EVIDENCE



Professor Franks

Final Examination, Fall 2002







GENERAL INSTRUCTIONS


1. Carefully analyze the facts and grasp the issues in each question before beginning to write. Spend time reading the question slowly and carefully.

2. State the issues and answers to each question concisely. Lengthy answers are not necessary.

3. Do not repeat questions in your answers. Write neatly and legibly on only one side of each page.

4. Number your answers to correspond with the question, e.g., "I-E."

5. If you feel it necessary to assume additional facts in any of the questions, give the facts that must be added and state why.

6. Do not write in the margin of the book.

7. All major questions are equally weighted unless otherwise indicated. Subparts are approximately equal but may be weighted slightly differently according to the number of issues involved in that subpart.

8. Write your pin number and the name and section number of the course on which you are being examined on the cover of each examination book.

9. If you use more than one book, indicate "Book One," "Book Two" and so forth on the cover of each book and write your fictitious name and number and the name and section number of the course on the cover of each examination book.

10. A GOOD ANSWER IS NOT NECESSARILY A LONG ANSWER.







BACKGROUND TO BOTH QUESTIONS


An SUV driven by defendant Al Landry collides with a car driven by Sybil Williams, seriously injuring her child Tamika, who is in the right front seat.

Please note that this fact situation is taken almost verbatim from Problem 9-B on page 695 of our Evidence casebook: C. Mueller & L. Kirkpatrick, Evidence Under the Rules (4th ed., Aspen Law & Business, 2000). Copyright © 2000 by Christopher B. Mueller and Laird C. Kirkpatrick.  Used with permission.


QUESTION I

63 per cent of test


In the ensuing lawsuit by Sybil Williams against Al Landry, the plaintiff calls Bob Richard as a witness.  Study the following transcript of Mr. Richard's testimony on direct and cross examination. Consider whether either side has proper objections. Consider also how you would avoid or cure any problems in Mr. Richard's testimony. Discuss.


Direct examination

Q. [plaintiff's counsel] Please state your name and address for the court reporter.
A. [witness] Bob Richard, 430 Marilyn Drive, Baton Rouge.
Q. Mr. Richard, directing your attention to the afternoon of June 12 of last year, did you see an automobile accident in the 400 block of Marilyn Drive
A.   Yes, sir. I was sitting outside on my front porch swing. It happened practically in front of me.
Q. Please tell the jury what you saw.
A. Well, the lady across the street, Ms. Williams, was backing her car out of the driveway to take her daughter to ballet lessons when an SUV plowed right into the side of her.
Q. Did you see the driver of the SUV?
A. I did.
Q. Do you see him here today?
A. I'm not really sure. It's been almost a year. The driver had a beard and that fellow is clean-shaven. But I would guess that's him over there [pointing to the defendant].
Q. Let the record show that the witness pointed to the defendant.  Now, Mr. Richard, how fast was the SUV going at the time of the collision?
A. I would say he was going at least 35 miles per hour.
Q. And what is the speed limit on that street?
A. Well, generally it's 35 miles per hour, but the law says you can go only 20 if you're within 500 feet of a school, and we are.  So he was breaking the speed limit, no question about it.
Q. Did you go over to the SUV after the accident?
A. Yes, sir.
Q. Did you notice any unusual odor coming from the SUV?
A. Yes, sir.  There was a strong smell of pot.  I'm sure the driver was smoking a joint -- had been, anyway.
Q. Would you say he was stoned?
A. I really can't say.
Q. Well, how did he seem?
A. It's hard to say, but he had a real guilty look, like he was afraid he was going to lose his license or get sued.
Q. What was Ms. Williams doing after the accident?
A. She was crying, real hard.
Q. What about?
A. I think she was upset about her little girl Tamika, who got hurt the worst of anyone.
Q. What injuries did Tamika and her mother suffer?
A. Well, Tamika looked like she had a broken back, but Ms. Williams only had a dislocated shoulder.
Q. How extensive was the damage to her car?
A. The whole right side was caved in.  The car was totaled.
Q. And do you know the approximate value of the car?
A. I'd say about $5,000.
Q. No further questions.  Thank you Mr. Richard.

Cross examination

Q. [by defense counsel] Mr. Richard, isn't it true that Ms. Williams barreled out of her driveway without stopping or looking to see whether anyone was coming?
A. [witness] Well, she looked like she was in a hurry, and she didn't turn around to look at the street as she came out.
Q. And Mr. Landry, in the SUV, did everything he could to avoid a collision, isn't that so?
A. Yes, he couldn't have stopped in that short a space.  Ms. Williams just backed out right in front of him.  It was sad to see.
Q. Now Mr. Richard, let's assume that we can identify the most careful driver in the world.  If he or she had been driving along Marilyn Drive on that fateful afternoon, could that hypothetical driver have avoided Ms. Williams's car, backing out the way she did.
A. No, I don't believe so.

PLEASE ANSWER THE FOLLOWING QUESTION:

Simply identify the objectionable questions asked and answers given. State precisely what you would have done, and why, had you been each of the attorneys in the case.  Discuss.




QUESTION II

37 per cent of test


Dr. Sigmund Fraud, a psychologist, is prepared to testify that little Tamika suffered permanent psychological scarring as a result of the accident, and that this will impair her performance in school and her chances for happiness in life. Dr. Fraud is a Jungian psychologist (a follower of the theories of the late Carl Jung). Jungian psychologists are rare; most psychologists are either Freudian (following the theories of the late Sigmund Freud) or Skinnerian (following the theories of B.F. Skinner).

Dr. Fraud administered no psychological tests to the child and bases his opinion on just one visit with the child lasting less than an hour.

II-A. May Dr. Fraud testify as to the mental condition of the child using a Jungian analysis? Discuss how the court will make its ruling.

II-B. Your research has revealed an article in the Journal of Psychology entitled "How to Evaluate Psychological Trauma in a Child." The article, by Professor Heinrich Grossflugzeug of Harvard, says:

Projective tests, such as the Children's Apperception Test, are absolutely essential to evaluate the psychological condition of a child. One often sees such tests not used where a hasty, inadequate diagnosis is made by a professional hired for purposes of litigation.

You wish to use the article to impeach Dr. Fraud. Can you? Explain in detail how if at all you might be allowed to do so. Discuss.



Return to The Castle Classroom


Copyright ©2002 by M. R. Franks - ALL RIGHTS RESERVED