Evidence Practical Project Fall 2015

LAW 6330 (4 credits)
Section 02BB
Professor Pedro A. Malavet
Fall 2015

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 AUG and LAN will write for the defendant, Rafael Alvarado Herrera, and those whose last names fall between LAR and ZUP will write for the prosecution, the State of Florida.

You will assume that the applicable rules are the Federal Rules of Evidence, together with accompanying caselaw as studied in your Fall 2015 Evidence Course. Your motion must adequately represent the interests of the party you represent, be it the defendant or the People of the State of Florida, 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).

DUE DATE: Projects are due on or before 5:00 p.m. on THURSDAY, November 12, 2015. All documents must be in either MS Word or PDF format and must be uploaded to the eLearning in Canvas course page using the Motion in Limine-Practical Project assignment created for that purpose.

The system will be set to allow multiple submissions up until the time of the final deadline. Uploading a file that is corrupted and cannot be opened will be treated as a failure to make a timely submission.

  • Frequently Asked Questions
    • Is there a maximum length to the project?
      • No.You may write as much as wish.
    • Is there a minimum length?
      • There is certainly a minimal level of effort required to pass. But, at least five (5) to ten (10) pages, double-spaced, is about what it should take to do minimal justice to the project.
    • May and should I use headings and subheadings?
      • Yes. Preferably the ones I post on the board every day.
    • What title should I use?
      • Motion in Limine To:
        • Admit [certain evidence], if you are the prosecution
        • Exclude [certain evidence], if you are the defense

Fact-Pattern: The State of Florida v. Alvarado-Herrera

The State of Florida
 v.
Rafael Alvardo Herrera, Defendant

I. The Case

Defendant Rafael Alvardo Herrera (hereinafter “Herrera” or “Defendant”) is charged with Aggravated Battery of a Pregnant Victim in the Tenth Judicial Circuit in Polk County, Florida (Case number 01-2026CFA).

My apologies for mistakenly indicating that this was in Collier County.

II. Case History

On September 4, 2010, the State filed an Information charging Herrera with Aggravated Battery of a Pregnant Victim, Fla. Stat. § 784.045. On February 4, 2011, an Amended Information was filed alleging, in the alternative, that Herrera caused great bodily harm, permanent disability or permanent disfigurement.

Herrera will proceed to a jury trial on December 4, 2015.

III. Applicable Law

Assume that the applicable rules of evidence are the Federal Rules of Evidence in their restyled form that became effective December 1, 2011, as amended through the current rules supplement, together with the applicable common law, statutory, and constitutional rules, doctrines, and caselaw as you studied them in your Fall 2015 Evidence course at the University of Florida Fredric G. Levin College of Law.  The applicable substantive law are the laws of the State of Florida.

IV. Statement of Fact

The victim, Wanda Santiago, is not expected to testify at the trial.

At trial, the State would like to offer the tape recording of the 911 telephone call placed by the victim, Santiago. The defense intends to object. Both will pursue their arguments through motions in limine.

On October 14, 2015, the trial court held a hearing to determine the admissibility of the 911 tape.

The hearing started with Lakeland Police Officer Canady, a 911 operator, presenting the challenged evidence from the 911 telephone call placed by the victim including the following exchange between the victim and Canady:

