Evidence Exam Fall 2015

LAW 6330 (4 credits)
Professor Pedro A. Malavet
Fall 2015






Open Rules. “Open-Rules” means that you may have with you during the examination your required 2015 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.

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.

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 5, 2016. 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 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, together with the applicable common law, statutory, and constitutional rules, doctrines, and caselaw as you studied them in your Fall 2015 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. During civil commitment proceedings against University of Alabama junior William Robert Smith, his parents, who are trying to institutionalize him in a psychiatric treatment facility, present testimony that he told several people the previous week: “I am Tebow, Tim Tebow, Heisman Trophy winner.” Given the definition of hearsay of Federal Rule of Evidence 801(a), (b) and (c), this evidence is not hearsay.

    True                    False

  2. During a major fire at a tourist hotel, an elevator stopped and its doors opened in a floor completely engulfed by flames, killing all seven (7) people who were riding in the elevator. This occurred because the heat from the fire activated the elevator call button on that floor, causing the elevator to stop and open its doors, exposing the riders to the smoke and flames that killed them. During their post-fire renovations the building owners install Otis Elevator Company heat and fire-sensing equipment that prevents the building’s elevators from stopping on a floor in which there may be an ongoing fire. During a subsequent civil trial of the lawsuit initiated by the legal representatives of victims of the fire the plaintiffs seek to offer evidence of the installation of this new equipment. The court rules that it is a subsequent measure under Federal Rule of Evidence 407. Under Rule 407, this evidence is not admissible to prove negligence.

    True                    False

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

    True                    False

  4. After certain evidence is found to be relevant, it cannot be excluded if its probative value is substantially outweighed by a danger of undue delay.

    True                    False

  5. 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 cannot find Whorfin competent to testify.

    True                    False

  6. In a criminal prosecution for sexual assault, evidence of the defendant’s commission of another offense involving contact, without consent, between any part of the defendant’s body—or an object—and another person’s genitals or anus, may be admitted to prove that on a particular occasion the defendant acted in accordance with the character or trait suggested by that other offense.

    True                    False

  7. In a criminal trial for possession with intent to distribute cocaine, DEA agent John Smith identified a brick of cocaine offered by the prosecution as evidence seized from the only defendant’s boat. During agent Smith’s testimony, some pieces of cocaine detached from the brick and covered the witness stand (the brick had lost part of its plastic seal while in transit, and some bits became lose). While testifying for the government, the next witness, Neo Anderson, gathered up some of the cocaine pieces and swallowed them, in view of the jury and the presiding judge. The court may deny the defense’s objection seeking a ruling that witness Neo Anderson is unqualified to testify and his entire testimony should be stricken from the record.  

    True                    False

  8. Debra Johnson is a highly-paid diesel mechanic who has been qualified to testify as an expert diesel mechanic in a federal trial. The judge rules diesel mechanics is a well-recognized discipline, and that Johnson’s opinions about the failure of a diesel engine are based on generally-accepted principles of diesel mechanics. Johnson may testify as an expert under Rule 702.

    True                    False

  9. 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 does not have the authority to reverse the conviction.

    True                    False

  10. In a criminal trial for first-degree murder, the state offers the testimony of an eyewitness who will identify the defendant, Robert Johnson, as the person that stabbed victim Vicky Jones to death. 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 Johnson because it makes it more likely than it would be without that evidence that Johnson’s intentional conduct was the proximate cause of the death. The court must exclude this evidence under Rule 403.

    True                    False

  11. Jordan Belfort enters into a settlement of a civil class-action lawsuit filed by multiple investors claiming that he violated state securities regulations when he defrauded investors while acting as their stockbroker. Belfort agrees to repay each investor 60% 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 plaintiffs then agree to dismiss the 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 to prove guilt. This evidence is not admissible because of the prohibition created by rule 408.

    True                    False

  12. 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 East on Newberry Road, said to approaching police officers —“Officers, officers, he went that way,” while pointing to the West on Newberry Road, is 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 2015 Evidence course. Any additional sources of law will be expressly noted in the exam fact-pattern and accompanying statutory supplement.
            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.

Commonwealth of Pennsylvania
Rodney Fields

Appeal to the Superior Court from the Judgment of Sentence July 18, 2014, in the Court of Common Pleas of Philadelphia County. Criminal Division at No(s): CP-51-CR-0008321-2013.

Appellant, Rodney Fields, appeals from the July 18, 2014 aggregate judgment of sentence of two and one-half to five years’ imprisonment, plus two years’ probation, imposed after he was found guilty of one count each of attempted robbery and simple assault. After careful review, we affirm.

