Some of the Best Captions from Professor John Barkai’s Evidence Exams

Each semester I put one or more cartoons without captions on my evidence final examination and ask students to write captions for the cartoon. Here are some of the best cartoons and captions I’ve collected over the years. I use these original cartoon captions in my PowerPoint presentations, always pointing out that the captions came from former students. Some of captions may not make sense to you because you have not seen the class materials or heard the class discussions, but I think that you will enjoy most of them. -- John Barkai

Directions to students: Write a caption for one of the cartoons below based upon topics from our class. All captions written in English will receive full credit.

You actually remember all the hearsay exceptions? I’m impressed!

Don’t worry about it. Just look serious and nod.

I don’t think Sally is going to go for a hearsay catchall exception.

I wish there was a rule allowing us to smack their heads every time they make those long objections.

What exactly is collateral again?

Can we take judicial notice that his lawyer is ripping him off in attorney fees?

I think we can take judicial notice Barry. It seems to be local common knowledge that Sarah Palin is an idiot.

1

Original caption: Do you have those days where you don’t give a damn about the rules of evidence?

Crawford...Smawford. Let's admit it!

Why did the Supreme Court have to decide Crawford that way - just when we thought we knew the rules of evidence?

Why did we vote with the majority in Crawford? Now we have to figure out what we meant.

This Crawford thing is a bad idea. I don't even know if it's testimonial or not.

He must be one of Barkai's students.

I wish we could tell the jury what a jerk this guy is.

Finally, we get to decide whether Emanuel's (or Gilbert’s) is a learned treatise.

Look how far we got without really knowing evidence.

I don't know either. I say we just flip a coin and go with it.

Overruled. Pass it on.

Someone's a little "hearsay happy" today.

Should we overrule? I should have paid more attention in evidence class.

Now honestly, don't you think that the dubious probative value of basing an entire semester's grade on one exam is more than substantially outweighed by the prejudicial effect of the exam format itself?

Shall we take judicial notice that this lawyer has no idea what he is talking about?

What does the Crawford ruling mean?

Hey, is that admissible? I forgot my Emanuel's at home.

If you think this is bad, you should have taken Barkai's evidence final exam.

This guy must have skipped evidence the day they did the best evidence rule.

2

No, I wasn't paying attention either.

So this is our punishment for learning the rules of evidence. Now we have to spend our lives listening to attorneys who love the sound of their own voices.

O.K. Bill. Heads we'll call it "hearsay," and tails is "no hearsay."

So I asked my son about the dent in the car and he replied, "Subsequent remedial measures are irrelevant."

I know judges can't testify, but I'm the only witness alive from the last time the Cubs won the World Series.

Why didn't Scalia just tell us what is testimonial? (confrontation)

What is "testimonial" testimony?

You know Bob; it was much easier to stay awake in court when Irving Younger was around.

We could call Professor Barkai, and he could tell us how to rule on the evidence.

I wish I had paid more attention in Evidence class.

Really? But Professor Barkai always used to say, "Bias is never collateral."

What do you mean I can't admit my own opinion? I've been on the bench so long, that I'm an irrebuttable presumption. (or I'm as good as an ancient document)

Wait, I forget. Is bias collateral?

That witness was an insane, atheist felon, but he was still competent to testify.

I think that’s how presumptions work.

3

Thanks to rule 403, we’ve still got time for a round of golf this afternoon.

That's funny; I'm not wearing anything under my robes either.

Who are we to judge?

Sheesh, all this Daubert gatekeeper work is forcing me into an early retirement.

He looked guilty, so I used my "discretion."

Do you ever feel like no one cares if you are listening or not?

Do you think we can now be eligible for that spousal privilege provision dear?

How about we go to Hawaii and get hitched?

Chief Justice Rehnquist to Justice Kennedy: "So whaddya think, Tony, do I qualify as an ancient document?"

Judges, talking about law as if it mattered.

I'm glad I'll never have to take another evidence exam.

I don't' know if it was admissible, but it looked and sounded good to me.

Those attorneys must have a reason for objecting, but I have no idea why they are objecting.

For the life of me, I have no idea what is admissible. I just fake it.

Remember Evidence, Law 543... Would Barkai have ruled the same way? "Nah!"

Can you believe it, he used the smell of SPAM* to refresh memory?

Barkai-ism: CRUD and SPAM are my mnemonics relating to hearsay: cC= contemporaneous cross examination; U= under oath; D= demeanor. SPAM = hearsay risks of Sincerity; Perception; Accuracy; Memory

I think black is your color.

