The National Criminal Justice Trial Competition Co-Sponsored By American Bar Association and The John Marshall Law School

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1 The National Criminal Justice Trial Competition Co-Sponsored By American Bar Association and The John Marshall Law School 2016 QUESTIONS SUBMITTED WITH ANSWERS A 2016 Casefile (revised), exhibit 3 (a-e) texts (revised) have been posted on-line. Revisions consist only of edits listed below. Judges and evaluators will be directed to review the problem (revised) and all exhibits on-line. Page 11, now reads "Yesterday morning..." Page 12, 4th paragraph now reads "...on October 21..." Page 13, Incident Date now reads Wednesday, October 21, 2015"; and in 2nd paragraph now reads "On October 21, 2015" Page 17, date is "Wednesday, October 21, 2015"; and the time is "12:46 AM" Page 19, Incident Date now reads "Wednesday, October 21, 2015" Page 22, Incident Date now reads "Wednesday, October 21, 2015" Page 25, paragraph 3, last sentence, word "fight" now reads "right" Page 63 line 138 now reads Finn not Quinn Page 65, the date in the first paragraph now reads "on or about October 21, 2015" Page 65, the charge now reads SECTION (a) (4) Page 66, Date of Death now reads "October 21, 2015" Page 67, date now reads "October 21, 2015" and anothing now reads anything Page 71, years in the Fiscal Year Summary were reversed. In each table, every "2015" now reads "2014. Also, every "2014" now reads "2015" Page 80, People v. Rose citation now reads: 643 N.E.2d 865 (Ill. App. 4 Dist. 1994) Page 81 (added), Order pertaining to stipulations MOTIONS Question: Can we use case law in Motions In Limine or in the objections? Are written Motions In Limine allowed? Are they preferred? To what case law aside from People v. Rose may competitors refer, if any? Answer: Written Motions In Limine are allowed, however, oral motions are preferred. Keep in mind that neither the opposing party nor the judge is expected to read written motions. Only arguments regarding the Federal Rules of Evidence or the case law included in the packet are allowed. Competitors may not refer to any other case law. Question: Have suppression issues regarding statements made by Defendant to Officer Reese already been litigated or may they be raised at trial? May the defendant raise Miranda issues at trial if the People seek to use the defendant s admissions? Answer: Regarding any statements made by the defendant to the police, assume that the motion to suppress statements has been denied. Motion to suppress statements will not be entertained at trial. Teams should use cross-examination to resolve any issues with the circumstances surrounding any statement. PEOPLE V ROSE Question: Is People v. Rose an actual case? Pursuant to People v. Rose, the PBT is not admissible at trial, but does that mean any mention of the PBT or just the results of the PBT? May we use the PBT results to argue bias or as evidence of inconsistent statements or any 1

2 other purpose other than to prove the BAC of the defendant; or use the fact that the defendant voluntarily submitted to the PBT for any purpose other than to prove the PBT results. The bench brief states that the preliminary breath test is not admissible at trial and that the parties may not argue the matter further but that they can cite to People v. Rose - this case leaves open whether the defense can admit the breath test on their case. May the defense admit the results of the PBT in this case? Answer: The correct citation is: 643 N.E.2d 865 (Ill. App. 4 Dist. 1994). Please refer to the holdings of the case, parties may use evidence in accordance with the holdings (and limitations) of the case. Any issues regarding the PBT should be raised at trial (pursuant to the holdings and the case materials) and will be ruled on by the judge. STIPULATIONS Question: Are parties permitted to raise confrontation clause issues regarding stipulated testimony contained in reports? Have confrontation clause issues been waived so that prior testimony is admissible without objection? Do the stipulations preclude parties from objecting to portions of their testimony and reports that would be hearsay, speculation, or violate the confrontation clause? When a stipulation indicates that a person would testify consistently with his or her report, can we assume that the facts contained in those reports are in evidence? Can we assume the stipulations contained in the bench brief are the substantive stipulations the parties agreed upon for trial and can be referenced throughout the trial? Answer: In order to create a problem that can be tried in roughly three hours, it s necessary to allow parties to put in evidence through stipulations. Thus, the case file contains stipulations that parties must agree to and may reference at trial. Parties must stipulate to the foundation and admissibility of: the ME report, the Forensic Science Report, the EMT report, the 911 Transcript and the ER report. These documents will be admitted into evidence pursuant to a stipulation between the parties. An order admitting these reports has been added to the case file. (See Order on page 81). Parties must agree to the admission of these reports and may not object on any grounds. EXHIBITS Question: Is it correct that the only stipulations as to exhibits are that they are authenticated but other admissibility issues may be further argued at trial? Have all of the physical exhibits been stipulated to, and the thing that they are purported to be, or may authenticity be challenged? Answer: Yes, all exhibits are stipulated as being authentic. The admissibility of any exhibit may be challenged on any basis that has not been previously stipulated to by both parties. RESULTS OF BLOOD AND URINE TEST Question: Does the last line of the order that appears on page 57 that reads the results of the blood and urine test may not be used during the trial of the instant cause, mean that the door can never be opened to the introduction of these results? The order states in part "The results of the blood and urine tests may not be used during the trial of the instant cause." Does this mean that the evidence is not admissible for ANY purpose, including to impeach the defendant? Or does it simply bar the prosecution from using this evidence on its case in chief? 2

