Evidence Practical Project Fall 2012

LAW 6330 (4 credits)
Section 4805
Professor Pedro A. Malavet
Fall 2012

Instructions

As I announced in my Course Description and Rules, I require each student to submit a practical project that accounts for ten percent (10%) of your testing score for this course. The project is judged on a pass/fail basis.

Each student will work individually, although I have assigned you a role to play as indicated below. You are allowed to discuss the problem with your classmates and may refer to forms and other resources, as long as you draft your own motion.

Your assignment is to write a motion in limine, based on the fact-pattern that follows. Students with last names starting with letters between ALB and McC will write for the defendant George H. Britain, and those whose last names fall between McK and ZAP will write for the prosecution.

You will assume that the applicable rules are the Federal Rules of Evidence, together with accompanying caselaw as studied in your Fall 2012 Evidence Course. Your motion must adequately represent the interests of the party you represent, be it the defendant or the U.S. government, and make reference to the pertinent Federal Rules of Evidence, cases and other materials included in your casebook and Rules supplement (you are allowed to extend your research beyond these resources, but it is not required).

I recommend a list of bibliographic resources collected by the Legal Information Center [click here to view the bibliography]. I also highly recommend the Public Defender Service of the District of Columbia Criminal Practice Institute Trial Manual (http://www.pdsdc.org/LegalCommunity/TrainingCPI.aspx). This downloadable PDF provides lots of useful information including sample cross-examinations, and forms for many types of motions including motions to suppress and motions in limine.

DUE DATE: Projects are due on or before 5:00 p.m. on THURSDAY, November 15, 2012. All documents must be in either MS Word or PDF format and must be uploaded to the eLearning course page using the Motion in Limine assignment created for that purpose.

Fact-Pattern: United States v. Britain

(Before the United States District Court for the Northern District of Florida—Gainesville Division)

George H. Britain stands charged with aggravated battery with great bodily harm, disability or disfigurement. The applicable statute and jury instruction are as follows:

784.045 Aggravated battery.—

(1)(a) A person commits aggravated battery who, in committing battery:

1. Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or

2. Uses a deadly weapon.

(b) A person commits aggravated battery if the person who was the victim of the battery was pregnant at the time of the offense and the offender knew or should have known that the victim was pregnant.

(2) Whoever commits aggravated battery shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Standard Jury Instructions in Criminal Cases

8.4 AGGRAVATED BATTERY, 784.045

To prove the crime of Aggravated Battery, the United States must prove the following two elements beyond a reasonable doubt.  The first element is a definition of battery.

1. (Defendant)

[intentionally touched or struck (victim) against [his] [her] will].

[intentionally caused bodily harm to (victim)].

Give 2a or 2b as applicable.

2. (Defendant) in committing the battery

a. intentionally or knowingly caused

[great bodily harm to (victim)].

[permanent disability to (victim)].

[permanent disfigurement to (victim)].

b. used a deadly weapon.

Definition.  Give if 2b alleged.

A weapon is a “deadly weapon” if it is used or threatened to be used in a way likely to produce death or great bodily harm.

(Though taken from state statutes, you will assume that this is applicable in this federal prosecution. http://www.floridasupremecourt.org/jury_instructions/instructions.shtml)

Defendant George Britain argues the district court court should not admit into evidence the recording of a 911 call. Britain asserts that allowing the recording into the record would violate the applicable rules of evidence and deprive him of his right of confrontation under the Sixth Amendment as interpreted in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and its progeny.

Prior to trial, the United States has indicated its intention to introduce the recording of a portion of the 911 call made by Elizabeth Britain, defendant’s eighteen-year-old daughter and the victim’s niece. The United States has not been able to obtain service on Ms. Britain and she is not expected to testify at trial. The United States asserts that the 911 recording contains Elizabeth Britain’s excited utterances, and its admission would not violate the Crawford doctrine because the statements on the recording were not testimonial and enabled the police and Emergency Medical Services to meet an ongoing emergency. Defense counsel argues that, to the extent Ms. Britain told the 911 operator that her aunt was hurt and bleeding, her statements were not testimonial. Defense counsel contends, however, that the identification of Ms. Britain’s father was testimonial.

The victim, Mary Robinson, will testify at trial and would testify at the appropriate evidentiary hearing. She is expected to testify that on March 27, 2010, she had taken Ms. Britain to her home. While there, defendant rode up on his bicycle and he and Robinson engaged in a conversation about Ms. Britain and her boyfriend. George Britain expressed his opinion that the boyfriend was dangerous. Defendant Britain said he was going to “mess up” Robinson if Ms. Britain got hurt. When Robinson responded that she was going to help his daughter, George Britain hit her in the face and knocked her to the ground. She sustained multiple fractures to her face.

The United States has submitted a recording of the entire 911 for the court to examine. The transcript reads as follows:

THE 911 OPERATOR: 911, how may I help you?

