Evidence Practical Project Fall 2016

LAW 6330 (4 credits)
Section 02BB
Professor Pedro A. Malavet
Fall 2016


As I announced in my Course Description and Rules, I require each student to submit a practical project that accounts for ten percent (10%) of your testing score for this course. The project is judged on a pass/fail basis.

Each student will work individually, although I have assigned you a role to play as indicated below. You are allowed to discuss the problem with your classmates and may refer to forms and other resources, as long as you draft your own motion.

Your assignment is to write a motion in limine, based on the fact-pattern that follows. Students with last names starting with letters between ALF and HUD will write for the defendant, Rodney Fields, and those whose last names fall between HUY and WIT will write for the prosecution, the Commonwealth of Pennsylvania.

You will assume that the applicable rules are the Federal Rules of Evidence, together with accompanying caselaw as studied in your Fall 2016 Evidence Course. Your motion must adequately represent the interests of the party you represent, be it the defendant or the People of the Commonwealth of Pennsylvania, and make reference to the pertinent Federal Rules of Evidence, cases and other materials included in your casebook and Rules supplement (you are allowed to extend your research beyond these resources, but it is not required).

I recommend a list of bibliographic resources collected by the Legal Information Center [click here to view the bibliography]. I also highly recommend the Public Defender Service of the District of Columbia Criminal Practice Institute Trial Manual (http://www.pdsdc.org/LegalCommunity/TrainingCPI.aspx).

DUE DATE: Projects are due on or before 5:00 p.m. on THURSDAY, October 27, 2016. All documents must be in either MS Word or PDF format and must be uploaded to the eLearning in Canvas course page using the Motion in Limine-Practical Project assignment created for that purpose.

The system will be set to allow multiple submissions up until the time of the final deadline. Uploading a file that is corrupted and cannot be opened will be treated as a failure to make a timely submission.

  • Frequently Asked Questions
    • Is there a maximum length to the project?
      • No.You may write as much as wish.
    • Is there a minimum length?
      • There is certainly a minimal level of effort required to pass. But, at least five (5) to ten (10) pages, double-spaced, is about what it should take to do minimal justice to the project.
    • May and should I use headings and subheadings?
      • Yes. Preferably the ones I post on the board every day.
    • What title should I use?
      • Motion in Limine To:
        • Admit [certain evidence], if you are the prosecution
        • Exclude [certain evidence], if you are the defense

Fact-Pattern: The Commonwealth of Pennsylvania v. Rodney Fields

Commonwealth of Pennsylvania
Rodney Fields

The exam was an appellate issue, but for purposes of the Motion in Limine you will write as if the matter was at the trial level in the Court of Common Pleas. So, the matter is in the Court of Common Pleas of Philadelphia County, Criminal Division at No(s): CP-51-CR-0008321-2013. Each side will move according to their position, the defense will object to the admission and the prosecution will ask for a ruling allowing it to use the controverted evidence. The "facts" are presented under the rubric "at trial, we expect the evidence to show...". The parties will argue the rules basis for admissibility and the constitutional arguments as you see them layed out in the appellate decision below.

Defendant, Rodney Fields, faces one count each of attempted robbery, simple assault, reckless endangering another person (REAP) and attempted theft by unlawful taking.

The trial court summarized the relevant factual history of this case, as presented at trial, in the following manner. (For purposes of the motion, you will use these facts by saying that "when the matters comes to trial, we expect the evidence to show ...".)

  • Police Officer Richard Butler testified that on April 10, 2013, at about 1:30 AM, he was on patrol with his partner, Officer Burrell, in the vicinity of 130 South 12th Street in Philadelphia. At that time and place he heard a commotion and a white male, later identified as Justin Shelly, screaming that he was being robbed and crying for help. Officer Butler observed another white male, [Appellant], holding Shelly by the collar of his jacket, with his fist clenched ready to punch. As the officer approached, Shell[y] yelled out “I’m being robbed”.
  • Officer Butler and his partner yelled for [Appellant] to release Shell[y] and then separated the two to investigate. [Appellant] complied with the police command to release Shelly. [Appellant] then stated that he knew Shelly and that Shelly owed him money. The Commonwealth introduced photos of Shelly, showing injuries and a photo of [Appellant]. Officer Butler testified that Shelly had injuries and that the photos accurately reflected the appearance of Shelly and [Appellant] at the time of the incident. The photos of Shelly showed significant injuries to his face. The arrest photo of [Appellant] did not show any injuries.
  • [Appellant] testified that after he was arrested he gave a statement to a detective. The statement described a dispute over money Shelly owed to [Appellant] connected with a purchase of crack and a denial by [Appellant] that he struck Shelly.
  • Shelly did not appear at the trial despite “reasonable efforts by the prosecution to obtain his appearance.”

