Evidence Examination Spring Semester 2007

Evidence Spring Term 2007 Prof. Peter Tillers

Instructions

This examination has one question.

This is an "open book" "take home" examination.

You have 24 hours to prepare and submit an answer.

You are free to consult any written material of any kind, including library materials, LEXIS, and WESTLAW. [further exam instructions omitted]

Problem

Vila Victim was stabbed to death on June 1, 2006.

Sam Sidekick was also stabbed during the attack on Vila. However, Sidekick did not die on June 1, 2006. Sidekick died in a hospice on September 1, 2006.

The State of Blackacre indicts Albert Accused for the murder of Vila Victim on June 1, 2006. Accused pleads not guilty.

The case against Accused proceeds to trial. The presiding judge is Judge Obscure Wisdom. You are Wisdom’s law clerk. Your name is Diligent Clerk.

The prosecution’s theory is that (i) Albert Accused tried to rape Vila Victim while Sam Sidekick held Victim from behind, (ii) Victim resisted the attempted rape, (iii) Victim’s resistance enraged Accused, Accused pulled a knife out of his pocket, and Accused began stabbing Victim, (iv) Victim fought furiously to fend off the knife attack, and (v) during the ensuing struggle between Vila Victim and Albert Accused, Accused inadvertently stabbed Sidekick as well as Victim.

The defense theory is that Albert Accused stabbed Sam Sidekick to prevent Sidekick from raping Vila Victim and that Accused accidentally stabbed Victim while trying to prevent Sidekick from raping Victim.

At the trial the prosecution offers to have Caring Caretaker give the following testimony:

I work at Hopeful Hospice. I first saw Sam Sidekick there on June 15, 2006. He was in pretty bad shape. I was assigned to be his main caretaker. Of course, all the people who come to Hopeful Hospice are in a bad way; they’re there precisely because they’re dying. But Sam was in a bad way psychically as well as physically, and something other than the prospect of death was troubling his soul.

I decided to do something about that. I decided to subject Sam to guided visual imagery and guided auditory stimuli. The aim of my therapy is both to clear the mind and calm the soul in preparation for death. No one taught me how to do the sort of therapy I do. I’m an autodidact; I taught myself. I got the idea of doing what I do by reading about guided imagery on the web and in books. But no one taught me how to do the sort of therapy I do. My therapy is unique. As I said before, my job is to keep patients comfortable and to bring them peace of mind in any way I can. I can’t tell you why or how my therapy works. All I know is that it works. I know this from trial and error. I’ve used it on many patients, and many patients have come to feel better spiritually as a result. I know that this is so because I’ve seen it happen with my own eyes.

I did my thing with Sam over a period of weeks. For a long time the therapy didn’t seem to work; for the most part Sam just mumbled and jumbled, and he generally spoke in incoherent phrases. If he said anything at all, he said only that he didn’t remember a thing. But then it worked; something clicked. One day – it was August 31, 2006 – after I showed Sam a series of images and had him listen to a series of soothing sounds, Sam went into a trance. It was a deep trance. It was a frenzied trance; he was semi-conscious but excited. That’s precisely the state I seek to induce by the regimen of guided visual imagery and guided auditory stimuli that I use. My regimen has almost always worked in the past. I think it worked this time as well. When Sam came out of the trance, he was lucid and coherent. He told me that his mind was clear, that his soul was at peace, and that he remembered every last detail in his life. And he thanked me.

The very next day – September 1 – two police officers came by. They said they were investigating a case and they wanted to interview Sam. I told them they were free to try. We went to Sam’s room. They set up a digital video disk recorder; they said they wanted to record their interview. They then proceeded to ask Sam questions about someone they called "Albert Accused" and someone else they called "Vila Victim." They asked Sam all kinds of questions. But Sam just rolled around in the bed and moaned. After about ten minutes, they turned to me and said, "Can you get him to talk? We can’t get anything out of him." I told them I could make no promises but that I could subject him to some guided imagery and stimuli to see what if anything would happen. So I did my shtick.

When I do my sort of therapy, I use all kinds of images and sounds. In Sam’s case, I usually used the sound of rippling water and religious imagery such as pictures of St. Francis of Assisi. This time I played the sound of a running waterfall and I showed Sam an image of Joan of Arc, one in which Joan is shown being burned at the stake. This had an immediate effect. Sam seemed to go into a frenzied trance. He rolled back and forth and he moaned loudly. He then shouted, "Albert, did you get her in the chest? But you didn’t mean to stab Vila in the head, did you?" This was all recorded on the videodisk that the police made with their digital recorder.

But things ended badly. Immediately after Sam blurted out his odd question about Albert and Vila, Sam rolled over and went into cardiac arrest. I shouldn’t have agreed to help the cops; I realized that even then. But I made no effort to revive Sam or to get medical help. After all, Sam was at a hospice, not a hospital. It was my job to keep Sam comfortable, not to keep him alive. A few hours later Sam died. It was all very sad.

Albert Accused’s counsel states, "Your Honor, I object to this testimony. Caretaker’s testimony is clearly hearsay. Furthermore, …" Before defense counsel can say anything more, Judge Wisdom interrupts by stating, "Counsel, I don’t want to hear anything more. I’m going to adjourn the trial so that I can consider the admissibility of Caretaker’s testimony." Judge Wisdom 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 Caring Caretaker’s testimony or any part of it is admissible or inadmissible. Consider and evaluate all plausible objections to Caretaker’s testimony. But keep your perspective. Focus on the important issues. Don’t discuss every conceivable evidence issue. Moreover, emphasize the nettlesome evidence issues. You’ll have to discuss black letter law, of course. But I don’t need or want an extended lecture on black-letter principles of evidence. I want you to grapple with the hard questions. Oh yes, I almost forgot: Diligent, don’t forget to do your homework. What I mean is this: I’m sure you’ll have to do some legal research. I can’t imagine that you can give me a good analysis of this Caretaker problem without doing some legal research. So get to work.

Write the memorandum and submit it within 24 hours.