Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.

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The following material on the "mysterious disappearance of Judge Crater" demonstrates the functional nature of relevancy. At the early stages of a dispute, the facts that present themselves are an unsorted mass varying in seeming importance and reliability. Every thing may be relevant. Nothing may be relevant. One of the first things the lawyer must do is decide what facts she should spend time trying to develop. This is what "relevance" means to the lawyer at this stage. Whether it be a routine slipand-fall action or a complicated antitrust defense, the first thing the lawyer has to do is try to sift through the confusing, ambiguous and incomplete story told by the client (or, in most cases, elicited by the lawyer from the client with skillful questioning) and try to formulate a legal theory on which to base her case. The lawyer must figure out the elements she must prove to establish her theory of the case and where the burden of proof lies on each element. Next, the lawyer must determine what facts she needs to support her legal theory and then how to go about proving those facts. This raises several questions:

What evidence is readily available from the client or easily identifiable, friendly witnesses to prove the existence or nonexistence of the essential facts? What documents are needed? What other witnesses must be identified, interviewed and prepared? What evidence is in the hands of the adversary or third parties? How can such evidence best be obtained? What experts will be necessary? What matters can be established by judicial notice? How much investigation will be necessary?

Evidence students rarely see anything of this process in the opinions and problems of the casebooks, which confine themselves to preselected or canned facts, the offer of proof, the objection and the ruling of law. But cases are often won or lost on how well a lawyer applies this aspect of relevancy.

To appreciate some o the problems which confront the lawyer in the preliminary stages of a case, and to get students thinking in specifics about the function and nature of materiality and relevancy, consider the "mysterious disappearance of Judge Crater." The following account of this fascinating case is taken from Tom Meehan, "Case No. 13595, New York Times Magazine, August 7, 1960, pp. 27-28, as adapted by Manicas and Kruger, Logic: The Essentials, pp. 347=49 (1976). The bottom line questions are: How would you go about building a case for Crater's death or for his continued existence? What facts need further development? Where would you apply limited investigatory resources?

The Mysterious Disappearance of Judge Crater

Shortly after 9 o'clock in the evening, August 6, 1930, N.Y. State Supreme Court Judge Joseph F. Crater stepped into a taxi in front of a restaurant at 332 W. 45th, waved good-bye to two friends with whom he had just had dinner, and settled back as the cab pulled into traffic. He was 41 years old at the time and has never been seen since. A quarter of a million dollars has been spent to track him down and he has been reported seen, at one time or another, in just about every state and foreign country, but he is still missing.

Concerning Crater's public life, after graduating from Lafayette College he attended Columbia University Law School, received his law degree, and set up practice in downtown New York. Hardworking and ambitious, he became involved in politics and, within a few years, became president of a Tammany-dominated upper West Side Democratic Club. In 1916 a client, Stella Mance Wheeler, retained him as her divorce lawyer. On March 16, 1917, seven days after her divorce became final, she married Crater, and they were apparently a devoted couple.

Shortly after his marriage, Crater attracted the attention of Robert F. Wagner, Sr., then a New York State Supreme Court Judge himself, and from 1920 until 1927, when Wagner was elected to the U.S. Senate, Crater served as his secretary. When Wagner went to Washington, Crater returned to private practice. In early May of 1930, owing largely to his Tammany connections, he was named to fill an unexpired term on the State Supreme Court. Presumably he was to receive the Democratic nomination (almost tantamount at that time to election) in the fall for a full fourteen-year term.

Concerning his private life, he was a familiar figure on Broadway, where he was known as "Goodtime Joe." He often went to night clubs in the company of Ziegfeld chorus girls, and for seven years before his disappearance had been supporting an attractive divorcee in a midtown apartment. After his disappearance it was learned that he had been involved in a somewhat shady real-estate deal, and there was some evidence that he may have paid Tammany $22,500 (a year's salary) for his judgeship.

In mid-July, 1930, Judge Crater and his wife went to spend the rest of the summer at their country home at Belgrade Lakes, Maine. On the morning of Sunday, August 3, he received a call from New York and told his wife that he had to return to the city at once. I've got to straighten those fellows out, he said, and promised to return to Maine on August 9. On Monday, August 4, he was seen entering the Craters' New York apartment at 40 Fifth Avenue. For the next two days he apparently did nothing out of the ordinary. On Wednesday morning, however, the day he disappeared, he showed up at the County Courthouse and had his assistant, Joseph Mara, go to the bank and cash two checks for him totaling $5,150. After receiving the money from Mara, he locked himself in his chambers and stayed there for almost two hours. A little after noon he came out, carrying two locked briefcases. He asked Mara to help him carry them, and the two went by taxi to the judge's apartment, where the briefcases were left in the study. As his assistant left, the judge said to him, "I'm going up to Westchester for a swim."

He was next seen early that same evening at the Arrow Theatre Ticket Agency on Broadway, where he bought one ticket for "Dancing Partners," a comedy which had opened the night before. The agent didn't have a ticket at the time but promised to leave one at the box office. Crater was wearing the suit and hat he wore when he disappeared, but he had left behind in his apartment all the items he normally carried which had identifying monograms -- a card case, a fountain pen, a watch and chain.

Judge Crater was next seen at about 8 o'clock, when he entered the West 45th restaurant where he met two friends -- William Klein, a lawyer for the Shuberts, and Sally Lou Ritz, a Follies girl. At their invitation he joined them for dinner, and on the sidewalk at about 9:15 it was to them that he waved. He then disappeared.

When ten days had passed and Mr. Crater hadn't heard from her husband, she sent the family chauffeur to New York to investigate. The chauffeur spoke to several of the judge's friends, who told him that, though they hadn't seen the judge, they were sure everything was all right. Nothing was done until August 25, the day the court opened -- almost three weeks after his disappearance --when his fellow judges became alarmed and started their own search. When this failed, they notified the police, who took over the case on September 3, almost a month after the judge had disappeared.

In the course of their investigation, the police searched the Craters' apartment. Nothing unusual was found, except that the two locked briefcases were not there. A check of the judge's safe deposit box revealed that it was empty. In October, a grand jury investigation was ordered, and after three months and 975 pages of testimony, the jury had no idea what had happened to the judge. Its final report said: "The evidence is insufficient to warrant any expression of opinion as to whether Crater is alive or dead, or as to whether he absented himself voluntarily, or is a sufferer from a disease in the nature of amnesia, or the victim of a crime."

Mrs. Crater remained in Maine. Then on Jan. 20, 1931, she returned to the Fifth Avenue apartment and there in a bureau drawer which had been empty when the police had searched it, she found three folders. In them were a number of checks, a packet of stocks and bonds, Judge Craters three life insurance policies, and a long note written by the judge himself. The undated note contained no personal information but listed his debts and assets. It looked like a final financial statement. At the end the judge had written, "I am very weary." Among the checks was one made out by Judge Crater himself and dated August 30, 1930 -- more than three weeks after his disappearance.

As the years passed, reports were received that he was prospecting for gold in California, that he was an amnesia victim in a Missouri hospital, that he had been seen on a steamer in the Adriatic.

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