Topics: Appellate Review

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Example - Inadmissible. In a prosecution for throwing blood and ashes on the walls of the Pentagon, evidence that United States nu­clear weapons policies violate international law was properly exclud­ed. United States v. Cassidy, 616 F.2d 101 (4th Cir. 1979).

Example - Inadmissible. In a prosecution for making false statements on a tax return, evidence offered by taxpayer that he actually overpaid his taxes by failure to take permissible deductions was properly excluded. United States v. Johnson, 558 F.2d 744 (5th Cir. 1977).

Example - Inadmissible. Since the issue in an insurance bad faith case is whether the company had a reasonable basis for denying the claim, the company’s subsequent litigation tactics and strategy are seldom relevant. Timberlake Construction Co. v. U.S. Fidelity & Guaranty Co., 71 F.3d 335, 340-41 (10th Cir. 1995).
Example - Inadmissible. “The fact of consequence in this case was whether Hawkins possessed the gun, and the ammunition found in the upper unit has nothing to do with possession. While the ammunition may be relevant to probing ownership of the gun, owner ship is not relevant to the offense in question.” United States v. Hawkins, 215 F.3d 858 (8th Cir.2000).

Practice Case A - Civil


Numbered problems with an “A” or “B” (e.g. 1A) refer to Practice Cases A and B, whose general facts appear on this and the next page. “A” is a civil case, “Look Before You Wheely” and “B” is a criminal case called “A Night at the Ace Bar and Grill.” Numbered problems without an A or B use different facts.

Robert Jones, an employee of the Owens Construction Co., while driving a company car and accompanied by his secretary, Mary Jackson, was involved in an accident with a bicycle ridden by Billy Boy Green and a truck driven by Sam Smith. Sam Smith was accompanied by his two children, Sally Smith and Harry Smith. The accident occurred at the corner of First and Main at 4:30 p.m. on October 26. First is a north-south street while Main runs east-west. Both First and Main are four-lane roads.

Sam Smith was driving his truck west on Main, approaching the intersection of Main and First. Robert Jones was approaching the same intersection in his company car heading east on Main. When Smith reached the intersection, he signaled for a left turn into the westernmost southbound lane of First. At this moment, Smith says that Jones was at least 500 feet from the intersection. As Smith proceeded to make his left turn on the yellow light, he states that Billy Boy, age 7, riding a ten-speed bicycle east on the south sidewalk of Main, did a wheely, onto First street. When Sam Smith saw the boy heading in front of him, he says, he hit his brakes. The truck came to a halt with its front bumper about five feet south of the crosswalk. The Smith truck hit Billy Boy, and Billy Boy was thrown onto the hood of the truck. Moments later Robert Jones, who claims to have applied his brakes when he saw Sam Smith's truck heading into the intersection, hit the side of the Smith truck, spinning it around. The boy was thrown off the hood onto the ground. Billy Boy denies that he did a wheely onto the street. He contends that he was walking his bicycle in the crosswalk at the time of the accident.

The accident was also observed by Barbara Green, who is Billy Boy's mother, Margaret Boyd, a school crossing guard, and Tim Brown, owner of the Texaco station located at the intersection.

Practice Case B - Criminal
July 8 is a warm night in the city. The Ace Bar and Grill, 505 West Delaware Avenue, is packed to the ceiling. It is 10:00 p.m. and Harry and Mike, the owners, are behind the bar. Mabel and Charlie are in a booth. Sheila is on a bar stool smoking pot. Pete, a wino, is outside in the back. Albert, a junkie, is in the men's room.

At 10:15 Big Ed arrives at the bar. He moves immediately over to the booth where Mabel and Charlie are seated. Charlie gets up. A fight ensues. Big Ed is stabbed. Harry jumps out from behind the bar and hits Charlie over the head with a beer bottle. The police arrive and Charlie, Big Ed and Harry are arrested. Charlie tells the police he acted in self-defense. Big Ed is taken to a hospital in an ambulance.

At 11:30 p.m. Albert buys some drugs.

At 1:00 a.m. Wayne, an undercover policeman, pulls a bar stool next to Sheila, sits down, and asks her what she's drinking.

At 2:00 a.m., two men, Bob and Ray, enter the Ace Bar and Grill. Bob has a pistol. Ray is carrying a shot gun. Bob hands Mike, the bartender, a plastic bag and tells him to empty the cash register. Mike does so. Bob fires a shot from the pistol into the ceiling. Bob and Ray make their escape in a waiting car.

At 2:30 a.m., Sheila is arrested for possessing marijuana.

At 3:00 a.m., Albert is arrested for possession and sale of cocaine.

On July 10, Bob is arrested in his apartment. A search of the apartment reveals the money taken from the Ace Bar and Grill. The pistol used in the robbery is discovered in a garbage can located outside Bob's apartment. Sally, who lives in the apartment with Bob and Ray, is Ray's sister and Bob's girlfriend.


Discuss whether the following items of evidence are relevant or irrelevant. What arguments could you make to the court to suggest that the evidence is relevant and admissible?

1A Testimony that Billy Boy was doing a wheely on the street when he was hit by the truck.
2A Testimony that Billy Boy did a series of wheelies on the sidewalk on the south side of Main Street as he approached the intersection of Main and First.
2.5 Testimony that most of the children Billy Boy's age do a series of wheelies on the sidewalk on the south side of Main Street when they approach the intersection of Main and First.
3A Testimony that Billy Boy was awarded first prize the previous month in a wheely contest.
4A Testimony that Billy Boy's bicycle did not have a rear reflector.
5A Testimony that Sam Smith had driven on Main at 60 mph in a 30-mph zone one mile prior to reaching the intersection of Main and First.
6A Testimony that Robert Jones is covered by $200,000 in automobile liability insurance.
8A Testimony that Tim Brown, who testified at trial, did not have his eyeglasses on when he witnessed the accident.
9A Testimony that Harry Smith and Sally Smith were fighting in the bed of the truck as it approached the intersection.
10B Testimony that Mabel, a witness called by the government, is the living with Big Ed, the complaining witness.
11B Testimony that Harry told Charlie, the criminal defendant, that Big Ed was out to get him.
12 A civil rights case brought by the survivors of Lucien Sherrod, a robbery suspect who was killed by the police. The police officers stopped a car occupied by two suspects and ordered them out of the car at gunpoint. The suspects at first refused to follow police commands to raise their hands. One of the officers testified that Sherrod made a “quick movement with his hand into his coat ... [as if] he was going to reach for a weapon.” At that point, the officer fired his revolver at Sherrod, killing him instantly. The plaintiff wants to introduce evidence that a search of the deceased Sherrod found that he was unarmed. What are the arguments for and against admission? Sherrod v. Berry, 856 F.2d 802 (7th Cir. 1988) (en banc). (Park 72).

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