Questions

PROBLEM 2-3. The victim in a domestic battery trial was called by the prosecution to testify
about the night her live-in boyfriend beat her nearly to death, leading to the charges. On direct
examination, the prosecution asked the victim how she and the defendant met. The victim
testified, “Well, right after he got out of jail, he needed a place to stay, so he approached me
and asked me if he could move in with me.” The defense counsel immediately stood up and
made a motion to strike the testimony claiming it brought out the inadmissible evidence of
other crimes regarding the defendant's prior time in jail that was unfairly prejudicial to him. The
judge responded, “They've already heard it. But don't go any further with that line of
questioning, prosecutor.” Has the defense properly preserved the issue for appeal? Why or why
not?

Assume that instead of asking for a motion to strike, the defense counsel made a motion to the
judge to admonish the jury about the fact that the jury was not to consider the defendant's
prior conviction/time in jail towards his guilt or innocence in the case. Would this request
change your answer regarding whether the defense had properly preserved the issue for
appeal? Why or why not?

PROBLEM 2-4. James was found guilty of second-degree murder following a six-day jury trial in
which the prosecution offered the testimony of Jason (the victim's 27-year-old son) who
witnessed James stab his father to death during a carjacking of his father's truck in which he
was a passenger at the time of the incident. The son positively identified James in a six-person
photographic lineup and at the trial. James's fingerprints were on the truck's door handle, even
though they didn't know James. James confessed to the murder, but later filed a motion to
suppress the confession claiming it was unconstitutionally obtained because he claims he made
it only because he was promised an offer of a lighter sentence, which he did not receive.
Following a hearing on the motion, the judge denied James' motion to exclude the statement,
and the statement was offered into evidence against James at trial. James was found guilty and
now appeals. On appeal, James claims the court erred in allowing the statement into evidence.
Has James properly preserved the issue for appeal? Has he satisfied all procedural requirements
for a finding of error at the trial court? What factors will be considered? What will be the likely
outcome?

PROBLEM 2-5. During a jury trial, after the defense attempted to question the victim regarding
the content of letters that she sent to the defendant prompting the attack for which the
defendant is on trial, the prosecution objected and asked to approach the bench. During a
bench conference, the prosecutor objected that the witness's testimony was not the best
evidence of the content of the letters in violation of Article 1002 and that the defense should be
required to produce the letters rather than have the witness testify about the content. The
judge sustained the objection and excluded the witness's testimony about what was written in
the letter. The defendant was convicted. On appeal, the defense claimed the trial court erred in
excluding the victim's testimony regarding the content of the letter because the testimony did
not violate Article 1002 and also because the exclusion violated the defendant's Sixth
Amendment right under the United States Constitution to present a defense. Was either or both
issues properly preserved for appeal? Why or why not?

PROBLEM 2-6. During a domestic violence case in which the victim failed to show up to testify
at the trial, the prosecution attempted to offer the witness's statement into the record that was
given to the police officer on the evening in which she called the police to their residence after
being badly beaten by the defendant. The defense rose and stated, “I'm gonna have to object to
that, judge.” The judge overruled the objection and allowed the prosecution to offer the
affidavit into the record. The defendant was convicted. On appeal the defense alleges that the
affidavit was hearsay. Was the issue properly preserved for appeal? Why or why not?

PROBLEM 3-1. The Chateau Dijon restaurant was sued after the leg on a customer's chair broke,
causing him to fall on the floor and break his hip. The defendant's attorney intends to offer
evidence that the restaurant has received three awards from the American Best Foods Society
for the quality and taste of their food to show that they are one of the best restaurants in town
and take pride in their business. Upon what basis should the plaintiff object? How will the court
likely rule and why?

PROBLEM 3-2. Jim is on trial for murder. He is 31 years old. The prosecution would like to have
him display an old tattoo that reads “KILLER” which he had placed on his arm when he was 16
years old. His attorney objects that the tattoo is not relevant. How should the court rule and
why?

PROBLEM 3-3. Kevin is a delivery truck driver for a major company. One day while out making
his deliveries, he was involved in a major accident preventing him from continuing to work.
During worker's compensation proceedings, the defendant (employer) would like to offer
evidence that at the time of the accident, Kevin had veered off of his route to travel to his
daughter's school to drop off her lunch. They would also like to offer evidence that at the time
of the accident, Kevin was sending a text message. Kevin objects to the admissibility of both
pieces of evidence, claiming they are irrelevant in a worker's compensation proceeding. How
should the court rule on each piece of evidence and why?