Trial Court Opinion, 12/22/14, at 1-2 (internal citations omitted).

We further summarize the procedural history of this case as follows. On July 3, 2013, the Commonwealth filed an information charging Appellant with the above-mentioned offenses as well as one count of reckless endangering another person (REAP) and attempted theft by unlawful taking. Appellant proceeded to a bench trial on April 25, 2014, at the conclusion of which, the trial court found Appellant guilty of attempted robbery and simple assault, and found Appellant not guilty of attempted theft by unlawful taking and REAP. On July 18, 2014, the trial court imposed a sentence of two and one-half to five years’ imprisonment for attempted robbery and a consecutive two year probation sentence for simple assault. Appellant did not file a post-sentence motion. On August 11, 2014, Appellant filed a timely notice of appeal.

During the trial, Appellant objected to Officer Butler’s testimony regarding statements by Shelly on both hearsay and sixth amendment Confrontation Clause grounds. When the objection was overruled, Officer Butler testified that he heard Shelly cry out for help and state “I’m being robbed.” N.T., 4/25/14, at 10, 13. Officer Butler testified that when he first observed Appellant and Shelly, Appellant had grabbed Shelly “by the collar of his jacket with his fist clenched ready to punch him.” Id. at 11. Officer Butler noticed that Shelly “appeared to be trying to pull away from [Appellant, and] appeared to be extremely frightened.” Id. at 12. The record also contains photographic evidence, admitted without objection, that showed Shelly sustained injuries while Appellant had none.

On appeal, Appellant raises three issues for our review. (At trial, defendant will raise the same issues in the Motion in Limine).

  • 1. [Whether] the [trial c]ourt erred by allowing hearsay of the [c]omplainant to be introduced by the Commonwealth[?]
  • 2. [Whether] the [trial c]ourt violated Appellant’s Sixth Amendment [c]onstitutional [r]ight of [c]onfrontation by allowing the [c]omplainant's hearsay statement to be introduced without the right to cross-examine this witness[?]
  • [I eliminated the third issue from exam consideration because it was not pertinent to the hearsay/6th Amendment questions.]

In his first issue, Appellant avers that the trial court erred when it admitted certain alleged hearsay statements of the victim. Appellant’s Brief at 13. The Commonwealth counters that the statements were properly admitted as excited utterances. In his next issue, Appellant argues that even if Shelly’s statements were admissible excited utterances, the Confrontation Clause barred their admission. Appellant’s Brief at 12. The Commonwealth counters that Appellant’s Sixth Amendment rights were not violated because Shelly’s statements were not testimonial within the meaning of the Confrontation Clause. Commonwealth’s Brief at 5.

The determination of “[w]hether Appellant was denied [his] right to confront a witness under the confrontation clause of the Sixth Amendment is a question of law for which our standard of review is de novo and our scope of review is plenary.” Commonwealth v. Dyarman, 2011 PA Super 245, 33 A.3d 104, 106 (Pa. Super. 2011) (citation omitted), affirmed, 621 Pa. 88, 73 A.3d 565 (Pa. 2013), cert. denied, Dyarman v. Pennsylvania, 134 S. Ct. 948, 187 L. Ed. 2d 785 (2014).

