Evidence Exam Feedback Memo
Fall 2017

LAW 6330 (4 credits)
Professor Pedro A. Malavet
Fall 2017


Procedure for Examination Review.

  • 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.
    • The exams have been available for individual review for some weeks now and remain with the Faculty Support Office, located behind the IT office in Room 323 in Holland Hall.
    • Please bring your exam number with you as they are filed by exam number. You will also be asked for your student ID in order to ensure privacy and confidentiality.
    • To avoid accidental loss and unnecessary administrative follow-up, please review the exams in the office. We are required to keep the originals and to archive them for about three years.
  • After you review the exam on your own, you may schedule an appointment with me. Please ask the assistant to make a copy of the exam for you so that you may have it with you when we chat.
  • Review Policy. Examination review is a good way to learn from your mistakes, and from your successes. I encourage you to review my feedback memo and your exam. I will be happy to sit down and discuss substantive matters with each student. I will first tell each of you what you did right. I will also gladly suggest ways to improve your exam-taking abilities.
  • No Grade Changes. I want to make one thing perfectly clear: I have never changed an exam grade for any reason other than a mathematical error. Barring mathematical errors, your grade is not going to be changed. Grading is a time-consuming and difficult process. The only fair way to do it is to grade in the context of each class. I look for a fair overall grade distribution and follow the rank of each student within the class in awarding the final grade.

Exam Statistics

  • Results in General. The TRUE/FALSE was slightly above last year's average of 11.03 at 11.15 of 12. The average score for the essay was, give or take a fraction, exactly that of last year at 157 points out of 360.
  • Exceeding the Word Count. No one exceeded the word count this year and the average length was around the 14,000 character mark.

Specific Feedback

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

Grading Sheet and Rubric for the entire Fall 2017 Exam

I had posted the simple grading sheet for both the True/False and the essay in January, and it is still found here.

[Click here to see the simple grading sheet in PDF]

The more detailed grading rubric for the essay is here:

[Click here to see the grading rubric in PDF]


1. True
4. True
6. True
7. True
8. True
9. True
11. True
12. True

The True/False Explained

  1. Jordan Ponzi enters into a settlement of a civil action filed by former investors claiming that he violated state securities regulations when he defrauded those investors while acting as their stockbroker. Ponzi agrees to repay each investor 55% of their original investment and to refrain from doing business in the State of Georgia for a period of no less than ten years. The plaintiffs then agree to dismiss their suit. During the negotiations, Mr. Ponzi admits that he used the invested funds to cover personal expenses. The U.S. Government later indicts Mr. Ponzi for securities fraud and is criminally prosecuting him. At trial, the government seeks to introduce Ponzi’s admission about using the funds for personal expenses. Under Federal Rule of Evidence 408 this evidence is not admissible because of the privilege created by that rule.

    True                    False

    Answer: TRUE. 
    I changed from a state actor back to private investor plaintiffs to make the privilege apply and the exception NOT. This question comes 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.  Here the state is not prosecuting the original action that led to a settlement, rather, private investor plaintiffs were, so the exception to the privilege does not apply.

  2. During civil commitment proceedings against Jane Mansfield, her siblings, who are trying to institutionalize her in a psychiatric treatment facility, present testimony that she told several people the previous week: “I am Melania, Melania Trump, the First Lady of the United States.” 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. Same question as usual with an updated fact pattern. 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. No bowl game, no Timmy. Bummer!

  3. After certain evidence is found to be relevant, the rules do not allow it to be excluded when its probative value is substantially outweighed by a danger of needlessly presenting cumulative evidence.

    True                    False

    Answer: FALSE.
    The rule says the court “may” indeed, which makes this different from “cannot” as I have used in the past, 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.

  4. 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 may refuse to 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: TRUE.
    Same facts as last year but with changed result alternative. 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.

  5. 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.
    Return to the negative 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.

  6. In a criminal trial for first-degree murder, the state offers the testimony of an eyewitness who will identify the defendant, Joseph Jones, as the person that fired ten shots into victim Nancy Smith. 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 Jones because it makes it more likely than it would be without that evidence that his intentional conduct was the proximate cause of the death. The court may admit this evidence under Rule 403.

    True                    False

    Answer: TRUE.
    From the 2012 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.

  7. In a criminal case for assault, during his case-in-chief, defendant Don offers the testimony of William that Victim Vince is a “violent, fight-picking fella.” During its case-in-rebuttal, the prosecution offers the testimony of Rabbi Wolff that alleged victim Vince was a “peaceful, and non-violent man.” The prosecution’s rebuttal may be admitted.

    True                    False

    Answer: TRUE.
    The prosecution may rebut an attack on Vince’s character BOTH with evidence of Vince’s good character and by attacking Don’s character trait for violence (or the lack thereof) which is indeed the “pertinent [character] trait” here. The prosecution is rehabilitating the character of the victim, and that door been opened by Defendant Don and becomes a straight forward rebuttal under 404(a)(2)(B)(i),

  8. 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.
    Exactly the same as last year. 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”.

