The University of Florida
Fredric G. Levin College of Law
Fall 2001
Professor Pedro A. Malavet

Final Examination Feedback Memo


PROCEDURE FOR EXAMINATION REVIEW. I will be available to discuss examination results during the Spring semester, beginning after Tuesday, February 12, 2002. Exams and the respective Feedback Memorandum will be available for pickup from my secretary beginning on that date.

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. 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.


I realize that this may not be all that comforting if you got a grade below "B," but let me try it anyway.

First, the good news. I was very pleased by the exams. The average for the True/False was better than 14 out of 15 correct, and, even better, the average for the Hearsay/Nonhearsay questions was just over 8 out of 10. All in all, I liked these results and the fact that I was able to cover a great deal of material in them.

Additionally the average for the three discussion sections was much higher than it is for Civil Procedure (meaning that students discussed more issues in the evidence course than are normally spotted by Civil Procedure students). This means that almost all students wrote solid exam answers that showed a high level of basic learning and a mature and more experienced approach to second-year exams. The average for the written explanation sections (part II-B and Part III) was pretty good, it was better than 50% of the total points on average, which is better than my usual rules exam (naturally Civil Procedure) where the average is usually from 24%-40% of the points. I was especially pleased that students took to heart my admonition not to transcribe pre-written outlines without tying them to facts. I saw much less of that kind of error in this exam than I do in my Civil Procedure exams.

Now, the bad news. Unfortunately, that was true for essentially the entire class, which meant that ranking students within the mandatory curve necessarily resulted in some disappointing grades. Still, on balance, the exam answers were good and displayed a pretty solid general level of knowledge about the law of evidence as I taught it.


This was a little challenging in Part II-B. However, if students went beyond the allotted space, I still read the answers only if they had wasted space unnecessarily discussing questions other than 2,3,8, and 9, or if students had crossed out their original answer and started over in the back page. Otherwise, I stopped reading at the end of the page.

Space was overwhelmingly not a problem in Part III. Most students used less than half of the given space. Only on one occasion did a student actually run out of space and I had to stop reading the answer because the student had simply crafted the answer incorrectly.



In this section, you must select either "True" or "False." The statement, as drafted, when read in the context of a Federal Trial, is either True or False.

In a federal trial:

1. A non-expert witness may give testimony in the form an opinion.

True False
TRUE: FRE 701.

2. A witness can never be asked leading questions by counsel for the party that called her.

True False
FALSE: FRE 611(c) Allows hostile witnesses and those associated with the other side to be questioned with the use of leading questions. The term "never" was the crucial one here.

3. An objection is usually required in order for the objecting party to be able to argue on appeal that admission of the objected evidence was an error.

True False
TRUE: FRE 103(a)(1). This is in fact the general rule for arguing that admission was in error.

4. Generally, evidence of character or trait of character should never be admitted for the purpose of proving that the person to which the evidence refers is a bad person.

True False
TRUE: The "bad person" inference is always unfairly prejudicial, as we discussed in class.

5. Evidence that an accused has been convicted of certain crimes may be admitted, for the purpose of attacking his credibility as a witness.

True False
TRUE: FRE 609(a)(1)[B] & 609(a)(2). The crucial term was "may".

6. If an appellate court finds that evidence was admitted in error, it must always reverse the judgment and order a new trial.

True False
FALSE: FRE 103(a) refers to "substantial rights of the parties" and the doctrine of harmless error means that error does not always require reversal. Hence, the crucial term here was "always".

7. Limiting instructions always reduce the danger of unfair prejudice enough to justify admissibility.

True False
FALSE: The crucial phrase is "enough to justify admissibility", while one might argue that limiting instructions always reduce unfair prejudice (FRE 105), cases such as Bruton explain that instructions do not always reduce prejudice enough to justify admissibility.

8. Only relevant evidence is potentially admissible.

True False
TRUE: FRE 402.

9. Statements that are found by the court to be within the definition of hearsay of Rule 801(a), (b) and (c), are never admissible.

True False
FALSE: The definition of hearsay is just the starting point, since there are many exemptions and exceptions as we discussed in class, and as the next section required you to know!

