Evidence Exam Fall 2017

LAW 6330 (4 credits)

Professor Pedro A. Malavet
Fall 2017



  • Exam is sixteen (16) 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 Length 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 2017 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. I will also not award points for discussion beyond the length 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 8, 2018. 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 2017 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. Jordan Ponzi enters into a settlement of a civil action filed by former investors claiming that he violated state securities regulations when he defrauded those investors while acting as their stockbroker. Ponzi agrees to repay each investor 55% of their original investment and to refrain from doing business in the State of Georgia for a period of no less than ten years. The plaintiffs then agree to dismiss their suit. During the negotiations, Mr. Ponzi admits that he used the invested funds to cover personal expenses. The U.S. Government later indicts Mr. Ponzi for securities fraud and is criminally prosecuting him. At trial, the government seeks to introduce Ponzi’s admission about using the funds for personal expenses. Under Federal Rule of Evidence 408 this evidence is not admissible because of the privilege created by that rule.

    True                    False

  2. During civil commitment proceedings against Jane Mansfield, her siblings, who are trying to institutionalize her in a psychiatric treatment facility, present testimony that she told several people the previous week: “I am Melania, Melania Trump, the First Lady of the United States.” Given the definition of hearsay of Federal Rule of Evidence 801(a), (b) and (c), this evidence is hearsay.

    True                    False

  3. After certain evidence is found to be relevant, the rules do not allow it to be excluded when its probative value is substantially outweighed by a danger of needlessly presenting cumulative evidence.

    True                    False

  4. 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 may refuse to 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

  5. 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

  6. In a criminal trial for first-degree murder, the state offers the testimony of an eyewitness who will identify the defendant, Joseph Jones, as the person that fired ten shots into victim Nancy Smith. 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 Jones because it makes it more likely than it would be without that evidence that his intentional conduct was the proximate cause of the death. The court may admit this evidence under Rule 403.

    True                    False

  7. In a criminal case for assault, during his case-in-chief, defendant Don offers the testimony of William that Victim Vince is a “violent, fight-picking fella.” During its case-in-rebuttal, the prosecution offers the testimony of Rabbi Wolff that alleged victim Vince was a “peaceful, and non-violent man.” The prosecution’s rebuttal may be admitted.

    True                    False

  8. 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

  9. In a criminal prosecution for sexual assault, evidence of the defendant’s commission of any other sexual assault may be admitted to prove that on a particular occasion the defendant acted in accordance with the character or trait suggested by the other offense(s).

    True                    False

  10. The law of evidence cannot proceed 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

  11. During a criminal trial for fraud, the state calls Robert James. He is defendant Mary Peppard’s ex-boyfriend and he answered the door at the time of her arrest. The state offers his testimony that when Peppard saw the police approaching, she first ran to the back door, then hid in a closet after discovering a uniformed police officer standing guard in the alley. Peppard objects, arguing that proof of her behavior at the time of arrest is irrelevant. In a sidebar conference, her lawyer points out that Peppard’s 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

  12. In a criminal prosecution for sexual assault, defendant Joseph is pursuing a consent defense. Joseph offers the testimony of witness Matthew that victim Fred “is sexually very active” and “known as an easy mark.” The prosecution objects to this testimony. The court should sustain the objection.

    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 2017 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.

State v. Winnfield

In the Supreme Court of the State of Delaware
Appeal from the Superior Court of the State of Delaware, Newcastle

Facts and Procedural History

This matter comes before this Court on appeal from the Superior Court of Delaware, Newcastle. Jules Winnfield appeals his conviction by a jury on first-degree murder charges. The sole issue on appeal is the admissibility of an eyewitness statement identifying Winnfield as the perpetrator of the homicide and describing how it occurred.

Prior to trial, the state moved in limine to admit the recorded statement of this witness. The defense filed a motion opposing the admission of the statement on hearsay and Confrontation Clause grounds. After holding an evidentiary hearing, the trial court ruled the statement admissible, and provided the “Statement of the Case” that is transcribed below.


The facts necessary to understand the issues in this case take us through the parking lot of a north Wilmington apartment complex, through a police station and eventually to the tragic death of the State’s star witness, who is now unavailable to tell the story of what happened. Her death has caused an evidentiary quagmire that the State has asked the Court to rule on pretrial. The Court will do so by first discussing the story of the case, as understood through the lens of the deceased witness’ statements.

