Evidence Exam Fall 2016

LAW 6330 (4 credits)

Professor Pedro A. Malavet
Fall 2016



  • Exam is eighteen (18) pages long; twelve (12) True/False (40%) and one Essay (60%).
  • True/False is to be answered on the paper exam not in ExamSoft.
  • Laptops must be on ExamSoft from the start of the exam.
  • Essay Page Limit: 18,000 characters all-inclusive, equivalent to ten (10) pages.
  • No Pencils. Permanent ink pen only. Penalty of ten percent.
  • No abbreviations or acronyms of any kind, other than FRE and TOMA.
  • Use proper names. Do not substitute the names persons with generic labels like “appellant” or “defendant”.
  • No electronics other than ExamSoft laptops. Includes headphones of any kind.
  • Consult annotated Rule-book only during the exam.
  • Instructed result only. “Dissents” fail.
  • Four-hour time limit.
  • Turn exam in to the Office of Student Affairs.
  • Penalty for each minor rules violations, except length: 10% of part points.
  • Penalty for major violations is failure and referral for discipline.





Open Rules. “Open-Rules” means that you may have with you during the examination your required 2016 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. ExamSoft users would of course simply delete.

No Pencils. The exam must be written in permanent, dark-color ink; under penalty of a 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.

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 ExamSoft system at the start of the examination and remain in the ExamSoft 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: 18,000. 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 provide 10 blank pages, the character limit is: 1800 x 10 = 18,000 characters. Each student is responsible for keeping track of answer length. The ExamSoft 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.

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

Exam Review. I will be on sabbatical in the spring and therefore not generally available for office hours, including exam review. However, I will schedule time for exam review. Exam review will start after I post the feedback memorandum on the course website on Thursday, February 9, 2017. Instructions for the review process and the dates when I will be available for it 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.

Exam Accommodation. If you have received an accommodation that requires variation from these instructions, you must follow the instructions provided by the Office of Student Affairs. Exam accommodations must be handled through the Office of Student Affairs in order to maintain the anonymity of the grading process as well as to ensure that university policies and resources are properly applied to each individual situation. While the Office of Student Affairs may consult with me as necessary and as they deem advisable, we must all ensure that accommodation policies are properly and fully applied while at the same time the anonymous grading of the exam mandated by Levin College of Law rules is maintained.



           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, as amended.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, as amended, together with the applicable common law, statutory, and constitutional rules, doctrines, and caselaw as you studied them in your Fall 2016 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 testimony of Delta that while in Gainesville, Florida, on Thursday, December 1, she heard Carmen say “Saturday I’m going to Atlanta to see the Gators play in the SEC Championship game” is offered as proof that Carmen went to the SEC Championship game on Saturday, December 3. Given the definition of hearsay of Federal Rule of Evidence 801(a), (b) and (c), this evidence is hearsay.

    True                    False

  2. During civil commitment proceedings against University of Iowa freshman Joseph Miller, 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 hearsay.

    True                    False

  3. The law of evidence generally proceeds on the basis that the jury will follow the court’s instructions where those instructions are clear and the circumstances are such that the jury can reasonably be expected to follow them.

    True                    False

  4. 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

  5. In a criminal trial for possession with intent to distribute heroin, DEA agent Mary Johnson identified a bag of heroin powder offered by the prosecution as evidence seized from the only defendant’s home. During agent Johnson’s testimony, some heroin powder came out of the bag and fell on the witness stand (the bag had lost part of its plastic seal while in transit via FEDEX, and some powder came out as she handled it). While testifying for the government, the next witness, Timothy Leary, gathered up some of the heroin powder with his finger and swallowed it, in view of the jury and the presiding judge. The court must grant the defense’s objection seeking a ruling that witness Leary is unqualified to testify and his entire testimony should be stricken from the record.  

    True                    False

  6. 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

  7. Given the definition of hearsay of FRE 801(a), (b) and (c), when offered as proof that passenger Charles assumed the risk of an auto accident on account of impaired driving in riding in David’s car, David’s testimony that “I told Charles before he got in that I should not have drank that fourth Bombay Sapphire martini at the Bourbon Bar five minutes before coming to pick you up,” is hearsay.

