Evidence Exam Feedback Memo
Fall 2018

LAW 6330 (4 credits)
Professor Pedro A. Malavet
Fall 2018


Procedure for Examination Review.

  • Review must take place during the spring semester, I will not be available for this purpose after that.
  • 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 average was 11.05, slightly below last year's average of 11.15 out of 12. The average score for the essay was 161 out of 360, above the 157 averaged last year.
  • Exceeding the Word Count. Several students exceeded the length limit for the essay answer of 18,000 characters, all-inclusive. Few did so by enough to affect their score, but two exceeded the limit by so much that their scores were significantly penalized. I will add a new sentence to the length penalty instruction next time: “Provided, however, that any answer exceeding the length limit by more than 6,000 characters (one third of the limit) will automatically receive a score of ZERO.”

Specific Feedback

Rather than transcribing the full exam (which may be found on the course canvas page, which is still available to students from this class), 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.

The university servers that have hosted my site since 1997 will be taken down on February 15, 2019. Starting then, the exam and this memorandum will only be available in the course Canvas page. I will leave that site open until the end of this semester.

Grading Sheet for the entire Fall 2018 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 for a compact grading guide to assist you in your review]

The more detailed rubric is found here:

[Click here for the Rubric]

The exam is posted in PDF format in the Files section of the course Canvas page.

The True/False Explained

  1. Federal Rule of Evidence 801(c) reads: “ ‘Hearsay’ means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” When ruling that a statement is not offered to prove the truth of the matter asserted, courts always use one of the six nonhearsay non-truth use categories discussed in class, namely: (1) impeachment, (2) verbal acts (or parts of acts), (3) effect on listener or reader, (4) verbal markers or objects, (5) circumstantial evidence of state or mind, and (6) circumstantial evidence of memory or belief. Accordingly, judicial opinions would never instead use phrases such as “offered to provide context” or “offered for the limited purpose of explaining why a government investigation was undertaken” to explain their ruling that a statement is nonhearsay on a non-truth offer rationale under Rule 801(c).

    True False

    1. Answer: FALSE.
      The nonhearsay non-truth use categories discussed at pages 133-34 in chapter 3 of your casebook are of course old doctrines that help us to understand the meaning of the rule. They are common law doctrines that survive adoption of the rules and have become judicial custom in the application of FRE 801(c) are essential to understanding how the rules should be applied. The logic that is reflected in these doctrines often explains the rationale for a particular result under the rule.
    2. But courts do not limit themselves to those terms or categories, and opinions will often use different terms to explain the non-truth treatment of certain statements. The Crawford Doctrine has also generated many opinions that take the time to explain the nonhearsay, non-truth use of certain statements that courts would perhaps not have addressed quite as carefully before the changes to the Sixth Amendment doctrine. When I reference such opinions in class, I of course use the language used in the opinions. The two quotes in the question are of course taken from actual opinions.
    3. For example, in class I discussed the Obi decision referenced by the casebook authors during our discussion of chapter 3.
    4. Obi cites United States v. Love, 767 F.2d 1052, at 1063-64 (4th Cir. 1985), which explains the issue as follows:
      1. Fed. R. Evid. 801(c) defines an out of court statement as hearsay if it is "offered in evidence to prove the truth of the matter asserted." However, an out of court statement is not hearsay if it is offered for the limited purpose of explaining why a government investigation was undertaken. United States v. Scott, 678 F.2d 606, 612 (5th Cir.), cert. denied, 459 U.S. 972, 74 L. Ed. 2d 285, 103 S. Ct. 304 (1982); [**33] see also United States v. Hunt, 749 F.2d 1078, 1084 (4th Cir. 1984), cert. denied, 472 U.S. 1018, 105 S. Ct. 3479, 87 L. Ed. 2d 614, 53 U.S.L.W. 3882 (1985). In this case, Shumard's testimony was offered not for its truth but only to explain why the officers and agents made the preparations that they did in anticipation of the appellants' arrest. As such, it was not inadmissible hearsay. See United States v. Mancillas, 580 F.2d 1301 (7th Cir.), cert. denied, 439 U.S. 958, 58 L. Ed. 2d 351, 99 S. Ct. 361 (1978) ("Whether or not the . . . statement was true, the fact that it was made would surely explain the flurry of investigative activity in three states the [1064] jury was soon to hear about. For this purpose, outlining the background of the investigation with the evidence not being offered to prove its truth, it could be said not to be nonadmissible as hearsay." (citations omitted)).
    5. For a “context” example: United States v. McKinney, 713 Fed. Appx. 910 (11th Cir. 2017).
      1. Inspector Mayhew’s statements in the second interview referring to Price and her statements were not offered to prove the truth of the matter asserted in those statements and were thus not hearsay under Rule 801(c). Instead, they were offered to provide context to defendant McKinney’s own statements, which included a confession that he drove Price and Cameron to Athens to cash a fraudulent check. The district court thus did not commit reversible error in allowing the admission of this evidence under the Federal Rules of Evidence.

