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Reply To Topic Topic: Advice for first time CBX takers
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Posted By on 24 Nov 2009 02:20 PM
Sure, here's an answer I did for the attorney I mentioned in my post (the bar grader). She tutored me for the Feb. 09 CBX. It's from the July 04 exam and it's an evidence question. Evidence questions are different from other subjects in that you have to run through the list of admissibility, competence, etc. so they tend to be longer. You end up with less time for analysis. In my post I also forgot to say don't waste time if you really can't find an "on the other hand, . . . " argument. Just use a fact from the question (put it in quotes) and say why the fact shows the law does or doesn't apply. Here you go: 1. Tom’s testimony Relevance In order to be admissible, evidence must be logically relevant and legally relevant. Evidence is logically relevant if it tends to prove or disprove a fact of consequence. In California, the fact must be in dispute. Evidence is legally relevant if its probative value is not substantially outweighed by the danger of unfair prejudice, confusing of issues, misleading the jury, or waste of time. Here, Tom’s testimony tends to prove that Daniel intentionally attacked Victor with gasoline instead of “accidentally” spilling it on him because he talked about “burning” him before the incident occurred. Therefore, the testimony is logically relevant. Because the evidence is so probative, it will not waste the jury’s time to hear it and is therefore legally relevant. Competence Evidence must be competent. If a witness is testifying, he must have firsthand knowledge of what he is testifying about. Here, Tom was the recipient of Victor’s statement so he has first hand knowledge. Hearsay Hearsay is a statement made by an out of court declarant offered for its truth. Hearsay is generally inadmissible because the veracity of the declarant cannot be determined. Here, the statement was made by Victor to Tom before the attack and therefore was made out of court. It is being offered to show that Daniel threatened Victor. Therefore, the statement is hearsay and will be inadmissible unless an exception or exemption applies. Here, the statement is hearsay within hearsay. In such cases, both “layers” must be examined. Both layers must be admissible as an exception or as non-hearsay in order to be admissible. Here, the inner layer is Daniel’s threat to Tom. As discussed above, the statement is hearsay. However, the statement might be admissible as an exception. Here, the statement might be a statement against interest. Such statements are admissible exceptions. However, under such an exception, the declarant must be unavailable for trial. Because Tom is clearly at trial, he is not unavailable and the exception does not apply. The statement might also qualify as non-hearsay to show the defendant’s state of mind with respect to his intent. Here, the statement shows that Victor intended to attack Daniel with gasoline. The outer layer of the hearsay statement is Victim’s statement to Tom (in which he repeated Daniel’s threat). That statement was made out of court. It is being offered to show that Daniel had threatened Victim. Therefore, it is hearsay. However, if the statement is instead being offered to show the effect on the listener, instead of for its truth, the statement will be admissible as non-hearsay. Here, Daniel “complained” to Tom about Daniel’s threats which shows that he was troubled by the threats, which shows their effect. Therefore, the statement is admissible as non-hearsay to show the effect on Daniel. Accordingly, the court should have admitted the evidence. 2. Victor’s testimony Relevance The testimony is logically relevant because it casts doubt on Victor’s testimony that he was “frightened” by the flames. People who are frightened generally don’t laugh at what is frightening them. Furthermore, it shows that Victor followed through with his threat to “burn” Victim, thus making Tom’s testimony more likely. The evidence is legally relevant because it is probative and will not confuse the jury. Competence Victor witnessed Daniel laughing and running out of the shop. Therefore, he is a competent witness. Hearsay It’s doubtful that Victor’s laughing was a “statement” for the purposes of the hearsay rule. Therefore, hearsay is not an issue here. Given the above, the evidence should have been admitted. 3. Judicial notice Judicial notice is proper where the fact notices is notorious or when it is capable of being accurately verified. Here, most people know that gasoline is highly flammable so the fact is notorious. In civil trials, the jury must accept as true a judicially noticed fact; in criminal trials, the jury may but is not required to accept the fact as true. Because most people know gasoline is flammable the court properly took judicial notice here. 4. Cross-examination of Daniel Leading question A leading question is one that suggests an answer. Here, the prosecutor asked a leading question that assumed or suggested the answer (“Isn’t it true...?). Such questions are permitted on cross-examination, and the question was therefore not improper. Facts not in evidence There are no facts to indicate that the lighter found at the garage had any initials on it. Physical evidence must be authenticated, i.e., it must be shown to be what a party is claiming it is. Here, the prosecutor is claiming that the lighter had Daniel’s initials on it and therefore belonged to him. The facts don’t suggest that the lighter has been entered as an exhibit. Therefore, it has not been authenticated. Accordingly, the prosecutor is improperly assuming facts not in evidence and his question was improper. 5. Jury’s conduct Jurors are not permitted to communicate with anyone or deliberate regarding the case when they are not in deliberation. The two jurors violated this rule when they discussed the truck’s clearance because they did so during a “break” in deliberations. The jurors’ “experiment” was improper because it does not necessarily accurately reflect how gasoline would spill. What the jurors should have done is request the judge to allow them to conduct the experiment in the actual garage where the incident occurred, using gasoline instead of water. Instead, the jurors made a decision based not upon the evidence but upon conjectural speculation. As such, the jurors’ conduct was improper.
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