Evidence Exam Feedback Memo
Fall 2015

LAW 6330 (4 credits)
Professor Pedro A. Malavet
Fall 2015


Exam review will start after I post the feedback memorandum on the course website on Friday, February 5, 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 Monday, February 8, 2015.
  • You may pick up the exam from my Assistant, Ms. Nathaly Rugel, 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. Rugel via email and we will upload a scan of your exam to the course Canvas 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 just above 11.0 of 12. The average score for the essay was substantially lower at under 141.5 points out of 360.
  • Exceeding the Word Count. Few students exceeded the word count, but many went very close to the limit.

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 essay answers and their successes and shortcomings.

Grading Rubric for Fall 2015 Exam


1. True
2. True
6. True
7. True
8. True
11. True

Grading Rubric for the Essay

[Click here to see the rubric in PDF]

The True/False Explained

  1. During civil commitment proceedings against University of Alabama junior William Robert Smith, his parents, who are trying to institutionalize him in a psychiatric treatment facility, present testimony that he told several people the previous week: “I am Tebow, Tim Tebow, Heisman Trophy winner.” Given the definition of hearsay of Federal Rule of Evidence 801(a), (b) and (c), this evidence is not hearsay.

    True                    False

    Answer: TRUE.
    Back to Tim Tebow, Heisman Trophy Winner, in homage to our visit to the SEC Championship Game. A variation on “I am Napoleon Bonaparte”  or “Buffy the Vampire Slayer.” 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.

  2. During a major fire at a tourist hotel, an elevator stopped and its doors opened in a floor completely engulfed by flames, killing all seven (7) people who were riding in the elevator. This occurred because the heat from the fire activated the elevator call button on that floor, causing the elevator to stop and open its doors, exposing the riders to the smoke and flames that killed them. During their post-fire renovations the building owners install Otis Elevator Company heat and fire-sensing equipment that prevents the building’s elevators from stopping on a floor in which there may be an ongoing fire. During a subsequent civil trial of the lawsuit initiated by the legal representatives of victims of the fire the plaintiffs seek to offer evidence of the installation of this new equipment. The court rules that it is a subsequent measure under Federal Rule of Evidence 407. Under Rule 407, this evidence is not admissible to prove negligence.

    True                    False

    Answer: TRUE.
    Clearly this is based on our discussion of Tuer v. McDonald and Rule 407. The question is designed to test your understanding of Rule 407. This actually happened in the Dupont hotel fire, tragically resulting in the deaths of all the people travelling in one elevator. Otis Elevator controls designed to prevent this from happening had been available for some time before the fire but had not been installed. I included this in the exam in honor of the attorney for Otis Elevator during that trial, the late Florida attorney Ed Moss, a double Gator graduate from the College of Law, who passed away in 2015.

  3. 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

    Answer: FALSE.  
    Changed “generally” to “never,” which along with “always” is not true. 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.”  

  4. After certain evidence is found to be relevant, it cannot be excluded if its probative value is substantially outweighed by a danger of undue delay.

    True                    False

    Answer: FALSE.

    The rule says “may” which makes “cannot” false provided one of the rationales for exclusion 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.

  5. 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 find Whorfin competent to testify.

    True                    False

    Answer: FALSE.
    The court very much MAY find him competent to testify. My current version of U.S. v. Lightly, loosely based on the Adventures of Buckaroo Banzai Across the Eighth Dimension. The presumption of competency of FRE 601 applies even to persons about whom we have 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 to testify is false and the may find him competent is true.

  6. In a criminal prosecution for sexual assault, evidence of the defendant’s commission of another offense involving contact, without consent, between any part of the defendant’s body—or an object—and another person’s genitals or anus, may be admitted to prove that on a particular occasion the defendant acted in accordance with the character or trait suggested by that other offense.

    True                    False

    Answer: TRUE. FRE 413.

    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. I gave you the specific definition of sexual assault of 413(d)(2).

  7. 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 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. So, this year you got BOTH Buckaroo Banzai and Testifying While Stoned.

  8. Debra Johnson is a highly-paid diesel mechanic who has been qualified to testify as an expert diesel mechanic in a federal trial. The judge rules diesel mechanics is a well-recognized discipline, and that Johnson’s opinions about the failure of a diesel engine are based on generally-accepted principles of diesel mechanics. Johnson may testify as an expert under Rule 702.

    True                    False

    Answer: TRUE.
    The “path of least resistance” remains compliance with Frye. And here I used a non-scientific field just for the fun of variety. 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”.

