Evidence Exam Fall 2013
LAW 6330 (4 credits)
Professor Pedro A. Malavet
BEFORE THE EXAM STARTS, YOU MAY READ THE INSTRUCTIONS, AND COUNT TO MAKE SURE THAT YOU HAVE ALL SEVENTEEN (17) PAGES, AND YOU SHOULD WRITE YOUR EXAM NUMBER ON EVERY PAGE. IF YOU WILL USE A LAPTOP DURING THE EXAM, YOU MUST LOG INTO EXAM SOFT AT THE START OF THE TEST. OTHERWISE, DO NOT GO BEYOND PAGE THREE (THE END OF THE INSTRUCTIONS) OR READ ANY OTHER PART OF THE EXAM BEFORE YOU ARE INSTRUCTED TO START.
EXAM SOFT USERS MUST LOG INTO THE SYSTEM AT THE START OF THE EXAMINATION AND REMAIN IN THE SOFTWARE’S ANSWER-ONLY ENVIRONMENT FOR THE ENTIRE TEST PERIOD.
COMPLETED EXAMS WILL BE COLLECTED BY THE OFFICE OF STUDENT AFFAIRS. IF YOU FINISH EARLY, PLEASE GO TO THE OFFICE OF STUDENT AFFAIRS TO TURN IN THE COMPLETED EXAM. THE OFFICE OF STUDENT AFFAIRS WILL SEND PERSONNEL TO THE EXAM ROOM TO COLLECT EXAMS AT THE END OF THE EXAMINATION PERIOD.
Open Rules. “Open-Rules” means that you may have with you during the examination your required 2013 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.
NO OTHER ELECTRONIC DEVICE MAY BE USED DURING THE EXAM. Other than your laptop, you may not use any other electronic device during the exam. That includes, but is not limited to, cellphones, tablets, music players, headsets, smart-watches, etc.
Review. Exam review will start after I post the feedback memorandum on the course website on Friday, February 7, 2014. 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.
- Given the definition of hearsay of FRE 801(a), (b) and (c), when offered as proof that defendant Donald ‘Boon’ Schoenstein is guilty of Rioting, testimony that in the middle of a riot, his girlfriend Katy Faver, after observing Schoenstein running North on Main Street, said to approaching police officers —“Officers, officers, he went that way,” while pointing to the South on Main Street, is hearsay.
- Defendant, Dr. Buckaroo Banzai, famed law professor, neurosurgeon, particle physicist, and rock-star, is charged with criminal destruction of property. Dr. John Whorfin is called as a witness by the defense in this criminal trial, with the expectation that he will testify that he, not the defendant, destroyed the valuable, highly-modified Ford F-150, by setting it on fire. Dr. Whorfin is a resident of the New Jersey Hospital for the Criminally Insane at Grover’s Mill. Prior to this offer of testimony, in separate proceedings alleging that he had murdered a hospital orderly during an escape attempt, Whorfin was found to be criminally insane and incompetent to stand trial. Among certain other personal quirks, he has publicly stated that he is a red Lectroid from Planet Ten and that he must return to the Eighth Dimension to rescue his army, in order to conquer the universe, starting with Planet Ten. The government objects that Whorfin is incompetent to testify. The court may find Whorfin competent to testify.
- In a criminal prosecution for sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault may be admitted to prove that on a particular occasion the defendant acted in accordance with the character or trait suggested by those other offenses.
- Under FRE 702, expert testimony deduced from a well-recognized scientific principle or discovery, is only admissible if the thing from which the deduction is made is sufficiently established to have gained general acceptance in the particular field in which it belongs.
- In a criminal appeal based on an evidentiary question, the court finds that the error was not properly preserved for appeal by the defendant. The appellate court also finds that the trial court erred in admitting the evidence against the defendant. Under the Federal Rules of Evidence, the appellate court may have the authority to reverse the conviction.
- In a civil trial for damages resulting from an automobile collision, the defendant offers the testimony of an eyewitness who will identify the plaintiff, John Tenant, as the driver of the car that ran a red light at an intersection and caused the accident that led to this suit. The plaintiff 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 plaintiff John because it makes it more likely than it would be without that evidence that Tenant’s conduct was the proximate cause of the accident. The court cannot exclude this evidence under Rule 403 based on this finding of prejudice.
