Evidence Exam Fall 2012

LAW 6330 (4 credits)
Professor Pedro A. Malavet
Fall 2012





Open Rules. “Open-Rules” means that you may have with you during the examination your required 2012 Mueller & Kirkpatrick Federal Rules of Evidence supplement. No substitutions will be allowed. Your supplements may be annotated with handwritten notes, but shall not have any attachments other than tabs to mark the location of specific material (the tabs may have on them numbers and the short titles of the referenced material and nothing more). Only handwriting may cover the blank spaces and the original printing on the supplements. The use of stick-on labels or paper, white-out or any other method to eliminate any of the original printing is prohibited. Other than the addition of handwritten notes and tabs, the supplements shall be in their original condition, no material may be added nor may any material be removed in any way. The supplements must be in their original bound form at the start of the examination. You may, however, tear them up during the examination if you find that makes them easier to use.

Honor/Conduct Code. You are bound by University Student Code of Conduct, the College of Law Honor Code and my rules. You certify compliance with all applicable rules by submitting your examination for grading. Violations of any applicable rule(s), should be reported to me or to pertinent authorities preferably before or during the examination. Serious violations of these rules shall result in a failing grade and in my referring the matter to the Honor Committee or to pertinent college or university conduct authorities. Less serious violations may result in a reduction in your final grade.

Read the Entire Exam. PLEASE READ THE ENTIRE EXAM BEFORE YOU BEGIN TO ANSWER ANY QUESTIONS. The exam consists of twelve (12) True or False questions (Part I), for forty percent (40%) of the exam grade; and one (1) essay problem, for sixty percent (60%) of the exam grade. Please take these weights into account when you design your answer schedule.

Limited Space. All students must answer the True/False section by selecting the answer on the exam itself. You must answer the essay question in the space provided in the separate answer packet for handwriting or typing, or with your laptop using the Examsoft template. Do not use bluebooks. While I encourage you to outline the answers before you start to write, do not include scratch paper or any additional material with your completed exam. If you wish me to ignore any part of your answer, simply cross it out and I will ignore it. If you should run out of space because of cross-outs, you may use an equivalent amount of space on the back of the page in the answer packet.

Write Legibly. If I am unable to read your answer, it is as if you had written nothing. The exam must be written in permanent, dark-color ink; under penalty of a maximum ten-percent reduction in grade, you may not use pencils, erasable ink, or felt-tip markers.

Do Not Un-staple Pages. Do not take the exam apart (except that you may take the answer packet apart if you are using a typewriter). If you do, you MUST RE-STAPLE IT. You must also turn in every page of the examination, not just the ones that you use.

Scratch Paper. You may use blank scratch paper to outline your answers and take notes during the examination.

Typing. If you are typing your answer, you must stay within the margins and write only one line of text per line of space given to you.

Electronic Exam Taking. You may take the examination electronically, using specialized software that ensures that you can only use your laptop to write your essay answer. All laptops must log-into the Exam Soft system at the start of the examination and remain in the Exam Soft answer only environment for the entire examination period. Only the essay section may be answered electronically. For the other sections, you must write your answer on the exam itself. Answer space shall be limited to 1800 characters (including spaces and carriage returns) for each blank page in the examination. That is enough for 24 lines of double-spaced text in courier type, size 11 for each page. Since I provided 12 blank pages, the character limit is: 1800 x 12 = 21,600 characters. Each student is responsible for keeping track of answer length. The Exam Soft window constantly displays character count at the bottom of the screen. You may also use the length command to check character length. The penalty for exceeding the character limit will be a deduction from your essay score of a percentage equal to the percentage by which you exceeded the character limit.

Review. Exam review will start after I post the feedback memorandum on the course website on Thursday, February 7, 2013. Instructions for the review process will be included in the memorandum.

You must stop work four (4) hours after THE SIGNAL TO START. Completed examinations must be turned in to The office of student Affairs.

General Instructions For Part I

Select the best answer to the question presented. In this section, do not look for “perfect” answers, just the most correct one among the two alternatives available to you, in light of the question or statement presented, viewed in the context of the federal rules of evidence and related doctrines and caselaw as we discussed them in class. You are bound by the restyled version of the Federal Rules of Evidence that became effective December 1, 2011.No explanations are required or allowed. Your answer will either be correct or incorrect, there will be no partial credit for incorrect answers. Circle the appropriate word or letter that you select as your response.

