THE UNIVERSITY OF FLORIDA

The University of Florida

Fredric G. Levin College of Law

Evidence • Fall 2003

Prof. Pedro A. Malavet

Practical Project

As I announced in your syllabus, I require each student to submit a practical project that accounts for ten percent (10%) of your testing score for this course. The project is judged on a pass/fail basis.

Each student will work individually, although I have assigned you a role to play as indicated in the list attached hereto. You are allowed to discuss the problem with your classmates.

Your assignment is to write a motion in limine, based on the fact-pattern that follows. Half of the class will act as counsel for the prosecution and the other half as defendant’s counsel. The defense is seeking admissibility of certain evidence at the eventual trial and the prosecution opposes admission of the proffered evidence. Your motion must adequately represent your side’s interests and make reference to the pertinent Federal Rules of Evidence, cases and other materials included in your casebook and Rules supplement (you are allowed to extend your research beyond these resources, but it is not required).

DUE DATE: Projects are due on or before 5:00 p.m. on Wednesday, November 12, 2003. You may turn them in to me during class, or to my secretary, Ms. Betty Donaldson in the secretarial pool office, or at my office.

FACTS:

This fact-pattern is clearly borrowing from the reports regarding the Kobe Bryant rape case. However, I have changed the context to that of a federal criminal prosecution by using last year’s examination essay question, and I have added facts that are completely the product of my imagination to make it easier to construct your legal arguments. I intend no commentary on the Bryant case or on the case that I used to develop last year’s exam question. Be advised that some of these facts are taken from a very real case of alleged sexual assault and from a reported opinion affirming a sexual assault conviction; therefore, the language that is used is necessarily graphic. While I will be the only person reviewing your submissions, I advice you to approach the project with judiciousness and tact.

On the Bryant case, see Order Re Probable Cause Determination, The People of the State of Colorado v. Bryant, 03 CR 204 (October 20, 2003); on the case that informed the exam question, see U.S. v. Wright, 53 M.J. 476 (CAAF 2000). Quotations are directly taken from the judge’s order in the Bryant case.

John Smith, a Senior Cadet at the U.S. Air Force Academy, is charged with the rape of fellow Cadet Mary Johnson, and unlawful entry into her dormitory room. The Accused is now charged with the indecent assault of Cadet Johnson on 26 April 2003, as well as housebreaking of Cadet Johnson's room, at 0130 hrs. on 26 April 2003, that is, unlawfully entering her room with the intent to commit the criminal offense of rape.

Cadet Johnson will testify that on the morning in question she woke up in her dormitory room and found Smith on top of her and that Smith had put his hand under her clothes and was touching her vagina. As she awoke, she attempted to scream but Smith put his hand over her mouth and said that he would kill her if she screamed. He then removed her panties, pinned her arms on her side and vaginally raped her.

Cadet Johnson is a 20-year-old white female. She is 5 feet, three inches tall and weighs 120 pounds. Cadet Smith is a 24-year-old African American male. He is 6 feet, 8 inches tall and weighs 270 pounds.

The charge is violating section 223 of the Uniform Code of Military Justice, which forbids “indecent assault” which is the military code’s label for rape. The crime is defined as “knowingly caus[ing] another person to engage in a non-consensual sexual act—(1) by using force against that other person; or (2) by using threat or intimidation against that other person.”

Cadet Smith will testify that he and Johnson had consensual sex. That she invited him to her room in the early morning hours of 26 April, and that they then engaged in consensual sexual intercourse.

The prosecution will also present evidence of a sexual assault medical examination that was conducted on Johnson after the alleged rape. The examination was performed at a hospital near the academy at 4 p.m. on April 27 by two qualified physicians. That examination disclosed vaginal and other bruising and bleeding on the complaining witness, which the Sexual Assault Nurse Examiner will describe as “penetrating genital trauma … not consistent with consensual sex.” The treating physicians refer to the trauma as “penetrating genital trauma,” but did not offer an opinion one way or another about whether the trauma was or was not consistent with consensual sex. The doctors “found several lacerations in the alleged victim’s posterior fourchette, between her vaginal and anal openings. Two of the lacerations were one centimeter in length and there were several one millimeter lacerations.” However, “no trauma was observed as to the labia majora, [there was] bilateral redness, but no cuts, tears or lacerations were noted for the labia minora, no trauma was observed as to the vagina, clitoris and hymen, redness was observed as to the cervix, and no trauma was observed as to the rectum. No medical treatment was rendered for the lacerations.” An examination of the underwear and pajama top that Johnson was wearing at the time of the alleged rape found no blood or blood products of any kind. However, pubic hairs consistent with Cadet Smith were found on the pajama top. Johnson had taken the pajama top and panties to the hospital room inside a plastic bag and had worn street clothes, not her uniform, when she went to the hospital.

The defense wishes to argue that the source of the alleged victim’s injuries was another sexual encounter or the combined effect of a series of sexual encounters. To that end, they wish to offer into evidence the results of testing conducted by the prosecution, and turned over to the defense, on the panties worn by Johnson on the date of her sexual assault examination, which had been collected during the examination (it is common to keep the clothes worn by the complainant at the time of the examination, even if they were not the clothes being worn at the time of the alleged assault). The FBI testing laboratory found on the panties pubic hair consistent with a Caucasian male, and semen that DNA testing found to be inconsistent with Cadet Smith’s DNA profile. The panties also had on them amounts of what DNA testing indicated was blood consistent with the alleged victim’s DNA profile. “Additional swabs were taken from the alleged victim’s body which contained semen and sperm.” Their examination found that these are not consistent with the defendant’s DNA profile.