- Following the loss in the SEC Championship Game, Mizzou fan George drowns his sorrows at several Atlanta bars as he walks back to his car after the game. He then meets his pal John in the parking lot and gives him a ride back to their hotel in Buckhead. Later that night they are involved in an accident that seriously injures both John and George. John sues driver George to recover damages. During the defense case in chief George offers, as proof that John 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 not hearsay.
- During civil commitment proceedings against Florida State University junior Jerry Jones, his parents, who are trying to institutionalize him in a psychiatric treatment facility, present testimony that he told several students last weekend: “I am Manziel, Johnny Manziel, Heisman Trophy Winner.” Given the definition of hearsay of Rule 801(a), (b) and (c), this evidence is hearsay.
- In a criminal case for robbery, during his case-in-chief, defendant Don offers the testimony of William that defendant Don was “a man who does not and would not steal.” 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 is admissible under the Federal Rules of Evidence.
- In a criminal prosecution for homicide, defendant Don testifies that alleged victim Vince started the fight between them that ultimately led to Vince’s death, 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.
- The law of evidence generally proceeds on the basis that the jury will follow the court’s instructions where those instructions are clear.
- After certain evidence is found to be relevant, it may be excluded if its probative value is substantially outweighed by a danger of needlessly presenting cumulative evidence.
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 2013 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.
State v. Darius Clark
Before the Supreme Court of Ohio
The issue in this appeal is whether the trial court violated Darius Clark’s constitutional right to confront the witnesses against him when it admitted a hearsay statement that three-and-a-half-year-old L.P. made to his preschool teachers, Ramona Whitley and Debra Jones, in response to questions asked about injuries to his eye and marks on his face observed upon his arrival at a preschool day care.
Factual and Procedural Background
Darius Clark lived with his girlfriend, T.T., her three-year-old son, L.P., and her two-year-old daughter, A.T. A grand jury indicted Clark on one count of felonious assault (R.C. 2903.11(A)(1)) relating to L.P., four counts of felonious assault (R.C. 2903.11(A)(1)) relating to A.T., two counts of endangering children (R.C. 2919.22(B)(1)), and two counts of domestic violence (R.C. 2919.25(A)). The trial court declared L.P. incompetent to testify but denied Clark’s motion in limine to exclude L.P.’s out-of-court identification statements.
The children’s mother, referred to here as “T.T.” in order to avoid identifying the children, was also indicted, and she pled guilty to child endangerment, domestic violence, and permitting child abuse and agreed to testify against Clark. She was sentenced to eight years’ imprisonment.
T.T. testified that Clark is known as “Dee” to friends and family, that they had been in a relationship since 2008, and that he acted as her pimp for her prostitution activities, for which she travelled to Washington, D.C. She further testified that her family usually watched her two children while she travelled to Washington, D.C. But eventually, she began leaving L.P. and A.T. with Clark. And she continued to do so even after she realized that Clark was physically abusing the children. T.T. testified that around midnight, March 16, 2010, she left for Washington, D.C., to engage in prostitution. She left L.P. and A.T., unharmed, in Clark’s care.
The next day, March 17, 2010, at approximately 1:00 p.m., Clark dropped L.P. off at his school, William Patrick Day School, which was operated by the Council for Economic Opportunities of Greater Cleveland Head Start.
Ramona Whitley, one of L.P.’s teachers, saw L.P. in the lunchroom and noticed that his eye was bloodshot or bloodstained. She asked him, “What happened?” and L.P. at first said nothing but then replied, “I fell.” Whitley asked, “How did you fall and hurt your face?” and L.P. answered, “I fell down.” Whitley noted that L.P. was not as talkative as usual and wouldn’t eat.
When L.P. went into the classroom, he played at a table. In the brighter light of the classroom, Whitley noticed additional injuries. She saw red marks on L.P.’s head “like whips of some sort” and welts on his face. Whitley testified that she was “kind of like in shock” and asked, “Oh, what happened?”