The trial court summarized the relevant factual history of this case, as presented at trial, in the following manner.

  • Police Officer Richard Butler testified that on April 10, 2013, at about 1:30 AM, he was on patrol with his partner, Officer Burrell, in the vicinity of 130 South 12th Street in Philadelphia. At that time and place he heard a commotion and a white male, later identified as Justin Shelly, screaming that he was being robbed and crying for help. Officer Butler observed another white male, [Appellant], holding Shelly by the collar of his jacket, with his fist clenched ready to punch. As the officer approached, Shell[y] yelled out “I’m being robbed”.
  • Officer Butler and his partner yelled for [Appellant] to release Shell[y] and then separated the two to investigate. [Appellant] complied with the police command to release Shelly. [Appellant] then stated that he knew Shelly and that Shelly owed him money. The Commonwealth introduced photos of Shelly, showing injuries and a photo of [Appellant]. Officer Butler testified that Shelly had injuries and that the photos accurately reflected the appearance of Shelly and [Appellant] at the time of the incident. The photos of Shelly showed significant injuries to his face. The arrest photo of [Appellant] did not show any injuries.
  • [Appellant] testified that after he was arrested he gave a statement to a detective. The statement described a dispute over money Shelly owed to [Appellant] connected with a purchase of crack and a denial by [Appellant] that he struck Shelly.
  • Shelly did not appear at the trial despite “reasonable efforts by the prosecution to obtain his appearance.”

Trial Court Opinion, 12/22/14, at 1-2 (internal citations omitted).

We further summarize the procedural history of this case as follows. On July 3, 2013, the Commonwealth filed an information charging Appellant with the above-mentioned offenses as well as one count of reckless endangering another person (REAP) and attempted theft by unlawful taking. Appellant proceeded to a bench trial on April 25, 2014, at the conclusion of which, the trial court found Appellant guilty of attempted robbery and simple assault, and found Appellant not guilty of attempted theft by unlawful taking and REAP. On July 18, 2014, the trial court imposed a sentence of two and one-half to five years’ imprisonment for attempted robbery and a consecutive two year probation sentence for simple assault. Appellant did not file a post-sentence motion. On August 11, 2014, Appellant filed a timely notice of appeal.

During the trial, Appellant objected to Officer Butler’s testimony regarding statements by Shelly on both hearsay and sixth amendment Confrontation Clause grounds. When the objection was overruled, Officer Butler testified that he heard Shelly cry out for help and state “I’m being robbed.” N.T., 4/25/14, at 10, 13. Officer Butler testified that when he first observed Appellant and Shelly, Appellant had grabbed Shelly “by the collar of his jacket with his fist clenched ready to punch him.” Id. at 11. Officer Butler noticed that Shelly “appeared to be trying to pull away from [Appellant, and] appeared to be extremely frightened.” Id. at 12. The record also contains photographic evidence, admitted without objection, that showed Shelly sustained injuries while Appellant had none.

On appeal, Appellant raises three issues for our review.

  • 1. [Whether] the [trial c]ourt erred by allowing hearsay of the [c]omplainant to be introduced by the Commonwealth[?]
  • 2. [Whether] the [trial c]ourt violated Appellant’s Sixth Amendment [c]onstitutional [r]ight of [c]onfrontation by allowing the [c]omplainant's hearsay statement to be introduced without the right to cross-examine this witness[?]
  • [I eliminated the third issue from exam consideration because it was not pertinent to the hearsay/6th Amendment questions.]

In his first issue, Appellant avers that the trial court erred when it admitted certain alleged hearsay statements of the victim. Appellant’s Brief at 13. The Commonwealth counters that the statements were properly admitted as excited utterances. In his next issue, Appellant argues that even if Shelly’s statements were admissible excited utterances, the Confrontation Clause barred their admission. Appellant’s Brief at 12. The Commonwealth counters that Appellant’s Sixth Amendment rights were not violated because Shelly’s statements were not testimonial within the meaning of the Confrontation Clause. Commonwealth’s Brief at 5.

The determination of “[w]hether Appellant was denied [his] right to confront a witness under the confrontation clause of the Sixth Amendment is a question of law for which our standard of review is de novo and our scope of review is plenary.” Commonwealth v. Dyarman, 2011 PA Super 245, 33 A.3d 104, 106 (Pa. Super. 2011) (citation omitted), affirmed, 621 Pa. 88, 73 A.3d 565 (Pa. 2013), cert. denied, Dyarman v. Pennsylvania, 134 S. Ct. 948, 187 L. Ed. 2d 785 (2014).