Do not assume any facts not given to you. While you are expected to draw reasonable conclusions from the facts given, you should not assume facts. In this section of the exam, “missing facts” suggest three possibilities: (1) you need to read the question again, i.e., “it’s in there somewhere,” (2) the fact is not necessary to the resolution of the question, or (3) I made a mistake and you may need to alert me to it (if you are convinced that this is what is going on, do not be afraid to ask the question of the proctors).

Do not look for issues that are not relevant to answering the question. The question asked determines the issues raised, read it carefully and answer the question I asked, with the best possible response among the alternatives given.

Applicable Rules. Assume that the applicable rules of evidence are the Federal Rules of Evidence in the restyled form that became effective December 1, 2011, taken together with all the accompanying doctrines and caselaw as we discussed them in class.

Part I: True or False (40%)

In this section, you must select either “True” or “False.” The statement, as drafted, when read in the context of a Federal Trial, is either True or False.

  1. During a trial for armed robbery, the state calls Brenda. She is defendant Carls girlfriend, and she answered the door at the time of his arrest. The state offers her testimony that when Carl saw the police approaching, he first ran to the back door, then hid in a closet after discovering a uniformed police officer standing guard in the alley. Carl objects, arguing that proof of his behavior at the time of arrest is irrelevant. In a sidebar conference, his lawyer points out that Carls arrest was based on an outstanding default warrant, issued two years earlier on unrelated charges. The court may admit this evidence to prove guilt of the crime charged.

    True              False

  2. Dr. Janet Michelson a medical doctor is properly qualified as an expert witness in a malpractice case. During her testimony she delivers an opinion that to a reasonable medical certainty defendant Dr. Filer met the prevailing standard of care in the area in which the death that gave rise to the litigation occurred. Dr. Michelson may base her opinion on inadmissible evidence gathered in her examination of the patient’s medical chart.

    True              False

  3. In a criminal appeal based on an evidentiary question, the court finds that the error was not properly preserved for appeal. The appellate court also finds that the trial court erred in admitting the evidence. Under the Federal Rules of Evidence, the appellate court does not have the authority to reverse the conviction.

    True              False

  4. In a criminal trial for first-degree murder, the state offers the testimony of an eyewitness who will identify the defendant, Nancy Smith, as the person that fired ten shots into victim Jonathan Jones. The defense objects. At the bench, so that the jurors cannot hear what is happening, the court rules that the evidence is relevant to the case and prejudicial for the defendant Nancy because it makes it more likely than it would be without that evidence that Smith’s intentional conduct was the proximate cause of the death. The court must exclude this evidence under Rule 403.

    True              False

  5. Following the loss in the SEC Championship Game, Bulldog fan Doug drowns his sorrows at several Atlanta bars as he walks back to his car after the game. He then meets his pal Paul in the parking lot and gives him a ride back to Athens. Later that night they are involved in an accident that seriously injures both Paul and Doug. Paul sues driver Doug to recover damages. During the defense case in chief Doug offers, as proof that Paul assumed the risk of an accident on account of an impaired driver, his testimony that “I told Paul before he got in that I really should not have had those three martinis half an hour ago.” Given the definition of hearsay of Rule 801(a), (b) and (c), this evidence is hearsay.

    True              False

  6. During civil commitment proceedings against Louisville assistant professor Jerry Patterson, his parents, who are trying to institutionalize him in a psychiatric treatment facility, present testimony that he told several students last weekend: “I am Tebow, Tim Tebow, Heisman Trophy Winner.” Given the definition of hearsay of Rule 801(a), (b) and (c), this evidence is not hearsay.

    True              False

  7. In a criminal case for assault and battery, during his case-in-chief, defendant Don offers the testimony of William that alleged victim Vince was a “belligerent, fight-picking fella.” During its case-in-rebuttal, the prosecution offers the testimony of the Reverend Wilson that defendant Don was a “violence-prone person.” The prosecution’s rebuttal may be admitted under the Federal Rules of Evidence.

    True             False

  8. In a criminal prosecution for assault, defendant Don testifies that alleged victim Vince started the fight between them that ultimately led to Vince’s serious injuries, and that he (Don) acted in self-defense. During its case-in-rebuttal, the prosecution offers the testimony of the Reverend Wilson that Vince was a “peaceful, and non-violent man.” The testimony of Reverend Wilson must be excluded.

    True              False

  9. The law of evidence must never proceed on the basis that the jury will follow the court’s instructions where those instructions are clear.

    True              False

  10. After certain evidence is found to be relevant, it may be excluded if its probative value is substantially outweighed by a danger of wasting time.

