Final Examination

Evidence LSN
Professor Steckler
Fall 2018

Part II: Essay (100 points)

Recommended Time: 90 minutes

People v. Bleinstein
Harry Bleinstein is President and CEO of Orange Phone & Computer Company (OPC), headquartered in
Cupertino, CA. He is reputed to have a net worth of $12 billion and is very well known in the industry.
Everyone in the industry knows that OPC offers excellent compensation packages to its top executives,
and OPC is known to catapult executives into very senior roles in the industry. Generally, OPC
employees are treated well, but in order to advance to the elite executive ranks, they understand that it
requires more than just an outstanding commitment and job performance. Each candidate is required to go
to Bleinstein’s private executive office suite in Cupertino for a final interview meeting.
During the spring of 2016, Sally Seeker was being considered for an executive role at OPC. She made it
through the first several rounds of interviews with top OPC executives, and was invited to the evening
interview with Bleinstein at his private suite. She accepted the invitation and arrived in Cupertino at 5:00
p.m. on Thursday, June 18, 2016. Bleinstein’s secretary, Jack Typer, brought Seeker to Bleinstein’s office
door, introduced them, and then walked back to his desk outside Bleinstein’s closed door. After shaking
hands and exchanging pleasantries, Bleinstein abruptly grabbed Seeker by her left wrist and pulled her
firmly against him, and then somewhat rudely (it seemed to Seeker) pulled her over to a couch and coffee
table in the back of the room. Bleinstein pulled Seeker down onto the couch. Once he let go of her, and
after she had gotten over the initial shock of the unexpected touching, the question and answer portion of
the interview seemed to go pretty well. Seeker thought she answered all of Bleinstein’s questions
admirably well during the two hour interview. But then Bleinstein’s demeanor changed and he
complained of having had a really long day and a stressful week. He reminded Seeker how many young
prospective executives like her that he had helped through the years, and he leaned in close and asked her
to massage his neck and shoulders.
Seeker did not respond at first. Bleinstein watched her closely as she silently sat on the couch. After a
few minutes he sat up and said, “You know what? You really have a great figure, I know you will be
really wonderful in marketing our products.” Seeker was uncomfortable and disgusted, but when
Bleinstein took her hand in his, and put it on his shoulders, she reluctantly and quickly massaged his
shoulders.
The “interview” ended at 7:45 P.M., and Seeker left quickly through Bleinstein’s office door. She
muttered to herself “I can’t believe that just happened. I can’t believe he asked me to massage his
neck!” Typer, working late as usual, overheard the remark. Later, when interviewed by the District
Attorney (DA) investigator, Typer said that Seeker appeared very flustered and quite upset as she walked
past him and quickly left the building after her interview.

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On her way home, Seeker stopped at her favorite café. She ordered a Chai Tea Latte, sat at the café bar
table, and thought about what had just happened. Seeker finished her tea and drove straight home, still
very upset. In fact, she became angrier and angrier the more she thought about what had just transpired.
She ran into her house and called out to her husband, David Price, and told him every detail about her
interview; she just had to get it off her chest. Among other things, she stated: “That scumbag made me
give him a massage!” Price could see that his wife was very upset. He was puzzled and asked who she
was referring to? She replied, “Bleinstein.” Then she stated “that was really horrible, I was so
uncomfortable, I didn’t know what to do. I need to say something; I really do not want that to happen
to anyone else.”
Three days later, Seeker was promoted to Senior Vice President. Seven days after her promotion, she
reported the incident to OPC Human Resources (HR), who, in turn, called the police. The following
Monday, a police inspector came to OPC headquarters to interview Seeker in a conference room. Seeker
described all relevant events of June 18, 2016 — including the wrist grabbing, the interview, and the neck
massage — to the officer.
The police officer forwarded his report to the District Attorney’s Office and they decided to prosecute the
case. Bleinstein was charged with one count of battery and one count of sexual battery.
During the investigation of Bleinstein, the D.A. discovered several other instances in which an OPC
employee had encountered unwanted contact and/or requests during other job interviews with Bleinstein.
All of the alleged instances occurred during work hours while at work at OPC.
In March, 1999, Stephanie Silkpan (one of Harry Bleinstein’s previous secretaries) lodged a complaint
with HR alleging that Bleinstein grabbed her wrist and pulled her forcefully into him several times. On
one occasion, he pulled her over by her wrist to review a document she had prepared with a typographical
error. Whether he intended to or not, he grabbed her wrist so hard he caused bruising and soreness that
lasted several days. Two days after that incident, Silkpan’s fiancé Bob was concerned enough about the
injury to run it past his friend, who happened to be a paramedic. Bob told his friend, “Stephanie told me
the other night over dinner that her boss grabbed her wrist really hard and pulled her towards him.
The bruise is fading, but it’s still sore and she has limited range of motion. Do you think we should get
it X-rayed?”
HR investigated, but failed to take any action against Bleinstein as a result of Silkpan’s allegations. She
resigned her position in 2000 and is believed to now live somewhere in Nepal. The DA cannot locate Ms.
Silkpan. Her former fiancé Bob and his paramedic friend still live in Northern California.