10. The credibility of a witness may be attacked by evidence in the form of opinion or reputation that refers to character for untruthfulness.

True False
TRUE: FRE 608(a).

11. The presiding judge alone completely decides all relevance questions.

True False
FALSE: FRE 104(b) provides for the sharing of the authority to decide relevance between judge and jury, so the judge alone does not always resolve all relevance questions.

12. Though relevant, evidence can be excluded if its probative value is substantially outweighed by considerations of waste of time.

True False
TRUE: FRE 403 provides six reasons for excluding relevant evidence if its probative value is outweighed by any of those six, and waste of time is one of the six reasons that might justify exclusion.

13. While examining a witness following his direct testimony, counsel for the opponent of the calling party will never be allowed to ask questions that are beyond the scope of direct.

True False
FALSE: Even putting aside impeachment, FRE 611(b)[2] allows the court the discretion to vary the order of proof and allow questioning beyond the scope.

14. Witnesses can only be questioned during a single, uninterrupted occasion during a trial.

True False
FALSE: This in many ways is the flip side of no 13. A witness could be questioned during a single occasion, or could be recalled to the witness stand by each party during their case in chief.

15. An expert can only testify in the form of an opinion.

True False
FALSE: FRE 702 allows an expert to testify in the form of an opinion or otherwise. Experts often provide direct, non-opinion testimony.

PART II: HEARSAY? (30%: 20% FOR A AND 10% FOR B)


In each of the following questions the only issue is whether the evidence, as offered, is or is not hearsay. Assume that Rule 801 (a), (b) and (c) provides the applicable standard. You should consider the evidence to be hearsay if it fits within those definitional provisions and nonhearsay if it does not. In this section, you must choose between "hearsay" and "nonhearsay" only. Some of the items may be admissible under some express exemption or exception included within the rules, but the question is limited to 801(a), (b) and (c).

1. During a political campaign, candidate Smith posts flyers that state: "Candidate Jones was once arrested on charges of child-molesting." At a civil trial for defamation of character filed by candidate Jones against candidate Smith, evidence has already been introduced that Jones has never been arrested for child-molesting. Jones then offers one of the flyers into evidence. The flyer is:

hearsay nonhearsay
NON-HEARSAY. In the context of a defamation trial, the statement constitutes a verbal act and is thus nonhearsay. If you think about it, the lack of truth of the statement is necessary in order for it to be defamatory.

2. In his will, John David Rockefeller disinherits his son John Robert Rockefeller. John David explains that he is disinheriting his son because, and I quote from the will: "My no-good son, John Robert Rockefeller, is a card-carrying member of the ACLU and I am not supporting any commie, pinko, subversive with my money!" At his trial under the 2002 Bush-Ashcroft Sedition Act, which has classified the ACLU as a terrorist organization, the prosecution offers the statement quoted above to prove that John Robert Rockefeller is a member of the ACLU.

hearsay nonhearsay
HEARSAY: The statement is classic hearsay if offered to prove the truth of the matter asserted, which, under the facts it is.

3. George Orwell witnessed an armed robbery. At a police station, several months later, he tells officer Hernandez that John Nichols was the person he saw commit the robbery. At Nichol's trial, as proof that Nichols committed the robbery with which he is now charged, George Orwell testifies: "I told officer Hernandez that Nichols was the one who did it." That is the only testimony in which Orwell refers to Nichols at the trial.

hearsay nonhearsay
HEARSAY: Again, classic hearsay. It is offered as proof of the matter asserted and is the only reference to the accused, and it is in the form of what the witness said at a time other than during his in-court testimony.

4. As proof that mechanic James Cannady assumed the risk of being involved in a truck accident on account of faulty brakes in riding in David Duchovny's rig, Duchovny's testimony that "I told James before he got in that my brakes were not working properly."

hearsay nonhearsay
NON-HEARSAY: It is not being offered to prove that the brakes were defective, but rather to prove that the mechanic was told that the brakes were defective.

