answer

February 1992 Question 6 Evidence

1. Length of time Paul lived in town

RELEVANCE

logical relevance: to show P's residence/background

legal relevance: Leading

2. Bonnie's statement

RELEVANCE: to show Don approached Paul in a hostile manner

RELIABLE: Based on Bonnie's personal knowledge?

HEARSAY: Yes, but hearsay exceptions apply:

Excited Utterance

Present sense impression

Question regarding Don's acts:

RELEVANCE:

Logical: to show that Don attacked Paul.

Legal: Question is legally irrelevant because there is no evidence that Don ever waved a knife.

4. Question regarding Paul's acts.

RELEVANCE:

Logical: To show that Don's attack was unprovoked.

Legal: Compound question.

5. Response about what Paul told police.

RELEVANCE:

Logical: To show that Paul told the police the same thing as he testified to in court.

Hearsay: Paul's statement is hearsay, and PRIOR CONSISTENT STATEMENT except does not apply; therefore it is inadmissible.

6. Question regarding Paul's recollection of medical expenses

RELEVANCE:

Logical: To show what Paul's expenses were.

Legal: Leading question.

HEARSAY: Yes, and improper foundation laid for PRESENT RECOLLECTION REFRESHED.

7. Response re: Paul's reading from bill.

RELEVANCE:

Logical: To show what Paul's expenses were.

HEARSAY: Yes, and improper foundation laid for PRESENT RECOLLECTION.

BUSINESS RECORDS EXCEPTION applies.

8. Question regarding alleged acts committed by Paul against Don.

RELEVANCE:

Logical: To show Paul's bias.

Legal: Non-responsive answer as to second half of sentence.

9. Response re: differences with Don

RELEVANCE:

Logical: shows Paul may be biased against Don.

Legal: Non-responsive to question asked.

Prosecution v. Dan

1. Room's testimony re: Vickie's statement

2. Judicial Notice

3. Sally's testimony re: Dan's prior conduct

4. Photocopy of computer printout

5. Pro's testimony re: Sally's reputation

1. Room's testimony re: Vickie's statement

Is the evidence relevant?

Is the evidence LOGICALLY relevant? To prove that Vickie was with Dan that evening.

Is the evidence LEGALLY relevant? Highly probative of Vickie's whereabouts that evening.

Is the evidence reliable? Roomie has personal knowledge that a statement was made.

Is the evidence barred by the hearsay rule? Yes, but admissible under MENTAL STATE EXCEPTION as present state of mind offered to show the subsequent acts of the declarant Vickie, or admissible as non-hearsay as circumstantial evidence of the declarant's state of mind.

Length of time Paul lived in town

The question regarding the length of time Paul lived in town was technically irrelevant, since it did not seek to establish any element or defense involving the lawsuit. In order to be relevant, the evidence must tend to prove or disprove a fact in dispute. Harmless questions involving background are generally allowed where no prejudice results to the opposing party and it provides the trier of fact with background information about the witness.

However, the form of the question was leading. Leading questions are not permitted on direct examination. The proper form should have been, "How long have you lived there?" rather than to suggest what Paul's answer should have been.

2. Bonnie's Statement

Bonnie's statement is hearsay. Hearsay is an out-of-court statement offered for the truth of the matter asserted. Bonnie's statement was made out of court and is being offered for its truth, to prove that Bonnie saw Don coming towards Paul. Bonnie's statement would qualify as an excited utterance. An excited utterance is a statement made about an exciting event made under the stress of such excitement. Here, Bonnie saw Don approaching Paul in a threatening manner, pointing his finger at Paul. While this event was not particularly exciting, it would be stressful and because Bonnie made the statement immediately after she witnessed a stressful event, this exception would apply.

Under the FRE, a statement describing or explaining an event made immediately after the declarant perceived the event, is admissible. Here, Bonnie's statement describes what she saw Don doing and thus is admissible under this exception.

re: Don's Acts

The question regarding Don's acts was relevant to show that Don attacked Paul, which is the basis for the lawsuit. However, the question is legally objectionable because no evidence has been presented that Don ever waved a knife. Therefore, the question assumes a fact not in evidence.