I love this job. I don't' even have to go to the locker room to change before aerobics class.

The two judges who got C's in evidence.

I can't believe that lawyer passed the evidence section of the bar exam.

Hearsay .... Hearsay ... Just let it all in. That's what I say - there's bound to be an exception anyway.

All these years and I still don't understand what a bursting bubble is. (presumptions)

With all the differences between the HRE and FRE - I'm sure glad I don't' have to take an evidence exam.

George, he said "Objection, relevance" not "objectionable relatives."

4

J1: Just 3 hours ago, I could've sworn I was only 26 years old; J2: Evidence and law will do that to you.

I think I forgot to put on my underwear today.

Was it my right shoe that can be used for refreshing recollection?

My good man, evidence is as essential to law as gravity is to earth.

I love you man, but you are not getting my Bud.

How the hell should I know if it was admissible?

So tell me again, what exactly does "truth of the matter asserted mean?"

Tell me again, why did we go to law school?

“So you’ve read Crawford and now you think they’re going to come down here and set you free?! Sure thing, buddy! I bet Scalia himself will come down to let you out! Ha!”

“’Take the stand,” my lawyer says. ‘What could it hurt?’ he says.”

“I am still waiting for my attorney’s timely objection.”

“First timer, eh? You’ll learn real quick not to talk about your ‘good character’ next time you testify.”

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Oh really? My lawyer had Barkai for evidence too.

The hearsay catch-all exception definitely caught me.

Yeah, I think you should’ve left out the part about planning to go to Crooked Creek. (Hillmon Doctrine)

If I fail during this prison escape, I promise you a formidable dying declaration.

I think I have a constitutional right to confront whoever made these uniforms.

All I said was, “I can’t believe it worked!”

My new lawyer took Barkai for evidence. I think I'll be getting out soon.

And so my best bud told the judge what a truthful guy I was. Unfortunately, then the prosecutor called my ex-wives to the stand.

Who knew that bringing in people to speak well of my character would end up hurting me in the end?

So you testified to being an upstanding citizen, huh?

As it turns out, they didn’t really need a body. Circumstantial evidence was enough.

Don’t worry. We can claim privilege. Trust me. I’m a lawyer.

I see you opened the door too.

Well if we’ve learned anything, I guess we shouldn’t have updated our escape route on twitter and Facebook.

So your wife didn’t use her spousal privilege either?

See what happens when you lawyer doesn't pay attention in Evidence class?

It's called a "Statement Against Interest." Just tell them you overheard me in the chow line, and you can't find me now.

6

My wife and I are really close. I tell her everything so she can't testify against me.

My lawyer said he should have taken Professor Barkai for evidence.

At my disciplinary hearing, they dismissed my case for lack of ID. They couldn't decide whether to call the number of my shirt an inscribed chattel or to apply the best evidence rule. (best evidence)

My lawyer didn’t know his rules of evidence very well.

Well, Your Honor, I think it’s pretty clear that I’m an expert in all things “Viking.”

No Your Honor, I’m not a flight risk.

Absolutely! The defendant has a reputation in our community for peacefulness. Unlike most of us, he sometimes refrains from pillaging the women and children when we go on our daily raids of nearby villages.

So you are our expert on pillaging. Have your methods been peer-reviewed?

Are you competent to speak for Viking traditions?

Your Honor, I can’t say it’s my modus operandi alone. For centuries, thousands of other Vikings have rated, pillage, and conquered villages.

I said I wanted to speak to this in camera, not in costume.

I was told to come as a character witness.

So are you a character witness? You are a character.

Sure you can voir dire her all you want – if you sing it with a Wagnerian Leit.

Tell me again what qualifies you as an expert?

The defendant claims your horns directly represent your propensity as a “bad person.”

Yea, maybe I did have a mental defect at the time I witnessed Professor Barkai's accident, I had just finished the evidence exam.

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Original caption - The jury just laughed at my alibi. It's a wonderful feeling being able to make people laugh

What a coincidence, my lawyer had Barkai for evidence too!

So roomie, you here for failing the evidence exam too?

I'm definitely getting out. My attorney took evidence from Prof. Barkai.

That judge was serious about knowing the rules, huh?

Don't worry, I can't testify about anything you tell me that would be hearsay.

It all started when I failed that evidence exam.

This is what I feel like during finals time.

You were Barkai's student too, huh?

My lawyer went to school at UH Law School too.

So then I objected.

8

How did I know it was Frank? I'd know that buzz anywhere.

