The University of Florida

Fredric G. Levin College of Law

EVIDENCE

F A L L  2 0 1 1

Professor Pedro A. Malavet

Final Examination

INSTRUCTIONS

Before the exam starts, you may read the instructions, AND COUNT TO MAKE SURE THAT YOU HAVE ALL FOURTEEN (14) PAGES, AND YOU SHOULD WRITE YOUR EXAM NUMBER ON EVERY PAGE. IF YOU WILL USE A LAPTOP DURING THE EXAM, YOU MUST LOG INTO EXAM SOFT AT THE START OF THE TEST. OTHERWISE, DO NOT GO BEYOND PAGE THREE (THE END OF THE INSTRUCTIONS) OR READ ANY OTHER PART OF THE EXAM BEFORE YOU ARE INSTRUCTED TO START.

EXAM SOFT USERS MUST LOG INTO THE SYSTEM AT THE START OF THE EXAMINATION AND REMAIN IN THE SOFTWARE’S ANSWER-ONLY ENVIRONMENT FOR THE ENTIRE TEST PERIOD.

COMPLETED EXAMS WILL BE COLLECTED BY THE OFFICE OF STUDENT AFFAIRS. IF YOU FINISH EARLY, PLEASE GO TO THE OFFICE OF STUDENT AFFAIRS TO TURN IN THE COMPLETED EXAM. THE OFFICE OF STUDENT AFFAIRS WILL SEND PERSONNEL TO THE EXAM ROOM TO COLLECT EXAMS AT THE END OF THE EXAMINATION PERIOD.

Open Rules. “Open-Rules” means that you may have with you during the examination your required 2011 Mueller & Kirkpatrick 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. The supplements must be in their original bound form at the start of the examination. You may, however, tear them up during the examination if you find that makes them easier to use.

Honor/Conduct Code. You are bound by University Student Code of Conduct, the College of Law Honor Code and my rules. You certify compliance with all applicable rules by submitting your examination for grading. Violations of any applicable rule(s), should be reported to me or to pertinent authorities preferably before or during the examination. Serious violations of these rules shall result in a failing grade and in my referring the matter to the Honor Committee or to pertinent college or university conduct authorities. Less serious violations may result in a reduction in your final grade.

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 forty percent (40%) of the exam grade; and one (1) essay problem, for sixty percent (60%) of the exam grade. Please take these weights into account when you design your answer schedule.

Limited Space. All students must answer the True/False section by selecting the answer on the exam itself. You must answer the essay question in the space provided in the separate answer packet for handwriting or typing, or with your laptop using the Examsoft template. 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. If you wish me to ignore any part of your answer, simply cross it out and I will ignore it. If you should run out of space because of cross-outs, you may use an equivalent amount of space on the back of the page in the answer packet.

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; under penalty of a maximum ten-percent reduction in grade, you may not use pencils, erasable ink, or felt-tip markers.

Do Not Un-staple Pages. Do not take the exam apart (except that you may take the answer packet apart if you are using a typewriter). If you do, you MUST RE-STAPLE IT. You must also turn in every page of the examination, not just the ones that you use.

Scratch Paper. You may use blank scratch paper to outline your answers and take notes during the examination.

Typing. If you are typing your answer, you must stay within the margins and write only one line of text per line of space given to you.

Electronic Exam Taking. You may take the examination electronically, using specialized software that ensures that you can only use your laptop to write your essay answer. All laptops must log-into the Exam Soft system at the start of the examination and remain in the Exam Soft answer only environment for the entire examination period. Only the essay section may be answered electronically. For the other sections, you must write your answer on the exam itself. Answer space shall be limited to 1800 characters (including spaces and carriage returns) for each blank page in the examination. That is enough for 24 lines of double-spaced text in courier type, size 11 for each page. Since I provided 12 blank pages, the character limit is: 1800 x 12 = 21,600 characters. Each student is responsible for keeping track of answer length. The Exam Soft window constantly displays character count at the bottom of the screen. You may also use the length command to check character length. The penalty for exceeding the character limit will be a deduction from your essay score of a percentage equal to the percentage by which you exceeded the character limit.

Review. Exam review will start after I post the feedback memorandum on the course website on Thursday, February 9, 2012. Instructions for the review process will be included in the memorandum.

You must stop work four (4) hours after THE SIGNAL TO START. Completed examinations must be turned in to The office of student Affairs.

General Instructions FOR Part I

Select the best answer to the question presented. In this section, do not look for “perfect” answers, just the most correct one among the two alternatives available to you, in light of the question or statement presented, viewed in the context of the federal rules of evidence and related doctrines and caselaw as we discussed them in class. You are bound by the restyled version of the Federal Rules of Evidence that became effective December 1, 2011. 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, “missing facts” suggest three possibilities: (1) you need to read the question again, i.e., “it’s 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 of the proctors).

