Evidence Exam Spring 2014

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






Open Rules. “Open-Rules” means that you may have with you during the examination your required 2013 Mueller & Kirkpatrick Federal Rules of Evidence supplement. No substitutions will be allowed. Your supplements may be annotated with handwritten notes, but shall not have any attachments other than tabs to mark the location of specific material (the tabs may have on them numbers and the short titles of the referenced material and nothing more). Only handwriting may cover the blank spaces and the original printing on the supplements. The use of stick-on labels or paper, white-out or any other method to eliminate any of the original printing is prohibited. Other than the addition of handwritten notes and tabs, the supplements shall be in their original condition, no material may be added nor may any material be removed in any way. The supplements must be in their original bound form at the start of and throughout the examination.

Honor/Conduct Code. You are bound by University Student Code of Conduct, the College of Law Honor Code and my rules. You certify compliance with all applicable rules by submitting your examination for grading. Violations of any applicable rule(s), should be reported to me or to pertinent authorities preferably before or during the examination. Serious violations of these rules shall result in a failing grade and in my referring the matter to the Honor Committee or to pertinent college or university conduct authorities. Less serious violations may result in a reduction in your final grade.

Read the Entire Exam. PLEASE READ THE ENTIRE EXAM BEFORE YOU BEGIN TO ANSWER ANY QUESTIONS. The exam consists of twelve (12) True or False questions (Part I), for forty percent (40%) of the exam grade; and one (1) essay problem, for sixty percent (60%) of the exam grade. Please take these weights into account when you design your answer schedule.

Limited Space. All students must answer the True/False section by selecting the answer on the exam itself. You must answer the essay question in the space provided in the separate answer packet for handwriting or typing, or with your laptop using the Examsoft template. Do not use bluebooks. While I encourage you to outline the answers before you start to write, do not include scratch paper or any additional material with your completed exam. If you wish me to ignore any part of your answer, simply cross it out and I will ignore it. If you should run out of space because of cross-outs, you may use an equivalent amount of space on the back of the page in the answer packet.

Write Legibly. If I am unable to read your answer, it is as if you had written nothing. The exam must be written in permanent, dark-color ink; under penalty of a maximum ten-percent reduction in grade, you may not use pencils, erasable ink, or felt-tip markers.

Do Not Un-staple Pages. Do not take the exam apart (except that you may take the answer packet apart if you are using a typewriter). If you do, you MUST RE-STAPLE IT. You must also turn in every page of the examination, not just the ones that you use.

Scratch Paper. You may use blank scratch paper to outline your answers and take notes during the examination.

Typing. If you are typing your answer, you must stay within the margins and write only one line of text per line of space given to you.

Electronic Exam Taking. You may take the examination electronically, using specialized software that ensures that you can only use your laptop to write your essay answer. All laptops must log-into the Exam Soft system at the start of the examination and remain in the Exam Soft answer only environment for the entire examination period. Only the essay section may be answered electronically. For the other sections, you must write your answer on the exam itself. Answer space shall be limited to 1800 characters (including spaces and carriage returns) for each blank page in the examination. That is enough for 24 lines of double-spaced text in courier type, size 11 for each page. Since I provided 12 blank pages, the character limit is: 1800 x 12 = 21,600 characters. Each student is responsible for keeping track of answer length. The Exam Soft window constantly displays character count at the bottom of the screen. You may also use the length command to check character length. The penalty for exceeding the character limit will be a deduction from your essay score of a percentage equal to the percentage by which you exceeded the character limit.

NO OTHER ELECTRONIC DEVICE MAY BE USED DURING THE EXAM. Other than your laptop, you may not use any other electronic device during the exam. That includes, but is not limited to, cellphones, tablets, music players, headsets, smart-watches, etc.

Review. Exam review will start after I post the feedback memorandum on the course website on Friday, September 12, 2014. Instructions for the review process will be included in the memorandum.

You must stop work four (4) hours after THE SIGNAL TO START. Completed examinations must be turned in to The office of student Affairs.


Select the best answer to the question presented. In this section, do not look for “perfect” answers, just the most correct one among the two alternatives available to you, in light of the question or statement presented, viewed in the context of the federal rules of evidence and related doctrines and caselaw as we discussed them in class. You are bound by the restyled version of the Federal Rules of Evidence that became effective December 1, 2011.No explanations are required or allowed. Your answer will either be correct or incorrect, there will be no partial credit for incorrect answers. Circle the appropriate word or letter that you select as your response.