Johnson will testify that the semen, sperm and hair are the result of a consensual sexual encounter that occurred three weeks prior to her alleged rape. She will testify that the blood on the panties came from bleeding related to her menstrual period. She adds that in her state of shock resulting from the rape, she did not pay attention to the underwear that she wore on the 27th.

Qualified defense experts, physicians who have conducted their own examination of the evidence, will testify that it is their opinion that the blood on the panties could not have been there for more than 24 hours before the items were taken at the hospital. They will provide the same opinion in regard to the semen and sperm on those panties. They will testify further that the blood does not display blood-chemistry characteristics consistent with bleeding related to a woman’s menstrual period. Finally, the defense experts, having examined the photographs of the alleged victim’s genital area, and having physically examined the defendant, are of the opinion that the redness, lacerations and trauma are not consistent with sexual assault by the defendant. The defense experts are of the opinion that the trauma, redness and lacerations are consistent with (a) repeated sexual activity during a relatively short period of time, i.e., three sexual encounters over a two or three day period; and (b) a consensual encounter with someone of the physical characteristics of the defendant with a person of the physical characteristics of the alleged victim.

The complaining witness told investigators that in addition to the consensual sexual encounter with her former boyfriend (Albert Jones) three weeks prior to the alleged rape, she also had consensual sex with her current boyfriend (James Sterling) in the early evening of April 25. DNA testing finds that the semen on the panties worn by the alleged victim to the hospital is consistent with Jones’ DNA profile, and inconsistent with those of Smith and Sterling. DNA testing of the semen and sperm found on the swabs found those samples to be consistent with Jones’ DNA profile, but inconsistent with that of Smith or Sterling.

The defense wishes to ask the alleged victim if she had sex with three men over two or three consecutive days, in order to support their theory regarding the source of the injuries. The defense will also subpoena Albert Jones and Robert Sterling and call them as witnesses at trial to ask about their sexual encounters with Johnson in the days near the alleged rape. The defense believes that Johnson and Sterling had a sexual encounter on the date and time she described. However, the defense believes, and will argue, that Albert Jones and Johnson had sex some time after the sexual intercourse between defendant Smith and Johnson, and before the time of the medical examination. They intend to question Jones and Johnson accordingly.

In its motion in limine seeking the exclusion of this evidence, the prosecution argues that the proffered defense evidence is inadmissible. They further say that the defense is attempting to assassinate the character of the alleged victim generally, and violating Federal Rule of Evidence 412 in particular.

In its motion in limine seeking permission to use this evidence, the defense argues that the offered evidence is admissible generally, and that it is allowed under the applicable exception expressly included in Federal Rule 412.

It is important to anticipate and to address the opponents’ arguments in your motions.

Students should follow the general form guidelines given below. It is especially important that you put your name at the top of the first page of your submission, above the rest of the text (where “counsel” is often identified in many forms).

Form

A typical federal motion looks roughly like this:

Case

Caption

[Counsel/

student name][1]

[Court:]

In the United States District Court

For the district of Colorado

denver division[2]

[Case Title][3]

The United States,

vs. Criminal No. 2003-192[4]

John Smith,

Defendant

Substance

[Document Title][5] MOtion in Limine
[You might add Specific purpose: e.g. “To Admit ...” Or “To Exclude ...”]

[Opening][6]

[Body of the Document: What you want to say/argue]]

[Prayer][7]

closing

[Date]

[Certificate of Service][8]

[Counsel’s Signature, Address and Telephone Number.][9]

[1] In some courts, counsel must include name, address, telephone number and identify the client at the top of the first page of any filing, as an administrative convenience.

[2] The positioning of the court designation in the document varies from state to state and even among the Federal Judicial Districts. But, somewhere on the first page, the party must identify the court before which the action is pending. I have chosen the district of Colorado, because the US Air Force Academy is in that state. I randomly selected Denver as venue.

[3] In the complaint, the case title must include the names of every party, plaintiff or defendant. Thereafter, a shortened case title is used. In our example this is not a problem, but imagine a case with hundreds of parties. (The title of amended complaints in the DuPont fire case listed all parties and took up hundreds of pages). In a criminal case, it is the State or the People, or the People of the United States vs. defendant(s).

[4] The case number is assigned by the clerk of the court. The designations typically will indicate if the case is a civil or criminal matter. Other sub-categories may also be used, depending on local practice. The number usually includes the last two digits of the year in which the matter is filed, followed by the assigned number.

[5] The document title is sometimes placed to the right of the case title, this depends of local court practice. It is never placed before the court designation.

[6] The opening tells the court which party appears before it to request something. For example: “NOW COMES the defendant, John Smith, through his undersigned counsel, and to the court respectfully states and prays:”

[7] Most legal documents request that the court do something, even if it is simply to take notice of the information therein contained. The most common exception are discovery documents, which are usually addressed to opposing parties.

[8] In the civil context, the complaint will generally be the only document in a case file without a certificate of service. In this context, service means to give notice of the filing to the other party. It generally means providing opposing counsel with a copy of the document by personal deliver or by mail. However, when you file a complaint, you generally do not know who opposing counsel will be, and, absent a stipulation regarding service, you the party must be officially summoned. Notice of the complaint is accomplished by summons. Rule 5(b) of the Federal Rules of Civil Procedure, governs service of documents filed after the complaint. Please note that service by mail or messenger service is generally acceptable.

[9] Some courts require that each document include the bar number of the attorney who signs it. In any case, counsel is generally required to include her name, mailing address and telephone numbers in the motion.