Evidence Exam Fall 2003
LAW 6330 (4 credits)
Professor Pedro A. Malavet
Before the exam starts, you may read the instructions, AND COUNT TO MAKE SURE THAT YOU HAVE ALL TWENTY-SIX (26) PAGES, AND YOU SHOULD WRITE YOUR EXAM NUMBER ON EVERY PAGE. OTHERWISE, DO NOT GO BEYOND PAGE TWO (THE END OF THE INSTRUCTIONS) OR READ ANY OTHER PART OF THE EXAM BEFORE YOU ARE INSTRUCTED TO START.
Honor Code, Open Rules. Open-Rules< means that you may have with you during the examination your required Federal Rules of Evidence supplement. No substitutions will be allowed. Your supplements may be annotated with handwritten notes, but shall not have any attachments other than tabs to mark the location of specific material (the tabs may have on them numbers and the short titles of the referenced material and nothing more). Only handwriting may cover the blank spaces and the original printing on the supplements. The use of stick-on labels or paper, white-out or any other method to eliminate any of the original printing is prohibited. Other than the addition of handwritten notes and tabs, the supplements shall be in their original condition, no material may be added nor may any material be removed in any way. Violations of the Honor Code or of the exam rules should be reported to me before or during the examination. Violation of these rules shall result in a failing grade and in my referring the matter to the Honor Committee.
Read the Entire Exam. PLEASE READ THE ENTIRE EXAM BEFORE YOU BEGIN TO ANSWER ANY QUESTIONS. The exam consists of twelve (12) True or False questions (Part I), for twenty-four percent (24%) of the exam grade; six (6) Hearsay or Nonhearsay questions (Part II-A) with six follow-up hearsay-but-admissible questions (Part II-B), for a combined total thirty-six percent (36%) of the exam grade; and one (1) essay question, for forty percent (40%) of the exam grade. Please take these weights into account when you design your answer schedule.
Limited Space. You must answer the questions in the space provided in the exam itself. Do not use bluebooks. While I encourage you to outline the answers before you start to write, do not include scratch paper or any additional material with your completed exam.
Write Legibly. If I am unable to read your answer, it is as if you had written nothing. The exam must be written in permanent, dark-color ink. You may not use pencils, erasable ink, or felt-tip markers.
Do Not Unstaple Pages. Unless you are typing your answer, do not take the exam apart. If you do, you MUST RE-STAPLE IT.
Typing. If you are typing your answer, first, let me thank you; second, you must stay within the margins and write only one line of text per line of space given to you.
Grades. In order to protect your privacy, the University now only allows students to access grades individually by electronic means.
Review. I will be available to discuss examination results during the Spring semester 2004, beginning after Tuesday, February 10, 2004. I will not discuss examination results before that date.
You must stop work four (4) hours after MY SIGNAL TO START. Completed examinations must be turned in to The office of student services.
General Instructions For Parts I and II
Select the best answer to the question presented. In this section, do not look for pperfect answers, just the most correct one among the two alternatives available to you, in light of the question or statement presented. No explanations are required or allowed. Your answer will either be correct or incorrect, there will be no partial credit for incorrect answers. Circle the appropriate word or letter that you select as your response.
Do not assume any facts not given to you. While you are expected to draw reasonable conclusions from the facts given, you should not assume facts. In this section of the exam, mmissing facts suggest three possibilities: (1) you need to read the question again, i.e., iitss in there somewhere, (2) the fact is not necessary to the resolution of the question, or (3) I made a mistake and you may need to alert me to it (if you are convinced that this is what is going on, do not be afraid to ask the question).
Do not look for issues that are not relevant to answering the question. The question asked determines the issues raised, read it carefully and answer the question I asked, with the best possible response among the alternatives given.
Applicable Rules. Assume that the applicable rules of evidence are the Federal Rules of Evidence, taken together with all the accompanying doctrines and caselaw as we discussed them in class.
Part I: True or False (24%)
In this section, you must select either TTrue or FFalse. The statement, as drafted, when read in the context of a Federal Trial, is either True or False.