    True              False

  11. John Ponzi enters into a settlement of a civil action filed by private investors who claimed that he defrauded them while acting as their stock broker. He agrees to repay each investor 60% of their original investment and they agree to dismiss their suit. During the negotiations, Mr. Ponzi admits that he used the invested funds to cover personal expenses. The U.S. Government later indicts Mr. Ponzi for securities fraud and is prosecuting him. At trial, the government seeks to introduce Ponzi’s admission about using the funds for personal expenses. Under Federal Rule of Evidence 408 this evidence is not admissible because the privilege created by that rule must never be applied in criminal cases.

    True              False

  12. After a major fire severely injured several persons in a casino housed within a tourist hotel, the architects add an emergency escape to the casino during its post-fire renovations. During a subsequent civil trial by the victims of the fire the plaintiffs seek to offer evidence of this design change. The court rules that it is a subsequent measure under Federal Rules of Evidence 407. Because of the privilege created by Rule 407, evidence of a subsequent measure is not admissible to prove ownership.

    True              False

Part II: Essay Problem (60%)

General Instructions for Part II

Do not assume any facts not given to you. While you are expected to draw reasonable conclusions from the facts given, you should not assume facts. In this section of the exam, “missing facts” suggest three possibilities: (1) you need to read the question again, i.e., “it’s in there somewhere,” (2) I made a mistake and you may need to alert me to it (if you are convinced that this is what is going on, do not be afraid to ask the question), or (3) you need to indicate that you need to establish certain facts in order to provide a complete opinion. In this section of the exam, identifying missing facts that are necessary to a complete resolution of the issue may be precisely what you need to do in order to provide a proper response.

Do not look for issues that are not relevant to completing the exercise as instructed. The instructions determine the pertinent issues and how they must be handled in a carefully-crafted essay. Read them carefully and write accordingly. Evidence is a broad and complex course, I have crafted the issues narrowly, do not waste your time covering issues that the fact-pattern and your instructions as to the mandated result do not require you to address or resolve. No credit will be awarded for discussion of matters not relevant to the resolution of the problem.

Applicable Rules. Assume that the applicable rules of evidence are the Federal Rules of Evidence in their restyled form that became effective December 1, 2011, together with the applicable common law, statutory, and constitutional rules, doctrines, and caselaw as you studied them in your Fall 2012 Evidence course.

Citations. Since this is an open-rule exam, citation should be made to the appropriate rule, especially the Federal Rules of Evidence, statutory or Constitutional provision, etc. Case citations will be judged on a “close-enough” basis. Please keep in mind that my annotated versions of the rules are helpful shorthand references.

Instructed Result. You must reach and fully justify the instructed result in order to earn any credit for your answer.

Limited Space. Please keep in mind that you are bound by the character length limit in Examsoft, and to the space provided in the hand- or typewriting packet.

Abbreviations. You may use reasonable abbreviations in your essay, provided that you identify the equivalent longhand the first time you make use of each abbreviation. You may not abbreviate the names of persons used in the problem.

The United States v. Kenny Paul

Before the United States Fifth Circuit Court of Appeals

A jury in United States District Court for the Eastern District of Texas found the defendant, Kenny Paul, guilty of possessing crack cocaine with the intent to distribute it. On appeal, Paul contends that reversible error occurred when portions of two 911 calls were admitted into evidence.

On the night of Paul’s arrest, two anonymous 911 calls made by the same individual alerted the police to possible criminal activity. On the portion of the first 911 call that was played to the jury after other portions of the call had been redacted, the following colloquy took place, which started at 12:15 A.M.

OPERATOR: 911, where is your emergency? Sir, you’re phone is cutting out. You called about what?
       CALLER: All of this drug activity over off Sweetgum?
OPERATOR: What address on Sweetgum?
       CALLER: I’m not go—Why would I tell you? I’m trying to be anonymous and get y’all to get these drug dealers from over here.
OPERATOR: Sir, I’m not giving your name out so give me the information so that I can send the officers to the right place, where you’re at.
       CALLER: It’s a red PT Cruiser. This guy is selling—
OPERATOR: Sir, give me the address.
       CALLER: 2505 Sweetgum. All this traffic.
OPERATOR: Did you see his license plate number?
       CALLER: It’s—uh—I know it’s a red PT Cruiser. I—I can only see the driver’s side of the car, I don’t want to go outside, I don’t want him to know that—
OPERATOR: Okay, do you know his name?
       CALLER: Kenny Paul.
OPERATOR: Do you know what kind of drugs he’s selling?
       CALLER: He’s selling crack.
OPERATOR: Which apartment is he in right now?
       CALLER: He don’t even live out here. He’s just sitting on the steps. He’s running in and out, in and out. People coming—
OPERATOR: What’s he wearing tonight?
       CALLER: Ma’am?
OPERATOR: What’s he wearing tonight?
       CALLER: He’s got some green shorts on and a white t-shirt. The car is sitting off of—uh—11th, yeah that’s 11th, and—uh—Sweetgum.

