An Exam Question

Last semester I gave my Evidence students the option of taking a 24-hour open-book take-home exam. This is the problem I gave them:

Problem

Unctuous Uncle, a 50 year-old adult, is charged with the sexual molestation of his niece, a minor child, Nellie Niece. The case is tried in a federal district court before Judge Minimum Wisdom. You are Classy Clerk. You are Judge Wisdom's law clerk.

If permitted to testify, Nellie will be the government's chief witness. Shortly after the trial begins, the prosecutor offers to have Nellie testify that in 2007, when Nellie was four years old, Unctuous stroked her "wee-wee."

In response, the defense requests and the trial judge grants a voir dire hearing. Pike Piker, a social psychologist, then testifies for the defense that (i) he treated Nellie for six weeks in 2008, when Nellie was five years old, (ii) Nellie repeatedly told him that she believes that all men are devils, (iii) Nellie is a social psychopath, and (iv) female social psychopaths tend to be misanthropic and they tend to have sexual delusions.

After this testimony is presented to the trial court, the defense asks the trial court to bar Nellie from testifying at the trial. The defense asks, in the alternative, that Pike Piker be allowed to present to the jury the testimony that he presented to the trial judge. The prosecution opposes the defense motion for an order barring Nellie from testifying at the trial and it moves, in the alternative, for a trial court order barring Piker from presenting his testimony to the jury.

After hearing these motions and responses, the trial judge states, "I'm going to adjourn the trial for a day so that I can think things over.” The trial judge then turns to you and states:

Classy, 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 I should grant or deny either one or both of the defense motions. And, Classy, I want a classy memo. So don’t forget to do your homework. I mean that I expect to do some legal research; I can’t imagine that you can give me good answers without doing some legal research. So get to work.

Write the memorandum and submit it to Judge Wisdom within 24 hours.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.