Evidence Exam Fall 2001

LAW 6330 (4 credits)
Professor Pedro A. Malavet
Fall 2001

PART I: TRUE OR FALSE (30%)

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

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

True False

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

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

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

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

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

True False

8. Only relevant evidence is potentially admissible.

True False

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

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

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

True False

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

True False

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

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

True False

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

True False

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

PART II.A: HEARSAY/NONHEARSAY (20%)

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

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

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

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

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

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

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

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

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

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

PART II.B: HEARSAY, BUT ADMISSIBLE? (10%)

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.

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

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]

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].