Evidence Exam Feedback Memo
Fall 2011

LAW 6330 (4 credits)
Professor Pedro A. Malavet
Fall 2011


Procedure for Examination Review. I will be available to discuss examination results during the Spring semester, beginning after Thursday, February 9, 2012, after post the feedback memorandum. Exams and the respective Feedback Memorandum will be available beginning on that date, after I post this memo to the website. You may pick up the exam from me. Please bring your exam number with you, as I keep them organized by exam number. You may make a copy of your exam answer and keep it for your records, but you have to return the original to me because faculty are required to keep exams for a few semesters.

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.

Results in General. As I expected, the average for the TRUE/FALSE was 11.4 of 12. The top 20 scores had perfect TRUE/FALSE and few got fewer than 11 as the average suggests. But, I was especially pleased that the average score for the essay was over thirty (30) percent better than last year.The results of the multiple choice were an average score of 11.47 correct. Since I use these for general course coverage, I am always pleased to see such a result.

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. 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, taken together with all the accompanying doctrines and caselaw as we discussed them in class.

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.

1. In a criminal trial for possession with intent to distribute cocaine, DEA agent John Smith identified a brick of cocaine offered by the prosecution as evidence seized from the only defendant’s boat. During agent Smith’s testimony, some pieces of cocaine detached from the brick and covered the witness stand (the brick had lost part of its plastic seal while in transit, and some bits became lose). While testifying for the government, the next witness, Neo Anderson, gathered up some of the cocaine pieces and swallowed them, in view of the jury and the presiding judge. The court may deny the defense’s objection seeking a ruling that witness Neo Anderson is unqualified to testify and his entire testimony should be stricken from the record.

True   False

Answer: True. The testifying-while-stoned scenario. The court may properly refuse to strike the testimony. A combination of the Van Meerbeke case mentioned at note 4 at page 475 of the casebook, 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. I chose to go with “testifying while stoned” over “Buckaro Banzai” or “Spiderman” this year.

2. Only a witness who has been qualified as an expert for a particular trial may give testimony in the form an opinion.

True   False

Answer: False. In addition to expert opinion testimony under FRE 702, lay opinion testimony may be admitted under FRE 701.

3. In a criminal appeal based on an evidentiary question, the court finds that the error was not properly preserved for appeal. The appellate court also finds that the trial court erred in admitting the evidence. Under the Federal Rules of Evidence, the appellate court may have the authority to reverse the conviction.

True   False

Answer: True.  The court may still find that a substantial right of the party was affected and use “Plain Error” under FRE 103(e).

4. In a criminal trial for vehicular homicide arising out of an automobile accident, the state offers the testimony of an eyewitness who will identify the defendant, Drew Johnson, as the person driving the car that hit him and that the traffic light controlling Johnson’s lane was red. 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 Drew Johnson because it makes it more likely than it would be without that evidence that Johnson’s negligence was the proximate cause of the accident. The court must exclude this evidence under Rule 403.

True   False

Answer: False. My usual “are you paying attention to ‘unfairly’ prejudicial” question. The court in Bryan v. State, 450 N.E.2d 53, 57-58 (Ind. 1983), found that the evidence was indeed prejudicial, as any inculpatory evidence in a criminal trial would be, but it was not unfairly prejudicial. Therefore, it passes muster under, or, more accurately, it ought not be excluded using FRE 403. The court’s analysis demonstrates legitimate relevance and probative value, and none of the factors in favor of exclusion. Also, there is no mention of “substantially outweighed” even if you were to read “prejudice” as being the same as “unfair prejudice”. Admit.

5. The law of evidence must always proceed on the basis that the jury will follow the court’s instructions where those instructions are clear.

True   False

Answer: False. Yet another variation of absolute statements that contradict the general rule and make the statement false. Bruton, tells us that while the general rule is that juries follow instructions, there are occasions when that cannot be assumed, so “never” and “always” are false, and “generally” is true. Finally, the reason advanced by the majority in Delli Paoli was to tie the result to maintenance of the jury system. "Unless we 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, the jury system makes little sense." We agree that there are many circumstances in which this reliance is justified.  This is a clear statement of the general rule regarding instructions, but it does not always apply.