    True                    False

  8. 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

  9. 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.

    True                    False

  10. 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

  11. 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

  12. Under FRE 702, expert testimony deduced from a well-recognized scientific principle or discovery, is 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



            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, as amended, together with the applicable common law, statutory, and constitutional rules, doctrines, and caselaw as you studied them in your Fall 2016 Evidence course. Any additional sources of law will be expressly noted in the exam fact-pattern and accompanying statutory supplement, if any.
            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. “Dissents” fail.
     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.
     No Abbreviations or Acronyms. You may not use any abbreviations or acronyms other than FRE or TOMA in your essay. You must use the proper names of the persons mentioned in the fact-patter, you may not substitute titles such as “defendant” or “appellant” for the proper names. You may use just the last name to refer to teach person.

Ward v. State

Supreme Court of Indiana
[Brackets or ellipses in boldface are mine,
those in normal type are original to the opinions.]

Dee Ward was charged with battering J.M., his girlfriend. During treatment for her injuries, J.M. told a forensic nurse that Ward was her attacker. When J.M. failed to appear for depositions or to testify at trial, the State relied on her statements to the forensic nurse to implicate Ward, over Ward’s objection that the evidence was “testimonial hearsay” that violated his federal and State confrontation rights.

Facts and Procedural History

As of April 2013, Ward and J.M. had been dating and living together off and on for about two years and had a child together. During that time, J.M. also sometimes lived with her mother and step-father. Ward visited the parents’ home often, and they were familiar with his truck.

On the afternoon of April 10, 2013, J.M.’s step-father saw Ward’s pick-up truck pull in front of his house. J.M. got out from the passenger side walking “very gingerly,” Tr. 144, and then the truck sped away. J.M. was hanging her head and crying as she came into the house. When her step-father asked what was wrong, J.M. responded, “I’m hurt” and “Where’s mom?” Tr. 147. J.M. pulled down her pants to show her mother her buttocks and legs which revealed welts and bruising. Mother escorted J.M. to her bedroom and—over J.M.’s protests—told her step-father to call 911.

At about 2:24 p.m., paramedic Linda Hodge-McKinney (“the Paramedic”) received an “[a]ssault trauma” dispatch and arrived at the scene about three minutes later. Tr. 195. The Paramedic found J.M. lying on a bed in a fetal position crying, with extensive bruising on her body. When the Paramedic asked J.M. to rate her pain “[o]n a scale of one to ten, with . . . ten being the most amount of pain you’ve ever been in,” J.M. rated her pain a ten. Tr. 205-06. A police officer who arrived shortly after the paramedics also observed “[m]assive bruising, basically all over her body especially her legs and buttocks, welts, dark blue and black bruises. Pretty severe.” Tr. 161.

Concerned that J.M. may have suffered internal injuries, the Paramedic transported J.M. to a local hospital, administering intravenous pain medication along the way. Tr. 243. At the emergency room, forensic nurse Julie Morrison (“the Forensic Nurse”) treated J.M., observing that she was “obviously in a lot of discomfort” and “rolled up in a ball . . . in a near fetal position on one side, all hunched over, sort of in a protective sort of stance.” Tr. 242-43. When the Forensic Nurse asked what happened, J.M. stated that she had been “struck repeatedly with a belt,” Tr. 244, and that “it was her boyfriend Dee Ward” who beat her, Tr. 266. Meanwhile, the Forensic Nurse oversaw J.M.’s safety and discharge planning, classifying J.M. as a “no information patient” to prevent people (specifically the attacker) from learning her whereabouts. Tr. 290-91. Further examination and testing ruled out internal injuries, and J.M. was discharged to her parents’ home later that evening with referrals to two domestic-violence support organizations, a recommendation for counseling, a prescription for pain medication, and instructions for minimizing the swelling. Tr. 56-58; State’s Ex. 14, Ex. Confidential Vol. at 100-01.

