Evidence Exam Feedback Memo
Fall 2020

LAW 6330 (4 credits)
Professor Pedro A. Malavet
Fall 2020


Procedure for Examination Review.

  • Review must take place during the spring semester, I will not be available for this purpose after that.
  • You must request and review the PDF of your marked up exam that I provide individually through CANVAS and read this feedback memorandum before seeking to schedule an appointment with me.
  • 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 11.39, significantly above last year's average of 11.07 out of 12; two-thirds of the class had perfect scores; the lowest score was 6 of 12. The average score for the essay was 151 out of 360, up from the 144 averaged last year.
  • Exceeding the Character Count. Most students stayed within the character limit. No major deductions for this.

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.

I am having trouble uploading the PDF files to the webpage. I will post them on the CANVAS page while I work out the technical issues.

Grading Sheet for the entire Fall 2020 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]

I am having technical prolems uploading PDFs to the website. I have uploaded them to the CANVAS page while I resolve them.

The True/False Explained

  1. 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

    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.
  1. 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

    TRUE. CANNOT would makes it FALSE; “never” along with “always” would also be FALSE But GENERALLY is the, well, general rule. 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.

  2. During civil commitment proceedings against University of Alabama senior William Jones, 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.

  3. 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 were playing Alabama in the SEC Championship game this bizarre year.

  4. During a criminal trial for fraud, the state calls Trey Parker. He is defendant Molly Maguire’s ex-boyfriend and he answered the door at the time of her arrest. The state offers his testimony that when Maguire 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. Maguire objects, arguing that proof of her behavior at the time of arrest is irrelevant. In a sidebar conference, her lawyer points out that Maguire’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

    TRUE. Changed “not allowed” back to “may” to make it true, the court has the discretion to admit this evidence as presented. 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.

  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

    FALSE. Same as last year. 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.

  6. 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 melee, his girlfriend Katy Faver, after observing Schoenstein running South on a grassy area of the Plaza of the Americas heading towards Union Road and Turlington Plaza on the campus of the University of Florida, said to approaching police officers —“Officers, officers, I saw the whole thing, he went that way, towards University Avenue” while pointing to the North towards Library West, is not hearsay.

    True False

    TRUE. The Animal House scenario with a University of Florida context. It is nonhearsay on both the Duck Soup “it cannot be true” analysis as well as a verbal act.  Changed it to NOT from last year to make it true.

  7. 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 must sustain the objection.

    True False

    FALSE. A question based on Problem 5-E. Drug Sale or Scam? At page 437 of the text. Fun! I changed the “may overrule” from last year, which would be true, to “must sustain” which is false.

  8. 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 undue delay.

    True False

    FALSE. The rule says the court “may” indeed exclude on that basis, continuing my pattern of going through each of the six categories listed in Rule 403. So the rules allow it, and “cannot” or “do not” is the false given the rationales in 403. 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.

  9. In a criminal appeal based on an evidentiary question, the court finds that the claimed error was not properly preserved for appeal by the defendant. The appellate court also finds that the trial court erred in admitting the now-challenged evidence against the defendant. Under the Federal Rules of Evidence, the appellate court is still given discretion to reverse the conviction.

    True False

    TRUE. A repeat. True under the “Plain Error” language of FRE 103(e), which is still available to the court, provided that a substantial right be affected.

  10. In a criminal 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

    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 under 404(a)(2)(A)[ii], 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. Following the loss in the SEC Championship Game, Alabama fan George drowns his sorrows about his team’s defeat 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 four shots of bourbon half an hour ago.” Given the definition of hearsay of Rule 801(a), (b) and (c), this evidence is not hearsay.

    True False

    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 drunk all that cough syrup” from Stripes! But modified to drowning sorrows and the SEC championship.

  12. Defendant, Dr. Buckaroo Banzai, famed neurosurgeon, particle physicist, rock-star and law professor, 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

    TRUE. Changed “cannot” from last year, false, to “may”, which is true. My current version of U.S. v. Lightly, loosely based on the Adventures of Buckaroo Banzai Across 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.

Some Comments on the 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

This was a very unusual examination for me. A fully-open-book, online examination is not something I have ever done in Evidence. There is certainly some improvement in the overall grades compared to the year before, but my impression is that the combination of time and character limits for the essay proved to be very demanding. I will be using the same system in the spring because it seems to be the only fair way to test students in a hybrid course with both in-person and online sections. I hope, however, that this will be the last time this system is required.

The single most annoying oversight in too many exam answers was how many students did not expressly acknowledge in their essays that there were TWO guns and that the evidentiary questions applied to the second one: the GLOCK! I was also surprised that "attempted armed hijacking" as the excitement causing event was not used more often.

I saw the usual confusion about the distinction between conditional facts and ultimate facts.

Of course, the question was quite purposely designed to follow the structure that I outline in class on a daily basis, but more specifically what I indicated in the video feedback for the Motion in Limine project.

I will not transcribe the same things I have written in previous memos or said on the video in the interest of brevity.