Evidence Exam Feedback Memo
Fall 2016

LAW 6330 (4 credits)
Professor Pedro A. Malavet
Fall 2016


I will post the feedback memo on February 9, 2017. You may pick up your exam by going to the Faculty Support Office, providing your exam number and showing your student ID to my assistant, Ms. Lena Henson or to one of her colleagues, should she not be there. You may take the exam with you and make a copy of it, but you must return it within a reasonable amount of time as we are required to keep graded exams on file for a specified term.

Procedure for Examination Review.

  • I am on sabbatical during the spring of 2017, but I will make time to discuss exams by scheduling appointments via email. Review must take place during the spring semester, I will not be available for this purpose during the summer.
  • You must pick up and review your graded exam and read this feedback memorandum before seeking to 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.

Other Comments

  • Results in General. The TRUE/FALSE was on the high side of the usual averages at just above 11.03 of 12. The average score for the essay was higher than last year at 157 points out of 360.
  • Exceeding the Word Count. Few students exceeded the word count despite the reduction for this term; many went very close to the limit. The new shorter length limit, however, did not seem to negatively affect the quality of the answers and, indeed, appears to have improved them.

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 2016 Exam


1. True
3. True
4. True
6. True
8. True
9. True
12. True

Grading Rubric for the Essay

I have edited the rubric to fit on a single letter-sized page by not repeating the entire 30-point grading scale for every criteria item.

[Click here to see the rubric in PDF]

The True/False Explained

  1. The testimony of Delta that while in Gainesville, Florida, on Thursday, December 1, she heard Carmen say “Saturday I’m going to Atlanta to see the Gators play in the SEC Championship game” is offered as proof that Carmen went to the SEC Championship game on Saturday, December 3. Given the definition of hearsay of Federal Rule of Evidence 801(a), (b) and (c), this evidence is hearsay.

    True                    False

    Answer: TRUE.
    Express assertion of intent to prove future action in accordance with it. Of course, this is ADMISSIBLE hearsay as an express assertion of state of mind used to prove future action in accordance, but it does trigger the definition of hearsay as we discussed with question 17 in the hearsay quiz and as I emphasized as the easy scenario under 803(3) when we discussed Pheaster and Hammon.

  2. During civil commitment proceedings against University of Iowa freshman Joseph Miller, 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 hearsay.

    True                    False

    Answer: FALSE.
    Duck Soup. Tim Tebow, Heisman Trophy Winner, again, this time in homage to our visit to the TaxSlayer Bowl against the Iowa Hawkeyes. 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.

  3. 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

    Answer: TRUE.
    Changed back to generally to make it TRUE, instead of never, which along with always is FALSE. 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." 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.

  4. After certain evidence is found to be relevant, it may be excluded if its probative value is substantially outweighed by a danger of wasting time.

    True                    False

    Answer: TRUE.
    The rule says “may” indeed, which makes this different from “cannot” as I used it last year, which would be 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. 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

    Answer: FALSE.
    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. Two years in a row you got Tim Tibow, Buckaroo Banzai and Testifying While Stoned. You are welcome.

  6. 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 has the authority to reverse the conviction.

    True                    False

    Answer: TRUE.
    Return 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.

  7. Given the definition of hearsay of FRE 801(a), (b) and (c), when offered as proof that passenger Charles assumed the risk of an auto accident on account of impaired driving in riding in David’s car, David’s testimony that “I told Charles before he got in that I should not have drank that fourth Bombay Sapphire martini at the Bourbon Bar five minutes before coming to pick you up,” is hearsay.

    True                    False

    Answer: FALSE.
    “Effect on listener” as discussed in question 2 of the Hearsay Quiz, with my martini variation that was specifically referenced in class multiple times. C becomes Charles and D becomes David is just my way.  The details of the recipe should perhaps be addressed separately.

  8. In a civil trial for damages resulting from an automobile collision, the defendant offers the testimony of an eyewitness who will identify the plaintiff, Juan Valdez, as the driver of the car that ran a red light at an intersection and caused the accident that led to this suit. The plaintiff objects. At the bench, so that the jurors cannot hear what is happening, the court rules that the evidence is relevant to the case and prejudicial for the plaintiff Juan Valdez because it makes it more likely than it would be without that evidence that Valdez’s conduct was the proximate cause of the accident. The court may admit this evidence under Rule 403 based on this finding of prejudice.

    True                    False

    Answer: TRUE.
    From the 2014 exam, 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”. Admit.

  9. 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 may find Whorfin competent to testify.

    True                    False

    Answer: TRUE.
    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 Accross the Eighth Dimension. These are the facts of US v. Lightly. As we discussed in relation to U.S. v. Lightly, at page 528, 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.

  10. In a criminal case for assault, during his case-in-chief, defendant Don offers the testimony of William that defendant Don is “non-violent, peaceful man who does not and would not commit acts of violence.” During its case-in-rebuttal, the prosecution offers the testimony of the Reverend Wilson that alleged victim Vince was a “peaceful, and non-violent man.” The prosecution’s rebuttal may be admitted.

    True                    False

    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, 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.

  11. In a criminal prosecution for assault, defendant Don testifies that alleged victim Vince started the fight between them, and that he (Don) acted in self-defense. During its case-in-rebuttal, the prosecution offers the testimony of the Reverend Wilson that Vince was a “peaceful, and non-violent man.” The testimony of Reverend Wilson may be admitted.