On the portion of the second 911 that was played to the jury, the following colloquy took place, which began at 12:24 A.M.
OPERATOR: Phone line 911, where is your emergency?
       CALLER: Hey, I was the one just called about the drug deal that’s going down over here on Sweetgum.
OPERATOR: Yes, sir.
       CALLER: Ok. He’s got the dope in the side door panel.
OPERATOR: The dope’s in the side door panel?
       CALLER: Yeah. He—the—
OPERATOR: The right or the left side?
       CALLER: Uh—of the driver’s side—And—but I want them to do it when they leave here ‘cause he’s for sure got it in the car ‘cause he didn’t know I was the one called ‘cause I the only one seen it.
OPERATOR: Okay, how did you see it sir?
       CALLER: I seen him put it in there. I can see it right now.
OPERATOR: Okay, I’m adding the information to the call. Thank you, sir.
       CALLER: Okay. But would you tell them not to do it here? Cause I don't want him to think that I was the one told (inaudible) pulls off going down the street.
       CALLER: Thank you.
OPERATOR: You’re welcome.

The two responding police officers later testified that on the night in question they received a call via radio dispatcher requesting that they respond to the Monterrey Apartments at 2505 Sweetgum in order to look for “a red PT Cruiser in the parking lot with a black male occupying the PT Cruiser who was in the apartment selling narcotics.” When they arrived at the address given by the 911 caller, they observed a red PT Cruiser, which was parked, unoccupied, and had its driver’s side window down. Because the dispatcher had informed the officers that the suspect was keeping some of the narcotics inside a compartment on the driver’s side of the vehicle, they looked from outside the vehicle and observed what appeared to be three rocks of crack cocaine in plain view.

The officers further testified that a man then approached them, identified himself as the 911 caller, and provided them with some information about the suspect and the PT Cruiser. Believing that the suspect would return to the unoccupied car, the officers devised a plan whereby one would hide behind a nearby fence and the other would drive the patrol unit around the corner. About five minutes later, a black male, dressed in dark-colored shorts and a white t-shirt, exited the apartment complex and entered the PT Cruiser on the driver’s side; a female entered the vehicle on the passenger’s side. The officer behind the fence alerted the officer in the patrol unit via a call on his cell phone. The officer in the patrol unit returned to the apartment parking lot, activated his emergency lights, and followed the PT Cruiser. Once the officer activated his emergency equipment, the driver of the PT Cruiser accelerated to speeds of 60 to 65 miles per hour before failing to negotiate a turn and ending up in a vacant lot. As he was running up to the vehicle, the officer saw the driver’s side door open and the driver stick his arm out and throw something underneath the vehicle. The driver identified himself as Kenny Paul and the officer took him into custody. After the officer handcuffed Paul, he discovered what turned out to be a clear bag of powder cocaine on the driver’s side floorboard. The officer also retrieved three rocks of crack cocaine from the same place earlier observed, and once the car was moved by a wrecker, he discovered a clear bag of crack cocaine on the ground where the car previously stood. The officers testified that, based on their training and experience, the bag of crack cocaine recovered from underneath the vehicle was a “large amount” and was consistent with distribution purposes.

At trial, a forensic scientist testified that the substances found in and underneath the car were cocaine base, commonly known as “crack” (0.63 grams and 19.57 grams) and cocaine hydrochloride, commonly known as “cocaine powder” or simply “cocaine” (27.66 grams).

Paul was charged by indictment with one count of possession with intent to distribute five grams or more but less than 50 grams of a mixture or substance containing a detectable amount of cocaine base under 21 U.S.C. § 841(a)(1). The Government subsequently filed a notice and information of prior convictions for purposes of increased punishment provided by 21 U.S.C. §§ 841(b)(1)(B) and 851. The jury found Paul guilty as charged. The district court sentenced him to 137 months of imprisonment, to be followed by eight years of supervised release. Paul filed a timely notice of appeal.