5. As proof that Jean had been in the foreign book section of the Legal Information Center, located on the second floor of Bruton-Geer Hall, evidence that on exiting the library Jean said to the circulation attendant handling her book check-out, "I found this copy of the Partidas (a Spanish Medieval Code) in the foreign book section." The LIC's director, Professor Taylor, has already testified, based on her personal knowledge, that in fact that book is shelved in the LIC's foreign book section, which is on the second floor of Bruton-Geer hall.

hearsay nonhearsay
NON-HEARSAY: A different take on Papier Mache Man. There is independent evidence of where the book was located and her statement is used to show that she had been where the book was because that is the only way she would have stated this. Foundational evidence confirming that the book was there has already been admitted.

6. In a negligence trial involving an auto accident, George Bly, who was an eyewitness to the accident, testifies: "The light was green for the aquamarine Lexus. The brown Mazda ran a red light." The owner and driver of the aquamarine Lexus was plaintiff Dr. Consuelo Lombardi. The owner and driver of the brown Mazda was Omar Jones. On cross-examination, counsel for Jones asks Bly about a conversation that BLY had with police officer Christian on the day of the accident. Over Lombardi's hearsay objection, counsel for Jones is allowed to ask Bly whether he said to Christian, "The brown Mazda had the green light in its favor."

hearsay nonhearsay
NON-HEARSAY: This one was about context. The non-hearsay use is naturally impeachment by prior inconsistent statement (FRE 613(a)). As we discussed in class, courts routinely allow such use of statements and choose the non-hearsay impeachment use over the truth of the matter asserted use.

7. Juan Cruz was living at Huntington Lakes Apartments in Gainesville on a month to month lease until he moved out on July 31, 2001. In the trial of Huntington Lakes' suit against Cruz for unpaid rent, Cruz offers evidence that he had sent out a letter to Huntington Lakes management in May of 2001 that stated: "July will be my last month as tenant. I am vacating on July 31, 2001."

hearsay nonhearsay
NON-HEARSAY: Notice of termination of the lease is a verbal act.

8. On October 1, 2000, Ruth Johnson writes a letter to sister Joann in which she states that her fiancee Robert Richards "is a cheating piece of scum. He will not pass up any opportunity to hit on another woman." On January 17, 2001, while Richards is on trial for bank robbery, Ruth Johnson provides damaging testimony against her now former fiancee Richards on direct. During their direct-examination of Ruth, the prosecution offers the letter to prove that Robert is a cheating piece of scum who should be convicted.

hearsay nonhearsay
HEARSAY: here it is being offered to prove the truth of the matter asserted, which distinguishes it from the impeachment use in No. 6.

9. As proof that Bonita Young planned to go to New York on Tuesday, evidence that on Monday she wrote in an e-mail to her boss, "Tomorrow I'm coming to see you; I'm flying to New York on United flight 801 arriving at La Guardia at 4:03 p.m."

hearsay nonhearsay
HEARSAY: The statement is being offered to prove the truth of the matter asserted, that she had plans to travel to New York.

10. "My opponent's father is a filatelist," screams candidate Joe Calhoun during a stomp speech for his campaign for the U.S. Congress. While, as we all know, the actual meaning of the phrase states that the opponent's father collects stamps, under applicable substantive law, the father is allowed to argue to the jury that the phrase, as used in this context, is defamatory. Accordingly, David Johnson, who was present when the speech was delivered, testifies, after describing what happened during speech: "Calhoun then said: 'My opponent's father is a filatelist.' "

hearsay nonhearsay
NON-HEARSAY. This is a more embelished version of question no. 1. It is in fact a notorious political war story that was allegedly used against long-time Florida Congressman Claude Pepper during one of his early campaigns. In the context of a defamation trial, the statement again constitutes a verbal act and is thus nonhearsay. The substantive argument, which is a given in the question, goes like this: what Calhoun really meant to communicate was something else, and that something else is not true (I will leave it to your imaginations to decide what the innuendo was).



Referring only to the items that you classified as "hearsay" in this section, identify only those items that, might be admissible despite their classification as hearsay. You must identify the number of the question, and then state that although the item fits the definition of hearsay of FRE 801(a), (b) and (c), it nonetheless is or may become admissible under the Rules. In the limited space provided in the next page, simply write as to each pertinent item: (1) the number of the question; (2) "never admissible," "admissible," or "potentially admissible"; and (3) specifically identify one provision of the Rules of Evidence or an evidentiary doctrine that allows or might allow admissibility, along with a short explanation. [25-lines]. SIXTY POINTS.