6. After certain evidence is found to be relevant, it may be excluded if its probative value is substantially outweighed by a danger of unfair prejudice and undue delay.

True   False

Answer: True. I updated the 403 exclusions to account for the restyled language. I also mixed up two to account for the rule’s statement that “a danger of one or more of the following”.


7. Given the definition of hearsay of FRE 801(a), (b) and (c), when offered as proof that George went to Orlando on Thursday, Frank’s testimony that on Wednesday George said “I am going to Orlando tomorrow,” is hearsay.

True   False

Answer: True. Express assertion of state of mind used to prove future action in conformity therewith. It will be perfectly admissible under 803(3), as the easy application of Hillmon part I and Pheaster part I, but it IS hearsay. Item 17 in the hearsay quiz and a repeated example in class.

8. 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 riot, his girlfriend Katy Faver, after observing Schoenstein running North on Main Street, said to approaching police officers —“Officers, officers, he went that way,” while pointing to the South on Main Street, is hearsay.

True   False

Answer: False. Duck Soup and verbal act both lead us non-truth use from which guilt may be circumstantially inferred. Facts from the classic movie comedy Animal House yet again, with the “hearsay” designation being false. For some reason, A&E had an anniversary documentary on Animal House all weekend when I was writing the exam, so I could not resist the repeat.

9. During civil commitment proceedings against Ohio State University junior William Jones, his parents, who are trying to institutionalize him in a psychiatric treatment facility, present testimony that he told several classmates last weekend: “I am Tebow, Tim Tebow, Heisman Trophy Winner.” Given the definition of hearsay of Rule 801(a), (b) and (c), this evidence is not hearsay.

True   False

Answer: True. This is non hearsay. A variation on “I am Napoleon Bonaparte.” As we discussed in class repeatedly, this statement is offered to prove lack of mental capacity (and generally absolutely ridiculous on multiple levels that should be clear to any Gator), and it is nonhearsay.

As I noted in class, this is the position taken by our casebook authors and by me in this area. Others, such as professor Graham, take the position that this should be treated differently (though they ultimately agree that it is nonhearsay). Plus, you are judged in my class in accordance with how the material is taught in class.

This one is more akin to the “I am Woody Allen” in our class problem, since of course Mr. Tebow is a very real person. But he is not an Ohio State U. Junior. Naturally these are laboratory conditions, in a real case, this statement would have to be accompanied by evidence that he was not kidding. You may notice that which university the allegedly mentally ill student comes from is our bowl opponent.

10.   In a criminal case for assault and battery, during his case-in-chief, defendant Don offers the testimony of William that alleged victim Vince was a “belligerent, fight-picking fella.” During its case-in-rebuttal, the prosecution offers the testimony of the Reverend Wilson that defendant Don was a “violence-prone person.” The prosecution’s rebuttal evidence is inadmissible under the Federal Rules of Evidence.

True   False

Answer: False. The government may offer this evidence under 404(a)(2)(B)(ii) which allows a direct attack on defendant when he attacks the character of the alleged victim.

11.   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 must be excluded.

True   False

Answer: False. FRE 404(a)(2)(C) allows the prosecution to rehabilitate the character of a homicide victim based on any evidence that the victim was the first aggressor, not just a character attack on the victim.

12.   In a criminal case for assault and battery, during his case-in-chief, defendant Don offers the testimony of the Reverend Wilson that defendant Don was a “peaceful, non-violent person.” During its case-in-rebuttal, the prosecution offers the testimony of Coach White that alleged victim Vince was a “peaceful, non-violent man.” The prosecution’s rebuttal evidence is inadmissible under the Federal Rules of Evidence.

True   False

Answer: True. Defendant Don has opened the door to attacks on his character only by presenting evidence of his good character. 404(a)(2)(A), unlike the homicide situation, and unlike attacking Vince’s character, evidence of defendant’s good character outside a homicide case opens only one door to rebuttal: prosecutorial attack on defendant’s pertinent character trait not rehabilitation of the alleged victim.