PROBLEM 3-4. Shortly after an armed robbery of a convenience store was reported, where the
cashier stated that she shot the suspect, a 911 call was received where a young man indicated
that he'd just been shot. The caller, Ken, was in his apartment, which was about a block from
the store that had been robbed. Police arrived at Ken's house and found that he matched the
description of the suspect from the robbery. While standing in the doorway, the officer
observed a gun stuffed between the pillows of the sofa in the living room next to the front door.
Ken stated that the gun belonged to his roommate. Gloves were also found stuffed in the sofa.
There were no fingerprints on the gun. The cashier was unable to identify whether the gun was
the one used in the robbery and doesn't remember if the robber was wearing gloves. At Ken's
trial, the defense objects to the gun and gloves being offered into evidence claiming that the
prosecution cannot prove that the items were used in the robbery. How should the court rule
on the admissibility of the evidence and why?

PROBLEM 3-5. Mitchell is on trial for second-degree (felony) murder. During a traffic stop,
Mitchell pulled off and began fleeing from the officer when the officer went back to his cruiser
to check for warrants. During a high-speed chase from the police officer, Mitchell went the
wrong way down a one-way street and hit another car head-on, immediately resulting in the
driver's death. The prosecution would like to offer evidence that the week before the incident,
Mitchell told his landlord that he was wanted in Texas on armed robbery charges, and said that
if the police ever got after him, he would make sure that if they take him down, he's going to
take somebody else down with him. The prosecution believes the statement goes to Mitchell's
state of mind during the chase. Mitchell objects that the statement is not relevant. Should the
evidence of Mitchell's statement to his landlord be admitted in a trial for felony murder under
the statute below? How should the court rule and why? [La. R.S. 14:30.1 The killing of a human
being when the offender is engaged in the perpetration or attempted perpetration of
aggravated escape, even though he has no intent to kill or to inflict great bodily harm.]

PROBLEM 3-6. Ms. Peirce brought a wrongful death action against her husband's former
employer, Bigco, Inc. and its CEO, Emanuel Sims, who she claims negligently shot and killed her
husband on a hunting trip. In support of her case, the plaintiff intends to offer evidence of the
following: 1) That Emanuel misrepresented the trip as a business trip to the company to get
them to pay for it, even though no business was being handled or discussed on the trip; 2) That
the gun had been purchased just before 9:00 p.m. the night before they left for the trip and
Emanuel had never fired the weapon, even though he was a very experienced marksman and
was properly licensed; and 3) That Emanuel also killed a black bear on the trip, a violation of
state law. The defense objects to the admissibility of all three pieces of evidence claiming they
are irrelevant in the case. What, if any, evidence will likely be admitted at trial? Why or why not?

PROBLEM 3-7. Shayna, a former employee of University USA, has brought a sexual harassment
lawsuit against the university claiming the president sexually harassed her. She intends to call
Cole to testify that on several occasions he observed the president go into Shayna's office and
close and lock the door behind him. Shayna claims that those were instances in which the
harassment occurred. The defense would like to offer evidence that Cole had been
subsequently fired from the university when it was discovered that he had lied on his job
application when he was hired at the university. The plaintiff objects to the admissibility of the
evidence, claiming it is not relevant. How should the court rule and why?

PROBLEM 3-8. Melody is suing her employer for employment discrimination because she claims
that she was passed over for several promotions even though she was the most qualified person
for the job. As a part of her case, she would like to offer evidence of the qualifications,
attendance records, and performance evaluations of the last five individuals who were
promoted. The defense claims that the qualifications, attendance records, and performance
evaluations of other employees are irrelevant in her case, since they are not parties to the case.
Should the evidence be admitted over the defense's objection? For what purpose(s) might the
evidence be relevant? Explain.

