little Gage.”

Before trial the defense moved to preclude Griffis’ three statements from being introduced in evidence. At the hearing on the motion, the following happens:

Judge: Defense, this is your motion. Why should the victim’s out of court statements be precluded?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.7 Defendant is charged with aggravated assault. The charge is based on an incident in which the victim, Jones, was shot.

Jones was walking near his home when a man, driving a blue Ford Taurus station wagon, parked the car and began chasing Jones. The man was brandishing a handgun. Jones ran into a nearby row house and the man followed, firing several shots, hitting Jones and one of the occupants of the row house. The man then returned to the car and drove away. The occupants called the police, who arrived a few minutes later.

Officer Feser was the first police officer at the scene. As he entered the row house he saw a lot of blood and encountered two visibly upset women. The women told Officer Feser that they had seen one man shoot the other in the row house, and provided a physical description of the shooter, a description of the car, and a partial license plate number of the car. Based on this information, police were able to locate the car, registered to the defendant, and arrested the defendant.

The case is now on trial. In the prosecution's case in chief, Officer Feser is called as a witness. During his direct examination, the following happens:

Q. (By prosecutor) Officer Feser, the two women you met in the row house, what did they look like when you first saw them?

A. They were visibly upset, almost hysterical. They were crying, in a panic, running back and forth.

Q. Did you talk with them about what they saw?

A. Yes, right after I got there.

Q. Did both talk to you?

A. Yes.

Q. Did you get the names of the two women?

A. No.

Q. Can you remember what each of the women said to you?

A. I can’t tell you today what each one said, word for word. They were talking fast, at the same time. I remember what they collectively told me, the essence of it.

Q. Tell us what they said to you.

Defendant: Objection, your honor. May we be heard at side bar?

Judge: Yes, approach. (Lawyers approach the bench.) What's your objection based on?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.8 The defendant is charged with first-degree murder for the stabbing death of his wife. Defendant and his wife were having marital difficulties and were living apart. Mrs. Nunes became involved with another man, Kudzma.

At the preliminary hearing, Kudzma testified as a witness. Kudzma said that two days before the stabbing, he and Mrs. Nunes had met at a local Dunkin Donuts shop. Kudzma went inside to get donuts. While inside the shop Kudzma saw the defendant approach Mrs. Kudzma’s car and talk to her for a few seconds. The defendant then left, and Kudzma returned to Mrs. Nunes’ car. He found Mrs. Nunes “trembling, her eyes wide open, with a panicked expression.” When he asked her who the man was who she had been talking to, she replied: “That's my husband. He said he’s going to kill me because I’m having an affair.”

Later that same day Mrs. Nunes obtained a statutory protective order against the defendant.

Before trial the defense moves in limine to preclude the statements Mrs. Nunes made, and evidence that she had obtained a protective order the same day. At the hearing on the motion, the following happens:

Judge: This is the defense’s motion to preclude a statement the victim made shortly before her death, and a protective order. Counsel, proceed with your argument.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.9 The defendant is charged with attempted murder and armed robbery. The charges are based on a home invasion robbery and shooting at the victim’s home.

The victim, Mabus, was in the basement of his home. Thinking he had heard someone, he went upstairs, saw a strange car in his driveway, and walked into the bedroom, where he was confronted by a man with a handgun. The man forced Mabus into the basement, made him sit in a chair, and then shot him in the face. Mabus survived the shooting, managed to crawl up the stairs and call for help.

The first police officer at the scene was Detective Zirkelbach, who found Mabus lying on the floor inside the house. Approximately 15 minutes after the shooting, Mabus told Zirkelbach what had happened and, in response to Zirkelbach’s questions, gave a description of the attacker. According to Mabus, the attacker was a black male, about six feet tall, wearing a dark blue vest, a light-colored shirt, dress-type Levi pants, and boots. When the defendant was arrested later the same day, he was wearing similar clothing.

The defense made a motion in limine to bar Detective Zirkelbach from testifying about Mabus’ description of the attacker. At the hearing on the motion, the following happens:

Judge: Counsel, this is your motion to preclude. Why is this description inadmissible?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.10 This is a murder case. The defendant, Morales, is charged with fatally stabbing the victim, Rosario.

On the day of the stabbing, the defendant had walked home after work, and had a couple of beers on the way home. He stopped at the stoop of his apartment building, where several tenants of the building were gathered. These included the defendant’s wife and Rosario.

During the conversations on the stoop, the defendant apparently felt that Rosario had insulted his wife, took out a knife, and stabbed Rosario in the chest. Rosario ran into the building and collapsed, dying of a stab wound to the heart. The defendant also ran away, but was apprehended by the police about four hours later.

As the police were handcuffing the defendant, he blurted out: “I should have killed him. This guy has no business talking to my wife like that. She’s my damn woman. I didn’t mean to cut him, I only meant to scare him off.”

The case is now on trial. In the defense case in chief, one of the arresting officers is called as a witness. During the direct examination, the following happens:

Q. (By defendant) Officer Jones, did you question Mr. Morales when you were transporting him to jail?

A. No.

Q. After a while, did Mr. Morales say anything?

A. Yes.

Q. Tell us what he said.

Prosecutor: Objection, your honor.

Judge: What’s the basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.11 The defendant is charged with first-degree murder. The victim was found in her home beaten to death. Physical evidence showed that she had recently engaged in sexual intercourse. The police investigation soon led to the defendant.

A police officer, Frier, interviewed the defendant. The defendant stated that he had gone to the victim's house where they had consensual sex. When he started to leave, the victim became angry and grabbed him. He lost his temper, hit her several times with an object, and left the house. She was alive and yelling at him when he left.

The case is now on trial and the prosecution has rested its case-in-chief. The prosecution did not introduce the defendant’s statement during its case.

As part of the defense case, the defense lawyer tells the judge (out of the presence of the jury) that the defendant is invoking his Fifth Amendment privilege and will refuse to testify during the trial.

The defense lawyer then calls Officer Frier. During his direct examination the following happens:

Q. (By defense lawyer) Officer Frier, you talked to the defendant about what happened at the house?

A. I did.

Q. And he told you what happened?

A. He gave me his version, yes.

Q. Tell the members of the jury what the defendant told you during his statement.

Prosecutor: Objection, your honor, and we’d like to approach.

Judge: Very well. [Lawyers approach.] What are the grounds on which you’re objecting?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.12 Defendant, Elliott, is charged with second-degree murder. The charges are based on the defendant shooting his girlfriend, Misty. The defense is accident.

On the day of the shooting, the defendant loaned his car to Misty. Misty did not return until late in the evening, after spending all day with her lesbian lover. Elliott was aware of this relationship and strongly disapproved. While Misty was away, Elliott spent the day with a friend, Scott. Elliott was playing with a pistol and shoulder holster, repeatedly drawing the pistol.

When Misty returned, Elliott took her into a separate room from where Scott was. Soon after, Scott heard a shot. When Scott looked in the room, Misty lay dead on the floor.

Elliott told the police that the shooting was accidental, and that his relationship with Misty was fabulous.

At trial the prosecution intends to call two witnesses:

(1) Michael, a friend of Misty, will testify that a few months before the shooting Misty told him that “Elliott threatened to kill her if she tried to leave him.”

(2) Sarah, Misty's lover, will testify that she was with Misty on the day she died, and that Misty told her that “she wanted to get a job and to get a car and she wanted to leave Elliott and she wanted me and her to move away together.”

Before trial defendant moves to preclude the testimony of these two witnesses on the ground that the testimony is inadmissible hearsay. At a hearing on the motion, the following happens:

Judge: Counsel, why are these statements hearsay at all, and even if they are considered hearsay, don’t certain hearsay exceptions apply?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.13 Defendant, a transit police officer, is charged with perjury during a grand jury investigation of cheating on a transit police promotional examination.

Defendant was among many police officers preparing to take the sergeant’s exam. The defendant’s commanding officer, Lieutenant Gordon, helped draft the sergeant's exam. By telephone, Gordon arranged a “study session” meeting with defendant and four other officers under his command who were eligible to take the test. Unwittingly, Gordon's conversation with one of the other officers, Lebron, was recorded on Lebron’s answering machine. During the conversation Gordon said that “the meeting with the officers will take place that evening,” the “meeting will be a study session,” and that Gordon “will tell them what to study.”

After the examination, allegations of cheating arose and an investigation was launched. When the investigation became public, Lebron turned over a copy of the tape recording of her conversation with Gordon to the transit police internal affairs division.

Defendant was called before the grand jury, was given immunity, and ordered to testify. Unaware of Lebron’s telephone recording, the defendant categorically denied any knowledge of the “study session” or the conspiracy to cheat on the exam.

The case is now on trial. Lieutenant Gordon, called in the prosecution's case in chief, refused to testify, invoking his 5th Amendment privilege against self-incrimination. The prosecution then plans to introduce the tape recording of the conversation between Gordon and Lebron. The defendant objects. Out of the presence of the jury, the following happens:

Judge: Counsel, what is the evidentiary basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.14 Defendant, Tom Clay, is charged with murder for shooting his wife, Louise Clay. The defendant claims the shooting was accidental.

The case is now on trial. In the defense case-in-chief the defendant testifies that at the time of the shooting he confronted his wife about $5,000 missing from his gun cabinet. She first denied knowing anything about the money but then admitted taking it and refused to return it. Defendant then took a gun from the cabinet, thinking his wife would surrender the money if threatened. When he raised the gun up it just went off, discharging twice.

In rebuttal, the prosecution intends to call two witnesses, Burns and Ragland. Burns will testify that a few months before the shooting, she talked with Mrs. Clay on the telephone, and Mrs. Clay said “she planned to move because she was very scared of what her husband might do to her,” and that Mrs. Clay repeated this statement a number of times during other telephone conversations up to the time of the shooting. Ragland will testify that one month before the shooting he talked with Mrs. Clay in person, and Mrs. Clay said “she was planning to move because she was afraid of what might happen to her.”

Out of the presence of the jury, the defense objects to the prosecution's rebuttal witnesses. The following then happens:

Judge: Defense, what's the basis for precluding these two rebuttal witnesses?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.15 The defendant, Griffin, is charged with first-degree murder. The defense is that he wasn’t present when the shooting took place.

The prosecution’s case rests principally on two witnesses. Both testified at the preliminary hearing.

The first witness, Mansel, testified that, on the evening of the shooting, he had met Griffin at Griffin’s home. They discussed a plan to kill Green, a drug dealer. The plan was to set up a drug deal with Green, drive with him to a rural area, and then shoot him. Mansel testified that this is what in fact happened, and that Griffin shot Green as Green was sitting in the front of the car.

The second witness, Jiminez, testified that, on the night Green was killed, she was with Green at Green’s home. Green got a telephone call, and after hanging up said: “I’ve got to meet Griffin and somebody else to buy some marijuana.” He then left the home.

Before trial the defense moves to preclude Jiminez’s testimony at trial. At a hearing on the motion the following happens:

Judge: Counsel, I understand your argument that this evidence is hearsay. But aren’t there hearsay exceptions that permit this kind of testimony?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.16 The defendant, Scrima, is charged with income tax evasion for the years [-5] through [-2]. The prosecution is attempting to prove its case using the net worth method, showing Scrima enjoyed increases in his net worth greater than could be explained by his reported income and any nontaxable source of funds.

In his defense, Scrima claims that at the beginning of [-5] he possessed $375,000 in cash, which was more than sufficient to explain his increases in net worth from [-5] to [-2].

The case is now on trial. In the defense case-in-chief Scrima’s business associate, Clayton, is called as a witness. During direct examination the following happens:

Q. (By defense) Mr. Clayton, in the spring of [-5], were you considering a business venture with Scrima?

A. Yes.

Q. Did he discuss his resources with you?

A. Yes. We talked at my office, just him and me. I asked him how much he had available.

Q. What did he say?

Prosecutor: I object.

Judge: Counsel, come to the bench. [Lawyers approach.] What do you expect the witness to say?

Defense: I expect him to say Scrima told him he had monies, at least $375,000, available in [-5] to get the business started up.

Judge: Why would that be admissible?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.17 Williams is charged with attempted possession of cocaine. The charges arose when the defendant made a telephone call to a house the police had just raided, and the defendant (thinking he was talking to a friend) asked to pick up an ounce of cocaine. The police officer who answered the call told the defendant to come over. A short time later, the defendant arrived at the house and was immediately arrested. In his pocket the defendant had $3,400 in cash.

The case is now on trial. The defendant contends that the $3,400 in cash was for an innocent purpose, namely, to pay overdue back taxes. The defense intends to call an IRS employee, Ogden, as a defense witness to support that claim. Ogden will testify that the defendant owed the IRS $3,300 in overdue taxes, and that about two months before his arrest, the defendant had called and said “If my mother sells her house and she gives the money to me, then I will bring it to you.”

Out of the presence of the jury, the prosecution objects to Ogden's anticipated testimony. The following then happens:

Judge: Is there going to be any evidence that the defendant’s mother actually sold her house?

Defendant: No, your honor.

Judge: State, what’s the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.18 Plaintiff sues defendant for violating an agreement under which defendant agreed not to market its drug in violation of FDA orders. Plaintiff is the maker of Claritin, a prescription remedy for hay fever that is widely used due to its ability to relieve symptoms without producing drowsiness. Defendant is the maker of Zyrtec, a prescription remedy for hay fever that the Food and Drug Administration has prohibited from touting itself as a “non-drowsy” relief medicine.

Plaintiff believed that defendant's salespeople were telling doctors that Zyrtec would not cause drowsiness, in violation of the FDA order and in violation of the previous agreement. Plaintiff hired a company to conduct surveys of physicians who prescribe high volumes of antihistamines. The first survey (of 78 physicians, drawn from 6,000 physicians on a nationwide list) showed that 30% of physicians surveyed had Zyrtec representatives tell them the drug was either low sedating or nonsedating. A second survey (of 200 physicians) showed that 47% had received the same sales pitch from Zyrtec representatives. The first survey was conducted within one week of the time the doctors met with the Zyrtec representatives, and asked doctors “What had the Zyrtec representatives told you about Zyrtec?” The second survey was conducted within one day of the time the doctors met with the Zyrtec representatives, and asked doctors “What had the Zyrtec representatives told you about Zyrtec and sedation?”

Plaintiff intends to introduce in evidence at trial the results of the two surveys. Defendant objects. At a pretrial hearing, the following happens:

Judge: The next item in issue is two surveys the plaintiff intends to introduce at trial. Defense, what's the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.19 Defendant is charged with raping his younger brother and his sister in [-4]. The brother was ten years old, the sister thirteen, at the time. Defendant denies that either incident happened.

After the claimed offenses, Dr. Zitzow, a clinical psychologist, diagnosed and treated both victims. They told Zitzow that the defendant had committed other sexual assaults on both of them for many years, beginning in [-6] and continuing to the present. Both victims also told Zitzow what happened during the two incidents on which the charges are based.

Before trial defendant moved in limine to bar any testimony by the victims about the claimed earlier incidents. Defendant also moved to bar any testimony by Dr. Zitzow about what the victims had told him about either the claimed earlier incidents or the incidents on which the charges are based. At a hearing on the motions, the following happens:

Judge: Set for hearing is the defendant's motions to preclude certain testimony. Counsel, it’s your motion, you get to argue first.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.20 Defendant is charged with two counts of murder for the death of his former wife and her neighbor. The defense is that the defendant was intoxicated and enraged over his pending divorce and therefore lacked the intent required for first degree murder.

Joe and his wife, Julia, were married in [-20]. Ten years later, Julia filed for divorce and the couple separated. A few months later, after a day of drinking, Joe forced his way into Julia's home and got into a fight with her. Julia managed, with the help of a neighbor, to get Joe out of her house. She then tried to go to the neighbor's house. Joe got into his truck and tried to run Julia down. Eventually, Joe succeeded in running down and killing both Julia and the neighbor.

At trial the prosecution intends to call Dr. Smoker, Julia's physician. Smoker will testify that, eight days before she was killed, he treated Julia for a claimed rape and that Julia said the defendant was the person who attacked her. Smoker will also testify that Julia said she is sometimes afraid of Joe, and that she is afraid because Joe suspected her of having an extramarital affair, and that Joe had threatened to kill her if he caught her with another man.

Before trial defendant moves in limine to bar Dr. Smoker's testimony. At the hearing on the motion, the following happens:

Judge: Defense, this is your motion to preclude evidence. What's the basis for your motion?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.21 Defendant is charged with aggravated sexual assault and burglary.

After the assault occurred, the victim was taken to a local hospital's emergency room. In the ER the victim told a nurse the following: She had been attacked by a man who forced his way into her home, hit her over her head with a flashlight, raped her in the front hallway, got something to drink, raped her again, then tied her up with a telephone cord and gagged her with a dish towel. All of this was in the presence of her young daughter. During the first attack she was able to see a tattoo consisting of red lips on the assailant's left groin area.

The police created a composite photograph of the assailant based on the victim's description. The photograph was published in the newspaper, and the defendant was later arrested.

Before trial defendant moves to preclude the nurse from testifying about the victim's statements in the ER. The victim will testify at trial. At the hearing on the motion, the following happens:

Judge: Counsel, why aren’t these statements admissible under Rule 803(4)?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.22 Defendant is charged with taking indecent liberties with a child. The defendant was, at the time, living with his girlfriend, and the seven-year-old victim is the girlfriend’s daughter.

The incident on which the charges were based occurred on September 9. The victim's aunt reported it to the police the next day. The detective handling the case contacted the county Social Services office to report the incident. Social Services then assigned Womble, a social worker, to interview the victim.

Womble interviewed the victim in her home that same day. The victim said that the defendant “did bad things to her” and “tried to make her take her clothes off.” Based on this information Womble decided to take the victim out of the home, and she was placed in her grandmother's care.

Womble then contacted another social worker in the child protective services unit, Melendez, who also interviewed the victim the same day and again the next day. The victim during those interviews said that the defendant “had been touching her in places that he shouldn’t be touching her, and she wanted it to stop.” After these interviews Melendez made an appointment for the victim to be examined by a doctor who was an expert in child sexual abuse. That examination was made on September 18.

Before trial defendant moves in limine to preclude the admission of the victim's statements made to Womble and Melendez. At the hearing on the motion, the following happens:

Judge: This is defendant’s motion to preclude. Counsel, what’s the basis for your motion?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.23 Defendant and others are charged with multiple counts of conspiracy and burglary.

The Georgetown area of Washington, DC, experienced a series of residential burglaries during the summer. The common thread was that they took place when the residents were on vacation. When these residents went on vacation they had notified the police department so that a careful watch could be kept over their homes. This information regarding vacationing residents was known only at the local precinct of the police department.

Since it appeared that police officers may be involved, the police began an internal investigation. This investigation led to Officer Scouloukas, who resigned from the police department. He was then granted immunity in exchange for his testimony against fellow co-conspirators. Scouloukas also allowed himself to be wired and recorded conversations with his co-conspirators, and later testified before the grand jury.

One week before the scheduled trial of the co-conspirators, Scouloukas, who was to be a key prosecution witness, committed suicide. Scouloukas left a handwritten suicide note behind. The note expressed remorse about his treatment of his family, and contained the following statement: “As far as the case goes, Mike Lemonakis had nothing to do with any burglaries that I know of. I lied to the U.S. Attorneys about Mike because he hurt me with my family. But he is innocent.”

Defendant intends to offer the suicide note as an exhibit at trial. The prosecution moves to preclude the note. At the hearing on the motion, the following happens:

Judge: Prosecution, you’ve objecting to the suicide note. What's the evidentiary basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.24 Claudio is charged with the murder of Zweikert. The shooting happened early in the morning, when Zweikert was accosted by four youths as he emerged from the subway. One of the youths had a gun, and they demanded money. Zweikert tried to wrestle the gun away, and was fatally shot.

A police investigation of the shooting led to Boyle, who told police that he had been with Claudio the night of the shooting, and that Claudio had a gun. Later Boyle testified at the preliminary hearing on the murder charge. Boyle testified that on the evening of the shooting, his friend Buck and Claudio drove up to Boyle’s house in a green Mustang. Boyle got in the car, and Buck said they were planning a robbery and asked if Boyle wanted to join them. During the car ride Boyle saw Claudio with a gun. Boyle left the car after a while, and did not participate in the robbery.

Boyle died before the case was tried. The prosecution intends to introduce Boyle's statement to the police, and Boyle's preliminary hearing testimony, during the trial. The defense files a motion in limine to preclude this evidence. At the hearing on the motion, the following happens:

Judge: Defense, this is your motion. Why should these statements be excluded?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.25 This is a declaratory judgment action brought by an insurance company to determine the extent of its obligation under a policy. The issue is whether the company was liable to defend a claim brought against the insured arising out a collision. The insurance policy excluded the duty to defend or pay damages for claims “intentionally caused by the insured,” and the company claims that the insured, Wharton, intentionally caused the collision.

On the day of the collision, Wharton was driving his car with his wife as a passenger. A tractor-trailer truck was traveling toward them in the oncoming lane. Wharton suddenly swerved his car and collided head-on with the truck. No skid marks were found. Mrs. Wharton died from the crash and Wharton was charged with involuntary manslaughter. The criminal charges terminated when Wharton entered a plea of no contest and renounced any rights to his wife’s estate. A short time later Wharton committed suicide. Mrs. Wharton’s estate then brought a wrongful death claim against Wharton. That claim prompted the insurance company to bring the declaratory judgment action.

Mrs. Wharton died of internal injuries at the hospital about ten hours after the collision. Before she died she told several people that “Colonel Wharton put the accelerator on the floor board and turned the car deliberately head-on into the tractor trailer. He did it on purpose. This collision was not an accident. He asked me if I wanted to go to eternity with him. It looks like he succeeded.”

The insurance company intends to introduce Mrs. Wharton's statement at trial. Mrs. Wharton’s estate objects. At a pretrial hearing, the following happens:

Judge: The next item for resolution is the admissibility of Mrs. Wharton's hospital statement. What’s the basis for the estate’s objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.26 Defendant is charged with armed robbery and assault. The charges are based on the victim being choked, beaten, and robbed at gunpoint by a group of men.

After the robbery, the victim called the police, who drove him through the neighborhood in an attempt to find his assailants. The victim in fact recognized his attackers in a group of several men, and two men were arrested, based on the victim's identifications. The victim identified White as the man who choked him. Another person at the scene, Smith, was released when the victim failed to identify him as one of the robbers.

One year after the robbery, but still before trial, Smith came forward and admitted his involvement in the crime. At the time Smith was in prison serving time for an aggravated assault that had occurred shortly before the present incident. Smith contacted the authorities, and gave both an oral and written statement. In his statements Smith admitted participating in the assault and robbery of the victim, but also stated that White had nothing to do with the incident and that White's identification was a mistake. Smith said he was making the statement because White should not get in trouble for something he did not do.

At trial, the defense called Smith as a witness, but Smith invokes his privilege against self-incrimination. The defendant then offers Smith's statements. The prosecution objects. Out of the jury’s presence, the following happens:

Judge: The state is objecting to the admission of Smith's statements made to the police. What’s the basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.27 The defendant, Pena, is charged with bringing an illegal alien into the United States for profit. Pena drove a car from Mexico to the U.S. border, where the car was searched by U.S. immigration officers. The officers found an illegal alien, Limon, hidden in the wheel well in the car's trunk.

Limon was interviewed by the immigration officers. He said he was a citizen of Mexico and that Pena had driven him to the border. Pena also supplied his home address in Mexico. Limon was not charged criminally, but was detained and deported back to Mexico.

The case is now on trial. The prosecution does not intend to call Limon as a witness. Instead, the prosecution intends to introduce in evidence the INS report documenting Pena's arrest and containing Limon's statement. The defense objects. Out of the presence of the jury, the judge holds a hearing to determine the admissibility of the INS report. During that hearing, the following happens:

Judge: Even if I were to allow the INS report, or portions of it, as a public record, the report contains Limon's statement, which is itself hearsay. Why should I admit Limon’s statement under these circumstances?

Prosecution: Because Limon is unavailable, your honor. He was deported by the INS and is back at his home in Mexico.

Judge: I want to hear more on the unavailability issue from both sides.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.28 Defendant is charged with failing to register for the draft as required by law.

The Universal Military and Service Act makes it the duty of every male between 18 and 26 years of age to register. An essential element of the charge is proving that the defendant is between the ages of 18 and 26.

The case is now on trial. To prove that the defendant is between those ages, the prosecution offers in evidence the defendant's driver's license, and his application for a driver’s license. These documents show the defendant's age as over 18 and under 26. The defense objects to this evidence. At a side bar conference, the following happens:

Judge: Defense, what’s the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.29 Hernandez is charged with two sexual assaults involving two different victims. The assaults occurred two months apart. Both victims were attacked while jogging near the UCSD campus in LaJolla.

The prosecution plans to introduce at trial computer data from the department’s crime lab. The data shows that, both before the defendant moved to California and after his arrest, there were no other sexual assaults committed in the same area similar to the sexual assaults allegedly committed by the defendant.

The San Diego Police Department developed a data base system called “Sherlock” to track sex-based crimes within its jurisdiction. The system collected information on reported crimes, arrests, citations, 911 calls, and victim and witness interviews. The information recorded would not be the original verbatim reports, but came from the sex crime logs detectives always prepare in individual cases. The logs usually contained edited versions of key information and sources. This log information was entered into the computer by police department personnel, within three or four days of the event recorded. The information from “Sherlock” was used daily by the police department to investigate sex crimes.

A police department crime analyst then picked pertinent variables, such as the physical descriptions of the assailants and victims, locations, dates, times, and modus operandi, to search the data base. That search showed that in the police beat where the sexual assaults in this case occurred, no other similar sexual assaults had occurred, before the date the defendant came to California and after the date of his arrest.

Before trial, the defense moves to preclude the “Sherlock” records. At the hearing on the motion, the following happens:

Judge: Defense, this is your motion. Why aren’t these records admissible?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.30 The Environmental Protection Agency denied a petition by A&W Smelter for reimbursement of costs incurred in complying with cleanup orders issued by the EPA under provisions of the CERCLA Act. Involved were waste piles at two A&W Smelter mining sites. Plaintiff then brought a complaint in federal district court against the EPA, appealing its decision.

Plaintiff claims that the material involved in the cleanup was not hazardous, a cleanup should never have been ordered, and cleanup costs should never have been incurred. The EPA claims that the material involved was hazardous because it contained elevated levels of lead.

The EPA moves for summary judgment. In support of its motion, the EPA attaches several exhibits. Exhibit 7 is a document from A&W Smelter that was produced by A&W Smelter during discovery. The record is a written order to a trucking firm to pick up and transport the material, is signed by A&W Smelter’s principal officer, and describes the material to be transported as hazardous.

At the hearing on the motion for summary judgment, the following happens:

Plaintiff: Your honor, we also object to the court considering Exhibit 7 as evidence for the purpose of deciding the summary judgment motion.

Judge: What’s the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.31 Defendant and others are charged with conspiracy to distribute marijuana and money laundering.

The prosecution's evidence consists primarily of a videotaped conversation between the defendant and a co-conspirator who became a cooperating witness with the prosecution, telephone call records showing long distance calls between the defendant's telephone and other co-conspirators' telephones, and Western Union records.

The Western Union records reflect 15 “To Send Money” forms, all of which show a Mark Vigneau, his address, and his telephone number as the sender of money wired to recipients in other states. Five of the records are the original forms submitted by the sender to the Western Union clerk. Ten of the records are computer records of the information contained on the original forms. The dates of the wire transfers correspond to the dates of the telephone calls reflected in the telephone company records.

Before trial defendant moves in limine to preclude admission of the Western Union records. At the hearing on the motion, the following happens:

Judge: This is the defendant's motion to preclude certain Western Union records. Counsel, proceed with your argument.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.32 This is an action in bankruptcy court to recover $30,000 as a result of a preferential transfer. The plaintiff is the trustee of Turkeyfoot Concrete, which has been adjudged bankrupt. The trustee brings this action to recover the money from the Sylvester Material company. Plaintiff claims that Turkeyfoot improperly paid $30,000 to Sylvester at a time when Turkeyfoot was insolvent. Sylvester claims that Turkeyfoot was still solvent when the payment was made. The payment was made in June, [-5].

Before the court is plaintiff's summary judgment motion. To prove that Turkeyfoot was insolvent when the $30,000 payment was made, plaintiff attaches two exhibits to its motion. Exhibit 1 is a copy of a letter from a CPA firm, with accompanying financial statements, for Turkeyfoot’s [-5] fiscal year. Exhibits 2 is a copy of Turkeyfoot’s income tax return for [-5]. Each exhibit is accompanied with a statement from the trustee that the exhibit is true and accurate to the best of the trustee's belief and knowledge.

At the hearing the following happens:

Defendant: Your honor, we object to Exhibits 1 and 2 that are attached to plaintiff's motion. These cannot be considered for summary judgment purposes.

Judge: What’s the reason for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.33 Defendant is charged with conspiracy to murder and distribute heroin and crack cocaine. The prosecution alleges that Reyes is the head of a large drug ring, and used murder to eliminate rivals and competitors. The prosecution alleges that Reyes continued to head the drug ring even though he had been sent to prison on other charges.

At the preliminary hearing, Vargas, a key prosecution witness, testified that he was a member of the drug ring, that he visited Reyes in prison, that Reyes gave him instructions to commit certain murders, and that he later carried out those instructions.

The prosecution intends to introduce in evidence at trial the visitor's logbook from the prison where Reyes was incarcerated. Entries in the logbook show that Vargas had visits with Reyes close in time to the later killings. Defendant objects to the admission of the visitor’s logbook.

