Evidence Exam Fall 2014

LAW 6330 (4 credits)
Professor Pedro A. Malavet
Fall 2014






Open Rules. “Open-Rules” means that you may have with you during the examination your required 2014 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 and throughout the examination.

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.

Use the Exam for True/False; Limited Space for Essay. 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.

No Pencils or Erasable Ink! 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 or erasable ink.

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.

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.

Essay Character Limit: 21,600. 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.

Exam Review. Exam review will start after I post the feedback memorandum on the course website on Friday, February 6, 2015. 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.


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 directly to me or through the proctors).

Do not look for issues that are not relevant to answering the question. The question asked determines the issues raised, r ead 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, together with the applicable common law, statutory, and constitutional rules, doctrines, and caselaw as you studied them in your Fall 2014 Evidence course.


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. The law of evidence generally proceeds on the basis that the jury will follow the court’s instructions where those instructions are clear.

    True False

  2. After certain evidence is found to be relevant, it may be excluded if its probative value is substantially outweighed by a danger of misleading the jury.

    True False

  3. In a criminal prosecution for sexual assault, evidence of the defendant’s commission of another offense or offenses that if prosecuted would constitute a crime 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.

    True False

  4. In a criminal case for assault, during his case-in-chief, defendant Don offers the testimony of William that defendant Don is “non-violent, peaceful man who does not and would not commit acts of violence.” During its case-in-rebuttal, the prosecution offers the testimony of the Reverend Wilson that alleged victim Vince was a “peaceful, and non-violent man.” The prosecution’s rebuttal may be admitted.

    True False

  5. In a criminal prosecution for assault, defendant Don testifies that alleged victim Vince started the fight between them, 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 may be admitted.

    True False

  6. During a trial for bank robbery, the state calls Lauren Bacall. She is defendant Jason Robards’ ex-girlfriend and she answered the door at the time of his arrest. The state offers her testimony that when Robards 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. Robards objects, arguing that proof of his behavior at the time of arrest is irrelevant. In a sidebar conference, his lawyer points out that Robards’ arrest was based on an outstanding failure to appear warrant, issued one year earlier on unrelated charges. The court may admit this evidence to prove guilt of the crime charged.

    True False

  7. Under Federal Rule of Evidence 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.

    True False

  8. In a criminal appeal based on an evidentiary question, the court finds that the claimed error was not properly preserved for appeal by the defendant. The appellate court also finds that the trial court erred in admitting the now-challenged evidence against the defendant. Under the Federal Rules of Evidence, the appellate court has the authority to reverse the conviction.

    True False

  9. In a civil trial for damages resulting from an automobile collision, the defendant offers the testimony of an eyewitness who will identify the plaintiff, Juan Valdez, 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 Juan Valdez because it makes it more likely than it would be without that evidence that Valdez’s conduct was the proximate cause of the accident. The court may admit this evidence under Rule 403 based on this finding of prejudice.

    True False

  10. Jordan Belfort enters into a settlement of a civil action filed by the Attorney General for the State of Florida claiming that he violated state securities regulations when he defrauded investors while acting as their stockbroker. Belfort agrees to repay each investor 50% of their original investment and to refrain from doing business in the State of Florida for a period of no less than fifteen years. The state then agrees to dismiss its suit. During the negotiations, Mr. Belfort admits that he used the invested funds to cover personal expenses. The U.S. Government later indicts Mr. Belfort for securities fraud and is prosecuting him. At trial, the government seeks to introduce Belfort’s admission about using the funds for personal expenses. Under Federal Rule of Evidence 408 this evidence is not admissible because of the privilege created by that rule.

    True False

  11. 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 not hearsay.

    True False

  12. During civil commitment proceedings against Lily Aldrin, her parents, who are trying to institutionalize her in a psychiatric treatment facility, present testimony that she told several people last week: “I am Buffy, Buffy the Vampire Slayer.” Given the definition of hearsay of Federal Rule of Evidence 801(a), (b) and (c), this evidence is not hearsay.

    True False




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 2014 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.