  9. In a criminal prosecution for sexual assault, evidence of the defendant’s commission of any other sexual assault may be admitted to prove that on a particular occasion the defendant acted in accordance with the character or trait suggested by the other offense(s).

    True                    False

    Answer: TRUE.
    Comparing the language of FRE 413(a) to that of 404(a)(1) and 404(b)(1), updated to fit the restyling. In a sexual assault prosecution certain evidence of another offense or offenses of sexual assault may be admitted for any purpose to which they are relevant, including the Action-in-Accordance inference. The variation tests for awareness that this does not apply to an offense of any other kind. By referencing any crime, the statement would be made false.

  10. The law of evidence cannot 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.

    True                    False

    Answer: FALSE.
    Changed back to CANNOT to make it FALSE; “never” along with “always” would also be FALSE. Using the term “generally” would articulate the general rule, which would make the statement true. Bruton tells us that while the general rule is that we expect juries to follow instructions, citing Delli Paoli, there are occasions when that cannot be assumed, so “never” and “always” are false, and “generally” is true.

  11. During a criminal trial for fraud, the state calls Robert James. He is defendant Mary Peppard’s ex-boyfriend and he answered the door at the time of her arrest. The state offers his testimony that when Peppard saw the police approaching, she first ran to the back door, then hid in a closet after discovering a uniformed police officer standing guard in the alley. Peppard objects, arguing that proof of her behavior at the time of arrest is irrelevant. In a sidebar conference, her lawyer points out that Peppard’s arrest was based on an outstanding failure to appear warrant, issued one year earlier on unrelated charges. The court may admit this evidence to prove guilt of the crime charged.

    True                    False

    Answer: TRUE.
    Same as 2014. 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 in this manner.

    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.

  12. In a criminal prosecution for sexual assault, defendant Joseph is pursuing a consent defense. Joseph offers the testimony of witness Matthew that victim Fred “is sexually very active” and “known as an easy mark.” The prosecution objects to this testimony. The court should sustain the objection.

    True                    False

    Answer: TRUE.
    FRE 412. This is straight from Problem 5-K. The 412 protection of the victim against sexual character evidence of this sort applies, and none of the exceptions in FRE 412(b)(1) apply, this is rank sexual character evidence. Essentialisms about gender and names are irrelevant as the rule applies to heterosexual or homosexual sexual assault victims.

Some Comments on the Essays

Most of the made-up names were obviously inspired by the names of the actors and characters in Pulp Fiction.

Abbreviations used during grading:

QDP: Quote, Don’t Paraphrase
DR: Definitive Ruling
SE: Substantial Effect/Outcome
WHWC: Who, How, Why, Cover-up, as they relate to evidential hypothesis.

In general, I was astonished at how reluctant the class as a group was to quote rules or case language. No one was close to the length limit, so that was not really the problem. Accordingly, I often wrote “QDP”: Quote, don’t paraphrase. I was also astonished at how many students simply did not use the rule number, let alone its text. I can understand more why you purposely ignore my annotations (still not a good idea), but why simply ignore the numbering of the FRE as drafted? It does not make for high-scoring answers.

Also, breaking down the analysis within sections was most effective in getting higher scores. 801(a) and even more precise reference to the rule, facts, 801(b) facts, 801(c), facts, 801(c)(1) facts, 801(c)(2) facts, for example. I am often surprised how students are prepared to answer last year’s exam question and do not allow something as pesky as the facts of the question that I actually gave you to get in the way of that. Best example this year? This was a JURY trial. I cannot tell you how many people wrote that 104(b) did not apply to this bench trial!

103/104. Law v. Fact distinction and its relationship to abuse of discretion, de novo and plenary types of reviewStandard of review distinction between fact and law was very poorly addressed by many. Abuse of discretion is the standard for court’s findings of fact at the admissibility stage as to the rules. Legal errors are of course handled de novo. But plenary de novo as to constitutional questions means that both fact and law will be evaluated de novo, which is a far cry from abuse of discretion. 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.

104. I was fairly astonished to read answers that stated that this was a bench trial. That was last year’s exam.

401. Relevance. Who, How, Why, Cover-up. I purposely decided not to give you a statute in order to force you to think about how to articulate an evidential hypothesis. Just about every student understood that Holly Smith’s detailed statement gave the prosecution the “who” committed the charged offense. Most also saw at least some form of the “how,” though few discussed it in sufficient detail. Smith’s statement detailed how the crime was set up by the defendant purposely, and by Holly Smith unwittingly. Although many students identified at least that the statement detailed how defendant carried out the murder, very few noted that it also details how defendant acted with premeditation. Lastly, very few people saw that the statement also seemed to provide some insight into ¨Why,” a possible motive for the crime.