Before trial a hearing is held to determine the admissibility of the logbook. McLear, the Inmate Records Coordinator at the prison, testifies at the hearing. McLear testifies that all visitors to the prison are required to present identification to the lobby officer and sign the visitor's logbook, and that the lobby officer is required to verify that the identification matches the signature. The following then happens:

Judge: Counsel, based on Ms. McLear’s testimony, why doesn’t the logbook qualify as a business record?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.34 The defendant is charged with DUI manslaughter. The police noticed the defendant’s car moving erratically. The car made a left turn, went into the oncoming lane of traffic, and collided head-on with an oncoming car. The collision killed the driver of the oncoming car, and seriously injured the defendant.

The defendant was rushed to St. Mary’s Hospital, where he was examined and treated in the emergency room. Among other things, the ER staff took a blood sample from the defendant and tested it. The test showed the defendant’s blood alcohol level to be .274 (the presumed intoxication level in the state is .10). The defendant survived, and was later charged.

The case is now on trial. In the prosecution's case-in-chief, Johnson, the head of St. Mary’s Hospital laboratory department, testifies. On direct examination he identifies State Exhibit No. 1 as the hospital's lab report of the defendant’s blood alcohol test. He describes how such reports are regularly prepared by the hospital, how the results of the test, which are generated by the laboratory’s blood testing machine and displayed on a computer screen, are put on the report, and how the blood testing machine is regularly maintained, inspected, and tested. The following then happens:

Prosecution: Your honor, at this time we offer in evidence State Exhibit No. 1 as the hospital’s business record.

Defense: I object, particularly since none of the hospital personnel involved in taking and testing the blood have appeared as witnesses in this trial.

Judge: What are the bases for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.35 Plaintiffs are suing the Louisiana Pacific Corporation, claiming that emissions from LPC’s waferboard plant caused them physical illness. Plaintiffs all live on properties adjoining the plant.

Waferboard is a building product made from wood chips and resin glue compressed at high temperatures. The byproducts of the manufacturing process are environmental hazards. If all the plant’s pollution control devices were working and used properly, it would be operating in compliance with the environmental permits issued by the state.

The case is now on trial. Plaintiff’s key witness is Butler, a former shift manager at the plant. Butler testifies that some pollution controls at the plant were bypassed in order to meet production quotas. On cross-examination, Butler admits having been fired from the plant, and having looked the other way when employees during his shift falsified the pollution data. However, Butler denies he was fired because he had participated in the falsification of the pollution data.

The defense then calls Maestas, LPC’s current personnel manager. During the direct examination, the following happens:

Q. (By defendant) Were you the personnel manager when Mr. Butler was fired?

A. No, I came on in July of [-4]. Butler was fired in [-5].

Q. Why was he fired?

Plaintiff: Objection, no foundation.

Judge: Sustained.

Q. Mr. Maestas, does your company keep personnel records of former employees?

A. Yes.

Q. Are you the custodian of those records?

A. Yes.

Q. Have you seen Butler’s personnel file?

A. Yes.

Q. Based on your review of Butler's employment history, why was he fired?

Plaintiff: Objection again, your honor.

Judge: Approach. (Lawyers come to the bench.) What’s the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.36 This is a claim for damages brought by a crew member who was employed as a galley worker on defendant Hawaiian Cruises’ ship. Sana claims that he contracted viral encephalitis while working. Under maritime law, Sana must prove that his illness manifested itself on or before March 10, his last day of work, to entitle him to compensation.

Sana worked on the cruise ship on March 9 and 10. When his illness first manifested itself is disputed. However, on March 11 his condition became obvious and rapidly deteriorated. He was taken to a clinic, where doctors examined and tested him but were unable to make a definitive diagnosis, nor were they able to stop his deterioration. Five days later Sana slipped into a coma, where he remains to this day.

Hawaiian Cruises initiated an investigation into Sana’s condition that was conducted by Rutherford, an insurance agent from Hawaiian Cruises’ insurance company. Rutherford interviewed Kauhi and Ruben, two of Sana’s co-workers, and Hudson, Sana’s immediate supervisor. Kauhi said that Sana told him on March 10 that he had bumped his head. Ruben said that Sana told him the same thing, and that Sana was acting abnormally on that day. Hudson said that Sana told him he felt sick on March 9. Rutherford prepared a written report of his interviews and filed it with the insurance company.

At trial plaintiff intends to call the president of the insurance company to qualify Rutherford’s report as a business record of the company. Defendant files a motion in limine to bar the evidence. At the hearing on the motion, the following happens:

Judge: As I understand it, counsel, you want to introduce a written report, made by a witness not here in court, that contains statements by three other witnesses, also not here in court, that recount statements made by Sana, who isn’t going to be here as a witness. How can this be properly admissible over the defense's hearsay objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.37 This is a multiparty action involving claims of personal injury and wrongful death arising out of the crash of a Continental Airlines aircraft at Stapleton International Airport. The aircraft crashed on takeoff during a heavy snowstorm, killing 28 persons and injuring 54 others.

The National Transportation Safety Board immediately began an investigation into the causes of the crash, and released its report several months later. The report includes data collected by investigators and through public hearings, and includes the analysis of various teams that looked at specific possibilities that may have caused the crash. The report concluded that pilot error and improper de-icing procedures caused the crash. The report also included a “Human Factors Report,” which was based on interviews with various witnesses. This report concluded that the cockpit crew, especially the co-pilot in control of the aircraft, lacked experience flying in the weather conditions that existed that day.

Defendants object to the admissibility of any part of the NTSB crash report at trial. At a hearing on the motion, the following happens:

Judge: Counsel, I’m particularly interested in why the NTSB report is not a public record properly admissible under Rule 803(8), and whether any other evidentiary rule governs the admissibility of the report. Since the presumption is that such public records are admissible, I’d like to hear from the defense first.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.38 This is a strict liability claim for personal injuries brought against the manufacturer of a power saw.

Plaintiff had been using a circular power saw manufactured by the defendant while working on a job site. The saw had a spring-loaded curved guard over the blade so that, when the saw was not cutting, the guard would cover the blade and protect the user. Plaintiff had just completed cutting a piece of wood and had lowered the saw to his side when he felt the blade rip into his thigh. Plaintiff says that he saw that the curved guard had not returned and the circular blade was exposed.

In the pretrial statement plaintiff lists as an exhibit a report from the U.S. Consumer Products Safety Commission. The report discusses circular power saws and safety mechanisms, but does not specifically mention Black & Decker or any other manufacturer's saws. Defendant objects to the exhibit. At a pretrial hearing, the following happens:

Judge: The next item in dispute is plaintiff’s Consumer Products Safety Commission report which discusses power saws and safety mechanisms on such saws. Defense, why is this exhibit not admissible?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.39 This is a wrongful death action brought by the husband and children of the deceased, Mrs. Kehm. Plaintiffs claim that Mrs. Kehm died early in [-4] from toxic shock syndrome (TSS) caused by her use of Rely tampons, a product designed and manufactured by P&G.

Plaintiffs intend to introduce as evidence at trial reports of epidemiological studies conducted by the U.S. Center for Disease Control and several state health departments. These studies, issued in early [-3], which analyzed the statistical relationship between tampon use and the incidence of TSS, are largely based on questionnaires administered to physicians, patients, and parents of patients. The questionnaires were administered both to TSS victims and a control group. These reports show that users of tampons had a substantially higher incidence of TSS than non-users.

In addition, plaintiffs intend to have their medical expert, Dr. Dan, testify about these studies as part of the foundation for his expert opinions. Dr. Dan is a former member of the CDC task force, but did not personally participate in the studies that are the basis for the CDC report.

Finally, plaintiffs intend to show that in [-3], once P&G learned of the CDC reports, P&G immediately withdrew Rely tampons from the market.

P&G objects and moves in limine for a ruling on the admissibility of these offered items of proof. At the hearing, the following happens:

Judge: This is defendant’s motion to preclude three items of evidence offered by plaintiff, all of which relate to CDC studies. Defense, what’s your argument?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.40 Defendant is charged with felony murder. The charges are based on a shooting that happened at a moving company.

A receptionist, Hale, was working at her desk at C&K Moving. A man came in and asked for a job application. Hale looked away for a moment and when she turned back around the man was pointing a gun to her head, demanding money. A coworker entered the room and told the man that there was no money available. The man shot the coworker and fled. For a long time no arrest in the case was made.

Almost two years later, Detective Faggaini, who was continuing the investigation, contacted Hale. According to the detective’s report, “Ms. Hale was made aware that an arrest was in sight concerning the incident. She stated since she didn’t see the culprit’s face at the time of the shooting she probably wouldn’t be able to make an identification. She is really unsure if she could identify the man who did the shooting.”

The case is now on trial. However, Detective Faggaini died before trial. On direct examination, Hale is called as a witness and identifies the defendant as the man who shot the coworker. On cross-examination Hale denies telling Detective Faggaini that she could not identify the man who did the shooting.

The defense then moves to admit in evidence Detective Faggaini’s report of his interview with Hale. The prosecution objects. Out of the presence of the jury, the following happens:

Judge: Counsel, isn’t the police report hearsay? Why should it be admissible just because the detective who made the report has since died?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.41 Gil is charged with murdering his wife, Maria, and her boyfriend, Frank.

Gil and Maria owned and operated a lunch counter business and had been married for twenty years. They lived in an apartment above the business. In January, Gil and Maria separated. Maria obtained a court order restraining Gil from communicating with her and requiring Gil to vacate the apartment. In June, Frank moved in with Maria. Two months later, Maria’s and Frank’s bodies were found, stabbed repeatedly, on the floor of the lunch counter business. Based on evidence gathered at the scene, Gil was arrested.

Moseley had been a friend of Maria and Gil for ten years. When interviewed by the police, Moseley said that, more than five times before their separation, during the past five years, he had seen Gil physically beat and abuse his wife. He said that he once asked Maria why she did not divorce Gil, and Maria said that eight years ago she did try to leave and Gil said he=d kill her if she ever tried it again.

At trial the prosecution intends to introduce the restraining order and have Moseley testify to the things he had previously told to the police. The defense objects. At a hearing on the motion, the following happens:

Judge: This is defendant’s motion to preclude two items of evidence. Defense, what’s your argument?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.42 This is a fraud case. Plaintiff claims he bought a farm from the defendant based on the defendant’s representation that the well near the house would provide water for the farm for the next hundred years. In fact, the well went dry two months after the plaintiff bought the farm. Plaintiff is now seeking money damages for the reduced value of the farm.

The case is now on trial. Plaintiff testifies in plaintiff’s case-in-chief. During the direct examination, the following happens:

Q. (By plaintiff) When and where did you talk with the defendant about the well?

A. At my house, a week before we signed the papers.

Q. What did he say to you?

A. I had a stroke since then, and I can=t really remember.

Q. Did you do anything after that conversation?

A. Yes, the next day I sat down in my living room and wrote down what he said about the well.

Q. I show you Plaintiff’s Exhibit No. 4. Do you recognize it?

A. Yes, that's the paper I wrote.

Defense: I object, and ask to be heard.

Judge: Approach the bench. [Lawyers approach.] Plaintiff, what do you intend to do with that piece of paper?

Plaintiff: After the witness describes how he wrote out that piece of paper, I intend to offer it in evidence and ask that it go back to the jury during deliberations.

Defense: I object to that.

Judge: Plaintiff, how does that paper get into evidence?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.43 This is a criminal assault case. The issue is identification.

The case is now on trial. In the defense case-in-chief, the defense calls Johnson, a neighbor of the defendant, as its first witness. During the direct examination, the following happens:

Q. (By defense) Mr. Johnson, do you know Mr. Williams, the defendant in this case?

A. Yes.

Q. How do you know him?

A. He’s my neighbor. He lives right across the street.

Q. Do you know him well?

A. Sure, I see him fairly often, and we talk regularly. You know, typical neighbor kind of thing. We run in the same social circle.

Q. Have you heard Mr. Williams’ reputation in the community for being a peaceful kind of person?

A. I sure do.

Q. What is it?

Plaintiff: I object to this testimony.

Judge: Basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.44 This is a medical malpractice claim brought against a clinic and its associated doctors.

Plaintiff was admitted to the clinic to relieve an arterial insufficiency in his left foot. Conservative treatment failed to improve his condition. Plaintiff then underwent a left lumbar sympathectomy, which is a surgical procedure that enlarges the artery that carries blood into the left leg. Plaintiff claims he was never told that a side effect of a sympathectomy would be sexual impotency, from which he now suffers.

The case is now on trial. Dr. Ochsner, who performed the surgery, testifies on direct examination that a sympathectomy has no side effects. On cross-examination the following happens:

Q. (By plaintiff) Dr. Ochsner, you claim that a sympathectomy produces no side effects, right?

A. That’s right.

Q. Dr., are you familiar with a medical text called “Medical Surgical Nursing?”

Defendant: Objection, your honor. May we be heard at side bar?

Judge: Let’s take a short recess instead. The jury is excused. (Jurors leave the courtroom.) Counsel, what part of the book do you intend to use?

Plaintiff: Your honor, this text is written by two registered nurses. It lists potential results from a sympathectomy on page 233. One of the results is, and I quote, “loss of ejaculation in the male.” That's the part I intend to use on cross.

Judge: Defense, what’s the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.45 Wright, the mother of two daughters 3 and 5 years of age, is charged with lewd conduct. The prosecution claims that she assisted in rapes of the two girls by her live-in boyfriend, Giles (the father of the younger girl), by holding the children down and covering their mouths.

When the trial began, the trial judge conducted a voir dire of the younger girl and determined that she was incapable of communicating to the jury, and could not be called as a witness during the trial. The prosecution then moves to admit the testimony of a pediatrician who had examined and interviewed the girl after the charges were brought. The defense objects.

The pediatrician, who had extensive experience in child abuse cases, examined the girl and found that she had physical symptoms of sexual abuse. He also later questioned her in his office. The girl was reluctant to answer questions about her own abuse, but volunteered that “my daddy (Giles) does that with my older sister much more.”

At the hearing on the motion, the following happens:

Judge: I need to hear arguments on whether any hearsay exceptions apply to this evidence, and, since this is a criminal case, whether the Confrontation Clause permits its admission. Prosecution?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.46 Defendant is charged with armed robbery and felony murder. The charges arise out of a robbery of a Kentucky Fried Chicken restaurant during which one of the employees was fatally shot in the head.

The police investigation obtained descriptions of the shooter, the getaway car, and a person in the getaway car. These leads ultimately led to the arrest of the defendant and a friend, Cathcart. Three eyewitnesses to the robbery later identified the defendant in a photo array as the robber and shooter.

Cathcart gave two statements to the police. In his first statement Cathcart denied any knowledge of a planned robbery, but admitted being in Madrigal's car riding around, said he had fallen asleep, and when he woke up the car was at the KFC, Madrigal jumped in the car, and they left. In his second statement, four hours later, Cathcart said he knew Madrigal was going to rob the KFC and that he agreed to go along, that Madrigal went in and returned a few minutes later, and that afterwards they went back to Madrigal's house and counted the money.

The case is now on trial. The prosecution calls Cathcart as a witness, but Cathcart invokes his 5th Amendment privilege and refuses to testify. The prosecution then moves to admit tape recordings of Cathcart's two statements in evidence. The defendant objects. During a hearing out of the jury's presence, the following happens:

Judge: Counsel, I=d like to hear from both of you about the evidentiary and constitutional issues involved here that have any bearing on the admissibility issue. Defense, it's your objection, so you go first.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.47 Valenzuela and Corral are charged with possession with intent to distribute cocaine. The defendants were arrested after DEA agents discovered six kilograms of cocaine in the van in which they were riding. The van belonged to Valenzuela. Fingerprints on the bags of cocaine matched Corral's.

At the scene Corral waived his Miranda rights and made a statement to one of the DEA agents. Corral said that he was a courier for Valenzuela, who was the ringleader of the operation, and had picked up or delivered cocaine and marijuana for Valenzuela six times, one of those times being the present day.

Both defendants appeared in court for a bond hearing. Corral was able to post a $4,500 bond, while Valenzuela was denied bond. Corral attended his daughter's baptism four days later, appeared at the preliminary hearing, where defense counsel declined to cross-examine, and gave another statement to the DEA agent which essentially repeated his first statement. A few weeks after his arrest Corral disappeared and became, and remains, a fugitive.

The case then proceeds to trial against Valenzuela alone. At trial, the prosecution intends to call the DEA agent to introduce Corral's statements. The defendant moves to exclude the statements. At a hearing on the motion, the following happens:

Judge: While this is the defendant's motion, the burden is on the proponent to demonstrate the proper admissibility of the statements. Hence, the prosecution should argue first.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.48 The defendant is charged with first-degree murder of two men and aggravated assault of a third. The defense is self-defense.

The charges arose out of a confrontation between the defendant and a group of men. During that confrontation the defendant shot three men in the group.

A person in that group, Ali, was subpoenaed by the prosecution and testified before the county grand jury. Ali testified that he was part of the group of men that confronted the defendant. An argument arose and quickly escalated. Ali testified that the defendant tried to retreat before he took out a handgun and began shooting. Ali was injured during the shooting, and two other men were killed.

Some time after testifying, Ali was convicted of robbery and sentenced to prison. Ali escaped from the prison, and his present whereabouts are unknown.

Before trial the defense lists Ali's grand jury transcript as an exhibit the defense intends to introduce at trial. The prosecution objects. At a hearing just before the trial begins the following happens:

Judge: This is the prosecutor’s objection to admitting a grand jury transcript in evidence during the defense case. Prosecution, what's the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.49 The defendant, Bradley, is charged with being a felon in possession of a firearm. The case began when Bradley's wife called the police, claiming an unnamed man had pulled a gun on her. When the police arrived, Bradley denied having a gun. The police searched the house and found a .38 caliber revolver under a mattress in the master bedroom. There were no fingerprints on it.

Later that same day, Detective Terry took a signed statement from Mrs. Bradley. In the statement she said that her husband pulled a .38 caliber revolver and aimed it at her.

The case is now on trial. The prosecution calls Mrs. Bradley as a witness in its case-in-chief, but Mrs. Bradley refuses to testify, claiming marital privilege. The prosecution then calls Detective Terry. During his direct examination, the following happens:

Q. (By prosecutor) Detective Terry, tell us about Mrs. Bradley’s statement.

Defense: I object. The statement is hearsay and violates my client's Sixth Amendment rights.

Prosecutor: Your honor, I will lay a proper foundation before I go into the contents of the statement.

Judge: Proceed.

Q. Detective Terry, did Mrs. Bradley make a statement to you?

A. Yes, two hours after we were called to the house, she made a statement at the station.

Q. What was her condition when she gave you the statement?

A. She was distraught, crying.

Q. Was she placed under oath?

A. No, but I told her the statement could be used in court. I wrote as she spoke, then I read it to her and asked her to sign it if it contained what she said. She read each page and signed each page.

Q. Did she at any time that day or any day thereafter tell you the statement was not true?

A. No.

Q. Did you make any promises to her in return for the statement?

A. No.

Prosecutor: Your honor, I have completed my foundation questions.

Defense: I still object.

Judge: Please approach the bench and tell me the basis for your objection.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.50 The defendant, Gomez, is charged with possession with intent to distribute 50 kilograms of marijuana.

The defendant was arrested on April 4, one year ago, when the car in which Gomez and Torres were riding was stopped near the Mexican border. The car had been traveling just behind a white truck, which was also stopped. Border patrol agents found large amounts of marijuana in the white truck. The driver of the truck, Gomez, and Torres were taken to the police station. At the station, Torres agreed to give a written statement after the agent told him his cooperation would be beneficial to him. After giving the statement, but before trial, Torres jumped bond and cannot be found.

Torres’ statement was: “I got to Columbus on Friday, and the load was at the house. Then the driver of the truck and I loaded the marijuana into a tank on the truck. Then we covered it up. The driver was going to take it to the McDonald’s in Lordsburg. There, Gomez was going to get on and drive the truck. We were waiting for the truck and it didn’t arrive. When we saw it on the road to Silver City, we began following it to see what was wrong. Then we got stopped.”

The case is now on trial. In the prosecution's case-in-chief, the following happens:

Prosecutor: At this time, your honor, I call Border Patrol Agent Smith. He will authenticate the written statement given to him by Torres on the day of his arrest.

Defense: I object to that.

Judge: I will hear arguments on this outside the presence of the jury.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.51 The defendant is charged with first-degree murder.

The defendant and the victim were talking in the hallway of the hotel where the victim was staying. The talking escalated into an argument, there was a gunshot, the victim fell to the floor, and the defendant ran away.

The defendant’s aunt, Bishop, was a witness to the shooting. She was interviewed by a police detective. That interview was tape recorded and later transcribed. In the interview Bishop said that she drove to the hotel to meet the defendant and went inside. She saw the defendant and victim in a hallway. They got into an argument, there was a gunshot, the victim fell to the floor, and the defendant ran out. Bishop also went out and drove away. She saw the defendant running through a parking lot, stopped, and took him to an apartment where a relative lived.

The case is now on trial. Outside the presence of the jury, the judge conducts a hearing to determine if Bishop will testify at the trial. After being sworn in, Bishop says she refuses to testify “out of fear for my safety,” and refuses to testify further. Even after being ordered to testify Bishop still refuses. The following then happens:

Prosecutor: Your honor, in light of what has just happened we will offer in evidence the tape recording and transcript of Bishop’s interview, and will establish any necessary foundation through the police officer.

Defense: We object, your honor.

Judge: What’s the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.52 This is a personal injury case in which the plaintiff claims he was seriously injured when his car collided with the defendant’s car. Plaintiff claims his injuries are permanent and prevent him from returning to work.

Before trial the defense deposed plaintiff’s medical expert, Dr. Stein. Dr. Stein testified he was retained by the plaintiff’s lawyer to examine and evaluate the plaintiff. Dr. Stein testified that in his opinion the plaintiff’s injuries are sufficiently serious and permanent to prevent plaintiff from returning to work. During the deposition the defense did not ask about any matters affecting Dr. Stein’s credibility. Shortly before trial Dr. Stein died.

The case is now on trial. In plaintiff’s case-in-chief, plaintiff introduces in evidence the transcript of Dr. Stein’s deposition.

In the defense case-in-chief, the defense intends to introduce the following evidence:

(1) Dr. Stein was suspended from practice for one year for filing a false medical report about an operation he performed for another patient five years ago.

(2) Dr. Stein failed the board examination for orthopedic surgeons when he took the examination seven years ago.

(3) Dr. Stein has been retained as a medical expert by the plaintiff's lawyer ten times over the past two years.

Plaintiff objects to this evidence. At a hearing on the objections, the following happens:

Judge: The is the plaintiff’s motion to preclude certain evidence pertaining to Dr. Stein, who has already testified in the plaintiff's case. Plaintiff, what’s the basis for your objections?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.53 This is a murder case. The defendant is accused of killing a rival gang member.

Several witnesses were brought before the grand jury and testified. Two of the witnesses, Adams and Baker, are members of the victim's gang. Both testify that they saw the defendant shoot the victim in a vacant lot.

Before trial the prosecution sends investigators to locate Adams and Baker, so that they can be subpoenaed for trial. The investigators find and serve Baker, but despite repeated efforts, are unable to find Adams.

Before trial the prosecution moves to admit the transcript of Adam's grand jury testimony. The defense objects. At a hearing on the motion, the following happens:

Judge: Prosecution, on what grounds should I admit the transcript of Adam's grand jury testimony?

The case is now on trial. The prosecution calls Baker, who tells the judge he is not going to testify. Out of the jury’s presence, the following happens:

Q. (By judge) Mr. Baker, you’re under oath. Why are you refusing to testify in this trial?

A. I was told by friends of the defendant that the defendant put the word out, anyone who testifies in his trial is going to end up dead, and his family too.

Q. Who told you that?

A. Two gang members from the defendant’s gang told me.

Q. When and where was that?

A. About a week ago, right on the street.

Q. Mr. Baker, I’m ordering you to testify. If you refuse, I’ll have to hold you in contempt and put you in the lockup.

A. I’d rather be locked up than dead. I’m not talking.

Judge: Bailiff, take Mr. Baker to the lockup. [Baker is taken from the courtroom.]

Prosecutor: In light of Mr. Baker's refusal to testify, we offer the transcript of his grand jury testimony as an exhibit.

Defense: I object.

Judge: Basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

7.54 The defendant, Crawford, is charged with attempted murder of Lee, who allegedly tried to rape Crawford’s wife, Sylvia. Sylvia led Crawford to Lee’s house where, she told him, the attempted rape had taken place. Crawford claims he stabbed Lee in self-defense because he thought he saw Lee pull out a knife.

On the night the defendant was arrested, his wife gave a statement to the police. It was tape-recorded. She said she saw Lee with his hands open just before he fell down. She was asked: “Did you see anything in his hands at that point?” Her answer was: “no.”

At trial, during the prosecution’s case, the prosecutor asked for a conference out of the jury’s presence.

Prosecutor: Your Honor, our next witness was supposed to be Sylvia Crawford. I have just been informed that the defendant is asserting his marital privilege. That means we cannot call Mrs. Crawford. We do, however, have a tape-recording of her statement to the police on the night the defendant was arrested. We are prepared to establish a foundation for the tape-recording and we ask leave to offer it into evidence. We also are prepared to offer the testimony of Mrs. Crawford’s mother, who will testify to a phone conversation on the night of the arrest where Sylvia told her she did not see a knife in Lee’s hands at any time before he fell to the ground.

Defense: We object, Your Honor. Both statements are inadmissible hearsay and their admission would violate my client’s rights under the Confrontation Clause of the Sixth Amendment.

Judge: Mr. Prosecutor, tell me why you believe these statements are admissible.

1. What are the best arguments for admissibility of the statements?

2. What are the best arguments to support the objections?

3. Should the evidentiary analysis be the same for both statements?

4. What are the proper rulings?

7.55 The defendant, Thomas, is charged with aggravated criminal sexual assault upon a seven-year-old female, G.F. The indictment alleges the defendant penetrated G.F.’s vagina and anus with his penis.

Before trial begins, the prosecution establishes that, due to emotional problems, G.F. will be unable to testify at trial. It notifies the court and the defense that it will offer at trial G.F.’s statements to a City police detective, to an investigator for the Department of Children and Family Services, and to a physician. In each of these statements G.F. said she was babysitting at Thomas’ home when he pulled her into the bedroom and sexually assaulted her. She provided details of the assault and named the defendant as the attacker.

At a pre-trial hearing, the defense objects to the proposed testimony. Both sides agree to certain facts about the witnesses:

(1) Detective Dwyer was investigating the reported sex offense. He told C.F. he was assigned to investigate sex abuse of children, but did not tell her he was a police officer. He interviewed G.F. in the presence of her mother at police headquarters. The interview took place one month after the alleged assault.

(2) DCFS Investigator Lewis has worked for the child protection unit for several years. She is a trained social worker. She estimates 95 percent of her cases involve investigations of sexual abuse. She is required by statute to investigate reports of suspected child abuse. At times, as she did in this case, she refers reports of abuse to the police or the County prosecutor’s office. She considers her primary function to be the gathering of facts that will allow her to make a decision that will best protect the welfare of the abused child. She does not consider herself an arm of the prosecution. She entered this case because of a report about the abuse to the DCFS hotline.

(3) The DCFS referred G.F. to Dr. Lorand for an examination, diagnosis, and evaluation about one month after the alleged abuse. He is a member of a child abuse protection unit at the hospital and has testified several times for the prosecution as an expert witness in child abuse cases. He often cooperates with law enforcement agencies by finding the least traumatic method of diagnosis and treatment for the alleged victim, but has no specific interest in enforcing sexual abuse laws against defendants.

Judge: I will hear argument concerning the admissibility of the testimony of the three witnesses.

1. What are the defense’s best arguments for inadmissibility of the testimony of each witness?

2. What are the prosecution’s best arguments for admissibility of the testimony?

3. What facts should the judge rely on when making his decision?

4. What are the proper rulings?

7.56 The defendant Grant is charged with conspiracy to possess with intent to distribute cocaine. The prosecution’s evidence shows that Wilson negotiated with Mozas to bring the cocaine in from Jamaica. In fact, Mozas was an undercover drug agent. On the day of the cocaine sale, Wilson was in the company of Grant. When Wilson was arrested, Grant fled the scene, but later was arrested.

At trial, agents testify Grant was in Jamaica with Wilson and that when they returned to Florida Grant drove Wilson to the residence of the undercover agent. Agent Mozas testifies that during the course of the conspiracy Wilson told him he was with a partner in Jamaica and that his partner would assist him in distributing the cocaine. Wilson did not refer to his partner by name.

After the prosecution rests, the defense lawyer offers an affidavit he had obtained from Wilson in Jamaica, after the conspiracy ended. It contains Wilson’s sworn statements that Grant had no knowledge of Wilson’s drug sale conduct and that Wilson falsely told the agents he had a partner because he did not want them to think he was acting alone.

Prosecutor: I object to this affidavit. It is not impeaching because Wilson never used Grant’s name. In addition, the affidavit is unreliable hearsay.

Judge: I will hear argument of counsel.

1. What are the prosecutor’s best arguments for barring the affidavit?

2. What are the defendant’s best arguments for using the affidavit?

3. What are the proper rulings?

7.57 Plaintiff Jones has sued Biomed Inc., alleging Nopain, the arthritis medicine it manufactured, caused her permanent and severe nerve damage. Biomed denies its product caused the nerve damage suffered by the plaintiff.