    True                    False

    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. All else is governed by (a)(2)(B).

  12. Under FRE 702, expert testimony deduced from a well-recognized scientific principle or discovery, is admissible if the thing from which the deduction is made is sufficiently established to have gained general acceptance in the particular field in which it belongs.

    True                    False

    Answer: TRUE.
    The “path of least resistance” remains compliance with Frye. Daubert simply makes it easier when you cannot reach that high standard (at least in express language as well as theory, as we discussed). 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”.

    We discussed that courts may in fact be generally less likely to admit scientific evidence under Daubert than under Frye, but that exercise of discretion does not negate that the language of the admission standard creates a more restrictive Frye category and a more liberal Daubert category.

Some Reactions to the Essays

The Question in General. The question was my usual hearsay/Crawford Doctrine essay question based on a real case. The case had well-written majority and dissenting opinions and I presented you with the majority’s view on Primary Purpose, but I characterized it as the discussion of FRE 803(4). I did that to make sure that you were able to discuss the hearsay exception without much trouble and to set up the conflict with the dissent’s view of Primary Purpose which was reflected in the transcript of the nurse’s trial testimony. Ward v. Indiana, 50 N.E.3d 752, 2016 Ind. LEXIS 124 (Indiana Supreme Court 2016).

Objection or Motion? There was a lot of casual discussion of the motion and how that meant that defendant did not need to renew. The motion was to prevent JM from testifying because she had not appeared at depositions, only after that did the state give notice that they intended to use the nurse to introduce JM’s hearsay statements. So the objections made at trial were the critical ones for purposes of preserving the matter for appeal.

Also very neglected was the “probably affected the outcome” question as to “substantial right.” Most students easily said that a constitutional error would be reversible, but few then went to and what was the importance of this evidence? It was of course critical that this was the only direct identification of the defendant. There was plenty of independent evidence as to the injuries, so that alone would not have done it.

The Statements. TOMA: “Defendant Did it!” “He hit me with a belt” note that ID is critical given D’s defense theory. Logical relevance: HOW JM WAS INJURED, “struck repeatedly with a belt,” and by WHOM: “it was her boyfriend Dee Ward” who beat her. Of Consequence because state had to prove that JM was battered/held by Ward. Many students ignored the “he beat me with a belt” statement. That was likely based on the defense theory, but it was wrong to do so. The two statements were the only direct evidence of How and Who. How was JM battered and by whom. The statement was also important to the medical treatment discussion not just on “medical purpose” for also on the much-neglected “describes” second prong of 803(4). Another much-neglected item: “boyfriend” might go to the domestic violence charge?

FRE 803(4) & Reliability. There was an almost universal failure to note that 803(4) has two elements, not just the medical purpose of subsection (A), but also the medical history and symptoms language of subsection (B). The other most neglected discussion in this section was Bootstrapping, Corroboration and Reliability.

Decontextualizing Class Materials. I was just shocked that a few students used the text from slides about Bourjaily and Arnold, which I incorporated into the review week to emphasize how bootstrapping and independent corroboration and reliability should be analyzed for hearsay exception purposes, into their discussion of Crawford. I got the impression that those students took the slides from the pdf and paid NO attention to what I said in class or failed to check the videos of the review sessions.

The Good on 803(4). The best discussions of 803(4) referred to the advisory committee notes and noted that there may be a problem with putting the identification of the perpetrator within its language. That is just one of the reasons why I gave you the language from the Indiana Supreme court opinion on medical purpose. I did not want you to develop any doubts about the availability of a hearsay exception in order to reach the constitutional question. As noted above and below, this also set up the critical primary purpose discussion.

Primary Purpose. The critical question under the Crawford Doctrine was of course the primary purpose of the forensic nurse’s questioning of JM. The dual role of the nurse made it naturally challenging. I gave you the language from the opinions on the role of the Forensic Nurse in both her capacity as a nurse as well as an investigator, which set up the primary purpose discussion: was she acting as Nurse or as Forensic Investigator under the objective totality of the circumstances test. She was a nurse for 803(4) purposes, which only emphasizes the point that the Confrontation Clause is a separate analysis and must take a different view of investigation of past facts for prosecutorial purposes in order to reach the instructed result.

The Shocking and the Good. Almost no one mentioned the critical issue of the nurse’s agency relative to police. You had to establish that she was a police agent for confrontation clause purposes. Referencing the 911 operator discussion of Davis/ Hammon was the starting point. But the very best answers then referred to Melendez-Diaz, Bullcoming and Williams to provide guidance as to who is a forensic investigator tied to police/prosecution for Confrontation Clause purposes. Very few people got to that or made the Melendez-Diaz connection; again, only the very best answers got this.

Obviously, I was disappointed by the failure to use the Davis 911 operators are police agents language to start a discussion about the competing roles of the nurse. Too many people kept trying to discuss emergency instead of focusing on the nurse’s objective intent based on her dual role. A small but significant number of students did note the 911 discussion (the best answers of course), but very few then used Melendez, Bullcoming and Williams to discuss forensic tech’s as examples of government agents or actors for criminal investigation purposes.

The Good. On the positive side, many students did note that an objective evaluation of the interaction between the forensic nurse and the victim would indicate a good level of formality and the express disclosure that the information was to be given to police so that declarant, had she been able to understand, should have anticipated prosecutorial use.