  • 911 OPERATOR: 911, this is Officer Canady, what is your problem?
    MS. SANTIAGO: I’ve been hit.
    OFFICER CANADY: You’re what?
    MS. SANTIAGO: My boyfriend beat me up.
    OFFICER CANADY: Where is the address at?
    MS. SANTIAGO: 601 West Delaware, Apartment Six.
    OFFICER CANADY: Apartment what?
    MS. SANTIAGO: D.
    OFFICER CANADY: And your boyfriend beat you up?
    MS. SANTIAGO: Yeah.
    OFFICER CANADY: Okay. Is he still there?
    MS. SANTIAGO: No, he’s around. I’m at a friend’s house.
    OFFICER CANADY: Okay. Where are you hurt at?
    MS. SANTIAGO: All over.
    OFFICER CANADY: What is your name?
    MS. SANTIAGO: Wanda.
    OFFICER CANADY: What’s the phone number you are at, Wanda?
    MS. SANTIAGO: 986-0014.
    OFFICER CANADY: Okay. What is your boyfriend’s name?
    MS. SANTIAGO: Rafael Herrera.
    OFFICER CANADY: Okay. How old is he?
    MS. SANTIAGO: Twenty-six.
    OFFICER CANADY: Is he a Hispanic male?
    MS. SANTIAGO: Yeah.
    OFFICER CANADY: Okay. Where is he at now?
    MS. SANTIAGO: He’s over in D-5.
    OFFICER CANADY: In D, like dog?
    MS. SANTIAGO: Yeah.
    OFFICER CANADY: Okay. What’s his date of birth, do you know?
    MS. SANTIAGO: Um, September 14th. I don’t know the date - I mean, I don’t know the year.
    OFFICER CANADY: Okay. And is there somebody with you there now, Wanda?
    MS. SANTIAGO: Yeah, friends. He was sleeping but he wouldn’t let me out of the room.
    OFFICER CANADY: How old are you?
    MS. SANTIAGO: I am 19.
    OFFICER CANADY: Okay. What did he hurt you with?
    MS. SANTIAGO: He kicked me in my face with his boot.
    OFFICER CANADY: Okay. Does he have any weapons there at the house?
    MS. SANTIAGO: No.
    OFFICER CANADY: Has he been drinking or doing drugs?
    MS. SANTIAGO: I think he’s been drinking.
    OFFICER CANADY: Okay. All right. We’re going to get somebody out there, okay? Just stay in the apartment, keep the door locked and don't let him in if he comes over, okay?
    MS. SANTIAGO: Okay.
    OFFICER CANADY: All right. Okay. Bye.

Polk County Sherriff’s Deputy Doll succeeded Officer Canady on the stand. Deputy Doll explained that he was assigned to road patrol and was dispatched to an apartment complex to make contact with the victim. Deputy Doll testified that it took him “about three minutes” to arrive at the apartment after he received the call. When he arrived he observed Ms. Santiago “crying and . . . bleeding from a cut on her left eyebrow.” He stated that “[s]he was really upset, crying . . . she had a cut over her left brow. She had some fingerprints on her inner arms . . . .”  Upon observing the victim more closely, Deputy Doll, asked the victim if she was pregnant, and she responded that she was. Deputy Doll called for an ambulance before he continued to question the victim. In response to Deputy Doll’s questions as to “what had happened,” Ms. Santiago said that she had gotten into an argument about money with her boyfriend and “it turned physical when he started hitting her.” Deputy Doll asked Ms. Santiago with what she was hit, and Ms. Santiago said with “fists.”  Deputy Doll testified that he could see a “shoe print on the side of [Ms. Santiago’s] face.” When he asked Ms. Santiago how she sustained certain injuries to her face, Ms. Santiago stated “her boyfriend, Rafael, was kicking her” when she fell on the ground. Deputy Doll testified that he took pictures of the victim’s injuries the night of the incident, which were introduced into evidence.

Dr. Val Klein-Richey, who was called by the State, testified on direct examination that she was the emergency room physician who treated the victim the night of the incident. The victim presented “with trauma; um …, lacerations, abrasions, and abdominal pain and head pain.” The doctor testified in detail about the extent of the victim’s injuries and concluded that the injuries were consistent with domestic violence abuse. During the course of assessing the victim, Dr. Klein-Richey ascertained that the victim was in the seventh month of pregnancy and referred the victim to “labor and delivery for monitoring —for fetal monitoring.”

At the hearing, defense trial counsel opposes the introduction of the 911 tape and the victim’s other statements to Deputy Doll and Dr. Richey-Klein on both hearsay and sixth amendment confrontation clause grounds. The prosecution maintains that this is admissible hearsay under the applicable rules of evidence, and that the statements fit under the "emergency exception" to the confrontation clause. After listening to the 911 tape, hearing testimony from the 911 operator who received the call from the victim, hearing testimony from Deputy Doll who, as he did at trial, testified that he observed the victim within five minutes of the incident and took pictures of the victim’s injuries which the court reviewed as well, hearing testimony from Dr. Richey-Klein, and considering applicable state and federal law, the trial court preliminarily ruled that it would allow the use of the 911 tape and Deputy Doll’s testimony under the excited utterances exceptions to the hearsay rule, and plans to reject the confrontation clause objection because the questioning during the 911 call and by Deputy Doll were primarily directed to protecting the health and safety of the victim and to rendering proper medical care to her, especially given her pregnancy. The court, however, plans to limit Dr. Richey-Klein’s testimony to medical treatment, disallowing any testimony about statements from the victim regarding identification.