The case is now on trial. During the plaintiff’s case, counsel presents the evidence deposition of Dr. Swenson, an eminent neurologist. Dr. Swenson now resides in Sweden and refuses to return for trial. In his deposition, Dr. Swenson opines that Biomed’s Nopain caused Ms. Jones’ nerve damage.

After the deposition is read, defense counsel, out of the jury’s presence, informs the court she has three items of evidence to present in connection with Dr. Swenson’s deposition testimony. They are:

(1) An excerpt from a medical treatise written by Dr. Samuel Armstrong, a renowned American neurologist, in which he states the ingredients that are used to make Nopain are benign and cannot cause nerve damage.

(2) A deposition given by Dr. Swenson in another case, where he was asked this question and gave this answer:

Q. Is Nopain a safe drug?

A. I believe it can be taken with little or no risk of nerve damage.

(3) A witness who will testify he observed Dr. Swenson make false entries in a patient’s medical records shortly before the doctor left for Sweden.

Plaintiff: I object to all of this. These questions should have been asked at Dr. Swenson’s deposition. Besides, they would be improper then and they are improper now.

Judge: Defense, why do you think this evidence should be heard by the Jury?

1. What are the best arguments for admission of the defense evidence?

2. What are the best arguments against their admission?

3. What are the proper rulings?


7.58 The defendant, Sam Jones, is charged with aggravated assault. Before trial, the defense moves to bar admission of a recording of a 911 call to a police operator made by the alleged victim on the day of the offense. The caller cannot be found. Defense counsel contends that admission of the recording would violate her client’s Sixth Amendment right to confront the witness and that the recording is inadmissible hearsay.


At the hearing on the motion, the recording is played for the trial judge:


911 Operator: Can I help you?

Caller: My boyfriend, Sam Jones, is trying to break the door down. He says he is going to beat me. Please help me. My name is Victoria Smith and I live at 4243 South Harding.

911 Operator: [After a 20 second pause] Okay, help is on the way. Stay on the line. What is he doing now?

Caller: I told him the police are coming. He ran down the stairs. I saw him pull away in his Chevrolet. His license is 6575.

911 Operator: Did he do or say anything else to you before he left?

Caller: Yes. He said if I gave the police his name he would come back and beat me. I still have the red marks on my neck from when he choked me yesterday.


Judge: Prosecution, any response to the defense objection?


1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?


7.59 The defendant, Ralph Johnson, is on trial for the murder of his girlfriend, Louisa. Johnson claims self-defense. At trial, Johnson testifies that during an argument about whether he had been seeing another woman, Louisa reached into her purse, took out what looked like a knife, and came running towards him. That’s when he reached into a drawer, pulled out a handgun, and fired the fatal shot.


In rebuttal, the prosecutor calls a police officer, Terry Murphy:


Q. (By prosecutor) I call your attention to the day before Louisa was shot. Did you see her that day?

A. Yes. We were patrolling the neighborhood when we saw her sitting on the stairs of her house, where she lived with the defendant. She was crying and nearly hysterical. We stopped our vehicle, exited, and asked her what was wrong.

Q. What did she say to you?

Defense: Objection. May we be heard at the bench?

Judge: Yes. [Counsel come to the bench] Mr. Prosecutor, what do you expect the witness to say?

Prosecutor: I expect Officer Murphy to say that Louisa told him that Ralph Johnson had just choked her and thrown her out of their house, and that she had nowhere to go because she was afraid to go back inside the house. Officer Murphy asked her if she would make a complaint, but she refused. So they left.

Judge: Defense, what’s the basis for your objection?


In rebuttal, the prosecutor also calls Margaret, a close friend of Louisa, who testifies:


Q. (By prosecutor) I call your attention to the day before Louisa was shot. Did you see her that day?

A. Yes. She came to my apartment about three that afternoon. She was crying and nearly hysterical. I live downstairs from her and Ralph.

Q. What did she say to you?

Defense: Same objection, Your honor. May we be heard at the bench again?

Judge: Yes. Please approach. [Lawyers come to the bench] What is the witness going to say?

Prosecutor: I expect her to say that Louisa told her Ralph Johnson had just choked her and threw her out of their apartment, and that she had nowhere to go because she was afraid to go back to the apartment.

Judge: Defense, what’s the basis for your objection?


1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?


7.60 The defendant, Peters, is charged with driving a vehicle while knowing or having reason to know that his driver’s license had been revoked. The defendant claims he did not know that his license had been revoked.


At trial, during the prosecution’s case-in-chief, the following happens:


Prosecutor: Your Honor, I now offer Prosecution Exhibit C into evidence. It is a document entitled “Affidavit of Regularity - Proof of Mailing,” prepared by an employee of the Department of Motor Vehicles. It explains the Department’s ordinary mailing procedures for license revocation notices, and a statement from the official that on information and belief the ordinary procedures for mailing, as described in the affidavit, were followed in this case. It’s an official record of DMV.

Defense: I object on Sixth Amendment grounds. How can I cross-examine an affidavit?

Judge: I will hear argument out of the presence of the jury.


1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?


7.61 The defendant, Hale, is charged with driving under the influence of alcohol. The breath test technician, Sandra Smyth, had administered the breath test and prepared the breath test affidavit. It showed that the defendant’s blood alcohol level was well above the legal limit when he was tested shortly after his arrest.


During the prosecution’s case, the following happens:


Prosecutor: Your Honor, at this time we offer Prosecution Exhibit 4, the affidavit of technician Sandra Smyth.

Defense: I object. She should be called as a witness so I can cross-examine her.

Judge: Where is Ms. Smyth?

Prosecutor: I assume she is in her office. According to the statutes of this state the affidavit is admissible without further authentication and is presumptive proof of the results of an authorized test to determine defendant’s blood alcohol level. We don’t have to call her as a witness.

Judge: That is what the statute says. Defense, exactly what is your objection?


1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?


7.62 Dan Goodling is charged with the murder of his ex-girlfriend, Brenda, outside the garage of his grandmother’s house. A prosecution witness testifies at trial to hearing Goodling and Brenda speaking to each other, then hearing Brenda yell “Granny,” followed by a series of gunshots. The witness then saw Goodling standing near Brenda, who was on the ground. She had been shot six times.


At trial, Goodling testified and admitted the shooting, but claimed that Brenda had threatened him and then charged at him. Thinking she had something in her hand, he shot her in self-defense.


After the defense rested, the following happens out of the presence of the jury:


Prosecutor: Your honor, I intend to call Officer Murphy, who will testify that three weeks before the shooting he responded to a call from Brenda. She was crying. She told the officer that Goodling had accused her of having an affair, then grabbed her by the shirt, lifted her off the floor, and began to choke her. When she broke free, she fell to the floor, and Goodling punched her. After she broke free again Goodling opened a knife, held it near her, and threatened to kill her if he found her cheating on him. The statutes of this state allow out-of-court statements of a declarant concerning physical abuse when the declarant is unavailable to testify at trial.

Defense: I object.

Judge: What’s the basis for your objection?


1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?


7.63 The defendant Juan Lopez is charged with smuggling illegal aliens from Mexico into the United States. The case began when Border Control Agents apprehended three men coming across the border. On being questioned the three men admitted they were illegal aliens and each said Juan Lopez brought them to the border and arranged the crossing. The aliens asked for and received permission to return to Mexico. They left and were not seen again by the agents. Their statements were inserted into the Agents' Form 1-826, which is a field encounter form required by the Agency whenever an illegal alien is questioned.


At trial, the prosecution notifies the defense that it will offer into evidence the Form 1-826 for the purpose of presenting the aliens' statements to the jury.


Defense: I object. That violates my clients Sixth Amendment right to confront witnesses against him and it violates the rule against hearsay.


Judge: Mr. Prosecutor, what is your response?


1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?


7.64 Rocky Schmidt is charged with the murder of Sam Kirk. The report prepared by Detective Joseph Dunne states that on July 1, [-2], Dunne received a call from an unknown person saying that a man was lying in an alley behind 2600 West 16th Street. He and fellow officers went to the alley. They found Sam Kirk lying on his back. There were several stab wounds on his left arm and right shoulder. He was bleeding and moaning. After calling for an ambulance, Dunne asked Kirk to tell him what happened. Kirk said;

"I had an argument with Rocky Schmidt at his home, about a mile from here, maybe 20 minutes ago. He just pulled out a knife and started stabbing me. When he turned around, I ran away and got this far. I didn't see him again."

Kirk died at the hospital two hours later. Schmidt was arrested six weeks later and charged with murder.

At trial, Detective Dunne is called as a witness. On direct examination, after he identifies himself and describes what he saw when he arrived at the alley behind 2600 West 16th Street, he is asked:

Q: Did you ask Mr. Kirk what happened to him?

A: Yes.

Q: What did he say?

Defense: I object. That question calls for hearsay and it violates my client's Sixth Amendment rights.

Judge: Mr. Prosecutor, what is your response?



1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?



7.65 Felix Fletcher is charged with the stabbing and murder of Martha Jones. Pretrial discovery reveals that a bloody knife was found at the scene of the killing. Testing showed the blood did not belong to the victim. The blood was sent to the State Crime Laboratory for testing. Testing took place one week after the killing. In a signed and certified report laboratory technician Barney Powell described the blood by type, marker and biologic composition. He concluded that the blood was AB Positive. Powell's report was sent to the City Police Department laboratory three weeks later. City Laboratory Director Dr. William Melton, a qualified chemist who had determined the victim's blood type, reviewed the report and compared its findings to samples obtained in other cases, including an arrest of Felix Fletcher two years earlier. Fletcher's blood type was AB Positive. He concluded that the blood from the knife matched the blood taken from Fletcher.

Until then, Fletcher was not a suspect in the Martha Jones murder. Dr. Melton reported his findings to City police detectives, who then searched for and arrested the defendant.

After trial began the prosecution learned Barney Powell was ill and could not attend the trial. It notified the defense that Dr. Melton would be called to testify to his findings and conclusions and to Powell's findings and conclusions. Dr. Melton also will testify the blood samples "are a match." The prosecution says Powell's report will not be offered into evidence.

The defense files a motion to exclude any testimony using the Powell report, contending it would violate his client's Sixth Amendment Confrontation Clause rights.


Judge: Mr. Prosecutor, what is your response to the defendant's motion?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?




CHAPTER 8

Direct Examination of Witnesses:
Policy Exclusions and Privileges

8.1 This is a personal injury case. The plaintiff, a passenger on a cruise ship, was injured when an automatic sliding door closed quickly and ran over her foot.

Plaintiff plans to call several witnesses, other passengers on the cruise, who will testify that, following her injury, the door was kept propped open for the remainder of the cruise. Defendant then moved in limine to preclude the testimony. At a pretrial hearing on the motion, the trial judge ordered the testimony excluded.

The case is now on trial. During the defense case, the videotaped deposition testimony of a ship’s officer was admitted in evidence (the officer was unavailable at trial) and shown to the jury. The officer testified that he inspected the door immediately after the accident, and determined that the door was operating normally.

After the defense rested, the following happens outside the presence of the jury:

Plaintiff: Your honor, in our rebuttal case we now move to allow the testimony of the eyewitnesses previously precluded from testifying in our case-in-chief. In light of the defense evidence, their testimony should now be admissible.

Judge: Defense, any objection?

Defendant: Yes, your honor.

Judge: What’s the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

8.2 This is a products liability case. The plaintiff claims he was injured while using a power saw to cut 2” by 4” beams. Plaintiff claims the saw was manufactured by the defendant, and the design of the saw without a lower blade guard was unreasonably dangerous. The defense is that the design of the saw was reasonably safe and that the plaintiff's misuse of the saw caused his injury.

Plaintiff plans to introduce three items in evidence at trial:

(1) An Underwriters Laboratory safety standard, issued after the saw that injured the plaintiff was manufactured but before the plaintiff was injured. The standard required a lower blade guard on power saws of the type that injured the plaintiff.

(2) Evidence that the defendant added a lower blade guard to the saws it manufactured after Underwriters Laboratory issued the new safety standard but before plaintiff was injured.

(3) Evidence that two other persons using the same saw while cutting molding had also injured their hands. These two accidents occurred after plaintiff's accident.

Plaintiff also plans to call an expert witness at trial who will testify that the design of the electrical saw was unreasonably dangerous. The bases for the expert’s opinion are, among other things, the above three items.

At a hearing on the defendant's motion in limine, the following happens:

Judge: This is the defendant's motion to preclude certain items of evidence at trial, and to bar plaintiff’s expert from referring to those same items during his trial testimony. Defense, what’s your argument?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

8.3 This is a negligent design and products liability case brought by a motorcyclist against a motorcycle manufacturer. The motorcyclist was involved in a collision with an automobile, which severely injured her leg, requiring its amputation. Plaintiff contends that the motorcycle’s defective design caused her injuries to be greater than would be expected from that type of collision. Defendant contends that plaintiff's injuries were caused solely by the negligence of the automobile driver, not by any design defect of the motorcycle.

Before trial plaintiff settled with the other co-defendant, the driver of the automobile. The settlement was for $60,000, the policy limit of the driver's insurance. Plaintiff and the driver executed a general release that explicitly released the driver from liability for the accident.

At trial the remaining defendant, the motorcycle manufacturer, intends to introduce evidence of plaintiff's settlement with and general release of the driver. At a hearing on plaintiff's motion in limine to preclude this evidence, the following happens:

Judge: Plaintiff, it’s your motion to preclude. Why should this evidence be kept out, given the issues that exist in your remaining case against the defendant manufacturer?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

8.4 This is a medical malpractice action brought by the plaintiff whose husband died of a massive heart attack at age thirty-three. The defendants are several doctors who examined her husband but failed to diagnose his heart problems. One group of doctors was the doctors who treated the deceased from [-4] to [-2] in his hometown in Vermont; the other group was the doctors who examined the deceased at a clinic in New Hampshire in [-2], one month before his death.

Plaintiff retained another doctor, Markowitz, as her expert witness. Markowitz was deposed twice, once before any settlements had been reached, and again after the plaintiff settled with the Vermont doctors. In his first deposition, Markowitz testified that the deceased's death was caused by the Vermont doctors’ negligent failure to diagnose the deceased’s heart condition, and that the New Hampshire doctors were not negligent. In his second deposition, Markowitz testified that the New Hampshire doctors also were negligent. During that second deposition, defendants’ lawyers asked Markowitz about the partial settlement of the case between the plaintiff and the Vermont doctors, and Markowitz said that he was aware of it.

The case is now ready for trial. Markowitz is unavailable as a witness, and plaintiff intends to introduce Markowitz's second deposition in evidence. Before trial, plaintiff moves in limine to preclude that part of Markowitz’s deposition that contained the questions and answers about the partial settlement with the Vermont doctors. At the hearing on the motion, the following happens:

Judge: Plaintiff, this is your motion to preclude. What’s the evidentiary basis for your motion?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

8.5 Plaintiff, owner of a tugboat, sues defendant, a marine construction company, for negligence. Plaintiff hired the defendant to convert the tugboat into a fish-processing boat.

In January, while the conversion work was already underway, plaintiff and defendant signed a written agreement to govern the balance of the work. The agreement contained a “red letter” clause, which exculpated the defendant from all risks of loss or damage during the conversion work. One day after signing the agreement, plaintiff obtained a builders' risk insurance policy on the boat. In May, one of the defendant's employees, who was doing welding work on the boat, caused a fire that destroyed it.

Plaintiff was deposed during the discovery phase. Plaintiff testified that the written contract was never mutually agreed upon, and that, despite signing the contract, he did not believe it to be binding and enforceable.

Before trial plaintiff filed a motion in limine to bar evidence of the existence of the builder's risk insurance policy plaintiff had obtained. At the hearing on the motion, the following happens:

Judge: Plaintiff, it’s your motion. Why should evidence of your insurance be precluded under the facts of this case?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

8.6 This is a personal injury case. Vandermeer was driving a truck loaded with apples eastbound on Interstate 80. Clarke, a college student on spring break, was driving a car from California to Wisconsin for Auto Driveaway Company, which transports automobiles nationwide.

Vandermeer claims that as she attempted to pass Clarke’s car, the car drifted into her lane of traffic, causing her to lose control of her truck. The truck ran off the road, and Vandermeer, believing the truck might explode, was injured jumping out of the driver's side window.

Vandermeer sues both Clark and Auto Driveaway. Vandermeer claims that Clarke was negligent in operating the car, and that Auto Driveway is vicariously liable for Clarke’s negligence since Clarke was acting as its employee at the time of the accident. Auto Driveaway claims that Clarke was an independent contractor, so that any negligence by Clarke cannot be imputed to Auto Driveaway.

At trial plaintiff plans to introduce in evidence the deposition of the car’s owner. Defendant Auto Driveaway files a pretrial motion to bar portions of the deposition. At a hearing on the motion the following happens:

Judge: What specific portions of Mr. Wolfe’s deposition are you objecting to?

Defense: Starting on page 33, Mr. Wolfe testifies about a conversation he had when he first called Auto Driveaway. Specifically, he asked whether Auto Driveaway had insurance that would protect somebody else that might get hurt by the driver of their car during the time it was being driven from California to Wisconsin, and he was told that they had insurance coverage for that.

Judge: What’s improper about that?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

8.7 This is a civil case brought by First Financial against its insurer, American Casualty, arising out of the actions of the bank’s vice president, Farmigoni.

In [-2] Farmigoni issued a letter of credit in the amount of $200,000 to another bank, First National. When First National later presented the letter of credit for payment, First National refused, on the basis that Farmigoni had fraudulently issued the letter of credit. First National then sued First Financial for dishonoring the letter of credit.

First Financial in turn sued Farmigoni for fraud, and American Casualty, which had issued a directors and officers liability insurance policy to First Financial, for failing to pay on the policy. American Casualty's defense is that the insurance policy contained an exclusion from coverage for any losses “brought about by the dishonesty of the directors or officers” of the bank. In a parallel criminal prosecution, Farmigoni was indicted for fraud, and later entered a plea of nolo contendere to the charges.

At trial American Casualty intends to introduce evidence of Farmigoni’s nolo contendere plea in the criminal case to prove that the policy exclusion applies. First Financial objects. At a hearing on the objection, the following happens:

Judge: Counsel, what’s the basis for your objecting to Farmigoni’s nolo plea?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

8.8 Defendant, Acosta, and other co-defendants are charged with conspiracy and possession of cocaine with intent to distribute. The defendants were arrested after delivering cocaine to an undercover police officer, Detective Medrano.

Before trial, Acosta and his lawyer had a meeting with the prosecutor and Detective Medrano to discuss Acosta’s possible cooperation and eventual guilty plea agreement with the prosecution. At that meeting Acosta said he previously knew Carranza, a co-defendant, and knew that Carranza was bringing the cocaine from Arizona.

The case is now on trial. In the defense case, Acosta testifies. On direct examination, Acosta said that he had met Carranza for the first time the night before the drug sale took place. On cross-examination, the following happens:

Q. (By prosecutor) Isn’t it true that you told Detective Medrano before trial that you knew Carranza from before the time this deal was made?

A. No. I only met him the night before.

After the defense rests, the prosecution calls Detective Medrano as a rebuttal witness. The following then occurs:

Defense: Your honor, before this witness testifies, may we be heard?

Judge: Yes. Come to the bench. [Lawyers approach.]

Defense: Your honor, I believe the prosecution is calling the detective solely to testify about the plea discussion he had with my client before trial.

Judge: Is that true?

Prosecutor: Yes, your honor. We intend to use Detective Medrano as a prove up witness.

Judge: Defense, what’s the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

8.9 This is a Title VII case in which a female city employee is suing the city and a former co-worker for sexual harassment. Plaintiff claims that while she was an employee of the city's public works department, a co-employee repeatedly sexually harassed her, and that the city failed to stop it. She claims that as a result of this sexual harassment she suffered severe emotional distress and was required to undergo numerous hospitalizations and long-term psychiatric treatment.

During discovery the defense obtains the plaintiff's psychiatric medical records and learns that the plaintiff has a history of other incidents of sexual abuse that predate the alleged incidents with the co-worker. Plaintiff moves in limine to preclude the admission of this sexual abuse history at trial. At the hearing on the motion, the following happens:

Judge: This is the defendant's motion to preclude certain psychiatric evidence at trial. Defense, what’s your argument?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

8.10 Defendant is charged with aggravated sexual abuse of a nine-year-old girl. The defendant is the boyfriend of the girl’s older sister, and lived in the same household as the girl and her family. The claimed sexual assault happened in February.

Approximately six months later, in August, the victim's older sister found the girl alone, and partially undressed, in a room with a seventeen-year-old boy.

Before trial the prosecution moves to preclude the introduction of this evidence at trial, either during the cross examination of the victim or during the defense case. At the hearing on the motion, the following happens:

Judge: Prosecution, what’s the basis for your motion?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

8.11 This is a civil contempt proceeding brought in federal court. A witness, Emo, was subpoenaed as a witness before a federal grand jury. Before the grand jury Emo refused to testify about any matters pertaining to her husband, Schmatz.

Emo and Schmatz had lived together for two years, when federal agents questioned Emo about Schmatz. Soon after, Emo was served with a subpoena to appear before the grand jury. Five days before the appearance date, Emo and Schmatz married. When Emo appeared before the grand jury, she asserted the marital privilege and refused to testify about Schmatz.

The government then moved the federal district court for an order compelling Emo to testify and answer questions about her husband. At the hearing on the motion to compel, the following happens:

Judge: This is the prosecution’s motion to compel certain testimony from a grand jury witness. Why should Emo’s assertion of the marital privilege not be enforced?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

8.12 This is a wrongful levy case brought against the United States in federal court for the improper seizure of a speedboat. The government seized the boat to sell it and satisfy a tax assessment previously obtained against Mr. Martenson. Martenson’s mother alleges that she is the owner of the boat, and she filed this claim against the government. The government claims that Mr. Martenson is the true owner of the boat, and therefore the boat validly can be seized to satisfy the tax assessment against him.

At the same time, Mr. Martenson was facing federal criminal RICO and mail fraud charges. If the government obtained a conviction, the speedboat could be seized under the forfeiture provisions of the RICO statute.

During discovery the government deposed Martenson’s wife in an attempt to learn what she knew about the purchase, transportation, and custody of the boat. At the deposition Mrs. Martenson gave her name, her husband’s name, and the fact of their marriage. To all other questions, she asserted the marital privilege and refused to answer.

The government now moves to compel her testimony. At a hearing on the matter, the following happens:

Judge: The burden is on a person asserting a privilege to establish that the privilege can be validly asserted under the circumstances. Here the privilege is being asserted by Mrs. Martenson. Why can it be validly asserted here?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

8.13 The defendant is charged with voluntary manslaughter for beating and causing the death of his two-year-old stepdaughter, Jasmine. The defendant’s wife was serving in the Army and Jasmine was in the defendant’s care during that time. The charge was brought in federal court because the events occurred on a military base. Since these events the defendant and his wife have separated, although they are not formally divorced.

The defendant’s wife told prosecutors that, shortly before Jasmine died, she got into an argument with the defendant over his taking care of Jasmine. During that argument the defendant “said that he was tired of keeping Jasmine and that if I left her with him again, he would kill her and then he would have to kill me too.” The defendant’s wife said she was willing to testify at trial.

Before trial defendant moved in limine to bar the testimony of Mrs. White about the conversation she had with the defendant. At the hearing on the motion, the following happens:

Judge: This is the defendant’s motion to preclude evidence based on the existence of a privilege. Defense, what’s your argument?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

8.14 The defendant, a doctor, is charged with several counts of income tax evasion. The charges are brought in federal court.

The events on which the charges are based began in [-5] when the defendant’s wife, Smith, discovered that the defendant was having an affair with his secretary. Smith then filed for divorce.

About three months later, Smith called the IRS, met with an IRS agent, and related how the defendant had used her to underreport income from patient payments for the past three years. According to Smith, the defendant told her to record all patient payments on paper slips, after which she would record some of the payments (the ones he designated) in a stenographer’s notebook, the rest in a ledger book. The defendant would then destroy the paper slips. Only the payments recorded in the ledger book were later reported as income on the defendant’s tax returns.

The IRS began investigating the defendant, and issued a summons to the defendant to produce his corporate records. Shortly afterwards, Smith told the IRS agents that the defendant had met with her and his current secretary and told them to erase entries in his appointments books, since an IRS agent was going to audit his books in a few weeks later.

Following a lengthy investigation by the IRS, the defendant was indicted in [-3]. By that time Smith's divorce from the defendant had become final.

The defendant filed a pretrial motion to suppress Smith's anticipated testimony based on what she had previously told the IRS agents. At a hearing on the motion, the following happens:

Judge: Counsel, you’re seeking to suppress Smith's expected testimony about the claimed underreporting scheme and the claimed erasures in the appointments books, right?

Defense: That’s correct, your honor.

Judge: Tell me why that testimony is privileged.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

8.15 The defendant is charged with possession of marijuana. The marijuana was found when DEA agents executed a search warrant at the defendant’s house.

When the house was searched, the defendant’s wife was present. She was arrested and questioned. She told the agents that she knew the marijuana was in the house, and that her husband told her he was holding the marijuana for someone else. Only the husband was formally charged with possession.

Before trial the defendant moves to bar his wife’s testimony, asserting both the spousal bar privilege and marital communications privilege. At a hearing the following happens:

Judge: Since the defendant is asserting a privilege, it is the defendant’s burden to demonstrate that the privilege can properly be asserted under the circumstances. Defense, I’ll hear from you first.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

8.16 This is a complex patent infringement case brought in federal court. The plaintiffs have refused to produce numerous documents requested in defendant's requests to produce documents, on grounds of attorney-client privilege. The defendant moves to compel disclosure of the documents. The district judge transferred the dispute to a magistrate judge for decision. At a hearing before the magistrate judge, the following happens:

Judge: I just received this matter a few days ago. As best I can tell from the defendant’s documents requests and the plaintiff's response and objections, we=re talking about thousands of documents, is that right?

Plaintiff: Probably several thousand, your honor.

Judge: I’d like to hear from both sides on two issues. First, how should this dispute should be handled procedurally? Second, what privilege law applies?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

8.17 Defendant and other co-defendants were charged with conspiracy to possess and transfer illegal firearms. The charges are brought in federal court. He later entered a guilty plea, on the advice of his attorney, Feldman. Later, he retained another attorney and moved to withdraw his guilty plea on the ground that Feldman had failed to disclose to him the nature and consequences of his guilty plea.

Both parties agreed that it was necessary for Feldman to testify at the hearing to determine if the guilty plea should be withdrawn. The defendant expressly waived his attorney-client privilege and allowed Feldman to testify at the hearing.

Feldman then testified that the defendant had initially denied any involvement with the charges, but that after the defendant listened to a tape recording and learned of other evidence showing that the defendant had participated in several crucial meetings and conversations with his co-defendants, the defendant considered the possibility of a guilty plea and ultimately agreed to change his plea. However, because of other findings, the guilty plea was set aside, and the case was given a trial date.

The prosecution then subpoenas Feldman for the upcoming trial. The defense objects. At the hearing on the matter, the following happens:

Judge: Counsel, your objection is based on the existence of an attorney-client privilege. Hasn’t that already been waived?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

8.18 This is a breach of contract case. Plaintiff is a lumber company. The defendant is a roofing products company. The contract involved the sale of land from defendant to plaintiff, and had provisions for dealing with environmental contamination issues that may arise in the future.

Scott is an officer of the defendant company and one of its in-house lawyers. Scott spends part of his time working on the company's business matters, the other part working on legal matters.

The defendant’s president asked Scott to look at the proposed contract, which was being negotiated, assess the environmental provisions to determine what exposure the company had, and to negotiate on behalf of the company the final terms of the environmental provisions. This Scott did. After the final contract was executed, Scott reported back to the president about which environmental concerns were covered by the contract and which ones were not, and gave the president an assessment of the exposure the company had under the contract to environmental contamination problems in the future. Scott put his assessment in a memo, and copies were sent to the president and the other employees who were negotiating other provisions of the contract.

After the complaint was filed, plaintiff took Scott’s deposition. During the deposition Scott was asked about any conversations he had with the company president about the environmental provisions of the contract, both before and after the contract was signed. To every question the defense objected on the grounds of attorney-client privilege and directed Scott not to answer. Scott was also directed in the deposition notice to produce any memos he wrote about this subject, and the defense objected and refused to provide the memo.

Plaintiff then moved to compel Scott to answer those questions and to produce the memo. At the hearing on the motion, the following happens:

Judge: Plaintiff, this is your motion. Why aren’t the conversations between Scott and the company president, and the memo regarding those conversations, covered by the attorney-client privilege?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

8.19 This is a theft of trade secrets case. Plaintiff, Mid-Continent, is the maker of a gasoline additive. Defendant, Track Oil, is a competitor. Track Oil hired Mid-Continent's former employee, Block, a chemist who had engineered Mid-Continent’s gasoline additive. Mid-Continent claims that Track Oil hired Block to obtain the secret formula for Mid-Continent's gasoline additive so that Track Oil could produce a competitive product.

The head of Track Oil's chemical engineering department is McCoy, who hired Block. McCoy is not a corporate officer or board member of Track Oil, but as head of the engineering department has total managerial authority over the operation of his department. McCoy reports directly to the company's vice-president of research, who in turn reports directly to the company president.