  9. 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

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

  10. In a criminal trial for first-degree murder, the state offers the testimony of an eyewitness who will identify the defendant, Robert Johnson, as the person that stabbed victim Vicky Jones to death. 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 Johnson because it makes it more likely than it would be without that evidence that Johnson’s intentional conduct was the proximate cause of the death. 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”.

  11. Jordan Belfort enters into a settlement of a civil class-action lawsuit filed by multiple investors claiming that he violated state securities regulations when he defrauded investors while acting as their stockbroker. Belfort agrees to repay each investor 60% of their original investment and to refrain from doing business in the State of Florida for a period of no less than fifteen years.  The plaintiffs then agree to dismiss the 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 to prove guilt. This evidence is not admissible because of the prohibition created by rule 408.

    True                    False

    Answer: TRUE.
    I changed from state regulatory action to private class-action to establish that the prohibition applies, and the state actor exception of 408(a)(2) is no longer present. It is being offered to prove guilt, which also takes it out of the exceptions in 408(b). I also changed “privilege” to “prohibition” as I discussed in class this term, emphasizing what the casebook authors now make clear in the 8th edition, that this is a prohibition different from a traditional privilege like that of rule 410. 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 no longer the case here as I changed from the state attorney general enforcing state securities laws to a purely private class action by investors. Name of the lead character in The Wolf of Wall Street once again. I addressed both scenarios in class when we covered this topic, and there are multiple versions of the question from past exams.

  12. 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 East on Newberry Road, said to approaching police officers —“Officers, officers, he went that way,” while pointing to the West on Newberry Road, is hearsay.

    True                    False

    Answer: FALSE.
    East/West instead of North/South and is hearsay instead of is not hearsay to make it 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.

Some Reactions to the Essays

Use Proper Names (for heaven’s sake!). Using the names of the actual individuals named in the fact-pattern makes it easier for me to believe that you are at least attempting to construct an analysis of the facts, rather than transcribing the outline written in your rule book.

The usual, with a twist (or two). This was very much the traditional hearsay in a criminal prosecution fact-pattern that I have used over the past few years. But it had a few differences that made for some interesting factual and legal twists, which naturally were either totally ignored by all but the very best exam answers or misinterpreted.

No motion in limine. This was a short simple trial and the objection was simply made on the record orally. The discussions of 103(b), therefore, were just largely irrelevant, as were references to plain error.

Bench trial. The fact that this was a judge-only trial changed much of the 104 analysis. As the advisory committee notes explain, 104(b) is there to protect the prerogatives of the jury as the ultimate fact-finder. No such a situation here. I was utterly astonished that almost NO ONE in the class paid any attention to this basic fact and how it affects the discussion. Repeated references to the jury’s role were simply not relevant here. And, no, I was NOT trying to be evil here. It was just that I chose this simple fact-pattern.

Law v. Fact distinction and its relationship to abuse of discretion and de novo types of review.  Standard of review distinction between fact and law was very poorly addressed. Abuse of discretion is the standard for court’s findings of fact at the admissibility stage. Legal errors are of course handled de novo. But plenary de novo means that both fact and law will be evaluated de novo, which is a far cry from abuse of discretion. Abuse of discretion for findings of fact under the rules (errors of law would be de novo). As to the Confrontation Clause, however, plenary review of both law and fact. Failing to distinguish these nuances cost you points at the 103 or perhaps 104 stage, depending on how the discussion came up in your answer. There were a lot of very careless references here. Either saying that de novo review of the constitutional question was just part of de novo review of any question of law is not enough. BOTH facts and law are viewed de novo here, rather than the traditional abuse of discretion to fact-finding by the judge and strict review of matters of law.

A lack of interrogation by the police. That meant that you had to focus on the declarant’s intent and the purpose of the police response while gathering the statements. How you characterized the statements mattered a lot of course. “Help” followed by “I am being robbed”. Or, “Help, I am being robbed.” You could even go to “Help, I am being violently robbed,” as here while there may have been threats made before the assault, the officers ran into an ongoing assault that was part of a robbery attempt. And then you had to see if the statement in effect was “Help, I am being robbed … please rescue me from this thief and assaulter.” Or “Help, I am being robbed, please arrest this person and prosecute him to the full extent of the law.” I was shocked at why so few people were able to articulate “Help” as a statement at all given the testimony about “crying for help”.  The very best answers went to Justice Scalia’s references in Crawford to “in a way that does not”. Intent, theft, and declarant’s fear were important here as they relate to elements of the offenses.