The State initially charged Ward with B-felony criminal confinement, C-felony battery, C-felony intimidation, and A-misdemeanor battery and domestic battery. It later amended the charging information to include a second count of C-felony battery.

Ward filed a motion to exclude J.M.’s testimony, after she twice failed to appear for scheduled depositions. The State responded that J.M. did not have notice of the scheduled depositions because she had been reported missing shortly after the assault and was classified as a missing person. The trial court denied Ward’s motion. Over a month later, noting that J.M. was still a missing person and efforts by law enforcement to locate her had been unsuccessful, the State provided notice of intent to introduce J.M.’s statement identifying Ward as her attacker through the testimony and records of the Forensic Nurse. Following a pretrial hearing, the trial court granted that motion.

[You are instructed for exam purposes that at trial Ward did not challenge the testimony regarding what witnesses saw or heard regarding the nature of J.M.’s injuries, nor did he challenge the medical testimony regarding the nature of those injuries or the manner in which they occurred; he took a similar approach to related exhibits. His defense theory was that he had not caused J.M.’s injuries and that the only evidence identifying him as the perpetrator was inadmissible testimonial hearsay. In support of this defense, Ward presented alibi witnesses placing him away from his home on April 9, 10 and 11 of 2013 (they testified he was on a hunting trip with them). These witnesses also testified that persons other than Ward could access the keys to his truck and use it while he was away. Ward did not testify during his trial.]

At a bench trial, the trial court dismissed the criminal confinement charge on Ward’s motion, but found him guilty of the remaining charges. At sentencing, because of double jeopardy concerns, the trial court entered judgment of conviction on one count of C-felony battery and one count of A-misdemeanor domestic battery, then sentenced Ward to concurrent terms of four years and one year, respectively.

Ward appealed, arguing in part that J.M.’s statements were testimonial hearsay in violation of his confrontation rights under the Sixth Amendment and Article 1, Section 13 of the Indiana Constitution. The Court of Appeals held that Ward waived his Indiana constitutional claim by failing to separately argue that issue to the trial court, and that the challenged statements were non-testimonial and therefore did not violate the Sixth Amendment. Ward v. State, 15 N.E.3d 114, 119, 121 (Ind. Ct. App. 2014). We now grant transfer, thereby vacating the opinion of the Court of Appeals. See Ind. Appellate Rule 58(A)(2). Additional facts are set forth below.

[The Evidence and Testimony Relevant to the Forensic Nurse]

[T]he Forensic Nurse was serving in a dual capacity: obtaining information necessary for appropriate medical diagnosis and treatment as well as gathering evidence for use in a criminal prosecution. On this latter point, the record shows that upon referral to the Forensic Nurse, J.M. was presented with a “General Information” sheet. Page one contained the following “patient consent” section:

  • I hereby consent to a physical examination by a specially trained Forensic Nurse Examiner to discover and preserve evidence of the assault.

  • I understand that the report of the examination and any evidence or specimens collected will be released to law enforcement authorities. I also understand that I may withdraw my consent at any time for any portion of the examination.

  • I understand that collection of evidence may include photographing and sketching of injuries. Knowing this, I consent to having photographs taken for use as evidence. I do consent to the use of these photographs for educational purposes.

State’s Ex. 14, Ex. Confidential Vol. at 96 …. J.M. affixed her initials next to each paragraph and then signed the form. Also included on the first page were the Forensic Nurse’s signature and a social worker’s name. The page also included a space for information from “Law Enforcement” including spaces for the responding officer’s name, detective’s name, agency, case number, and phone number. Id. The case number was filled in, with a note that reads “police report made at [patient’s] mother’s home.” Id. Page two included blanks for the Forensic Nurse to fill in, describing ‘[l]ocation and physical surroundings of assault” and the alleged assailant(s) name(s), age, gender, ethnicity, and relationship to the patient. Id. at 97. Pages three and four included body maps, with the Forensic Nurse’s notes to indicate what type of injury was present, how the injuries were inflicted, and the identity of the assailant. Id. at 98-99.