Herrera v. Cannon

Rafael Alvardo Herrera, Petitioner
Timothy H. Cannon, Interim Secretary,
Florida Department of Corrections and the
Attorney General of the State of Florida,

On Appeal from the United States District Court for the Middle District of Florida, Fort Myers Division, Steele, J., Presiding, to the United States Court of Appeals for the 11th Circuit.

I. The Case

Petitioner Rafael Alvardo Herrera (hereinafter “Herrera” or “Petitioner”) initiated this federal action by filing a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on July 24, 2013, in the United States District Court for the Middle District of Florida, Fort Myers Division, challenging his conviction, after jury trial, for Aggravated Battery of a Pregnant Victim arising out of the Twentieth Judicial Circuit in Collier County, Florida (Case number 01-2026CFA). The Petition sets forth the following two grounds for relief: (1) That the trial court erred when it admitted hearsay testimony; and (2) that the trial court erred when it rejected defendant’s sixth amendment confrontation clause objection to that hearsay evidence.

II. Procedural History

On September 4, 2010, the State filed an Information charging Herrera with Aggravated Battery of a Pregnant Victim, Fla. Stat. § 784.045. On February 4, 2011, an Amended Information was filed alleging, in the alternative, that Herrera caused great bodily harm, permanent disability or permanent disfigurement.

Herrera proceeded to a jury trial on February 5, 2011. The jury returned a verdict of guilty of aggravated battery of a pregnant person as charged. On March 14, 2011, the court sentenced Herrera to thirty years (30) years imprisonment as a career criminal. Herrera, represented by the Assistant Public Defender, raised both the hearsay and confrontation issues on direct appeal. After a response by the State, the appellate court per curiam affirmed Herrera’s conviction and sentence on September 3, 2011. Herrera v. State, 884 So. 2d 31 (Fla. 2d DCA 2004).

On December 5, 2011, Herrera filed a State petition for writ of a habeas corpus alleging the same trial errors that are claimed in the instant Petition. The State filed a response. On May 11, 2012, the State appellate court denied the petition without a written opinion. Herrera v. State, 902 So. 2d 802 (Fla. 2d DCA 2005).

On July 31, 2012, Herrera filed a pro se motion pursuant to Florida Rule of Criminal Procedure 3.850, in which he again pursued the same grounds of error that he claims here. After directing a response from the State, the post-conviction court denied Herrera’s Rule 3.850 motion. Herrera appealed the post-conviction court’s order of denial. On March 7, 2013, the appellate court per curiam affirmed the order of dismissal. Herrera v. State, 955 So. 2d 575 (Fla. 2d DCA 2006). Mandate issued on May 22, 2013.

Herrera then pursued federal Habeas Corpus remedies in the United States District Court for the Middle District of Florida, Fort Myers Division. U.S. District Judge John E. Steele denied Herrera’s petition on July 9, 2014. The matter now comes before this panel on appeal of that decision to the United States District Court for the Eleventh Circuit.

III. Applicable Law

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 2014 Evidence course at the University of Florida Fredric G. Levin College of Law.  The applicable substantive law are the laws of the State of Florida.

You will assume further that the court of appeals will evaluate the trial court’s decisions under the same standard of review that it would apply if the trial had been held in the U.S. District Court.

IV. Findings of Fact

This Court has carefully reviewed the record and concludes no evidentiary proceedings are required in this Court. Schriro v. Landrigan, 550 U.S. 465, 127 S. Ct. 1933, 1939-40, 167 L. Ed. 2d 836 (2007). Petitioner does not proffer any evidence that would require an evidentiary hearing, Chandler v. McDonough, 471 F.3d 1360 (11th Cir. 2006), and the Court finds that the pertinent facts of the case are fully developed in the record before the Court. Schriro, 127 S. Ct. at 1940; Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), cert. denied, 541 U.S. 1034, 124 S. Ct. 2104, 158 L. Ed. 2d 718 (2004).

The victim, Wanda Santiago, did not testify at the trial.

