Evidence Exam Feedback Memo
Spring 2021

LAW 6330 (4 credits)
Professor Pedro A. Malavet
Spring 2021

INSTRUCTIONS FOR EXAM REVIEW

Procedure for Examination Review.

• Review must take place during the spring semester, I will not be available for this purpose after that.
• You must request and review the PDF of your marked up exam that I provide individually through CANVAS and read this feedback memorandum before seeking to schedule an appointment with me.
  
• After you review the exam on your own, you may schedule an appointment with me.
• Review Policy. Examination review is a good way to learn from your mistakes, and from your successes. I encourage you to review my feedback memo and your exam. I will be happy to sit down and discuss substantive matters with each student. I will first tell each of you what you did right. I will also gladly suggest ways to improve your exam-taking abilities.
• No Grade Changes. I want to make one thing perfectly clear: I have never changed an exam grade for any reason other than a mathematical error. Barring mathematical errors, your grade is not going to be changed. Grading is a time-consuming and difficult process. The only fair way to do it is to grade in the context of each class. I look for a fair overall grade distribution and follow the rank of each student within the class in awarding the final grade.

Exam Statistics

• Results in General. The TRUE/FALSE average was 11.75, significantly above last year's already-high average of 11.39 out of 12; three-quarters of the class had perfect scores; the lowest score was 10 of 12! The average score for the essay was just under 127 out of 360, down from the 151 averaged last fall. But that is not surprising. I varied the usual question by making this exam about the forensic sciences trilogy of cases starting with Melendez-Diaz and that was intended to be a significant challenge, given that I was administering two Evidence exams during the 2020-21 academic year. Still, as I discuss below, I thought you collectively adjusted well.
• Exceeding the Character Count. Most students stayed within the character limit. No major deductions for this. In fact, I do not recall any deductions for exceeding the character limit. That is not to say that it was not a challenge, however.

Specific Feedback

Rather than transcribing the full exam which is posted here as well, I will again simply provide the answers here in three forms. First, a short grading sheet, second a more detailed grading rubric, and third the explanation of the True/False and some specific thoughts on the essay answers and their successes and shortcomings.

I am having trouble uploading the PDF files to the webpage. I will post them on the CANVAS page. I am also limited in positing new files on the webpage, so please forgive the delays.

Grading Sheet for the entire Spring 2021 Exam

I have posted this in the course CANVAS page. Files section.

The True/False Explained

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

1. The 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
   
   TRUE. Changed CANNOT, which makes it FALSE, to GENERALLY, which makes it TRUE; “never” along with “always” would also be FALSE.. Using the term “generally” articulates the general rule, which makes the statement true. Bruton tells us that while the general rule is that we expect juries to follow instructions, citing Delli Paoli, there are occasions when that cannot be presumed, so “never” and “always” are false, and “generally” is true.
   
   
2. During civil commitment proceedings against Oral Roberts University 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 Noah, Joakim Noah, Two-Time Gator National Championship Winner.” Given the definition of hearsay of Federal Rule of Evidence 801(a), (b) and (c), this evidence is hearsay.
   
   True                      False
   
   False. Duck Soup. We know the statement cannot be true so it cannot be used for a truth purpose. It is circumstantial evidence of state of mind. The usual “I am Napoleon Bonaparte” scenario, but using Joakim Noah and Gator Basketball instead of football in homage to the spring NCAA Basketball Tournament.
   
   
3. 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
   
   False. Still false. Still amusing. Same as last fall. The testifying-while-stoned scenario. The court may properly refuse to strike the testimony just as it may strike it, but it is not required to do so as must would suggest. A combination of the Van Meerbeke case mentioned in the book notes, with my own observation of a trial that is described in the website and which I specifically addressed in class. There is no automatic disqualification here, so the word “must” is not accurate.
   
   
4. 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 hearsay.
   
   True                      False
   
   False. The Animal House scenario. It is nonhearsay on both the Duck Soup “it cannot be true” analysis as well as a verbal act, so “is hearsay” is false.  Again using a University of Florida context.
   
   
5. 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 may overrule the objection.
   
   True                      False
   
   TRUE. A question based on Problem 5-E. Drug Sale or Scam? At page 437 of the text. Fun! Using “may overrule,” which is true, rather than  “must sustain” or also “must overrule” which are false.
   
   
6. 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 wasting time.
   
   True                      False
   
   False. The rule says the court “may” indeed exclude on that basis, continuing my pattern of going through each of the six categories listed in Rule 403. So the rules allow it, and “cannot” or “do not” is the false given the rationales in 403. Once again, I have updated the 403 exclusions to account for the restyled language. Consistent with restyling, I am also using “may” for “has the authority to” and “must” for “is compelled” or “is obliged” to do so.
   
   
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
   
   TRUE. From the 2017 exam. A straight-forward use of 404(b)(2)(B). The prosecution may rebut an attack on Vince’s character BOTH with evidence of Vince’s good character and by attacking Don’s character trait for violence (or the lack thereof) which is indeed the “pertinent [character] trait” here. The prosecution is rehabilitating the character of the victim, and that door has been opened by Defendant Don and becomes a straight forward rebuttal under 404(a)(2)(B)(i).
   