PROBLEM 3-9. Dennis had a large aggressive dog. After attacking a little boy named Donovan,
Dennis sent his dog to obedience school to make sure he was better trained. After being at
obedience school for a month, Dennis went to pick him up and talked with the trainer who told
Dennis to be very careful around small children because the dog had a tendency to become
aggressive and could possibly attack. Dennis took great care around children with his dog.
Shortly after Dennis' dog finished school, Donovan's mother sued Dennis for negligently keeping
a vicious dog and for the damages caused by the dog when he bit Donovan. The plaintiff would
like to offer evidence that the trainer told Dennis about the dog having a tendency to bite
children to help prove that Dennis knew or should have known that his dog posed a danger to
others as required under the statute to prove liability. Will the evidence be admissible? Why or
why not?

PROBLEM 3-10. Deen was convicted of a felony and placed on probation. During his plea, he
was informed that as a convicted felon, he was not to possess any firearms. The very next day,
he reported to his probation officer (P.O.) and asked him for a suggestion on how he should get
rid of his shotgun that he'd had for many years now that he could not possess weapons. The
P.O. told Deen that he should pawn it. He asked the P.O. if it was okay for him to take it to the
pawn shop the next day to pawn it, and the P.O. told him that it would be okay. On his way to
the pawn shop the next morning, Deen was stopped for speeding and a quick check revealed
that he was a convicted felon who was not to be in possession of a firearm. He told the officer
that he was on his way to the pawn shop to pawn the shotgun as he was advised to do by his
P.O., but the officer told him that was his problem and arrested Deen anyway. At the trial, the
defense sought to introduce testimony that the P.O. had told Deen that it was okay for him to
take the shotgun to the pawn shop the next day to show Deen's good faith. The prosecution
objected to the evidence, claiming his good faith was irrelevant to the charged offense. How
should the court likely rule and why? [See State v. Recard, 704 So. 2d 324 (La. Ct. App. 3d Cir.
1997).]
PROBLEM 3-11. Dug was on trial for the rape of Vicky. In his defense, Dug sought to introduce
evidence of a message Vicky left in his voicemail about three weeks before the alleged rape
where she stated, “Hey Dug, this is Vicky, just returning your call. Yes, I'm free this weekend.
Let's definitely hang out. Looking forward to hearing from you. Talk to you soon. Bye.” The
prosecution objected to the message being played at the trial claiming that it was irrelevant to
the rape. Should the recording be admitted? Why or why not? [See State v. Probst, 623 So. 2d
79 (La. Ct. App. 1st Cir. 1993).]

Assume that rather than Dug seeking to admit the voicemail above that Vicky left, that instead
Vicky sought to admit a message that she left in his voicemail stating, “Look, I've told you to
stop calling me. I am not interested in you, so please do not contact me again. I am not going
out with you. Goodbye!” Dug objects to this message being played, claiming the voicemail is
irrelevant to whether she consented to sleeping with him on the night in question. Should the
recording be admitted? Is your answer different than when Dug sought to introduce the
message above? Why or why not?

PROBLEM 3-12. One morning, Deidra was driving her boyfriend's car when she was stopped for
a traffic violation. During a search of the vehicle, police found marijuana and hydrocodone in
the console. Deidra claims she was not aware of the drugs in the car and told officers it was not
her vehicle. She was arrested anyway for possession of the controlled dangerous substances.
That afternoon, when her mother found out about the arrest, she bonded Deidra out of jail and
immediately took her to the hospital to find out if her daughter was doing drugs. A drug test
revealed that neither marijuana nor hydrocodone were in Deidra's system. Deidra would like to
offer the results of the drug test in her trial for the possession of the controlled dangerous
substances. Should the evidence be admitted? Why or why not? Would evidence that
hydrocodone was located in Deidra's system be relevant? [See State v. Malone, 56 So. 3d 336
(La. Ct. App. 2d Cir. 2010).]

Article 403 Balancing Problems

PROBLEM 3-13: Lolita stabbed her husband Mark to death in their bedroom following a heated
altercation that occurred after Lolita learned that Mark was having an affair. After killing Mark,
Lolita dragged his bloody body from their upstairs bedroom down the stairs though the living
room, dining room, and kitchen, and into the garage where she put him in the trunk of the car,
then drove to a canyon where she dumped his body. Following a thorough investigation, Lolita
was arrested and was subsequently tried for Mark's murder. The prosecution offered 67 color
photos that showed the bloody bedroom, traces of blood along the staircase and wall and in
various rooms throughout the house, garage, vehicle, and canyon that supported their theory of
how Lolita committed the murder then attempted to cover up the crime. Assuming the photos
have been properly authenticated by the crime scene investigator who took them, how will the
court likely rule on the objection to their admissibility?

