February 2017 Fourth Example Ten-point Answers to Virginia Essay Questions
February 2017 - QUESTION 7 – VIRGINIA BAR EXAMINATION
Keith was brutally murdered in the bathroom at his home in Scott County, Virginia. Keith had been stabbed numerous times all over his body, and horizontal "figure-eight" symbols had been painted on the bathroom walls in Keith's blood.
Keith's murder had striking similarities to the murder of Ron thirty years earlier in Scott County, including multiple stab wounds and horizontal "figure-eight" symbols drawn in his blood on the bathroom walls. Bob, a local painter, had been convicted of the first degree murder of Ron and sentenced to twenty-five years of incarceration. Following his release from prison, Bob returned to Scott County. He and Keith lived in the same town.
Following a thorough investigation, Bob was charged with the first degree murder of Keith. At the trial in circuit court, one of the Commonwealth's witnesses testified that a horizontal "figure-eight" symbol represented infinity. Bob did not object to this testimony. The Commonwealth then offered into evidence photographs of the "figure-eight" symbols drawn on Keith's bathroom walls. Bob timely objected to the photographs, arguing that their gruesome nature would unfairly influence the jury. The Court overruled Bob's objection, admitted the photographs, and allowed the Commonwealth to show them to the jury.
The Commonwealth called a retired detective, who thirty years earlier had personally investigated Ron's murder, to testify about the similarities between the murders of Keith and Ron. The Commonwealth then sought to introduce in evidence certified copies of court orders regarding Bob's prior convictions, including the one for the murder of Ron as well as others for several misdemeanor traffic offenses. Bob timely objected to the introduction of the murder conviction order on the ground that it was unfairly prejudicial to him because it implied that he had the propensity to commit crimes. Bob also timely objected to the introduction of the traffic offense orders on the same ground. The Court overruled both objections.
As its last witness, the Commonwealth called Bob's wife, Janis, to testify against Bob. Janis had provided the investigating detectives with incriminating information that linked Bob to Keith's murder and voluntarily agreed to testify. When Janis took the stand, but before she gave any testimony, Bob immediately invoked Virginia's spousal privilege and objected to Janis being called as a witness. The Court overruled Bob's objection and allowed Janis to testify. Janis testified that she saw Bob and Keith get into a heated argument in public at the grocery store days before Keith's murder. Bob objected to this testimony, again, invoking the spousal privilege. The Court overruled the objection. Janis also testified that, later in the evening after Bob's argument with Keith, when she and Bob were lying in bed, Bob told her that "Keith would pay," and that "it was time that Keith met infinity." Janis explained that Bob told her not to tell anyone about his plans concerning Keith. Bob did not make similar statements to anyone else before the trial. Bob timely objected to Janis's testimony concerning his statements about Keith, again invoking the spousal privilege. The Court overruled this objection as well.
|(a)||Did the Court err in overruling Bob's objection to the introduction of the photographs? Explain fully.|
|(b)||Did the Court err in overruling Bob's objection to the introduction of the orders establishing his prior convictions for
(i) the murder of Ron? Explain fully.
(ii) the misdemeanor traffic offenses? Explain fully.
|(c)||Did the Court err in allowing Janis to take the stand as a witness to testify against Bob? Explain fully.|
|(c)||Did the Court err in overruling Bob's objection concerning Janis's testimony about
(i) the argument she observed at the grocery store? Explain fully.
(ii) Bob's bedroom comments about Keith? Explain fully.
February 2017 - QUESTION 7 – EXAMPLE ANSWER #1
A - Photographs
The court did not err in overruling Bob's objection to the introduction of the photographs. At issue here is whether the photographs are relevant evidence and whether the relevant evidence is more probative than prejudicial to the defendant. Evidence is relevant if it suggests the existence of a fact is more or less probable.
Additionally, evidence of modus operandi or "M.O." is relevant evidence. Here, the fact that Bob had been convicted of a murder with multiple stab wounds and horizontal "figure-eight" symbols drawn in the victim's blood on the bathroom walls matches exactly with the circumstances of Keith's murder. It appears from the evidence that the M.O. is the same in both killings.
As such, the evidence is relevant.
Regarding the gruesome nature of the photographs, the court has discretion regarding admission of the evidence, upon timely objection, and would consider whether the photographs are more probative than prejudicial to the defendant.
Here, the photographs are more probative than prejudicial and the court was correct in overruling Bob's objection.
B - Prior Convictions
i. Murder - At common law, if a crime occurred more than ten years prior to when the proponent is seeking to introduce conviction evidence, that evidence would not be admissible. Virginia has abolished this aspect of the common law and allows such evidence to be admitted if it is relevant.
Here, evidence of Bob's prior murder is relevant. It is also more probative than prejudicial because it shows Bob's propensity to commit murder. Therefore, the court did not err in overruling Bob's objection to introduction of Bob's prior murder.
ii. Traffic Offenses - The traffic offenses are irrelevant to the murder. Nevertheless, Bob did not object on grounds of relevancy. Bob objected based on grounds that the introduction of the traffic offense convictions are unfairly prejudicial due to an implication he had the propensity to commit crimes in general. Bob was correct here. It is more prejudicial than probative to have this evidence admitted and the court did err in overruling Bob's objection.
