ASSESSMENT/MIDTERM 1 ITAP EVIDENCE FALL 2020 In Pennsylvania, the following is a crime: No person other than a medical doctor shall engage in any of the following conduct except as authorized or exempted in this act: (1) Practice medicine and surgery. (2) Purport to practice medicine and surgery. (3) Hold forth as authorized to practice medicine and surgery through use of a title, including, but not necessarily limited to, medical doctor, doctor of medicine, doctor of medicine and surgery, doctor of a designated disease, physician, physician of a designated disease, or any abbreviation for the foregoing. (4) Otherwise hold forth as authorized to practice medicine and surgery. 63 P.S. 422.10 In this case, Dana Gellman holds no license and does not have credentials required by the state to get a midwife license, including a registered-nurse degree and a passing grade on an exam. But the 49-year-old says she is certified to perform midwifery by North American Registry of Midwives, a certification organization which she said is recognized by 28 states, but not Pennsylvania. She also has 25 years' experience in the ancient tradition of midwifery, most often serving women in local Plain communities. The act at issue is the claim that she helped deliver a child on May 11, 2019, an occurrence during which the mother suffered complications and was hospitalized. Gellman told police that was "present for the birth of the child, but did not 'deliver' the child." ANSWER THE FOLLOWING QUESTIONS USING THE FEDERAL RULES OF EVIDENCE. 1. The prosecutor seeks to introduce evidence that Gellman has indeed been present at 100 other births and in three of those stepped in and helped deliver the child. a. The evidence is automatically admissible to show knowledge. b. The evidence is admissible as a specific act that shows dishonesty. c. The evidence, without more, only shows propensity and thus is inadmissible. d. The evidence shows habit. 2. Assume for this question only that the Judge says "I find a legitimate non- character purpose - knowledge - for the 3 other incidents." The defense lawyer then says "Your Honor, we will stipulate that Midwife Gellman has the knowledge to deliver a newborn, so we ask that you exclude this evidence and we'll agree to the fact in front of the jury." a. The Judge must accept the stipulation. b. The Judge is legally prohibited from accepting the stipulation. c. The prosecutor must accept the stipulation. d. Itiswithinthediscretionoftheprosecutorastowhethertoagree; and if the prosecutor does not agree, it is within the discretion of the Judge as to whether to force the prosecutor to accept the stipulation. 3. Assume for this question that, like in question 2, the Judge says "I find a legitimate non-character purpose - knowledge - for the 3 other incidents." The best rule for the defense to then rely on to still try and exclude the proof is: a. 104(b) b. 401 c. 403 d. 105 4. At trial, the defense calls Marcus Thornberry who testifies that "Dana Gellman is honest, kind and law-abiding. I've known her for years, and I've seen her follow every law, no matter how minor. She won't even jaywalk." a. The testimony must be limited to "I've known her for years. She is law-abiding." b. The entirety of the testimony is admissible. c. The entirety of the testimony is inadmissible. d. ThetestimonyislimitedtoDanaGellmanishonestandlaw-abiding. I've known her for years, and I've seen her follow every law..." 5. Assume for this question only that Marcus Thornberry is permitted to testify as set forth in question 4 in its entirety - "Dana Gellman is honest, kind and law-abiding. I've known her for years, and I've seen her follow every law, no matter how minor. She won't even jaywalk." May the prosecutor ask the following on cross-examination: "Did you know that Dana Gellman was arrested three years ago for providing marijuana to minors? a. No,becausewithoutaconvictionthereisnoproofthatthe marijuana charge really happened. b. No,becauseprovidingmarijuanatominorshasnothingtodowith honesty. c. Yes, to test how well the witness knows the defendant. d. Yes, to prove that Gellman has a bad character and is dishonest. 6. Assume for this question only that Marcus Thornberry is permitted to testify as set forth in question 4 in its entirety - "Dana Gellman is honest, kind and law-abiding. I've known her for years, and I've seen her follow every law, no matter how minor. She won't even jaywalk." The prosecutor asks Thornberry no questions. On rebuttal, the prosecutor calls Amanda Spence who will testify that "Marcus Thornberry is Gellman's secret lover - and she loaned him $12,000 and he is behind on his payments to her." a. The Judge should disallow this, as the prosecutor never asked Thornberry anything about these details. b. The judge should allow it, as it shows a bias on the part of Thornberry. c. The judge should allow this, as it shows the character of Thornberry. d. The Judge should allow this, as it supports the claim that Gellman is a person of bad character who does things in secret and thus might be more likely to break the law. 7. Gellman testifies