3 The order suppressing both the blood and urine tests states that they may not be used at trial as opposed to during the prosecution s case in chief. Should a defense team open the door to the results, can the blood and urine test results be moved into evidence? Answer: Teams must abide by the pretrial ruling issued during the motion to suppress. The judge will rule on evidentiary issues that arise during any round. DRE Question: For Officer Reese, does this jurisdiction recognize drug recognition expert or something to that extent as an expert field? Can the prosecution tender Officer Reese as a Drug Recognition Expert because in our jurisdiction, this would not be acceptable, however without him being tendered as an expert there would be extreme difficulty in proving the defendant was under the influence of drugs. Answer: A Drug Recognition Expert is a recognized field of expertise in Marshall. JURY INSTRUCTIONS / INDICTMENT Question: Are there Preliminary Instructions that will be read to the jury and, if so, which ones, so that we can refer to it in the opening statements? Can we have something "constructively" read to the jury? Answer: An advocate may ask for any instruction to be read aloud or constructively. Preliminary instructions will not be read to the jury unless an advocate asks the judge to do so. Jury instructions included in the packet may be used in any form that would be proper at trial. All instructions provided will be constructively read to the jury by the judge after closing arguments. Question: Are we allowed to amend the jury instructions or the indictment? Answer: No. EXHIBIT 8 Question: Please clarify the handwritten arrows in Exhibit 8. Who wrote the arrows? What is the correct direction? On Exhibit 8, the pupil chart, are the handwritten changes intentional by the problem drafters? If intentional, is there a stipulation about who made the changes? On Exhibit 8, the less than and more than symbols for cocaine and narcotics looks like someone's writing: should this be someone's writing or a correction to the card? Answer: Assume that arrow handwritten over the pre-printed arrow was a correction made by the manufacturer of the card. The handwritten changes were not intentional by the drafters. OTHER Question: Are we to presume that the NLCS game between the Cubs and the Mets described is the actual game 3 or game 4 of the 2015 NLCS series between the Cubs and the Mets? Answer: The baseball game referred to in the problem was game 3 of the NLDS on October 20 th, Question: Does Officer Reese need to admit, when crossed, that his sister was killed by a drunk driver and that he is involved in PADD? Answer: Yes, Officer Reese does have to admit that his/her sister was killed by a drunk driver and that he is involved in PADD. 3

4 Question: Who took the photographs? Answer: Evidence Technician David Wojnicki of the Marshall City Police Department took all photographs. Question: Was Officer Reese present for the suspension hearing? Answer: Officer Reese was not present in the courtroom during the testimony of any witness. Question: Time Limitations are not clear. Are the 5 minutes per team to argue In Limine Motions taken from the total of 80, or if they are independent of the 80 minutes for the case? Answer: Each team has up to 5 minutes to argue motions in liminie and then 80 additional minutes for the rest of the case. If a team waives MIL or uses less time, the time will not be added to the 80 minute time allotment. Question: What happens if there are only two judges in the room? Answer: In this unlikely event, the average of the two existing ballots will added as the third. Question: In the past there have been specific critiques about the procedure for admitting evidence that were apparently based on local rules of practice in some jurisdictions (specifically an advocate was told to show unadmitted exhibits to the jury before they showed it to the witness). Are there any specific rules of practice or procedure that competitors should know and use? Answer: Attorney s should not publish a proposed exhibit to the jury prior to the exhibit being admitted as an exhibit. A second example would be that judges and evaluators are sensitive to advocates defining the burden of proof. I would suggest teams look at Illinois case law on this issue for guidance. Question: Is Quinn Donnelly also a law student? Answer: Donnelly is not a law student. Question: Can we have a make and model for Lisa Miller s car? It just sounds weird to refer to one car by make and model but not the other. Answer: Yes -- it was a Black, 2010 Honda Civic. We have considered the following questions and have concluded that the answers can be found in the rules or that the question presents a point of advocacy to be argued: In the Exhibits, the report that Reese Harper did states that the HGN could not be observed but then said in earlier testimony that there were all 6 clues; does the report mean VGN, since he/she said there were no clues on the VGN? The medical examiner s autopsy report on page 69 describes bruising from the top right shoulder to the waist of the victim. Officer Reese on page 13 states the opposite orientation for the bruising. Is this intentional? There is little information on Officer Reese s experience within the MCPD. Is this intentional? Are we able to lay chain of custody for certain items? i.e. Pipe, Cardboard 6 pack, or air bag? 4

5 Police Report; Page 16 Officer Reese s report states he ruled out Narcotics with a capital N, are we to assume the word narcotics used with a capital N is not a synonym for drugs. Was this intentional by the competition or an error? Do we have to prove she was under the influence of drugs? In Reese report, was the nissan really 150 yards away? Or 150 feet? Why are there two different birthday dates for O Douls criminal history? Are the DRE's supposed to go in order from 1-12? We would like a stipulation that the steering wheel photograph shows the actual steering wheel in this case covered in real blood, or we would like a more visually accurate exhibit. Does testimony/evidence from unavailable witnesses come in? 5