PROBLEM 3-14. The defendant is on trial for murder, but he claims self-defense. He would like
to offer a computer-animated reenactment of the incident as he claims it occurred. The
prosecution objects, claiming the evidence should not be admitted. How will the court likely
rule and why?

PROBLEM 3-15. Casey is on trial for murder of his parents to obtain life insurance proceeds.
Seven of the prosecution's 14 witnesses are various creditors who will testify that Casey was
either late or had defaulted on various accounts, including credit cards, his vehicle, and his
home. The evidence is being offered to show Casey's motive for killing his parents, and his
irresponsibility and/or obsession with money and finances. On what grounds should the
defense object? How will the court likely rule and why?

PROBLEM 3-16. Johnon called 911 and claimed that he'd arrived home from a business trip and
found his wife stabbed to death. The first officer to arrive was Ofc. Demery. Shortly thereafter
several other officers within the vicinity of the incident arrived on scene including Officer
Mitchell. The officers secured the scene and waited for about 15 minutes for the lead detective
to arrive who immediately took over the investigation, which led to Johnon's arrest for his wife's
murder. About a year later, just before Johnon's trial, his lawyer discovers that Officer Mitchell is
no longer employed with the police department. He learns that a few months after Johnon was
arrested, the officer was terminated from the police force for profiling vehicles for stops, then
falsifying information on speeding tickets he issued. Due to his insignificant role in Johnon's
case, the prosecution had no plans to call him as a witness. Johnon's lawyer would like to call
him to the stand to question him about the circumstances surrounding his dismissal from the
force. The prosecution does not think he should be called as a witness. Upon what basis should
they object? How will the court likely rule and why?

PROBLEM 3-17. Sue was killed in a car accident one night while driving home after the brakes
on her car gave out, causing her to hit a tree. Sue died on impact. Sue's husband (Husband) sues
the manufacturer of the vehicle claiming the brakes on the car were defective. He seeks
damages for loss of consortium, including loss of love and affection, society, and
companionship. In support of his claim, Husband seeks to introduce a photograph of him and
his wife Sue on a camping trip before she died, hugging each other and enjoying each other's
company. The plaintiffs plan to offer the photo into evidence during Husband's testimony as he
gives further detail about what Sue meant to him. The defense objects that the photograph is
unfairly prejudicial. Assuming the photograph has been properly authenticated for admissibility,
how should the court rule on the defense's objection and why?
PROBLEM 3-18. John is on trial for possession of a firearm by a convicted felon. One of the
elements the prosecution must prove is that John is in fact a convicted felon. John's previous
felony conviction is armed robbery, for which he served a 10-year sentence. At the trial, John
has agreed to stipulate to his felony status to prevent the prosecution from introducing the
exact name of the crime for which he was convicted because he does not want the jury to know
that he has committed a crime with a weapon in the past. The State, however, does not wish to
agree to the stipulation. Upon what grounds will John argue that he is entitled to the stipulation
in a federal court? How should the court rule and why? Would your answer change if the matter
was in a Louisiana state court? How and why?

PROBLEM 3-19. Bill, 27, is on trial for the aggravated rape and attempted murder of Pearl, a 71-
year-old elderly lady. After raping her, Bill strangled her and left her for dead. She survived, but
has been on life support in the ICU since the incident. She has various tubes in her and is
connected to a breathing apparatus. Two months after the incident, Pearl remains unconscious
in ICU and is unable to testify at the trial. The prosecution would like to show a picture or a
video of her in the hospital in her current state, claiming it will show that Bill really did “almost
kill” her. How should the judge rule on the jury seeing Pearl in the ICU?

PROBLEM 3-20. The prosecution would like to offer evidence that when Dion called the police
to report that his wife had been shot and that he needed an ambulance, he added, “I've been
arrested before and I know that the deputies are going to blame me for the shooting.” The
defense has objected to the deputy (lead investigator) testifying to the statement claiming that
the statement is unfairly prejudicial. Should the statement be admitted? Why or why not? [See
State v. Bailey, 664 So. 2d 665 (La. Ct. App. 3d Cir. 1995).]