1. Counsel for the defense in a contract case calls the only defendant, John Smith, to the witness stand during the defense case-in-chief, for direct examination. If counsel is in fact asking leading questions, an objection by plaintiffss counsel that defense counsel is leading the witness should be sustained.
2. Generally, evidence of character or trait of character is only admissible to prove that the person to which the evidence refers acted in conformity therewith on a particular occasion.
3. In a civil case in which the plaintiff claims to have been the victim a sexual assault, the defendant has evidence of the alleged victimss sexual behavior that may be admissible under Rule 412(b)(2). Thirty days before the trial, the defense files a motion in limine seeking the courtss permission to use that evidence, and serves the motion on the plaintiff. The defense motion was not filed under seal and the plaintiff seeks an order precluding the defense from using this evidence on that ground. The court has the discretion to exclude the evidence on that basis.
4. In a civil case, Mary Jones will be an important witness for the plaintiff. Defendant proffered evidence that on two occasions he and Ms. Jones had occupied the same automobile and been involved in accidents from which neither suffered injury. Nevertheless, in each case Ms. Jones submitted a ffalse and fraudulent claim with an insurance company, apparently for injuries, and received payments of $33,000 and $5,000, respectively. After an evidentiary hearing, the court finds that the defendant has a good faith factual basis to support these contentions. The court may allow the defense to ask Ms. Jones about those acts, to attack her credibility.
5. In a criminal case, Samuel Jones is charged with kidnapping. He presents an alibi defense, and testifies that he was in Seattle at the time the kidnapping occurred in Chicago. During its cross-examination, the prosecution wishes to impeach Jones by asking him about a conviction two years earlier for unlawful sale of marijuana (a felony punishable by up to six years imprisonment), leading to a suspended sentence. The applicable rule favors allowing the prosecution to ask the question: aare you the same Samuel Jones who was convicted in 2001 for unlawful sale of marijuana?<
6. In an appeal based on an evidentiary question, the appellant establishes that his counsel made a timely objection to the admission of certain evidence at trial. The appellate court also finds that the trial court erred in admitting the evidence. The appellate court is therefore required to reverse the lower court decision.
7. Relevant evidence is automatically admissible.
8. Only a witness who has been qualified as an expert for a particular trial may give testimony in the form an opinion.
9. As a general rule, the law of evidence proceeds on the basis that the jury will follow the courtss instructions where those instructions are clear and the circumstances are such that the jury can reasonably be expected to follow them.
10. As a matter of law, jurors can always be trusted to follow limiting instructions.
11. In a murder trial, the prosecution offers the testimony of an eyewitness who will identify the defendant as the person who shot the victim. The defense objects. At the bench, so that the jurors cannot hear what is happening, the court finds that the evidence is relevant to the case and prejudicial for the defendant because it makes it more likely than it would be without that evidence that he is the perpetrator of the crime. The court may admit the evidence.
12. Even after certain evidence is found to be relevant, it may be excluded if its probative value is substantially outweighed by considerations of the needless presentation of cumulative evidence.
Part II: Hearsay? (36%)
Part II.A: Hearsay/Nonhearsay (24%)
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 Part, you must choose between hhearsay and nnonhearsay 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. In a bribery trial against former White House official I.M. Korrupt (who is the only defendant), reporter J.B. Steinwood testifies that he obtained confirmation for his front-page story of governmental corruption from an FBI agent. He describes how he placed a call to the FBI agent who was reluctant to speak openly, because he was at his office. Steinwood then said: II am going to count to ten, if you do not hang up the phone before I count to ten, that means that you saw I.M. Korrupt pick up the payoff money. One, two ten. Are you still there? FBI Agent: YYes. The agent then hangs up the telephone. The testimony is offered by the prosecution to prove that I.M. Korrupt picked up the payoff money.
During civil commitment proceedings against college student Mary St. John, her parents, who are trying to institutionalize her in a psychiatric treatment facility, present testimony that she told several friends: II am Mary, the Vampire Slayer.<
2. In a criminal trial, detective Robert Johnson testifies that he saw the defendant, Al Smith, sell two rocks of crack to undercover officer Mary Chang. He testifies that at the time of the transaction Smith was wearing a black t-shirt with the Atlanta Braves logo on it. During cross-examination, defense counsel asks Johnson: DDidntt you write in your report that suspect Smith was wearing a white Florida Marlins t-shirt? Objection, hearsay, the prosecutor says. IIt is not offered for the truth of the matter asserted, your honor, defense counsel says.