Before this lawsuit was filed, Track Oil's in-house general counsel asked McCoy about the Block hiring. In response, McCoy wrote a memo to the general counsel. The memo, entitled “Memo to Counsel,” states: “I made Block’s hiring a priority and was told to do whatever was necessary to bring him on board. Block has intimate knowledge of Mid-Continent’s gas additive formulation and has been invaluable in helping us put a competitive product on the market.” McCoy sent a copy of the memo to Track Oil’s vice-president for research.

After the lawsuit was filed, Mid-Continent sent Track Oil a Notice to Produce Documents, asking for the production of all documents relating to Block’s hiring. Track Oil produced Block’s applicant file, but not the McCoy memo. As to the memo, Track Oil acknowledged the existence of the memo, but refused to produce it, stating that the memo had been sent to the law firm handling this litigation, and was privileged.

Before trial Mid-Continent makes a motion to compel production of the memo. Track Oil objects. At a hearing on the motion, the following happens:

Judge: This is the defendant’s motion to compel production of the McCoy memo. Why is this memo discoverable?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

8.20 This is a copyright infringement case that was filed in federal court in [-1]. Pretrial investigation revealed that the plaintiff had a history of mental illness.

In [-5] plaintiff had severely beaten a woman, leading to criminal charges. Plaintiff filed the defense of temporary insanity to the criminal charges. During this time plaintiff received psychiatric treatment for a bi-polar disorder. To substantiate his temporary insanity defense, plaintiff provided records from a mental institution where he had been receiving treatment and the clinical evaluations of his treating psychiatrists. The criminal charges were later dismissed.

Now, in the copyright infringement case, two issues arise. First, plaintiff was deposed and in his deposition refused to answer questions about his earlier treatment at the mental institution, asserting the doctor-patient privilege. Second, the defense sent documents requests to the plaintiff asking for all records of any other psychiatric treatment the plaintiff received, other than that at the mental institution, and the plaintiff objected, asserting the doctor-patient privilege.

The defense moves to compel plaintiff’s answers to deposition questions and responses to its documents requests. At the hearing on the motion, the following happens:

Judge: Counsel, I need guidance on several issues. Can the court recognize a privilege here? Has there been a waiver of the privilege? If there is a waiver, how extensive is it? I=d like to hear from the plaintiff first, since the party asserting a privilege has the burden of demonstrating the existence of a valid privilege.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

8.21 This is a sexual harassment case brought in state court in which plaintiff alleges a hostile work environment at her place of employment, the County Sheriff's Department. In addition to the department, other named defendants include Fitz, another employee of the sheriff's department. Plaintiff claims that Fitz, among others, created the hostile work environment.

After plaintiff made the allegations, the sheriff’s department conducted an investigation. Among the documents generated during this investigation is a “Fitness for Work” evaluation of Fitz that was prepared by mental health professionals. The evaluation includes the reports of psychiatrists who examined Fitz. The evaluation was sent to the sheriff.

During discovery plaintiff sent a documents request to the defendants requesting a copy of Fitz's evaluation. Both the sheriff's department and Fitz objected to the request, asserting the doctor-patient privilege. At the hearing on plaintiff's motion to compel, the following happens:

Judge: Counsel, I’ll need a full analysis of the privilege issues that exist here before I can rule on the motion. Defense, it's your burden on the privilege issue, so you go first.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

8.22 Plaintiff sued Hawaiian Cruises under the Jones Act (46 U.S.C. 688) for injuries he suffered while working aboard the cruise line's ship.

The case is now on trial. In the plaintiff's case-in-chief, he calls to the stand as an adverse witness an officer who was a member of the ship’s safety committee. During adverse examination, the following happens:

Q. (By plaintiff) Did the ship have a procedure for protecting the safety of its crew members?

A. Yes, we did. We conducted routine safety investigations.

Q. Did your committee meet to discuss those safety investigations?

A. Yes, we met regularly.

Q. Were minutes kept at those meetings?

A. Of course.

Plaintiff: May I be heard at sidebar, your honor?

Judge: Yes. [Lawyers come to the bench.] Didn’t I rule before trial those minutes were protected by the privilege for self-critical analysis?

Plaintiff: Yes, you did. Now I am asking you to change your ruling.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

8.23 This is a federal civil rights case brought against a Salt Lake City police officer, Hicks, in federal court. Plaintiffs, husband and wife, claim that Hicks used excessive force in arresting the husband and injured him. Hicks had been dispatched to the plaintiffs’ home following a report of a domestic altercation at that address.

Following his arrest, the husband filed a complaint with the Salt Lake City police department, which then began an internal investigation of Hicks, which could lead to further disciplinary proceedings.

Hicks then sought assistance from the Police Association, the police officers’ union. The president of the association, Nelson, another police officer, assisted Hicks. Hicks and Nelson had a number of conversations while the police department was investigating the complaint. There is an agreement between the Salt Lake City police department and the Police Association that any conversations between a police officer and a representative of the Police Association, held because the police officer was being investigated by the department, would be confidential. During later disciplinary hearings no attempt was made to obtain these conversations.

Plaintiffs in the civil case now subpoena Officer Nelson for his deposition. The subpoena includes a command that Nelson produce any written records of his conversations with Hicks. Nelson’s lawyer moves to quash the subpoena. At the hearing on the motion, the following happens:

Judge: Counsel, what is the legal basis for your motion to quash the subpoena directed to Officer Nelson?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

8.24 George Newman, a deckhand on the barge owned by the defendant, Consol, fell to the bottom of the barge when a rope he was using came apart. He sues the barge owner under the Jones Act.

The issue at trial centers on the condition of the rope at the time Newman fell. Newman claimed the rope was old and worn, rendering the barge unseaworthy. Truntich, an assistant foreman for the defendant company, testified he observed the rope after the accident and thought it had been freshly cut. The defendant’s expert testified the rope had been cut with a sharp instrument, except for a few strands on the outside which could have broken under tension.

In rebuttal, the following happens out of the presence of the jury:

Plaintiff: Your Honor, I now offer into evidence Plaintiff’s Exhibit No. 26, a Consol safety memo prepared five days after the accident. It states that an employee fell after a rope broke and it warns all employees to inspect ropes carefully before using them. The employee referred to in the memo is Mr. Newman.

Defense: I object to that memo. It is a subsequent remedial measure.

Judge: Plaintiff, why isn’t this memo barred by Rule 407?

1. What are the best arguments for admissibility of the memo?

2. What are the best arguments against admission of the memo?

3. What is the proper ruling?

8.25 This is a federal securities class action involving accounting fraud claims asserted by Cendant against Ernst & Young. Cendant deposed Wood, a former Ernst & Young senior manager who prepared the relevant Cendant financial statements. Before the deposition, Cendant learned that Ernst & Young’s attorney had retained Dr. Phillip McGraw of Courtroom Sciences, Inc., as a consulting expert in trial strategy and deposition preparation. At the deposition, the following happens:

Q. (By Cendant’s lawyer) Did you speak with Dr. Phillip McGraw before his deposition?

A. Yes, at my lawyer’s office.

Q. Did Dr. McGraw provide you with guidance in your conduct as a witness?

Ernst & Young attorney: I object on the grounds of work product. Don’t answer that question.

Q. Did you rehearse any of your prospective testimony in the presence of Dr. McGraw?

Ernst & Young attorney: Same objection.

Q. Did you review any work papers during this meeting?

Defense: Same objection.

Some time later, the parties appeared before the trial court for a hearing to determine whether Wood must answer Cendant’s questions.

Judge: Counsel for Ernst & Young, tell me why you believe the work product privilege applies to these questions.

1. What is the best argument to support applicability of the work product privilege?

2. What is the best argument to oppose the work product privilege?

3. What is the proper ruling?

8.26 While working at his job in a steel fabricating plant the plaintiff was injured when the machine he was using sliced off two of his fingers. He sues the manufacturer of the machine for money damages. He alleges the machine was defectively designed because it did not have a safety guard over the blades that caused the injury.

During discovery it is learned the plaintiff’s employer added a safety guard to the machine after the injury to the plaintiff took place. The defendant manufacturer files a motion in limine seeking exclusion of the addition of the safety guard. At a hearing on the motion the following happens:

Defendant: This would be an improper subsequent remedial measure. We make no claim that addition of the safety guard was not feasible and there is no issue of control.

Judge: Plaintiff, what is your response?

1. What is the defendant’s best argument in support of his objection?

2. What is the plaintiff’s best argument for admission of the evidence?

3. What is the proper ruling.


8.27 Dr. Stock sues Dr. Leon under the Age Discrimination and Employment Act. The lawsuit arises out of Dr. Stock’s sale of his dental practice to Dr. Leon. Dr. Stock had continued to work at the dental clinic, as required by the terms of the sale. Eventually, after a period of Dr. Stock’s declining revenue production, Dr. Leon fired Dr. Stock. Dr. Stock claims he was fired because of his age.


A few weeks before trial, Dr. Leon’s lawyers sent Dr. Stock’s lawyers a letter offering to reinstate Dr. Stock and to pay him on a percentage-based pay plan. Dr. Stock responded by asking for back pay and damages. The offer was then withdrawn.


At trial, in the plaintiff’s case-in-chief, the following happens:


Plaintiff’s counsel: I now offer into evidence Plaintiff’s Exhibits 14 and 15. These are two letters, one from the defendant’s lawyers to plaintiff’s lawyers, and the other a response to that letter. These concern an offer to settle this case and our response to that offer. We believe they are relevant because the defense intends to introduce evidence that Dr. Stock failed to mitigate his damages.

Defense counsel: I object. We have a right to offer evidence of a failure to mitigate. That doesn’t open the door to these letters.

Judge: Counsel, I’m going to hear argument out of the presence of the jury. Bailiff, please escort the jurors to the jury room. [Jurors leave the courtroom]


1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?




CHAPTER 9

Direct Examination of Experts

9.1 This is a products liability case brought by Kent's estate against the manufacturers of a floor sander and electric motor.

Kent was electrocuted on the job after his employer had replaced the electric motor on the sander. During the replacement, a ground pin had been removed from the sander, two fuses inside the sander had been bypassed with wire, and a retaining ring within the sander had become dislodged, allowing live current to come into contact with the user, Kent.

Plaintiff contends, and his expert, Professor Larky, opines that: (1) the manufacturers should have provided warnings not to operate the sander unless the power supply was properly grounded; and (2) the terminals should have been insulated and the cardboard by the retaining ring should have been extended to ensure the ring was fixed in place.

At a FRE 104(a) hearing Larky testifies that he is an electrical engineer and retired professor at Lehigh University, where he taught courses on electric motors and engineering design. However, he never has designed an electric motor like the one used in the sander, has never investigated the costs associated with implementing his proposed design changes, and has no work or teaching experience in warnings design.

At the hearing, the defendant challenges Larky’s qualifications to give his opinions to the jury and contends his proposed testimony is not scientifically reliable. The following happens during Larky’s cross-examination:

Q. (By defense) The injury was caused when the retaining ring fell, is that true?

A. Yes.

Q. Did you do anything to determine whether the ring fell because someone tampered with it?

A. No.

Q. Did you do anything to determine whether normal wear and tear caused the retaining ring to fail?

A. No.

Q. Those are all reasonable theories for explaining why the retaining ring fell, are they not?

A. I suppose so.

Q. Well, you can’t rule out either one of them, can you?

A. No.

Judge: I want to hear from both sides on defendant’s motion to bar the testimony of this witness.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

9.2 Plaintiff was a locomotive engineer for the defendant railroad. In this lawsuit he claims he suffered brain damage when he was exposed to diesel exhaust at a high altitude.

The case is now on trial in federal court. In his case-in-chief plaintiff calls Dr. Teitelbaum, a toxicologist, to testify to the causal connection between plaintiff’s exposure to the diesel exhaust and his current symptoms. During direct examination, the following happens:

Q. (By plaintiff) Doctor, do you have an opinion, based on a reasonable degree of medical and toxicological certainty, as to whether there is a causal relationship between plaintiff’s exposure to diesel exhaust and the symptoms you have described?

Defense: I object, on the basis of Daubert.

Judge: I believe there is sufficient foundation here for the jury to hear this testimony.

At the close of the trial, the jury found in favor of the plaintiff and awarded money damages. At a hearing on defendant’s motion for a new trial, the following happens:

Defendant: Your honor, respectfully, I believe you committed reversible error when you allowed Dr. Teitelbaum’s causation testimony without a hearing.

Judge: Plaintiff, what is your response?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

9.3 This is a products liability case brought by Cummins against Lyle Industries. While at work, Cummins was operating a trim press manufactured by Lyle. She opened the scrap chute door in an attempt to remove scrap material. As she reached into the scrap chute, three of her fingers were severed by the trim press.

Plaintiff has served notice that her expert, Dr. Carpenter, will testify that: (1) the trim press was defectively designed, and that an alternative feasible design would equip the press with a non-contact limit switch instead of the mechanical switch actually installed, and that the limit switch that was installed in the trim press ought to have had a longer useful cycle life; and (2) the warnings on the machine and in the instruction manual were inadequate.

The defense moves to exclude Dr. Carpenter's opinions. At the FRE 104(a) hearing, the following happens when the defense questions Dr. Carpenter:

Q. (By defense) You agree the design process of a piece of machinery is more complicated than making instantaneous judgments?

A. Yes.

Q. There has to actually be testing of that design process, is that correct?

A. Absolutely.

Q. Designing around hazards requires that kind of testing, does it not?

A. That’s correct.

Q. You haven=t done any testing of machinery or machinery components in relationship to your work in this case, have you?

A. No.

Q. You haven’t tested the warnings you talk about, have you?

A. No.

Q. And you never have read any studies of any such test, have you?

A. No.

Q. Concerning your opinion about the life cycle of the switch, on what do you base your opinion that the cycle life of the limit switch is 3 million cycles?

A. I learned that by talking to several representatives from Allen Bradley, the manufacturer of the limit switch.

Q. Do you recall their names or the dates on which you spoke to them?

A. No.

Defense: I move to bar this witness from presenting his opinions to the jury.

Judge: I will hear argument from both sides.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

9.4 This is a products liability case brought against a tire manufacturer. Plaintiff was injured when the right rear tire of his van blew out. Plaintiff claims the tire was defective.

To prove the tire defect, plaintiff retains an expert in tire failure analysis, Carlson. The defendant moves before trial to exclude Carlson's opinions about the tire.

At the FRE 104(a) hearing the following happens when Carlson is questioned by the defense:

Q. (By defense) Is it your opinion that a manufacturing or design defect caused the tread of the tire to separate from its inner steel-belted carcass, thus causing this blowout?

A. Yes.

Q. Did you consider whether the separation might have been caused by the driver under-inflating the tire or the driver causing the tire to carry too much weight, that is, over-deflection misuse?

A. I considered it and, after visually examining the tire, I rejected it.

Q. Why did you reject it in favor of a conclusion that there was a manufacturing or design defect?

A. If the driver misused the tire that way, there should be physical signs of it. There would be tread wear on the tire's shoulder that is greater than the tread wear along the tire's center, or signs of a bead groove where the beads have been pushed too hard against the bead seat on the inside of the tire's rim, or the sidewalls would have physical signs of deterioration, or there would be marks on the tire's rim flange. If I don=t find at least two of those four physical signs, I conclude that a manufacturing or design defect caused the separation. Here, since I didn’t see at least two of the physical signs of over-deflection misuse by the driver, nor were there any punctures, I concluded a defect must have caused the blowout.

Defense: Your honor, based on that testimony I move that Mr. Carlson's testimony be excluded.

Judge: Tell me what criteria I should use to make that determination.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

9.5 Defendant is charged with extortion. According to the prosecution, the defendant was one of three armed men wearing masks who entered the home of the victim, a bank president, and attached bogus bomb devices to his wife and daughter. The victim was then ordered to fill two satchels with money from his bank and drop the money in a garbage can. The victim did this and no harm came to his family. Eventually, one of the three men, Nail, confessed to the crime and implicated the defendant.

The case is now on trial. During its case-in-chief the prosecution called a witness, Lamberth, who identified the defendant as the driver of a vehicle leaving the victim’s residence immediately after the crime was committed. Lamberth was across the street on her front porch when she saw the vehicle leave. Cross-examination established that Lamberth had seen the car and its occupants for five or six seconds, from a distance of approximately sixty feet, and that the event had happened seventeen months before trial.

During its case-in-chief the defense intends to call Dr. Loftus as an expert witness on eyewitness identifications. The prosecution agrees that Dr. Loftus is a qualified expert, but objects to her testifying about eyewitness identifications.

The judge conducted a voir dire of Dr. Loftus out of the jury's presence. During the voir dire, Loftus stated that she would testify about the “forgetting curve,” which shows that memory decreases at a geometric rate, about the “assimilation factor” and “feedback factor” of memory, both of which call into question the reliability of recall in witnesses as a result of an event’s effect on their lives, and about other factors which affect the reliability of eyewitness identifications. Following Loftus’s voir dire, the following happens:

Judge: State, it’s your objection. Why should Dr. Loftus be precluded from testifying about the factors that affect the reliability of eyewitness identifications?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

9.6 The defendant is charged with armed robbery and aggravated battery. The victim is a 62-year-old woman who was robbed and stabbed at an ATM in a shopping center. Both the victim and an eyewitness, who are white, described the robber as a young black man, having heavy eyebrows, and unusual ears, one of which looked stuck out, the other looked as if it was pinned back or curled.

One month later, the police conducted a photo lineup containing the photographs of several persons. The victim failed to identify her attacker from that photo lineup. An eyewitness, who observed the robbery from her nearby car, also failed to identify the attacker from the photo lineup. The defendant’s picture was not included in that lineup.

Four months later, both victim and eyewitness were presented with different photo lineups. This time, the defendant’s photo was included in both lineups. Both the victim and witness positively identified the defendant as the robber.

The case is now on trial. The prosecution’s evidence consists principally of the testimony of the victim, the eyewitness, and still photographs made from a videotape from the ATM where the robbery occurred.

In the defense case the defense intends to call a Dr. Cole, a psychologist who is an expert in eyewitness identifications. Based on pretrial disclosures, both sides know that Cole will testify generally about what science has revealed regarding the manner in which images are processed and retained by the brain, and what factors affect that process. In addition, he will discuss the detrimental effect acute stress can have on identification. Finally, Cole will testify that research has shown that the accuracy of cross-racial identifications (in this case, having a white victim and eyewitness and a black defendant) is approximately three times less accurate than identifications involving members of the same race.

Before trial the prosecution objected to Dr. Cole's testimony. The court deferred the matter until after the prosecution rested its case-in-chief. After the prosecution rests, the following happens:

Judge: We’ll now need to take up the prosecution's objection to Dr. Cole’s anticipated testimony. Prosecution, what’s the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

9.7 Hill is charged with selling heroin to an undercover F.B.I. agent. After initially rebuffing the agent, Hill agreed to make the sale and was promptly arrested. The defense is entrapment.

Hill claims that he has a subnormal intelligence, and that because of his intelligence and personality he is uniquely susceptible to inducement. As part of his defense, Hill intends to call a psychologist to testify about Hill's intelligence, personality, and resulting susceptibility to persuasion and pressure. The psychologist bases her evaluation on her personal examinations and clinical testing of Hill.

The prosecution objects. At a pretrial hearing on the objection, the following happens:

Judge: The indicated defense here is entrapment. I’m asked to rule on the admissibility of the psychologist’s evaluation, which is based on her conversations with and testing of the defendant. If the defendant does not take the stand, can the defense use the expert to get before the jury the defendant's statement which otherwise the jury would never hear? This is the prosecution's objection, so I’ll hear from them first.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

9.8 Defendant is charged with the murder of his former girlfriend’s daughter. The defense is that the daughter’s death was accidental.

Defendant and his girlfriend, Gaines, lived together for six years. During the first year, one of Gaines’ daughters died. Five years later, Gaines and the defendant broke up and Gaines moved away. She then told police that the defendant had beaten her daughter to death and had buried her in their back yard. A search of the back yard turned up the body of the daughter, and the defendant was charged with her murder.

Part of the prosecution's case is that Gaines was a battered woman who had been beaten by the defendant during their years of living together. The beatings, combined with her fear that she would lose custody of her other daughter, prevented her from reporting what had actually occurred until after she moved away from the defendant.

The defendant’s defense is that the daughter accidentally drowned in the bathtub while in Gaines’ care and that Gaines, fearful that the state would decide she was a neglectful parent and would then take her other daughter away from her, convinced the defendant to bury the deceased daughter in the yard without telling anyone.

The prosecution intends to call a psychologist, Wilson, to testify as an expert at trial. Wilson has testified as an expert on battered woman syndrome numerous times. She interviewed Gaines for 30 hours, reviewed police reports, interviewed Gaines’ parents, and administered a mental status exam on Gaines. Based on these sources, Wilson will testify that Gaines was suffering from battered woman's syndrome during the six years she lived with the defendant, and that she found no indications that Gaines was lying about the circumstances of her daughter's death.

Before trial the defense objects to Wilson’s anticipated testimony. At a hearing on the objection the following happens:

Judge: This is the defendant’s motion to preclude the testimony of the prosecution’s psychologist, Anna Wilson. Defense, why should her testimony be precluded?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?



9.9 Defendant is charged with murder. The issue is identification.

In [-4], a young woman, Padilla, was murdered. Her body was found lying along a roadway, naked from the waist down, wearing a shirt but no bra, with bite marks on her left breast. She had been brutally beaten about her face and head and killed by manual strangulation.

In [-3], a police officer, Gardner, came upon the defendant while his car was broken down on the side of a road. She administered a field sobriety test. The defendant grabbed her by the throat, strangled her until unconscious, and then sexually assaulted her. When she came to, Gardner found herself beaten about the face and head and bitten on her chin and breast. The defendant later pleaded guilty to assaulting Gardner.

The police investigation of Padilla's murder noted the physical similarities with Gardner's assault. Through further investigation (including bite mark analysis, which concluded that the marks on Padilla's breast could have been caused by the defendant's teeth), the police obtained enough evidence to charge the defendant with Padilla's murder.

At trial, the prosecution intends to introduce the following:

(1) evidence of the defendant’s assault of Gardner, and

(2) testimony of Hazelwood, an expert in the analysis of modus operandi and ritualistic crimes.

Hazelwood had analyzed the two crimes and determined that Padilla's murder and Gardner’s assault had fifteen physical characteristics that were consistent, and that he had never seen this cluster of M.O. characteristics in any other two crimes. (For example, both victims were adult females; both victims were assaulted at night; both victims were raped; both victims had identical clothing removed; both victims had teeth marks on their breasts; and so on.) Using “linkage analysis,” Hazelwood determined that the likelihood that two different persons committed these two crimes having fifteen physical characteristics in common was highly improbable.

The defense objected to both matters and the court scheduled a pretrial hearing on the admissibility of Hazelwood’s testimony. At the hearing Hazelwood testified that he is a retired FBI agent that now works with a private investigative agency staffed with other retired FBI agents. During his 35 years with the F.B.I., Hazelwood was in the Behavioral Science Unit, which analyzes crimes for patterns or profiles. These profiles assist police departments in linking known offenders with unsolved crimes. He has investigated over 7000 crimes while working in that unit. Hazelwood is one of a few forensic experts (the others being other members of his agency) who has developed “linkage analysis,” and that few other experts presently use his method. Hazelwood has published professional articles describing his methodology in forensic journals.

At the conclusion of the hearing, the following happens:

Judge: Before I make my ruling, I’d like to hear the arguments of counsel on both issues. Prosecution, I’d like to hear from you first.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

9.10 Defendant and others are charged with conspiracy and mail fraud. The government claims that the defendants conspired to buy three homes, insured them for more than their true value, later burned the buildings down by intentionally starting gasoline explosions and fires, and then made fraudulent insurance claims for total losses.

At trial the prosecution intends to call a deputy fire marshal to testify that, based on his investigation of the fire scenes (which included site examinations and chemical analyses of fire residue), the fires in the three homes were arson fires, caused by gasoline vapor explosions.

The defense objects to the fire marshal’s testimony. At a pretrial hearing, the fire marshal testified that he has been a deputy fire marshal with the city fire department for eleven years, that he has attended two short courses on explosive fires, and has read parts of books and bulletins on vapor explosions. However, while he has investigated numerous fire scenes during those eleven years, he has investigated only one other arson caused by gasoline vapor explosion before the current incident, and has never previously testified in court as an expert about an arson fire caused by gasoline vapor explosion. At the conclusion of the hearing, the following happens:

Judge: Defense, what’s the basis for your objection to the fire marshal’s testimony?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

9.11 Defendant is charged with attempting to damage or destroy a building by means of an explosive. The issue is identification.

A police officer was notified by a pedestrian that a nearby building looked as if someone had broken into it. The officer went to the building, saw window glass broken outward, noticed that the alarm had been turned off, and detected a strong odor of gasoline. Later police found a complete set of clothing and a pair of shoes inside the building.

Further investigation by the police led them to suspect the defendant. A search warrant was executed on the defendant’s house, and the police seized a pair of the defendant’s shoes. Later the defendant was subpoenaed before a grand jury and provided inked impressions of his feet.

The shoes found in the building, the shoes taken from the defendant's house, and the defendant's inked foot impressions were examined by Dr. Robbins, a physical anthropologist. Robbins found that the impressions inside the two pairs of shoes were identical to each other and identical to the inked foot impressions taken from the defendant. Robbins concluded that the shoes found in the building belonged to the defendant.

Before trial the defense objected to Robbins’ testimony, and the court held a pretrial hearing that disclosed the above information. Dr. Robbins, who has a doctorate degree in physical anthropology and teaches at the University of North Carolina, testified. She stated that her analysis of the footprint evidence is analytically similar to the kinds of comparisons made in bite mark and tool mark cases, in which the unknown (shoes from the building) are compared with the known (shoes from the defendant’s home and his inked foot impressions). Based on these comparisons, and based on her experience in doing these kinds of comparisons, she reached her conclusions. Dr. Robbins acknowledged that an expert hired by the defense disputed the reliability of her findings and conclusions.

At the end of the hearing, the following happens:

Judge: Counsel, I’ve heard all the information that seems to bear on the admissibility issue, and I’d now like to hear the arguments of counsel on whether the proffered testimony of Dr. Robbins is admissible at trial. Defense, it’s your objection, I’d like to hear from you first.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

9.12 The defendant is charged with murder. The issue is identification.

The victim was shot and killed at his apartment complex. The cause of death was a shotgun blast into the victim's abdomen at close range. Found nearby was a shotgun and some duct tape. The police noticed an upper and lower lip print on the duct tape's sticky side. Further police investigation led to the defendant, who was arrested. The defendant’s lip prints were then taken on duct tape of the same kind as found at the scene of the shooting. The duct tapes were sent to the state crime lab for analysis.

A latent print specialist, Gray, compared the unknown prints on the duct tape found at the crime scene with the known prints taken from the defendant. According to Gray, the comparison produced a positive match.

Before trial the defense moved to preclude the results of Gray’s analysis and asked for a formal pretrial hearing to determine the admissibility of Gray's testimony. The court denied a formal pretrial hearing and instead ruled that he would determine admissibility at trial.

The case is now on trial. Before Gray is called as a witness, the judge conducts a voir dire of Gray outside of the jury’s presence. Gray testifies that she has been a latent print examiner with the state police crime lab for ten years, that during that time she has made over 100,000 comparisons between unknown latent fingerprints and known fingerprints, and that she has testified numerous times in court. However, this is the first and only time that Gray has ever done a lip print comparison, and is the only lip print comparison that she is aware of in the state during the past ten years. Gray testifies that lip print comparisons have been done since [-50], and that the methodology is essentially the same as for fingerprint comparisons. Gray testifies that the methodology is well established and that articles in forensic journals on the subject exist, but that such comparisons are rarely done because latent lip prints are rarely obtained from crime scenes. Finally, Gray testifies that her analysis disclosed thirteen points of comparison between the unknown latent print and the known print, and on that basis she concluded they were made by the same person.

At the conclusion of Gray’s voir dire, the following happens:

Judge: Defense, what’s your objection to this testimony being presented to the jury?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

9.13 Defendant is charged with murder. The issue is identification.

The victim was shot in the back as he returned to his home during the evening. Witnesses saw the defendant running away from the scene after the shooting. When the defendant was arrested at a halfway house, police searched his locker at the house and found a box (from Speer, Inc., a bullet manufacturer) containing eighteen 9mm bullets. During the victim’s autopsy two bullets were recovered from his body.

The two bullets from the victim’s body, and the eighteen bullets found in the defendant’s locker, were sent to the F.B.I. crime lab for analysis. They were examined and tested by Peters, an F.B.I. materials expert. Peters was able to determine that the two bullets recovered from the victim’s body were 9mm bullets.

Peters also analyzed the metal in the two bullets from the victim and the eighteen bullets from the defendant’s locker. Peters used a spectral analysis machine to determine the precise amounts of particular metals in the bullets. This is the common and accepted way to analyze the metallic composition of bullets. Because the composition of the metals in bullets (bullets are alloys made up of varying amounts of lead, copper, tin, silver, antimony, etc.) varies slightly during the production process, different batches of bullets will have slightly different percentages of the various metals that make up the alloy used by a particular manufacturer. While Peters did not do any kind of statistical or probability analysis, he would not expect to find the same precise composition of metals in bullets selected randomly for comparison. The bullets here were manufactured by Speer, Inc. Peters visited the Speer plant and learned that Speer makes bullets in batches of approximately 4000, so only those bullets from the same batch will have the identical metallic composition. Approximately five billion bullets are manufactured each year in the United States.

Peters concluded that:

(1) The bullets from the victim’s body and the bullets from the defendant’s locker had indistinguishable metallic compositions;

(2) In his opinion the two bullets from the victim’s body probably came from the same box of bullets found in the defendant’s locker.