PROBLEM 3-21. Carey is on trial for the armed robbery of a convenience store. There were two
clerks present at the time of the robbery. Clerk 1 was behind the cash register and will testify to
everything she saw and heard as she followed Carey's instructions to empty the cash register
into a Ziploc bag that Carey gave to her. Clerk 2 was on break at the time of robbery, but listened
to the whole thing from the break room just behind the counter. Clerk 2's statements about
what he heard are consistent with Clerk 1's testimony. There was also a black and white video of
the entire incident as well. The video had no sound and was a frame by frame of several still
pictures. At Carey's trial, the prosecution intends to offer the testimony of both clerks as well as
the video. The defendant objects that Clerk 2's testimony is irrelevant because he did not see
anything, but only heard stuff through the door. The defendant also objects that the video
should be excluded because it is cumulative and unfairly prejudicial. How will the court likely
rule on the admissibility of Clerk 2's testimony and the video and why?

PROBLEM 3-22. Jackson is the defendant in a civil case arising out of an accident where he ran a
red light. In the damages phase of the trial, he would like to offer evidence that a couple of
months after the accident, the victim/plaintiff had been in jail on an unrelated incident. He
claimed that any mental anguish that plaintiff may have suffered was a result of his time in jail,
rather than from the accident. Should the evidence be admitted? [See State v. Haley, 709 So. 2d
992 (La. Ct. App. 3d Cir 1998).]

PROBLEM 3-23. Benjamin is on trial for murder. He is accused of the murder in a hotel room of
a male prostitute whom he'd hired for sex. The prosecution would like to offer photos of the
deceased male victim dressed in women's lingerie in obscene sexual poses that were found at
the crime scene. The defense objects that the photos are unfairly prejudicial. How should the
court rule and why? [See State v. Brasseaux, 919 So. 2d 738 (La. Ct. App. 5th Cir. 2005).]

PROBLEM 3-24. Phillip is on trial for the sexual abuse of a 10-year-old boy. The prosecution
seeks to introduce evidence that Phillip is a homosexual. Should the evidence be admissible?
[See State v. Taylor, 663 So. 2d 336 (La. Ct. App. 3d Cir. 1995).]

PROBLEM 3-25. Joe is on trial for armed robbery. The defense calls Joe's mother to the stand to
testify that on the night of the robbery, Joe was at home watching the game with her. On cross-
examination of Joe's mother, the prosecution asks her if she believes robbing someone is okay?
Upon what basis would you object to the witness answering this question? How will the court
likely rule and why?

PROBLEM 3-26. University president Jimmy White accuses a student, Russell Mason, of
slandering him in a speech that Russell made at a rally attended by about 750 students as they
gathered to protest hikes in tuition. Russell stated that the students should not be required to
buy new cars and houses for the president, who he claims wants the extra money for personal
use. At the trial, President White would like to call at least the seniors who attended the rally to
testify to what Russell stated at the rally—over 200 of the students. If you were Russell's
attorney, upon what grounds would you object to the testimony? How will the court likely rule
and why?

PROBLEM 3-27. David is on trial for capital murder. He is accused of shooting an entire family in
cold blood during an armed robbery at a gas station. The prosecution would like to offer
evidence that the defendant's nickname is “Gunslinger” to show that the defendant is violent
and is likely to use a gun to kill. Should the evidence be admissible? Why or why not?

Assume instead that during the trial several eyewitnesses testified that they saw the defendant
commit the crime, who they only knew by the name “Gunslinger.” The police had asked them to
identify the person they knew as Gunslinger in a photo lineup, and they had each identified the
defendant. The prosecution would like to offer evidence that the defendant was known as
Gunslinger. Should the evidence be admissible? Why or why not? How are the two scenarios
different? Does your answer change? Why or why not? [See State v. Edwards, 750 So. 2d 893,
(La. 1999).]