3. In a negligence trial involving the collision of two automobiles at the intersection of Archer Road and S.W. 34th Street, Jorge Martinez, who was an eyewitness to the accident, testifies during defendant Jay Smithss case-in-chief. Martinez testifies that he was passenger in Smithss car, which was rear-ended by the plaintiff, Walter Johnson. Martinez testifies that immediately after the accident Johnson said to Martinez and Smith: II was going way too fast. The statement is offered as proof of Johnsonss negligence.
4. Professor James Larson was found murdered at around 9:00 p.m. on Thursday, July 17, 2003. An examination found that he had been shot to death shortly before his body was discovered. At about 7:30 pm that day, Larson told his wife Carol: II am going to have dinner with Joel Smith at 8:00. Larson then left their home. Carol Larson also testifies that she had met Joel Smith, who was a colleague of Larsonss in the Literature Department. Other witnesses confirm that Smith and Larson worked together at the Literature Department, and that, between 8:00-9:00 p.m. on the night of the murder, Smith and Larson had been seen separately in the general vicinity of the location where Larsonss body was found. The prosecution offers Larsonss statement to prove that he met Smith that evening.
5. Senator Hillary Clinton was killed in a tragic helicopter accident in Afghanistan in late 2003. Her surviving husband, former President William Jefferson Clinton, files a wrongful death suit against the manufacturer of the helicopter. He claims damages for loss of companionship and expected income. The defense offers into evidence part of Mrs. Clintonss will, which she had prepared just two weeks before her trip to Afghanistan, that reads: II hereby bequeath to my husband Bill one dollar. It is offered to prove that Mrs. Clinton was not likely to share her future income with her husband.
Part II.B: Hearsay, But Admissible? (12%)
In the previous part you decided if the evidence as offered was or was not hearsay, as defined in Federal Rule of Evidence 801(a), (b) and (c). In this part, as to each question, you should (1) reiterate that the evidence as offered is nonhearsay, by selecting that alternative among the multiple choices offered below, or (2) if you found it to be hearsay, determine whether (a) an exemption (nnot hearsay by rule fiat) or exception (everything other than non-hearsay of the exemptions) is available under Chapter VIII of the FRE, given the evidence as offered, and the content of the alternative, or (b) if none of the above is the better answer. You must select the best alternative among those that are offered. You must limit your analysis to the evidence as offered, and to evaluating it on the basis only of the hearsay rules. The balancing of Rule 403 should play no role in your decision.
1. A. Nonhearsay.
B. Hearsay, potentially admissible under FRE 801(d)(2)(A).
C. None of the above.
2. A. Nonhearsay.
B. Hearsay, potentially admissible under FRE 801(d)(2)(A).
C. None of the above.
3. A. Nonhearsay.
B. Hearsay, potentially admissible under FRE 801(d)(1)(A).
C. None of the above.
4. A. Nonhearsay
B. Hearsay, potentially admissible under FRE 801(d)(2)(A).
C. None of the above.
5. A. Nonhearsay.
B. Hearsay, potentially admissible under FRE 803(3), if the circuit within which the trial is being held has fully adopted Pheaster as precedent in the interpretation of FRE 803(3).
C. None of the above.
6. A. Nonhearsay.
B. Hearsay, potentially admissible under FRE 803(3).
C. None of the above.
PART III: Essay (40%)
General Instructions for Part III
Do not assume any facts not given to you. While you are expected to draw reasonable conclusions from the facts given, you should not assume facts. In this section of the exam, mmissing facts suggest three possibilities: (1) you need to read the question again, i.e., iitss in there somewhere, (2) I made a mistake and you may need to alert me to it (if you are convinced that this is what is going on, do not be afraid to ask the question), or (3) you need to indicate that you need to establish certain facts in order to provide a complete opinion. In this section of the exam, identifying missing facts that are necessary to a complete resolution of the issue may be precisely what you need to do in order to provide a proper response.
