Reference no: EM132190113

Hearsay is not an issue on this examination.

Part 1

Defendant Dave has been charged with larceny of a dangerous drug. The state has introduced evidence that the store owner, Walt, saw someone of Dave's general height and build enter Walt's drug store, stand about the prescription desk eating a candy bar, reach behind the counter, grab two bottles, and flee by car.

Walt could not positively identify Dave as the thief. The state also introduced evidence of the police officers who arrested Dave that they gave chase to Dave's car when they saw it leave the drug store parking lot at high speed, and that as they were passing over a bridge, they saw two objects thrown from Dave's car window into the river below.

(1) The state offers the testimony of Walt to the effect that the bottles taken by Dave were labeled "OPD," that the bottles were the original labeled containers received from the supplier, and that the bottles had not been opened.

(2) The state offers the testimony of Dr. Buzz, a dentist, that based upon a comparison of legally obtained impressions of Dave's teeth and a cast of the half-eaten candy bar which Walt identified in his testimony as having been left behind by the thief, the bite in the candy bar was made by Dave's teeth.

(3) The state makes a motion that the court take judicial notice that "OPD" is a derivative of opium. The statute under which Dave is being prosecuted defines "dangerous drug" as including "any opium derivative." In support of its motion, the prosecution calls to the court's attention a standard pharmacological dictionary, which defines "OPD" as an opium derivative.

Discuss the objection which may be made to the offered evidence set forth in (1) and (2), how the judge should rule on each, and how the judge should rule on the prosecution's motion for judicial notice.

Part 2

Plaintiff, in order to prevail in a certain breach of contract action must show that Defendant received notice of the alleged breach.

On that issue Plaintiff testified in his case in chief that he personally wrote a letter to the Defendant concerning the alleged breach, addressed and stamped an envelope with the correct address and postage, and placed it in the mail at the Fullerton Post Office.

Defendant in his case in chief testified that he has known Plaintiff for years and that Plaintiff is partially illiterate, in that he can read but not write.

At the end close of the case Plaintiff requests that the jury be instructed, among other things, that if they believe the letter-notice was mailed with correct postage and address, they must find that the Defendant received it. Is the instruction appropriate?

Discuss your answers in a very full narrative IRAC essay with much detail.