Do not assume any facts not given to you. While you are expected to draw reasonable conclusions from the facts given, you should not assume facts. In this section of the exam, “missing facts” suggest three possibilities: (1) you need to read the question again, i.e., “it’s in there somewhere,” (2) the fact is not necessary to the resolution of the question, or (3) I made a mistake and you may need to alert me to it (if you are convinced that this is what is going on, do not be afraid to ask the question of the proctors).

Do not look for issues that are not relevant to answering the question. The question asked determines the issues raised, read it carefully and answer the question I asked, with the best possible response among the alternatives given.

Applicable Rules. Assume that the applicable rules of evidence are the Federal Rules of Evidence in the restyled form that became effective December 1, 2011, together with the applicable common law, statutory, and constitutional rules, doctrines, and caselaw as you studied them in your Spring 2014 Evidence course.


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

  1. Defendant, Dr. Buckaroo Banzai, famed law professor, neurosurgeon, particle physicist, and rock-star, is charged with criminal destruction of property. Dr. John Whorfin is called as a witness by the defense in this criminal trial, with the expectation that he will testify that he, not the defendant, destroyed the valuable, highly-modified Ford F-150, by setting it on fire. Dr. Whorfin is a resident of the New Jersey Hospital for the Criminally Insane at Grover’s Mill. Prior to this offer of testimony, in separate proceedings alleging that he had murdered a hospital orderly during an escape attempt, Whorfin was found to be criminally insane and incompetent to stand trial. Among certain other personal quirks, he has publicly stated that he is a red Lectroid from Planet Ten and that he must return to the Eighth Dimension to rescue his army, in order to conquer the universe, starting with Planet Ten. The government objects that Whorfin is incompetent to testify. The court cannot possibly find Whorfin competent to testify.

    True False

  2. Under Federal Rule of Evidence 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

  3. 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

  4. 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

  5. U.F. freshman John Smith disappeared on September 19, 2013. Daniel Rhone is now on trial for his kidnapping and murder. The prosecution alleges that Mr. Smith was kidnapped from the parking lot nearest the Southwest Recreation Center in the early morning hours on that date. The prosecution offered as proof that John Smith went to Southwest Recreation Center, his roommate James Jones’ testimony that on the night of the 18th John said “I am going to go to the Southwest Recreation Center at 6:00 a.m. tomorrow.” Jones further testified that when he woke up at 7:00 a.m. on the 19th, Mr. Smith had left the dorm room. Given the definition of hearsay of Federal Rule of Evidence 801(a), (b) and (c), this evidence is hearsay.

    True False

  6. During civil commitment proceedings against University of Connecticut junior Moe Green, his parents, who are trying to institutionalize him in a psychiatric treatment facility, present testimony that he told several students last weekend: “I am Donovan, Billy Donovan, multiple National Championship Coach.” Given the definition of hearsay of Federal Rule of Evidence 801(a), (b) and (c), this evidence is hearsay.

    True False

  7. 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 Defendant Don’s co-worker Daniel Thayer that defendant Don was a “violence-prone person.” The prosecution’s rebuttal may be admitted.

    True False

  8. In a criminal prosecution for homicide, defendant Don testifies that alleged victim Vince started the fight between them that ultimately led to Vince’s death, 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

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

    True False

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

    True False

  11. During a trial for armed robbery, the state calls Sue Ellen. She is defendant John Robert’s ex-wife and she answered the door at the time of his arrest. The state offers her testimony that when J.R. saw the police approaching, he first ran to the back door, then hid in a closet after discovering a uniformed police officer standing guard in the alley. J.R. objects, arguing that proof of his behavior at the time of arrest is irrelevant. In a sidebar conference, his lawyer points out that J.R.’s arrest was based on an outstanding default warrant, issued two years earlier on unrelated charges. The court is not allowed to admit this evidence to prove guilt of the crime charged.

    True False

  12. Jordan Belfort enters into a settlement of a civil action filed by the Attorney General for the State of New York claiming that he violated state securities regulations when he defrauded investors while acting as their stockbroker. Belfort agrees to repay each investor 70% of their original investment and to refrain from doing business in the State of New York for a period of no less than ten years. The state then agrees to dismiss its suit. During the negotiations, Mr. Belfort admits that he used the invested funds to cover personal expenses. The U.S. Government later indicts Mr. Belfort for securities fraud and is prosecuting him. At trial, the government seeks to introduce Belfort’s admission about using the funds for personal expenses. Under Federal Rule of Evidence 408 this evidence is admissible because the privilege created by that rule does not apply in this situation.