801(a)-(c). Hearsay. Holly Smith was of course the primary declarant and her telling of what happened that day leading to the murder was the critical evidence in this question. But there were nuances and complexities that were largely ignored by all except the very best answers.

I was fairly impatient with discussions of nontruth uses because they were mostly careless additions. However, a few students incorporated them into a discussion of the TOMA under 801(c)(1) in a very nice way. For example, the threats to Holly were largely ignored by most except the very best answers. They were certainly relevant as evidence of guilt (verbal act showing guilty conscience, for example). More importantly, it contributed to either keeping or reigniting Holly Smith’s state of being subjectively under the excitement of the events of the day.

Almost everyone ignored the questions by Office Gonzalez in the hearsay discussion and only one or two people raised the possibility that some of his questions were laden with fact (about, say, drug dealing?). Fewer still talked about what was said to and by Susan (though this was not especially important, at least in the 801 section).

Referencing 801(d) in any way other than to explain partial bootstrapping, and then only in the 803 section, resulted in a loss of points.

802. Hearsay Risks. Some students focused on Holly’s addiction as creating risks of misperception or narration. Her state of mind might also come here. Very few suggested that she might have a motive to lie given that she might be at least an accessory to this murder. After all, even by her own admission, she set up the victim (unknowingly, she claims). Almost no one made an issue of the inconsistent statements given to the canvassing officers at Marvin’s apartment. She denied any knowledge of the facts! Also, could she have been jittery because they were junkies who had drugs and paraphernalia in the apartment? Because she was an accessory to murder and multiple drug deals? The most common error in this section is to fail to focus on the declarant, Holly Smith, in this discussion.

803(2). I was impatient with long discussions of 803(1) and 807 except with those that simply explained that 803(2) was a better choice here because it provided an expanded timeline and an express exception to the hearsay prohibition. After all, the murder had occurred and the facts give you a basic timeline of swarming by the police and the setup of an investigation and canvassing by officers (two of whom interview Holly). And then the call to Susan and Susan comes and they drive back to get officer Gonzalez. Certainly not as the murder was being perceived is it? Not even when the threatening cover-up call was received by Holly and she destroyed her phone.

Corroboration and Bootstrapping. Especially given my emphasis on this during the review session and my notes on your motions, I was very strict to look for a distinction between reliability in the general sense of allowing the statements to be used for a truth purpose because their truth content was independently corroborated, on the one hand, and the very specific problem of technical elements of the rules being established only by the statement (the excitement causing event(s) for example), which is what bootstrapping is about. Certainly there was independent evidence of the murder and that Holly was in the vicinity (officers interview her at Marvin’s apartment during their canvassing for example). That goes both to TOMA reliability and trustworthiness and to mitigating the danger of bootstrapping as to the excitement causing event and that Holly might have been exposed to it as well. But then you had to focus on corroboration of Holly’s subjective state of mind and use the facts in a sophisticated way. Multiple witnesses testified about Holly’s state of mind. Her sister Susan, Officer Gonzalez, the canvassing officers, Detective Koons. The judge heard the recording and made findings based on it, even though he did not allow the jury to hear it.

Caselaw. The best answers quoted carefully from the cases as well as the rules. Bourjaily had very few quotes, but those who used them scored well. Arnold/Haggins quotes were more popular and well used (though still by too few students). Crawford quotes of the rule were fairly common, but not so much its guidance on what “testimonial” means, especially the “witness against” quote from Webster’s, circa the1800s, and the “should know” objective standard about prosecutorial purpose.  Factual discussion at each case. “This was more like the stationhouse custodial interrogation in Crawford because …”

Davis language about “core is also the perimeter” was good. Then articulating testimonial and non-testimonial emergency doctrine language. This case was less than Davis and more like Hammon where police controlled the scene, no ongoing emergency and investigation into past facts. The Michigan v. Bryant totality of the circumstances was often ignored or not well-articulated.

Emergency and threat. Few students noted the specific threat to Holly in evaluating the possibility of an ongoing emergency. More students discussed the possibility of an armed murderer representing a danger to the public or to responders and the best answers noted that police were in control at the scene of the crime, investigating and canvassing and not showing a specific fear of imminent threats to their safety or that of the general public. Even Gonzalez was not putting out an APB for defendant, rather he drove the witnesses to be interviewed at the stationhouse. Susan was in fact interviewed and Koons sent Holly home because she was too distraught. The patrol-car recording was turned over to the homicide detective, not to desk sergeant for broadcast.

403/105. I reserved points here that were mostly used when students wrote their way out of points. In other words, saying nothing, or, we need go no further, was fine. But writing that this was not a jury trial (!), or engaging in discussions of balancing and the use of instructions generally only took away points.