Evidence Exam Fall 2020

LAW 6330 (4 credits)

Professor Pedro A. Malavet
Fall 2020

Instructions

INSTRUCTIONS AT A GLANCE:

Exam is fifteen (15) pages long; twelve (12) True/False (40%) and one Essay (60%).
Four-hour time limit. Examplify will allow you a single, uninterrupted, four hour time window to complete the examination.
The Office of Student Affairs will electronically distribute, proctor and collect the answers to this examination. You must follow all of their instructions.
The entire exam answer will be submitted through the Examplify system.
Essay Length Limit: 18,000 characters all-inclusive, equivalent to ten (10) pages.
No abbreviations or acronyms of any kind, other than FRE and TOMA.
Use proper names. Do not substitute the names of persons with generic labels like “appellant” or “defendant”.
Essay instructed result only. “Dissents” fail.
This exam is fully open-book. You will not be locked out of your computer by Examplify.
By submitting your exam, you certify that your work is original and that you received no assistance from another person in any part of your answer(s).
Penalty for each minor rules violations, except length: 10% of part points.
Penalty for major violations is failure and referral for discipline.

Four hour time limit. Examplify will allow you one single continuous four-hour window to complete the exam.

Electronic Exam Taking. You must receive, complete and upload your answer to my examination electronically due to the COVID-19 Pandemic emergency. The Office of Student Affairs has recommended the Examplify platform and that is what we will use.

Honor/Conduct Code. You are bound by University Student Code of Conduct, the College of Law Honor Code and my rules. By submitting your examination for grading you certify that you have complied with all applicable instructions and rules, in particular that your work is original and that you received no assistance from another person in any part of your answer(s), and further that you provided no assistance or information about the examination, including but not limited to access codes and user identifications, to any other person, in particular any member of this class who had yet to submit their completed examination. 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.

Essay Character Limit: 18,000. The answer shall be limited to 1800 characters (including spaces and carriage returns) per page-equivalent. That is based on an estimate of 24 lines of double-spaced text in a reasonable font and size, with reasonable margins for each typed or printed page. The exam will adopt a ten-page-equivalent limit: 1800 x 10 = 18,000 characters. Each student is responsible for keeping track of answer length. The Examplify window displays essay answer character length at the top 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.

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

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.

Exam Review. You are welcome to ask to see your marked exam after the start of the spring semester and I will have my assistant provide it to you (because we are required to archive the exams, you must examine it in the faculty support office). However, if you wish to discuss the exam with me, that type of exam review will start after I post the feedback memorandum on the course website and Canvas page on Thursday, February 11, 2021. Instructions for the review process and the dates when I will be available for it will be included in the memorandum.

GOOD LUCK!

GENERAL INSTRUCTIONS FOR PART I

Select the best answer to the question presented. In this section, do not look for “perfect” answers, just the most correct one among the two alternatives available to you, in light of the question or statement presented, viewed in the context of the federal rules of evidence and related doctrines and caselaw as we discussed them in class. You are bound by the restyled version of the Federal Rules of Evidence that became effective December 1, 2011, 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 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 2020 Evidence course.

PART I: TRUE OR FALSE (40%)

In this section, you must select either “True” or “False.” The statement, as drafted, when read in the context of a Federal Trial, is either True or False.

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 cannot exclude this evidence under Rule 403 based on this finding of prejudice.

True False
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
During civil commitment proceedings against University of Alabama senior William Jones, 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

During a criminal trial for fraud, the state calls Trey Parker. He is defendant Molly Maguire’s ex-boyfriend and he answered the door at the time of her arrest. The state offers his testimony that when Maguire 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. Maguire objects, arguing that proof of her behavior at the time of arrest is irrelevant. In a sidebar conference, her lawyer points out that Maguire’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
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
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 melee, his girlfriend Katy Faver, after observing Schoenstein running South on a grassy area of the Plaza of the Americas heading towards Union Road and Turlington Plaza on the campus of the University of Florida, said to approaching police officers —“Officers, officers, I saw the whole thing, he went that way, towards University Avenue” while pointing to the North towards Library West, is not hearsay.