Holly Smith was a nearby Pennsylvania resident whose life put her in contact with drug addiction and its attendant personalities. By December, 2015, she had prior convictions for shoplifting and was actively on probation in Pennsylvania from a drug conviction. She had been to rehab, had been on home confinement, yet continued to battle her demons. She was living in the basement of her sister’s house, trying to stay clean; her success cannot be claimed with any certainty.
On December 3, 2015, Ms. Smith asked her sister Susan to drop Holly off at the family doctor’s office for a routine visit, assuring her sister that she would get a ride home from someone else. Susan was acutely aware of Holly’s drug use but believed Holly was capable of getting a ride. Once Susan left Holly, Holly proceeded to her doctor’s appointment and contacted “Marvin” (not otherwise specified) who lived in the Brandywine Apartments in North Wilmington, a short drive away from the doctor's office. Marvin invited Holly to visit and asked Holly to obtain illegal drugs (cocaine) for him to ingest when she arrived. Holly agreed to Marvin’s request.

Holly knew at least two individuals who could satisfy Marvin’s request: James Black and Jules Winnfield. Holly called James Black to request $60 in crack, but the battery on Black’s phone apparently died mid-order and she was unable to be certain the arrangement had been solidified. After waiting a while near the doctor’s office to see if Black got the message clearly, she tried Jules Winnfield. Winnfield responded affirmatively and offered to pick up Holly and bring her to Brandywine Apartments.

According to Holly, Jules Winnfield and a female picked her up in Winnfield’s car and drove her to Brandywine Apartments. Along the way, they engaged in casual conversation. At one point Winnfield asked Holly if she had seen James Black, who had recently been in custody. Holly told Winnfield she had heard that Black was out of jail, and Jules Winnfield asked Holly to reach out to James Black and ask him to bring the $60 in cocaine to the Brandywine Apartments.

At this stage in the narrative, Officer Omar Gonzalez asked if she had another $60 for more crack and Holly explained that she already had $60 in cocaine that she was procuring from Jules Winnfield. She had no more money and did not want another $60 in cocaine from James Black. According to Holly’s continuing statement, she knew Winnfield and Black were acquainted and assumed (incorrectly) that Winnfield simply wanted to see Black to say hello. She did not question why Winnfield wanted her to order drugs from Black, “an odd request given that Winnfield was a drug dealer,” Officer Gonzalez interjected. She continued that she accepted uncritically why Winnfield wanted her to engage in this ruse with Black, and obliged Winnfield anyway.

It was a fateful error. When Holly and Jules Winnfield got to the Brandywine Apartments, she still had not heard back from James Black with his dead phone battery. Winnfield left, asking Holly to get in touch with him if and when James Black contacted her. Marvin came out of his apartment, paid Winnfield for the cocaine and Marvin and Holly proceeded into Marvin’s apartment.

Just a few minutes later, James Black phoned Holly and, as requested, she asked Black if he could still deliver the $60 worth of cocaine they had previously discussed to her at the Brandywine Apartments. Black agreed. Holly immediately called Winnfield, who told her he was still in the parking lot and Winnfield would see Black when he arrived.

When Black arrived at the apartment complex, he pulled up in a pickup truck that Holly did not immediately recognize. She approached the truck to confirm it was indeed Black, at which point she realized Winnfield was approaching the truck on foot. Winnfield fired multiple shots into the truck, hitting Black and causing his demise.

Exactly where Holly was as the shots were fired is not entirely clear. What is certain, however, is that she was very quickly back in Marvin’s apartment. Winnfield had left for points unknown. Within minutes of returning to the apartment, she got a phone call from Winnfield threatening her life if she reported anything she had seen and directing her to get rid of her phone. Holly quickly removed the SIM card from the phone and flushed it down the toilet. She then put the phone between the cushions in Marvin’s apartment.

Police swarmed the area and found no one outside, only the victim still in his truck. About two-dozen officers and forensic technicians were in the area. Homicide detectives and forensic technicians studied the victim and his truck, took photographs and gathered evidence before Black’s body was removed by the county coroner and the truck was towed to the police evidence impound lot.

Meanwhile, other officers went around the apartment complex trying to find any witness to the crime. Two knocked on Marvin’s door. Holly and Marvin avowed they knew nothing about what had happened in the parking lot, but it was all a bit much for Holly. She walked away from the complex and, borrowing a friend’s phone, she called her sister Susan for a ride out of the area. Susan arrived shortly and quickly realized that Holly had been through an ordeal. Holly would only tell Susan that something horrible happened back at the apartment complex, at which point Susan told Holly it was essential that she return to the scene and tell the police what she knew.