Question re: Paul's acts

The question regarding Paul's acts was logically relevant to show that Don's attack was unprovoked. However, the question is legally objectionable as a compound question, because it concurrently asks two separate questions. It is improper because the trier of fact cannot determine which question the witness is responding to. Here, Paul's affirmative response is meaningless because it is not clear which question he is responding affirmatively to. The objection on this ground should be sustained and the question should be reframed as two separate questions.

Response about what Paul told the police

Paul's response about what he told police is logically relevant to show that Paul told the police the same thing as he testified to in court. However, Paul's statement is hearsay, because it is an out-of-court statement offered to prove the truth of the matter stated, that Paul gave the same statement to the police. The prior consistent statement exception does not apply, because such a statement is admissible only to rebut a prior inconsistent statement or a claim of recent fabrication or untruth.

Therefore, an objection on hearsay ground should be sustained.

The question regarding Paul's recollection of the amount of medical expenses is relevant to show what expenses were incurred by Paul as a result of the incident. However, the question was legally objectionable because it was leading by suggesting what the answer should be. Furthermore, the question made reference to a figure taken from a document which is hearsay, because it was made out of court and is being offered for its truth, i.e., to prove the amount of damages. The document would be admissible under the past recollection refreshed exception, but the proper foundation was not laid. It is not permissible to ask the witness whether a statement in a report refreshes that witness's recollection. The witness may then test his or her present recollection as it has been refreshed by the document. Because the proper foundation was not laid, this exception does not apply.

Thus, leading and hearsay objections should be sustained by the court.

7. Response re: Paul's reading from the bill

Paul's reading from the bill is relevant for the same reason stated above, but again the report is hearsay and the improper foundation was laid for the present recollection refreshed exception to the hearsay rule. Here, Paul read directly from the bill, and did not use the bill to refresh his recollection and then testify from his recollection as it was refreshed.

Thus, a hearsay objection should be sustained.

However, the document itself might be admissible under the business record exception. Under this exception, a written statement made in the regular course of business near the time the information was received is admissible if the declarant has personal knowledge and circumstances indicate the record is trustworthy. If the University Hospital bill meets these requirements, the bill is admissible.

July 1992, Question 1 [Community Property]

Marriage

putative spouse

Prenuptial agreement

Stock brokerage account

Source-SP

Restaurant

Pereira- favors CP, the growth of business is due to the special skills and management of the spouse and the CP is entitled to a reasonable rate of return.

Van Camp- favors SP, the growth of business is due to the nature and character of business.

Apply Pereira

good will

Wanda's life insurance

It is the CP.

General Prsumptions

Community property is property, other than separate property, acquired by either spouse during marriage. All assets acquired during marriage are presumptively CP.

All property acquired before or after marriage or after permanent separation or by gift, devise, or bequest is presumed to be SP.

Quasi-marital property is property acquired during a void or voidable marriage, which would have been CP or QCP if the marriage had not been void or voidable. CMP is treated like CP.

Putative spouse

One or both parties believe in good faith that the parties are legally married; some unknown mistake makes it illegal. We look at the objective reasonableness of belief.

Here, H and W were never legally married because Tony lied to W; Tony and W were never divorced. W and H both believed in good faith that they were married as W believed Tony about the divorce and W and H had a duly licensed and witnessed wedding. Due to Tony and W never being divorced (an unknown mistake to both W and H), W and H current marriage is illegal. You could have further explored whether objectively reasonable- never received divorce papers, signed anything, etc. - which probably would have boosted the score by 5 points here.

W and H are putative spouses (this implicates QMP).

Permanent separation

Actual physical separation AND intent to permanently separate communicated to the other. Here, Tony and W were physically separated in 1963 when W moved to California. Intent to permanently separate shown by Tony telling W they were divorced, and W becoming engaged (and she thought) married to H.

