Evidence

Fact pattern

Early one Saturday morning around 1:30 a.m., Gray and White had just left The Lucky Lab, a local bar, when they were approached by two men in masks. The masked men demanded wallets, watches, and cell phones. Gray handed over a wallet, but White resisted and managed to pull the mask off one of the attackers. That attacker took out a handgun and shot White in the chest and arm. The attacker who had been unmasked retrieved his mask, and both assailants fled with Gray’s wallet and cell phone.

Three days later, police asked Gray to observe a lineup, at which Gray immediately identified defendant Lemon as the perpetrator whose mask had been ripped off. Police put Lemon in a holding cell while detectives visited White in the hospital. White was in critical condition and could not come to the police station for the lineup. Detectives brought a photo array, and White, pointing to Lemon’s photo, said, “That’s the one who shot me. If I die, I hope that bastard gets the needle.”

Police detectives obtained a search warrant for Lemon’s residence, seeking the fruits of the robbery, but did not find any.

By the time Lemon went to trial on robbery charges, White had died from the gunshot wounds. Assume that Lemon is being tried in a jurisdiction that has adopted the Federal Rules of Evidence.

Prior to trial, the prosecutor brought a motion in limine to exclude Jameson, a defense witness. Jameson was the victim of a late-night robbery that took place six blocks away from The Lucky Lab a week before Gray and White had been attacked. Jameson, the night shift manager at a restaurant, had closed the store at 10:45 p.m. and was locking up when someone shoved him against the wall and put a knife to the back of his neck. Jameson felt his wallet being taken from his pocket. When the knife was no longer against his neck, Jameson spun around and saw that there were two attackers. Because neither was wearing a mask, Jameson saw both attackers’ faces for a couple of seconds before Jameson ran away. Jameson later recovered his wallet at the scene of the crime, minus $72 in cash. Jameson was brought to the police station the day that Lemon was in the lineup. Jameson did not identify anyone from that lineup as one of his attackers.

Questions

1. How should the trial judge rule on the prosecutor’s motion in limine to exclude Jameson from testifying?
2. If Lemon objects to a police detective’s testimony that White had pointed to Lemon’s photo and said, “That’s the one who shot me,” how should the trial judge rule?