I don't know if its bribery your Honor, but he did say, "You can catch more flies with honey than with vinegar."

Why yes, I recognize the defendant, he's the one sitting right over ... over ... Aw, nuts, all us fruit flies look alike.

Hey, how was I supposed to know it was "evidence?" I thought it was a free meal.

I didn't think it was that kind of sting operation.

I was just a fly on the wall.

Although the mayfly's two-day life span had received judicial notice, no one recognized the true purpose of the defendant's stall tactics until it was too late.

Your Honor, it's true that it is not hearsay, but still it's none of the jury's bee’s wax.

He said he intended to go to the blue light. (Hillman case on intent)

Well, in my opinion it was a pile of crap.

He said, "Waiter, there's a fly in my soup." (present sense impression)

Sure I was excited. The can said "R-A-I-D." (excited utterance)

Yes, they were Bzz-ness records.

The store's reputation? It was a fly-by-night operation.

Yeah, the Defendant has a reputation in the community as a real pest.

Sustained. You can't impeach the witness with the fact that he eats rubbish, hangs out at dumps, and associates with low-life maggots. We're flies. We all do that.

9

Sensory defect? But I have 5 eyes!

I couldn't help it; he was giving me the evil eyes.

Of course it was a dying declaration. I ate him, didn't I?

I can't help it if everything people say when I am around is an excited utterance.

Are you an expert in the field of digestion?

Isn't it true that you were green with envy?

I went to Crooked Creek with Hillman to meet Angelo.

No, I'm not a vegetarian.

No I wasn't biased against him. As a matter of fact, he tasted delicious. Burp!

All right! All right! I admit it! I confess! Those weren't real tears!

Did you sell your baby brother to the ACME Purse and Shoe Company?

I don't remember. If I could smell your shoe, it might refresh my memory.

No, you cannot have your left shoe back. [A Barkai-ism: you can use anything to impeach, even my left shoe.]

I only ate 3 of those law students. What's the big deal?

Because you didn't ask to approach me, I'm going to snap.

A defendant with a big mouth should keep it shut in court (especially in Hawaii).

Under Rule 401 relevancy analysis, I would like to show how the teeth of this alligator are relevant to the lack of "bytes" found in my computer's hard drive.

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That's not what I meant when I said I could use a hand.

No. I have never lived near water, and I have never eaten anyone.

Isn't it true that you are the exception that swallowed the rule?

Isn't it true that you ate Mrs. Smith so that she would be unavailable for trial? (hearsay, forfeiture, confrontation)

To hell with relevancy! Ask him what he ate at McDonalds!

But, your honor! Bias is never COW-lateral. It is always MOO-terial.

He is not the milkman! I know the milkman, and that isn't him.

Is it true you work for the USDA?

How could any of you believe that he's a better expert on the digestive system than me? He only has one stomach.

Impeach his reputation. He's even more of a bullshi*** than I am!

A juror is irate over missing yet another feeding due to a four-hour cross examination of the witness.

He's lying. He eats steak 3 times a week!

I object your honor! He's milking the jury.

You call that bullshit? I'll show you some real bullshit if you put me on the stand.

I thought you said he should be judged by a jury of his steers.

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I've got your "excited udders" right here, pal! (This is a Brooklyn Bovine).

I beg to differ, that man is not an expert at milking cows!

"Udderly" disgusted by the prosecutor's use of leading questions, Juror #7 decided ex-parte to MOO-ve to strike the testimony.

The juror seemed determined to prove he was no "cow-ard" by speaking up at trial.

Defense counsel's attempt to "steer" the jury in his direction was apparently working.

I "herd" him the first time.

Can we moo-ve on? The witness is udderly cow-lateral.

Counsel is bullying the witness.

Bias is never cow-lateral.

Unfortunately, Bessie's "excited udderance" came too late to save Farmer Brown.

You'll talk till the cows come home.

An excited "udderance" at Oprah Winfrey's Mad Cow Trial.

Now who is getting milked?

Even animals hate lawyers.

Now that is an excited udderance!

You're really milking that witness for all he's worth.

12

But I saw them do it on Perry Mason.

615? What's 615?

"... but I'm innocent I tell you. It was my college roommate, I swear." Ted Bundy's comments as he was taken away. [Note Dean Foster was the college roommate of convicted serial murderer Ted Bundy. For real!]

I tell you the glove fits.

But I don't understand why she got so mad. The statement was only hearsay - it was offered to prove the truth of the matter asserted - her dress was ugly.