Before trial the defense moves to preclude all of Peter’s findings and opinions. At hearing on the motion, Peters testifies to the above information. At the conclusion of the hearing the following happens:

Judge: Defense, this is your motion. Why shouldn’t agent Peters be allowed to testify to what he did and what he was able to conclude?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?



9.14 Counsel is charged with conspiracy to submit false bills to the United States. Counsel’s company contracted to deliver heating oil to Fort Bragg, an army base. The government charges that Counsel and another person, Jackson, developed a scheme to create false shipping documents and bills showing that the heating oil had been delivered, whereas in fact it had not.

This scheme came to light when Jackson was committed to a psychiatric ward. There he “found God,” contacted the F.B.I., and confessed to the scheme. Counsel and Jackson were then charged with conspiracy.

After being charged, Jackson agreed to plead guilty and testify against Counsel. Jackson also agreed to submit to a polygraph exam. The result of the examination, administered by the F.B.I., was that Jackson was “not truthful” when he implicated Counsel in the scheme.

During discovery, the results of the polygraph examination were given to the defense. In addition, the prosecution also gives the defense a report from Dr. Rollins, Jackson’s psychiatrist. Rollins’ opinion was that “Jackson’s test results may be due to his mental condition, not any possible untruthfulness.”

Before trial the government moves to preclude the results of Jackson’s polygraph test in any way, whether during cross examination of Jackson, cross examination of Rollins, or as evidence in the defense case. The defense, in turn, moves to preclude Rollins’s testimony in the prosecution’s case. At the hearing the following happens:

Judge: I have before me prosecution and defense motions to preclude. I’ll hear the government first on the motion to preclude polygraph evidence.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

9.15 Defendant is charged with unlawfully receiving child pornography through the mail. The charge was filed after a search warrant executed at the defendant’s home revealed a computer disk and a videotape showing nude post-puberty girls participating in sexual activity. The charge requires that the prosecution prove that the defendant knowingly and intentionally received images of children under the age of eighteen engaged in sexually explicit conduct.

The prosecution intends to introduce the videotape and pictures on the computer disk at trial. In addition, the prosecution intends to call an expert to testify to the approximate ages of the girls shown in the pictures.

The expert, Dr. Woodling, is a pediatrician who specializes in adolescent growth and development. According to Woodling, an expert can make accurate estimates of the ages of females under the age of eighteen by examining body shape, body fat, and breast and pubic hair development. Woodling says that a “Tanner Scale” has been developed and is commonly used to rate breast and pubic hair development in relation to age. Based on his evaluation of the pictures on the computer disk and the videotape, Woodling says that the girls shown are all between the ages of eleven and fifteen.

The defense objects before trial to Woodling’s testimony. At a hearing the following happens:

Judge: This is the defendant’s motion to preclude Dr. Woodling’s testimony as an expert witness and his estimates of ages of the girls shown in the pictures. Defense, what’s the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

9.16 Defendant is charged with possession of cocaine with intent to distribute.

The charges came about when police officers tried to pull over a car that had been reported stolen. The car sped away and the officers gave chase. When the car was finally pulled over, the driver and passenger tried to flee but were caught. When the defendant, who was the passenger, was stopped and searched, police found on him a loaded .38 caliber revolver, $353 cash including $52 in single bills, and a metal case containing 34 plastic bags of cocaine weighing a total of four grams.

The case is now on trial. On direct examination one of the arresting officers testifies about his background as a police officer, his experience with narcotics crimes, the circumstances of the defendant's arrest, and what evidence he recovered from the defendant. The following then happens:

Q. (By prosecutor) Officer Jones, based on your background and experience, do you have an opinion as to whether this type of 34 individually packaged bags of cocaine was for street level distribution or for personal use and, if so, what do you base that opinion on?

Defense: Objection, your honor.

Judge: Please approach. [Lawyers approach the bench]. What’s the officer going to say in answer to your two questions?

Prosecutor: He’s going to say that his opinion is that 34 bags of cocaine is for sale on the street. He’s going to say that he bases this on the fact that the bags were individually wrapped dime bags, that the person had a gun, and that he had a large amount of cash, including $52 in single bills.

Judge: Defense, what’s the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

9.17 Defendant is charged with making threatening communications and transmitting them in interstate commerce. Those communications were handwritten and typed letters sent in the U.S. mail. The defendant denies making or mailing the letters.

Before trial defendant filed a motion in limine seeking to preclude the testimony of a government expert in “forensic stylistics,” who is expected to testify at trial that the defendant is the author of the threatening letters.

At the hearing on the motion Fitzgerald, an FBI agent, is called as a witness. Fitzgerald testifies that he is an expert in a field called forensic stylistics, which is the examining of writing style to determine disputed authorship. This is a new scientific field, and Fitzgerald has never before testified as an expert in court about this field. Forensic stylistics is similar to handwriting analysis in that both make comparisons between known writing samples and unknown writings to determine whether they were both made by the same individual. However, forensic stylistics focuses more on writing style, with primary emphasis on punctuation, spelling, and grammar, while handwriting analysis focuses more on the shape, flow, and characteristics of individual letters.

Fitzgerald testifies that he is assigned to the FBI Academy and has been a member of its National Center for the Analysis of Violent Crimes for five years. He has a master’s degree in criminal justice administration, but does not have a degree in linguistics, forensic stylistics, or text analysis. He says that forensic stylistics is an applied science, and he has attended three seminars on the field, taught and conducted research in text analysis during these five years, and has worked on text analysis and in a number of high profile matters, including the Unabomber case. He has performed approximately 12 analyses using forensic stylistics before this case.

Fitzgerald testifies about the specific methodology he used to determine authorship of the 22 questioned handwritten and typed letters. First, he reads the questioned writings to get a feel for them. Second, he color-coded the writings for punctuation and spelling, threatening phrases, idiosyncratic wording, and incorrect grammar and syntax. Third, he does the same for known handwritten and typed writings obtained from the defendant. Finally, he creates a chart noting similarities between the questioned and known writings (“markers”). Two other FBI agents reviewed his results, but on one outside the FBI has reviewed his reports.

Fitzgerald testifies that since the field of forensic stylistics is new, there are no studies of known error rates in the field, no studies that establish what amount of samples is necessary for an expert to be able to reach a conclusion as to the probability of authorship, and no recognized standard for certifying someone as an expert in the field. There is not yet any established system of peer review. There is at present one published article and one chapter in a general treatise on forensic sciences that discusses the field.

Based on his analysis in the present case, Fitzgerald found numerous “markers” showing points of similarity between the questioned writings and the defendant’s known writings, and was able to conclude that the questioned writings were probably written by the defendant.

At the conclusion of Fitzgerald’s testimony at the motion hearing, the following happens:

Judge: Since the proponent has the burden of demonstrating admissibility of this expert testimony, I’ll hear from the prosecution first.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

9.18 Defendant is charged with murder and manslaughter. The defense is insanity.

Defendant, who had a long history of mental illness, saw the victim, Ware, at a post office and tried to pick her up. When Ware rebuffed his advances, the defendant, who was driving a van, ran her down outside the post office and killed her. Ware was pregnant with twins and in her sixth month of pregnancy. The unborn twins also died. The defendant was charged with Ware's murder and with manslaughter for the unborn twins' deaths.

A charge of manslaughter requires, among other things, that the unborn twins were sufficiently developed to be “quick,” meaning that they were capable of moving spontaneously within the mother’s uterus.

An autopsy was performed by Dr. Haynes, a pathologist. Haynes determined that the unborn twins were developing normally and in good health, and that they died when the impact of the defendant’s van with Ware’s body caused the twins to become separated from their mother’s placenta. Haynes also concluded that the twins were in their sixth month of development and were “quick.”

At trial the prosecution intends to introduce photographs of the twins and the mother’s placenta. The prosecution offers the photographs as independent evidence and as part of the basis of Haynes’ expert testimony. The defense objects. At a pretrial hearing the following happens:

Judge: The state intends to introduce color photographs of the deceased twins and the placenta at trial. Defense, why should these photographs be precluded?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

9.19 This is an eminent domain proceeding in which the United States is seizing private land. The government is the petitioner, the present owners of the land are the respondents. To determine the value of the condemned land, the government formed a Land Condemnation Commission, which later issued a report.

The commission report was prepared by three persons: Wisdom, a hydrologist; Loucks, a forester; and Miller, a local real estate developer. Wisdom assessed the property’s frequency and duration of flooding. Loucks assessed the value of the timber on the property. Miller used the information from Loucks and Wisdom in reaching his own conclusion on the present fair market value of the condemned property. The report contains the analysis of all three.

The condemnation proceeding is now being held. The government offers the following:

(1) the Land Condemnation Commission report;

(2) Miller's testimony as to the present fair market value of the property.

The owners of the land object to both the report and Miller’s testimony. At a hearing to determine admissibility, the following happens:

Judge: The owners are objecting to the report and Miller's opinion on fair market value. What’s the evidentiary basis for your objections?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

9.20 Defendant is charged with robbery and rape. The robbery and rape occurred when the defendant, an inmate who was being transported from a juvenile facility to a doctor’s office for an examination, escaped from the vehicle, ran to a nearby apartment complex, and robbed and raped a tenant of the complex. The defendant was apprehended shortly afterwards. The defense is insanity.

Before trial the defendant was examined and evaluated by a psychiatrist retained by the defense. The psychiatrist personally examined and tested the defendant, reviewed the police reports about the incident, reviewed the defendant’s juvenile incarceration file, and reviewed the defendant’s medical history. In her opinion the defendant was suffering from organic brain abnormalities from a head injury when a child, and that this was a chronic mental illness that made the defendant legally insane.

The case is now on trial. In the defense case the psychiatrist testifies about her evaluation of the defendant and her conclusion that the defendant was insane at the time of the robbery and rape. On cross-examination the following happens:

Q. (By prosecutor) Dr. Schwartz, as part of your evaluation of the defendant, you reviewed his entire juvenile incarceration records, right?

A. Yes.

Q. And you relied on those records in evaluating the defendant?

A. I found parts of them useful.

Q. Let’s talk about what the records say about the defendant's conduct toward female guards at the juvenile facility.

Defense: Objection, your honor. May we be heard at side bar?

Judge: Well, this might be a good time to take a break. The jury will be excused for a few minutes. [Jurors leave.] What’s in the juvenile records that you=re objecting to?

Defense: The records contain several instances where the defendant made sexually explicit remarks to female guards at the juvenile home, and a couple of instances where the defendant tried to grope female guards.

Judge: What’s the evidentiary basis for precluding that evidence?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

9.21 This is a personal injury case. Plaintiff was injured when her car collided with the defendant’s car. Plaintiff claims that her injuries are serious and permanent, and that she is unable to return to work.

The case is now on trial. In plaintiff’s case-in-chief Dr. LaRue is called as a medical expert. After being qualified as an expert in orthopedic medicine and after describing his examination, testing, and evaluation of the plaintiff, the following happens:

Q. (By plaintiff) Dr. LaRue, based on your examination, testing, and evaluation of Mrs. Johnson, were you able to come to any conclusions about her medical condition and whether she is physically able to return to work?

A. Yes, I was.

Q. Is Mrs. Johnson able to return to work as a produce manager at the supermarket?

Defense: I object to the form of the question.

Judge: What’s the basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

9.22 This is a personal injury case brought by the plaintiff, Bessard, against his employer. Bessard injured his knee while working on his employer’s oil rig. (This state permits direct actions against employers for on-the-job injuries.)

Following his injury, Bessard was treated by two doctors, McDaniels and Leonard. Their opinion is that Bessard needs no further surgery on his knee. Later Bessard was examined by two other doctors, Budden and Cobb. Their opinion is that Bessard needs a second operation on his knee.

The defendant moves for the court to appoint an additional medical expert under Rule 706. At the hearing on the motion the following happens:

Judge: This is the defendant’s motion for the appointment of a medical expert under Rule 706. Defense, why should I appoint another expert under the circumstances of this case?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

9.23 Katie Bonner was twice exposed to FoamFlush, an organic solvent manufactured by ISP, during her employment on an assembly line in a urethane filter production plant. FoamFlush contains 57% gamma-butyrolactone (BLO) and small amounts of three other chemical compounds. She sues ISP for physical and psychological problems she contends were caused by the exposure to FoamFlush.

The case is now on trial. On direct examination, Dr. Martinez testifies Bonner’s immediate acute symptoms and permanent symptoms were caused by exposure to FoamFlush. He bases his opinions on: (1) the fact that Bonner’s symptoms were suffered immediately after the exposure; (2) animal studies of the effects of BLO; (3) studies of chemicals with similar structures; (4) his study of how BLO metabolizes into a destructive acid; and (5) Bonner’s medical records. On cross-examination, the defense asks:

Q. Is there any epidemiological support for your conclusion that inhaling FoamFlush could have caused Mrs. Bonner’s symptoms?

A. No published studies, no.

Q. Isn’t it true the sources you rely on involve exposure through ingestion, not inhalation like we have in this case?

A. That’s true.

Q. Did you ever determine the quantity of BLO Mrs. Bonner was exposed to?

A. No, just that it exceeded safe levels.

Q. Did you rule out all other possible causes of her symptoms?

A. No, not all of them.

Q. You performed your study of this case for the purpose of this lawsuit, did you not?

A. I was retained as an expert witness for this case, but I followed the same procedures I would use if I had seen her as a patient suspected of having suffered a toxic exposure.

Q. Have you ever tested your causation theory?

A. No.

Q. You considered case reports in reaching your opinion, didn’t you?

A. Yes, but I recognize these reports are not reliable studies.

Defense: Your Honor, I move to strike this witness’s testimony; it violates Daubert.

Judge: I will excuse the jury and hear arguments by counsel.

1. Which party has the burden of proving admissibility?

2. What objections should the defendant make to this testimony?

3. What are the best arguments in support of the objections?

4. What are the plaintiff’s best arguments in support of the testimony?

5. What is the proper ruling?

9.24 Carol Heller sues Shaw Industries for damages for certain respiratory illnesses allegedly caused by volatile organic compounds emitted by Shaw carpeting installed in Heller’s home. Shaw’s carpeting had been placed in the Heller home on December 13 and 14 of [-4]. In late December [-4] Heller began to experience respiratory problems. She was treated by Dr. Papano, a qualified allergist experienced in allergy-related medical problems, who later became an expert witness for the plaintiff.

Dr. Papano’s expert report states he performed a differential diagnosis, which ruled out possible causes of Heller’s symptoms other than the volatile organic compounds (VOCs) from Shaw carpet. He relied largely on the temporal relationship between her symptoms and the installation of the carpet. He also relied on medical examinations and tests of Heller, her personal and family medical history, her descriptions of her personal activities, environmental conditions in the house, and knowledge he acquired at professional seminars. At a Rule 104(a) hearing, the defense lawyer asks him:

Q. Can you point to any published research studies that indicate what level of VOCs would cause symptoms like those experienced by Mrs. Heller?

A. No, but there are reliable studies showing carpets emit VOCs and that VOCs can cause certain health problems.

Q. Did you rule out all alternative possible causes of her symptoms when you performed your differential diagnosis?

A. No, but I ruled out any other plausible cause.

Q. Isn’t it true the Shaw carpeting was installed about two weeks before Mrs. Heller experienced any symptoms?

A. Yes.

Q. Isn’t it true Mrs. Heller left the house in May [-3] when the carpet was removed, and then she experienced renewed symptoms when she returned to the house almost a week after the carpet had been removed?

A. Yes.

Defense: Your Honor, I move to bar this witness’s testimony on Daubert grounds.

Judge: I will hear argument.

1. Which party has the burden of proof in this Rule 104(a) hearing? What is the burden of proof?

2. What objections should the defense make to this testimony?

3. What are the best arguments in support of the defendant’s objections?

4. What are the plaintiff’s best arguments in support of the testimony?

5. What is the proper ruling?

9.25 The plaintiff, Dillon, was operating a stand-up forklift truck designed and manufactured by the defendant, Crown Controls Corp. It was designed to be operated from a stand-up position. The operator compartment is fully enclosed, except for a rear opening used to get on and off the truck. Dillon was injured when the truck jerked, causing his left leg to slip out of the compartment through the rear opening.

Before trial, the plaintiff notifies the defense that he intends to offer the expert testimony of Dr. Harris, a biomechanical engineer. Harris will testify that an alternative design – an operator’s compartment with a rear door – would have avoided the accident and that Crown’s failure to equip the truck with a rear door was the proximate cause of Dillon’s injuries.

At a Rule 104(a) hearing, the defense lawyer asks Harris the following questions:

Q. Did you actually design a forklift truck with a rear door?

A. No.

Q. Then you never tested the design you say should have been used?

A. No. I saw no need for testing.

Q. Did you determine whether your proposed design would be economically feasible?

A. No.

Q. Has your proposed design been subject to peer review or generally accepted in the forklift manufacturing industry?

A. No.

Q. Are there any national standards that require the use of the design you are proposing?

A. Not yet.

Defense: Your Honor, I move for an order barring this witness’s testimony.

Judge: I will hear argument on your motion.

1. What objections should the defendant make?

2. What are the best arguments in support of the defense objections?

3. What are the best arguments for admissibility of the testimony?

4. What are the proper rulings?

9.26 Young is charged with kidnapping Patrick and carrying a firearm while committing a crime of violence. At trial, Patrick, who had a ten-year relationship with Young, testifies she still loves him and recants her story about kidnapping and abuse. The prosecution treats her as a hostile witness and introduces her grand jury testimony, which contains the details about her forced confinement, abuse by Young, and Young’s use of a gun.

The prosecution then calls Dr. Burgess, a psychiatric mental health nurse specializing in crime victims. She has more than 40 years of nursing experience and holds a doctorate in nursing science. She is Professor of Nursing at Boston College and has written, among other things, 114 articles in various professional journals on topics including forensic nursing, rape, and domestic violence. She has performed academic research on several hundred battered women. On direct, she is asked:

Q. (prosecutor) What did you do to prepare for your testimony?

A. I reviewed police and investigative reports, Patrick’s grand jury testimony, an Order of Protection Patrick obtained against Young, Young’s criminal history, letters and phone conversations between the two, and I interviewed Patrick personally for more than an hour.

Q. Did you form any opinions concerning the case?

A. Yes. First, you should know victims of domestic violence commonly recant their accusations. They have a limited ability to perceive ways to escape their captors. Ms. Patrick exhibited this common behavior pattern.

Defense: I object to this testimony. It violates Rule 702.

Judge: I will hear the objection at sidebar. Please approach.

1. What objections should the defendant make?

2. What are the best arguments in support of the defense objections?

3. What are the best arguments for admissibility of the testimony?

4. What are the proper rulings?

9.27 Charles Bighead is charged with sexual abuse of a minor, his daughter. The case in now on trial. On direct examination the daughter testifies to a series of sexual assaults by her father, the last taking place about four years before she reported the assaults to a police officer. On cross-examination by the defense, she is questioned about the long delay before reporting any assault and about changes in her accounts of the assaults, some of them conflicting with her trial testimony.

After the prosecution rests without offering any corroborating evidence, the defendant takes the stand, and denies committing any assault on his daughter.

In rebuttal, the prosecution calls Tasha Boychuk as an expert witness. She is the director of forensic services at the Children’s Advocacy Center in Phoenix, Arizona. She is a licensed therapist and holds a bachelor’s degree in nursing, a master’s degree in psychiatric nursing, and a doctorate from an interdisciplinary program in law, sociology, social work, psychology, and nursing. She has directed research into child abuse and has interviewed over 1,200 children who alleged sexual abuse, although she never independently determined whether they had actually been abused. She is asked:

Q. (Prosecutor) Have you formed any observations with respect to general aspects of reporting incidents of child sexual abuse?

A. Yes. The most common circumstances with respect to reporting sexual abuse is what is referred to as delayed disclosure, especially when the abuse is by a family member. In reporting the abuse, which usually is chronic, a teenager develops script memory; that is, you are going to get little bits and pieces of information that are reported differently each time events are recounted.

Defense: I object to this speculation. It is not good science. I ask that the last answer be stricken.

Judge: I will excuse the jury to hear your arguments in chambers.

1. What objections should the defendant make?

2. What are the best arguments in support of the defense objections?

3. What are the best arguments for admissibility of the testimony?

4. What are the proper rulings?

9.28 Hankey and Welch are charged with conspiring to distribute PCP. They are being tried together. In the defense case, Welch testifies he was entrapped into making the sale, but that Hankey, while in the vicinity, had nothing to do with it.

In rebuttal, the prosecution calls Officer Anderson, a police officer and member of an FBI anti-gang task force. He testifies to having been an officer for 21 years, working undercover, and had extensive knowledge of gang structure and organization and the gangs Hankey and Welch belonged to. In fact, he knew Hankey and Welch and they had told him that they had been members of the gangs in the past. On direct examination, he is asked:

Q. In your experience with gangs is there a code of silence?

A. Yes. It’s simply not testifying against your gang members.

Q. Do Hankey and Welch belong to affiliated gangs?

A. Yes.

Q. If a member of Welch’s gang testified against a member of Hankey’s gang, do you have an opinion as to what would happen?

A. Yes.

Q. What is your opinion?

A. He would either be beaten or killed.

Defense lawyer (Hankey): I object to this testimony and move to strike it. This violates Daubert.

Judge: Prosecution, why is this admissible against Mr. Hankey?

1. What objections should the defendant make?

2. What are the best arguments in support of the defense objections?

3. What are the best arguments for admissibility of the testimony?

4. What are the proper rulings?

9.29 Munoz is charged with the murder of his wife, Magdaliz. At trial, Munoz testifies that after an argument with Magdaliz about care of their children, she went into the bedroom and slammed the door, locking it. Through a crack in the door he saw her open a dresser drawer and then close it. She walked away from the dresser. Then he heard a gunshot. He broke through the door and found Magdaliz bleeding, a gun next to her.

In his defense, the defendant calls Dr. James Bryant, an expert pathologist. The defense expects Dr. Bryant to testify that based on his review of all the relevant forensic material and the affidavits of three close friends of Magdaliz – Carol, Elizabeth, and Nancy – the manner of death could have been suicide, rather than homicide. Carol’s affidavit said that four years before the fatal shooting Magdaliz told her she had previously attempted suicide. Elizabeth’s and Nancy’s affidavits stated that one week before she died Magdaliz told them she did not care if she lived or died.

Before Dr. Bryant testifies, the prosecutor, at a sidebar conference says:

Your Honor, I object to any testimony by Dr. Bryant that is based on these hearsay affidavits. In the alternative, if you do allow Dr. Bryant to testify, I object to the witness making any reference to these hearsay affidavits.

Judge: Defense counsel, what is your response to these objections?

1. What are the best arguments to support the objections?

2. What are the best arguments to support the witness’s use of the affidavits?

3. What are the best arguments to support the witness’s testimony about the contents of the affidavits?

4. Should the judge require any foundational questions for use of the affidavits?

5. What are the proper rulings?

9.30 This is a wrongful death action against a railroad. Joseph Aliotta was waiting to board an Amtrak train. He was standing on an island between two sets of railroad tracks, waiting to board a passenger train he thought would stop. It did not stop. His widow, the plaintiff, contends the express train, traveling at 79 mph, created a vacuum that sucked Aliotta into its path. The railroad contends Aliotta stepped in front of the train.

During his deposition, the railroad’s risk manager, Jones, testified: “Well the train is so large it creates a vacuum next to the train. And that vacuum will pull a person toward the train if he is standing too close. If you were standing within a few feet of a passenger train going 79 mph, there’s a very good chance that you would be killed. Even though you would be trying to resist that, falling near the train, you would be pulled right in.”

At trial, during the plaintiff’s case, the following happens:

Plaintiff: At this time we offer a portion of Jones’ deposition into evidence as a party admission.

Defendant: I object.

Judge: What is your objection? It is an admission by a railroad employee who evaluates these accidents, isn’t it?

1. What is the best argument for admissibility of the statement?

2. What is the best argument to support the objection?

3. What is the proper ruling?

9.31 The defendant, Gutierrez, is charged with conspiracy and possession of marijuana with intent to distribute. Guiterrez was driving a tractor through a checkpoint near the border. The Boarder Patrol agents noted that Gutierrez appeared nervous during questioning at the stop, and a drug dog alerted to the tires of the tractor. Agents also noted that the tires appeared to be freshly installed. A later search revealed 23 bundles of marijuana inside the tires. The case is now on trial.

The only issue is whether Gutierrez had knowledge that the tractor he was driving contained drugs. In the prosecution case, DEA Agent Afanasewicz testified. After he stated his extensive experience in investigating drug importation cases, the following happens:

Q. Agent Afanasewicz, tell the members of the jury how the drug importation business hires the drivers of their load vehicles?

A. The drug owners, the bosses, have people who work for them. The people who do the hiring of the drivers of the load cars look for persons who have knowledge of what’s going on. They don’t just hire someone off the street, because there’s a lot of money involved.

Q. Do the drivers know what’s really going on?

A. In most drug importation cases, the person hired to transport the drugs know that, because the bosses need to rely on their drivers and hire people who know what is going on.

Defense: Objection, Your Honor.

Judge: Please approach. Defense, state the basis for your objection.

1. What are the best arguments for admission of this testimony?

2. What are the best arguments against admissibility?

3. What is the proper ruling?


9.32 The defendant, Larry Shane, is charged with vehicular homicide. It is undisputed that the defendant drove the car that killed the victim. The issue is whether the defendant was speeding at the time of the collision and whether he applied his brakes before the collision.


The prosecution has served notice that it intends to offer evidence recorded in the defendant’s vehicle by means of a computer data recorder or “black box” through the testimony of an expert. Data downloaded from the black box shows the defendant’s car was traveling at 76 miles per hour within five seconds of the accident, well over the speed limit, and that defendant did not apply his brakes until zero to one second before impact. The defense objects.


At a FRE 104(a) hearing, the following happens:


Judge: Mr. Prosecutor, how do you intend to establish admissibility of this black box evidence?

Prosecutor: I intend to call Dr. Ivor Thorsen, director of the State Safety Institute. He is an expert who is certified to teach classes on data recorders in vehicles. He will testify about the crash-sensing device on the defendant’s car. It has been commonly used in the automobile industry and in the accident reconstruction community for several years. Its software records speed and brake data on the microprocessor’s electrically erasable programmable read-only memory. The industry then uses software that prints out the data in graphs and tables. Dr. Thorsen will testify to the reliability of the system.

Judge: Defense, do you have any response?


1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?


CHAPTER 10

Exhibits

10.1 The defendant is charged with possession of crack cocaine.

Based on information obtained from an informant, police surveillance observed the defendant leaving a known crack house carrying a Pampers diaper box. The defendant got into a Plymouth sedan and drove off. Officer Jackson stopped the car and looked into the Pampers box. Jackson saw several plastic bags inside the box which looked like they contained crack cocaine. The defendant was arrested. The Plymouth sedan, with the Pampers box inside, was seized and impounded at the police department’s impound lot.

The next day another police officer, Williams, went to the impound lot, which is a fenced and gated lot at the police station. Williams searched the Plymouth sedan, removed the bags from the Pampers box, put the bags into a plastic evidence bag, labeled and heat-sealed the evidence bag, and transported the bag to the crime lab, where the bag was inventoried by a lab clerk.

About one week later a chemist at the crime lab, Smith, removed the bag from the crime lab’s storage vault, opened the bag, and chemically analyzed the contents.

The case is now on trial. In the prosecution’s case in chief Officers Jackson and Williams have already testified. The chemist, Smith, is now on the stand and has testified to removing the evidence bag from the evidence vault. The direct examination then continues as follows:

Q. (By prosecutor) Ms. Smith, when you first removed the bag from the vault, what was the condition of the bag?

A. It was labeled and sealed. There was no sign of tampering.

Q. What did you do next?

A. I cut open the bag and tested the contents.

Q. What was the result of your test?

Defense: Objection, your honor.

Judge: Basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

10.2 Defendant is charged with armed robbery of a neighborhood store. The issue is identification.

The store was robbed by a masked man armed with a handgun. The robber took cash from the register and grabbed an armful of shirts from a rack before running away. After the police arrived, a bystander outside the store told police that the robber was the defendant.

The police went to the defendant's nearby apartment and arrested him a short time later. Inside the apartment police found five shirts in the living room. The shirts, which looked new, had the manufacturer’s labels sewn in, but did not have any labels from the store attached to them, nor were the police able to find any store labels in the defendant’s apartment.

Before trial the bystander, who had previously identified the defendant as the robber, recanted her testimony, and the prosecution will not call her as a witness.

The case is now on trial. The store owner is called as the first witness in the prosecution’s case-in-chief. During the direct examination the following happens:

Q. Mr. Jones, what kind of shirts were taken from your store during the robbery?

A. They were all button-down Arrow shirts in various solid colors and sizes. They were all hanging on a rack near the cash register. I think about six were taken during the robbery.

Q. Mr. Jones, I’m now showing you what has been previously marked as State’s Group Exhibit No. 2, consisting of five shirts. Take a look at them and tell us if you can identify them.

Defense: Objection, your honor.

Judge: What’s the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

10.3 Defendant is charged with assault on and interfering with federal officers, a felony charge. The defense is that given the restraints he was in at the time, it was physically impossible for him to assault the officers.

Defendant was an inmate in a federal penitentiary in Wisconsin. He was scheduled to be transported by car to the federal courthouse in Chicago, where he had been requested as a defense witness in a criminal trial.