C - Janis Taking the Stand
The court did not err in allowing Janis to take the stand as a witness to testify against Bob. The issue here is whether Bob properly invoked spousal immunity and whether spousal immunity applies.
Spousal immunity is the right to forbid a party's spouse from testifying against him or her during a criminal case. The immunity may not be invoked in a civil case in business dealings or where the spouses have opposing interests.
Here, Bob invoked "spousal privilege," which he may have confused with "spousal immunity." Because Bob did not properly invoke spousal immunity, the court did not err in allowing Janis to take the stand as a witness against her husband. The facts do not indicate whether Janis had any choice in the matter.
D - Janis's Testimony
i. Argument in the Grocery Store - The court did not err in admitting Janis's testimony that she saw Bob and Keith get into a heated argument in public at the grocery store days before Keith's murder. The issue here is whether any information here was "privileged" under the doctrine of "marital privilege."
Private communications between spouses is privileged information, meaning a spouse cannot be compelled to testify against his or her spouse regarding the privileged communication if it would mean the private communication would be admitted into evidence.
Here, Janis's knowledge that she saw Bob and Keith get into a heated argument in public at the grocery store is not a private communication between her and Bob. First, Bob did not communicate directly with Janis. Secondly, if he had, the grocery store is a public place and unless there are more facts, it appears any communication would not be intended as private. Therefore, the court did not err in admitting this testimony.
ii. Bob's Bedroom Comments - The court erred in admitting Janis's testimony that Bob told her "Keith would pay," and that "it was time that Keith met infinity." While the evidence is certainly relevant given that the symbol for infinity resembles the figure eight, this is a private communication between Janis and Bob in a private place. Bob and Janis also have the expectation that communications between the two of them in a private place would be private. Thus, the evidence should not have been admitted upon Bob's timely objection.
February 2017 - QUESTION 7 – EXAMPLE ANSWER #2
(a)Overruling Bob's objection to Introduction of Photos
In order to be admissible all evidence must be relevant and the probative value may not be outweighed by the dangers of unfair prejudice. Here the crime scene photos were extremely graphic as they showed a lot of blood. However, they also showed modus operandi or essentially a calling card for the prepetrator. Therefore, while the graphic detailing may be prejudicial and unpleaseant it does not likely outweight the probative value in assisting the court/jury in its ruling. As such the court did not error in overruling Bob's objection to the photographs.
(b)Overruling objection for prior conviction for
Prior convictions are not admissibile purely to show propensity to commit a criminal offense. If used for impeachment purposes, a felony conviction may not be used if the party was released from confinement more than 10 years ago nor may misdemeanor offenses be presented unless they are crimes involving fraudulent behavior or lying.
(i) Murder of Ron
The court was correct to overrule Bob's objection for the murder conviction. Felony convictions which are otherwise stale and time barred due to being older than 10 years, they may be allowed to be introduced for another purpose. However if more than 10 years the probative value must substantially outweigh the danger of unfair prejudice. An acceptable purpose for admitting an old conviction in such a case would be one to show identity or modus operandi. While the conviction for the Murder of Ron was stale in that it was committed 30 years ago. The similarity of execution and the infinity symbol shows modus operandi and therefore the probative value substantially outweighs the danger of unfair prejudice. As such it should be admissible and the court was correct in it's ruling.
(ii)Misdemeanor of traffic offenses
The court was incorrect to overrule Bob's objection. A misdemeanor traffic offense is neither a felony nor a crime involving lying or fraudulent behavior. As such the misdemeanor may not be be admitted in this case merely to impeach his credibility. Therefore the court was wrong to overrule Bob's objection.
(c) Janis taking the stand against Bob
Under spousal privilege a spouse may not be forced to testify against his or her spouse in a criminal case. The holder of the privilege however is the testifying spouse. Therefore the defendant spouse may not prevent the other spouse from testifying against the defendant. Here Janis wanted to testify therefore as the holder of the privilege she may choose to testify against Bob in his case. Therefore the court did not error in allowing Janis to take the stand.
(d) Janis's Testimony
As stated in the previous section, spousal privilege does not stop Janis from testifying against her spouse Bob if she chooses.
However the Marital Communication privilege prevents a spouse from testifying about communications between the spouses in either a civil or criminal trial. Both spouses hold this privilege and therefore can prevent a spouse from testifying about marital communications between the spouses, except in criminal cases where the spouses are co-defendants or in family cases (such as divorce, child custody, domestic abuse, etc.)
(i) Grocery Store Argument
Janis' testimony about what she saw at the grocery store was not communication between her and Bob while married, but rather between Bob and another party. Therefore the court was correct to overrule Bob's objection to her testimony and allow her to testify.
(ii) Bob's Bedroom Communications
Here Janis was to testify about private communications between Bob and Janis made while married. Therefore Bob could prevent her from testifying about it as both parties must agree in order for the communication to be admissible. Bob as a holder of the privilege objected to her testimony. No exceptions apply as Janis was not a co-defendant nor was this a family case. As such the court errored when it allowed her testimony about their communication to be allowed.