Evidence Exam Feedback Memo
Fall 2014

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


Exam review will start after I post the feedback memorandum on the course website on Friday, February 6, 2015. Instructions for the review process will be included in the memorandum.

Procedure for Examination Review.

  • I will be available to discuss examination results during the Spring semester, beginning after Friday, February 6, 2015, when I post a feedback memorandum on my website.
  • You may pick up the exam from my Assistant, Ms. Karen Kays, in room 343. Please bring your exam number with you, as I keep them organized by exam number; you will also be asked for your student ID. 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.
  • If you are not physically in Gainesville, you are welcome to contact Ms. Kays via email and we will upload a scan of your exam to the course Sakai Site, and you will be able to access it using your gatorlink ID.
  • 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.

Other Comments

  • Results in General. The TRUE/FALSE was on the high side of the usual averages at 10.797 of 12. The average score for the essay was substantially lower at under 201 points out of 540.
  • Exceeding the Word Count. Many students exceeded the word limit, but it was by an amount so mathematically insignificant that it did not affect their grade. Only one of the 80 students who took the exam exceeded the limit by an amount that resulted in a significant deduction.
  • Class attendance and participation deduction. Attendance issues were dealt with before the exam, with those negatively affected being allowed to withdraw or taking a deduction at their selection. If you did not hear from me on this subject, then you met the requirements and did not suffer any deduction. After that, I took note of how students had participated to increase grades when doing final grades, basically. However, I also took note of Canvas page usage patterns when deciding how much to adjust up. I was particularly attentive to students having watched at least one of the posted videos, having regularly visited the page and either read online or downloaded the pdfs, rather than waiting for the very last days of class to simply download them all.

Specific Feedback

Rather than transcribing the full exam (which may be found here), I will again simply provide the answers here in two forms. First, a short grading sheet, and second the explanation of the True/False and some specific thoughts on the actual examinations and their successes and shortcomings.

Grading Rubric for Fall 2014 Exam


1. True
2. True
6. True
8. True
9. True
11. True
12. True

Grading Rubric for the Essay

[Click here to see the rubric in PDF]

The True/False Explained

  1. Answer: TRUE.
    The general rule to make the statement true. Must always or must never would be a different result, of course, because they are simply too broad. Once again consistent with the restyling using “must” for being obliged to do so. 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."

  2. Answer: TRUE.
    The rule does say “may” and this is one of the exclusion rationales. 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.

  3. Answer: FALSE.
    FRE 413. Updated to fit the restyling. In a sexual assault prosecution certain evidence of another offense of offenses of sexual assault may be admitted for any purpose to which it is relevant, including the Action in Accordance inference, but not an offense of any kind. Back to “of any kind”. But by referencing just a crime, not a sexual assault, the statement is false.

  4. Answer: FALSE.
    The prosecution may rebut by attacking Don’s character trait and violence (or the lack thereof) is indeed the “pertinent [character] trait” here, but the prosecution is rehabilitating the character of the victim, and that door has not been opened. The government may offer evidence about Don under 404(a)(2)(A)[ii], which allows a direct attack on defendant when he presents evidence of his own good character. The rebuttal would be proper because of the rule’s language regarding “if admitted” and here the rebuttal goes to the pertinent character trait:  violence. But we are in 404(a)(2)(B) here, and Don has not said anything about Vince yet.

  5. Answer: FALSE.
    I used “assault” instead of “homicide” as I did last year, therefore triggering 404(a)(2)(B) rather than 404(a)(2)(C) and Don did not use character evidence against Vince, therefore it would be inappropriate to allow the prosecution’s character rehabilitation of Vince. FRE 404(a)(2)(C) allows the prosecution to rehabilitate the character of a homicide victim based on the admission of any evidence that the victim was the first aggressor, not just a character attack on the victim. The character response to ANY charge that the victim initiated the violence is only permitted in homicide cases, which this one is not, and is governed instead by (a)(2)(B).

  6. Answer: TRUE.
    Same as last year, except for the names and, more importantly that I went from “cannot possibly” to “may admit.” Problem 2-C. The court may admit flight as evidence of guilt and that is in fact the most common result as decided in Commonwealth v. Booker, 436 N.E.2d 160, 162-164 (Mass. 1982). Myers is inconsistent with Booker, and probably the better result, but there is no absolute bar and in fact, as discussed in class, evidence of flight is routinely admitted. Did you think that 403 exclusion made this “false”? The possibility that the evidence might be excluded under FRE 403, even that the better result would be to exclude under FRE 403 balancing, should tell you that “may admit” is possible and therefore “not allowed to admit” is false. Otherwise the same as last year, except for the homage to Dallas.