Defendant had been handcuffed, belly-chained, and leg shackled at the prison. He became agitated when he saw the agents who were going to drive him to Chicago (he had had previous dealings with the agents). When the agents placed him in the back seat and attempted to put a seat belt around him, a brief scuffle broke out.

Before trial the defendant, who is representing himself, requests the court to obtain and display the restraints he was in that day. The defendant stated while he does not know where the actual restraints used on him are, the restraints were standard U.S. Marshall Service restraints used whenever prisoners are transported. The defendant also requests that he be allowed to display the restraints before the jury during his trial. The prosecution objects. At a pretrial hearing, the following happens:

Judge: This is the defendant’s motion for court assistance in obtaining physical evidence, and to be allowed to display the evidence before the jury at trial. Prosecution, you objected. Why shouldn’t the defendant's motion be granted?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

10.4 This is a medical malpractice case. Plaintiff, Belber, claims that the defendant doctor, Felix, negligently repaired the plaintiff’s fractured wrist, resulting in permanent damage.

Belber injured his wrist while he worked on a commercial fishing vessel. Dr. Felix examined the wrist, found a fracture, and set and cast the wrist. Another doctor, Spinzia, examined Belber a few weeks later and removed the cast. The defense contends that either Belber caused his own injuries by overusing the wrist before it had properly healed, or that Dr. Spinzia had removed the cast too soon.

Both parties attempted to obtain Dr. Spinzia’s medical records during discovery, but were told that those records had been destroyed in an accident.

The case is now on trial. Belber is the first witness in the plaintiff’s case-in-chief. The next witness is Dr. Conway, who examined Belber shortly before the lawsuit was filed. Much to both parties’ surprise, Dr. Conway testifies that he has with him not only his own medical records, but he also has the missing medical records from Dr. Spinzia! Upon hearing this, the judge excuses the jury. The lawyers are allowed to examine Dr. Spinzia’s records (which contradict some of the things Belber stated during his testimony). The following then happens:

Q. (By judge) Dr. Conway, how did you get Dr. Spinzia’s medical records about Mr. Belber?

A. They were sent to me by Mr. Belber’s original lawyer who represented him before the lawsuit was filed.

Q. That was a different lawyer than the lawyer who is representing Mr. Belber in this trial?

A. That’s right.

Q. Why were you sent these medical records back then?

A. Mr. Belber’s lawyer wanted me to evaluate the medical aspects to see if a lawsuit was warranted.

Q. These records, how do you know they are actually from Dr. Spinzia?

A. Well, I don’t know Dr. Spinzia personally, but the records all have the name of his office on them, they all deal with Mr. Belber’s wrist problem, and the records are the typical kinds of records an orthopedic specialist would make when assessing and treating this kind of wrist problem.

Defense: Your honor, in light of Dr. Conway's testimony, we have no objection to admitting Dr. Spinzia’s medical records at this time. In any event, we will move for their admission in the defense case-in-chief.

Judge: Plaintiff, any objection?

Plaintiff: Yes, your honor.

Judge: What’s the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

10.5 The defendant is charged with filing false federal income tax returns.

The defendant is the owner of an adult bookstore. The store sells books and films and operates a video arcade. The store recorded sales receipts two different ways. Books and films sales were recorded on a daily sales sheet. However, video arcade sales were recorded differently. A customer would purchase tokens to operate the video arcade movies. When the tokens were removed from the machines, they were counted, and bank deposit slips showed how much cash was being deposited from the arcade machines.

The prosecution subpoenaed the defendant’s daily sales sheets. When the prosecutors received the sales sheets, they noticed handwritten numbers in the top right corner and bottom right corner of the sales sheets. The prosecution’s theory is that the defendant recorded the number of arcade tokens available at the beginning of the day (the top right number) and at the end of the day (the bottom right number). Subtracting the bottom number from the top number would show the number of arcade tokens sold that day. Comparing that daily number with the bookstore’s daily bank deposit slips showed that on some days the calculations matched, but on other days the calculations showed less cash deposited at the bank than the sales sheets would reflect in token sales. The prosecution's theory is that the shortage reflected the defendant’s “skimming” token sales and not depositing the amounts skimmed in the bank and, in turn, not reporting the amounts skimmed on the defendant’s federal income tax returns.

The case is now on trial. The prosecution calls an I.R.S. agent, Facik, as its first witness. Facik testifies that he went to the defendant’s bookstore, interviewed the defendant, and learned from the defendant how the bookstore’s book sales and arcade receipts were recorded on the daily sales sheet and the bank deposits. Facik testifies that he served a copy of a grand jury subpoena on the defendant calling for the production of the bookstore’s daily sales sheets, and that the defendant then turned over the sheets. The following then happens:

Prosecutor: Your honor, at this time we offer in evidence the sales sheets. They’ve been marked as Prosecution Group Exhibit No. 1.

Judge: Defense, any objection?

Defense: Yes, your honor. May we be heard at side bar?

Judge: Yes. Approach the bench. [Lawyers come to the bench.]

What’s the basis for your objection to these records?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

10.6 Defendant is charged with sale of cocaine. The defense is entrapment.

An undercover DEA agent, Fessler, arranged to purchase 35 kilograms of cocaine from the defendant. Fessler met the defendant at the defendant’s home. After the sale was made, the defendant was arrested and his home was searched.

Among the items seized from the defendant’s house was a ledger book. The ledgers showed the defendant's name, and had columns for dates and numbers. Under that day’s date, there was an entry under the numbers column of “35.” It is the prosecution’s theory that the ledgers show the defendant’s previous drug transactions, which would refute the defendant’s claim that he was entrapped.

The case is now on trial. Agent Fessler testifies about how he arranged for the purchase of cocaine, completed the sale, arrested the defendant, and found the ledger book. The prosecution’s next witness identifies the handwriting in the ledger book as the defendant’s. The following then happens:

Prosecutor: Your honor, we offer the ledger book, Government Exhibit No. 2, in evidence at this time.

Judge: Defense, any objection?

Defense: Yes, your honor. May we be heard on our objection at side bar?

Judge: Yes. Please come to the bench. [Lawyers approach.] What is the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

10.7 The defendant, Hernandez, is charged with illegal reentry into the United States. The charge requires proof that the defendant previously entered the United States illegally.

An INS agent, Wheeler, interviewed the defendant about his immigration status and then used the INS national computer system to determine if the defendant had an immigration file. When the computer showed an existing file, Wheeler printed out the file on his office printer. The file showed that the defendant had previously been arrested in Denver for illegally entering the United States and was deported by order of an immigration judge. Wheeler is familiar with the INS records that are made whenever an illegal alien is arrested and later deported. However, he has no personal knowledge of the defendant's earlier arrest and deportation.

An FBI agent, Novotny, sent a request for the defendant’s fingerprints to the Denver police department. In response to the request, a fingerprint card was mailed to the agent. The identification number on the fingerprint card is the same identification number reflected on the defendant’s INS records. However, Novotny has no personal knowledge of the defendant being arrested or fingerprinted by the Denver police nor does he know the procedure the Denver police use to generate and store their fingerprint records.

Before trial defendant moves to preclude the admission of the INS records and the fingerprint card. At a hearing on the motion the following happens:

Judge: This is the defendant’s motion to preclude admission of INS records and a fingerprint card. Defense, what’s the basis of your objection, and how can I rule at this time?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

10.8 A local school district brings this suit to foreclose a tax lien against Hurst, the owner of property on which back taxes are owed.

The plaintiff school district moves for summary judgment. In support of its motion, plaintiff attaches two affidavits from Reynolds and Ferguson:

(1) Reynolds’ affidavit states that he is the president of a local title company, that he personally knows that Hurst owns the property. In addition, Reynolds states that he obtained a copy of title records from the county recorder’s office that show Hurst is the owner of the property. A copy of the title records is attached to the affidavit.

(2) Ferguson’s affidavit states that he is the tax assessor and collector for the school district, and that he personally knows that Hurst owes back taxes on his property. He knows this because he reviewed the tax records himself, and has attached a copy of the tax records to the affidavit.

The defendant objects to the two affidavits and objects to the court considering them in ruling on the summary judgment motion. At the hearing on the motion the following happens:

Judge: Defense, what evidentiary grounds are there that should keep me from considering these two affidavits?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

10.9 The Environmental Protection Agency brings this lawsuit against the defendant for failing to comply with environmental regulations and to pay for the costs of cleanup.

The defendant operated a hazardous waste disposal facility. The EPA investigated and found that the soil and groundwater at the facility were contaminated, and it was designated a Superfund site. This lawsuit was then filed.

The centerpiece of the case is the EPA Report of its investigation of the defendant’s facility. The EPA did not do the physical investigation itself. Instead, it selected a company, CDM, to do the actual site inspection and testing and supervised and monitored CDM’s work. CDM is a large and well-recognized hazardous waste site cleanup consultant. The CDM inspection and testing at the defendant’s facility found numerous instances of soil and groundwater levels of hazardous substances exceeded the EPA standards. The CDM results, contained in tables showing the results of hundreds of sample tests at the facility, were made part of the EPA Report. In addition to this data, the Report also contains conclusions that the facility was contaminated with various hazardous substances in violation of EPA regulations.

The EPA manager of the investigation, Handler, was deposed and testified that the EPA Report is a routine report of the agency, that the EPA routinely conducts investigations in the same manner as the present investigation was conducted, and that the EPA routinely makes factual findings and conclusions in such reports.

Before trial defendant objects to the admissibility of the EPA Report. At the hearing, assigned to a Magistrate Judge, the following happens:

Judge: Defense, I have read your motion which details what parts of the EPA Report you find objectionable. But what are the specific evidentiary grounds on which you rely?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

10.10 Defendant is charged with possession of cocaine within 1,000 feet of a public park. The charges were filed after police executed a search warrant at a house and found cocaine, and the defendant, on the premises.

The case is now on trial. In the prosecution’s case-in-chief the following happens:

Prosecutor: Your honor, at this time we offer in evidence a County Surveyor’s Office map of the city. It's a certified copy and we offer it as a public record.

Judge: Show it to the defense.

Defense: Your honor, we have an objection and would like to be heard out of the presence of the jury.

Judge: All right. The jury will be excused for a few moments. [Jurors leave the courtroom.] What’s the basis for your objection?

Defense: This map looks like a standard county surveyor’s map, but it has a circle drawn on it, centered on the park, with a radius labeled as 1,000 feet. We object to that.

Judge: Who drew the circle and labeled it?

Prosecutor: We asked the chief of the surveyor’s office to do that, your honor. He’s in charge of making the maps for the surveyor’s office.

Judge: What’s the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

10.11 Fourteen defendants are charged with conspiracy and possession with intent to distribute heroin. The charges arise out of a smuggling operation in which women hiding heroin packets on their bodies were used as couriers on international flights into the U.S.

Much of the prosecution’s evidence consists of telephone and wiretapping information. Specifically, the prosecution intends to introduce two kinds of records in evidence:

(1) Computerized telephone records covering a period of several months. These records show the number called from, the number called to, the subscribers’ names for these numbers, and the date, time and length of each call. At the hearing, Miller, a telephone company records supervisor, testified that the telephone company has an automatic computer system, the Automatic Message Accounting System, which records in the computer the above information when each cal is made. He had the computer print out each sheet, which contained a record of a call made between specific telephone numbers between certain dates.

(2) Transcripts of wiretapped telephone conversations, and a cover sheet for each transcript showing the telephone numbers making and receiving each call, the date and time of each call, and the identified parties to each conversation. A total of 238 telephone conversations were recorded.

At the hearing, Smith, a DEA agent, testified that each telephone call was tape recorded, a court reporter made a verbatim transcript of each conversation from the tape recording, and he and other DEA agents listened to each recording and were able to recognize the voices of several of the defendants in the conversations. Smith then put the information on a cover sheet for each transcript.

At the conclusion of the hearing the following happens:

Judge: Defense, this is your motion. Assuming that the foundation witnesses testify the same way at trial, why should these exhibits be excluded?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

10.12 The defendant is charged with bank fraud. He is a car dealer who uses floor plan financing. That is, he has an agreement with the bank under which he borrows money to buy cars from the manufacturer, and pays off the bank liens on each car when he sells the car. In that way, he can obtain bank financing of his inventory. The charge is that the defendant sold cars off the books and failed to pay off the bank liens as he sold the cars.

The bank became suspicious that the defendant was not paying off the bank liens when cars were sold. It sent one its employees, Grover, to the defendant’s lot after hours. He was instructed to record the make, model, and vehicle serial numbers of each car on the lot. The bank compared that list to the number of vehicles reported sold by the defendant. The bank then discovered there were 50 fewer cars on the defendant's lot than there should have been. The bank's findings were turned over to the prosecutor’s office, which then obtained an indictment against the defendant for bank fraud.

The case is now on trial. In the prosecution’s case-in-chief, the prosecutor seeks to offer evidence of the number of cars on the defendant’s lot. During the direct examination of Grover, the following happens:

Q. (By prosecutor) When you went to the defendant’s lot, what did you do?

A. I examined each car that was there and recorded each car's make, model, and identification number.

Q. Do you have any present recollection of those makes, models, and identification numbers?

A. I remember a few of the makes and models, but that's all.

Q. I show you Prosecution Exhibit No. 5. What is it?

A. That’s the sheet of paper I used to write down the makes, models, and identification numbers of the cars on the lot.

Prosecutor: I now offer Prosecution Exhibit No. 5 in evidence and ask permission to show it to the jurors.

Defense: I object.

Judge: What are the grounds for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

10.13 The defendant is charged with twelve counts of submitting false claims to an agency of the United States.

The defendant operated a daycare center for low-income families. As such, the daycare center was entitled to be reimbursed for daily meal expenses incurred while participating in a federally funded program operated by the Department of Agriculture. The prosecution claims that the defendant fraudulently inflated the actual number of children receiving meals, so that the defendant received reimbursements for meal expenses he never incurred.

Before trial the prosecution obtained the daycare center's records for the twelve months on which the charges are based. These records include attendance records, meal records, claims forms, and work sheets, totaling approximately 200 pages.

A government employee, Johnson, prepared twelve summary charts, one for each count of the indictment. Johnson is not an accountant, but is experienced in the kind of claim investigation that was conducted in this case. Each summary chart showed the number of children attending the daycare center each day, the number of meals that would have been served each day, and the actual number of meals for which the daycare center submitted reimbursement claims. Each summary chart showed substantially greater claims than the actual attendance at the daycare center. Finally, Johnson prepared a final summary chart, which, in turn summarized the numbers of the twelve monthly summary charts. These charts were submitted to the defendant before trial.

The case is now on trial. In the prosecution’s case-in-chief Johnson is called as a witness. Johnson has just testified to his background and how he prepared the summary charts. The underlying records themselves have not been introduced in evidence. The following then happens:

Prosecutor: Your honor, at this time we offer in evidence the twelve summary charts, Government Exhibits Nos. 1 through 12, and the final summary chart, No. 13.

Defense: I object.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

10.14 This is a civil action brought by the U.S. Department of Labor against the defendant, the owner of a summer amusement park, for violations of the Fair Labor Standards Act. The government claims that the amusement park employed numerous children and that these children worked hours that exceeded the statutory limits.

A compliance officer from the Department of Labor, Williams, started an investigation of the defendant’s amusement park. Williams conducted her investigation by going to the park and examining the park’s employment records for the last full summer season. She found that the park hired numerous 14 and 15-year-old employees. Williams then analyzed each of these employees’ time and pay records, and found many instances where these employees had worked hours that exceeded the maximum hours for a particular time period permitted by the law.

When Williams finished her investigation, she prepared a report detailing what she had done. Part of that report was a chart of the defendant’s employment records. The chart shows each employee under sixteen years of age, the hours worked for each time period, and noted which hours exceeded the maximum hours permitted by the law. Although Williams’ chart was based on the defendant’s records, the government never subpoenaed those records for trial. Williams' chart was listed as an exhibit in the pretrial statement the parties submitted to the court before trial.

The case is now on trial. In the government’s case in chief, Williams is called as a witness. Williams testifies about her investigation and how she prepared the chart. The following then happens:

Plaintiff: Your honor, we offer the chart, Exhibit No. 2, in evidence.

Defense: I object.

Judge: Basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

10.15 The defendant is charged with second-degree murder for causing the death of her infant son. The defense is that her son died of accidental causes.

Two weeks after his birth the defendant's son, Daniel, was admitted to the hospital. The examining doctor found a skull fracture, and believed it to be consistent with birth trauma rather than child abuse. Daniel suffered repeated seizures, and doctors discovered an additional skull fracture four weeks later. The treating doctors disagreed over whether that additional fracture was a new fracture or only a tributary of the earlier fracture.

The key issue in the trial is whether Daniel's second skull fracture was part of, or separate and distinct from, the first fracture. The prosecution had in its possession the original x-ray negative taken of Daniel when he was first admitted to the hospital. From that original x-ray several additional prints were made.

Before trial prosecutors attempted to remove some grease pencil marks from the original x-ray negative to better see the skull fracture. In trying to remove the grease marks the prosecutors erased the emulsion from the film, making it useless. The prosecutors now intend to introduce one of the additional prints made from the original x-ray in evidence during the trial. The defendant objects. At a pretrial hearing the following occurs:

Judge: Defense, I’ve read your motion. Even if the original x-ray was damaged by the prosecution, why should a print made from that x-ray be precluded at trial?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

10.16 This is a copyright infringement case. Plaintiff, Seiler, is a graphic artist and a creator of science fiction creatures. Plaintiff claims that Lucas, the producer of the movie “The Empire Strikes Back,” used plaintiff’s copyrighted creatures in the movie without permission.

Seiler says he created science fiction creatures called “Garthian Striders” in [-20]. Seiler obtained a copyright for these characters in [-5], and deposited with the U.S. Copyright Office reconstructions of the characters he had created five years earlier. These reconstructions were Seiler’s drawings of what he says the original drawings looked like. In the meantime, in [-14], Lucas released “The Empire Strikes Back,” which contained creatures called “Imperial Walkers.”

Seiler claims the “Imperial Walkers” infringed on his copyright on the “Garthian Striders” because of their similar appearance.

During discovery defendant served a documents request on Seiler asking for production of the original drawings of the “Garthian Striders” claimed to have been created in [-20]. Seiler answered that he no longer had the originals of the drawings, and that he only had the reconstructions, which he submitted to the Copyright Office in [-15].

The case has been set for trial. Plaintiff wants to use the reconstructions of the “Garthian Striders” during his opening statement and compare them to pictures of the “Imperial Walkers.” Defendant objects. At a hearing at the beginning of trial, the following happens:

Judge: This is a hearing on the defendant’s objection to the use of plaintiff’s [-15] reconstructions during the opening statements. I take it defendant will also object to the introduction of the reconstructions during the trial?

Defendant: That’s correct, your honor.

Judge: What’s the evidentiary basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

10.17 This is a breach of contract case. Plaintiff claims he entered into a written contract with the defendant, and did the work required under the contract, but the defendant failed to pay him. Defendant admits that he did not pay the plaintiff, but claims that the plaintiff did not do the work he was required to do under the contract.

The case is now on trial. Plaintiff is the first witness in plaintiff’s case-in-chief. During the direct examination, the following happens:

Q. (By plaintiff) Mr. Smith, after you and the defendant signed the contract, what did you do?

A. I made two copies of the contract, and gave one to the defendant. I put the contract and the other copy in my files.

Q. I=m showing you Plaintiff’s Exhibit No. 1. Is that a copy of the contract you and the defendant signed?

Defense: Objection to the copy, your honor.

Judge: Basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

10.18 This is a contract case. Plaintiff claims that he has the original of the contract executed by the parties. Defendant says he never signed that contract, and that his purported signature on plaintiff’s contract is a forgery. Defendant claims that he has an unsigned photocopy of the actual contract that plaintiff and defendant executed. (The terms of defendant’s contract differ from plaintiff's contract.) Plaintiff denies he ever signed the original of defendant’s photocopy.

The case is now on trial. Plaintiff is the first witness in plaintiff’s case-in-chief. During the direct examination, the following happens:

Q. (By plaintiff) I’m showing you what's been marked Plaintiff's Exhibit No. 1. Have you seen it before?

A. Yes, that’s the original contract.

Q. Did you sign it?

A. Yes, that’s my signature here (pointing).

Q. Did you see the defendant sign it?

A. Yes, I was standing right next to him when he signed it. That’s his signature here (pointing).

Plaintiff: Your honor, we offer Plaintiff’s Exhibit No. 1 in evidence.

Defense: I object.

Judge: Basis?

The defendant is called as the first witness in the defendant’s case-in-chief. During the direct examination, the following happens:

Q. (By defense) I’m showing you what's been marked as Defendant’s Exhibit No. 1. Have you seen it before?

A. Yes.

Q. Have you ever seen the original of this exhibit?

A. Yes, I saw it when we signed it.

Q. Where was that?

A. It was at the plaintiff’s office. The original and some copies were there. He and I signed the original, he kept the original, and he gave me one of the copies.

Q. Have you seen the original since that day?

A. No. I asked the plaintiff for it, but he claimed he didn’t have it.

Defense: Your honor, we offer Defendant's Exhibit No. 1 in evidence.

Judge: Any objection?

Plaintiff: Yes, your honor.

Judge: Basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

10.19 The defendant, Bennett, is charged with illegal importation of a controlled substance into the United States from Mexico. A large amount of marijuana was found on his boat after it was searched by U.S. Customs officers. The case is now on trial.

In order to prove the defendant’s boat brought the marijuana from Mexican waters to the United States the prosecution calls Customs Officer Chandler. He testifies about the global positioning system (GPS) he discovered during the search of Bennett’s boat. A GPS device uses global positioning satellites to track and record the location of the device and the object to which it is attached. Here, the object is the boat. Chandler testifies that a backtrack feature of the GPS mapped Bennett’s journey from Mexican territorial waters to the San Diego Bay in the United States. On cross-examination, the following occurs:

Q. (Defense) Did you take possession of the GPS device?

A. No.

Q. Did you obtain any record or written data from the GPS device?

A. No, I relied entirely on my visual observations of the backtrack. It was a graphical representation of data that the GPS had compiled about the path of the defendant’s boat.

Defense: Your Honor, I now move to strike Agent Chandler’s testimony concerning the GPS.

Judge: If counsel will approach the bench, I will hear the defense objection and the prosecution’s response.

1. What is the best objection to the evidence?

2. What are the best arguments to support the objections?

3. What are the best arguments to support admissibility of the evidence?

4. What is the proper ruling?


110.20 The defendant, Ernest Sidley, is charged with making false statements to a federal agency and obstruction of a federal investigation. At trial, the prosecution presented evidence that Sidley had fraudulently used Sid Gunther’s name for a letter to the National Science Foundation recommending Sidley for an Outstanding Engineer award.


Gunther denies sending or authorizing a letter to the NSF. He testifies that on February 24, [-2], he received an e-mail that urged him to tell the NSF that Sidley had permission to use his (Gunther’s) name in the letter. Sidley denies sending the e-mail.


During Gunther’s direct examination the following happens:


Q. (By prosecutor) Mr. Gunther, I show you Prosecution Exhibit 24 for identification. What is it?

A. That’s the e-mail I received. It has Ernest Sidley’s e-mail address on it.

Q. How do you know that is Sidley’s e-mail address?

A. He and I have exchanged e-mails in the past. I had his address on my reply function key, and it would automatically dial Sidley’s e-mail address. I sent him an e-mail right away, telling him he most certainly could not say I had given him permission to use my name.

Q. Did you ever speak to Sidley about the e-mail you received on February 24, [-2]?

A. No, but on the day after I received this e-mail he called me and asked me to tell the NSF I had authorized the recommendation letter.

Prosecutor: Your Honor, I offer Prosecution Exhibit 24 into evidence.

Judge: Defense, any objection?

Defense: Yes, Your Honor.

Judge: Counsel, please approach. [Lawyers approach.]


1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?




CHAPTER 11

Judicial Notice and Presumptions

11.1 This is a criminal case in which the defendant is charged with willfully intercepting wire and oral communications between people over a telephone, in violation of a federal statute.

The case is now on trial. At the conclusion of the prosecution’s case-in-chief, the defense moves for a directed verdict on the grounds that the government failed to establish the necessary element that the wire-tap was connected to facilities operating in interstate communications.

Plaintiff then moves for leave to reopen its case-in-chief and asks the court to take judicial notice that interstate wire communications are transmitted through lines of the Northeastern Bell Telephone System. Plaintiff says it is a matter of common knowledge that telephone lines carry interstate calls. The following then happens:

Defendant: Your honor, we object.

Judge: basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. If the objections are overruled, how should the facts judicially noticed be submitted to the jury?

11.2 This is a criminal case in which the defendant is charged with possession with intent to distribute cocaine. The federal statute involved lists “coca leaves and any derivative of coca leaves” as controlled substances. During the prosecution’s case-in-chief, an expert witness, a chemist, testified that the substance found in the defendant’s possession was not pure cocaine, but no testimony was offered that cocaine is a derivative of coca leaves.

At the conclusion of the government's case-in-chief, the following happens outside of the presence of the jury:

Defendant: We move for a judgment of acquittal, your honor. The prosecution has not proved an essential element of the case. There has been no testimony that my client was in possession of a controlled substance.

Judge: The motion is denied. The Court will take judicial notice of the fact that cocaine is a derivative of coca leaves.

Defendant: We object.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. If the objections are overruled, how should the facts judicially noticed be submitted to the jury?

11.3 This is a civil case in which an employee is suing his employer alleging that he contracted a deadly disease, asbestosis, as a result of his exposure to asbestos dust and fibers in the course of his employment. Before trial, the plaintiff makes a motion for the court to take judicial notice of the fact that asbestosis is “a disease which is caused by the inhalation of asbestos dust and fibers.”

At a hearing on the motion, the following happens:

Judge: I have before me a motion from the plaintiff asking the court to take judicial notice that asbestosis is a disease which is caused by the inhalation of asbestos dust and fibers. Any objection?

Defendant: We object, your honor.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. If the objections are overruled, how should the facts judicially noticed be submitted to the jury?



11.4 This is a civil case brought against a municipality in state court. Plaintiff claims she was injured while tripping on a defective city sidewalk during an evening walk. The city defends by claiming it had no knowledge of a defective condition in the sidewalk at that location. The law in this jurisdiction requires that the municipality be on notice of a defective condition before liability can arise.

In plaintiff’s case-in-chief plaintiff calls a resident of the block where plaintiff fell down. The resident testifies that the sidewalk was uneven and cracked, that she had sent a letter to the city's streets department complaining about the sidewalk, and that she had sent the letter several weeks before plaintiff was injured. In the defense case the city calls an employee of the streets department, who testifies that she searched the records of the department, and there was no record of the city receiving a complaint of the condition of the sidewalk in that block.

At the jury instructions conference, the following happens:

Plaintiff: Your honor, we ask that the jury be instructed that there is a presumption that a letter, properly addressed and stamped, is presumed to have been received by the addressee.

Defendant: We object.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. If the objections are overruled, how should the presumption be submitted to the jury?



11.5 This is a criminal case brought in state court in which the defendant is charged with driving while intoxicated.

In the prosecution's case, evidence is admitted which shows that the defendant's blood alcohol, measured shortly after his arrest, was .11 percent. In the defense case, the defendant testified that, although he had been drinking, the drinking did not influence his driving. The applicable law provides that a person is presumed to be intoxicated when that person's blood alcohol level is above .10 percent.

At the jury instructions conference, the following happens:

Prosecutor: Your honor, we ask that the jury be instructed that the law is that a person with a blood alcohol level above .10 percent is presumed to be intoxicated.

Judge: Defense, any objection.

Defendant: Yes, your honor.

In the alternative, assume that this is a personal injury case in which plaintiff alleges that the defendant negligently drove his car while being intoxicated.

In the alternative, assume that this is a personal injury case brought as a diversity jurisdiction case in federal court.

1. What objections and motions should be made?

2. What are the best arguments to support the objection?

3. What are the best arguments to oppose the objection?

4. What are the proper rulings?

5. If the objections are overruled, how should the presumption be submitted to the jury?


CHAPTER 12

Cross-Examination and Impeachment
of Lay and Expert Witnesses

12.1 Defendant is charged with first-degree murder. The defense is self-defense.

The fatal shooting happened during a marijuana transaction. The prosecution’s theory is that the defendant intended to rob and kill the victim during the sale. The defense theory is that the attempted marijuana sale turned into an argument over the quality of the marijuana and that the victim was shot in self-defense.

The case is now on trial. In the defense case the defendant testifies to his version of what happened during the marijuana transaction. The defendant also testifies that he bought the marijuana from someone else just minutes before he tried to sell it to the victim. On cross-examination the following happens:

Q. (By prosecutor) You claim that you bought the drugs just minutes before you tried to sell it to the victim?

A. Yes.

Q. You know the person you bought the drugs from?

A. Yes.

Q. Who did you buy the drugs from?

A. I can’t tell you.

Q. Who did you buy the drugs from?

Defense: Objection, your honor.

Judge: Overruled. Answer the question.

A. I can’t tell you.

Defense: Your honor, may we approach?

Judge: Yes. [Lawyers come to the bench.]

Defense: Your honor, the reason he doesn’t want to answer is he's afraid he’ll be killed if he identifies his supplier.

Judge: Prosecution, what’s your position on this?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

12.2 This is a criminal harassment case. The victim claims that the defendant stalked her after she became acquainted with him through her work as a receptionist at a community center where the defendant attended meetings. When he became aggressive, and insisted on talking to her about her religious beliefs, she obtained a restraining order against him. The victim brought the charges when she noticed the defendant following her in his van after work.