2, 3, 8, 9 (TOTAL OF 60 POINTS).

I deducted 8 points when references were made to items that should have been classified as non-hearsay (I did not take these points off if students failed to discuss all the correct answers, given that failing to discuss all the correct ones cost other points). I then used 20 points for correct descriptions of the argument and the applicable rule. The remaining 32 points were for discussion.

I awarded points in this section for many different arguments. But here is a good sample answer (that had space to spare):

2. Never Admissible. 803(3). A statement of belief to prove the fact remembered [UNLESS] it relates to the execution of a will should be excluded. The statement arguably could be a verbal act of disinheritance, in an appropriate case, which this one is not (hence other possible uses fail the relevance standard as to the facts of the case).

MALAVET: Keep in mind that the explanation of why J.R. was disinheriting J.D. is not part of the verbal act of disinheriting, as discussed in relation with problem 3-F. The real exception that provided the strongest explanation was 803(3). Of course, the context makes it quite unfair to admit such evidence. The situation would be different if this were a cause of action related to the will.

3. Potentially Admissible. Eagles Nest [a reference to Problem 3-G], not hearsay. If "John Nichols" is an alias and George did not know his real name, then the statement could be admitted if some other evidence is introduced that "John Nichols" is an alias for the defendant. The facts would be similar to Eagle's Nest.

MALAVET: This was a very creative use of the material we covered in class. I was liberal with this one, given that we did not really spend significant time on 801(d)(1)(C). However, the references to the "Verbal Marker" idea was interesting.

8. Potentially Admissible. 803(3). The evidence can be introduced under an evidentiary hypothesis that Ruth believed Robert was a cheating piece of scum which shows her then existing mental state (by inference, so you do not need 803(3)). The statement would then be relevant as showing bias but could not be used to show Robert cheated. The defendant would have no problem under 403, but the plaintiff would have a problem. Although the plaintiff can impeach its own witness as a preemptive strategy, the court would likely disallow the impeaching statement when the plaintiff uses the fact that it is impeaching as a pretext for admitting the substance of the statement.

MALAVET: Students also indicated that perhaps defendant, if he testified, could be asked about this either because they go to truthfulness or by way of contradiction. Also, again if defendant was a witness, perhaps it would be legitimate reputation for truthfulness evidence. But note that the subject matter could be asked, but the letter would be extrinsic evidence.

9. Admissible. 803(3). This is a statement of Bonita's intent. The intent [could also be] used [to support] an inference that future conduct took place in conformity with that intent [as discussed in relation to the Hillmon doctrine]. However, the statement would not be allowed to prove that her boss also came to NY to meet Bonita. Her intent to meet her boss cannot go to show her boss's future conduct

MALAVET: I tend to agree that under the given facts even the Hillmon doctrine probably would not allow this, but be careful, because under the right circumstances, Hillmon is quite expansive.

PART III: SHORT-ESSAYS (40%: 1(25%) + 2 (15%))

By way of introduction, let me point out that you should not evaluate the points given to your answer on a percentage basis, but rather on an issue basis. In other words, "75 of 150 is 50%, which means I failed" is the wrong way of looking at the number points earned by your answer. In fact, the average for the answers is often much less than 50% of the available points. The reason for this is simply that the maximum number points is based on all the possible items and issues that you could have addressed. But in fact, rarely does any student EVER address all of them. Hence, the highest grade for the essays might represent only two-thirds of the maximum available points.

1. Following an automobile accident in which his car collided with the car driven Holly Johnson, Donald Smith exits his car, walks toward Ms. Johnson's car and tells Ms. Johnson: "I am so sorry." Ms. Johnson wishes to testify about this statement at the trial in which she alleges that Smith's negligence was the proximate cause of the accident. The court overrules a timely hearsay objection. In support of the court's decision, explain why this evidence should be admitted, referring only to FRE 401, 402, 801 and 403. [25%]. [142 lines]

This is a stright-forward application of the Admissions Doctrine of FRE 801(d)(2)(A). 150 points.