I can't be dismissed. I'm researching for my book deal.

But your Honor, I am an essential party.

Enforcement of the witness exclusion rule.

Your honor - please. Just let me try one more time to lay a foundation for laying a foundation.

Your Honor, it's true, believe me SPAM really is made out of CRUD. I learned it in Evidence class. Professor Barkai can't be wrong. [Barkai acronyms – hearsay risks are SPAM - Sincerity, Perception, Accuracy, and Memory – protect against the risks with cCRUD - contemporaneous cross-examination, confronting the witness Under oath, and observing Demeanor]

CRUD, I wonder if they serve SPAM in prison.

And another thing, I don't care if the Defendant has a Halo on he still did it with that CRUDy can of SPAM. [A Barkai-ism. In Hawaii the criminal defendant wears a halo – meaning the defendant cannot be impeached under HRE 609 by prior convictions.]

But your Honor, nobody told me CRUD wasn't a legitimate objection.

Judge, you should've allowed that cCRUDy SPAM in!

B'bbbut ... He said he liked SPAM.

But your Honor, I thought the lawyer-client privilege protected my possession of the murder weapon.

Your Honor, you may only throw out hearsay, and I am not hearsay.

A HARROWing day in court for Mr. Mason. [Barkai acronym – Hearsay, Authentication, Relevance 401, Relevance 403, Original Writings)

What? Teaching Evidence is a crime? It may be immoral and obscene, but the last time I heard, it was no crime.

In conclusion, members of the jury, do not hold for a fact that I've been charged with contempt of court for excessively boring the judge against the defendant.

But your Honor, I object to you!

When in doubt, object!

13

But your honor, I have a right to confront my accusers.

There's nothing in the rule (505) that says I cannot use my spousal privilege against all 12 wives!

But your Honor, "competence" refers to witnesses, not to attorneys.

In the L.A. County Courthouse: "Are you saying memories refreshed in past life regression therapy are inadmissible?"

The next time you say adverse privilege about my wife you'll be wearing that robe around your head!

And do you also recognize THIS grain of sand, Mr. Smith?

I’d like to retract my admission, please.

Did you hear the one about Officer Bier and the bottle of Thunderbird wine?

I am a competent juror. I hear best when I am asleep. (State v. Yamada)

Hang on, I'll soon be 804 unavailable.

Daubert has turned this place into a zoo.

Well, I received my Doctor of Veterinary Sciences degree from the Rin Tin Tin School of Veterinary Sciences, and did a residency at the Lassie Clinic Massachusetts. Since then I been sniffing around and writing health articles for Milkbone. (Qualifying an expert witness)

Ruff, Ruff, Ruff. And he's supposed to be an expert?

I'd always thought that lawyers work like dogs, but who knew this one actually spoke dog?

Biased? So what if I promised him extra bones?

He could not have seen me on the "roof."

Of course it's biased testimony. He's man's best friend.

14

Ask him leading questions. He's used to being on a leash.

The rules say you can't impeach him, but everyone knows he'll lie like a dog.

Should we try throwing him a bone? How about a leading question?

He's biased. On cross, ask him if he ever ate my homework.

Don't worry, we can impeach him for bias. He is man's best friend.

I know that all witnesses are competent, but this is ridiculous.

Are you certain that he can use ALPO to refresh memory?

Sure he is my best friend, but couldn't you have thought up a better character witness for me?

Object on bias. I had him neutered!

So you're sure he'll just roll over on cross, right?

Judge, the witness is clearly hostile. He bit my mailman yesterday.

She's got it in for me. I forgot to feed her last night.

Man's best friend? I think not.

What do you mean it's not hearsay? That's the same bark he made that day.

I'd always thought that lawyers work like dogs, but who knew this one actually spoke dog?

Biased? So what if I promised him extra bones?

He could not have seen me on the "roof."

That's impossible. That can't be a past recollection recorded. Dogs can't write.

I paw-mise to tell the truth, the whole truth, and nothing but the truth.

Objection. Here boy! Oh, I mean hearsay.

Justice Scalia finally succeeds in restoring the deeply-rooted tradition "dog testimony as hearsay" rule.

Isn't that Hear-Bark?

Is there a veterinarian-client privilege I can assert?

15

I present my expert on evidence Professor Bark E.

Objection. Here boy! Oh, I mean hearsay.

Every dog has its day in court.

The practice of law has gone to the dogs.

Your honor, the prosecution is drooling on the witness.

Is it true you said Barkai?

I paw-mise to tell the truth, the whole truth, and nothing but the truth.