However, before making its final ruling, the court has ordered both parties to present their arguments in motions in limine to be filed on or before 5:00 p.m. on Thursday, November 12, 2015.

Statutory Materials

  • 784.03 Battery; felony battery.—
    • (1)(a) The offense of battery occurs when a person:
      1. Actually and intentionally touches or strikes another person against the will of the other; or
      2. Intentionally causes bodily harm to another person.
      (1)(b) Except as provided in subsection (2), a person who commits battery commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
    • (2) A person who has one prior conviction for battery, aggravated battery, or felony battery and who commits any second or subsequent battery commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. For purposes of this subsection, “conviction” means a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld or a plea of nolo contendere is entered.
  • 784.045Aggravated 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.
    • (1)(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.

Actual Case

Facts taken and modified for exam purposes from Herrera v. Cannon, 2010 U.S. Dist. LEXIS 78606; 2010 WL 2731850 (U.S. Dist. Ct. M.D. Fla., Steele, J.), decided July 9, 2010. All dates have been changed.

 

 

Form

 

A typical federal motion looks roughly like this
(you must of course modify the form to fit the current fact-pattern):

 

 

 

Case

 

Caption

[Counsel/

  student name] [1]

[Court:]

In the United States District Court

For the NORTHERN district of FLORIDA

GAINESVILLE division [2]

 

[Case Title] [3]

                     The United States,

                                            

                                          vs.                                                            Criminal No. 2003-192 [4]

 

                             John Smith,

                                 Defendant

______________________________________________

 

 

Substance

[Document Title] [5] MOtion in Limine

[You might add Specific purpose: e.g. “To Admit ...” Or “To Exclude ...”]

 

[Opening] [6]

 

[Body of the Document: What you want to say/argue]]

 

[Prayer] [7]

 

 

 

closing

[Date]

 

[Certificate of Service] [8]

 

[Counsel’s Signature, Address and Telephone Number.] [9]

 

 

 

 

 

 

 


 


[1] In some courts, counsel must include name, address, telephone number and identify the client at the top of the first page of any filing, as an administrative convenience.

[2] The positioning of the court designation in the document varies from state to state and even among the Federal Judicial Districts. But, somewhere on the first page, the party must identify the court before which the action is pending. I have chosen the district of Colorado, because the US Air Force Academy is in that state. I randomly selected Denver as venue.

[3] In the complaint, the case title must include the names of every party, plaintiff or defendant. Thereafter, a shortened case title is used. In our example this is not a problem, but imagine a case with hundreds of parties. (The title of amended complaints in the DuPont fire case listed all parties and took up hundreds of pages). In a criminal case, it is the State or the People, or the People of the  United States vs. defendant(s).

[4] The case number is assigned by the clerk of the court. The designations typically will indicate if the case is a civil or criminal matter. Other sub-categories may also be used, depending on local practice. The number usually includes the last two digits of the year in which the matter is filed, followed by the assigned number.

[5] The document title is sometimes placed to the right of the case title, this depends of local court practice. It is never placed before the court designation.

[6] The opening tells the court which party appears before it to request something. For example: “NOW COMES the defendant, John Smith, through his undersigned counsel, and to the court respectfully states and prays:”

[7] Most legal documents request that the court do something, even if it is simply to take notice of the information therein contained. The most common exception are discovery documents, which are usually addressed to opposing parties.

[8] In the civil context, the complaint will generally be the only document in a case file without a certificate of service. In this context, service means to give notice of the filing to the other party. It generally means providing opposing counsel with a copy of the document by personal deliver or by mail. However, when you file a complaint, you generally do not know who opposing counsel will be, and, absent a stipulation regarding service, you the party must be officially summoned. Notice of the complaint is accomplished by summons. Rule 5(b) of the Federal Rules of Civil Procedure, governs service of documents filed after the complaint. Please note that service by mail or messenger service is generally acceptable.

[9] Some courts require that each document include the bar number of the attorney who signs it. In any case, counsel is generally required to include her name, mailing address and telephone numbers in the motion.