in her defense and says "I have attended over 150 births, giving advice, coaching, and things of that nature. But I have never touched the child in the process of birthing - I always stay 6 feet away until the child is born and the umbilical cord severed." a. The testimony is proper if the Judge finds this to be a semi-automatic response on Gellman's part. b. The testimony is proper if the Judge finds this to be a semi-automatic response on Gellman's part and at least some of the parents from those births come to testify and confirm this conduct did occur. c. The testimony is improper as it has no corroboration. d. Thetestimonyisimproperasawitnessmaynevertestifytopast behavior as a way to confirm behavior on the date of an alleged criminal act. 8. Oncross-examinationtheprosecutorwantstoaskGellman"Isn'tittrue that one week after this arrest you took a course called Drawing the line - attending a birth versus delivering a birth taught by the National Association of Unlicensed Midwives?" a. Thequestionisimproperbecausewhatapersondoesafteran alleged crime can never be relevant. b. The question is improper because it refers to an act that might have reduced the likelihood that the law would have been broken had the class occurred earlier. c. The question is proper because this is a criminal case, not a civil case. d. The question is proper, because it is relevant to show propensity. 9. The Rule of Evidence most applicable to question 8 is: a. 401 b. 403 c. 404 d. 407 10. Assume for this question that Gellman, on direct examination, says "I always knew where the line was between attending a birth and delivering a birth - it is something I don't need to study or be lectured about. And I certainly knew it on May 11, 2019." The prosecutor then asks to see the Judge at sidebar and says "Your Honor, I seek permission to ask the following question - Isn't it true that one week after this arrest you took a course called Drawing the line - attending a birth versus delivering a birth taught by the National Association of Unlicensed Midwives?" a. Theprosecutoristoolate,andwasrequiredtoraisethispre-trialina motion in limine. b. The prosecutor is too late, as there was a duty to notify the defense that if Gellman testified this might be used against her. c. The Judge has the discretion to permit the question, as it proves a prior inconsistent statement. d. The judge has the discretion to permit the question, as it challenges the accuracy of the testimony Gellman gave about what she knew and when she knew it. 11. Before trial, Gellman's lawyer makes the following motion in limine - "Your Honor, I move to exclude any mention of the fact that in the May 11 incident the mother had serious complications and had to be hospitalized, because the only charge here is that my client alleged helped in a delivery and thus practiced medicine." a. The best ground for this motion is Rule 105, as no limiting instruction is possible. b. The best ground for this motion is Rule 106, as there is no need for completeness. c. The best ground for this motion is 404(a) and 405, as this is using a specific act to prove bad character. d. The best ground for this motion is 403, as the information about the mother's hospitalization is likely to arouse the jurors' emotions and might mislead or confuse them. Jerome Applebaum is criminally charged with murder, the act being the killing of his wife Amelia on January 29, 2019. Jerome maintains that she died when a snowmobile she was driving flipped over with her and Jerome being tossed off into the frozen lake they were riding on. The ice cracked, both went under water, and Jerome crawled out. He could not find her and called rescue - and Amelia's body was ultimately recovered from the lake, drowned. There was a blunt trauma wound to the back of her head. The prosecution theory is that Jerome killed Amelia in order to marry his secret lover and made it look like an accident. 12. A co-worker of Amelia's was cleaning out Amelia's desk two days later and found a note written on Amelia's work calendar for 1/29 that read "Going snowmobiling with Jerome today. If anything happens, it is foul play." a. Thenoteisadmissibleonlywithexperthandwritinganalysis. b. The note is admissible as long as the coworker can claim familiarity with Amelia's handwriting. c. The note is inadmissible because this is a criminal case. d. The note is a dying declaration. 13. Assume for this question only the note is authenticated. May the witness describe it, or must the note itself be produced in court? a. The calendar or a duplicate is required. b. Onlythecalendarwilldo-nootherformofproofwillbetolerated. c. Since the witness is testifying to fact and has personal knowledge, their testimony will suffice. d. The requirement of an original or duplicate does not apply since the allegation is that Jerome caused the unavailability of Amelia. 14.Assume for this question only that the note on the calendar is deemed admissible in terms of authentication and relevance. What portion(s) of it come in for the truth of the matter asserted if there is a hearsay objection? a. All,asadyingdeclaration. b. All, as Amelia's state of mind. c. All, as a present sense impression. d. Only the words "Going snowmobiling with Jerome today." 