rot Ailse See Séuy-Fual For (112 EVIDENCE FINAL EXAMINATION FALL 1992 PROFESSOR ANDREW E. TASLITZ ss etior 1. You have 3 hours to complete this exam, which will count for 40% of your final grade. 2. This exam is completely open book. You may use whatever written materials you like. However, you may not discuss the exam with anyone until the exam is completed. Even after the exam is completed, you also may not discuss the exam with anyone who has not yet taken the exam. 3. You must place your exam number at the top left hand corner of each bluebook. You must skip lines in your bluebook, although you may use both sides of each page. 4. Remember that you are graded on the quality of your reasoning and writing, as well as on your ability to spot issues. 5. There is only one fact pattern with two subparts, a subpart "A" and a subpart "B." Subpart "A" is worth 70% of your grade on this exam, and subpart "B" is worth 30% GOOD LUCK! Il. The Problem (708) Defendants George Jonakait and his sister, Vera Jonakait, were arrested for conspiring to and actually distributing cocaine. At George's trial, the prosecution called Detective Winkel to the stand. Detective Winkel testified that both defendants were likely members of "The Crips," a Los Angeles street gang. Detective Winkel testified that both defendants wore blue outer clothing at the time nf arrest and blue underwear. Both their bedrooms were found to be painted blue and to be decorated entirely in blue furniture. The wearing and using of entirely blue-colored items was said by Detective Winkel to be a sign of membership in the Crips. Detective Winkel also produced a photograph of both defendants "dogging," a pose said to be taken by members of the Crips. The very purpose of the Crips, said Detective Winkel, was to distribute cocaine. Detective Winkel further testified that while he was undercover, posing as a big buyer hoping to purchase large quantitites for resale, he had a conversation with Vera Jonakait. During the conversation, Vera said, "Me and George, we're Crips, and we're proud. That's why you can trust us. You write your order on this piece of paper, and I'll give it to George, and he'll get you the stuff. Write ‘one pair’ and your initials on the piece of paper, and George will know what it means. He'll leave it in box 33at The Train Station, where you can pick it up tomorrow. Here's the key to box 33." The next day, Detective Winkel opened box 33 and found a package with wrapping paper around it and a bow. Written on the wrapping paper were the words, "Shoes, size 10." When he tore off the bow and paper, he found inside a large quantity of cocaine, as he had requested. He promptly obtained arrest and search warrants and searched each defendant's home, finding the piece of paper on which he had written his "order" in George's bedroom desk drawer. That piece of paper was also produced at the trial. At the end of the trial, the court instructed the jury, "It is presumed that members of a criminal organization are aware of and intend to participate in all the activities of that organization. If you believe that George Jonakait was a member of a criminal organization, here, the Crips, you should find that he intended to participate in any relevant activities of that organization, unless there is evidence to the contrary." THE QUESTION: Should objections be raised to: (2) Detective Winkel's testimony regarding the two defendants' membership in The Crips, including his references to their clothing, his observations of their bedrooms, and his comments on the content of the photograph (comment on the admissibility of the photograph itself as well); (2) betective Winkel's testimony regarding nis conversation with Vera Jonakait; (3) the jury instructions? Assume for purposes of this question that we are at George's trial (Vera is being tried separately, and her trial is not at issue in this question). Fully explain your answer, including commenting on what the basis for each objection should be and now likely each objection is to succeed? If more information is needed, explain what additional information you would need and why and how the nature of the information may change your opinion and why. DO NOT ADDRESS AUTHENTICATION OR BEST EVIDENCE QUESTIONS. B. (308) In the trial above, now assume that Clark Kent, a well-known mild mannered reporter ‘for the L.A. Times, testified as follows before the grand jury: I was working on a story about the Crips. I was posing as a street person, and I was 10 feet away from George Jonakait when he leaned over, said, "Take some of this, and it'll put you out of your misery," and handed me what looked like cocaine. I tasted it, and it was 2cocaine, which I knew because I used to be a cocaine addict.'I have 20/20 vision and don't wear glasses or have illnesses of any kind. I was kind of nervous because I got a really clear view of George when he bent down to give me the cocaine. I recognized him immediately as someone I knew from high school (we were both on the football team together), and I feared he would recognized me too. Everything I am telling you today appeared the day after this happened in a story in the L.A. Times. I wrote the story on my laptop 1/2 hour after this incident. The reporter was subpoenaed for trial, but he did not appear at the trial, and the detectives looking for him could not find him. His grand jury testimony was accordingly admitted at trial, over timely defense objection, under the residual exception to the hearsay rule. Was the ruling correct? Fully explain your answer.