Susan and Holly flagged down one of the swarming County police officers (Gonzalez).  Officer Gonzalez drove her to the police station and while doing so, switched on an audio recorder and asked Holly to “tell me what happened.” Thus, Holly gave her recorded statement concerning what had just happened. This court heard the recording in camera and it is beyond question that her mental state was one of extreme agitation and her statement was disjointed, punctuated by frequent bursts of “Oh my God,” and occasional questions by Officer Gonzalez.

The county officer brought Holly to the police station where the audio recorded statement was turned over to homicide detective Christopher Koons. Koons got identification and address information from both Holly and Susan. He also obtained a short statement from Susan describing Holly’s call to her and what occurred when she picked up her sister at the apartment complex. Detective Koons deemed Holly to be too upset for further questioning, he said during the pretrial hearing, when explaining what happened after that.  

After her interview in December 2015, Holly Smith was sent home while the investigation continued. It is unknown whether and when Ms. Smith relapsed into her drug addiction. What is known is that on August 16, 2016, Holly died of a fatal dose of chemicals. We are told she succumbed to an opioid analgesic called U-47700, which has a street name of “Pink,” a drug with 7.5 times the potency of heroin.

The State correctly surmises that Holly’s death casts the admissibility of any of her prior statement in doubt and has sought a ruling from the Court. Arguments are pressed for the admissibility of the statement, and they coalesce around common themes: F.R.E. 803(1) (present sense impression) F.R.E. 803(2) (excited utterance) and F.R.E. 807 (the residual exception). But the “elephant in the room” as to all of them is the Supreme Court’s jurisprudence on the Confrontation Clause. For if a statement violates the Confrontation Clause, it matters not that it may “fit” within a hearsay exception.


The trial court went on to rule that the statement was only admissible pursuant to FRE 803(2) (excited utterance), and not under the other exceptions urged upon it by the State. It also went on to rule that the statement was not barred by the Confrontation Clause.

The trial court also ruled that the audio recording of Holly’s police car statement would not be presented to the jury. Instead, a transcript of the recorded conversation was presented at trial reflecting the facts described in the trial court’s Statement of the Case. The State also introduced into evidence telephone records confirming that the phone calls described in Holly Smith’s statement occurred between telephones tied to the relevant parties around the pertinent time period. The State, however, did not have location information for the cell phones at the time of the calls because that data had been accidentally destroyed by the wireless telephone company.

“Marvin” was identified at trial as “Marvin Stoltz”. He did not testify at the trial because he was at the time a fugitive from justice. The court did not allow the jury to receive that information, it simply allowed police officer witnesses to testify that on the night of incident they had interviewed Holly and Marvin at the apartment and that Marvin had identified himself with photo identification as Stoltz. Those two officers also testified that Holly seemed “very jittery” and “scared” when they spoke to her in the apartment.

Susan Smith testified at trial about receiving her sister’s call and going to pick her up at the apartment complex. Susan added that her sister looked extremely “upset” and “scared” at the time. She also described how they came to flag down Officer Gonzalez.

The State presented photographs of the crime scene depicting the victim dead in his car. They further presented testimony from the County Coroner who conducted the autopsy on James Black stating that the victim died from multiple gunshot wounds. The wounds to the head and heart were fatal. Detective Koons testified as to Black’s identification based on fingerprints on file from his prior arrest record as well as identification of the corpse by his relatives.

The state did not have any eyewitness who saw defendant Winnfield in the apartment complex or its vicinity around the time of the murder. They also lacked an eyewitness to the actual shooting. Holly Smith’s statement was therefore critical to the State’s case.

The defense did not contend that Black had not been murdered. Instead, it presented an alibi defense, offering multiple witnesses who stated that Winnfield had spent the entire time around the occurrence of the murder detailing his car in a friend’s garage. Defendant Winnfield did not testify.

The jury unanimously convicted Winnfield of first degree murder. He was sentenced to life without the possibility of parole several weeks after the trial and he now appeals.


You are a judicial clerk for the Honorable Associate Justice Karen L. Valihura of the Supreme Court of the State of Delaware. She has been assigned to write the court’s opinion.

The court will reverse Winnfield’s conviction based on his Confrontation Clause objection to the admission of Holly Smith’s statements. The opinion will specifically, among any other necessary findings, rule 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 conviction and sentence.

She 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 2017 Evidence Course

  • Facts taken and modified for examination purposes from State v. Clark, 2017 Del. Super. LEXIS 82, 1-7 (Del. Super. Ct. Feb. 13, 2017). As this matter is yet to go to trial, the names of the parties and witnesses are fictitious.