Evidence Exam Feedback Memo
Fall 2019

LAW 6330 (4 credits)
Professor Pedro A. Malavet
Fall 2019

INSTRUCTIONS FOR EXAM REVIEW

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 11.07, slightly above last year's average of 11.05 out of 12. The average score for the essay was 144 out of 360, down from the 161 averaged last year.
• Exceeding the Word Count. Most students stayed within the word limit. There were no major deductions for exceeding it.

Specific Feedback

Rather than transcribing the full exam which is posted here as well, 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 for the entire Fall 2019 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. 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
   
   FALSE. The Animal House scenario. It is nonhearsay on both the Duck Soup “it cannot be true” analysis as well as a verbal act.
   
   
2. 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
   
   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.
   
   
3. Donna Moore is charged with conspiracy to distribute cocaine. At her trial the prosecution presents the testimony of undercover police officer Smith who arranged to make a purchase of cocaine from her. He testifies that they agreed to meet at the McDonald’s on University Avenue near the Oaks Mall in Gainesville at 3:00 p.m. on Tuesday, May 14, 2019, where Donna had agreed to deliver four ounces of cocaine for which Smith would pay $10,000.00 in cash. Donna said that she would have the cocaine in the trunk of her car, and that Smith should have a bag with the money in it in the trunk of his car. Donna is at the McDonald’s at 3:00 p.m. that Tuesday and she is arrested by other officers in the parking lot after Smith gives her the bag containing the money and she opens her car trunk to place it in it, next to a bag that was already stored there. However, the bag that was in Donna’s car did not contain cocaine. In fact, no cocaine was found on Donna when she was searched pursuant to her arrest, nor in her car or in her house which were searched pursuant to valid warrants. During her case in chief Donna admits that she told Smith that she would sell him cocaine as he described, but she added that she intended to steal the money by giving Smith a fake bag and escaping in her car. During its case in rebuttal, the prosecution offers the testimony of Donna’s former boyfriend John, who testifies that he saw her sell cocaine to two people in the weeks before her arrest. One sale was for four ounces of cocaine and the other for two ounces. Donna’s lawyer objects: “This is character assassination, your Honor!” The court may overrule the objection.
   
   True                    False
   
   TRUE. A question based on Problem 5-E. Drug Sale or Scam? At page 437 of the text. Fun!
   
   
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 misleading the jury.
   
   True                    False
   
   TRUE. The rule says the court “may” indeed exclude on that basis, so the rules allow it, 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. I am still going through the fairness 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. 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 often 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. But while these common law doctrines survived the adoption of the Federal Rules of Evidence, they do not entirely occupy the field of when a statement is offered for a purpose other than “to prove the truth of the matter asserted in the statement.” Accordingly, judicial opinions may 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
   
   TRUE. 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. 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. I review these cases regularly for class preparation as well as for exam writing. When I reference such opinions in class, I of course use the language used in the opinions. The two quotes in the question are therefore taken from actual opinions as I discuss in last year’s memorandum.
   
   As I was researching the caselaw to write this exam, I saw a nice variation on the “context” theme in United States v. Van Buren, 940 F.3d 1192 (11th Circuit 2019). The court wrote: “For instance, in United States v. Price, 792 F.2d 994 (11th Cir. 1986), the government relied on recordings between the defendant and another individual, since the person who made the recordings had passed away before trial. Id. at 996. The defendant asserted that admitting the other person’s statements on the recording violated his Confrontation Clause right. We rejected that argument, finding that ‘[t]he single purpose for admitting the [other person's] statements was to make understandable to the jury the statements made by [the defendant] himself.’ Id. at 997. Put simply, the statements in question were not offered for their truth, so the defendant’s "Sixth Amendment right of confrontation and to present a defense was not violated by the introduction of the tapes into evidence.’ Id.”
   
   
6. During civil commitment proceedings against University of Virginia junior Thomas Madison, 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
   
   FALSE. 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 are playing Virginia in the Capital One Orange Bowl this year.
   
   
7. Under Rule 702, expert testimony deduced from a well-recognized scientific principle or discovery is admissible only 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
   
   FALSE. The “path of least resistance” remains compliance with Frye and general acceptance, but Daubert expressly allows something less than general acceptance to qualify, even if in practice things may have actually changed to allow fewer admissions.  (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”. y, 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”.
   
   
8. 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 is still given discretion to reverse the conviction.
   
   True                    False
   
   TRUE. True under the “Plain Error” language of FRE 103(e), which is still available to the court, provided that a substantial right be affected.
   
   
9. 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
   
   TRUE. From the 2012 and 2015 exams. 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.
   
   
10. In a criminal trial 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 JoAnn that defendant Don is a “violent, fight-picking fella.” The prosecution’s rebuttal may be admitted.
    
    True                    False
    
    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).
    
    
11. 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
    
    FALSE. My current version of U.S. v. Lightly, loosely based on the Adventures of Buckaroo Banzai Accross the Eighth Dimension. These are essentially 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.
    