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 in the restyled form that became effective December 1, 2011, taken together with all the accompanying doctrines and caselaw as we discussed them in class.

Part I: True or False (40%)

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.

1. In a criminal trial for possession with intent to distribute cocaine, DEA agent John Smith identified a brick of cocaine offered by the prosecution as evidence seized from the only defendant’s boat. During agent Smith’s testimony, some pieces of cocaine detached from the brick and covered the witness stand (the brick had lost part of its plastic seal while in transit, and some bits became lose). While testifying for the government, the next witness, Neo Anderson, gathered up some of the cocaine pieces and swallowed them, in view of the jury and the presiding judge. The court may deny the defense’s objection seeking a ruling that witness Neo Anderson is unqualified to testify and his entire testimony should be stricken from the record.

True False

2. Only a witness who has been qualified as an expert for a particular trial may give testimony in the form an opinion.

True False

3. In a criminal appeal based on an evidentiary question, the court finds that the error was not properly preserved for appeal. The appellate court also finds that the trial court erred in admitting the evidence. Under the Federal Rules of Evidence, the appellate court may have the authority to reverse the conviction.

True False

4. In a criminal trial for vehicular homicide arising out of an automobile accident, the state offers the testimony of an eyewitness who will identify the defendant, Drew Johnson, as the person driving the car that hit him and that the traffic light controlling Johnson’s lane was red. The defense objects. At the bench, so that the jurors cannot hear what is happening, the court rules that the evidence is relevant to the case and prejudicial for the defendant Drew Johnson because it makes it more likely than it would be without that evidence that Johnson’s negligence was the proximate cause of the accident. The court must exclude this evidence under Rule 403.

True False

5. The law of evidence must always proceed on the basis that the jury will follow the court’s instructions where those instructions are clear.

True False

6. After certain evidence is found to be relevant, it may be excluded if its probative value is substantially outweighed by a danger of unfair prejudice and undue delay.

True False

7. Given the definition of hearsay of FRE 801(a), (b) and (c), when offered as proof that George went to Orlando on Thursday, Frank’s testimony that on Wednesday George said “I am going to Orlando tomorrow,” is hearsay.

True False

8. Given the definition of hearsay of FRE 801(a), (b) and (c), when offered as proof that defendant Donald ‘Boon’ Schoenstein is guilty of Rioting, testimony that in the middle of a riot, his girlfriend Katy Faver, after observing Schoenstein running North on Main Street, said to approaching police officers —“Officers, officers, he went that way,” while pointing to the South on Main Street, is hearsay.

True False

9. During civil commitment proceedings against Ohio State University junior William Jones, his parents, who are trying to institutionalize him in a psychiatric treatment facility, present testimony that he told several classmates last weekend: “I am Tebow, Tim Tebow, Heisman Trophy Winner.” Given the definition of hearsay of Rule 801(a), (b) and (c), this evidence is not hearsay.

True False

10. In a criminal case for assault and battery, during his case-in-chief, defendant Don offers the testimony of William that alleged victim Vince was a “belligerent, fight-picking fella.” During its case-in-rebuttal, the prosecution offers the testimony of the Reverend Wilson that defendant Don was a “violence-prone person.” The prosecution’s rebuttal evidence is inadmissible under the Federal Rules of Evidence.

True False

11. In a criminal prosecution for homicide, defendant Don testifies that alleged victim Vince started the fight between them that ultimately led to Vince’s death, and that he (Don) acted in self-defense. During its case-in-rebuttal, the prosecution offers the testimony of the Reverend Wilson that Vince was a “peaceful, and non-violent man.” The testimony of Reverend Wilson must be excluded.

True False

12. In a criminal case for assault and battery, during his case-in-chief, defendant Don offers the testimony of the Reverend Wilson that defendant Don was a “peaceful, non-violent person.” During its case-in-rebuttal, the prosecution offers the testimony of Coach White that alleged victim Vince was a “peaceful, non-violent man.” The prosecution’s rebuttal evidence is inadmissible under the Federal Rules of Evidence.

True False

PART II: Essay PROBLEM (60%)

General Instructions for part II

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, “missing facts” suggest three possibilities: (1) you need to read the question again, i.e., “it’s 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 completing the exercise as instructed. The instructions determine the pertinent issues and how they must be handled in a carefully-crafted essay. Read them carefully and write accordingly. Evidence is a broad and complex course, I have crafted the issues narrowly, do not waste your time covering issues that the fact-pattern and your instructions as to the mandated result do not require you to address or resolve. No credit will be awarded for discussion of matters not relevant to the resolution of the problem.

Applicable Rules. Assume that the applicable rules of evidence are the Federal Rules of Evidence in their restyled form that became effective December 1, 2011, together with the applicable common law, statutory, and constitutional rules, doctrines, and caselaw as you studied them in your Fall 2011 Evidence course.