Do not look for issues that are not relevant to answering the question. The question asked determines the issues raised, read it carefully and answer the question I asked. Evidence is a broad and complex course, I have crafted the questions narrowly, do not waste your time covering issues that the question does not require you to resolve. No credit will be awarded for discussion of matters not relevant to the resolution of the question.
Citations. Since this is an open-rule exam, citation should be made to the appropriate rule, especially the Federal Rules of Evidence, statutory or Constitutional provision, etc. Case citations will be judged on a cclose-enough basis. Please keep in mind that my annotated versions of the rules are helpful shorthand references.
Limited Space. You must answer the questions in the space provided therefor in the exam itself. Do not use bluebooks. I encourage you to outline the answers before you start to write, but do not include scratch paper or any additional material with your completed exam. In answering the short-essay questions, please be succinct. You might want to draft the short answer on your scrap paper, before writing it in the answer space. Please strive for precision, specificity, and thoughtful analysis in all points you do address.
Like the brute Mongo in Mel Brooksss 1974 comedy classic Blazing Saddles, Roberto Duran once knocked out a horse with a single punch. That horse, as well as countless human opponents who suffered the same fate in the streets and back alleys of Panama where Duran grew up, are not included in his career total of 104 officially sanctioned boxing wins --69 of them by knockout-- against only 16 losses.
Born into poverty, Roberto Duran grew up fighting on the streets where he earned the nickname <Manos de Piedra, Hands of Stone. He started his professional boxing career at the age of 15 or 16. In 1972, when only 21 years old, Duran won the lightweight championship of the world by knocking out Ken Buchanan in the thirteenth round. As a lightweight, he achieved a near perfect record of 62 wins in 63 contests, which explains why Duran is widely regarded as one of the greatest boxers in that weight category in the history of the sport. He held the lightweight title from 1972 to 1979, when he put it down in order to fight as a welterweight. Duran captured the welterweight championship in 1980 with a fifteen-round decision over Sugar Ray Leonard. Five months later Leonard took that title back from Duran, who conceded the fight in the eighth round by muttering what would become two of the most infamous words in boxing history: <no mas. Like a true champ, however, Duran got up off the mat of that embarrassing defeat to win championships in two more weight classes, defeating Davey Moore in 1983 for the junior middleweight title and then, at age 37, defeating Iran Barkley for the middleweight title in 1989. He was the first boxer to win championships in four different weight classes.
Even hands of stone don't last forever, and no one can out box time. The damage done by the pounding Duran had taken in the ring over the years was exacerbated in 2001 by a car crash in Argentina in which he suffered broken ribs and a punctured lung. In February 2002, at the age of 50, Duran finally hung up his gloves after 34 years of professional boxing.
He left the ring with his memories and his championship belts, and it is those belts that are at the center of this case. Duran claims that his championship belts were stolen from his house in Panama by his brother-in-law, Bolivar Iglesias, in September 1993. Ever the fighter, Duran has waged a ten-year battle to regain his belts, which are the physical embodiment of his lifess work and a reminder of the glory that once was his. It is late in the last round of that legal fight, which began in September 1993 when Duran lodged a criminal complaint with police in Panama claiming that the belts had been stolen. In September 1996, Duran convinced the FBI to investigate the disappearance of his belts, because he suspected that they had been sold in Miami, Florida. At trial, Duran offered the testimony of several Panamanian and U.S. law enforcement officers, as well as documentary evidence to prove that he had made and pursued these claims with the law enforcement agencies. Duran himself testified that he owned the belts, which were displayed in a special case in the foyer of his home in Panama City; in September of 1993 he returned home from a trip to the United States to find that the belts were missing; there was no sign of forced entry into the home, but the belts could not be found. Duran also testified that had not authorized anyone to remove the belts from his home. Panamanian law enforcement officials confirmed that they unsuccessfully searched Mr. Duranss home looking for the belts, that they found no signs of forced entry into the home, and that the fingerprints on the case in which the belts were kept belonged to Duran, members of his immediate family, and domestic employees. Both the Panamanian law enforcement and FBI witnesses indicated that their search for the belts was unsuccessful, until the events that gave rise to this case.