Just because I pee on it, doesn't mean I own it.

16

Sure I know of the cat's reputation. He's a bad cat. (Character evidence)

I told him to go and find some other tree. This one was taken.

Yeah, he does have a reputation for truthfulness. He lies like a dog. (Character evidence)

She told me she was a purebred.

Of course I'm biased! It was a cat for god sake.

Dog-Gone Trial.

Really, believe me, I didn't dig up the body because I buried it - I was looking for my bone.

Yes, I ate the kid's homework, but you didn't hear it from me.

Well you know, my memory could be refreshed perhaps if you'd let me chew on that there bone for a minute or perhaps better yet, on Professor Barkai's shoe. (Refreshing recollection)

I told you I can't remember - show me the old shoe already! (Refreshing recollection)

I admit I did it. It's a dog eat dog world out there!

Those aren't distinctive characteristics, all dogs have fleas. (901b)

I don't believe in dog. (Dyslexic witness taking the oath.)

Of course I bit him. He called me a cat lover.

That was good counsel. You must have taken evidence from Barkai.

Wannabe Experts Beware the Daubert Gatekeeper

Hearsay exceptions. Haven’t heard of them. Can’t let them in.

If you want me to keep watching your back, don't say anything about your good character.

17

Is this a fair and accurate representation of the man you say has a reputation for peacefulness?

Just because the door is open doesn't mean you can come in! (Rules 401 & 403)

A brick may not be a wall, but it's still impressive - like me.

Yes, I’m the judge, what are you gonna to do about it?

Yes, my name is Harry Hearsay. Is that a problem for you?

Not only do criminals wear a halo (HRE 609 prevents impeachment of criminal defendants by prior conviction), but they also clean up pretty nicely too.

My case went down the toilet because my attorney did not pay enough attention to the rules of evidence.

I flushed the KRAP down the toilet, but then my lawyer told me it was actually cCRUD that he wanted to use for my case.

Yeah, my objection to my wife's testifying against me because it was a confidential spousal communication was overruled. I guess I shouldn't have had her invite her friends over to watch American Idol that night.

That KRAP is my business record.

18

I am sorry Mr. McGuire, but storing your "do it yourself home steroid kit" in my office won't make it privileged.

I'm sorry Professor Barkai that I think they've got you under rule 406. Every year someone suffers severe mental breakdown during your exam.

HRE 503 prevents me from telling you what "your friend" should do if he wanted to "make someone disappear."

We’ve got privilege, yes we do! We've got privilege, how about you?

Looking at your personal record, I don't think you want to open your life story by calling in a character witness.

I wish you would have told me before I married her at the privilege doesn't cover things before the marriage.

So Your Honor, you are saying we opened up the door when I was talking about how truthful Mr. Grimes was? Well, I would request that Your Honor closes the door at this time. The defendant’s business records were not KRAP. [Barkai-ism - Business Records are KRAP - KEPT in the course of a regularly conducted business activity, it was the REGULAR practice of that business

19

activity to make the record, made AT or near the time, [made] by someone with PERSONAL KNOWLEDGE]

If you don't stop asking leading questions, the bailiff will be leading you into a jail cell.

I'll give you a present sense impression.

Are you saying that's the best evidence you have?

You aren't an expert unless I say so.

I don't care how calm he appeared, “#@$&!” is an excited utterance.

I don't care how many objections Prof. Barkai taught you, none of them apply here!

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Some of the Best Captions from Professor John Barkai’s Evidence Exams 2011-2012

Each semester I put one or more cartoons without captions on my evidence final examination and ask students to write captions for the cartoon. Here are some of the best cartoons and captions I’ve collected during the last couple of years. I use these original cartoon captions in my PowerPoint presentations, always pointing out that the captions came from former students. Some of captions may not make sense to you because you have not seen the class materials or heard the class discussions, but I think that you will enjoy most of them. -- John Barkai

Directions to students: Write a caption for one of the cartoons below based upon topics from our class. All captions written in English will receive full credit.

Hanging men

Why did your wife waive the adverse testimonial privilege? Forget her birthday?

We should have studied more for evidence!

It's because I thought grand jury testimony was admissible under a hearsay exception.

Things could be worse. We could be tested on the FRE!

This is what happens to students who fail evidence.

It's too late now, what ever dying declaration you make, I'm the only one who will hear it, and I'm going with you!

My left shoe? No, those guys took all my clothes to refresh. [Barkai uses the example that anything can be used to refresh memory, including his left shoe]

21

I knew that I was at home shaving my face that morning was a bad alibi.