True False
Donna Moore is charged with conspiracy to distribute cocaine. At her trial the prosecution presents the testimony of undercover police officer Smith who arranged to make a purchase of cocaine from her. He testifies that they agreed to meet at the McDonald’s on University Avenue near the Oaks Mall in Gainesville at 3:00 p.m. on Tuesday, May 14, 2019, where Donna had agreed to deliver four ounces of cocaine for which Smith would pay $10,000.00 in cash. Donna said that she would have the cocaine in the trunk of her car, and that Smith should have a bag with the money in it in the trunk of his car. Donna is at the McDonald’s at 3:00 p.m. that Tuesday and she is arrested by other officers in the parking lot after Smith gives her the bag containing the money and she opens her car trunk to place it in it, next to a bag that was already stored there. However, the bag that was in Donna’s car did not contain cocaine. In fact, no cocaine was found on Donna when she was searched pursuant to her arrest, nor in her car or in her house which were searched pursuant to valid warrants. During her case in chief Donna admits that she told Smith that she would sell him cocaine as he described, but she added that she intended to steal the money by giving Smith a fake bag and escaping in her car. During its case in rebuttal, the prosecution offers the testimony of Donna’s former boyfriend John, who testifies that he saw her sell cocaine to two people in the weeks before her arrest. One sale was for four ounces of cocaine and the other for two ounces. Donna’s lawyer objects: “This is character assassination, your Honor!” The court must sustain the objection.

True False
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 undue delay.

True False
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 is still given discretion to reverse the conviction.

True False
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
Following the loss in the SEC Championship Game, Alabama fan George drowns his sorrows about his team’s defeat at several Atlanta bars as he walks back to his car after the game. He then meets his pal John in the parking lot and gives him a ride back to their hotel in Buckhead. Later that night they are involved in an accident that seriously injures both John and George. John sues driver George to recover damages. During the defense case-in-chief George offers, as proof that John assumed the risk of an accident on account of an impaired driver, his testimony that “I told John before he got in the car that I really should not have had those four shots of bourbon half an hour ago.” Given the definition of hearsay of Rule 801(a), (b) and (c), this evidence is not hearsay.

True False
Defendant, Dr. Buckaroo Banzai, famed neurosurgeon, particle physicist, rock-star and law professor, 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

PART II: ESSAY PROBLEM (60%)

GENERAL INSTRUCTIONS FOR PART II

      Do not assume any facts not given to you. While you are expected to draw reasonable conclusions from the facts given, you should not assume facts. In this section of the exam, “missing facts” suggest three possibilities: (1) you need to read the question again, i.e., “it’s in there somewhere,” (2) I made a mistake and you may need to alert me to it (if you are convinced that this is what is going on, do not be afraid to ask the question), or (3) you need to indicate that you need to establish certain facts in order to provide a complete opinion. In this section of the exam, identifying missing facts that are necessary to a complete resolution of the issue may be precisely what you need to do in order to provide a proper response.
      Do not look for issues that are not relevant to completing the exercise as instructed. The instructions determine the pertinent issues and how they must be handled in a carefully-crafted essay. Read them carefully and write accordingly. Evidence is a broad and complex course, I have crafted the issues narrowly, do not waste your time covering issues that the fact-pattern and your instructions as to the mandated result do not require you to address or resolve. No credit will be awarded for discussion of matters not relevant to the resolution of the problem.
       Applicable Rules. Assume that the applicable rules of evidence are the Federal Rules of Evidence in their restyled form that became effective December 1, 2011, as amended, together with the applicable common law, statutory, and constitutional rules, doctrines, and caselaw as you studied them in your Fall 2020 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-book 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 Examplify.
     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.

United States v. Timothy Raven March

In the United States Fourth Circuit Court of Appeals
Appeal from United States District Court for the
Western District of North Carolina,
Asheville Division

Background and Procedural History on Appeal

On December 4, 2018, Timothy Raven March was charged in a Bill of Indictment with a single count of possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). On January 7, 2019, March made his initial appearance and was appointed counsel. On January 9, 2019, March was arraigned and pled not guilty to the count in the Bill of Indictment.

On July 17, 2019, March was charged in a Superseding Bill of Indictment with two counts of possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). On July 19, 2019, March was arraigned and pled not guilty to both counts in the Superseding Bill of Indictment.

March appeared for a jury trial on January 6, 2020, and January 7, 2020. At the close of the Government’s proof, March made an oral Rule 29 motion for a judgment of acquittal, which the Court denied. Upon the conclusion of March’s evidence, he renewed his Rule 29 motion, which the Court again denied. The parties thereafter presented closing arguments to the jury. The jury rendered a guilty verdict on both counts on January 7, 2020. He is currently serving his sentence of a minimum of ten years in a federal prison. March now appeals.

Facts at Trial

On September 14, 2018, Jackson County Sheriff’s Department Sergeant Gabriel Charles was on duty at Smoky Mountain High School in Sylva, North Carolina. [Trial Transcript at 4]. Sergeant Charles was working at a football game that evening between Smoky Mountain High School and Cherokee High School. The game was attended by several hundred people including parents, students, teachers, players, coaches and others. [Id. at 21]. At some point, Sergeant Charles received a text from a supervisor telling him to be on the lookout for March, who was reportedly at the game and was armed. [Id. at 5-6, 43]. The text Sergeant Charles received also contained a photograph of March. [Id. at 6].

