Evidence Exam: Try Your Hand?

Question

Peter Plaintiff is a prison inmate. Della Defendant is a prison guard. Peter brings a civil action against Della in the State of Blackacre. The action is for assault and sexual assault. The first count of Peter’s complaint avers that at 2:00 a.m. on June 1, 2002, Della shot Peter in the leg with a revolver as he lay sleeping on his bed in his cell. The second count of the complaint avers that Della climbed into bed with Peter after shooting him and attempted to have sexual intercourse with him. Della’s responsive pleading to the complaint contains an answer and a counterclaim. The answer avers that Della shot Peter to ward off Peter’s attempt to rape her. The counterclaim states a claim against Peter for assault.

The case proceeds to trial in a court of the State of Blackacre. Judge Major Wisdom is the presiding judge. You are Judge Wisdom’s law clerk. Your name is Diligent Clerk.

At the trial Peter testifies that Della assaulted and sexually assaulted him in the manner described in the complaint. On cross-examination Peter states, “I have never belonged to a gang.”

Della’s counsel then offers to have Buddy Cellman testify that he (Buddy) and Peter were cellmates and that on September 1, 2004, Peter said to him:

You know, I belong to Prison Misprision. That’s a prison gang. It’s got a chapter right here in our joint. It’s got chapters in lots of joints. Prison Misprision has got lots of mumbo-jumbo. When people are initiated into Misprision, they swear to maim prison guards and rape women. That’s done in candlelight. That’s the way it’s done in all of the gang’s chapters. Buddy, you should consider joining Misprision. If you don’t join a gang, the guards will get you even if your fellow inmates don’t. I know what I’m talking about. In this joint ya gotta get your enemies before they get you.

Peter’s counsel objects to this proposed testimony.

Judge Wisdom responds, “We need to adjourn the trial for a day so that I can consider the admissibility of Mr. Cellman’s testimony.” Judge Wisdom then turns to you and says, “Diligent, I want you to write a memo for me. I want your memo in my hands in 24 hours or less. I want you to tell me if Buddy’s testimony about his conversation with Peter is admissible or inadmissible. Consider and evaluate all plausible objections to Buddy’s testimony. Hit the books!”

Write the memorandum and submit it within 24 hours.