In see the good side. After 10 years of our release, no one can use our conviction as evidence to challenge our character … unless in the interests of justice.

I have a big mouth and a stupid lawyer. How did you get here? [No impeachment by prior convictions for a criminal defendant in Hawaii unless the defendant opens the door by claiming no prior contact with the police or his lawyer calls a character witness.]

You took Barkai's evidence class too, did you?

This isn't what I thought the judge meant when she said "chain of custody."

They use my confession against me. I thought that was hearsay, but now I know better that it's a hearsay exception.

With all those evidence rules, you'd think they'd get us out of here with one of them!

I rather be doing this in studying the differences between the HRE and the FRE.

Sorry Bob, I guess my statements implicated you as a co-conspirator after all.

See, this is why people lie in business records.

Harmless error my ass!

Is this where we take our evidence final?

Weren't you my character witness?

My wife refused to claim the spousal privilege. Mine too.

This gives a whole new meaning to "chain of custody."

How was I supposed to know that the confrontation clause doesn't mean I get to punch all the witnesses?

Do you think this will hurt my reputation in the community?

You know, I never actually confessed that we did it. All I did was nod my head in silence when I was asked. (Adoptive admission)

You were supposed to wait until after we finished robbing the bank to make an admission.

Damn, maybe I should have shown up to evidence class.

22

My bad. Who knew there was a hearsay exception for co-conspirators?

My "best" evidence wasn't good enough.

I guess my lawyer shouldn't have taken evidence “pass fail.”

My lawyer tried the Chewbacca defense too.

Dude, move over. I'm trying to maintain my attorney-client privilege.

So then I told my lawyer, "Don't worry. I married her. She can't testify against me now."

Do you think this counts as impending death for a dying declaration?

My present sense impression is, "This sucks."

How did they know that I went to Crooked Creek with Hillmon? [Hillmon is the famous statement of present intent hearsay exception. Walters said he was going to Crooked Creek with Hillmon].

And then, the prosecutor gave the witness a shoe, told her to sniff it, and asked if now she remember what was said. What was that all about?

I guess I shouldn't have told the witness that I was going with you to Crooked Creek.

Barkai was your lawyer too?

Judges

What's the difference between admissions and statements against interest again?

Apparently, Hawaii is still using Roberts. I guess we weren't too clear about "testimonial."

23

You tell me. I got a C+ in Evidence.

Do you think we should give a limiting instruction? Why not, the jurors aren't going to understand it anyway.

I actually just sustain or overrule based upon how hungry I am.

That lawyer has already used “KRAP” and “CRUD.” If he busts out a SPAM shirt, I'm declaring a recess and will have a little chat with Prof. Barkai.” [KRAP is business records elements: Kept in RCA, Regular practice or routine, made At or near the time of the event, has Personal knowledge. SPAM are the hearsay risks: Sincerity, Perception, Accuracy, and Memory. CRUD – why we are concerned with hearsay – lack of Cross, not made Under oath, no opportunity to observe Demeanor.]

J1: He has a habit of getting on my nerves.J2: No, that's just his character.

Do you remember how we decided whether the statement was testimonial or not testimonial last time? Was it darts or a coin toss?

Did he say he wants my left shoe?

Who knew that being a gatekeeper would be so difficult? Those tollbooth operators seem to be so happy when they are on the job. [Daubert “gatekeeper” concept.]

Is it me, or is everything about Crawford lately?

I am taking judicial notice of the fact that its lunch time and counsel won't stop talking.

Here we go again with that 403 balancing test. Let's try not to abuse their discretion this time.

Pearly Gates

24

You misunderstood HRE 609. Your client gets a halo, not you. [Barkai says under Hawaii R 609 “the criminal defendant appears in court as if he wears a halo – no impeachment by prior conviction is allowed.]

It says here, as a lawyer, you once argued that the Bible lacks "sufficient guarantees of trustworthiness."

Unfortunately, all of your prior bad acts are admissible.

Hello Mr. Hearsay. Let me look through this list to see if I can find an exception and let you in.

Of course, you do have the right to confront your accusers but I am able to show that they are currently unavailable.

Well, it looks like the halo rule didn't protect you this time.

I remember all my hearsay exceptions.

I knew going to Crooked Creek with Dr. Sheppard was a bad idea.

Q: Criminal defendant?A: YesQ: Give him a halo.

I'm afraid the Confrontation Clause only guarantees the right to cross examine live witnesses.