Statutory Materials

  • 18 Pa.C.S. § 901. Criminal attempt.
    • (a)  Definition of attempt. — A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.
    • (b)  Impossibility. — It shall not be a defense to a charge of attempt that because of a misapprehension of the circumstances it would have been impossible for the accused to commit the crime attempted.
    • (c) Renunciation. 
      • (1) In any prosecution for an attempt to commit a crime, it is a defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal intent, the defendant avoided the commission of the crime attempted by abandoning his criminal effort and, if the mere abandonment was insufficient to accomplish such avoidance, by taking further and affirmative steps which prevented the commission thereof.
      • (2) A renunciation is not “voluntary and complete” within the meaning of this subsection if it is motivated in whole or part by:
        • (i) a belief that circumstances exist which increase the probability of detection or apprehension of the defendant or another participant in the criminal enterprise, or which render more difficult the accomplishment of the criminal purpose; or
        • (ii) a decision to postpone the criminal conduct until another time or to transfer the criminal effort to another victim or another but similar objective.
  • 18 Pa.C.S. § 3701. Robbery.
    • (a) Offense defined. 
      • (1) A person is guilty of robbery if, in the course of committing a theft, he:
        • (i) inflicts serious bodily injury upon another;
        • (ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;
        • (iii) commits or threatens immediately to commit any felony of the first or second degree;
        • (iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury;
        • (v) physically takes or removes property from the person of another by force however slight; or
        • (vi) takes or removes the money of a financial institution without the permission of the financial institution by making a demand of an employee of the financial institution orally or in writing with the intent to deprive the financial institution thereof.
      • (2) An act shall be deemed “in the course of committing a theft” if it occurs in an attempt to commit theft or in flight after the attempt or commission.
      • (3) For purposes of this subsection, a “financial institution” means a bank, trust company, savings trust, credit union or similar institution.
    • (b) Grading. 
      • (1) Except as provided under paragraph (2), robbery under subsection (a)(1)(iv) and (vi) is a felony of the second degree; robbery under subsection (a)(1)(v) is a felony of the third degree; otherwise, it is a felony of the first degree.
      • (2) If the object of a robbery under paragraph (1) is a controlled substance or designer drug as those terms are defined in section 2 of the act of April 14, 1972 (P.L. 233, No. 64), known as the Controlled Substance, Drug, Device and Cosmetic Act, robbery is a felony of the first degree.
  • 18 Pa.C.S. § 3921. Theft by unlawful taking or disposition.
    • (a) Movable property. —A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof.
  • 18 Pa.C.S. § 2701. Simple assault.
    • (a) Offense defined. —Except as provided under section 2702 (relating to aggravated assault), a person is guilty of assault if he:
      • (1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another;
      • (2) negligently causes bodily injury to another with a deadly weapon;
      • (3) attempts by physical menace to put another in fear of imminent serious bodily injury; or
      • (4) conceals or attempts to conceal a hypodermic needle on his person and intentionally or knowingly penetrates a law enforcement officer or an officer or an employee of a correctional institution, county jail or prison, detention facility or mental hospital during the course of an arrest or any search of the person.
    • (b) Grading. —Simple assault is a misdemeanor of the second degree unless committed:
      • (1) in a fight or scuffle entered into by mutual consent, in which case it is a misdemeanor of the third degree; or
      • (2) against a child under 12 years of age by a person 18 years of age or older, in which case it is a misdemeanor of the first degree.
  • 18 Pa.C.S. § 2705. Recklessly endangering another person.
    • A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.

Facts taken and modified for exam purposes from: Commonwealth of Pennsylvania v. Fields, 2015 Pa. Super. Unpub. LEXIS 3622 (Pa. Super. Ct. 2015).







A typical federal motion looks roughly like this
(you must of course modify the form to fit the current fact-pattern):








  student name] [1]


In the United States District Court

For the NORTHERN district of FLORIDA

GAINESVILLE division [2]


[Case Title] [3]

                     The United States,


                                          vs.                                                            Criminal No. 2003-192 [4]


                             John Smith,






[Document Title] [5] MOtion in Limine

[You might add Specific purpose: e.g. “To Admit ...” Or “To Exclude ...”]


[Opening] [6]


[Body of the Document: What you want to say/argue]]


[Prayer] [7]







[Certificate of Service] [8]


[Counsel’s Signature, Address and Telephone Number.] [9]









[1] In some courts, counsel must include name, address, telephone number and identify the client at the top of the first page of any filing, as an administrative convenience.

[2] The positioning of the court designation in the document varies from state to state and even among the Federal Judicial Districts. But, somewhere on the first page, the party must identify the court before which the action is pending. I have chosen the district of Colorado, because the US Air Force Academy is in that state. I randomly selected Denver as venue.

[3] In the complaint, the case title must include the names of every party, plaintiff or defendant. Thereafter, a shortened case title is used. In our example this is not a problem, but imagine a case with hundreds of parties. (The title of amended complaints in the DuPont fire case listed all parties and took up hundreds of pages). In a criminal case, it is the State or the People, or the People of the  United States vs. defendant(s).

[4] The case number is assigned by the clerk of the court. The designations typically will indicate if the case is a civil or criminal matter. Other sub-categories may also be used, depending on local practice. The number usually includes the last two digits of the year in which the matter is filed, followed by the assigned number.

[5] The document title is sometimes placed to the right of the case title, this depends of local court practice. It is never placed before the court designation.

[6] The opening tells the court which party appears before it to request something. For example: “NOW COMES the defendant, John Smith, through his undersigned counsel, and to the court respectfully states and prays:”

[7] Most legal documents request that the court do something, even if it is simply to take notice of the information therein contained. The most common exception are discovery documents, which are usually addressed to opposing parties.

[8] In the civil context, the complaint will generally be the only document in a case file without a certificate of service. In this context, service means to give notice of the filing to the other party. It generally means providing opposing counsel with a copy of the document by personal deliver or by mail. However, when you file a complaint, you generally do not know who opposing counsel will be, and, absent a stipulation regarding service, you the party must be officially summoned. Notice of the complaint is accomplished by summons. Rule 5(b) of the Federal Rules of Civil Procedure, governs service of documents filed after the complaint. Please note that service by mail or messenger service is generally acceptable.

[9] Some courts require that each document include the bar number of the attorney who signs it. In any case, counsel is generally required to include her name, mailing address and telephone numbers in the motion.