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, together with the applicable common law, statutory, and constitutional rules, doctrines, and caselaw as you studied them in your Fall 2011 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.

State v. Britain

(Before the First DCA of Florida)

George H. Britain appeals his conviction for aggravated battery with great bodily harm, disability or disfigurement. The applicable statute and jury instruction are as follows:

  • 784.045 Aggravated battery.—
  • (1)(a) A person commits aggravated battery who, in committing battery:
    • 1. Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or
    • 2. Uses a deadly weapon.
  • (b) A person commits aggravated battery if the person who was the victim of the battery was pregnant at the time of the offense and the offender knew or should have known that the victim was pregnant.
  • (2) Whoever commits aggravated battery shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.


  • The Florida Supreme Court:
    Standard Jury Instructions in Criminal Cases
  • 8.4 AGGRAVATED BATTERY, 784.045, Fla. Stat.
  • To prove the crime of Aggravated Battery, the State must prove the following two elements beyond a reasonable doubt.  The first element is a definition of battery.
    • 1. (Defendant)
      • [intentionally touched or struck (victim) against [his] [her] will].
      • [intentionally caused bodily harm to (victim)].
      • Give 2a or 2b as applicable.
    • 2. (Defendant) in committing the battery
      • a. intentionally or knowingly caused
        • [great bodily harm to (victim)].
        • [permanent disability to (victim)].
        • [permanent disfigurement to (victim)].
      • b. used a deadly weapon.
        • Definition.  Give if 2b alleged.
    • A weapon is a “deadly weapon” if it is used or threatened to be used in a way likely to produce death or great bodily harm.
    • (http://www.floridasupremecourt.org/jury_instructions/instructions.shtml

Appellant George Britain argues on appeal that the trial court erred in admitting into evidence the recording of a 911 call. Britain asserts that allowing the recording into the record violated the applicable rules of evidence and deprived him of his right of confrontation under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

Prior to trial, the State indicated its intention to introduce the recording of a portion of the 911 call made by Elizabeth Britain, appellant’s eighteen-year-old daughter and the victim’s niece. The State had not been able to obtain service on Ms. Britain and she was not going to testify at trial. The State asserted that the 911 recording contained Elizabeth Britain’s excited utterances, and its admission would not violate Crawford because the statements on the recording were not testimonial and enabled the police and Emergency Medical Services to meet an ongoing emergency. Defense counsel argued that, to the extent Ms. Britain told the 911 operator that her aunt was hurt and bleeding, her statements were not testimonial. Defense counsel contended, however, that the identification of Ms. Britain’s father was testimonial. Prior to trial, presiding Judge Aymer L. Curtin, heard the tape recording of the 911 call in chambers, and considered proffers that were consistent with the state witnesses’ testimony at trial; he ruled that the recording was admissible.

The victim, Mary Robinson, testified that on March 27, 2010, she had taken Ms. Britain to her home. While there, appellant rode up on his bicycle and he and Robinson engaged in a conversation about Ms. Britain and her boyfriend. George Britain expressed his opinion that the boyfriend was dangerous. Appellant Britain said he was going to “mess up” Robinson if Ms. Britain got hurt. When Robinson responded that she was going to help his daughter, George Britain hit her in the face and knocked her to the ground. She sustained multiple fractures to her face.

During Robinson’s testimony, the prosecutor played the recording of Ms. Elizabeth Britain’s 911 call, as follows:

THE 911 OPERATOR: 911, how may I help you?

MS. BRITAIN: My auntie is hurt bad. (Inaudible)

THE 911 OPERATOR: What’s the address, ma’am? What’s the address?

MS. BRITAIN: 1110-25 Southeast Second Avenue in Gainesville. Please come. It’s really bad.

THE 911 OPERATOR: Listen to me. (Inaudible)

MS. BRITAIN: Oh, God. (Cries)

THE 911 OPERATOR: Yes, ma’am. Calm down and give me the address. Okay. Come on, you can do it.