MS. BRITAIN: My auntie is hurt bad. (Inaudible)

THE 911 OPERATOR: What’s the address, ma’am? What’s the address?

MS. BRITAIN: 1110-25 Southeast Second Avenue in Gainesville. Please come. It’s really bad.

THE 911 OPERATOR: Listen to me. (Inaudible)

MS. BRITAIN: Oh, God. (Cries)

THE 911 OPERATOR: Yes, ma’am. Calm down and give me the address. Okay. Come on, you can do it.

MS. BRITAIN: 1110-25 Southeast Second Avenue.

THE 911 OPERATOR: What’s the apartment?

MS. BRITAIN: It’s a house.

THE 911 OPERATOR: What’s the telephone number you’re calling from, area code first.

MS. BRITAIN: 352-792-1234. My dad’s a punk ass bitch. You need to help me. My auntie is on the ground, just bleeding.

THE 911 OPERATOR: You need to tell me what happened.

MS. BRITAIN: My auntie was talking to him and I turned around and she was on the ground. She was talking to my dad. His name is George Britain.

THE 911 OPERATOR: Listen, ma’am, I’m trying to understand what happened. Did somebody assault your daughter?

MS. BRITAIN: No, somebody assaulted my auntie. My father assaulted her, he hit her in her face and her nose is pouring blood.

THE 911 OPERATOR: Stay on the line with me, okay?

MS. BRITAIN: Yes, ma’am.

THE 911 OPERATOR: Your aunt was assaulted?

MS. BRITAIN: Yeah, she’s bleeding. The sidewalk is full of blood.

THE 911 OPERATOR: We’re getting you some help. Okay. Hang with me, okay?

MS. BRITAIN: Okay.

THE 911 OPERATOR: Is your father still there?

MS. BRITAIN: Yes, ma’am, he is still over her.

THE 911 OPERATOR: We’re going to send an ambulance to her and the police. Okay?

MS. BRITAIN: Yes, ma’am.

Robinson would testify that she yelled for her niece to make the 911 call. She also would testify that her injuries required her to spend two days in the Emergency Intensive Care Unit, and two additional weeks in hospital. She was transfused with two (2) pints of blood shortly after arriving at the emergency room and required one hundred ten (110) stitches to close the lacerations and stop the bleeding. Her treatment included one facial reconstruction surgery. Mrs. Robinson also would testify that she has put off the cosmetic reconstruction recommended by her physicians because that procedure will not be covered by her medical plan.

The United States will also call to the witness stand one of the arresting officers, Sargent Joseph Smith, of the Gainesville Police Department. Sgt. Smith will testify that he arrived at Mrs. Robinson’s home about three (3) minutes after the 911 call ended, based on the referral of the Combined Communications Center of the Alachua County Sheriff’s Office. He saw Robinson lying on the sidewalk, bleeding. Elizabeth Britain came out of the house to meet the officer, and Sgt. Smith described her a crying, shaking, and “clearly extremely upset and nervous.” Sgt. Smith will also testify that George Britain was not at the scene of the crime when he drove up to it in his patrol car (Mrs. Robinson will testify that George Britain rode off in his bicycle when he heard the siren of Sgt. Smith’s approaching patrol car; she told the officers as much when they first arrived). Sgt. Smith and his partner, officer Tammy Johnson, arrested George Britain at his home later that day without incident.

The United States’ last witness will be one of the two Emergency Medical Technicians in the ambulance that came to Mrs. Robinson’s aid. EMT Susan Jones will testify that she drove up in her ambulance about one minute after the police patrol car arrived and found Mrs. Robinson lying on the sidewalk bleeding profusely; she also saw Elizabeth Britain crying, shaking and “clearly upset” and “concerned for her auntie’s safety.” Jones and her partner stabilized Mrs. Robinson and transported her to North Florida Regional Medical Center’s Emergency Room. Jones will testify further that she remained with Mrs. Robinson as she was treated for severe facial lacerations and multiple facial fractures that required immediate medical attention from emergency physicians. Elizabeth Britain accompanied Mrs. Robinson on the ambulance. EMT Jones observed while an emergency physician examined Ms. Britain and prescribed a mild sedative that was immediately administered by Jones.

Defendant George Britain argues that the recording is in part testimonial. After obtaining the address and telephone number and learning there was a need for medical assistance, the 911 operator asked “what happened,” which elicited Ms. Elizabeth Britain’s identification of defendant. Defendant asserts that this question turned the exchange into an interrogation for the purpose of gathering evidence, and the responses to the 911 operator thereafter were testimonial.

The prosecution argues that the entire call is nontestimonial in nature.

Facts taken, and modified to fit examination purposes, from London v. State, 2011 Fla. App. LEXIS 18592 (Florida 1st DCA, 22 November 2011).