Whitley then got the attention of the lead teacher, Debra Jones, and asked her to look at L.P. At this time, Jones saw L.P.’s bloodshot or bloodstained eye and some “redness” around his neck. When Jones saw L.P.’s eye, she said, “He needs to go to Ms. Cooper, my supervisor. After I looked at him, I said, you know, I’m going to take him to Ms. Cooper.” Jones then asked “Whoa, what happened?” and “Who did this? What happened to you?” Jones testified that L.P. seemed “kind of bewildered” but then said something like “Dee, Dee.” Jones, wanting to know if L.P. was talking about another child, asked, “Is he big or little?” Jones testified that L.P. said, “Dee is big.” Jones described L.P. as “Out. Staring out. And I was asking him—he almost looked uncertain, but he said, Dee.” Because L.P. had only attended the school for a short time, Jones could not be certain that the child understood her questions.
Because Jones did not want to embarrass L.P. or alarm any of the children, she took L.P. to the office of her supervisor, Ms. Cooper. Jones testified that Cooper asked L.P. if she could see his shirt. When Cooper raised L.P.’s shirt, Jones saw red marks on L.P.’s body. It was only at this point—after the child was taken to the supervisor’s office—that the decision was made to report a suspicion that L.P. had been abused. Jones testified that Cooper said, “Whoever saw him first got to make the call.” As a result, Whitley called 696-KIDS and made a report of suspected child abuse.
In response, the Cuyahoga County Department of Child and Family Services (“CCDCFS”) sent a social worker to the school to question L.P. Clark arrived at the school while the social worker was questioning L.P. and denied responsibility for L.P.’s injuries. Clark then left with the child.
The next day, a social worker located T.T.’s children at the home of Clark’s mother and took them to the hospital. A physician determined that L.P. had bruising in various stages of development and abrasions consistent with having been struck by a linear object and that A.T. had bruising, burn marks, a swollen hand, and a pattern of sores at her hairline. The physician suspected child abuse and estimated that the injuries occurred between February 28 and March 18, 2010. The examining physician, Dr. Patrick Johnson, so testified at trial.
Seven witnesses testified regarding the statements made by L.P.: Jody Remington, a Cleveland police detective; Sarah Bolog, a CCDCFS social worker; Howard Little, a CCDCFS intake social worker; Whitley and Jones; the children’s maternal grandmother; and the children’s maternal great-aunt. Multiple witnesses testified that defendant Clark was commonly known as “Dee” by his friends and family. Unexplained in this record, and highlighted by the court of appeals in its opinion, is that the trial court declared L.P. incompetent to testify at the time of trial, yet it permitted testimony about statements this incompetent three-and-a-half-year-old child made to his teachers six months earlier.
The jury found Clark guilty of all charges, except for one count relating to A.T., and the court thereafter sentenced Clark to an aggregate 28-year prison term.
Clark appealed, claiming that the trial court violated his right to confrontation by allowing witnesses to testify about the statements L.P. made to his preschool teachers. The court of appeals held that the trial court abused its discretion when it permitted Detective Remington, Bolog and Little (the social workers), and Whitley and Jones (the preschool teachers) to testify regarding L.P.’s statements, because they were testimonial and their admission violated the Confrontation Clause. State v. Clark, 8th Dist. Cuyahoga, 2011-Ohio-6623, 2011 WL 6780456. The appellate court reversed Clark’s convictions and remanded the matter for a new trial. Id.
The Supreme Court accepted the state’s appeal challenging only the exclusion of testimony from Whitley and Jones and asserting that it did not violate the Confrontation Clause. The state did not appeal the decision of the appellate court that testimony from Detective Remington and from social workers Bolog and Little violated the Confrontation Clause and was therefore inadmissible.