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In October, 2014, Jessica True went to Bleinstein’s office for a promotional executive interview.
According to police reports, Bleinstein interviewed True for 45 minutes, asking standard interview
questions before he suggested that she take her sweater and shirt off and allow him to massage her neck.
True refused and stormed out of the interview and drove straight home. True lived 15 minutes from the
office. She tried to call 911 on her way home, but she did not have cell service. She went straight home
and called 911. She told the dispatcher: “You need to send the police down here right away. There’s a
sexual predator running OPC and he’s loose in his office suite right now! Out of nowhere, during an
interview, Bleinstein asked me to take my shirt off so he could give me a massage!”
Thirty minutes later, the police arrived at the OPC office complex and took a statement from Bleinstein.
The next day, True went to the police station to provide more details in a sworn signed statement.
A month later, True testified at a preliminary hearing about the October incident.
*****
Jessica True’s Preliminary Hearing Testimony (Portion)
Prosecutor Question: I would like to talk to you about the interview. Explain what happened after
Bleinstein asked you about your greatest weakness?
True Answer: Well, that was the last proper interview question he asked me. After I answered, Bleinstein
asked me, “Would you mind taking your shirt off, Sweetheart?” or something like that. I couldn’t believe
it. I just stared at him. Then he said, “If you take your shirt off then I’ll be better able to give you a neck
rub.”
Prosecutor Question: How did you respond?
True Answer: Um, I’m not sure … I was so shocked. I couldn’t believe it.
Prosecutor Question: What did you do when Bleinstein asked you to take your shirt off?
True Answer: Well, I was sitting on the couch and I know I moved away from him. His leg was touching
mine, I know that.
Prosecutor Question: Do you remember what you did right after he asked you for a neck rub?
True Answer: No, I really don’t remember.
Prosecutor Question: Is there something that would help you remember?
True Answer: It might, I gave a statement to officer Baker the next day. I know I wrote down everything I
remembered then.
[Witness was handed Prosecution’s Exhibit D marked for identification, a police statement; witness
reviews Exhibit D. Witness reads from the document]
True Answer: Yes, I remember now. It says here that I refused to let him give me a massage and then I
stormed out of the interview.
Prosecutor Question: How long did you remain in the room after he asked to massage you?
True Answer: Maybe a minute.
Prosecutor Question: Who did you tell about the incident?
True Answer: I tried to call 911, but my cell phone was dead, so I called 911 when I got home.
Prosecutor Question: Where did you go after the interview? True Answer: I went to the gym and then I
went home.
Prosecutor Question: Showing you Prosecution Exhibit D marked for identification again. Do you
recognize this?
True Answer: Yes.
Prosecutor Question: What is it?
True Answer: It looks like the signed statement I provided to the officer.
Prosecutor Question: The officer asked you “What did you do after the interview?” And you told the
officer, “I drove straight home after leaving the office and called 911 as soon as I got home”?
True Answer: Yes, it appears that is what I said.