   
8. Following the loss in the NCAA Basketball Tournament Round of 64, Virginia Tech fan John Smith drowns his sorrows about his team’s defeat at several Indianapolis bars (unwisely open during the pandemic) as he walks back to his car after the game. He then meets his pal George Jones in the parking lot and gives him a ride back to their rental house at the Brickyard Crossing golf course. During that trip, they are involved in an accident that seriously injures both Jones and Smith. Jones sues driver Smith to recover damages. During the defense case-in-chief Smith offers, as proof that Jones assumed the risk of an accident on account of an impaired driver, his testimony that “I told George before he got in the car that I really should not have had those four Bombay Safire martinis half an hour ago.” Given the definition of hearsay of Rule 801(a), (b) and (c), this evidence is not hearsay.
   
   True                      False
   
   TRUE. This is indeed nonhearsay under the non-truth use of Effect on Listener. Item no. 2 in the Hearsay Quiz and a variation that I always reference in class, but here modified to a spring event, March Madness, a theme in this spring exam. This scenario makes me think of Bill Murray’s cab driver saying “I should not have drunk all that cough syrup” from Stripes!
   
   
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
   
   TRUE. Comparing the language of FRE 413(a) to that of 404(a)(1) and 404(b)(1), updated to fit the restyling. In a sexual assault prosecution certain evidence of another offense or offenses of sexual assault may be admitted for any purpose to which they are relevant, including the Action-in-Accordance inference. True indeed. Please watch out for a variation that tests for awareness that this does not apply to an offense of any other kind. By referencing any crime, the statement would be made false.
   
   
10. 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 cannot find Whorfin competent to testify.
    
    True                      False
    
    False. Using “cannot,” which is false, instead of “may”, which is true. My own version of U.S. v. Lightly, loosely based on the Adventures of Buckaroo Banzai Across the Eighth Dimension. These are essentially the facts of US v. Lightly at page 528 of the casebook, the presumption of competency of FRE 601 applies even to persons about whom we have serious questions regarding their mental health. If the court then found that, though insane, the witness could understand the oath, had memory of the relevant facts, and could communicate what he saw or did, he may indeed be found to be a competent witness, therefore the alternative that the court must find him not competent or cannot find competent to testify are false and may find him competent is true.
    
    
11. 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
    
    TRUE. This is from Problem 5-R (now 5-Q “This is Criminal”). The criminal case exception of 408(a)(2) only applies when (a) evidence is indeed offered in a criminal prosecution, AND (b) the negotiating party was a government agency acting in its official capacity. That is precisely the case here with the state attorney general enforcing state securities laws. Straight-forward example of the exception. I changed John Ponzi, who gave a type of such schemes a name, with the name of the lead character in The Wolf of Wall Street.
    
    
12. In a criminal prosecution for sexual assault, defendant Joseph is pursuing a consent defense. Joseph offers the testimony of witness Matthew that victim Mary “is sexually very active” and “known as an easy mark.” The prosecution objects to this testimony. The court should overrule the objection. 
    
    True                      False
    
    False. The court should sustain the objection under FRE 412. This is straight from Problem 5-K (Now Problem 5-J, Ordeal of Leslie or Fred). The 412 protection of the victim against sexual character evidence of this sort applies, and none of the exceptions in FRE 412(b)(1) apply, this is rank prohibited sexual character evidence. Back to an apparently female victim. But note that essentialisms about gender and names are irrelevant as the rule applies to heterosexual or homosexual sexual assault victims.

Some Comments on the Essays

Abbreviations used during grading:

QDP or QDNP: Quote, Do NOT Paraphrase!!!!
CBER: not always in this order, but, Corroboration, Bootstrapping, Elements of the rule, Reliability (truth use).

In General

I threw you quite the curve by using a forensic report situation instead of the usual 911 call or other type of police emergency interrogation. But you all generally adjusted to that quite well. The fundamental error was to fail to realize that this court was following Melendez-Diaz v. Mass. and Bulcoming v. New Mexico and being very careful about Williams. You could opt to draw a bright line that disallows surrogate or substitute expert testimony altogether or to use the plurality in   Williams v. Illinois in a sensible way, at least given existing interpretations of  the equivalent of FRE 703 and the distinction between relying upon hearsay to form an independent opinion and relaying the contents of the report, notes or other hearsay authored by the non-testifying expert to the jury. The latter would be both an abuse of FRE 703 and a violation of the Confrontation Clause that presents testimonial hearsay to the jury if the forensic report was prepared during the course of an investigation.     

This came from a District of Columbia Court of Appeals decision.

• Facts taken and modified for examination purposes from the court opinion in Burns v. United States, 235 A.3d 758 (D.C. Ct. of App. 2020), 2020 D.C. App. LEXIS 329, 2020 WL 4875294. The opinion was edited to change facts to fit exam parameters. The names of everyone other than the presiding judges have been changed to prevent confusion between the actual case and related opinion and the hypothetical exam question.

I will post the Expanded Grading Rubric on the CANVAS page first and then expand on the discussion.