  7. Answer: FALSE.
    Back to “only” I made it a false statement. The “path of least resistance” remains compliance with Frye. Daubert simply makes it easier when you cannot reach that high standard. The old Frye standard may still produce admission, it is just that after Daubert and Kumho Tire, Frye is not the only basis for admissibility. The sentence is basically a quote from the Frye case that I can manipulate with the introduction or omission of a single word such as “only” or “never”.

  8. Answer: TRUE.
    Back to the positive to make it True under the “Plain Error” language of FRE 103(e), which is still available to the court, provided that a substantial right be affected.

  9. Answer: TRUE.
    Basically the same as last year, except that I changed “cannot exclude” to “may admit” and both statements are true. 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”.

  10. Answer: FALSE.
    I changed the state and the statement to say that the privilege applies, but it does not in this specific situation. This is from Problem 5-R. 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.

  11. Answer: TRUE.
    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.

  12. Answer: TRUE.
    Back to Buffy and Willow. A variation on “I am Napoleon Bonaparte.” As we discussed in class repeatedly, this statement is offered to prove lack of mental capacity, and it is nonhearsay.

Some Reactions to the Essays

I was shocked at how many students simply ignored my instruction NOT to abbreviate a person’s name. In the future, I will simply forbid all abbreviations, except those expressly allowed and harshly penalize their use. As it is, it makes exams difficult to read and to score well.

I was surprised at how many students totally ignored that the trial court held a hearing on the motion in limine at which the grounds for objection (hearsay and sixth amendment confrontation) were discussed, and the court then made a “definitive ruling” on the matter after the hearing.

On review, too many students referenced either de novo or abuse of discretion, instead of clarifying that findings of fact are subject to abuse of discretion review and law, especially the 6th amendment, to de novo review.

Under 104(b), some interesting discussion of the evidence related to pregnancy. But, to the extent that the evidence goes to the issue of pregnancy, and the defendant’s knowledge thereof, those are elements of the offense, and thus ultimate issues in the case, not conditionally admissible questions. Whether or not certain evidence that went to pregnancy, Deputy Doll’s question “are you pregnant” is loaded (“pregnant”) with fact, and that could be used for a TOMA purpose, but the risk was low, given the medical testimony regarding pregnancy, the photos of the victim, and the victim’s own statements, admissible for TOMA purposes, regarding pregnancy.

I was also surprised that almost no one discussed the questions by Deputy Doll. Lots of people discussed the questions by the 9-1-1 operator, officer Canady, but almost no one did the same for Deputy Doll. Given that both Officer Canady and Deputy Doll testified, their own statements did not pose an insurmountable confrontation problem even if testimonial (which almost no one discussed), though the path of least resistance was the non-truth use, which does not raise a sixth amendment problem. More fundamentally, the non-truth use resolves the problem under the Rules, which for testifying declarants may well be the more difficult problem.  Also, the pregnancy question by Deputy Doll was, “pregnant” with fact, and did pose a TOMA use danger, that was manageable as discussed above.

Despite the trial court limiting the Doctor to testimony about medical treatment, that the trial court’s ruling regarding statements referenced only the 9-1-1 call and statements to Deputy Doll and only used 803(2) as the basis to admit hearsay under the rule, and that the facts mentioned not a single statement in relation to the doctor’s testimony, many students spent unnecessary time on FRE 803(4) references. While this did not result in any deductions, it certainly took away from the word limit. As for discussion of lay opinion related to Deputy Doll’s observations of the victim and expert opinion from the Doctor, I did reward that, but mostly when it was properly related to the independent corroboration of the victim’s 803(2) statements and the TOMA of her words, especially as they related to her state of excitement and pregnancy.  Bootstrapping is definitely an issue in that the only source as to the startling event is the hearsay itself, if we were to take a narrow view, as we saw in the Texas cases, that would be highly problematic. But the federal rule is applied more liberally and the statement itself is enough (ACN) and there is lots of corroboration of the person’s state of mind.

Surprisingly, many students ignored Doll’s questioning of Santiago during their 801 discussion. And there was also the obvious, and of course, in this case sadly ironic, “pregnant with fact” problem for his question regarding pregnancy, which required discussion of its possible truth use (possible UP in 403, manageable due to independent source on that (photos and the doctor testifying about it) and with instructions).

On the 403 discussion, I was disappointed to not see more references to managing the possible TOMA use of Non-truth statement with instructions as well as the obvious discussion about how the absence of cross and the other dangers related to hearsay would be deemed unfairly prejudicial to defendant, but not enough to require exclusion.