15.Assume for this question only that the Judge says "I will not allow any of the note in for the truth of the matter asserted." The prosecutor then says "Judge, then we offer it to explain the course of the police investigation. This is because discovery of the note led to delving into the defendant's background, and the jury needs to know what steps were taken to get us here today." a. The explanation gives the prosecutor the automatic right to admit the note in its entirety. b. The explanation is inadequate, as assertions may never be offered to explain why someone acted. c. The explanation is valid, subject to a rule 403 balancing. d. The explanation is valid, subject to a caution that the words are lay opinion. 16.The prosecution's star witness is Dylan Thompson, Jerome's secret lover. Dylan turned over a series of text message from Jerome, including one dated May 28 at 11 p.m. that read "Tomorrow, tomorrow, I love you tomorrow, tomorrow will be a brand new day for our lives together." Jerome objects because he and Dylan are now married. a. The marital status has no relevance to the text as long as it can be authenticated as coming from Jerome. b. The objection is proper under the doctrine of spousal communication privilege. c. The objection is proper under the doctrine of spousal incompetence. d. The objection is proper under Rule 403. 17.Another prosecution witness, CSI Technician Bailey Biddle, will testify that "we confiscated Jerome's work computer, and using the forensic search program 'seek-and-ye-shall-find' we determined that on May 27 Jerome did two computer searches - one for "how long does it take to collect on a life insurance policy" and the second for "does my state require people suspected of crimes to take polygraph tests." a. The testimony is admissible as the searches are admissions of a party opponent. b. The testimony is admissible if it can be shown that the program 'seek-and-ye-shall-find' produces accurate and reliable search results. c. The testimony is inadmissible as insurance may not be referenced to prove liability. d. The testimony is inadmissible as searching the internet constitutes uncharged acts. 18.In his defense, Jerome calls Matthias, Amelia's brother. He wants to ask Matthias "please describe how Amelia drove the snowmobile." If permitted to testify, Matthias will answer that "I must have ridden with her 100 times in the 5 years before her death, and she always rode right to the edge of the lake and liked to swerve on and off the ice." a. The evidence is admissible under 404(b). b. The evidence is admissible under 406. c. The evidence is admissible under 602 as Matthias has personal knowledge. d. The evidence is inadmissible as it attacks the character of the victim. 19.Assume for this question only that Matthias is permitted to testify as set forth in question 18. On cross-examination, the prosecutor asks "Isn't it true that you were convicted of possessing child pornography 8 years ago?" a. Thequestionisproper,subjecttoRule403considerations. b. Thequestionisproper,aschildpornographyisinherentlydishonest. c. The question is improper as this is a homicide trial and that is not a pertinent trait. d. Thequestionisimproperaschildpornographyhasnorelation whatsoever to whether a person has an untruthful character. 20. Assume for this question only that the Judge allows the prosecutor to ask Matthias about the child pornography conviction and Matthias responds "you're crazy. Not me. Must be someone else with a similar name." a. The jury must still be instructed that Matthias's character for dishonesty must be weighed when judging his testimony. b. The prosecutor may still argue that Matthias has a dishonest character, as long as there was a good faith basis for the question. c. The prosecutor was permitted to ask the question but is stuck with Matthias's answer and may not prove the conviction extrinsically. d. The prosecutor may not argue dishonest character unless, through some other witness or document, the conviction is proved. 21.Assume for this question only that somehow or other the conviction for child pornography is proved. The proper jury instruction will be: a. Members of the jury, you must find that Matthias has a dishonest character and therefore you must disbelieve his testimony. b. Members of the jury, you must find that Matthias has a dishonest character, and from that you may decide that he was dishonest in whole or in part in this trial. c. Members of the jury, if you find that Matthias indeed has that conviction, you may use it to conclude that he is a person of dishonest character and then weigh that in deciding whether the defendant is guilty. d. Members of the jury, you have heard proof that Matthias was convicted of child pornography 8 years ago. If you find that to be true you may use it to conclude that he is a person of dishonest character, and then use that as one factor in deciding whether to believe all, some or none of his testimony