    True False



Do not assume any facts not given to you. While you are expected to draw reasonable conclusions from the facts given, you should not assume facts. In this section of the exam, “missing facts” suggest three possibilities: (1) you need to read the question again, i.e., “it’s in there somewhere,” (2) I made a mistake and you may need to alert me to it (if you are convinced that this is what is going on, do not be afraid to ask the question), or (3) you need to indicate that you need to establish certain facts in order to provide a complete opinion. In this section of the exam, identifying missing facts that are necessary to a complete resolution of the issue may be precisely what you need to do in order to provide a proper response.

Do not look for issues that are not relevant to completing the exercise as instructed. The instructions determine the pertinent issues and how they must be handled in a carefully-crafted essay. Read them carefully and write accordingly. Evidence is a broad and complex course, I have crafted the issues narrowly, do not waste your time covering issues that the fact-pattern and your instructions as to the mandated result do not require you to address or resolve. No credit will be awarded for discussion of matters not relevant to the resolution of the problem.

Applicable Rules. Assume that the applicable rules of evidence are the Federal Rules of Evidence in their restyled form that became effective December 1, 2011, together with the applicable common law, statutory, and constitutional rules, doctrines, and caselaw as you studied them in your Spring 2014 Evidence course.

Citations. Since this is an open-rule exam, citation should be made to the appropriate rule, especially the Federal Rules of Evidence, statutory or Constitutional provision, etc. Case citations will be judged on a “close-enough” basis. Please keep in mind that my annotated versions of the rules are helpful shorthand references.

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

Limited Space. Please keep in mind that you are bound by the character length limit in Examsoft, and to the space provided in the hand- or typewriting packet.

Abbreviations. You may use reasonable abbreviations in your essay, provided that you identify the equivalent longhand the first time you make use of each abbreviation. You may not abbreviate the names of persons used in the problem.

Cleveland Lee Wright v. State of Arkansas

Court of Appeals of Arkansas, Division Two

(Text of the opinion modified for examination purposes)

Appellant Cleveland Wright appeals his convictions by a Pulaski County jury of first-degree domestic battering and fleeing, for which he was sentenced to a term of 780 months in the Arkansas Department of Correction. On appeal, he argues that admission of a police officer’s testimony violated the prohibition against hearsay and his rights under the Confrontation Clause of the Sixth Amendment to the U.S. Constitution.

Appellant was married to Ronique Wright, and they lived in an apartment with their children in Jacksonville, Arkansas. Early in the morning on February 22, 2012, Ms. Wright, bleeding from serious knife wounds and “fading in and out,” went to the apartment of her neighbor, Pamela Livings. Ms. Livings called 911, and Ms. Wright provided law-enforcement officers with a description of appellant’s vehicle. Officers subsequently located and pursued a vehicle matching the description on Pike Avenue in North Little Rock. Appellant led the officers through North Little Rock and Sherwood, driving sixty miles-per-hour on city streets and running through stop signs and red lights. He turned onto Highway 161 and increased his speed to ninety and ninety-five miles-per-hour, at one point passing a stopped school bus with flashing lights. He finally stopped after pulling into a driveway along Highway 161.

Dr. Robert Haley Shaw, a surgeon at Baptist Health Medical Center in North Little Rock, examined and operated on Ms. Wright. He determined that she had thirty lacerations, including a stab wound in her abdomen large enough for her intestine to protrude through the abdominal wall. She also had wounds on her chest, including one near the aorta, multiple wounds on her left arm and left hand, as well as a collapsed left lung.

R.J., the son of appellant and Ms. Wright, who was seven years old at the time of trial, testified that he was in the living room when he saw appellant stab Ms. Wright with a knife in the kitchen.

On April 12, 2013, the State filed an amended, three-count felony information against appellant in which the State alleged that on or about February 22, 2012, appellant committed the following criminal offenses: (1) Class B felony first-degree domestic battering; (2) Class D felony fleeing. In the information, the State requested that any sentence of imprisonment imposed on appellant for having committed first-degree domestic battering be enhanced pursuant to Arkansas Code Annotated section 5-4-702(a) (Supp. 2011), because he committed the offense in the presence of a child, his and Ms. Wright’s minor son, R.J.

Appellant’s jury trial was held on April 16-17, 2013. The jury found him guilty of having committed first-degree domestic battering in the presence of a child and felony fleeing. The jury sentenced appellant as a habitual offender, and the circuit court imposed the four consecutive sentences of imprisonment, which resulted in an aggregate sentence of sixty-five years pursuant to a sentencing order entered on April 22, 2013. Appellant filed a timely notice of appeal on May 16, 2013.

