The University of Florida
Fredric G. Levin College of Law
EVIDENCE
F A L L 2 0 0 7
Professor Pedro A. Malavet
General Comments
Effort. The level of effort varied wildly. Many students clearly put a lot of work in their motions. I was especially impressed by those who cited many cases, including Minnesota caselaw, and by references to the 5th Amendment rights of the defendant. Several students came up with great arguments. I was especially impressed by the use of the "no" uttered upon seeing the badge as an excited utterance that constituted an admission. On the defense side, I was impressed by those students who used homophobia to argue the unfairly prejudicial effect of the evidence against the defendant. Almost everyone correctly noted that the evidence concerned was the testimony of the police officers regarding their personal observations including the statements made by the defendant, not the police reports. Officer Karsnia's testimony was the key testimony here, since Officer Nelson comes in too late to have personal knowledge of the important facts. I recall only one person getting it completely wrong as to what the evidence was, though the attempted use of the police reports themselves as evidence, rather than as the narrative of the facts that would be testified about in court, did produce a few more errors.
Those of you who made a good effort will be rewarded in the exam because you already know that you can draft a thorough essay answer for my examination. I strongly suggest that you go back over your writing in view of the coverage in our course during the past month, to see the areas where you could have done better. Those of you, and you know who you are, who wrote two or three page motions and cited not a single case need to prepare to provide a very good answer to the exam essay.
Purpose. The project was designed to set up our discussion of hearsay exemptions and exceptions in Chapter 4 of our casebook. I trust that my references to it in class have already given you much of the substantive information that you needed to provide an accurate answer. I also wanted you consider what it means to write a motion in a real case for two reasons. First, because I believe that it is nice to have future lawyers consider what they will actually do when they graduate, that is, write motions. Second, I wanted you know what it means to carry out your function as an advocate for a position and how that determines the structure and content of your arguments. That is what I expect of you in the examination. You will have a result to justify, and you will be required to do so thoroughly and knowledgeably.
Form. I was not greatly concerned with form. Some students chose to file their motion as if it was filed in a federal district court, others referred to Minnesota Hennepin County. Whatever choice you made was fine. (The law firm of "Dewey, Cheatem and Hawe"?).
104(a) and Standard of Review
104(a) and Bourjaily generally apply, though as to the credibility of the declarant, officer Karsnia, the matter is for the jury under 104(b). But all foundational factual requirements must be found by the court by a preponderance of the evidence as to this hearsay evidence as provided by Bourjaily and as seen as well in Mahlandt (Cb. P. 207) and Bruton.
The court’s findings are subjected to abuse of discretion review as to rules questions, but, as to the constitutional question, the court will find facts and law de novo. Legal matters are for the court.
Rule 401. Definition of "Relevant Evidence" "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Fundamentally, the prosecution would argue that the senator's conduct constituted a solicitation of consensual sex. This in turn would be argued to be "obscene ... conduct or ... offensive, obscene, ... language tending reasonably to arouse alarm, anger, or resentment in others." The solicitation would also show the intent to interfere with privacy in a place where the person has a reasonable expectation of privacy and is likely to expose "intimate parts."
The defense would argue that no statement was intended, except perhaps, I need to use the bathroom. In any case, no relevant statement was intended. Given the standard of Rule 401, this is not an argument with a high likelihood of success.
Since I told you to argue it as hearsay, you had to construct an evidential hypo that said these was "non-verbal conduct" intended to be assertive. 801(a)[2] what happened in the bathroom was non-verbal conduct intended to be assertive. Some students went on to discuss the post-arrest statements by the senator which were oral assertions. These discussions were good, since students used them to argue they were admissions. The declarant was Senator Craig (801(b)), and they would be testified about in court by officer Karsnia. Thus the "statements" (801(c)[1]), were not made by Craig while testifying, since they were made long before a trial. The big question of course is if they were being offered to prove the truth of the matter asserted: Craig solicited sex from Officer Karsnia. (801(c)[3]). Here I instructed you to use two arguments for the prosecution. First, to the extent that the statement constituted a violation of the statutes, and to the extent that the statute, especially the disturbing the peace statute, is violated through words, it constitutes a verbal act. Alternately, the prosecution would offer them for a truth purpose, such as an express assertion of state of mind (803(3)). The lewd intent can be characterized as a truth use, that though hearsay would be admissible under 803(3) and the admissions doctrine.
The defense would emphasize that even when assuming arguendo that these are statements, they are hearsay, inadmissible under FRE 802, except as otherwise provided by the rules. Thoughtful defense motions would provide some discussion of the rationales for excluding hearsay statements. In addition, you use the possible truth use to argue against even treating as a verbal act.
As I mentioned earlier, some students used the "no" as fitting as 803(2) Excited Utterances. Case: U.S. v. Iron Shell (p. 232) The test is subjective to the extent that it focuses on the declarant’s state of mind. Keep in mind that RELIABILITY is always construed to be part of the RULES standard for admitting most hearsay, with the obvious admissions doctrine exceptions. So even if it no longer applies as a confrontation clause matter, it is relevant under the rules nonetheless.
The characterizations of declarant’s meaning by Officer Karsnia could easily fall under the “opinion” label. This is likely to be treated, as students recognized, as 702 expert opinion based on the officer's training and experience. The defense would attack the officer's experience in this area. Again, the defense would likely loose.
Some of the better motions had a discussion of the defendant's fifth amendment rights. I do not recall anyone discussing Crawford or Davis, which of course we had not yet covered, and their possible application to police sting operations.
The better defense motions would use the language of the statutes to make technical arguments regarding verbal acts and relevance.
The balancing of 403 offered the best opportunity for defense argument. The best motions used anti-homosexual bias as a basis for unfair prejudice effectively. The prosecution emphasized that 403 favors admissibility and that these are the defendant's own acts and words, which he is free to explain.