With respect to the Forensic Nurse’s capacity as a medical caregiver the following exchange occurred:

  • Q. [Deputy Prosecutor:] Now what do you tell a patient about the purpose of your examination of them, when you’re doing this examination?

  • A. [Forensic Nurse:] Uh, I would introduce myself, tell them my role, tell them that I work in conjunction with their physician as a specially trained nurse to help evaluate any type of injuries that they might have based on the mechanism. And, again, working in conjunction with a physician, looking for injuries, first and foremost. At that point in time, after all the diagnostics are done, if they want lab tests, x-rays, then they are given the opportunity, if they so desire, to have forensic documentation done of their injuries as well. That is secondary though.

  • Q. [Deputy Prosecutor:] Now can you explain the basis [sic] steps in your examination?

  • A. [Forensic Nurse:] No matter what type of patient it is, any type of an assault patient or victim of violence we always do the same thing so I don’t miss anything. After getting their medical history, medications, speaking with them, asking where their discomfort is, how it happened, I would go from head to toe, and then from outer extremities then into the core of their body. But, again, it would only be done after we know their vital signs are okay, their respiration are [sic] okay, and whatnot.

    * * *

  • Q. [Deputy Prosecutor:] And is it important to determine who caused the injury for you[r] assessment?

  • A. [Forensic Nurse:] Yes.

  • Q. [Deputy Prosecutor:] And why is that?

  • A. [Forensic Nurse:] Especially, again, victims of any type of violence, it would be really important to know if they knew who the perpetrator was. Because a large part of the forensic nurse[’]s job is to collaborate with social work and the patient in order to ensure safety plan for that person if they are well enough to be discharged.

    * * *

  • Q. [Deputy Prosecutor:] And what difference does it make in knowing the identity of the person who caused the injuries?

  • A. [Forensic Nurse:] Your resources and safety plan would be a lot different, for instance, if you are attacked by a stranger, an unknown person in a parking garage, let’s say, downtown, versus somebody who might be a family member or someone you are living with. If there is a common child, if you share a child, because there might be visitation, custody issues. So it’s critically important that you know if you can find out who that person is.

  • Q. [Deputy Prosecutor:] And you consider that part of your role, not just the social workers?

  • A. [Forensic Nurse:] Uh, safety plans for a patient of violence are a critical part of my role. Again, it’s first a medical evaluation to make sure the patient is stabilized, to make sure no injuries are missed. And then safety plan resources discharge where they're going to go, do they have a safe place. Those are all critically important also for the forensic nurse.

Tr. at 232-33, 234-35 ….

Concerning the safety plan the following exchange occurred:

  • Q. [Deputy Prosecutor:] And what discharge plan was developed for [J.M.]?

  • A. [Forensic Nurse:] Mainly we just. . . We needed to make sure that she had a safe place to go. And I don't know how much I’m able to talk about this based upon. . .

  • Q. [Deputy Prosecutor:] Well, did you. . . So that was a concern to you?

  • A. [Forensic Nurse:] Oh, yeah.

  • Q. [Deputy Prosecutor:] Okay. And did you develop a discharge plan that attempted to ensure safety?

    A. [Forensic Nurse:] Yes.

    Q. [Deputy Prosecutor:] Also when she was in the hospital was she put on a certain, a specific status, based upon the history you’d been given?

  • A. [Forensic Nurse:] Yes. For. . .

  • Q. [Deputy Prosecutor:] What was that?

  • A. [Forensic Nurse:] . . .patients in her situation. And we also obtain permission from the patient before this is done. But patients like [J.M.] are made a no information patient in case someone who might have been the person who injured my patient would call the hospital looking for them, then we would have permission to say they were not there.

  • Q. [Deputy Prosecutor:] Okay. So she was put on that status of a no. . .

  • A. [Forensic Nurse:] No information patient.

Tr. at 290-91 (ellipses in original).