ANSWERS

Problem 2-3:
When the victim blurted out that the defendant had “just gotten out of jail,” defense counsel
immediately moved to strike, which is a timely and specific objection under Article 103(A)(1),
so the issue was preserved for appeal even though the judge refused to strike. If, instead, counsel
had requested an admonition to the jury, that too would have preserved the issue because Article
105 allows a court to limit evidence to a proper purpose and instruct the jury upon request. In
either case, the defense made a timely and specific record of objection, which satisfies the
preservation rule.

Problem 2-4:
James filed a pretrial motion to suppress his confession, which is a preliminary question of
admissibility decided by the judge under Article 104(A), but to preserve the issue he also needed
to object again at trial when the statement was offered under Article 103(A)(1). If he did so, the
issue is preserved, but if not, it is waived. Even if preserved, the confession was relevant under
Articles 401 and 402, and given the overwhelming additional evidence (eyewitness
identification, fingerprints, and other proof), any error in admitting it would likely be considered
harmless under Article 103(A), so the conviction would probably be affirmed.

Problem 2-5:
Because the trial court excluded the victim’s testimony about the letters, the defense was
required to make an offer of proof under Article 103(A)(2) to show the substance of the excluded
evidence, and without such a proffer the issue is not preserved. In addition, the defense did not
raise the Sixth Amendment right to present a defense at the time of exclusion, so that specific
ground was not preserved under Article 103(A)(1). Therefore, neither the evidentiary claim nor
the constitutional claim would be properly preserved for appeal.

Problem 2-6:
The defense merely stated, “I’m gonna have to object to that, judge,” without specifying hearsay
or another basis, which is not sufficient under Article 103(A)(1) unless the ground is obvious
from the context. Because the ground for objection is not apparent on the face of the record, the
general objection does not preserve the hearsay issue for appeal. A timely and specific objection
was required and was not made here.
Problem 3-1:
Evidence of restaurant awards for food quality is irrelevant to whether the restaurant was
negligent in providing safe furniture because it does not make the broken chair more or less
likely, so it fails under Articles 401 and 402. Even if minimally relevant, the probative value
would be substantially outweighed by confusion of issues and waste of time under Article 403.
Therefore, the court should exclude the evidence if the plaintiff objects.

Problem 3-2:
The tattoo reading “KILLER” that Jim got at age 16 is not relevant to whether he committed the
charged murder at age 31 because it does not tend to prove or disprove any fact of consequence
under Articles 401 and 402. Even if it had slight relevance, the danger of unfair prejudice and
misleading the jury substantially outweighs that probative value under Article 403. Accordingly,
the objection should be sustained and the tattoo excluded.

Problem 3-3:
In the worker’s compensation case, the employer’s evidence that Kevin detoured to his
daughter’s school and was texting at the time of the accident is relevant under Article 401
because it bears on whether the accident occurred in the course and scope of employment. Under
Article 402, relevant evidence is admissible unless otherwise excluded. Since the probative value
is not substantially outweighed by unfair prejudice under Article 403, both pieces of evidence
should be admitted over Kevin’s objection.

Problem 3-4:
The gun and gloves found in Ken’s apartment are conditionally relevant under Article 104(B)
because a reasonable juror could find they are connected to the robbery, and they tend to make it
more probable that Ken was the robber under Articles 401 and 402. The fact that the link is not
conclusive goes to weight, not admissibility. Because the probative value is not substantially
outweighed by prejudice or confusion under Article 403, the evidence should be admitted.

Problem 3-5:
Mitchell’s prior statement to his landlord that he would take someone down if pursued by police
is relevant under Articles 401 and 402 because it shows his state of mind and foreseeability
during the flight that resulted in a death, which is material to felony murder during aggravated
escape. Although prejudicial, its probative value on his intent and state of mind is not
substantially outweighed by unfair prejudice under Article 403. Therefore, the court should
admit the evidence, possibly with a limiting instruction under Article 105.

Problem 3-6:
Of the three pieces of evidence, only the fact that Emanuel purchased a new gun he had never
fired is relevant under Articles 401 and 402 to show lack of familiarity and possible negligence.
The misrepresentation to get the company to pay for the trip and the illegal bear killing are
irrelevant to whether Emanuel negligently shot the victim, and their admission would risk unfair
prejudice and confusion under Article 403. Therefore, the gun evidence should be admitted,
while the other two should be excluded.
Problem 3-7:
Evidence that Cole was fired for lying on his job application is relevant under Article 401 to his
credibility as a witness. Under Article 105, the court should limit the evidence to impeachment
purposes if requested. The probative value for credibility is not substantially outweighed by
prejudice under Article 403, so the court should admit the evidence with a limiting instruction.