Well, St. John said that he heard from St. Paul that you were devout, but I'm not sure we're going to accept that for the truth.

If we ignore your prior convictions that are more than 10 years old I suppose we can let you in. [FRE 609 provision]

I'll decide whether you wear a halo in here.

I'm sorry but the halo rule does not apply here.

Sorry Joe. You can't plead the Fifth Amendment. There is no privilege against self incrimination up here.

Angel: I just need you to relive the most difficult part of your life and you're in. Lawyer: you mean my evidence exam? I'd rather you just send me to hell, thanks.

25

Bedtime

Son: I just had a dream within a dream Dad.Dad: I just had a nightmare; it was hearsay within hearsay.

Son, let me tell you a little about the OTP. (Offer to prove)

Would you accept a summary of this story? (Rule 1006)

And so because mommy refused to exercise her spousal privilege, daddy has to go to jail.

I'm sorry son. Marital privilege trumps attorney-client privilege any day.

It's time for bed. Let's read the FRE.

Your bedtime story tonight is the Hawaii Rules of Evidence. That should put you to sleep quickly.

Objection daddy! This picture book on dinosaurs is not a fair and accurate representation of what T. Rex looked like when dinosaurs roamed the earth. I need you to authenticate these books before you buy them for me.

And the moral of the story is, "Bias is never collateral!" [A favorite phrase for Barkai. He makes the whole class repeat it out loud in class many times during the semester. No one ever forgets that concept.]

Sorry Johnny, all of Dr. Seuss's books are now privileged. No story tonight.

It is beyond a reasonable doubt that it is past your bedtime.

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Don't worry son, when you have to testify about this later in Hawaii it will be by television. HRE 616.

Dad, my opinion, and your reputation in this household, is that you don't tell good stories.

Mommy is not here tonight because daddy didn't know about the spousal privilege for adverse testimony.

You see son, you have to marry the woman before you do something bad in order to get spousal immunity.

Tonight we will learn about the exceptions to hearsay. Don't worry, this will put you to sleep right away.

Dad, Timmy said Santa doesn't exist.Oh honey, that's just hearsay.

In a land far, far away, there was an island where the people surf giant waves and witnesses wear halos.

You were the only one in the kitchen, and all the cookies were gone. The law says that these basic facts create a Morgan-McCormick presumption that you ate the cookies. And by "law," I mean your mother.

And that's how the case of the Three Bears v. Goldilocks was determined on purely circumstantial evidence.

Son, was the picture you drew of me at school today a fair and accurate representation?

Johnny, I'd like to tell you all about my day, but everyone Daddy talks to at work has a privileged relationship.

So you see Billy, Rule 411 governs liability insurance, not rule 407. It's okay. It took me a while to grasp that too.

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They restyled the rules, don't you think it's time they restyled the robes?

I thought restylized was a TV show on the E channel.

Hey Bob, let's make it easy on ourselves. Heads we call it “testimonial” and tails we call it "non-testimonial."

Shouldn't it be called the HEREsay rule?

Everyone knows Facebook is "the Devil." (Judicial notice)

We’re in Hawaii, so I don't think of sleeping judge is enough misconduct for a new trial. [State v. Yamada]

Just because I'm not competent to testify here at trial doesn't make me incompetent!

Can we take judicial notice of the fact the exam is over and the students will soon be before us making bad objections?

Psst … I still don't understand hearsay.

Does anyone know where the Crawford cases are taking us?

Do you remember the difference between adjudicative facts and legislative facts? [Judicial notice].

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I'm only a marriage counselor, so everything you tell me I will tell your wife.

I have the privilege of telling you I killed Barkai after the evidence final.

Yeah, so I will have to go to the police station to pick up that blood-stained machete you sent me. [physical items are not privileged]

No Mr. Miller, a complementary membership at the Outrigger Canoe Club does not fall within the meaning of "attorney-client privilege."

Shh! Don't say a word. The office is bugged and we’re in a strict common law jurisdiction.

It's been a real privilege.

If you forget anything, don't worry I will give you my left shoe.

Just don't make a habit out of it.

Daubert meets Montalbo.

Honey, I can't tell you where I buried the bone. There’s no spousal immunity for dogs.

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You know, privilege doesn't matter if I choose to testify against you for pooping on the carpet.

I'm offended the judge thinks fetching the paper every day is "unreflective behavior." [Habit]

Even though I don't qualify as a declarant, I still have SPAM on my mind. [Testimony about tracker dog activities is not hearsay]

Do clones count as reliable copies? [Best evidence rule]

Yes, the fact that you always pee on every fire hydrant on Main Street every time you go out in the morning can be used against you! No, no one has to see you do it. It's what we call habit.