    
12. Following the win in the SEC Championship Game, LSU fan George celebrates his team’s victory 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 George. John sues driver George to recover damages. During the defense case-in-chief George 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 hearsay.
    
    True                    False
    
    FALSE. 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!

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

I saw the usual confusion about the distinction between conditional facts and ultimate facts. However, shockingly, one or two (luckily only one or two) exams failed entirely to focus on the ultimate facts of the case, such as, the defendant’s guilt or innocence, his identification, his use of a firearm, his intent …

At the very least, these items had to be discussed in the relevance discussion, preferably together with the instruction language as to the elements of the offense, to articulate evidential hypotheses. Then you incorporated that in the discussion of exactly what was the TOMA of declarant Kate’s oral assertions, i.e., statements, that were not made while testifying at the current trial or hearing and were being offered to prove the truth of the matter asserted, specifically: …
 
The independent corroboration discussions of 803(2) were generally extremely weak, especially given the details in the fact-pattern. Pretty much no-one referenced the cellphone data that showed defendant’s phone in the area of the incidentwith the proper timeline, and then showed him escaping WEST towards, TEXAS. All of this was illustrated in the map, which most also managed to ignore. Ronald, an eyewitness and victim, was there to provide testimony at the trial, he of course corroborates what Kate says and what she looked like. Officer Bartolomei also testified very carefully to support the excited utterances finding as well as the reliability for truth use of Kate’s statements.

The Structure and Analysis

103/104. Law v. Fact distinction and its relationship to abuse of discretion, de novo and plenary types of review.  Standard 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.

Proper analysis of the preservation issue required discussion of the TWO motions in limine. Defendant opposed the prosecution's motion and filed one of his own. The defendant opposed the prosecution motion in limine to admit, but his expression of the grounds for his objection(s) was hardly the highest level of legal clarity. The court’s definitive ruling is the best expression of the findings of fact related to the offer of proof, and critical for both 803(2) and the Crawford analysis. However, defendant’s own motion in limine is much clearer when it comes to the grounds for purposes of preserving his hearsay and CC objections and once again there is a definitive ruling from the court as to Kate’s statements to Officer Bartolomei. Substantial right? Certainly the federal constitutional claim would be, but the conviction and imposition of over 15 years in prison terms is substantial enough.

104. This was a jury trial. 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 (firearm), Why, Intent appears critical. Once again, you have a statute and an instruction and the major issue seems to be related to the intent, especially given how the jury ultimately decided the case. Notice that defendant is convicted of all charges and the use of a firearm in their commission, except attempted murder, where he is convicted of the lesser included offense of attempted manslaughter. That is why the intent instruction is so critical. Clearly the specific intent in the commission of the crime was the critical difference for the trial jury and that instruction had to then be used for the relevance and TOMA analysis. The fact that defendant was armed, and fleeing the scene of a shooting in a car with the weapon and, according to Kate, more ammunition for it, certainly gives the claim of ongoing emergency as a threat to the public safety salience, even if Kate and Ronald themselves are no longer in imminent danger.

801(a)-(c). Hearsay. Officer Bartolomei relays Kate's statments, and his own, to the jury. Most answers ignored what Bartolomei said.

Referencing 801(d) in any way other than "does not apply" was graded down. I would recommend avoiding even "does not apply". Way too many such references in this batch of exams. Stop it!

802. Hearsay Risks. The defendant in his motion developed this with his challenge to Kate's credibility.

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.

Corroboration and Bootstrapping. I was generally disappointed with the answers in this area, again. 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 Bartolomei and Ronald's description of what Kate looked like, the cell phone data, the map showing the physical context of defendant's mobility and possible threat to the general public, the physical description of the car as observed by Bartolomei and Raymond. Defendant's arrest also gives you the Toyota and the gun. The technical elements being corroborated and the reliability for truth use had to be distinguished in the best answers.

Caselaw. The best answers again 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. Crawford quotes of the rule were fairly common, but not so much its guidance on what “testimonial” means, again; again, the 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 not discussed often enough in this group of exams.

A few students referenced the factors from People v. Chism, the california case that I discussed in class. Disappointing that more did not.

403/105. Since the evidence was found to have been properly admitted, it had to overcome the 403 objection. Presenting evidence from eyewitnesses identifying defendant Melendez as the driver of the Toyota in a high-speed highway chase who used a black handgun to fire into the car he was pursuing in which he knew two people, including his former girlfriend were is prejudicial to Kevin Melendez. But not UNFAIRLY so. What is unfair prejudice to prove it through the hearsay statement of an absent witness who has not been subjected to prior or delayed cross-examination. That is fundamentally unfair. Does it rise to a violation of the hearsay rule? No. To a constitutional violation under the confrontation clause? No. But it could under 403. You may revisit the discussion of “why we distrust, and exclude hearsay” to elaborate.