Seattle
University School of Law
Evidence
Fall 2 0 0 4
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 TWENTY-SEVEN (27) 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.
Conduct
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. 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.
Violations of the Student Conduct Code, the Academic Integrity Code or of the
exam rules that I have set forth, should be reported to me or to pertinent
authorities before or during the examination. Serious violations of these rules
shall result in a failing grade and in my referring the matter to the Conduct
Review Board. 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 ten
(10) True or False questions (Part I), for twenty percent (20%) 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-four percent (44%) 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. You may only write on one side of the
page (the one with lines for handwriting). 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.
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 Un-staple Pages. Unless you are
typing your answer, do not take the exam apart. 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, 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.
Electronic
Exam Taking. Only the essay section may be answered electronically. For the
other sections, you must note your answer on the exam itself. You may take the examination electronically, using
specialized software that ensures that you can only use your laptop to write
your essay answer. Answer space shall be limited to 1800 characters 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.
Review.
I will be available to discuss
examination results during the Spring semester, beginning after [Thursday],
February 10, 2005. I will not discuss examination results before that date.
You must stop work four (4) hours after THE 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 “perfect” 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, “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, taken together with all
the accompanying doctrines and caselaw as we discussed them in class.
Part I: True or False (20%)
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, a DEA agent identified a brick of
cocaine offered by the prosecution as evidence seized from the only defendant’s
boat. During the agent’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, Bruce Wadkins, gathered up some of the cocaine
pieces and swallowed them, in view of the jury and the presiding judge. If
defense counsel raises an objection, this witness must be ruled to be
unqualified to testify and his entire testimony should be stricken from the
record.
True False
2.
Counsel for the
plaintiff in a contract case calls the only defendant, John Smith, to the
witness stand during the plaintiff’s case-in-chief, for direct examination. If
counsel is in fact asking leading questions, an objection by defense counsel
that plaintiff’s counsel is leading the witness should be sustained.
True False
3.
In a civil case, Stuart
Smith will be an important witness for the defendant. Plaintiff proffered
evidence that on two occasions Mr. Smith and another man, Peter Johnson, an
acquaintance of plaintiff’s counsel, had observed bus accidents occur while
standing on a side street near the busy intersection of Olive Way and Broadway,
whereupon they had jumped into the buses involved. They then filed claims for
injuries resulting from the bus accident against the Seattle Metropolitan
Transit Authority. 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 Smith about those acts, as a form of
impeachment.
True False
4.
Generally, evidence of
character or trait of character is admissible to prove that the person to whom
the evidence refers acted in conformity therewith on a particular occasion.
True False
5.
In a criminal case
alleging sexual misconduct, the defendant has evidence of the alleged victim’s
sexual behavior that may be admissible under Rule 412(b)(1). Thirty days before
the trial, the defense files a motion under seal seeking the court’s permission
to use that evidence, and serves the motion on the government but not on the
alleged victim’s counsel (who has already filed a notice of appearance and has
been representing her for some time in the proceedings). The government moves
to exclude the evidence on the ground that defendant failed to comply with the
notice requirements of the rule. The court has the discretion to exclude the
evidence on that basis.
True False
6.
Jonathan Smith is being
criminally prosecuted for violation of 18 U.S.C. sec. 871, providing for fine
or imprisonment for “whoever knowingly and willfully deposits for conveyance in
the mail ... any threat to take the life of, to kidnap, or to inflict bodily
harm upon the President of the United States.” Smith is charged with sending a
letter threatening the life of President George W. Bush from his prison cell at
the federal penitentiary in Terre Haute, Indiana. Smith wishes to introduce the
testimony of a qualified psychologist who will testify that Smith sent the
letter because he was acting under a syndrome known as “‘institutionalization,’
which made him fear freedom and engage in conduct designed to prevent his
release from prison.” The psychologist would then testify that Smith lacked the
subjective intent to injure the President. The defense concedes that the
psychologist cannot provide any testimony regarding the objective
interpretation of Smith’s actions in sending the letter. The court rules that
the statute does not require proof of subjective intent, but rather must be
applied using a purely objective standard. The court should therefore exclude
the psychologist’s testimony because it is irrelevant.
True False
7.
In an appeal based on an
evidentiary question, the appellant establishes that his counsel made a timely
and specific objection to the admission of certain evidence at trial. The
appellate court also finds that the trial court erred in admitting the evidence
and that the admission violated a substantial right of the party and that the
error cannot be classified as harmless. The appellate court has the discretion
to reverse the lower court decision under these circumstances.