Authenticate yourself.

Q: What happened to you?A: I broke my chain of custody.

Master’s left shoe is so refreshing.

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Cartoon Captions from Professor John Barkai’sFall 2014 Evidence Final Exam

This was one of my exam questions: Write a caption for one or more of the cartoons below based on the class. All captions written in English will receive full credit

Hanging men

So it turns out the right to confront witnesses against you doesn't include threatening them with a gun

Too bad co-conspirator statements are not considered testimonial.

Sir Walter Raleigh? I thought you had an iron-clad defense.

So apparently the spousal privilege belongs only to the testifying spouse.

I guess I won't be available to testify at your hearing after all.

You took the stand too?

I should have listened to my lawyer.

It could be worse; we could be a hung jury!

Should anyone find us and I'm already dead, make sure you tell them that I gave you a dying declaration saying my ex-wife did this to me.

I'm pretty sure this counts as forfeiture by wrongdoing.

We weren't so privileged after all. Our wives have all the privilege and all the money.

Too bad co-conspirator statements are admissions.

Hang in there buddy, there are more hearsay exceptions.

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I guess the lawyer-client privilege does not protect me from malpractice.

Bigmouth defendant admits testifying to his peaceful nature.

Want to be my character witness?

Judges conversation

Because of Daubert, I think I will pursue my new-found love for science.

For the last time, "because I said so" doesn't satisfy any of the Daubert factors.

You mean the Supremes considered Hawaii's Montalbo factors when deciding Daubert but were too proud to ever admit it?

How are we supposed to know if he applied scientific principles and methods reliably?

So about that sixth amendment issue, heads or tails on excluding the unavailable lab tech's evidence? (Williams).

Let’s change that rule. They'll love it.

What were all those hearsay rules and exceptions again? Been a while since Prof. Barkai’s evidence class.

Did you hear all those objections? What was that all about?

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I told you not to take judicial notice that the Bruzers won the Ette bowl again in 2014. You've jinxed it for next year.

So the attorney takes off his shoes and says "now do you remember?" [Reference to you can refresh with anything, including my left shoe.]

On the couch

The first thing my father told me was hearsay.

So they took my silence as an admission.

So apparently there's something called an adoptive admission by silence.

Please tell me your present sense impression.

I had this nightmare the other night that I had to remember all the rules of evidence for my upcoming case. Then I woke up and realized we were in Hawaii and my case was in small claims court. HRE 1101(d) (1).

I'm here, but I have no memory. So I'm "unavailable" as a witness.

Oh great. You are a Doctor of History. That means this is protected, right?

Exactly how confidential is this session? HRE 504.1 Psychologist-client privilege.

Ever since moving to the U.S. Attorneys’ office, I feel like I've busted through the glass box of HRE 609.

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And then the Prof said there were over 20 exceptions to the hearsay rule. It was horrifying!

Is it a character issue when my MO has always been this way?

A law student when asked "is it true you didn't study enough for your evidence exam?": Objection Doc. Leading question, calls for speculation, harassing and embarrassing!

Really? There is no mime exception to the hearsay rule?

I just didn't know what to expect when Barkai took his shirt off - until I saw SPAM written on his shirt.

Do I have a privilege?

Bias is never collateral.Bias is never collateral.Bias is never collateral. Bias is never collateral

It's just really hard living in Hawaii when you have a panic attack every time you see the word spam - law student issues.

Insects

Trust me, I know what they said. I'm a fly on the wall for a living.

Quit buzzing around the answer! I asked a “yes or no” question.

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Witness: I swear, I've never laid a finger on anyone in my life, I'm innocent.Prosecutor: but isn't it true that used on at least three victims to death last year?

It wasn't the defendant killed her. When I asked the victim, "Who did this to you?" with her last breath she said, "It was … Raid.”

You’re Buzzzzted!

Of course I had personal knowledge. I was a fly on the wall.

Sustained. That won't fly in this court.I wouldn't exactly say that I have a habit of being in people's soup.

I am a cautious flyer.

I'm telling you, it wasn't me! It could've been anyone of my 500 siblings-we all look identical.

Did the poop help refresh your memory?

The perpetrator is the one sitting there - the one with the bug eyes and wings.

Wow, any witness is considered competent now huh?

Does a buzz count as an admission?

I only use the CRUD to test the SPAM.

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