[T]he Forensic Nurse was unequivocal … that she needed to know the identity of J.M.’s abuser in order to develop a plan to protect J.M.’s safety. In essence the Forensic Nurse declared that she needed the information to provide J.M. appropriate treatment. [H]owever[,] other than placing J.M. on a “no information” status for the few hours she remained at the hospital that evening, nothing in the record of the trial of this cause establishes that the Forensic Nurse actually developed a so-called “safety plan.” At a pretrial hearing the Forensic Nurse testified that as a part of a discharge plan J.M. was referred “to Julian Center and Legacy House.” Tr. at 57. However no further details were provided. And J.M.’s medical records introduced at trial reveal, “p[atien]t parents state they are taking her home with them . . . Social work has cleared p[atient]t to go home.” State’s Ex. 14, Confidential Vol. at 181. …. Instead, upon release J.M. was instructed: “Take medications as prescribed,” “Return for worsening symptoms,” and “Follow up with primary care physician.” State’s Ex. 14, Ex. Confidential Vol. at 150. Indeed the “Depart Summary” reflects that J.M. was prescribed pain medication and experienced a “Routine Discharge” to “[h]ome.” Id. at 171.

[FRE 803(4)]

[Assume that Ward objected to and properly preserved for appeal his challenge to the admission of the statement under rule 803(4). In deciding how to discuss the language of Rule 803(4), consider these excerpts from the Indiana Supreme Court:]

[…] J.M.’s statements to the Forensic Nurse identifying Ward as her attacker [were] properly admitted under Evidence Rule 803(4). …There is no need to confine our view of valid “medical purposes” to treatment of only physical injuries, .... Indeed, the standard of care required the Forensic Nurse to take reasonable measures to address J.M.’s risk. The trial court correctly recognized the legitimate … medical purpose for asking J.M. to identify her attacker and properly admitted the Forensic Nurse’s testimony [under Evidence Rule 803(4). But, in this exam answer, the Indiana Supreme Court will find that both the trial and appellate courts erred in finding that the statements were not testimonial for Confrontation Clause purposes].

Perry specifically recognized that “in cases involving child abuse, sexual assault, and/or domestic violence,” the assailant’s identity is “pertinent to the diagnosis and treatment of . . . physical injuries[,] [a]nd . . . psychological counseling for domestic abuse, and significant to medical personnel in deciding how to discharge their patient.” Id. at 49-50 (emphases added) [referring to Perry v. State, 956 N.E.2d 41, 53-56 (Ind. Ct. App. 2011)].

Perry didn’t broach new ground. Courts from Indiana and other jurisdictions have held that patient identification statements to medical service providers serve the purpose of medical treatment including psychological counseling, in- or out-patient referrals, follow-up plans, safety plans, and discharge plans for victims of domestic violence or other violent crimes. See, e.g., McClain v. State, 675 N.E.2d 329, 330-31 (Ind. 1996) (stating child molestation victim’s identification statements made to therapist served the purpose of psychotherapy); Nash, 754 N.E.2d at 1024-25 (finding rape victim’s identification statements to ER nurse serve purpose of medical treatment because treatment includes that of emotional/psychological injuries and safe discharge); United States v. Joe, 8 F.3d 1488, 1493-94 (10th Cir. 1993) (stating rape victim’s identification statements to doctor served medical treatment because “effectiveness of the treatment received will depend upon the accuracy of the information provided to the physician,” and treatment addresses psychological/emotional injuries with appropriate counseling, safe discharge, and after-care); U.S. v. Balfany, 965 F.2d 575, 579-80 (8th Cir. 1992) (declaring child sexual abuse victim’s identification of attacker is important for medical treatment because identity affects the type of counseling provided during and after hospital stay); Palilonis v. State, 970 N.E.2d 713, 727 (Ind. Ct. App. 2012), trans. denied (finding rape/sexual assault victim’s general identification statements to nurse are for purpose of medical treatment because treatment includes psychological counseling and proper discharge).