MS. BRITAIN: 1110-25 Southeast Second Avenue.

THE 911 OPERATOR: What’s the apartment?

MS. BRITAIN: It’s a house.

THE 911 OPERATOR: What’s the telephone number you’re calling from, area code first.

MS. BRITAIN: 352-792-1234. My dad’s a punk ass bitch. You need to help me. My auntie is on the ground, just bleeding.

THE 911 OPERATOR: You need to tell me what happened.

MS. BRITAIN: My auntie was talking to him and I turned around and she was on the ground. She was talking to my dad. His name is George Britain.

THE 911 OPERATOR: Listen, ma’am, I’m trying to understand what happened. Did somebody assault your daughter?

MS. BRITAIN: No, somebody assaulted my auntie. My father assaulted her, he hit her in her face and her nose is pouring blood.

THE 911 OPERATOR: Stay on the line with me, okay?

MS. BRITAIN: Yes, ma’am.

THE 911 OPERATOR: Your aunt was assaulted?

MS. BRITAIN: Yeah, she’s bleeding. The sidewalk is full of blood.

THE 911 OPERATOR: We’re getting you some help. Okay. Hang with me, okay?


THE 911 OPERATOR: Is your father still there?

MS. BRITAIN: Yes, ma’am, he is still over her.

THE 911 OPERATOR: We’re going to send an ambulance to her and the police. Okay?

MS. BRITAIN: Yes, ma’am.

Robinson testified that she yelled for her niece to make the 911 call. She also testified that her injuries required her to spend two days in the Emergency Intensive Care Unit, and two additional weeks in hospital. She was transfused with two (2) pints of blood shortly after arriving at the emergency room and required one hundred ten (110) stitches to close the lacerations and stop the bleeding. Her treatment included one facial reconstruction surgery. Mrs. Robinson also testified that she has put off the cosmetic reconstruction recommended by her physicians because that procedure will not be covered by her medical plan.

The state also called to the witness stand one of the arresting officers, Sargent Joseph Smith, of the Gainesville Police Department. Sgt. Smith testified that he arrived at Mrs. Robinson’s home about three (3) minutes after the 911 call ended, based on the referral of the Combined Communications Center of the Alachua County Sheriff’s Office. He saw Robinson lying on the sidewalk, bleeding. Elizabeth Britain came out of the house to meet the officer, and Sgt. Smith described her a crying, shaking, and “clearly extremely upset and nervous.” Sgt. Smith also testified that George Britain was not at the scene of the crime when he drove up to it in his patrol car (Mrs. Robinson testified that George Britain rode off in his bicycle when he heard the siren of Sgt. Smith’s approaching patrol car; she told the officers as much when they first arrived). Sgt. Smith and his partner, officer Tammy Johnson, arrested George Britain at his home later that day without incident.

The state’s last witness was one of the two Emergency Medical Technicians in the ambulance that came to Mrs. Robinson’s aid. EMT Susan Jones testified that she drove up in her ambulance about one minute after the police patrol car arrived and found Mrs. Robinson lying on the sidewalk bleeding profusely; she also saw Elizabeth Britain crying, shaking and “clearly upset” and “concerned for her auntie’s safety.” Jones and her partner stabilized Mrs. Robinson and transported her to North Florida Regional Medical Center’s Emergency Room. Jones further testified that she remained with Mrs. Robinson as she was treated for severe facial lacerations and multiple facial fractures that required immediate medical attention from emergency physicians. Elizabeth Britain accompanied Mrs. Robinson on the ambulance. EMT Jones observed while an emergency physician examined Ms. Britain and prescribed a mild sedative that was immediately administered by Jones. Jones’ statements about Elizabeth Britain had been included in the prosecution’s proffer to judge Curtin, but this information was not presented to the jury.

After the State rested, the defense rested without witnesses. The jury returned a verdict finding George Britain guilty as charged.