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

    True False

    1. Answer: FALSE.
      Changed sustain to overrule from last year. 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 prohibited sexual character evidence. Back to an apparently female victim. But note that essentialisms about gender and names are irrelevant as the rule applies to heterosexual or homosexual sexual assault victims.

  3. During civil commitment proceedings against University of Michigan junior James Hurt, his parents, who are trying to institutionalize her in a psychiatric treatment facility, present testimony that she 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

    1. Answer: TRUE.
      Duck Soup. We know the statement cannot be true so it cannot be used for a truth purpose. It is circumstantial evidence of state of mind. The usual “I am Napoleon Bonaparte” scenario, but back to using Tim Tebow since the Gators were playing Michigan in the Chic-Fill-a bowl last year.

  4. After certain evidence is found to be relevant, the rules allow it to be excluded when its probative value is substantially outweighed by a danger of confusing the issues.

    True False

    1. Answer: TRUE.
      The rule says the court “may” indeed exclude on that basis, so the rules allow it. I moved back to the fairness rationales. 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.

  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

    1. Answer: FALSE.
      Same as last year. 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.

  6. 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 cannot exclude this evidence under Rule 403 based on this finding of prejudice.

    True False

    1. Answer: TRUE.
      Back to the Juan Valdez scenario and I changed “may admit” back to “cannot exclude” 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 prosecution for sexual assault, evidence of the defendant’s commission of any other sexual assault cannot 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

    1. Answer: FALSE.
      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.

  8. 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

    1. Answer: TRUE.
      Changed CANNOT, which makes it FALSE; “never” along with “always” would also be FALSE, to GENERALLY. Using the term “generally” articulates 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.

  9. 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 is not allowed to admit this evidence to prove guilt of the crime charged.

    True False

    1. Answer: FALSE.
      Changed may to not allowed to. 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.
    2. 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.

  10. 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

    1. Answer: TRUE.
      These are the facts of US v. Lightly, using the characters of The Adventures of Buckaroo Banzai Across the Eighth Dimension. 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.

  11. Following the loss in the SEC Championship Game, Georgia fan Bill drowns his sorrows at several Atlanta bars as he walks back to his car after the game. He then meets his pal John in the parking lot and gives him a ride back to their hotel in Buckhead. Later that night they are involved in an accident that seriously injures both John and Bill. John sues driver Bill to recover damages. During the defense case in chief Bill offers, as proof that John assumed the risk of an accident on account of an impaired driver, his testimony that “I told John before he got in the car that I really should not have had those three martinis half an hour ago.” Given the definition of hearsay of Rule 801(a), (b) and (c), this evidence is not hearsay.

    True False

    1. Answer: TRUE.
      This is nonhearsay under the non-truth use of Effect on Listener. Item no. 2 in the Hearsay Quiz and a variation that I always reference in class. This scenario makes me think of Bill Murray’s cab driver saying “I should not have drank all that cough syrup” from Stripes!