Statutory Materials

  • 18 Pa.C.S. § 901. Criminal attempt.
    • (a)  Definition of attempt. — A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.
    • (b)  Impossibility. — It shall not be a defense to a charge of attempt that because of a misapprehension of the circumstances it would have been impossible for the accused to commit the crime attempted.
    • (c) Renunciation. 
      • (1) In any prosecution for an attempt to commit a crime, it is a defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal intent, the defendant avoided the commission of the crime attempted by abandoning his criminal effort and, if the mere abandonment was insufficient to accomplish such avoidance, by taking further and affirmative steps which prevented the commission thereof.
      • (2) A renunciation is not “voluntary and complete” within the meaning of this subsection if it is motivated in whole or part by:
        • (i) a belief that circumstances exist which increase the probability of detection or apprehension of the defendant or another participant in the criminal enterprise, or which render more difficult the accomplishment of the criminal purpose; or
        • (ii) a decision to postpone the criminal conduct until another time or to transfer the criminal effort to another victim or another but similar objective.
  • 18 Pa.C.S. § 3701. Robbery.
    • (a) Offense defined. 
      • (1) A person is guilty of robbery if, in the course of committing a theft, he:
        • (i) inflicts serious bodily injury upon another;
        • (ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;
        • (iii) commits or threatens immediately to commit any felony of the first or second degree;
        • (iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury;
        • (v) physically takes or removes property from the person of another by force however slight; or
        • (vi) takes or removes the money of a financial institution without the permission of the financial institution by making a demand of an employee of the financial institution orally or in writing with the intent to deprive the financial institution thereof.
      • (2) An act shall be deemed “in the course of committing a theft” if it occurs in an attempt to commit theft or in flight after the attempt or commission.
      • (3) For purposes of this subsection, a “financial institution” means a bank, trust company, savings trust, credit union or similar institution.
    • (b) Grading. 
      • (1) Except as provided under paragraph (2), robbery under subsection (a)(1)(iv) and (vi) is a felony of the second degree; robbery under subsection (a)(1)(v) is a felony of the third degree; otherwise, it is a felony of the first degree.
      • (2) If the object of a robbery under paragraph (1) is a controlled substance or designer drug as those terms are defined in section 2 of the act of April 14, 1972 (P.L. 233, No. 64), known as the Controlled Substance, Drug, Device and Cosmetic Act, robbery is a felony of the first degree.
  • 18 Pa.C.S. § 3921. Theft by unlawful taking or disposition.
    • (a) Movable property. —A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof.
  • 18 Pa.C.S. § 2701. Simple assault.
    • (a) Offense defined. —Except as provided under section 2702 (relating to aggravated assault), a person is guilty of assault if he:
      • (1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another;
      • (2) negligently causes bodily injury to another with a deadly weapon;
      • (3) attempts by physical menace to put another in fear of imminent serious bodily injury; or
      • (4) conceals or attempts to conceal a hypodermic needle on his person and intentionally or knowingly penetrates a law enforcement officer or an officer or an employee of a correctional institution, county jail or prison, detention facility or mental hospital during the course of an arrest or any search of the person.
    • (b) Grading. —Simple assault is a misdemeanor of the second degree unless committed:
      • (1) in a fight or scuffle entered into by mutual consent, in which case it is a misdemeanor of the third degree; or
      • (2) against a child under 12 years of age by a person 18 years of age or older, in which case it is a misdemeanor of the first degree.
  • 18 Pa.C.S. § 2705. Recklessly endangering another person.
    • A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.


The appellate panel is composed by Judges Sally Updyke Mundy, Paula Francisco Ott and Victor P. Stabile. You are a law clerk to judge Mundy, who has been assigned to draft the opinion of the court. She provides you with the factual and procedural summary of the case noted above as well as some basic applicable caselaw and a brief statutory supplement. She explains that the panel will affirm the Appellant’s convictions and sentence, ruling specifically, among any other necessary findings, that the assignments of error regarding hearsay and the confrontation clause should be rejected. She then instructs you to write a detailed essay explaining the panel’s view of the case, using the applicable law to analyze the facts determined above, with the level of attention to detail expected of any student in the Fall 2015 Evidence Course.

Facts taken and modified for exam purposes from: Commonwealth of Pennsylvania v. Fields, 2015 Pa. Super. Unpub. LEXIS 3622 (Pa. Super. Ct. 2015).