On appeal, as below, appellant George Britain argues that the recording was in part testimonial. After obtaining the address and telephone number and learning there was a need for medical assistance, the 911 operator asked “what happened,” which elicited Ms. Elizabeth Britain’s identification of appellant. Appellant asserts that this question turned the exchange into an interrogation for the purpose of gathering evidence, and the responses to the 911 operator thereafter were testimonial.


You are a law clerk to the Honorable William A. Van Nortwick, Jr., Judge of Florida’s First District Court of Appeals. Judge Van Nortwick has been assigned to write this opinion by agreement with his two fellow panel members, Chief Judge Robert T. Benton, II, and Judge Ronald V. Swanson. Judge Van Nortwick instructs you to craft a well-reasoned memorandum consistent with the following parameters:

The DCA will rule that the admission of the 911 call was not in error, because the judges agree that admission of this evidence was appropriate under the applicable rules and under the confrontation clause. Judge Van Nortwick would like you to detail how such a ruling would be explained by a Federal Appellate Court applying the Federal Rules Evidence, as restyled and effective on December 1, 2011, together with the applicable common law, statutory, and constitutional rules, doctrines, and caselaw as you studied them in your Fall 2011 Evidence course.

Facts taken, and modified to fit examination purposes, from London v. State, 2011 Fla. App. LEXIS 18592 (Florida 1st DCA, 22 November 2011).


When I printed my grading notes for this essay question, I realized I had written 30 pages! Let me first give you the grading sheet, and then the highlights.

FRE 103: 50 points

103(a) Substantial Right; 103(a)(1) Government moved in limine and defense objected on constitutional grounds; definitive ruling; no need to renew at trial.

FRE 104(a): 50 points

Bourjaily preponderance of the evidence standard; Abuse/ De novo as to what; bootstrapping?; Credibility & ID for jury; must reach 803 to avoid possible constitutional issue; inadmissible evidence may support the findings.

FRE 401-402: 100 points

What exactly were the statement(s)?; use the statute, 784 (a)(1) “struck” and “caused”; use the instruction on “struck” and “caused”; 784(2) “bodily injury or disfigurement”; articulate evidential hypos here; direct evidence Crim. Stats.; ultimate facts of the case; reference relevance and materiality separately; evidence becomes “potentially” admissible (unless otherwise…).

FRE 801(a),(b) and (c): 80 points

801a, oral assertions; b, declarants Britain AND Operator; c.1. not while testifying; c.2 TOMA? Yes Britain, no 911 operator; continue description of what was asserted from relevance.

FRE 802: 40 points

Policy; facts as to unavailable witness.

FRE 803(2): 60 points

FRE 803(2) and Arnold elements tied to the facts.

FRE 803(2) Independent Corroboration: 60 points

Bootstrapping as an issue, and the boatload of independent corroboration, including some that was not admissible. This was the place to discuss lay opinion allowing “looked upset” wording.

Crawford/ Davis / Bryant / Bull.: 80 points

6th & 14th Am.; history and policy behind the change in 6th amendment law. Show you understood that this is a series of cases that provides the new rule.

“Emergency Doctrine” Analysis: 100 points

Davis, Hamon, Bryant, Arnold “Emergency” doctrine using the facts; note no gun/weapon against need for rescue and medical response.

FRE 403 Balancing: 60 points

Lack of cross-examination Unfair Prejudice; TOMA use of 911 operator’s words is UP as well.

FRE 105 instructions: 40 points

Say nothing about 104(a) findings; manageable U/P of TOMA for 911

Basic Summary

This fact-pattern was most similar to the 2008 examination, with a few interesting wrinkles. Here it was not the victim who was calling 911, it was an eyewitness. She was describing what she saw which would qualify under 803(1), but she was under excitement, so the prosecution went with 803(2). The absence of a weapon, let alone a firearm, was an interesting wrinkle, as was the fact that the defendant was on a bicycle, not a car. That takes away two of the usual discussions for the need for exigency in Criminal Procedure. So you had to focus on the need to rescue the victim and to render medical services as the “ongoing emergency” situation.