Appellant argues that the circuit court erred in denying an objection made by his counsel on the basis of the Confrontation Clause of the Sixth Amendment to the United States Constitution. For questions of constitutional interpretation, this court employs a de novo standard of review on the matters of law. Chambers v. State, 2012 Ark. 407, S.W.3d.

Appellant argues that the circuit judge erred in denying his hearsay and Confrontation Clause-based objection to State’s witness Jacksonville Police Officer John Alberson’s repeating statements made to him out of court by the victim, Ms. Wright, which included the statement that she and her husband had argued at their apartment. His attorney made a timely objection during the direct examination of Officer Alberson as follows:

  • Officer Alberson: With regard to what I do remember about Ronique Wright, what was her condition when I first saw her, she was bleeding from multiple puncture wounds. She had[,] I could tell[,] stab wounds in her hands, her mouth, around her neck area. She did have a shirt on but it was, I mean, she was just covered in blood.
  • She was in and out of a panic state. She was able to tell me what had happened[,] but I had her sit down.
  • I grabbed a white plastic lawn chair and actually had her sit down until the ambulance arrived on scene. And I got as much information from her as I possibly could on the suspect.
  • Deputy Prosecuting Attorney: Let’s talk about that for a minute. With regard to what information did she give you about the suspect?
  • Defense Counsel: May we approach, please?
  • The Court: Yes.

  • (Counsel approached the bench for a conversation with the circuit judge, out of hearing of the jury, as follows:)

  • Defense Counsel: Judge, it sounds like they’re going to offer testimony from Ms. Ronique Wright that was told to this officer. I have two objections on that. One is hearsay. Also, the other is that it violates the Confrontation Clause of the Sixth Amendment of the U.S. Constitution, also the Crawford case that supports it that this is testimony.
  • These were questions asked by this officer of Ms. Ronique Wright for the purpose of developing a case and prosecuting this case. And because of that and because I have no way of cross-examining her since she is not present here today, this violates the Sixth Amendment’s confrontation clause and it is also rank hearsay.
  • Deputy Prosecuting Attorney: My first argument, Judge, is that exception to hearsay under 803, you have present sense impression and also excited utterance. It would qualify—these statements would qualify under that.
  • And secondly, this is based on what she told him about the defendant and the car, the description of the car. A broadcast is put out. So that’s also basis of action.
  • Defense Counsel: These are all hearsay and testimonial in nature, Judge. Disallowed without her being present.
  • Deputy Prosecuting Attorney: Why they’re looking for the car, I mean, because she gave them that description.
  • The Court: I will allow it for that non-truth purpose of explaining the police response only.

  • (Then, in open court:)

  • Officer Alberson: With regard to what information did she give me about the person that did this to her, she advised me her and her husband had got into an argument at their apartment, which was actually across the parking lot, apartment 5B, I do believe, was their apartment. And that they had a son in the room, that was in the living room.
  • Defense Counsel: Judge, if we could approach.

  • (Counsel again approached the bench for a conversation with the circuit judge, out of hearing of the jury, as follows:)

  • Defense Counsel: Judge, I have a continuing objection. I thought we just discussed this that he was going to give a description of the car that he obtained from her. Because we’re not going in to the circumstances of this case. That’s clearly testimony that he has elicited. This is—the testimony they offer that it violates the hearsay rule and the Confrontation Clause, Judge.
  • Deputy Prosecuting Attorney: Is the Court —has the Court made a ruling with respect to the hearsay exception?
  • The Court: Well, initially I allowed it for the limited purpose of explaining why the police went looking for the car, but you have gone way beyond that, so the evidence is clearly hearsay.
  • Deputy Prosecuting Attorney: I mean, she has been stabbed and she’s trying to relay this information to the officer.
  • Defense Counsel: Keep your voice down.
  • Deputy Prosecuting Attorney: Is it a hearsay —so can I continue?
  • The Court: I say that’s an exception. I will not allow it under 803(1) but I will allow it under 803(2) excited utterances. You may continue.
  • Defense Counsel: Judge, this is not just a hearsay argument.
  • The Court: Okay.
  • Defense Counsel: This is also a Sixth Amendment Confrontation Clause argument under the Crawford case … it’s testimonial.
  • The Court: That’s denied. That’s denied, it was an emergency. Have a seat. Thank you.