Problem 3-8:
The qualifications, attendance, and performance evaluations of other employees promoted
instead of Melody are relevant under Articles 401 and 402 to show whether she was
discriminated against and whether the employer’s reasons were pretextual. Although the defense
argues those employees are not parties, their records still bear on whether Melody was more
qualified, which is a fact of consequence. Because the probative value outweighs any prejudice
or confusion under Article 403, the evidence should be admitted, possibly with limiting
instructions under Article 105.

Problem 3-9:
The trainer’s warning to Dennis is relevant under Article 401 to show that Dennis had notice of
his dog’s dangerous tendencies, which is material to liability. Even if the statement is considered
hearsay, it can be admitted not for its truth but to show effect on Dennis, and Article 105 allows
a limiting instruction for that purpose. Under Article 403, the probative value is high and not
substantially outweighed by prejudice, so the evidence should be admitted.

Problem 3-10:
Deen’s probation officer’s statement that it was permissible to pawn the shotgun is relevant
under Article 401 to show Deen’s good faith and lack of criminal intent in possessing the
firearm. Under Article 402, relevant evidence is admissible, and Article 105 allows the judge to
limit its purpose to state of mind only. Because the probative value is not substantially
outweighed by unfair prejudice under Article 403, the court should admit the evidence.

Problem 3-11 (a):

Vicky’s voicemail to Dug saying she was free that weekend and wanted to hang out is relevant
under Articles 401 and 402 to suggest a friendly relationship and possible consent. Although
remote in time, its probative value is not substantially outweighed by prejudice under Article
403. Therefore, the recording should be admitted.

Problem 3-11 (b):

Vicky’s later voicemail telling Dug to stop calling her and saying she was not interested is
directly relevant under Articles 401 and 402 to show lack of consent and to contradict Dug’s
claims. The probative value is strong and not substantially outweighed by prejudice under Article
403. Unlike Dug’s voicemail, which showed only prior friendliness, this voicemail directly
supports lack of consent, so the court should admit it.

Problem 3-12:
The negative drug test is not relevant under Articles 401 and 402 because whether Deidra had
drugs in her system does not make her knowing possession of drugs in the console more or less
probable. In fact, its admission could mislead the jury into thinking non-use means non-
possession, so exclusion is proper under Article 403. By contrast, if the test showed hydrocodone
in her system, that would be relevant under Article 401 to knowledge of the drug’s presence, and
the probative value would not be substantially outweighed under Article 403, so it could be
admitted with a limiting instruction under Article 105.

Problem 3-13: The 67 authenticated crime scene photos are relevant under Arts. 401–402
because they illustrate how the murder occurred and support the prosecution’s theory of cover-
up. Although numerous, they corroborate testimony and are probative of sequence and manner of
events. Under Art. 403, unless they are so excessive as to cause unfair prejudice or overwhelm
the jury, their admission is within the trial court’s discretion. Likely, the court will admit them,
as Louisiana courts generally allow graphic but probative visual evidence.

Problem 3-14: A computer-animated reenactment is relevant (Arts. 401–402) because it

illustrates the defendant’s self-defense claim, but under Art. 104 it must be shown to fairly
represent the defendant’s version. However, under Art. 403 the court may exclude it if it risks
misleading or confusing jurors by presenting as “real” rather than illustrative. Courts often view
such animations skeptically, so the likely ruling is exclusion unless offered with a limiting
instruction under Art. 105 that it is only demonstrative aid, not evidence of fact.

Problem 3-15: The creditor testimony is relevant to motive (Arts. 401–402), but calling seven
separate creditors is cumulative under Art. 403, since probative value diminishes after the first
few witnesses and risks unfair prejudice by painting the defendant as irresponsible with money.
The defense should object on grounds of cumulative and prejudicial evidence, and the court will
likely limit the number of creditor witnesses allowed, permitting some testimony but excluding
excess.