After receiving the text, Sergeant Charles began searching for March. [Id. at 6]. Shortly thereafter, Sergeant Charles encountered an individual that he described as an American Indian male, with tattoos on his throat, a very short haircut, and some type of red jacket. [Id. at 11]. Sergeant Charles testified that the individual matched the photograph he received of March. [T. at 8]. When Sergeant Charles asked the individual for his name, he identified himself as Timothy March. [Id.]. After the individual identified himself, Sergeant Charles tried to grab him, but the individual pulled back and ran away from Sergeant Charles while reaching towards his own waistband. [Id. at 9]. As the individual was running, Sergeant Charles saw him drop a firearm and heard it make a metallic sound as it hit the ground. [Id. at 10]. Sergeant Charles retrieved the firearm, cleared it, and placed it in his pocket. [Id. at 11-13]. While he was doing so, the individual who dropped the firearm ran out of his sight. [Id. at 11]. The firearm the individual dropped was later identified as an Armi Tanfoglio, Model 38C, .380 caliber pistol (the “Armi Tanfoglio pistol”). [T. at 144].

Jackson County Sheriff’s Department Deputy Arnold Sharp testified that while he was searching for the individual who ran from Sergeant Charles, he encountered Henry Holloway, Nicholas Tegan, Joseph Johnson, Justice Diaz, and Peter Jackson shortly after their encounter with an individual armed with a pistol. [T. at 61]. At trial, Deputy Sharp testified about that encounter as follows:

When I got up to the area about where the new gym is I encountered a group of young men who were rather excited. They flagged me down, and I stopped just to briefly find out what they needed. They told me that a guy had just tried to carjack them and that they had taken a gun from him, and that they had the gun. And they told me that the male had proceeded on past the new gym towards Jones Street and Quality Plus.

[Id. at 61-62]. The young men told Deputy Sharp that “a guy had just tried to carjack them and that they had taken a gun from him, and that they had the gun.” [Id. at 61]. Deputy Sharp took possession of the firearm, the magazine, and the bullet. [Id. at 62]. The gun was later identified as a Glock Model 23, .40 caliber pistol (the “Glock pistol”). [T. at 139].

Deputy Sharp testified that when he encountered Holloway and his friends, he “stopped just to briefly find out what they needed.” [T. at 61]. He further testified that after quickly hearing what happened and seizing the pistol, he “told them to wait right there, that I was going to go on with the other officers” to search for the individual they encountered because he “did not know the status of [the suspect] and whether he was in custody or if they were still trying to find him.” [Id. at 62-64].

On a nearby road, Jackson County Sheriff’s Department Deputy Henry Landon was also searching for the individual Sergeant Charles had encountered earlier. [Id. at 89]. While he was driving his patrol car near the High School, he saw an individual who “met the description of Timothy March.” [Id. at 90]. Deputy Landon pulled over, got out of his patrol car, and ordered the individual to stop. [Id.]. The individual, however, ran away up a steep hill into a wooded area. [Id. at 91]. Deputy Landon pursued the individual, deployed his taser, and ultimately arrested him. [Id. at 94]. Deputy Landon said that the individual he arrested “was a male” with “two tattoos on his neck” who identified himself as Timothy March. [T. at 95].

Deputy Landon radioed to the other officers that he had located and arrested March on a nearby road. [Id. at 14]. Sergeant Charles came to the scene and confirmed that the individual Deputy Landon had arrested was the same person that had fled from him and identified himself as Timothy March. [Id.]. At the time of his arrest, March was wearing a white shirt and a red jacket. [Id. at 18, 118-19].

None of the young men who flagged down Deputy Sharp testified at the trial, but their description of what happened to them was recorded on Deputy Sharp’s body camera and, outside the hearing of the jury, the prosecution informed the court that it wanted to show the videotape to the jury. March’s trial counsel then objected to the admission of the videotape and any testimony regarding what the men had said on the night of the incident arguing that the statements by Henry Holloway, Nicholas Tegan, Joseph Johnson, Justice Diaz, and Peter Jackson were inadmissible hearsay under the Federal Rules of Evidence and the Confrontation Clause of the Sixth Amendment. The prosecution conceded that the men were not present at the trial and that defendant March had not had a prior to opportunity to cross-examine them. But it submitted that the court should overrule the defense’s objections.

The trial judge took a brief recess and examined the video recording from Deputy Sharp’s body camera in chambers. Before the jury was brought back to the courtroom, he found for the record that the video and audio showed that all the young men were nervous, and appeared to be scared and generally “excited” as they spoke to the officer. He would therefore admit their statements under the “excited utterances” exception to the hearsay rule. However, he found that the videotape was unfairly prejudicial and excluded it, replacing it instead with a transcript of what they said that was then introduced at the trial and read to the jury for the record. He also overruled the Confrontation Clause objection.