Ohio law imposes a duty on all school officers and employees, including administrators and employees of child day-care centers, to report actual or suspected child abuse or neglect. R.C. 2151.421, the source of that duty, provides:
(A)(1)(a) No person described in division (A)(1)(b) of this section who is acting in an official or professional capacity and knows, or has reasonable cause to suspect based on facts that would cause a reasonable person in a similar position to suspect, that a child under eighteen years of age * * * has suffered or faces a threat of suffering any physical or mental wound, injury, disability, or condition of a nature that reasonably indicates abuse or neglect of the child shall fail to immediately report that knowledge or reasonable cause to suspect to the entity or persons specified in this division. Except as provided in section 5120.173 of the Revised Code, the person making the report shall make it to the public children services agency or a municipal or county peace officer in the county in which the child resides or in which the abuse or neglect is occurring or has occurred. * * *
(b) Division (A)(1)(a) of this section applies to any person who is an * * * administrator or employee of a child day-care center; * * * administrator or employee of a certified child care agency or other public or private children services agency; school teacher; school employee; school authority * * *.
In Yates v. Mansfield Bd. Of Edn., 102 Ohio St.3d 205, 808 N.E.2d 861, parr. 30, the Supreme Court of Ohio noted that R.C. 2151.421 imposes mandatory reporting duties on teachers and others listed in the statute because they are among the “most likely and qualified persons to encounter and identify abused and neglected children” and have “the necessary training or skill to detect the symptoms of child abuse.” As the court further explained:
[w]hile * * * the primary purpose of reporting is to facilitate the protection of abused and neglected children rather than to punish those who maltreat them, it is clear that the General Assembly considered identification and/or prosecution of the perpetrator to be a necessary and appropriate adjunct in providing such protection, especially in the institutional setting. Thus, R.C. 2151.421(F)(1) and (2) provide that children services agencies shall investigate each report of known or suspected child abuse in cooperation with law enforcement to determine, among other things, “the cause of the injuries * * * and the person or persons responsible” and “make any recommendations to the county prosecuting attorney or city director of law that it considers necessary to protect any children that are brought to its attention.” (Emphasis added). Id. at parr. 25.
Thus, prosecution for criminal acts of child abuse is expressly contemplated by the reporting statute as a means of protecting children. And in order to effectuate that purpose, R.C. 2151.421(C) requires the person reporting the abuse to provide a written report if one is requested by the receiving agency. Further, a failure to report suspected child abuse is a criminal offense pursuant to R.C. 2151.421(C), and R.C. 2151.421(M) makes a mandated reporter “liable for compensatory and exemplary damages to the child who would have been the subject of the report that was not made.”
Ohio Revised Code (R.C.) 2903.11 Felonious assault.
(A) No person shall knowingly do either of the following:
(1) Cause serious physical harm to another or to another’s unborn;
(2) Cause or attempt to cause physical harm to another or to another’s unborn by means of a deadly weapon or dangerous ordnance.
(D)(1)(a) Whoever violates this section is guilty of felonious assault. Except as otherwise provided in this division or division (D)(1)(b) of this section, felonious assault is a felony of the second degree. If the victim of a violation of division (A) of this section is a peace officer or an investigator of the bureau of criminal identification and investigation, felonious assault is a felony of the first degree.
(b) Regardless of whether the felonious assault is a felony of the first or second degree under division (D)(1)(a) of this section, if the offender also is convicted of or pleads guilty to a specification as described in section 2941.1423 of the Revised Code that was included in the indictment, count in the indictment, or information charging the offense, except as otherwise provided in this division or unless a longer prison term is required under any other provision of law, the court shall sentence the offender to a mandatory prison term as provided in division (B)(8) of section 2929.14 of the Revised Code. If the victim of the offense is a peace officer or an investigator of the bureau of criminal identification and investigation, and if the victim suffered serious physical harm as a result of the commission of the offense, felonious assault is a felony of the first degree, and the court, pursuant to division (F) of section 2929.13 of the Revised Code, shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the first degree.
(E) As used in this section:
(3) “Peace officer” has the same meaning as in section 2935.01 of the Revised Code.
(5) “Investigator of the bureau of criminal identification and investigation” means an investigator of the bureau of criminal identification and investigation who is commissioned by the superintendent of the bureau as a special agent for the purpose of assisting law enforcement officers or providing emergency assistance to peace officers pursuant to authority granted under section 109.541 of the Revised Code.
(6) “Investigator” has the same meaning as in section 109.541 of the Revised Code.