FRE 401-402: 30 points
FRE 801(a),(b),(c): 30 points
FRE 801(d)(2)(A): 30 points
FRE 403: 30 points
Policy considerations/discussion: 30 points.

The evidential hypothesis is that by stating that he is sorry Mr. Smith is making an admission of negligence in one of two ways: (1) by necessarily implying, i.e., asserting in the context of the occurrence that he was responsible/negligent; or (2) by expressing sorrow/regret, from which we may infer negligence. Either hypothesis makes the offered testimony probative of negligence, which is a material fact in this tort case as an element that Johnson is seeking to prove. You might have added big words, like inductive vs. deductive reasoning, etc.

Relevance: Saying that one is sorry in the context of the aftermath of an accident can reasonably be interpreted as an admission of negligence. There can be different explanations for this argument. One would be that from the statement of declarant's state of mind the jury could infer his belief that he acted negligently. Another way is to look at it as a direct admission of negligence that is necessarily implied in the statement I am sorry, when made in this context.

Rule 401. Definition of "Relevant Evidence"
"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Either tack would fit within the easy standard of relevance of FRE 401. Feeling sorry after an accident and thereby (a) necessarily implying an admission of guilt, or (b) describing his state of mind, from which we can infer guilt/negligence, makes it more likely than it would be in the absence of such evidence that a crucial fact in this case (the substantive legal element of negligence) is more likely than not likely. Therefore, the evidence becomes eligible for admission under the rules. FRE 402. Some students argued that this was nonhearsay because it was a circumstantial statement of state of mind. There is nothing circumstantial about the declarant's state of mind in "I am sorry!"

Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
[A] All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority.

Rule 801. Definitions [Analysis]
The following definitions apply under this article:
(a) Statement. A "statement" is (1) [1-A] an oral or [1-B] written assertion or (2) [2-A] nonverbal conduct of a person, [2-B] if it is intended by the person as an assertion.
(b) Declarant. A "declarant" is a person who makes a statement.
(c) Hearsay. "Hearsay" is [1] a statement, [2] other than one made by the declarant while testifying at the trial or hearing, [3] offered in evidence to prove the truth of the matter asserted. [FRE 802]

What Smith said is an oral assertion, and is thus a statement [FRE 801(a)(1)[A]] by the declarant, Mr. Smith, who is a person [FRE 801(b)] A "declarant" is a person who makes a statement]. The statement [FRE 801(c)[1]] was made out of court, and is thus not made while the declarant was testifying at the trial [FRE 801(c)[2]]; and is offered to prove to the truth of matter asserted (here, depending on your evidential hypothesis/relevance discussion, you could characterize it as an actual admission necessarily implied and thus communicated by the declarant OR as a statement of state of mind, being offered to prove that state of mind, and from which we can infer negligence). Either one would be truth of the matter asserted use. I was a bit impatient with boilerplate references to whether or not the oral assertion was intended as such, unless a very careful explanation of what the intended assertion was crafted.

Now, if it is a statement of state of mind, you might have thought of FRE 803(3), but I limited that by asking you to use FRE 801 because the admissions doctrine is the path of least resistance.

So, now we get to the admissions doctrine. FRE 801(d)(2)(A) allows the party to offer the statement of the party opponent. Here the context, a trial in which Ms. Johnson alleges that Mr. Smith's negligence was the proximate cause of the accident gives you enough to conclude that Smith is indeed a party­opponent. We know there is a trial, and we know that Ms. Johnson makes claims against Mr. Smith. For the rule to apply, however, the claims must be a claim, a counterclaim, etc., by Ms. Johnson as party-plaintiff (or counterclaimant, etc.) against Mr. Smith as the party-defendant. Therefore, it is the party's own statement, in his individual capacity, and it is being offered against him, thus meeting all three requirements of the admissions doctrine [FRE 801(d)(2)(A)].