The case is now on trial. The defendant testifies that he did not follow the victim as she claimed, and that he was at a pizza place with friends at the time. On cross-examination the following happens:

Q. (By prosecutor) Mr. Fowler, at these meetings you attend at the community center, you talk about government, right?

A. Yes.

Q. About the constitution and citizen’s rights?

A. Yes.

Q. And about government abuses?

A. Yes.

Q. In fact, you feel that you should protest government abuses, right?

A. Yes.

Q. In fact, you believe that the American flag behind you, since it has gold braiding, it makes it a military flag?

A. That’s what the law says.

Q. In fact, since it’s a military flag that makes this a military court, and you believe a military court has no authority over you, isn’t that what you believe?

Defense: Objection, your honor. May we be heard?

Judge: Yes. Approach the bench. [Lawyers come to the bench.] Defense, what’s your argument?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

12.3 The defendant is charged with manslaughter for killing his stepfather.

The key evidence consists of a statement the defendant made to his common law wife after the shooting. The wife then told a police officer what the defendant had told her.

The wife’s statement was videotaped by the police. She stated that the defendant came home and told her that he had driven to his stepfather's house where he had shot his stepfather in the head three times and then stabbed him in the chest several times.

At the preliminary hearing, the wife is called as a witness but testifies that she now has no memory of what the defendant told her. She was shown her videotaped statement, but said that the statement did not refresh her memory.

The case is now on trial. The wife is called as a witness in the prosecution's case-in-chief and again testifies that she doesn’t remember what the defendant told her, and only vaguely remembers talking to a police officer. She says that at the time she had stopped taking her prescription medication for several days, which was probably the reason she couldn’t remember. The following then happens:

Prosecutor: Your honor, in light of the witness’s testimony, we now ask permission to show the videotape of her statement to the police.

Defendant: We object, your honor, and ask to be heard.

Judge: Very well. This a good time for the jury to take its morning break. [Jurors leave the courtroom.] Counsel, other than the foundation for the videotape, what is the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

12.4 The defendant is charged with murder. The charge arose after the defendant shot his wife in the head following an argument. Defendant claims the shooting was accidental.

The case is now on trial. Officer Keller, the first police officer at the scene of the shooting, is called as a prosecution witness. During cross-examination the following happens:

Q. (By defense lawyer) Officer Keller, you talked to the defendant’s sister, Karen, later on at the scene, right?

A. Yes.

Q. Didn’t you tell Karen that you thought the shooting was an accident?

A. I told her I was not sure.

Q. My question is, did you tell Karen you thought this was an accident?

A. I don’t recall.

Later, in the defense’s case in chief, the following happens:

Defense: Your honor, as our next witness we call to the stand Karen Jackson.

Prosecutor: Objection, your honor. May we be heard before the witness begins her testimony?

Judge: Yes. Approach the bench. [Lawyers approach.] What’s this witness going to say?

Defense: She’s going to testify that Officer Keller told her that he thought the shooting was an accident.

Judge: Prosecution, what’s the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

12.5 This is an extortion and conspiracy case brought against several defendants, who are the mayor and council members of a municipality. The allegations are based on the defendants accepting kickbacks from contractors for receiving contracts to treat the municipal water supply.

The case is now on trial. In the defense case the defendant mayor testifies. During cross-examination the following happens:

Q. (By prosecutor) Mr. Marshall, you met with me and FBI Agent O’Malley at your home on April 25, right?

A. Yes.

Q. Didn’t you tell us at that time that you went to Councilman LoBue and told him that you should be part of the money?

A. No.

Defense: Objection, your honor.

Judge: Basis?

Later during the cross-examination the following happens:

Q. (By prosecutor) Mr. Marshall, are you telling us that FBI Agent O’Malley is lying when he testified earlier that you said “I told LoBue that I should be part of the money?”

Defense: Objection again, your honor.

Judge: Basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

12.6 The defendant, Strother, is charged with knowingly executing a scheme to defraud a financial institution by means of false representations.

The prosecution’s case comes down to a single check. The only issue is whether Strother induced a bank employee, Wollschleager, to authorize payment of the check despite insufficient funds in his account, by falsely representing he would provide funds to cover the check.

The case is now on trial. In the prosecution’s case-in-chief, Wollschleager is called as a witness. On direct examination, Wollschleager testifies as follows:

Q. (By prosecutor) What did Mr. Strother say to you in that phone conversation?

A. He said he had written a check for $82,500, he asked me to pay the check, and he said he was wiring me money from his available funds.

Q. Did he ask you to hold the check?

A. No, he asked me to pay it.

On cross-examination the following happens:

Q. (By defense) Didn’t you prepare Defendant's Exhibit No. 3 for identification, a memorandum of that conversation, thirteen days later?

A. Yes.

Q. Doesn’t your memorandum say: “He expected a check to hit his account, but he was having a deposit wired in—the deposit was credited June 12 and at the same time a check was presented in the amount of $82,500, the account showed that it was using unavailable funds. Because of the phone call, and Strother being a known customer, and the deposit being made, the check was paid and charged”?

Prosecutor: I object.

Judge: Defense, why is that a proper question?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

12.7 This is a personal injury case. The case is now on trial.

In the plaintiff’s case-in-chief an eyewitness testifies that he was standing outside a tavern and saw the collision between the plaintiff’s and defendant’s cars. During the cross-examination, the following happens:

Q. (By defense) Mr. Schultz, you were standing outside O’Leary's Tavern when the accident happened?

A. That’s right.

Q. Before the accident, you’d been inside O’Leary’s, right?

A. That’s right.

Q. You were drinking in O’Leary's, weren’t you?

A. I had a beer.

Q. Isn’t it true that you had several beers in O’Leary’s Tavern just before you saw the accident?

Plaintiff: Objection, your honor. May we be heard?

Judge: Approach. [Lawyers come to the bench.] What’s your objection?

Plaintiff: There isn’t any evidence that Mr. Schultz had anything other than one beer in the tavern.

Judge: Defense, what’s the basis for your asking these questions?

Defense: This is cross-examination, your honor. I’m entitled to inquire into anything that affects the witness’s credibility.

Plaintiff: It’s still improper, your honor.

Judge: Why?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?



12.8 The defendant is charged with conspiracy to distribute a controlled substance. The case is now on trial.

In his opening statement, the prosecutor says Jones, a co-conspirator, will testify that he and the defendant were in the business of selling cocaine.

In the prosecution’s case-in-chief, Jones is called as a witness. During his direct examination, the following happens:

Q. (By prosecutor) Were you in the business of selling cocaine?

A. Yes.

Q. Who else was involved in that business with you?

A. No one. I did it alone.

Q. What did you say?

A. I was in it alone. No one worked with me.

Prosecutor: I have no further questions of this witness.

Defense: No cross.

The next day the prosecutor calls Jones’ former girlfriend as a witness. During her direct examination, the following happens:

Q. (By prosecutor) Have you talked to Jones during the past few days?

A. Yes. I talked to him three days ago, in the courtroom lockup.

Q. Did he say anything about his testimony in this case?

Defense: I object.

Judge: Approach the bench. [Lawyers approach.] What do you expect this witness to say?

Prosecutor: She will testify Jones told her he felt bad about getting the defendant involved in cocaine dealing and would say anything to get the defendant out of trouble. We offer it to impeach Jones’ testimony which, needless to say, surprised us.

Judge: Defense, do you still object?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

12.9 The defendant is charged with armed bank robbery. The indictment charges that he and Brown robbed the Third National Bank on February 14 of last year. Brown’s trial has been severed.

The case is now on trial. Brown is called as a witness in the prosecution’s case-in-chief. During his direct examination, the following happens:

Q. (By prosecutor) Did you enter the Third National Bank on February 14 of last year with a gun in your hand?

A. Yes.

Q. Did you then proceed to aim that gun at a teller and demand money?

A. Yes. She gave me all her money.

Q. Did another man use a gun to assist you in committing the robbery?

A. Yes, there was another man.

Q. Do you see that man in this courtroom?

A. No. Like I told you for the last three days, the other guy ran away and I have not seen him since. I don’t know his real name.

Q. The day of the robbery you spoke with Detective Adams about the robbery, right?

Defense: I object to this.

Judge: Approach the bench, please. [Lawyers approach.] Where are you going with this, prosecution?

Prosecutor: This witness told Detective Adams it was the defendant who robbed the bank with him. He even signed a statement to that effect. I want to impeach him with his prior statements.

Judge: Defense, what is your objection to that?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

12.10 This is a personal injury case. Plaintiff claims that three years ago, at about 4:00 p.m., he was crossing the street in the crosswalk when the defendant drove his car through a stop sign and struck him.

The case is now on trial. Plaintiff calls Bond, an eyewitness who was standing on a nearby corner when the accident happened. Bond testifies on direct examination that he saw the defendant’s car go through the stop sign and strike the plaintiff.

On cross-examination, the following happens:

Q. (By defense) Where were you coming from when you reached the intersection where the accident happened?

A. I was coming from work.

Q. After the accident, did you talk to a police officer at the scene?

A. Yes.

Q. Didn’t you tell the police officer that you were coming from your home when you saw the accident?

Plaintiff: I object.

Judge: What’s your basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

12.11 The defendant is charged with burglary. Green is the crucial eyewitness. At the time of the burglary and when first talking to the police officers about the burglary, Green himself was on probation for burglary as a result of a conviction in Juvenile Court. A statute of this jurisdiction prohibits use of a juvenile conviction for any purpose in any trial.

The case is now on trial. Green testifies in the prosecution’s case-in-chief that he saw the defendant, crowbar in hand, near the safe stolen during the burglary. During cross-examination the following happens:

Q. (By defense) Did the thought enter your mind that the police might think you were somehow connected with this?

A. It came across my mind, yes.

Q. Had you ever been questioned like that before by any law enforcement officers?

A. No.

Q. In fact, at the time you were questioned weren’t you on probation for...

Prosecutor: I object to this line of questioning.

Judge: Defense, why should I allow these questions?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

12.12 Defendant is charged with sexual assault. The defense is consent.

The prosecution’s theory is that the defendant, the owner of a restaurant, sexually assaulted the victim, who was in the restaurant attending an after-hours party. The defense theory is that the victim brought a false charge against him to pressure him to make a financial payment to resolve the charge. The defendant had won a lawsuit in an unrelated matter and collected damages of $2.4 million shortly before the charge was brought. In addition, the defendant intends to call as a witness the victim's former boyfriend, who will testify that the victim told him she was trying to get financial compensation from the defendant.

The case is now on trial. The victim on direct examination testified about the defendant's sexual assault. On cross-examination the following happens:

Q. (By defense lawyer) You wanted Mr. Mink to pay you off to drop the charges, right?

A. No.

Q. Well, you told your former boyfriend that you were looking for financial compensation from him, isn’t that right?

Prosecutor: Objection, your honor.

Judge: Basis?

Later in the cross-examination the following happens:

Q. (By defense lawyer) You also knew that Mr. Mink owned the restaurant?

A. Yes.

Q. And you knew that he had recently received $2.4 million dollars from a lawsuit, isn’t that right?

Prosecutor: Objection again.

Judge: Basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

12.13 This is a misdemeanor Driving While Intoxicated case. The police stopped the defendant when they saw him speeding and driving erratically. He did poorly on a field sobriety test, but refused to submit to a breath or blood test. Defendant claims he had consumed only two beers that night and was not impaired in any way.

The case is now on trial. In the defense case the defendant testifies. On cross-examination the following happens:

Q. (By prosecutor) Mr. Moreno, isn’t it true that you are presently under probation in another criminal case?

A. Yes.

Q. That case is a felony charge?

A. Yes.

Q. If you are convicted in this case, the fact of your conviction could result in your probation being revoked?

A. I don’t know.

Q. And if your probation is revoked, you could be sent to the penitentiary?

Defense: Objection, your honor. We’d like to be heard at side bar.

Judge: Very well. Approach the bench. [Lawyers approach.] What’s the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

12.14 The defendant is charged with child molestation. The charges arise out of an incident at a juvenile detention facility where the defendant and victim were inmates.

According to the victim, the defendant sexually assaulted him while they shared a room at the juvenile facility. Defendant denies that anything happened.

Before trial a lawyer for the victim’s mother served a formal notice on the state of the mother’s intent to file a lawsuit on behalf of her minor son against the state. Such a notice is statutorily required before a lawsuit may be brought against the state.

The prosecution then filed a motion in limine to bar the use of the notice of intent to sue during the victim’s cross-examination and at any other time during the trial. Defendant objects. At a hearing on the motion the following happens:

Judge: This is the prosecution's motion to preclude using a notice of intent to sue during the trial. Defense, what’s the basis for your objecting to this?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

12.15 The defendant, Spivey, is charged with second-degree murder. The defense is self-defense.

The charges arose out of an altercation between the victim, Walker, and Spivey’s girlfriend following a near accident. Walker claimed that the girlfriend nearly hit him with her car. The girlfriend claimed that Walker had slapped her during the altercation.

When Spivey learned of this incident, he and some friends, armed with shotguns, went looking for Walker. When they found him, hanging out with friends, another argument started. During the argument Spivey fired his shotgun at Walker, killing him.

Spivey was arrested shortly after the shooting. He told the police that he was carrying a shotgun because he thought Walker or his friends might be armed, and that he shot Walker because he thought Walker was going to shoot him.

At trial the defense moved in limine to introduce evidence that the victim, Walker, was a member of the “Five Deuce Crips” gang. The defense intends to present this evidence during cross-examination of the prosecution's eyewitnesses as well as through the testimony of defense witnesses. The prosecution objects. At a hearing on the motion the following happens:

Judge: This is the defendant's motion to be permitted to introduce evidence of the victim’s gang membership, through cross-examination of the state’s witnesses as well as through defense witnesses. Prosecution, this is your objection. What’s the basis for it?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

12.16 The defendant, Marshall, is charged with bribery and corruption arising out of her public service. Marshall is a former city council member. The prosecution claims that Marshall accepted kickbacks in return for the awarding of city contracts.

The case is now on trial. In the defense case-in-chief, Pickart, an employee of one of the companies receiving city contracts, is called as a witness. Pickart on direct examination testifies he submitted bids to the city on behalf of the company without any help or suggestion from Marshall.

On cross-examination, the following happens:

Q. (By prosecutor) Mr. Pickart, aren’t you biased against the U.S. Attorney’s office because your father was convicted and jailed by the government?

Defense: I object.

Judge: Basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

12.17 Defendant is charged with armed robbery, attempted murder, and first-degree murder. The two victims were robbed, shot in the head, and had their throats slit. One of the victims died, but the other survived the attack and identified the defendant as the attacker.

Before trial the prosecution served notice on the defense of its intent to impeach the defendant, if he testifies at trial, with one prior armed robbery conviction and three prior burglary convictions. The armed robbery conviction was four years ago, and the defendant was released from prison last year. The first burglary conviction was 12 years ago, and the defendant received a three-year term of probation. The second burglary conviction was 11 years ago, and the defendant was sentenced to two years in prison. The third burglary conviction was seven years ago, and the defendant was sentenced to two years in prison.

The defendant objects and asks for a pretrial hearing to determine admissibility of the prior convictions. In his written objection the defense states that if the court permits the use of any of the prior convictions at trial, the defendant will not take the stand and testify.

At a hearing on the motion, the following happens:

Judge: This is the defendant’s motion to preclude the defendant’s prior convictions at trial. Defense, proceed with your argument.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

12.18 The defendant is charged with burglary of a motor vehicle. The vehicle had run out of gas and the driver had left to find gas.

At trial the defendant testifies that he and a friend saw the car as they were walking down the road. They looked in the car to see if it had a “fuzz buster.” They started walking away when the friend turned back, broke into the car, and removed the stereo. The defendant claims that he had nothing to do with it.

After the direct examination, the following happens:

Prosecutor: Your honor, before I begin my cross-examination, may we have a short side bar?

Judge: Very well. [Lawyers come to the bench.]

Prosecutor: Your honor, the defendant has two prior burglary convictions I intend to use on cross. Since the defense is likely to object, it would be better to resolve this issue now.

Judge: Defense, do you object?

Defense: We certainly do, your honor. It shouldn’t come in at all, but if it does the jury shouldn’t hear the name of the charge.

Judge: When did the convictions happen?

Prosecutor: One was three years ago, the other seven.

Judge: What’s the basis for the objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

12.19 Defendant is charged with sexual assault. The defense is consent.

According to the victim, she made a date with the defendant. He picked her up in his car, they drove around, smoked some marijuana, and drank some liquor. After a while the victim asked to be taken home. The defendant refused. When the victim tried to leave his car, the defendant grabbed her and raped her. The victim immediately reported the attack to the police, and the defendant was quickly arrested.

Five years ago the defendant was convicted of sexual assault. In that case the victim had a fight with her boyfriend, and afterwards met the defendant, a friend of her boyfriend, to talk about the fight. The defendant made advances to the victim, which she rejected. The defendant then attacked her and raped her. The victim reported the attack, and the defendant was arrested. He claimed the sex was consensual, but later agreed to plead guilty to sexual assault.

Before trial the prosecution serves notice on the defendant of the prosecution's intent to introduce the fact of the defendant’s prior sexual assault conviction, and the facts underlying that conviction, in the trial. The defendant objects. At a hearing, the following happens:

Judge: I need to know two things. First, how does the prosecution intend to use the prior sexual assaults in this trial? Second, what are the defense’s objections? Prosecution, I want to hear from you first.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

12.20 The defendant is charged with menacing, a felony. The victim is the defendant’s wife, from whom he is separated but not divorced. The victim is the prosecution's principal witness.

Before trial the defense serves notice that it intends to introduce at trial the fact that the victim has a misdemeanor shoplifting conviction for which she is currently on probation. The prosecution objects and asks for a pretrial hearing. At the hearing, the following happens:

Judge: This is a hearing to determine the admissibility of the victim’s prior conviction for misdemeanor shoplifting. First, what use does the defense intend to make of the victim’s prior?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

12.21 The defendant, Valencia, is charged with conspiracy to possess cocaine with intent to distribute.

The case is now on trial. During its case-in-chief, the prosecution offered evidence that seven years ago the defendant was convicted of unlawful possession of cocaine with intent to distribute. The prosecution argued that the evidence was admissible under FRE 404(b) to prove the defendant’s knowledge. The trial judge barred the evidence, ruling that its probative value was substantially outweighed by its unfair prejudice, since the prior offense was almost identical to the charge now being tried.

In the defense case the defendant testifies, and denies any role in the events that form the basis for the indictment. On cross-examination the following happens:

Q. (By prosecutor) Mr. Valencia, isn’t it true that seven years ago you were convicted of the crime of unlawful possession of cocaine with intent to distribute?

Defense: I object.

Judge: On what grounds?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?



12.22 Defendant is charged with sexual misconduct involving his fourteen-year-old daughter. The defendant denies that anything happened.

The case is now on trial. During the defense opening statement the defense lawyer says the following:

“There are only two people on the face of the earth who are in a position to know what happened. There will be evidence that the daughter who will be testifying has serious problems that may affect her ability to recount and describe what happened accurately.”

When the opening statements are finished, and the jury is excused for a break, the following happens:

Prosecutor: Your honor, in light of what the defense said during its opening statement, we intend to present evidence, through the victim’s teacher, mother and brother, that the victim has a good character for truthfulness. They opened the door to it.

Judge: Defense, any objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?



12.23 The defendant, Manske, is charged with conspiracy to distribute cocaine. Much of the evidence against the defendant comes from an alleged accomplice, Pszenicka, who made a plea agreement with the prosecution and will testify at trial.

The case is now on trial. In the prosecution’s case-in-chief, Pszenicka testifies and identifies Manske as his primary supplier of cocaine.

During Pszenicka’s cross-examination the following happens:

Q. (By defense) Isn’t it true that after an associate of yours told the police that you were involved in drug dealing, you told him: “If you don=t change your statement you might as well be dead. Either I’ll kill you or my friends will”?

Prosecutor: Objection.

Judge: Defense, why is that a proper question on cross-examination?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?



12.24 This is a medical malpractice case. Plaintiff, an infant who has brain damage, claims that the defendant obstetrician improperly performed her delivery, causing her brain damage. The defense claims the infant's brain damage was caused during the pregnancy, not the delivery or post-delivery care.

The case is now on trial. The defendant obstetrician testifies in the defense case-in-chief. During direct examination the doctor says that he delivered the infant and that after the delivery the infant was not breathing. He then inserted an endotracheal tube in the infant’s airway and connected it to an oxygen source. The doctor says that the infant’s color returned to normal after a short time.

During cross-examination, the following happens:

Q. (By plaintiff) Dr. Mahler, the infant was not breathing when delivered?

A. That’s right.

Q. You decided to insert an endotracheal tube into her airway and connected it to an oxygen tank?

A. That’s right.

Q. That’s because the infant was turning blue?

A. Yes, that's what we call cyanosis.

Q. But you never used positive pressure ventilation to force air into her lungs, did you?

A. No. That would be very dangerous to do.

Q. Dr. Mahler, are you familiar with Millstein’s treatise on “Disturbances of the Newborn”?

A. I know of it.

Q. Would you agree that Millstein’s treatise is an authoritative source in its field?

A. I can’t say.

Plaintiff: Your honor, would the court take judicial notice of the treatise being an authoritative source?

Judge: No. Please continue your examination.

Plaintiff: Your honor, I will recall my expert, Dr. Bart, to establish this in my rebuttal case.

Judge: In that case, proceed.

Defense: I object, your honor.

Q. Dr. Mahler, I’m going to read to you from page 339 of Millstein’s treatise. Follow along with me to make sure I read it accurately. It says: “However, if central cyanosis develops, positive pressure ventilation must begin immediately. Positive pressure ventilation is effectively provided by mouth-to-mouth or bag-and-mask resuscitation.” Did I read that right?

A. That’s what it says.

Plaintiff: Your honor, we offer in evidence Millstein’s treatise.

Defense: Objection, your honor.

Judge: Basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

12.25 This is a personal injury case. The collision between the plaintiff’s and defendant’s cars was witnessed by a bystander, Andrews.

Before trial Andrews was deposed by the defendant. During his deposition Andrews testified that the defendant ran a red light and caused the collision with plaintiff's car. Unfortunately, Andrews died before the trial.

The case is now on trial. In plaintiff’s case-in-chief, plaintiff offers in evidence the transcript of Andrews’ deposition. Over objection, the transcript is admitted.

In defendant’s case-in-chief, the following happens:

Defense: Your honor, we offer in evidence Defendant’s Exhibit No. 8, which is a certified copy of a record of conviction for a felony five years ago for Mr. Andrews. We also ask permission to show the exhibit to the jury.

Judge: Plaintiff, any objection?

Plaintiff: Yes.

Judge: Basis?

Later in the defendant’s case-in-chief, the defense calls Owens as a witness. During the direct examination, the following happens:

Q. (By defense) Mr. Owens, you were Mr. Andrews’ employer a few years ago?

A. Yes, until six years ago.

Q. What was his job?

A. He was a cashier in my store.

Q. What happened six years ago?

A. I fired him.

Q. Why?

Plaintiff: I object, your honor.

Judge: Approach. [Lawyers come to the bench.] What’s he going to say?

Defense: He fired Andrews because Andrews was stealing cash from the store’s cash registers.

Judge: Plaintiff, what’s the basis for your objecting?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?



12.26 Whitten, the defendant, is a lawyer charged with criminal fraud. At trial, he calls to the witness stand Blake, a lawyer who testifies to Whitten’s good general reputation in the legal community for honesty and integrity.

On cross-examination, the prosecutor asks:

Q. Have you heard that Mr. Whitten was reprimanded by Judge Thomas in November of last year for unprofessional conduct?

Defense: I object, Your Honor. The question is irrelevant and it calls for hearsay.

Judge: Approach the bench, please. Mr. Prosecutor, how do you expect the witness to answer the question?

Prosecutor: Judge, it doesn’t matter how he answers. Either way, it is admissible.

Judge: Mr. Prosecutor, for what purpose would the answer be admissible?

1. Did the defense counsel make the proper objections?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. Does the witness’s answer to the question affect the judge’s ruling?

5. What are the proper rulings?



12.27 Defendant Abel is charged with robbing a bank. At trial, one of his alleged accomplices, Ehle, agrees to testify against the defendant. Ehle identifies the defendant as a participant in the robbery.

After the prosecution rests, the defense calls Mills to the stand. Mills had been friendly with Ehle and the defendant in prison. He testifies that Ehle told him he intended to implicate the defendant falsely, in order to receive favorable treatment from the Government. On cross-examination of Mills, the following occurs:

Q. (Prosecutor) Aren’t you and Abel members of a secret type of prison organization that requires its members to deny its existence and lie for each other?

A. No.

Defense: I object and move that the last question and answer be stricken.

Judge: Counsel will approach the bench. Prosecution, where are you going with this?

Prosecutor: We intend to recall Ehle in rebuttal. He will testify the defendant, Mills, and he were members of a secret prison organization whose tenets require its members to deny its existence and lie, cheat, steal, and kill to protect each other. He also will say it would have been suicide for him to have told Mills what Mills claimed he said.

Defense: I object to that testimony.

Judge: What are the grounds for your objection?

1. What is the defendant’s best objections?

2. What are the best arguments to support the objections?

3. What are the best arguments for admissibility of the testimony?

4. What are the proper rulings?



12.28 Defendant, Olden, a black man, is charged with kidnapping and rape. His accuser, a white woman, claims that Olden abducted her from a bar, drove her to a secluded area, and raped her. The defendant claims that the sex was consensual, and further claims that the only reason the victim had brought the charges is that Russell, the victim’s live-in boyfriend, also a black man, had seen her leaving Olden's car after Olden drove her back to her home. The victim and Russell were involved in an extra-marital affair, although both were married to others.

The case is now on trial. During the cross-examination of the victim, the following happens:

Q. (By defendant) Mrs. Matthews, you’re married, right?

A. Yes.

Q. You told us on direct examination that at the time of these claimed attacks, you were living with your mother, right?

A. Yes.

Q. But at the time of these claimed attacks, you were actually living with Russell, right?

Prosecutor: Objection, your honor.

Q. In fact, you brought these charges because you knew Russell had seen you getting out of Mr. Olden’s car, isn’t that right?

Prosecutor: Objection. May we be heard?

Judge: Yes. Approach the bench. [Lawyers approach.] It’s the prosecution’s objection. What’s the basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?



12.29 This is an attempted murder and attempted robbery prosecution. The defense is mistaken identification. The victim, Duopo, was a cab driver who was shot from behind as he was driving the passenger. Duopo survived the shooting. Two months later, Duopo met with a police sketch artist, who created a composite sketch designed to reflect Duopo’s recollection of his assailant. Based on the sketch, the police arrested the defendant.

The case is now on trial. In the prosecution’s case, Duopo is called as a witness and testifies that the defendant in court is the person who shot him and tried to rob him in his cab. During cross-examination, however, Duopo identifies a photograph of the defendant’s brother as the assailant. On redirect, the following happens:

Q. (Prosecutor) Mr. Duopo, I’m showing you a police sketch, marked People’s Exhibit No. 5, and ask if you recognize it.

Defense: Objection, Your Honor, to the sketch.

Judge: Counsel, approach the bench. What’s the basis for your objection?

1. What is the best argument against admissibility of the sketch?

2. What is the best argument for admissibility?

3. What is the proper ruling?

12.30 This is a murder prosecution. The defendant, McClaugherty, is charged with shooting the victim, Solisz. McClaugherty and Solisz had gotten in an argument earlier in the evening and had agreed to meet later and fight. The two, each accompanied by several friends, drove in two cars to the agreed location. When the two cars met, gunfire broke out, and Solisz was killed.

The case is now on trial. In the prosecution’s case, a witness identifies McClaugherty as the person who had been shooting a handgun in the direction of the car in which Solisz was a passenger. The witness also says that when they returned to an apartment, he heard McClaugherty tell his sister that “they went and shot at some people.”

McClaugherty testifies in the defense case. On direct examination he denies firing any shots. On cross-examination, the following happens:

Q. (Prosecutor) You told your sister what happened that night, didn’t you?

A. Yes, I told her I was there, and that I ran.

Q. Is that all you told her?

A. I’m pretty sure.

Q. You’re aware I’ve got her statement?

A. Yes.

Q. Would it surprise you to hear that your sister, Sarah Tucker, gave a statement to the police, one day after the shooting, that said that you admitted to her that you shot Solisz?

Defense: Objection, Your Honor.

Judge: Counsel will approach. What’s the basis for your objection?

1. What is the best argument against admissibility of this testimony?

2. What is the best argument for admissibility?

3. What is the proper ruling?


CHAPTER 13

Redirect, Recross, Rebuttal, and Surrebuttal

13.1 The defendant and co-defendant are charged with armed robbery. The co-defendant’s trial has been severed.

The case is now on trial. In the prosecution’s case-in-chief, the victim testifies and identifies the defendant as the man who robbed him on the street.

The next witness, Randolph, testifies that the defendant told him, on the day of the robbery, that he was planning on robbing someone, and afterwards told him that he had robbed someone. On cross-examination Randolph admits that he didn’t tell the police about the defendant's statement until six months later. On redirect examination, the following happens:

Q. (By prosecutor) Why did you wait six months before reporting this to the police?

Defense: Objection, your honor. May we be heard?

Judge: Please approach. [Lawyers come to the bench.] What’s the witness going to say?

Prosecutor: He’s going to say that six months later the co-defendant threatened him not to talk, and that’s why he decided to tell the police everything.