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At the end of the preliminary hearing, the magistrate ordered Bleinstein to stand trial. The case was set
for trial in December of 2016. During October of 2016, before trial, True tragically died in a skiing
avalanche. The criminal charges brought against Bleinstein involving True were dismissed.
On November 20, 2016, Veronica Smith filed a complaint with OPC HR reporting an incident she
claimed occurred during her interview for a promotion to an executive management position. In the
complaint, Smith alleged that Bleinstein grabbed her wrist, dragged her over to a couch in his office, and
asked her for a neck massage. Smith turned him down, but finished the interview. Smith is yet to be
promoted at OPC. The police were never called to investigate the Smith incident. The prosecution
contacted Smith, but she claims that she does not recall the incident any longer, and refused to speak with
the police investigators.
Seeker and her husband divorced in November 2017.
_____________________

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Bleinstein’s defense attorney invested a lot of time and money into investigating this case and turned up
additional witnesses and the following evidence:
Members of the OPC Board of Directors and an OPC senior vice president provided written statements to
the defense attorney and are prepared to testify. Each witness plans to testify both about varying aspects
of Bleinstein’s good character and Seeker’s bad character.
A) Charlie Brown (OPC Senior VP) would testify that, in his opinion, Bleinstein has a very fine
moral character, is an upstanding member of the community, and has a character of acting
appropriately towards women. Bleinstein regularly attends church and donates a lot of money to
local women’s events and charities. Brown sees Bleinstein at office events once a year and
occasionally at social gatherings. Brown has never seen Bleinstein act inappropriately towards
women in any way.
B) Linus Player (Chairman of the OPC Board) would testify that he and Bleinstein are neighbors in
the Palo Alto community and he is aware of Bleinstein’s reputation there. Bleinstein is known for
his impeccable virtue and generosity. Bleinstein would never touch a woman without her consent.
Player plays pool and cards with Bleinstein every weekend. Player has known and admired
Bleinstein for the past three decades. Player thinks Bleinstein is the most honest, law-abiding, and
truthful person he knows.
C) Michael Meyer (Seeker’s Co-worker) would testify that Seeker’s behavior at work and outside of
work is inappropriate. Meyer worked in the same department with Seeker between 2010 and
2014. Meyer wanted the promotion that Seeker ultimately received, but was passed over for the
final interview. Meyer would testify that Seeker frequently left work early on Fridays without
submitting a leave slip for time off approval. Meyer also knew Seeker was cheating on her
husband around the same time as the Bleinstein allegations were revealed. Meyer’s opinion of
Seeker is that she is deceitful and dishonest. Meyer walked in on at least one incident in which
Seeker was engaged in massages in the supply room with male OPC co-workers. As far as Meyer
knows they were consensual. A second incident occurred at Seeker’s apartment on the weekend
with a different coworker. Meyer knows about this because Seeker mentioned it in the lunch
room on the following Monday.
The defense also learned that in 2009, Seeker was arrested for embezzlement and petty theft. The
embezzlement charges were dropped but she was convicted of petty theft, a misdemeanor. She pled guilty
and was sentenced to time served and three years of informal probation.
______________________________________________________________________________

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QUESTION: As stated above, based on the foregoing facts, the prosecutor charged Harry Bleinstein with
one count of battery and one count of sexual battery [battery is a lesser crime than assault]. At the trial,
the prosecutor offered four pieces of evidence.

For each of the numbered evidentiary issues listed below, explain and analyze whether the trial court
properly admitted the evidence. Remember to state any and all theories of admissibility, any and all
possible objections or other responses by the defense, and the prosecutor’s response to any such
objections or responses. Assume the Federal Rules of Evidence apply.

1) Secretary Jack Typer’s testimony: Seeker’s statement. “I can’t believe that just happened. I
can’t believe he asked me to massage his neck!” [10 points]
2) David Price’s testimony: Seeker’s statement. “That scumbag made me give him a massage!” ….
“Bleinstein.” …. “ that was really horrible, I was so uncomfortable, I didn’t know what to do. I
need to say something, I really do not want that to happen to anyone else.” [15 points]
3) True’s signed police statement and True’s preliminary hearing testimony. [15 points]
4) Evidence of similar incidents involving Ms. Silkpan and Ms. Smith. [15 points]

The defense offered the following four items of evidence at trial. As to each of these items, explain and
analyze whether the trial court properly admitted the evidence. Remember to state any and all theories of
admissibility, any and all objections or other responses by the prosecution, and the defense’s response to
any such objections or responses. Again assume the Federal Rules of Evidence apply.

5) Testimony of Charlie Brown concerning Bleinstein’s character. [15 points]

6) Testimony of Linus Player concerning Bleinstein’s character. [15 points]
7) Testimony of Michael Meyer concerning Seeker’s character. [10 points]
8) Sally Seeker’s 2009 history. [5 points]

END OF PART II: ESSAY

END OF EXAM