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 “close-enough” basis. Please keep in mind that my annotated versions of the rules are helpful shorthand references.

Instructed Result. You must reach and fully justify the instructed result in order to earn any credit for your answer.

Limited Space. Please keep in mind that you are bound by the character length limit in Examsoft, and to the space provided in the hand- or typewriting packet.

Abbreviations. You may use reasonable abbreviations in your essay, provided that you identify the equivalent longhand the first time you make use of each abbreviation. You may not abbreviate the names of persons used in the problem.

State v. Britain

(Before the First DCA of Florida)

George H. Britain appeals his conviction for aggravated battery with great bodily harm, disability or disfigurement. The applicable statute and jury instruction are as follows:

784.045 Aggravated battery.—

(1)(a) A person commits aggravated battery who, in committing battery:

1. Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or

2. Uses a deadly weapon.

(b) A person commits aggravated battery if the person who was the victim of the battery was pregnant at the time of the offense and the offender knew or should have known that the victim was pregnant.

(2) Whoever commits aggravated battery shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The Florida Supreme Court:

Standard Jury Instructions in Criminal Cases

8.4 AGGRAVATED BATTERY, 784.045, Fla. Stat.

To prove the crime of Aggravated Battery, the State must prove the following two elements beyond a reasonable doubt. The first element is a definition of battery.

1. (Defendant)

[intentionally touched or struck (victim) against [his] [her] will].

[intentionally caused bodily harm to (victim)].

Give 2a or 2b as applicable.

2. (Defendant) in committing the battery

a. intentionally or knowingly caused

[great bodily harm to (victim)].

[permanent disability to (victim)].

[permanent disfigurement to (victim)].

b. used a deadly weapon.

Definition. Give if 2b alleged.

A weapon is a “deadly weapon” if it is used or threatened to be used in a way likely to produce death or great bodily harm.

(http://www.floridasupremecourt.org/jury_instructions/instructions.shtml

Appellant George Britain argues on appeal that the trial court erred in admitting into evidence the recording of a 911 call. Britain asserts that allowing the recording into the record violated the applicable rules of evidence and deprived him of his right of confrontation under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

Prior to trial, the State indicated its intention to introduce the recording of a portion of the 911 call made by Elizabeth Britain, appellant’s eighteen-year-old daughter and the victim’s niece. The State had not been able to obtain service on Ms. Britain and she was not going to testify at trial. The State asserted that the 911 recording contained Elizabeth Britain’s excited utterances, and its admission would not violate Crawford because the statements on the recording were not testimonial and enabled the police and Emergency Medical Services to meet an ongoing emergency. Defense counsel argued that, to the extent Ms. Britain told the 911 operator that her aunt was hurt and bleeding, her statements were not testimonial. Defense counsel contended, however, that the identification of Ms. Britain’s father was testimonial. Prior to trial, presiding Judge Aymer L. Curtin, heard the tape recording of the 911 call in chambers, and considered proffers that were consistent with the state witnesses’ testimony at trial; he ruled that the recording was admissible.

The victim, Mary Robinson, testified that on March 27, 2010, she had taken Ms. Britain to her home. While there, appellant rode up on his bicycle and he and Robinson engaged in a conversation about Ms. Britain and her boyfriend. George Britain expressed his opinion that the boyfriend was dangerous. Appellant Britain said he was going to “mess up” Robinson if Ms. Britain got hurt. When Robinson responded that she was going to help his daughter, George Britain hit her in the face and knocked her to the ground. She sustained multiple fractures to her face.

During Robinson’s testimony, the prosecutor played the recording of Ms. Elizabeth Britain’s 911 call, as follows:

THE 911 OPERATOR: 911, how may I help you?

MS. BRITAIN: My auntie is hurt bad. (Inaudible)

THE 911 OPERATOR: What’s the address, ma’am? What’s the address?

MS. BRITAIN: 1110-25 Southeast Second Avenue in Gainesville. Please come. It’s really bad.

THE 911 OPERATOR: Listen to me. (Inaudible)

MS. BRITAIN: Oh, God. (Cries)

THE 911 OPERATOR: Yes, ma’am. Calm down and give me the address. Okay. Come on, you can do it.

MS. BRITAIN: 1110-25 Southeast Second Avenue.

THE 911 OPERATOR: What’s the apartment?

MS. BRITAIN: It’s a house.

THE 911 OPERATOR: What’s the telephone number you’re calling from, area code first.

MS. BRITAIN: 352-792-1234. My dad’s a punk ass bitch. You need to help me. My auntie is on the ground, just bleeding.

THE 911 OPERATOR: You need to tell me what happened.