  12. Jordan Belfort enters into a settlement of a civil action filed by the Attorney General for the State of Florida claiming that he violated state securities regulations when he defrauded investors while acting as their stockbroker. Belfort agrees to repay each investor 50% 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 state then agrees to dismiss its 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. Under Federal Rule of Evidence 408 this evidence is not admissible because of the privilege created by that rule.

    True False

    1. Answer: FALSE 2018.
      This question comes from Problem 5-R. I went back to The Wolf of Wall Street scenario, and, more importantly, to a government regulator, to fit within the exception to the 408 privilege. 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.

Some Comments on he Essays

Abbreviations used during grading:

QDP or QDNP: Quote, Do NOT Paraphrase!!!!
CBER: not always in this order, but, Corroboration, Bootstrapping, Elements of the rule, Reliability (truth use).

In general,

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, as usual. 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. The most common error here was an inappropriate discussion of 104(b). One form of this error was to fail to distinguish between the Bourjaily preponderance standard of 104(a) and the Huddleston “scintilla” standard of 104(b). The other common error was the usual failure to distinguish ultimate facts from conditional predicate facts.

401. Relevance. Who, How, Why, Motive appears critical. The statutory discussion and especially the court's use of the instructions suggest that motive was the critical use for the statements. This is understandable given the substantial evidence of the firing of the shotgun by the defendant that was independent from Mrs. Raymond's statements.

801(a)-(c). Hearsay. Here you have two law enforcement officers well-prepared to avoid the hearsay problems of their questions. A good trial practice example that also avoids the pesky problem of having the use of leading questions by the officers.

Referencing 801(d) in any way other than "does not apply" was graded down. I would recommend avoiding even "does not apply".

802. Hearsay Risks. There were a few good discussions of Mrs. Raymond's state of mind and her capacity to recall and observe here. There was also some discussion about her motivations. Again, those who failed to focus on the declarant and instead referred to the police witnesses were graded down.

803(2). I was again impatient with just about any discussions of 803(1) and 807 except with a few short statements that simply explained that 803(2) was a better choice here because it provided an expanded time-line and an express exception to the hearsay prohibition. I was looking for course for the technical standards, starting with the language of the rule and the third element introduced by the caselaw. Arnold citing Haggins, as discussed in class, were the proper sources here. Each element then had to be discussed. I was pretty surprised that few students discussed how Mrs. Raymond was whispering when talking to the 911 operator, but the officers who interviewed her at her home described her as speaking loudly. Fear on the one hand, and continued "excitement" on the other.

Corroboration and Bootstrapping. I was generally disappointed with the answers in this area. The fact-pattern gave you quite a bit of independent corroborating evidence that went both to the three technical elements of the rule as well to the reliability of the truth content use of the statements: the officers' description of what Mrs. Raymond and her room looked like; the physical evidence and photos (which is why you got the exhibit list); the 911 recording (which I was frankly shocked was allowed into evidence); the 911 officer's testimony; the confession! But the answers did not use the facts very well and again failed to distinguish between the technical elements being corroborated and the reliability for truth use.

Caselaw. The best answers quoted carefully from the cases as well as the rules. Bourjaily had very few quotes, but those who used them again scored well. Arnold/Haggins quotes were more popular and well used (I saw real improvement in this area from last year, but that is to be expected given the repetition of the 803(2) scenario). Crawford quotes of the rule were fairly common, but not so much its guidance on what “testimonial” means, again; still, but best answers did reference the “witness against” quote from Webster’s, circa the1800s, and the “should know” objective standard about prosecutorial purpose.  Factual discussion at each case.

Davis language about “core is also the perimeter” was once again good. Then articulating testimonial and non-testimonial emergency doctrine language. This case was again 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 only occasionally ignored this time.

I was astonished that a few students failed to reach the instructed result, which meant a score of zero (0) and resulted in failure.

403/105. I reserved points here that were lost when students wrote their way out of points. Again, saying nothing, or, “we need go no further,” was fine. But engaging in discussions of balancing and the use of instructions generally only took away points.