R.C. 2919.22. Endangering children
(A) No person, who is the parent, guardian, custodian, person having custody or control, or person in loco parentis of a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age, shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support. It is not a violation of a duty of care, protection, or support under this division when the parent, guardian, custodian, or person having custody or control of a child treats the physical or mental illness or defect of the child by spiritual means through prayer alone, in accordance with the tenets of a recognized religious body.
(B) No person shall do any of the following to a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age:
(1) Abuse the child;
R.C. 2919.25. Domestic violence
(A) No person shall knowingly cause or attempt to cause physical harm to a family or household member.
(F) As used in this section and sections 2919.251 and 2919.26 of the Revised Code:
(1) "Family or household member" means any of the following:
(a) Any of the following who is residing or has resided with the offender:
(i) A spouse, a person living as a spouse, or a former spouse of the offender;
(ii) A parent, a foster parent, or a child of the offender, or another person related by consanguinity or affinity to the offender;
(iii) A parent or a child of a spouse, person living as a spouse, or former spouse of the offender, or another person related by consanguinity or affinity to a spouse, person living as a spouse, or former spouse of the offender.
(b) The natural parent of any child of whom the offender is the other natural parent or is the putative other natural parent.
(2) "Person living as a spouse" means a person who is living or has lived with the offender in a common law marital relationship, who otherwise is cohabiting with the offender, or who otherwise has cohabited with the offender within five years prior to the date of the alleged commission of the act in question.
Instructions for Answering the Exam Question:
You are a law clerk to the Honorable Terrence O’Donnell, Associate Justice of the Supreme Court of Ohio. Justice O’Donnell has been designated to draft the opinion on behalf of the majority of the court. The court could simply have affirmed the judgment of the appellate division under the Rules by determining that because the child was not qualified to testify, his hearsay statements could not be offered for a truth purpose. Additionally, since the child did not testify, Rule 801(d)(1)(C) was unavailable as an applicable hearsay exception. The trial court used Rule 807 to admit the statements, but the majority of the Supreme Court will not find any hearsay exception applicable to this case and will not address the matter further than articulating that no rule permits the admission of statements that meet the definition of hearsay articulated in Rule 801(a), (b) and (c). The court could choose to go no further, but the justices believe that they must provide guidance to the lower courts and to Ohio teachers and day-care employees to whom R.C. 2151.421 applies, about the legal implications of the reporting duty as they relate to the Sixth Amendment Confrontation Clause under the currently applicable standard of Crawford and its progeny. The Supreme Court also wishes to discourage overly-expansive uses of Rule 807 that overreach and violate the protections of the Sixth Amendment.
Judge O’Donnell instructs you to draft a detailed memorandum explaining the following major conclusions: The statements by L.P. to Jones and Whitley were hearsay, as defined in Rule 801(a), (b) and (c), and no rule allowed their offer at trial for a truth purpose (you do not need to explain why no exception is available in any way, but Justice O’Donnell instructs you to be very specific and thorough in explaining the application of the hearsay definition as well as why hearsay is generally excluded and its contents distrusted, specifically addressing the facts of this case whenever possible); even if an applicable exception had been found, admission of the statements violated the defendant’s rights under the Confrontation Clause of the Sixth Amendment to the Constitution of the United States; defendant is entitled to a new trial. The major conclusions must be supported by thorough analysis of the additional rules that are pertinent to these findings.
You must craft a well-reasoned memorandum detailing how such a ruling should be explained by a 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 2013 Evidence course.
Facts taken, and modified to fit examination purposes, from STATE v. CLARK, 2013-Ohio-4731. I combined the factual description made by both the majority and the dissent into a single fact-pattern.
UPDATE: SUPREME COURT GRANTED CERT
The SCOTUS ruled that the child's statements were NOT testimonial under the 6th Amendment and that Mandatory Reporting statutes do not automatically convert non-testimonial statements into testimonial statements explaining that "mandatory reporting statutes alone cannot convert a conversation between a concerned teacher and her student into a law enforcement mission aimed primarily at gathering evidence for a prosecution." Ohio v. Clark, 135 S.Ct. 2173 (2015), Alito, J., wrote for a unanimous court, with two concurring opinions.