MS. BRITAIN: My auntie was talking to him and I turned around and she was on the ground. She was talking to my dad. His name is George Britain.

THE 911 OPERATOR: Listen, ma’am, I’m trying to understand what happened. Did somebody assault your daughter?

MS. BRITAIN: No, somebody assaulted my auntie. My father assaulted her, he hit her in her face and her nose is pouring blood.

THE 911 OPERATOR: Stay on the line with me, okay?

MS. BRITAIN: Yes, ma’am.

THE 911 OPERATOR: Your aunt was assaulted?

MS. BRITAIN: Yeah, she’s bleeding. The sidewalk is full of blood.

THE 911 OPERATOR: We’re getting you some help. Okay. Hang with me, okay?

MS. BRITAIN: Okay.

THE 911 OPERATOR: Is your father still there?

MS. BRITAIN: Yes, ma’am, he is still over her.

THE 911 OPERATOR: We’re going to send an ambulance to her and the police. Okay?

MS. BRITAIN: Yes, ma’am.

Robinson testified that she yelled for her niece to make the 911 call. She also testified that her injuries required her to spend two days in the Emergency Intensive Care Unit, and two additional weeks in hospital. She was transfused with two (2) pints of blood shortly after arriving at the emergency room and required one hundred ten (110) stitches to close the lacerations and stop the bleeding. Her treatment included one facial reconstruction surgery. Mrs. Robinson also testified that she has put off the cosmetic reconstruction recommended by her physicians because that procedure will not be covered by her medical plan.

The state also called to the witness stand one of the arresting officers, Sargent Joseph Smith, of the Gainesville Police Department. Sgt. Smith testified that he arrived at Mrs. Robinson’s home about three (3) minutes after the 911 call ended, based on the referral of the Combined Communications Center of the Alachua County Sheriff’s Office. He saw Robinson lying on the sidewalk, bleeding. Elizabeth Britain came out of the house to meet the officer, and Sgt. Smith described her a crying, shaking, and “clearly extremely upset and nervous.” Sgt. Smith also testified that George Britain was not at the scene of the crime when he drove up to it in his patrol car (Mrs. Robinson testified that George Britain rode off in his bicycle when he heard the siren of Sgt. Smith’s approaching patrol car; she told the officers as much when they first arrived). Sgt. Smith and his partner, officer Tammy Johnson, arrested George Britain at his home later that day without incident.

The state’s last witness was one of the two Emergency Medical Technicians in the ambulance that came to Mrs. Robinson’s aid. EMT Susan Jones testified that she drove up in her ambulance about one minute after the police patrol car arrived and found Mrs. Robinson lying on the sidewalk bleeding profusely; she also saw Elizabeth Britain crying, shaking and “clearly upset” and “concerned for her auntie’s safety.” Jones and her partner stabilized Mrs. Robinson and transported her to North Florida Regional Medical Center’s Emergency Room. Jones further testified that she remained with Mrs. Robinson as she was treated for severe facial lacerations and multiple facial fractures that required immediate medical attention from emergency physicians. Elizabeth Britain accompanied Mrs. Robinson on the ambulance. EMT Jones observed while an emergency physician examined Ms. Britain and prescribed a mild sedative that was immediately administered by Jones. Jones’ statements about Elizabeth Britain had been included in the prosecution’s proffer to judge Curtin, but this information was not presented to the jury.

After the State rested, the defense rested without witnesses. The jury returned a verdict finding George Britain guilty as charged.

On appeal, as below, appellant George Britain argues that the recording was in part testimonial. After obtaining the address and telephone number and learning there was a need for medical assistance, the 911 operator asked “what happened,” which elicited Ms. Elizabeth Britain’s identification of appellant. Appellant asserts that this question turned the exchange into an interrogation for the purpose of gathering evidence, and the responses to the 911 operator thereafter were testimonial.

Instructions:

You are a law clerk to the Honorable William A. Van Nortwick, Jr., Judge of Florida’s First District Court of Appeals. Judge Van Nortwick has been assigned to write this opinion by agreement with his two fellow panel members, Chief Judge Robert T. Benton, II, and Judge Ronald V. Swanson. Judge Van Nortwick instructs you to craft a well-reasoned memorandum consistent with the following parameters:

The DCA will rule that the admission of the 911 call was not in error, because the judges agree that admission of this evidence was appropriate under the applicable rules and under the confrontation clause. Judge Van Nortwick would like you to detail how such a ruling would be explained by a Federal Appellate Court applying the Federal Rules Evidence, as restyled and effective on December 1, 2011, together with the applicable common law, statutory, and constitutional rules, doctrines, and caselaw as you studied them in your Fall 2011 Evidence course.

Facts taken, and modified to fit examination purposes, from London v. State, 2011 Fla. App. LEXIS 18592 (Florida 1^st DCA, 22 November 2011).