The prosecution moved prior to trial (i.e., in limine!) to admit the evidence and the defense raised objections on constitutional grounds, and then really to the ID of the defendant, which was the major issue here. You still needed to reach the rules because constitutional questions are to be avoided if possible, but the big question was if the ID of defendant as the perpetrator was admissible.

FRE 104. In the 104 section, you had to at least discuss 104(a) and Bourjaily’s preponderance of the evidence standard in a way that showed that you understood that the judge had to make findings of fact as to the elements of the hearsay exception —the excitement causing event and that she was acting under its effects. You know further that the judge heard the tape, which would put him in a position to judge these things for himself as required by the rule. The coincidence problem, that the jury will have to make its own decisions about this, and that judge could not instruct them about what he had concluded were also appropriate discussions here. The Malavetism for foundational factual findings was that the court had to find the “predicate facts.” References to credibility and the ultimate ID of the defendant being issues for the jury were also acceptable here. I also gave you some glaring inadmissible evidence that supported the admission to get discussion of that aspect of 104(a). “Bootstrapping” should also be discussed here, and in a separate section in the 803(2) section.

FRE 401/402. Naturally, you had to discuss the 401/402 standard. When articulating the evidential hypos. You had the statute available to use to establish how her statements contributed to prove totally or partially elements of each of the charges of which defendant was convicted. I gave you the statute and instruction so that you could articulate specific evidential hypos for the evidence in controversy, the 911 tape and its transcript. The critical use was to identify the attacker, and to separate what the 911 operator said from what the young woman said.

I also gave points here for discussions of the liberality of the standard, that it adopted the most liberal of the four alternatives, and that 402 precludes irrelevant evidence from being admitted but makes relevant evidence potentially admissible.

FRE 801(a)(b)(c). Go through the elements in detail of the oral assertions by the operator as declarant and by Britain as declarant. The critical difference was that Britain’s statements were offered for TOMA purposes but the operator’s questions were only offered to provide context.

FRE 802. Go over the policies against admitting hearsay and how they might apply here.

Let me once again use my posted notes from Arnold to construct the structure of the 803(2) and Crawford/Davis analysis. I have put my own comments within the quoted text in boldface type within brackets.

[CB] United States Court of Appeals for the Sixth Circuit 486 F.3d 177 (2007).

[CB] Under FRE 803(2), a court may admit out-of-court statements for the truth of the matter asserted when they "relat[e] to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." To satisfy the exception, a party must show three things. "First, there must be an event startling enough to cause nervous excitement. [Such as your father brutally attacking your family protector auntie.] Second, the statement must be made before there is time to contrive or misrepresent. [This was being described as it happened, it could qualify under 803(1), but it is more reliable and probative under 803(2) when you combine excitement and immediacy (at least in the logic of the rules)] And, third, the statement must be made while the person is under the stress of the excitement caused by the event. [The court could hear the tape, you had the description of the excitement causing event (seeing her father brutally attack her auntie), her demeanor on the call and the testimony of the police officer and EMT who reached her location as to her appearance."] Haggins v. Warden, Fort Pillow State Farm, 715 F.2d 1050, 1057 (6th Cir. 1983). All three inquiries bear on "the ultimate question": "[W]hether the statement was the result of reflective thought or whether it was a spontaneous reaction to the exciting event." Id. at 1058 (internal quotation marks omitted).  [Plenty of evidence of spontaneity in the recording and in her state as captured in the recording and observed by police officer and EMT]. We apply abuse-of-discretion review to a district court's application of the rule.

[CB] Contrary to Arnold's suggestion, our cases do not demand a precise showing of the lapse of time between the startling event and the out-of-court statement. The exception maybe based solely on "[t]estimonythat the declarant still appeared nervous or distraught and that there was a reasonable basis for continuing [to be] emotional[ly] upset," Haggins, a conclusion that eliminates an unyielding requirement of a time line showing precisely when the threatening event occurred or precisely how much time there was for contrivance. The district court made this exact finding, a finding supported by evidence that, in the words of Haggins, "will often suffice." [The officer who first responded described her condition, the EMT did so as well and added inadmissible information about medical treatment that could be used for corroboration. Independent evidence confirms a brutal assault and the time lapse was quite small. Rational lay opinion testimony under 701 as to her being “upset”.]