Doctors and nurses in various clinical settings —including emergency room, primary care, surgery, and mental health facilities— are instructed they “must be prepared to engage patients around the issue of I[ntimate] P[artner] V[iolence] and provide assessment and referral.” Nancy Sugg, MD, MPH, Intimate Partner Violence: Prevalence, Health Consequences, and Intervention, 99 Med. Clin. N. Am. 629, 640 (2015) (emphasis added). Specifically, experts urge doctors and nurses to acknowledge the violence, assess patient safety, refer the victim for additional treatment or services, and document the injuries and the abuser. Id. at 641-44 (emphasis added). Indeed, a “forensic nurse is a nurse who provides specialized care for patients who are victims and/or perpetrators of trauma (both intentional and unintentional). Forensic nurses are nurses first and foremost,” even though they are also specially trained in injury identification, evaluation, and documentation. Int’l Ass’n of Forensic Nurses, (available at http://www.forensicnurses.org/?page=whatisfn ) (last visited February 19, 2016).

This comprehensive process of treatment for domestic-violence victims is not just for emergency rooms or forensic nurses —it is also part of the standard of care for surgeons, primary-care providers, pediatricians, and OB-GYNs. See American College of Surgeons, Statement on Intimate Partner Violence (2014) (stating it is the treating surgeon’s responsibility to care for the immediate injury and reassure the patient, but also to identify resources in his or her hospital and to help identify resources in the community); Megan H. Bair-Merritt, MD, MSCE, et. al., Primary Care-Based Interventions for Intimate Partner Violence: A Systematic Review, 46(2) Am. J. Prev. Med. 188, 192 (2014) (defining role of primary care providers as “identifying and responding to IPV”); Jonathan D. Thackeray, MD, Roberta Hibbard, MD, and M. Denise Dowd, MD, MPH, Clinical Report—Intimate Partner Violence: The Role of the Pediatrician, 125 Pediatrics 1094, 1096-98 (2010) (instructing pediatricians that intimate partner violence between parents affects children and to address it with assessments, referrals for counseling, and safety plans); Committee on Health Care for Underserved Women, The American College of Obstetricians and Gynecologists, Intimate Partner Violence, Committee Opinion Number 518, 119 Obstetrics and Gynecology 412, 415 (2012) (instructing that “[i]f the clinician ascertains that a patient is involved in a violent relationship, he or she should acknowledge the trauma and assess the immediate safety of the patient and her children while assisting the patient in the development of a safety plan” and that “[p]atients should be offered information that includes community resources (mental health services, crisis hotlines, rape relief centers, shelters, legal aid, and police contact information) and appropriate referrals”).

Ward Properly Preserved His State Constitutional Claim.

Before we can address Ward’s Indiana constitutional claim, we must first address the State’s threshold argument that Ward has waived this claim for appellate review—asserting that his “objections to the evidence were not based upon the Indiana Constitution, but rather upon the federal constitution.” Br. of Appellee at 12.

The State is, quite simply, mistaken—Ward expressly invoked both Constitutions in his objections. … when the State asked the Forensic Nurse what J.M. said about the cause of her injuries, Ward interjected, “I’m going to object to this as impermissible and testimonial hearsay under [the] Sixth Amendment, [and] Article 1, Section 13 of the Indiana Constitution.” Tr. 244-45. Ward clearly raised both state and federal constitutional grounds for his objection.


You are a judicial clerk for the Honorable Justice Robert D. Rucker. After meeting in conference with his Indiana Supreme Court brethren, he instructs you to write the following opinion.

The Indiana constitutional objection will be discussed in a draft that has been assigned to a different law clerk and you need not address it in any manner in your draft. The court will reverse Ward’s convictions and sentences, ruling specifically, among any other necessary findings, that the assignments of error regarding hearsay should be rejected but that under the confrontation clause should be sustained; the confrontation error requires reversal of defendant’s convictions and sentences. He then instructs you to write a detailed essay explaining the court’s view of the case as presented here, using the applicable law to analyze the facts determined above, with the level of attention to detail expected of any student in the Fall 2016 Evidence Course.

  • Facts taken and modified for exam purposes from: Ward v. State (Indiana Sup. Ct. 2016),
    citation will be provided in the feedback memo.