The University of Florida
Fredric G. Levin College of Law
Evidence • Fall 2007
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 and may refer to forms and other resources, as long as you draft your own motion.
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 Defendant Larry Edwin Craig and the other half as an Assistant State Attorney for Hennepin County, Minnesota. The State seeks to offer the entire description of what the Sgt. Dave Karsnia alleges he observed as described in the attached police report. Defendant seeks to exclude any statements attributed to him in the attached police report.
You will assume that the applicable rules are the Federal Rules of Evidence, together with accompanying caselaw. Your motion must adequately represent the interests of the party you represent, be it the defendant or the state 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 Tuesday, November 6, 2007. You may turn them in to me during class, or to my secretary, Ms. Betty Donaldson in the secretarial pool office.
FACTS AND INSTRUCTIONS
For purposes of this project you shall refer to the allegations of fact included in the police report regarding the arrest of the defendant on June 11, 2007 at the Minneapolis International Airport.
The state seeks to offer the testimony of Police Sergeant Dave Karsnia and Detective Noel Nelson, who are expected to testify consistently with the description of the events included with the police report. The prosecution will advance the theory that the words and acts of the defendant constituted both verbal assertions and conduct intended as assertions. They will further argue that the statements are not subject to exclusion pursuant to a hearsay objection on two theories: (a) that the statements are not being offered to prove the truth of the matter asserted, and, in the alternative, (b) that even if they were to be classified as “hearsay,” the statements are made admissible by express language in the Federal Rules of Evidence.
Defendant Craig seeks to preclude the testimony of Sergeant Karsnia and Detective Nelson, arguing generally that admitting the testimony would be erroneous under the Federal Rules of Evidence, and more specifically setting forth arguments under the Hearsay Doctrine and pursuant to rule 403. Senator Craig’s defense argues that his conduct was not in any way intended as an assertion, and that if it was, the matter asserted was not what the state claims it to be. Moreover, defendant maintains that the theory of the prosecution requires the “truth use” of any alleged statements and would thus run afoul of the Hearsay Doctrine.
Counsel for the State: Last names starting with ALL and ending in LUO
Counsel for Defendant Craig: Last names starting with MAR and ending in ZIE
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 [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.