At trial, the State proffered the tape recording of the 911 telephone call placed by the victim, Santiago. A review of the challenged testimony from the 911 telephone call placed by the victim reveals the following exchange between the victim and Lakeland Police Officer Jane Canady, the 911 operator:

  • 911 OPERATOR: 911, this is Officer Canady, what is your problem?
    MS. SANTIAGO: I’ve been hit.
    OFFICER CANADY: You’re what?
    MS. SANTIAGO: My boyfriend beat me up.
    OFFICER CANADY: Where is the address at?
    MS. SANTIAGO: 601 West Delaware, Apartment Six.
    OFFICER CANADY: Apartment what?
    OFFICER CANADY: And your boyfriend beat you up?
    MS. SANTIAGO: Yeah.
    OFFICER CANADY: Okay. Is he still there?
    MS. SANTIAGO: No, he’s around. I’m at a friend’s house.
    OFFICER CANADY: Okay. Where are you hurt at?
    MS. SANTIAGO: All over.
    OFFICER CANADY: What is your name?
    MS. SANTIAGO: Wanda.
    OFFICER CANADY: What’s the phone number you are at, Wanda?
    MS. SANTIAGO: 986-0014.
    OFFICER CANADY: Okay. What is your boyfriend’s name?
    MS. SANTIAGO: Rafael Herrera.
    OFFICER CANADY: Okay. How old is he?
    MS. SANTIAGO: Twenty-six.
    OFFICER CANADY: Is he a Hispanic male?
    MS. SANTIAGO: Yeah.
    OFFICER CANADY: Okay. Where is he at now?
    MS. SANTIAGO: He’s over in D-5.
    OFFICER CANADY: In D, like dog?
    MS. SANTIAGO: Yeah.
    OFFICER CANADY: Okay. What’s his date of birth, do you know?
    MS. SANTIAGO: Um, September 14th. I don’t know the date - I mean, I don’t know the year.
    OFFICER CANADY: Okay. And is there somebody with you there now, Wanda?
    MS. SANTIAGO: Yeah, friends. He was sleeping but he wouldn’t let me out of the room.
    OFFICER CANADY: How old are you?
    MS. SANTIAGO: I am 19.
    OFFICER CANADY: Okay. What did he hurt you with?
    MS. SANTIAGO: He kicked me in my face with his boot.
    OFFICER CANADY: Okay. Does he have any weapons there at the house?
    OFFICER CANADY: Has he been drinking or doing drugs?
    MS. SANTIAGO: I think he’s been drinking.
    OFFICER CANADY: Okay. All right. We’re going to get somebody out there, okay? Just stay in the apartment, keep the door locked and don't let him in if he comes over, okay?
    MS. SANTIAGO: Okay.
    OFFICER CANADY: All right. Okay. Bye.

Polk County Sherriff’s Deputy Doll succeeded Officer Canady on the stand. Deputy Doll explained that he was assigned to road patrol and was dispatched to an apartment complex to make contact with the victim. Deputy Doll testified that it took him “about three minutes” to arrive at the apartment after he received the call. When he arrived he observed Ms. Santiago “crying and . . . bleeding from a cut on her left eyebrow.” He stated that “[s]he was really upset, crying . . . she had a cut over her left brow. She had some fingerprints on her inner arms . . . .”  Upon observing the victim more closely, Deputy Doll, asked the victim if she was pregnant, and she responded that she was. Deputy Doll called for an ambulance before he continued to question the victim. In response to Deputy Doll’s questions as to “what had happened,” Ms. Santiago said that she had gotten into an argument about money with her boyfriend and “it turned physical when he started hitting her.” Deputy Doll asked Ms. Santiago with what she was hit, and Ms. Santiago said with “fists.”  Deputy Doll testified that he could see a “shoe print on the side of [Ms. Santiago’s] face.” When he asked Ms. Santiago how she sustained certain injuries to her face, Ms. Santiago stated “her boyfriend, Rafael, was kicking her” when she fell on the ground. Deputy Doll testified that he took pictures of the victim’s injuries the night of the incident, which were introduced into evidence.