Here you could have discussed the nature of the admissions doctrine, especially how it rejects any requirement of personal knowledge, especially as described in the ACN:

2) Admissions. Admissions by a party-opponent are excluded from the category of hearsay on the theory that their admissibility in evidence is the result of the adversary system rather than satisfaction of the conditions of the hearsay rule. Strahorn. A Reconsideration of the Hearsay Rule and Admissions, 85 U.Pa.L.Rev. 484, 564 (1937); Morgan, Basic Problems of Evidence 265 (1962); 4 Wigmore § 1048. No guarantee of trustworthiness is required in the case of an admission. The freedom which admissions have enjoyed from technical demands of searching for an assurance of trustworthiness in some against-interest circumstance, and from the restrictive influences of the opinion rule and the rule requiring firsthand knowledge, when taken with the apparently prevalent satisfaction with the results, calls for generous treatment of this avenue to admissibility.

The rule specifies five categories of statements for which the responsibility of a party is considered sufficient to justify reception in evidence against him:

(A) A party's own statement is the classic example of an admission. ***

Note that under the classification of Ultimate Issues that we discussed in class, negligence is an Ultimate Issue in a civil case because it is an essential Legal Fact (as an element of the tort) that must be proved by claimant Johnson. The importance of the issue affects relevance, and could have been discussed there, but it also affects probative value in the context of the case. The probative value discussion might have incorporated the ACN rejection of personal knowledge and generally from any requirement of trustworthiness, which essentially resolves the 403 balance. On the Unfair prejudice argument, again, this evidence is prejudicial, but not unfairly so under the ruthless treatment of admissions in the context of our adversary system that is enshrined in FRE 801(d)(2).

Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
Although relevant, evidence may be excluded if [1] its probative value is [2] substantially outweighed by [3] the danger of [Fairness Rationales for exclusion:] [F-1] unfair prejudice, [F-2] confusion of the issues, or [F-3] misleading the jury, or by [Efficiency Rationales for Exclusion:] [E-1] considerations of undue delay, [E-2] waste of time, or [E-3] needless presentation of cumulative evidence.

The evidence is relevant, but we still need to question whether or not [1] probative value is [2] substantially outweighed by [3] [the dangers]. I suppose that you might argue for confusion and misleading in addition to unfair prejudice, again perhaps using or critiquing the ACN and the general liberality of the Admissions Doctrine. I really did not see how the efficiency rationales could effectively be used here.

Another matter that might have been discussed is that it is the claimant who is the source of the opponent's statements. This goes to credibility of Ms. Johnson, and to the weight to be given by the jury to her testimony. Neither matter should lead to exclusion in this case.

I found attempts to use 801(d)(1)(B) (prior consistent statements) and 801(d)(2)(B) just plain irritating.

Astonishingly, a few students did the 403 analysis before the hearsay analysis! This resulted in much-reduced point awards. (One justified analysis is reliability of the declarant, which is built-into the 801 analysis).

2. Jonathan Castle was fired by his employer, Boys and Girls Clubs of Greater Los Angeles, Inc., in 1999, after several grams of cocaine were found in his locker at the club at which he worked. During the trial of his suit for wrongful termination, Mr. Castle testifies that the drugs must have been planted there. He added that he had never used cocaine or any other illegal drug. He spent several minutes explaining why he would not touch illegal drugs because he worked with disadvantaged children and would never give them a bad example by consuming drugs. Castle's remarks came during his direct testimony upon questioning by his own lawyer. During the defense case-in-chief, counsel for defendant Boys and Girls Clubs offers the testimony of Susan Prince, a former co-worker of Mr. Castle at the club. She testifies that she and Castle consumed cocaine in a restroom at the club on at least ten different occasions while they were both employed there. Neither the finding of cocaine in Castle's locker nor the alleged drug use with Ms. Price has resulted in criminal convictions for anyone involved. This testimony is received after the court overruled Castle's objection that it was "extrinsic evidence of prior bad acts, which is not permitted by Rule 608(b)." Limiting your discussion to the argument regarding the applicability of Federal Rule of Evidence 608(b) only, explain why the court was correct in overruling this objection. [15%]. [84 lines].

While the objection is technically sound, the ruling is nonetheless correct.