Problem 3-16: Officer Mitchell’s termination for misconduct unrelated to the case is irrelevant
under Art. 401 since he had no role in the investigation beyond being present. Even if minimally
relevant to credibility, Art. 403 supports exclusion because it risks confusing the jury and
wasting time. The prosecution may object that the evidence is irrelevant character impeachment,
and the court will likely sustain the objection, disallowing Mitchell’s testimony.

Problem 3-17: The camping photo of the husband and wife is relevant (Arts. 401–402) to
damages for loss of consortium by illustrating the closeness of the relationship. Under Art. 403,
its emotional impact does not substantially outweigh probative value, since it directly supports
the loss claimed. Properly authenticated, the photo should be admitted, and the objection
overruled.

Problem 3-18: In federal court, under Old Chief v. United States, the defendant may insist on
stipulating to his felony status because naming the specific prior conviction risks unfair prejudice
outweighing probative value (Art. 403). Thus, John can require stipulation. In Louisiana state
court, however, precedent (e.g., State v. Ball) allows the state to prove the name and nature of
enumerated felonies, making the stipulation insufficient. So in federal court the stipulation
prevails, but not in Louisiana.
Problem 3-19: Showing the jury photos or video of Pearl in the ICU is relevant under Arts. 401–
402 to prove severity of injuries for attempted murder, but under Art. 403 the extreme prejudicial
effect of seeing her unconscious on life support substantially outweighs probative value, since
other medical testimony can prove the same point. The judge should exclude the ICU images to
prevent unfair prejudice.

Problem 3-20: Dion’s statement is relevant (Arts. 401–402) to show his consciousness of being
blamed, not necessarily guilt. Under Art. 403, while prejudicial, it is his own voluntary statement
and probative of his state of mind at the time. Louisiana courts (e.g., State v. Bailey) admit such
statements with limiting instructions if necessary. The court will likely admit the deputy’s
testimony.

Problem 3-21: Clerk 2’s testimony is relevant (Arts. 401–402) because hearing the robbery
corroborates Clerk 1’s account, and it is not excluded merely because he didn’t see it. The video
is also relevant as direct evidence of the event, and not unduly prejudicial under Art. 403.
Although cumulative, it provides independent probative value by showing the robbery. Both
Clerk 2’s testimony and the video will likely be admitted.

Problem 3-22: Evidence of the plaintiff’s later jail time is irrelevant under Art. 401 because it
does not make it more or less probable that the accident caused mental anguish, and it risks
confusing the issues under Art. 403. The court will exclude it, since unrelated misconduct is not
probative of damages from the accident.

Problem 3-23: The sexually explicit photos of the victim are not relevant under Art. 401 to
proving the murder, and under Art. 403 their prejudicial effect (biasing the jury against the
victim or inflaming them against the defendant) outweighs any slight probative value. Louisiana
courts (e.g., Brasseaux) have excluded similar evidence. The court should exclude the photos.

Problem 3-24: Evidence that Phillip is homosexual is irrelevant under Art. 401 to proving
sexual abuse of a child and is impermissible character evidence. Under Art. 403 it is highly
prejudicial and risks jury bias. Louisiana courts (e.g., Taylor) have excluded such evidence. The
court will rule it inadmissible.

Problem 3-25: The prosecution’s question to Joe’s mother about whether she thinks robbery is
okay is irrelevant under Art. 401 and improper character opinion testimony. Under Art. 403 it
risks confusing issues and unfairly prejudicing the defendant. The objection should be sustained,
and the court will not allow the question.

Problem 3-26: Calling over 200 students to repeat the same statement is cumulative under Art.
403. While the testimony is relevant under Art. 401, admitting so many witnesses wastes time
and risks undue prejudice. The court will likely limit the prosecution to a small sample or
stipulation of what was said, excluding most of the proposed testimony.

Problem 3-27: In the first scenario, evidence of the nickname “Gunslinger” offered to show
violent character is inadmissible under Art. 404 and irrelevant under Art. 401, with unfair
prejudice outweighing any probative value under Art. 403. In the second scenario, where
eyewitnesses only knew the defendant as “Gunslinger,” the nickname is relevant to identification
and not offered for propensity. Under Arts. 401–402 it is admissible, and under Art. 403 its
probative value outweighs prejudice. Thus, the difference lies in the purpose: inadmissible as
character evidence, admissible for identification.