Judge: What’s the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

13.2 The defendant is charged with burglary and sexual assault. The issue is identification.

The case is now on trial. In the prosecution’s case-in-chief, the victim testifies how the defendant forced his way into her apartment and assaulted her, and positively identifies the defendant as her assailant. On cross-examination, the defense brings out that her description of what happened that night is now much clearer and detailed than her initial description to the police. On redirect examination, the following happens:

Q. (By prosecutor) You told the defense lawyer that you remember today what happened more clearly than you did right after you were attacked. Is there a reason for that?

A. Immediately after the attack I was totally traumatized, and afterwards I had extensive therapy to help me deal with what happened and try to return to a normal life. The therapy helped me...

Defense: Objection, your honor.

Judge: What’s your basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

13.3 This is a murder case involving two defendants, Melendez and Marrero. The charges arise out of a shooting that occurred in a project building.

The case is now on trial. In the prosecution’s case-in-chief, a police detective, Alexis, testifies about how he arrested Marrero. On cross-examination Alexis is asked the following:

Q. (By defense) When you brought Marrero to the precinct, he was a suspect, right?

A. Yes.

Q. You questioned him about the homicide?

A. Yes.

Q. Did you tell him he was a suspect?

A. No.

On redirect examination, the following happens:

Q. (By prosecutor) Why did you consider Marrero a suspect?

Defense: Objection, your honor. Side bar?

Judge: Yes. [Lawyers come to the bench.] What will the witness say?

Prosecutor: He’s going to say that two days after the shooting a concerned citizen told him that Melendez and Marrero were involved in the shooting, and gave him a physical description of the two men.

Judge: What’s the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

13.4 This is a murder case. The defendant, a prison inmate, is charged with stabbing another inmate.

The case is now on trial. In the prosecution’s case-in-chief a prison guard testifies that shortly before the stabbing the defendant, Oliver, was involved in a scuffle with several other inmates and that Oliver told the victim: “I have killed before, and I can kill you.” On cross-examination the guard is asked for the names of the other inmates involved in the scuffle, and replies that he did not recall the names of the others.

On redirect examination, the following happens:

Q. (By prosecutor) How is it you remember Oliver’s name, but you don=t remember the names of the other inmates?

A. If inmates are troublemakers, you learn their names faster. Oliver, for instance, has been written up several times. The first time was when...

Defense: Objection, your honor.

Judge: Basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

13.5 This is a murder case. The charge arises out of a confrontation outside a home during which the victim was shot.

The case is now on trial. A witness, Lemon, is called in the prosecution’s case-in-chief. Lemon testifies that she saw both the defendant, Charles, and the victim, Freddy, outside her house. A short time later she heard a shot ring out and Freddy said: “You got me.” Charles then said: “Die, mother” and another shot rang out. A little while later Charles came into the house.

During cross-examination, the following happens:

Q. (By defense) Let’s talk about when Charles came into your house. He talked to you, right?

A. Yes. He said...

Q. I want to ask you only about the ambulance. Charles asked you to call an ambulance, didn’t he?

A. Yes.

On redirect examination the following happens:

Q. (By prosecutor) Other than the ambulance, what else did the defendant tell you when he went into your house after the shooting?

Defense: Objection, your honor.

Judge: Approach. [Lawyers come to the bench.] What’s the witness going to say?

Prosecutor: She’s going to say that in addition to telling her to call the ambulance, the defendant told her that if the police asked who shot first, she should say that Freddy shot at him first.

Judge: Defense, what’s the basis for objecting to this?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

13.6 This is a manslaughter case. The charges arise out of an altercation in a bar between the defendant and victim, during which the defendant struck the victim in the face. The victim fell to the floor and died shortly afterwards. The defense is self-defense.

In the prosecution’s case-in-chief the bartender testifies that he saw the defendant strike the victim and the victim then fall backwards on the floor.

On cross-examination, the following happens:

Q. (By defense) Sir, as of the date of this incident, did you know the defendant’s reputation in the community for peacefulness?

A. Sure, he was a regular in the bar. Everybody knew him.

Q. What was his reputation?

A. He was known to everyone as a peaceful kind of guy.

On redirect examination, the following happens:

Q. Sir, did you know that six months after this incident the defendant struck his own wife?

Defense: Objection, your honor.

Judge: Basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

13.7 This is a manslaughter case. The defendant shot his girlfriend during a quarrel. The defendant claims that the shotgun discharged accidentally. After the shooting, which happened in the victim's home, the defendant put the victim in his pickup truck and drove to get help, but the pickup truck broke down on the way to the hospital.

The case is now on trial. In the prosecution’s case-in-chief a paramedic testifies that he was driving his ambulance when he was flagged down by the defendant, who was standing by a pickup truck. The defendant said: “I just killed somebody” and pointed to the body of the girlfriend in the bed of the pickup truck. The defendant also said: “I didn’t know the gun was loaded. It discharged and I killed her.”

On cross-examination, the defense brought out that the defendant was extremely distraught, and had sought the help of the paramedics.

During redirect examination, the following happens:

Q. (By prosecutor) Other than what you told us earlier, did the defendant say anything else to you?

A. Yes he did, but I’d have to look in my log book to get the details.

Q. Do you have the log book with you?

A. Yes.

Q. Feel free to look at your log book if necessary.

Defense: We object, your honor.

Judge: Basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

13.8 This is a murder case. The defendant, a prison inmate, is charged with stabbing the victim, another inmate. The defense is mistaken identity.

The case is now on trial. In the prosecution’s case-in-chief another inmate is called as a witness, who testifies that he saw the defendant enter the victim's cell and stab the victim. On cross-examination, the defense brings out that the inmate was a friend of the victim but did not call for help or notify the guards when he saw this happen.

On redirect examination, the following happens:

Q. (By prosecutor) If the victim was a friend of yours, why didn’t you get help or call the guards when this was happening?

Defense: We object, your honor.

Judge: Please approach. [Lawyers come to the bench.] How is the witness going to answer?

Prosecutor: He’s going to say that in prison silence is golden, and that if he had called for the guards he would have been killed himself.

Judge: Defense, what’s your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

13.9 Defendant is charged with being a felon in possession of a firearm, namely, a shotgun. The case is now on trial.

In the prosecution’s case-in-chief, a police officer, Barham, testifies. Barham says that he observed the defendant in a group of young men standing on a corner in a high drug activity area. As Barham got closer, the defendant began to walk away. Barham called out to the defendant to stop, but the defendant began to run, and Barham chased him. During the chase Barham did not see a firearm on the defendant, although the defendant ran in an awkward manner with his arms close to his sides. The defendant tried to hide behind a van, but Barham caught up to him. Barham then found a twelve-gauge shotgun under the van where the defendant had been crouching. Although the ground under the van was wet, the shotgun was dry. The defendant said the gun was not his. Barham then arrested the defendant. This testimony is entirely consistent with the details of the event contained in Barham’s police report.

During cross-examination the defense focused on the fact that Barham never saw a firearm in the defendant’s possession at any time.

During redirect examination, the following happens:

Q. (By prosecutor) Officer Barham, just a couple of questions about the defendant’s arms. First, how was he holding his arms during the time he was running?

A. He had his arms pressed against his sides. It made him look awkward when he was running.

Q. At any time when he was running, were you able to see his hands?

A. No, I never saw his hands at any time.

At the conclusion of the redirect examination, the following happens:

Defense: Your honor, we=d like to recross the witness in light of what he said on redirect about not seeing the defendant’s hands. That's something he didn’t say in direct.

Prosecutor: Objection to that, your honor.

Judge: Please approach the bench. [Lawyers approach.] Why should I permit a recross-examination?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

13.10 The defendant, Marshall, is charged with bribery and corruption arising out of her public service. Marshall is a former city council member. The prosecution claims that Marshall accepted kickbacks in return for the awarding of city contracts.

The case is now on trial. A prosecution witness, Costello, testifies on direct examination that Marshall solicited him and his company for kickbacks. On cross-examination, the defense impeaches Costello with his statement to the FBI. In that statement Costello said Marshall never solicited him or his company for kickbacks.

On redirect, the following happens:

Q. (By prosecutor) Mr. Costello, why did you make that statement to the FBI?

A. Because my boss told me if I didn’t say anything about Marshall and the contracts my job would be safe.

Defense: I object.

Judge: Basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

13.11 This is a medical malpractice case. Plaintiff claims that she went to the hospital for a partial hysterectomy and removal of her left ovary, and that the defendant surgeon removed both ovaries without her informed consent. The defense is that during the surgery both ovaries were found to be diseased and incapable of producing future pregnancies, requiring their immediate removal.

In the plaintiff’s case-in-chief two doctors testified that the pathology samples of the right ovary taken during the surgery and mounted on slides showed no sign of chronic pelvic inflammatory disease and that plaintiff could have had more children had that ovary not been removed. The pathology slides were admitted in evidence.

In the defendant’s case-in-chief a doctor testified that, based on his examination of photographic enlargements of the pathology slides, the plaintiff was suffering from chronic pelvic inflammatory disease of the right ovary. The photographic enlargements were admitted in evidence.

In the plaintiff’s rebuttal case, the plaintiff recalls Dr. Combs, one of the two doctors who had already testified in the plaintiff's case-in-chief. Out of the jury's presence, the following happens:

Defense: Your honor, we object to Dr. Combs testifying a second time. He’s already said everything he can possibly say.

Judge: Plaintiff, what’s he going to say this time?

Plaintiff: Your honor, Dr. Combs is simply going to say that he’s had a chance to look at the photographic enlargements and that they don=t change his opinion. He never saw those photographs before today.

Judge: Defense, what’s your argument?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?





13.12 This is a conspiracy to distribute amphetamines case. The evidence against the defendant consists primarily of former co-defendants who pleaded guilty and became government witnesses. They testify that they worked for the defendant and helped carry out his amphetamine transactions.

The defendant testifies in the defense case and states that he was engaged in the automobile business in Los Angeles with his partner, Koch, and that he had no involvement in any amphetamine trafficking and had no knowledge of it.

In the prosecution’s rebuttal case Koch is called as a witness, and the following happens:

Q. (By prosecutor) Were you involved in an automobile sales business with the defendant at the time he was arrested?

A. Yes.

Q. Was this auto sales business you had with the defendant profitable?

Defense: Objection.

Judge: Approach. [Lawyers come to the bench.] What’s he going to say?

Prosecutor: He’s going to say that their auto business was not profitable, and that they had sold only ten to fifteen cars in the nine months before the defendant was arrested.

Judge: Defense, what’s the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

13.13 This is a sexual assault case. The defense is that no intercourse occurred between the defendant and victim.

The case is now on trial. In the prosecution’s case-in-chief the victim testifies that she was abducted and held by the defendant under duress for three days, and that during that time the defendant assaulted her.

The defendant testifies in the defense’s case-in-chief. He says that the victim went with him willingly and that no sexual intercourse occurred between them during those three days.

In rebuttal, the prosecution calls the doctor from the emergency room who examined the victim. Out of the jury's presence the following happens:

Defense: Your honor, before the jury comes out, we object to the prosecution calling the ER doctor at this time.

Judge: What’s his testimony going to be?

Prosecutor: He’s going to say that he examined her shortly after the defendant released her, that his examination showed that the victim had seminal fluid in her vagina, and that in his opinion intercourse had occurred within the past 72 hours.

Judge: What’s the basis for objecting to this testimony?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?



13.14 This is a personal injury case. The plaintiff is an infant born two months after an automobile collision. The plaintiff’s mother was a passenger in a car involved in the collision. Plaintiff claims that now she suffers from convulsive seizures caused by the collision.

In plaintiff’s case-in-chief Dr. Jaworski testifies that plaintiff is suffering from convulsive seizures caused by interuterine cerebral trauma which occurred when the plaintiff’s mother was thrown into the dashboard of the car during the collision.

In defendant's case-in-chief Dr. Denhoff agreed with the plaintiff’s expert that plaintiff is suffering from a convulsive disorder. However, Dr. Denhoff testifies that the cause of the disorder could be any of three things: the mother being 16 years old when the infant was born, an intrauterine infection early during her pregnancy, or the collision. Dr. Denhoff testified that he could not say which of these three possible causes was the actual cause.

In plaintiff’s rebuttal case, the plaintiff recalls Dr. Jaworski. Out of the jury’s presence the defendant objects. The following then happens:

Judge: What’s the basis for your objection?

Defense: They’ve already called Dr. Jaworski, your honor. This is simply an attempt to have the last word. That’s improper.

Judge: Plaintiff, what’s the purpose for calling the doctor again at this time?

Plaintiff: He will say that he disagrees with Dr. Denhoff.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

13.15 The defendant is charged with possession of cocaine with intent to distribute. The prosecution's main witness is Brown, an accomplice who made a plea agreement with the prosecution under which he agreed to testify against the defendant in exchange for a more lenient sentence.

The case is now on trial. On direct examination Brown, as expected, implicates the defendant. During the defense's cross-examination, the defense extensively attacked his credibility, in effect calling Brown a liar.

On rebuttal, the prosecution calls a police officer. During the officer’s direct examination, the following happens:

Q. (By prosecutor) Lt. Goshert, have you used Brown in the past as a confidential informant?

A. Yes.

Q. For what purpose?

A. To obtain search warrants over the past four years.

Q. How many times did you use Brown to obtain search warrants?

A. Numerous times.

Q. What is your opinion as to his being a reliable individual?

A. He is extremely reliable.

Q. How many search warrants were obtained on his word?

A. Sixty-five, sixty-six, something like that.

Defense: Objection, your honor, to this testimony. May we be heard at side bar?

Judge: Approach. [Lawyers come to the bench.] Defense, why is this testimony improper?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?


CHAPTER 14

Closing Arguments

14.1 This is a child molestation case. During the defendant's closing argument, the attorney raises the issue of the lack of a doctor’s corroborative testimony. During the prosecutor’s rebuttal closing argument, the following happens:

Prosecutor: Remember that the little girl’s parents didn’t find out for a week about what had happened to their daughter. At that point, there wouldn’t have been anything for a doctor to find. That’s why there isn’t a doctor here to talk to you today.

Defendant: Objection, your honor.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

14.2 This is a personal injury case involving a car accident. During the plaintiff’s closing argument, the following happens:

Plaintiff: How do we know that the defendant was negligent? We know because he had a poor driving record. He was just lucky that he never had an accident before.

Defendant: Objection.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

14.3 This is a manslaughter case in which placing the defendant at the scene of the crime is the central issue. An eyewitness to the crime testified that while the defendant looked like one of the men he saw at the scene, he could not be sure that the defendant was the one wearing the striped shirt.

Prosecutor: You heard what Mr. Brooks said. Remember, he’s the one who saw the whole thing. You heard him say that this defendant sure looks to him like the guy he saw at the scene wearing the striped shirt.

Defendant: Objection, your honor.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

14.4 This is a murder case where the defendant is claiming he shot the victim in self-defense. During the course of the trial, an eyewitness testified that she heard the victim tell the defendant to “Go get your gun,” to which the defendant replied: “Stay right here until I get back.” During the prosecutor’s closing argument, the following happens:

Prosecutor: You heard Mrs. Howard’s testimony. You heard her say that after the victim told the defendant to go get his gun, the defendant yelled back: “Wait right here while I go get my piece.”

Defendant: Objection, your honor.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

14.5 Defendant is charged with possession with intent to distribute a controlled substance.

The charges arose out a controlled buy during which a cooperating person (who had just been arrested for a drug offense) bought a bag of marijuana from the defendant at the defendant’s house using $200 in marked money provided by the police. The police then obtained a search warrant for the defendant's house, searched the house, and found the $200 in marked money.

The defendant made a pretrial motion to suppress the fruits of the search based on defects in the warrant. That motion was granted, and the $200 was suppressed.

The case is now on trial. Based on the pretrial ruling, neither side attempted to introduce any evidence of the search warrant, search of the defendant’s house, or recovery of the $200 in marked money.

In the defense’s closing argument the following happens:

Defense: Members of the jury, you heard evidence that the police gave Moffitt $200 to buy the marijuana. That money was official funds of the police department. However, during the trial there has been no evidence as to what happened to the official funds.

Prosecutor: Objection, your honor. May we be heard?

Judge: Yes. [Lawyers come to the bench.] What’s the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

14.6 This is a murder case. The defense contends that the defendant shot the victim in self-defense.

The defendant testified during the trial and was the only defense witness. The defendant testified that the victim had displayed a knife and gun, and that he then shot the victim in self-defense. On cross-examination the defendant stated that the shooting happened in the presence of several bystanders, some of whom were the victim’s friends, others his friends.

During the prosecution’s closing argument, the following happens:

Prosecution: The defendant had friends there, yet has not been able to bring forth any witnesses to corroborate his story that he shot in self-defense. He has the same subpoena power we have.

Defendant: Objection, your honor.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

14.7 This is an armed robbery case. The defendant claims that he was an unwilling participant who was merely a passenger in the getaway car. During the prosecutor’s closing argument, the following happens:

Prosecutor: You heard the deputy’s testimony about when he stopped the getaway car for speeding. You heard his testimony that the defendant was one of the three people in the car. Did the defense ask the deputy on cross-examination if the defendant thanked him for rescuing him from the car? No, the defense did not ask the deputy this because they knew what the answer would have been.

Defendant: Objection, your honor.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

14.8 This is a murder case. Before the closing arguments, the following happens outside of the jury’s presence. The judge rules that the prosecution can mention only that an eyewitness (the defendant's husband) did not testify, but cannot argue that an adverse inference could be drawn from that fact. During the prosecutor's closing argument, the following happens:

Prosecutor: The defendant gave you all kinds of information to consider. But she didn’t give you something else. She didn’t give you the testimony of one of the central figures in this whole chain of events. She did not call her own husband, who saw the whole thing.

Defendant: Objection, your honor.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

14.9 This is a wrongful death action by the estate of an infant who died during delivery. Dr. Hibbard was not a named defendant, but was an employee of the hospital and had witnessed some of the events on which the lawsuit was based. During the plaintiff's closing argument, the following happens:

Plaintiff: Who didn’t the defendant let you hear from? The defendant did not call Dr. Hibbard. Do you want to know why? Dr. Hibbard wasn’t called because she couldn’t say anything to back up what the defense says happened.

Defendant: Objection.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

14.10 This is a sexual assault case. During the prosecutor’s closing argument, the following happens:

Prosecutor: The defendant has given you nothing here but innuendo and speculation. This attorney is trying to drown you in a sea of confusion ...

Defendant: Objection, your honor.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

14.11 This is a conspiracy case, in which the credibility of the arresting officer is at issue because he had made some conflicting statements. During the prosecutor's closing argument, the following happens:

Prosecutor: I can assure you, ladies and gentlemen, that the State would not waste its time bringing to trial a case in which we felt the arresting officer was lying.

Defendant: Objection.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

14.12 This is a murder prosecution. During the prosecutor's closing argument the following happens:

Prosecutor: Curious, isn’t it, how the defendant's testimony conveniently matches the other evidence they presented? But that’s not really surprising. After all, that defendant was sitting here throughout the trial, while our witnesses and his witnesses testified. He knew exactly what each of them said, and he could easily make sure that his testimony would not conflict with theirs. Why else would they have the defendant testify last?

Defendant: Objection.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been raised?

14.13 This is a civil case. The plaintiff is suing the city for failure to hire a properly trained cheerleading coach, and is alleging that the volunteer coach’s negligence led to her suffering personal injuries during practice. The volunteer coach had no cheerleading training or experience. During the defendant's closing argument, the following happens:

Defendant: This case is really about who will really lose if you return a verdict for the plaintiff. The ones who will really lose are the kids who won’t get to participate in programs like this because no one will volunteer to coach if they think they can end up being sued. There will be no more cheerleading. There will be no more little league.

Plaintiff: Objection, your honor.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

14.14 This is a murder case. During the prosecutor’s closing argument, the following happens:

Prosecutor: What about the victim’s rights? I want to talk about her rights because she can’t be here today to speak up for herself. What about her right to grow old, to have a family?

Defendant: Objection.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

14.15 Defendant is charged with first-degree murder and other offenses.

The events giving rise to the charges began with an attempted burglary at an apartment building. When neighbors heard glass breaking, they called the police. Several officers responded to a radio message of a burglary in progress, including Officer Doffyn. As Doffyn and other officers searched the apartment building for the burglars, they came upon the defendant. In an exchange of gunfire, Doffyn was shot in the head, chest, and thigh and died later that day.

The case is now on trial. In the prosecution's case Officer Doffyn’s blood-and-brain-stained uniform was admitted in evidence, a mannequin was used to demonstrate the location of the bullet wounds, morgue photographs of Officer Doffyn were admitted in evidence, and a pathologist testified about the bullet wounds that caused his death.

In the prosecution’s closing argument the prosecutor plans to put Officer Doffyn’s uniform on the mannequin and display it before the jury. Furthermore, the prosecutor asks that the clothing be given to the jury during its deliberations and that the jury be given surgical gloves in order to inspect the clothing. The defense objects. Out of the hearing of the jury the following happens:

Judge: Before we bring out the jury for the closings, I need to rule on the defendant's objections. Counsel, why should the prosecution be precluded from doing this? It’s closing argument, isn’t it?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

14.16 Defendant is charged with first-degree murder of a police officer and other drug charges. The police officer was shot as he was responding to the scene of a crime.

The case is now on trial. In the prosecution's rebuttal argument the following happens:

Prosecutor: Members of the jury, you’ve heard all about Officer Johnson. His parents need to hear something from you. They need to hear that, even though they suffered the worst possible nightmare a parent could suffer, that they had to bury their child, they need to hear from you that they will get justice. And his daughter, Brittany, needs to hear from you that her daddy didn’t die in vain. Every police officer in the state, from the superintendent down to the newest rookie, needs to hear from you now.

Defense: Objection, your honor.

Prosecutor: They need to hear from you that no gun-toting drug dealer is going to get away with shooting one of them.

Defense: Objection, your honor. We insist on a side bar.

Judge: Approach the bench. [Lawyers approach.] What’s the basis for your objection?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

14.17 This is a wrongful death action. During the defendant’s closing argument, the following happens:

Defendant: I think it’s important for you to keep in mind that the accident could have happened to anyone. I think it’s important for you to keep in mind that if there was anything Mr. Platt could have done to avoid the accident, by gosh, he would have.

Plaintiff: Objection, your honor.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

14.18 This is a personal injury case. During the plaintiff’s closing argument, the following happens:

Plaintiff: If you find for the plaintiff, you must determine how much money in damages you should give her. You must put yourselves in her shoes. You must walk a mile in her moccasins. You must figure out how much you would want for having to go through what she did. How much would you take to have to spend three weeks in the hospital. To have a metal plate in your back to hold you together?

Defendant: Objection, your honor.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

14.19 This is a personal injury case. During the defendant’s closing argument, the following happens:

Defendant: You all drive. You all know how far you can see when you drive. You know how important brake lights are, because you all watch for them to come in on the car in front of you. You know that if someone brakes unexpectedly in front of you, you are in a position where you might hit the car in front of you. Everyone here has had a close call like that.

Plaintiff: Objection, your honor.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

14.20 This is a murder case, in which the defendant is claiming temporary insanity. During the prosecutor’s closing argument, the following happens:

Prosecutor: Are we going to let the defendant get away with this? If he is found not guilty by reason of insanity, all he will get is a slap on the wrist. He’ll walk out of this courtroom a free man and will laugh at us all.

Defendant: Objection, your honor.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

14.21 This is a sexual assault case. During the prosecutor’s closing argument, the following happens:

Prosecutor: If you want to find the defendant not guilty, ladies and gentlemen—especially you ladies—you had better think twice. Think twice because this could happen to you. Someone could come up to you on the street and put a gun to your back...

Defendant: Objection, your honor.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

14.22 This is an involuntary manslaughter case. During the prosecutor’s closing argument, the following happens:

Prosecutor: The defendant is charged with involuntary manslaughter because her daughter died after she gave her too much of the wrong medicine. The law says that the mother must have acted recklessly. Reckless means being careless. Mrs. Smith was careless when she gave her young daughter the wrong medicine.

Defendant: Objection.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

14.23 This is a fraudulent misrepresentation case, in which the plaintiff/buyer claims that the defendant/seller misrepresented the condition of the roof of a building. During the defendant's closing argument, the following happens:

Defendant: You have to find for us. That buyer lost his right to rely on anything we said about the roof as soon as they hired an engineer to check it out.

Plaintiff: Objection, your honor.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

14.24 This is a personal injury case. It is being tried in a state that is a pure comparative negligence jurisdiction.

During closing arguments the defense argues as follows:

Defense: Members of the jury, the defendant didn’t do anything wrong here, as the evidence we presented has shown. However, even if he did something wrong, the evidence shows that the plaintiff himself helped cause the accident, and you can=t find for the plaintiff in that situation.

Plaintiff: Objection, your honor.

Judge: Basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

14.25 This is a personal injury case, in which the plaintiff wants damages for pain and suffering from injuries she received from a fall at defendant’s establishment. Plaintiff's surgeon testifies during the trial that the plaintiff’s injuries are permanent. The plaintiff also introduced mortality tables into evidence. During the plaintiff's first closing argument, he did not argue for a particular measure of damages. During the plaintiff’s rebuttal closing argument, the following happens:

Plaintiff: I suggest that a way for you to estimate how much money it will take to compensate the plaintiff for her injuries is to do this. Since she will have to live with this pain for the rest of her life, and I’ve provided you with a way to figure out how long that will be, I suggest you use what is called a per diem measure of damages. Let’s consider each day of her life beginning today.

Defendant: Objection, your honor.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

14.26 This is a personal injury case in which both liability and damages are in issue.

The case is now on trial. In the plaintiff’s closing argument, plaintiff spends most of his time arguing liability, and simply asks the jury to award compensatory damages in the amount of $100,000. In the defense’s closing argument, the defense argues that plaintiff has failed to prove liability, and that even if the plaintiff were entitled to any damages, they should not be more than $20,000.

In plaintiff’s rebuttal, the following happens:

Plaintiff: Members of the jury, you may be wondering how I came to suggest $100,000 as an appropriate award for damages. Well, the best way is to look at the elements you will be allowed to consider when determining damages, and then see what fair and full compensation should be for each of those elements. I’ve prepared a diagram here listing those elements. (Lawyer puts diagram on easel.)

Defense: I object to this argument, your honor.

Judge: Basis?

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?

14.27 This is a theft case, in which identity is the main issue. The key testimony for the prosecution was by the white store employees, who identified the black defendant as the robber. During the defendant's closing argument, the following happens:

Defense: You know, a lot of people say that all black people look alike to all white people, and vice versa.

During the prosecutor’s rebuttal argument, the following happens:

Prosecutor: Something came up during the defense's closing argument that I hate to see happen, but I feel like I should address it. Defense counsel brought up the subject of race. I suppose that must have been aimed at you, Mr. Williams [the only black juror]. But I want you to remember that defense counsel is the one who tried to remove you from the jury but his challenge was overruled by the judge.

Defendant: Objection.

1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?



14.28 At the close of a murder trial, the prosecutor makes the following rebuttal argument:

Prosecutor: Now the defendant talks about tunnel vision. And you see there’s certain words, catch phrases, defense attorneys can draw on when they address juries, and when O.J. Simpson had his difficulties, we all know the magic words: “Rush to Judgment.” And, then, for months afterwards, every attorney gets up and tells the jury: “It’s a rush to judgment.” Well, O.J. is old. He’s still playing golf, and, now, you use “tunnel vision.”

Defense: I object. That is improper argument.

1. What are the best arguments to support the objection?

2. What are the best arguments to oppose the objection?

3. What is the proper ruling?

14.29 Brown is charged with wire fraud. During the trial the prosecution offers evidence that Brown previously committed other similar fraudulent acts. The evidence is admitted under FRE 404(b) in order to prove Brown’s intent to defraud. An instruction is given to the jury describing the limited purpose of the evidence.

During closing arguments, the prosecutor says: “And my question to you is, if a man is willing to cheat a little bit over there, like we know Brown did before the events of this case, wouldn’t he be willing to cheat just a little bit over here?”

Defense: I object. That is improper argument.

1. What objection should the defense make to the argument?

2. What is the prosecutor’s best response?

3. What is the proper ruling?


14.30 The defendant, Joe Rivers, is on trial for possession of cocaine with intent to distribute. The evidence showed Rivers was a passenger in a car that traveled from Mexico to the United States, where the car was stopped and searched at the border. Drug enforcement agents testified to incriminating statements made by Rivers after his arrest. The defense attacked that testimony during final argument.


During the prosecution’s rebuttal final argument, the prosecutor made the following statements:


“These agents were very, very credible witnesses.”

“Do you think an agent who has worked as a law enforcement agent for many years, that is his career, that is his chosen life, a man from this area, a man with a family, do you think he would throw all that away by taking this stand and taking an oath and would lie to you to get Mr. Rivers?”

“To acquit Rivers, you would have to believe these agents got out of bed on the day they arrested Rivers and decided that this was the day that they were going to start a conspiracy to wrongfully convict Mr. Rivers.”

“I am going to ask you to respect their efforts as law enforcement officers and to believe the testimony that they have offered.”


After the jury was instructed and retired to consider its verdict, the following happened:


Defense: I want the record to show I object to the prosecutor’s final argument and I move for a mistrial.


1. What objections and motions should be made?

2. What are the best arguments to support the objections?

3. What are the best arguments to oppose the objections?

4. What are the proper rulings?

5. How else could these issues have been resolved?




Test footnote please ignore