The statements by the young men showed the following. Henry Holloway, III, who Sergeant Charles identified as a former student-athlete at Smoky Mountain High School, said he was also at the football game that evening and he and his friends were leaving as the game had just ended. [Id. at 145-146]. Holloway was standing in the school parking lot with his friends when they were approached by an individual carrying a gun. [Id. at 147-149]. Holloway and his friends described that individual as having “tattoos, like, all on his arms and . . . neck[,]” “kind of short” hair, and wearing a “white tee” with “a couple of designs” and a “red jacket.” [Id. at 149]. According to Nicholas Tegan, the individual who approached them said he needed a ride and “requested the vehicle.” [Id. at 150]. When the individual got closer and had his back turned, Holloway “picked him up in a bear hug” and Justice Diaz said he, Diaz, “took the gun away and placed it on the ground.” [T. at 150-151]. After losing the gun, the individual ran away from Holloway and his friends towards the woods. [Id. at 151, 156]. Peter Jackson said he picked up the pistol, cleared the firearm and placed the firearm, the bullet, and the magazine on the ground. [Id. at 155, 156]. Joseph Johnson said the incident had occurred “just a minute ago,” before he and his friends flagged down Deputy Sharp. The others agreed. [Id. at 156].

The Evidentiary Questions & Law

The parties stipulated at trial that March had been convicted of a crime punishable by imprisonment for a term exceeding one year. The evidence that the firearms had been shipped or transported in interstate or foreign commerce and regarding March’s knowledge of his felony conviction, was uncontroverted. As the appeal notes, the issue “for the jury was whether March possessed those firearms.”

18 U.S.C. sec. 922(g) Provides:
(g) It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) who is a fugitive from justice;
(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;
(5) who, being an alien—
- (A) is illegally or unlawfully in the United States; or
  (B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)));
(6) who has been discharged from the Armed Forces under dishonorable conditions;
(7) who, having been a citizen of the United States, has renounced his citizenship;
(8) who is subject to a court order that—
- (A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
- (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
- (C)
  (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
  (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(9) who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

In order to convict the Defendant for possessing a firearm in violation of 18 U.S.C. § 922(g)(1), the Government was required to prove beyond a reasonable doubt that: (1) the Defendant knowingly possessed a firearm; (2) the Defendant has been convicted of a crime punishable by imprisonment for a term exceeding one year; (3) the Defendant knew he had been convicted of such a crime; and (4) the firearm had been shipped or transported in interstate or foreign commerce. 18 U.S.C. § 922(g)(1); United States v. Royal, 731 F.3d 333, 337 (4th Cir. 2013) (citation omitted); Rehaif v. United States, 139 S. Ct. 2191, 2200, 204 L. Ed. 2d 594 (2019) (“We conclude that in a prosecution under 18 U.S.C. § 922(g) . . . the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.”).

There is no requirement that the Government provide an in-court identification as part of establishing guilt beyond a reasonable doubt because “a courtroom identification is not required to show sufficient evidence of a defendant’s identity if other evidence of identity is sufficient.” United States v. Morris, 575 F. App’x 174, 176 (4th Cir. 2014) (citing United States v. Taylor, 900 F.2d 779, 782 (4th Cir. 1990)). As such, “[a] witness need not physically point out a defendant so long as the evidence is sufficient to permit the inference that the person on trial was the person who committed the crime.” Taylor, 900 F.2d at 782 (citing Delegal v. United States, 329 F.2d 494 (5th Cir. 1964); United States v. Darrell, 629 F.2d 1089, 1091 (5th Cir. 1980)). For example, the Fourth Circuit has found that a conviction under 922(g)(1) was supported by substantial evidence even though there was no in-court identification because “the jury heard extensive testimony from multiple witnesses who saw, chased, and apprehended [the defendant], and who recognized him as the same individual throughout the encounter” and a law enforcement officer “testified that he saw [the defendant] discard the firearm[.]” Morris, 575 F. App’x at 176.

Instructions for the Answer

You are a law clerk for United States District Court Judge Martin Reidinger, who is sitting by designation on a panel of the United States Fourth Circuit Court of Appeals. Judge Reidinger has been assigned to write the opinion on behalf of the appellate panel affirming the defendant’s conviction. The panel will rule that the trial court did not err in finding that the statements were admissible, in particular its ruling that they fit within the “excited utterances” exception to the hearsay rule and that their admission did not violate March’s Sixth Amendment Confrontation Clause rights. Except for the statutes and caselaw referenced here, you will assume that this case is governed by 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 2020 Evidence course. Explain the panel’s ruling in a detailed essay.

Facts taken and modified for examination purposes from an available court opinion: United States v. Larch, 2020 U.S. Dist. LEXIS 35775. The opinion was edited to change facts to fit exam parameters. All names have been changed to prevent confusion between the actual case and related opinion and the hypothetical exam question.