Partial Acquittal on two of four charges. If you completely ignored the acquitted offenses in your 401 discussion, that cost you some points. Ultimate acquittal does not retroactively deprive the evidence of relevance; that is determined by the charged offenses. Also at the 401 stage a discussion of the overall evidentiary picture was not appropriate. You had to address the objected evidence, i.e., the statements by absent declarant Shelly: “Help” … “I’m being robbed.” The overall evidentiary picture did come into play especially with the bootstrapping and independent corroboration discussion in 803(2), and the objective totality of the circumstances primary purpose analysis of Crawford and even in 403 to discuss the gaps in the government case and thus address need and how it affected probative value.

Relevance. Intent, theft, overt act, lack of renunciation, fear. I was happy to see that you have taken to heart my admonition that if I give you a statute you have to use it to articulate the fact of consequence discussion under relevance. BUT, I noticed very liberal transcription of the entire sections of the statute. That will not do. You cannot cite “intentionally, knowingly or recklessly,” for example, you have to clarify that the best uses of the hearsay went to “intentionally” and “knowingly”. The statements by Shelly went to Fields’ intent and to Shelly’s fear when it came to elements of the charged offenses. That the assault (the officers observed unwanted touching, and there was circumstantial evidence of a more severe attack prior to that (cries of “Help” and the injuries to Shelly), the critical issue was Fields’s motive, his intent. Another common mistake was to talk about all of the evidence rather than the objected evidence in the relevance discussion. The total evidentiary picture mattered in 803(2) and in the Confrontation Clause discussion, but you otherwise had to focus on the evidence that was the subject of Fields’ objections at trial. Declarant/Victim Shelly called for help because he believed he needed help and he needed help to be rescued from assault and robbery by defendant.  Declarant/Victim Shelly believed he was being robbed and he would have been had police not intervened. The starting point as to both statements or as to the entirety of it, is TOMA.

Hearsay 801. I mostly address this with relevance. But you had to articulate that “Help … I am being robbed” were oral assertions, by declarant shelly, made at the time of the incident and not while testifying in court and that they are being offered to prove TOMA, thus triggering the presumption of inadmissibility of FRE 802.

FRE 802. A good time to address the problems with hearsay. Most common errors here were discussing in the wrong order and focusing on the officer/witness rather than declarant/victim.

803(1) or 803(3). I was fairly impatient with irrelevant references to 803(1) or (3), unless you perhaps discussed why they were not good choices relative to 803(2). Despite contemporaneity, 803(2) is superior to 803(1) from the perspective of the prosecution because of what comes next: two words, Emergency Doctrine. Though you certainly could look at “Help, I am being Robbed,” as declarant’s express assertion of belief, 803(3) is not a good choice here because that is indeed the “fact believed or remembered” which is the prohibition of part [b] of that rule.

Absent or Unavailable. The finding of efforts to obtain appearance was largely a red herring (a tempting one of course). Unavailability is not reached unless the statement is testimonial, and of course that was contrary to the result you were instructed to reach. Furthermore, there was clearly no prior opportunity to cross, so the statement, if testimonial, would have to be excluded. I saw a lot of very confused uses of this little, as I said, red herring.  Good uses of it tied absence, unavailability and lack of cross-examination to establish that HAD the statements been testimonial, there was a problem. You could also start with absent and that begs the testimoniality question.

Crawford and its Progeny. Did you quote the confrontation clause? Did you reference that in a state prosecution the Due Process Clause of the 14th Amendment and Pointer v. Texas make it applicable to the state? Did you address each case you discuss in your answer and the facts that were pertinent to it separately? In other words, transcribing an entire Crawford caselaw outline and then addressing the fact-pattern did not score well. The very best answers combined the rule of each of the cases with a discussion of how the facts of each case related to the fact-pattern. Alternately, you could articulate the combined rule resulting from cases we discussed and follow it with a detailed discussion of how each case’s facts differed (Crawford, Hammon) or were similar to the fact-pattern (Davis, Mich. v. Bryant, Arnold).

403 Balancing. Completely ignoring that it was a bench trial was the most common error here. But then a very few went completely the opposite way: the absence of the jury made 403 automatically inapplicable. That is not correct either. The efficiency factors always apply, and even in a bench trial the shortness of life might lead to some limitations. Certainly the absence of the jury affects most of the fairness factors which are designed to protect the defendant from the lay jury’s failure to assess the evidence properly. But, there is one factor here, the absence of cross-examination and the use of hearsay that goes to the fundamental fairness of the American oral trial, even without a jury. There are other fairness issues that might come up as well out of procedural fairness questions (unfair surprise for example). Williams v. Illinois is probably a good case for this.

105 Instructions. BENCH TRIAL. So, I found myself writing “what jury” whenever the jury was brought up, which mostly happened with 104(b) and 403/105 sections of the answers.