Dr. Val Klein-Richey, who was called by the State, testified on direct examination that she was the emergency room physician who treated the victim the night of the incident. The victim presented “with trauma; um …, lacerations, abrasions, and abdominal pain and head pain.” The doctor testified in detail about the extent of the victim’s injuries and concluded that the injuries were consistent with domestic violence abuse. During the course of assessing the victim, Dr. Klein-Richey ascertained that the victim was in the seventh month of pregnancy and referred the victim to “labor and delivery for monitoring —for fetal monitoring.”

Defendant, through his public defender, moved in limine to exclude a number of out-of-court statements by the victim Wanda Santiago. On February 4, 2011, the trial court held a hearing to determine the admissibility of the 911 tape, the victim’s statements to Deputy Doll, and the victim’s statements to Dr. Richey-Klein. A copy of the February 4, 2011 hearing transcript is attached as exhibit “D” to the post-conviction court’s summary denial of Petitioner’s Rule 3.850 motion. The motion, as well as this transcript, demonstrate that defense trial counsel opposed the introduction of the 911 tape and the victim’s other statements to Deputy Doll and Dr. Richey-Klein on both hearsay and sixth amendment confrontation clause grounds. Nonetheless, after listening to the 911 tape, hearing testimony from the 911 operator who received the call from the victim, hearing testimony from Deputy Doll who, as he did at trial, testified that he observed the victim within five minutes of the incident and took pictures of the victim’s injuries which the court reviewed as well, hearing testimony from Dr. Richey-Klein, and considering applicable state and federal law, the trial court allowed the use of the 911 tape and Deputy Doll’s testimony under the excited utterance exceptions to the hearsay rule, and overruled the confrontation clause objection because the questioning during the 911 call and by Deputy Doll were primarily directed to protecting the health and safety of the victim and to rendering proper medical care to her, especially given her pregnancy. The court, however, limited Dr. Richey-Klein’s testimony to medical treatment, disallowing any testimony about statements from the victim regarding identification.

Statutory Materials

  • 784.03 Battery; felony battery.—
    • (1)(a) The offense of battery occurs when a person:
      1. Actually and intentionally touches or strikes another person against the will of the other; or
      2. Intentionally causes bodily harm to another person.
      (1)(b) Except as provided in subsection (2), a person who commits battery commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
    • (2) A person who has one prior conviction for battery, aggravated battery, or felony battery and who commits any second or subsequent battery commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. For purposes of this subsection, “conviction” means a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld or a plea of nolo contendere is entered.
  • 784.045Aggravated battery.—
    • (1)(a) A person commits aggravated battery who, in committing battery:
      1. Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or
      2. Uses a deadly weapon.
    • (1)(b) A person commits aggravated battery if the person who was the victim of the battery was pregnant at the time of the offense and the offender knew or should have known that the victim was pregnant.
    • (2) Whoever commits aggravated battery shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.


The appellate panel is composed by Judge Susan H. Black, Judge Peter T. Fay, and Judge Adalberto Jordan. Judge Black has been selected to draft the court’s opinion. The judges of the court of appeals have agreed to the facts and instructions stipulated above. They have further agreed that they will affirm the trial court’s decision. The court will rule that petitioner’s claim that the trial court erred in ruling that the statements should be admitted above a hearsay objection should be rejected because the court’s ultimate ruling on that objection was correct. The court of appeals will further rule that the trial court did not err when it rejected petitioner’s Sixth Amendment Confrontation Clause objection; the court will rule that the statements were admissible under the Sixth Amendment and the Crawford Doctrine. You are a law clerk to judge Black and she instructs you to write a detailed essay explaining this result, using the applicable law to analyze the facts determined above, with the level of attention to detail expected of any student in the Fall 2014 Evidence Course.

Facts taken and modified for exam purposes from Herrera v. Cannon, 2010 U.S. Dist. LEXIS 78606; 2010 WL 2731850 (U.S. Dist. Ct. M.D. Fla., Steele, J.), decided July 9, 2010. All dates have been changed.