Appellant claims that Ms. Wright’s statements are inadmissible hearsay and testimonial for Sixth Amendment purposes. He further claims that Officer Alberson’s on-scene questioning of the victim, Ms. Wright, was not conducted to address an on-going emergency.

The record before the court indicates that Ms. Wright was not available to testify at appellant’s trial, for reasons that cannot be attributed to the defendant/appellant, and appellant had not had a previous opportunity to cross-examine her.

Statutory Materials

5-26-303. Domestic battering in the first degree.

  • (a)  A person commits domestic battering in the first degree if:
    • (1) With the purpose of causing serious physical injury to a family or household member, the person causes serious physical injury to a family or household member by means of a deadly weapon;
    • (2) With the purpose of seriously and permanently disfiguring a family or household member or of destroying, amputating, or permanently disabling a member or organ of a family or household member's body, the person causes such an injury to a family or household member;
    • (3) The person causes serious physical injury to a family or household member under circumstances manifesting extreme indifference to the value of human life;
    • (4) The person knowingly causes serious physical injury to a family or household member he or she knows to be sixty (60) years of age or older or twelve (12) years of age or younger; or
    • (5) The person:
      • (A) Commits any act of domestic battering as defined in § 5-26-304 or § 5-26-305; and
      • (B) For conduct that occurred within the ten (10) years preceding the commission of the current offense, the person has on two (2) previous occasions been convicted of any act of battery against a family or household member as defined by the laws of this state or by the equivalent laws of any other state or foreign jurisdiction.
  • (b)  
    • (1)  Domestic battering in the first degree is a Class B felony.
    • (2)  However, domestic battering in the first degree is a Class A felony upon a conviction under subsection (a) of this section if:
      • (A) Committed against a woman the person knew or should have known was pregnant; or
      • (B) The person committed one (1) or more of the following offenses within five (5) years of the offense of domestic battering in the first degree:
        • (i)  Domestic battering in the first degree;
        • (ii) Domestic battering in the second degree, § 5-26-304;
        • (iii) Domestic battering in the third degree, § 5-26-305; or
        • (iv) A violation of an equivalent penal law of this state or of another state or foreign jurisdiction.

5-4-702. Enhanced penalties for offenses committed in presence of a child.

  • (a)  Any person who commits a felony offense involving homicide, §§ 5-10-101 -- 5-10-103, assault or battery, § 5-13-201 et seq., or domestic battering or assault on a family member or household member, §§ 5-26-303 -- 5-26-309, may be subject to an enhanced sentence of an additional term of imprisonment of not less than one (1) year and not greater than ten (10) years if the offense is committed in the presence of a child.
  • (b)  Any person who commits the offense of aggravated cruelty to a dog, cat, or horse under § 5-62-104 may be subject to an enhanced sentence of an additional term of imprisonment not to exceed five (5) years if the offense is committed in the presence of a child.
  • (c)  
    • (1)  To seek an enhanced penalty established in this section, a prosecuting attorney shall notify the defendant in writing that the defendant is subject to the enhanced penalty.
    • (2)  If the defendant is charged by information or indictment, the prosecuting attorney may include the written notice in the information or indictment.
  • (d)  The enhanced portion of the sentence is consecutive to any other sentence imposed.
  • (e)  Any person convicted under this section is not eligible for early release on parole or community correction transfer for the enhanced portion of the sentence.


You are a law clerk for the honorable Robert J. Gladwin, Chief Judge of the Second Division of the Court of Appeals of Arkansas. Chief Judge Gladwin heard oral argument on this appeal together with Judge Rhonda Wood and Judge Waymond M. Brown. The panel has designated Chief Judge Gladwin to write the court’s opinion on the appeal. The court will rule that Defendant/Appellant’s claim that the trial court erred in ruling that the statements should be admitted above a hearsay objection should be rejected because the court’s ultimate ruling on that objection was correct. However, the court of appeals will rule that the trial court erred in rejecting Defendant/Appellant’s claim that his rights under the Sixth Amendment were violated; the court will rule that the statements were inadmissible under the Sixth Amendment and the Crawford Doctrine. Chief Judge Gladwin instructs you to write a detailed essay explaining this result with the level of attention to detail expected of any student in the Spring 2014 Evidence Course.

Facts and text taken, and modified to fit examination purposes, from Cleveland Lee Wright v. State of Arkansas, 2014 Ark. App. 231; 2014 Ark. App. LEXIS 292 (Court of Appeals of Arkansas, Division 2).