It is undisputed that Duranss championship belts ultimately came into the hands of Luis Gonzalez-Baez, a Miami businessman, and that Gonzalez attempted to sell the belts to undercover FBI agents (who had set up a sting operation) for $200,000. Gonzalez was arrested, but he claimed that the belts had not been stolen. The government confiscated the belts and filed an interpleader action in the United States District Court for the Southern District of Florida, to determine whether Duran or Gonzalez is the rightful owner of the belts. In the interpleader action, the government sues both the person from whom they took the property (Gonzalez) and the person who claims to be the rightful owner (Duran). This is a civil action in which the private parties are the real litigants; the government is only the holder of the property, and it is up to the two private parties to establish legal title to the property. Competent witnesses presented undisputed testimony that the belts seized from Gonzalez were the belts awarded to Mr. Duran for his boxing victories, and that Mr. Duran owned and possessed them before they went missing in 1993. But Mr. Gonzalez claims that he bought them legally. Mr. Duran countered that Gonzalez could not acquire legal title to the belts if they had been stolen. Under applicable substantive law, if Duran can establish that the belts were stolen his claim of title would be superior to Gonzalezss, regardless of the manner in which Gonzalez acquired the belts.
The case was tried to a jury, which returned a verdict in favor of Duran. This is Gonzalezss appeal from the judgment the district court entered in accordance with that verdict.
Gonzalezss principal contention on appeal is that the district court should not have admitted testimony about a purported apology from Bolivar Iglesias. Over Gonzalezss objection, the district court permitted a number of witnesses, including Duran and some of his family members, to testify that Iglesias apologized in their presence for stealing the belts.
The witnesses essentially testified to the following: During a family gathering in October 1996, shortly after Mr. Duran filed his complaint with the FBI, Iglesias, who was aware of the pending criminal investigations both in Panama and in the United States, tearfully said to Duran: II am so sorry that I stole your championship belts. The statement was offered by Duran to prove that Iglesias stole the championship belts.
Duran could not procure Iglesiasss attendance or testimony at trial in Miami by process because Iglesias, a citizen of Panama, apparently was living in that country at the time of the trial. Iglesias could not be prosecuted for the theft either in Panama or in the United States because the eight-year statute of limitations for the crime had expired in September of 2001 (the expiration of the limitations period does not affect Mr. Duranss claim to title). Panamanian authorities and the FBI tried to find Iglesias, to serve as a witness, and were unsuccessful.
Duran enlisted the help of Iglesiasss immediate family in an attempt to locate him and persuade him to return to the United States and testify. Duran indicated that he would pay for the trip, and sent assurances to Iglesias that he was only interested in getting back his belts. Duran even obtained a letter from the Fiscal General de la Republica de Panama (the Prosecutor-General of the Republic of Panama), certifying that Iglesias could no longer be prosecuted for the theft because of the statute of limitations had lapsed. Duran also obtained a similar letter from the U.S. Attorney for the Southern District of Florida. Iglesiasss sister, who is Duranss wife, testified in detail how she and her mother had tried to locate Iglesias on five different occasions, but finding him had proven impossible. Iglesiasss mother testified that she had tried to contact him in order to get him to come back and testify but was unable to get Iglesias.
The District Court overruled Gonzalezss objection that the testimony is inadmissible hearsay. The Court rejected Duranss argument that the evidence fit the exception of FRE 803(3), but it held that the statement was nonetheless admissible under FRE 804(b)(3).
Gonzalez now appeals the judgment to the 11th Circuit, arguing that the District Court erred in admitting the evidence over his hearsay objection. You are a law clerk for the Honorable Ed Carnes, U.S. Circuit Judge. Judge Carnes instructs you to prepare a detailed memorandum of fact and law, explaining that the decision of the District Court should be affirmed. Your discussion of hearsay exclusions, exceptions and exemptions should be limited to those governed by Rules 803(3) and 804(b)(3) and the legal standards applicable thereto; you should not address any other exclusions, exceptions or exemptions, but you should otherwise address all pertinent Federal Rules of Evidence.
Although I have made a few modifications, most of the language in this exam question is taken almost verbatim from a judicial opinion. I will post the citation with the feedback memorandum.
I provided 12 blank pages for the answer.