Tony and W permanently separated.

a. Stock Account

SP See above.

Here, W inherited her father's life insurance policy, which is SP because it is inherited.

Transmutation

An agreement between spouses to change the character of an asset or series of assets.

Before 1/1/1985, transmutations could be oral, written, or inferred from conduct of parties; after the date they need to be in writing.

Here, W and H orally agreed prior to 1985 that any insurance proceeds they collect would be CP, but this was prior to their marriage and thus is not a valid transmutation since transmutation are during marriage between spouses. Thus, no transmutation.

Prenuptial agreement

Current rule from Bonds case deemed involuntary unless.. not in effect until 1988 wouldn't apply here.

Even if it were after 1988 that they made this agreement, it was not in writing and neither party was represented so the current factors would not be met anyway.

No valid prenuptial agreement.

MWSP

Property taken in W's name alone prior to 1975 creates a presumption that it is her SP.

Here, W took title to stock in her name alone in 1965 or 1966, creating a presumption that it is her SP (and no transmutation as indicated above). remains W's SP, so goes to Betty.

Pereira/Van Camp

A court may invoke Pereira and/or Van Camp if Sp is possibly enhanced by community labor. Since money for stock inherited it is SP, but here, community did not enhance the Sp because the account was managed by a financial consultant, not by the labor of W; so the community was not responsible for the increase in the value and likely would not benefit at all.

W's SP. so still goes to Betty.

b. Restaurant

SP

See above

Money inherited so SP, can use tracing to establish restaurant purchased with inherited money. SP business.

SP enhanced by CP

Pereira: tends to favor the community; use when the spouse's management skills are the primary reason for the growth. Van Camp tends to favor SP estate; use when the character of the business is the primary reason for growth.

Here, the restaurant was purchased with SP funds so it is a SP business, but the community is entitled to its share for enhancing the business.

Pereira is likely to be used because the business has flourished with Hal's continous management and labor. But community assets; he likely chose decor and food and manages the service, which likely have helped with its success. Community should be compensated for his skills here.

The remainder would be CP (or treated as such because really QMP) since W left all CP to Hal, he would take all of it anyway.

No indication business was successful due to it being a restaurant or any particular type that is not related to H and his services, so likely it wouldn't apply; there are no facts to fill in formula either, but would all be H's anyway since W left all CP to H.

c. Life insurance

CP

CP presumption

Since her life insurance policy was taken during marriage (putative spouse here), it is presumptively CP (really QMP), since her employer paid for the premiums it is similar to bonuses and earnings here.

Life insurance

Term v. whole: look to see which estate paid latest term v. each estate benefits to the extent it paid.

Here, neither the community nor separate estates paid because W's employer paid, so need to treat insurance like awnings or bonuses.

Earnings/bonuses

If they are intended to reward the employee for their hard work; they are community assets, if as a gift, they are the employee's SP.

Here, it is not clear whether the insurance was a gift or earnings, but most likely treated like earnings for her working there and being an employee, so community asset; more likely that the the employer did this for all employees as part of their employment plan, not just as a bonus for one specific employee.

We left her policy proceeds to "my surviving husband," who is currently Tony with Hap being a putative spouse. Arguably, this could mean Tony because she did not put Hap's name there when despite him being her then current husband in belief.

However, the court is likely to construe the language to mean Hap, as W in good faith thought she was married to Hap and that he would be her surviving husband since she was (in her mind and physical being) married to Hap in 1998 when her employer purchased the policy and was still with H at the time of her death and she could have left it general in the event she later in life got another divorce.

Life insurance will be QMP- treated like CP; also H was the named beneficiary, which is the same result as if treated like CP, so all of W's policy proceeds will go to H.

Conclusion

Court would also likely apply estoppel to tony to prevent him from being able to recover for any of the W's assets.

Overall, Hap will receive everything with the restaurant and the life insurance proceeds, but nothing for the stock as that will go to Betty.