On appeal, Paul claims that the district court erred by admitting the 911 recordings into evidence because they contained hearsay that did not fall under any of the exceptions to the rule against hearsay. Paul alternatively contends that even if the caller’s statements were admissible over a hearsay objection, the district court erred by admitting the 911 recordings because the recordings contained testimonial hearsay that violated his Sixth Amendment right to be confronted with the witnesses against him. He asserts that the recordings were unfairly prejudicial and extremely harmful to his defense.

By proper objection, Paul preserved his claim of error that the admission of the 911 recordings violated the Federal Rules of Evidence and his right to confrontation. Accordingly, we review the alleged violation of the Rules and the Confrontation Clause de novo, subject to a harmless error analysis. United States v. Bell, 367 F.3d 452, 465 (5th Cir. 2004).

Appellant also attacks his sentence arguing that the trial court misapplied the recidivism statute and that it erred in not following the newly-amended sentencing guidelines designed to reduce the disparity between convictions for possession of cocaine powder and crack cocaine when imposing its sentence.

Statute and Pattern Jury Instruction

21 USC § 841(a)
. . . it shall be unlawful for any person knowingly or intentionally
(1) to manufacture, distribute, or dispense, or possess with the intent to manufacture, distribute, or dispense, a controlled substance; or
(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.

Controlled Substances
For purposes of this statute both Cocaine (“Cocaine Hydrocloride”) and Cocaine Base (“Crack”) are “controlled substances”. “Cocaine base,” for the purposes of this statute, means “crack.” “Crack” is the street name for a form of cocaine base, usually prepared by processing cocaine hydrochloride (“cocaine”) and sodium bicarbonate, and usually appearing in a lumpy, rocklike form.

Cocaine and Other Schedule I and II Stimulants (and their immediate precursors)
Equivalence Guide for Sentencing (2010)
1 gm of Cocaine = 200 gm of marihuana
1 gm Cocaine Base (‘Crack’) = 20 kg of marihuana

Pattern Jury Instruction
Controlled Substances –Possession with Intent to Distribute 21 U.S.C. §841(a)(1)
It’s a Federal crime for anyone to possess a controlled substance with intent to distribute it.
[substance] is a “controlled substance.”
The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt:
(1) the Defendant knowingly possessed [substance];
(2) the Defendant intended to distribute the [substance]; and
(3) the weight of the [substance] Defendant possessed was more than [threshold].
To “intend to distribute” is to plan to deliver possession of a controlled substance to someone else, even if nothing of value is exchanged.
[The Defendant[s] [is] [are] charged with [distributing] [possessing and intending to distribute] at least [threshold] of [substance].
But you may find [the] [any] Defendant guilty of the crime even if the amount of the controlled substance[s] for which [he] [she] should be held responsible is less than [threshold].
So if you find [the] [any] Defendant guilty, you must also unanimously agree on the weight of [substance] the Defendant possessed and specify the amount on the verdict form.]

Instructions for Answering the Exam Question:

You are a law clerk to the Honorable Leslie H. Southwick, United States Circuit Judge for the 5th Circuit Court of Appeals. Judge Southwick has been designated to draft the opinion on behalf of the hearing panel, also composed by Circuit Judge Edith Brown Clement and Senior Circuit Judge Emilio M. Garza. Judge Southwick instructs you to draft a detailed memorandum explaining the following major conclusions: The court will rule that the trial court did not commit error in finding that the evidence was admissible over a hearsay objection primarily because the recordings fit under the hearsay exception governed by Federal Rules of Evidence 803(1), present sense impression. However, the Circuit Court of Appeals will hold that the trial judge committed error in admitting this evidence over a Sixth Amendment Confrontation Clause objection and the conviction will be reversed on that basis. The panel will not address the appellant’s attacks on his sentence in any way because the matter will be remanded to the District Court for a new trial and other actions in conformity with the remand order.

You must craft a well-reasoned memorandum detailing how such a ruling should be explained by a Federal Appellate Court applying the Federal Rules Evidence, as restyled and effective on December 1, 2011, together with the applicable common law, statutory, and constitutional rules, doctrines, and caselaw as you studied them in your Fall 2012 Evidence course.

  • Facts taken, and modified to fit examination purposes, from UNITED STATES OF AMERICA, Plaintiff-Appellee v. KENNEDY PAUL POLIDORE, Defendant-Appellant, 690 F.3d 705; 2012 U.S. App. LEXIS 16900 (5th Cir. Court of Appeals) (petition for writ of certiorari filed and pending).