This "extrinsic evidence," which would in fact be barred by 608(b), is neither a general attack on Castle's character nor an attack on his character for truth telling, rather, to put it simply, Rule 608(b) does not apply to block this testimony because it is quite blatantly contradiction testimony used as counterproof against the plaintiff's "Those were not my drugs, I do not use drugs, therefore I was unfairly fired" claim. As such, the evidence has direct substantive significance and impeachment-by-contradiction significance as to Castle. Accordingly, it is not the definite form of impeachment of character (i.e., by attacking the witness' character for untruthfulness, which is generally allowed and regulated by FRE 608(a), although the use of extrinsic evidence of prior bad acts is generally not allowed by FRE 608(b)[P1-A], except that inquiry into such acts IS allowed on cross-examination of the principal witness [P1-B](1) or of a character witness [P1-B](2), to test the character witness' direct testimony) rather it is the specific form of impeachment by contradiction which serves the additional purpose of substantive contradiction on a central factual point of the case: whether or not Plaintiff uses drugs.

I limited you to 608(b) and the non-rules contradiction doctrine that I discussed in class together with FRE 608(b) and which is addressed in the ACN. I also wanted to stay away from the awkward questions of applying 404(a) in a civil case. I also wanted to avoid the use of 404(b) and the absolutely obsessive overuse of 405(b).

I assigned 30 points to a discussion of the elements of 608(b) and 30 points to the discussion of why 608(b) did not apply because the plaintiff had opened the door to this contradiction evidence, and 30 points to the general quality of the discussion.

As I emphasized in class, contradiction is especially important to counter direct testimony on the witness stand. This case screams why it would be fundamentally unfair (not to mention stupid) to use FRE 608(b) to preclude this testimony given that plaintiff has directly put it out there that he does not use drugs.

Quite clearly, the express language of 608(b)[P1-A] would in fact classify this evidence as extrinsic evidence of prior bad acts by Castle and thus would disallow it as a collateral form of character for truthfulness impeachment as it relates to Plaintiff/Witness Castle. It might be possible to make the argument that this is a 607 preemptive strike by the calling party on the credibility of Prince, but, since she appears to be associated with the defense, it would not be cross-examination, given the facts of the problem, moreover this would certainly not survive a 403 attack. There is also a real problem classifying drug use as supporting an attack on the witness's credibility based on their character for truthfulness, as was explored in the notes discussing this material in the casebook, many courts have held that drug use is not a bad act that goes to truthfulness at all. This probably means that you could not even have asked Castle (or even Prince, for that matter) about it on his cross-examination by the defense under FRE 608(b)[P1-B](1).

However, this is impeachment by contradiction, which is beyond the FRE 608(b) prohibition. In this situation, in which the plaintiff has put his lack of drug use into issue (as a factual question, not as a matter of character) and it is in fact the central issue of the case, this testimony must, in fairness, be allowed.

Some students made reference to Rule 613, which was just scary.

Discussion taken straight from the website: In general, I would refer students to the extensive web discussion of Prior Bad Acts and Contradiction in the website.

I got the idea for the question from United States v. Castillo, 181 F.3d 1129 (9th Cir. 1999).

Here the defendant, José Luis Castillo, was convicted by a jury of importation and possession of marijuana with intent to distribute. The district court preliminarily ruled that extrinsic evidence of Castillo´s arrest for cocaine possession was not admissible. Castillo then testified on his own behalf during the defense case, and during direct testimony stated that "he worked with disadvantaged children, and would not have smuggled drugs 'for a million dollars.' Castillo portrayed himself as an anti-drug counselor who taught kids to 'stay away from drugs.' He added that he had never used drugs and would not touch them." After hearing this, the District Court reconsidered its earlier ruling and allowed extrinsic evidence of the cocaine arrest as rebuttal.

The Court of appeals affirmed and stated:

Direct examination testimony containing a broad disclaimer of misconduct sometimes can open the door for extrinsic evidence to contradict even though the contradictory evidence is otherwise inadmissible under Rules 404 and 608(b) and is, thus collateral. This approach has been justified on the grounds that the witness should not be permitted to engage in perjury, mislead the trier of fact, and then shield himself from impeachment by asserting the collateral-fact rule. (181 F.3d at 1132-33).