Evidence Practice Exam #32.

Peter is suing the executor of David's estate on an oral contract to recover a 10% finder's fee for finding a purchaser for certain personal property owned by David.

In support of Peter's case, the following evidence is offered:

(1) Peter's testimony that before David died he promised to pay Peter a 10% fee for finding a purchaser for the property, that Peter found a buyer who bought the property, and that David never paid Peter.

(2) Sally's testimony that she is Peter's secretary, that she frequently tape-recorded Peter's telephone calls without the consent of the caller, and that she does identify a specific tape as one of Peter's telephone conversations with David. On the tape recording, a male voice says: 'Pete, that guy you sent overbought the stuff at my price. I owe you 10% and I will send it as soon as his check clears.'

(3) The testimony of Willard, a recognized acoustic engineer, and electronics expert, that he has compared voice patterns made electronically from this tape with patterns made from authenticated recordings of David's voice and that in his opinion the person speaking on the tape made by Sally was David.

Peter has a sworn statement from Arnold to the effect that Arnold was present at a conversation between David and Peter and that in that conversation David promised to pay Peter a 10% finder's fee. Peter has subpoenaed Arnold, but on the morning of the trial, and before being called as a witness, Arnold informs Peter that the sworn statement he gave Peter is a lie and that he never heard David talk to Peter.

What objections would you anticipate being made to items (1), (2) and (3), how should Peter respond, and how would you expect the court to rule on each objection? Discuss

With regard to Arnold, what are the issues, how should Peter proceed, and how would you expect the court to rule? Discuss.

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