[CB] Case law supports the view that Gordon made the statement "before there [was] time to contrive or misrepresent." HOW? [Here she was calling 911 during the assault and describing it as it happened.]

[CB] The dissent, though not Arnold, raises the concern that the uncorroborated content of an excited utterance should not be permitted by itself to establish the startling nature of an event. But this issue need not detain us because considerable nonhearsay evidence corroborated the anxiety-inducing nature of this event: [NOTE THE FACTORS] (1) Gordon's act of calling 911 [here the young woman called as the assault was ongoing]; (2) the fear and excitement exhibited by the tenor and tone of Gordon's voice during the 911 call [these items would have been obvious to the court upon listening to the tape]; (3) Gordon's distraught demeanor personally observed by Officers Brandon and Newberry upon their arrival at the scene  [here too we have a responding officer who saw the declarant as the call ended and the EMT who saw her state after the call all the way to the hospital]; (4) Gordon's renewed excitement upon seeing Arnold return [not an issue here, but seeing the auntie injured and taken by ambulance certainly suggests ongoing excitement]; and (5) the gun matching Gordon's description found underneath the passenger seat in which Arnold was sitting [this was an assault without a weapon, so this is not an issue here].

[Also, in this case you have lots of corroboration: the victim testifies, the injuries suffered by the victim, the physical description of the crime scene by the officer and the victim and treatment information supplied by the EMT and the victim.]

[CB] The dissent's view of the excited-utterance question prompts a few responses. First, the dissent, though not Arnold, contends that the district court failed to place the burden of proof on the government. Yet the district court, in making this ruling, concluded that "the elements to allow the exception have been demonstrated by the government." And we, too, have placed the burden on the government. [Here the government sought the admissibility finding and the court reviewed the statement in camera after allowing defense counsel to raise a specific objection. The evidence presented by the prosecution supports the findings by a preponderance.]

[CB] Second, the dissent claims that, instead of saying "he's fixing to shoot me," Gordon said "he finna shoot me," thereby eliminating the '''s'' between he and finna (which the dissent finds to be a slang term for "fixing to"). But Arnold has not challenged the district court's factual determination that Gordon told the 911 operator "he's fixing to shoot me," and accordingly this issue is not properly before us. Nor, at any rate, is it clearly the case, or even somewhat clearly the case, that the dissent properly interprets the tape-given the rapidity and anxiety with which Gordon spoke during the 911 call. This difficulty reinforces not only our decision to defer to the district court's interpretation of the tape but also our decision that indeed it was an excited utterance. [Although you do have both the recording and the transcript here, there is no argument made as to what was said.]

Crawford and its Progeny. I divided this discussion into two grading blocks, one was to develop the history of the new caselaw applicable to the 6th Amendment and what the underlying policies are.  These are extensively developed in other feedback memos, so I will not repeat that here. The second grading cluster was for using the fact-pattern to justify classifying the statements by Ms. Britain as non-testimonial by using the “emergency” doctrine. The medical emergency and the need to get the victim rescued from the attack first, and then to the emergency room for medical assistance were the critical items of discussion. Noting that non-truth uses do not offend the sixth amendment was important to justify the contextual, non-TOMA use of the operator’s side of the conversation.

FRE 403. For 403, I gave a few points for just about any discussion. If you wanted to score high, however, you had to take the time to develop the need for the evidence, how very material it was, and the reliability of it given the independent corroboration (Ohio v Roberts would have been a good fit here). Many students picked up that the Bryan multiple choice question contributed to the “unfair prejudice” discussion (a nice touch). Talking about the “punk ass bitch” epithet here was nice. But the most critical item was to discuss that the TOMA use of the operator’s part of the conversation was unfairly prejudicial and had to be managed.

FRE 105. Managing the unfair prejudice of the TOMA use of the operator side of the conversation was the big one here, and the management of the coincidence issue by saying nothing to the jury about it. But I rewarded most discussion with at least a few points.