True False
8.
The law of evidence must
always assume that the jury will follow the court’s instructions where those
instructions are clear.
True False
9.
In criminal trial for
theft, the prosecution offers the testimony of a witness who will identify the
defendant as the person she saw running away from the store after hearing the
sound of an alarm. 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 should exclude the evidence.
True False
10.
Even after certain
evidence is found to be relevant, it may be excluded if its probative value is
substantially outweighed by considerations of waste of time.
True False
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) provide 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 “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.
On March 5, 2004, David
Fuller is on trial for bank robbery. His ex-wife Ruth Johnson provides damaging
testimony against Fuller during the prosecution’s case-in-chief. During
cross-examination, defense counsel asks Ruth: “Didn’t you write to your sister
Joann, in a letter dated January 3, 2004, ‘David is a cheating piece of scum
who will not pass up any opportunity to hit on another woman.’” The prosecution
makes a hearsay objection, and defense responds that they are only offering it
for impeachment purposes and the court agrees.
hearsay nonhearsay
2.
Senator Hillary Clinton
was killed in a tragic helicopter accident in Afghanistan in late 2004. 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 a
recording of an interview between Mrs. Clinton and her biographer, which she
had given during her trip to Afghanistan, in which she said: “Bill is a jerk.
He cheats on me all the time. He goes for any woman with big hair and no
brains. ... As soon as I return from this trip, I am cutting him off from any
of my money.” It is offered to prove that Mrs. Clinton was not likely to share
her future income with her husband.
hearsay nonhearsay
3.
Jonathan Smith is being
criminally prosecuted for violation of 18 U.S.C. sec. 871, providing for fine
or imprisonment for “whoever knowingly and willfully deposits for conveyance in
the mail ... any threat to take the life of, to kidnap, or to inflict bodily
harm upon the President of the United States.” Smith is charged with sending a
letter threatening the life of President George W. Bush from his prison cell at
the federal penitentiary in Terre Haute, Indiana. The prosecution offers into
evidence a letter that bears Smith’s fingerprints, and was in an envelope with
his prisoner identification number, that was received by the White House mail
sorting facility, which reads: “I am going to kill you, George W. Bush. Yours,
sincerely [signed, Jonathan Smith].”
hearsay nonhearsay
4.
During civil commitment
proceedings against JoAnn Hennesy, her parents, who are trying to
institutionalize her in a psychiatric treatment facility, present testimony
that she told several friends: “I am Alexander the Great, and I am off to
conquer Egypt today.”
hearsay nonhearsay
5.
In a criminal trial,
detective Mary Johnson testifies during the prosecution case-in-chief that she
saw the defendant, John Smith, break the windshield of a parked Toyota Camry
and steal a computer bag that was inside. She describes the bag that defendant
took as a tan briefcase with a white shoulder strap. During cross-examination,
defense counsel asks: “Didn’t you testify during the preliminary hearing for
this case that it was black backpack?” “Objection, hearsay,” the prosecutor
says. “We are only offering it for impeachment, your Honor,” defense counsel
says. “Objection overruled,” the Judge says.
hearsay nonhearsay
6.
In a negligence trial
involving the collision of two automobiles at the intersection of East Madison
and 12th Avenue, Roberto Juárez, testifies during plaintiff Rudolph Hasl’s
case-in-chief. Juárez testifies that he was passenger in Hasl’s car, which was
“t-boned” by the car driven by defendant, Walter Johnson. Juárez testifies that
immediately after the accident Johnson said to Hasl and Juárez: “I am sorry, I
was speeding down Madison and I ran the red light.” The statement is offered as
proof of Johnson’s negligence.
hearsay nonhearsay
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 an exemption (“not hearsay” by
rule fiat) or exception (everything other than non-hearsay or the “not hearsay”
exemptions) is available under Chapter VIII of the FRE, given the evidence as
offered, and the content of the alternative. 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)(1)(A).
C.
Hearsay, not admissible because the declarant cannot be cross-examined.
2. A.
Nonhearsay.
B.
Hearsay, no part of the statement is admissible.
C.
Hearsay, potentially admissible under FRE 803(3).
3. A.
Nonhearsay.
B.
Hearsay, potentially admissible under FRE 801(d)(2)(A).
C.
Hearsay, potentially admissible under FRE 803(3).
4. A.
Nonhearsay.
B.
Hearsay, potentially admissible under FRE 801(d)(1)(A).
C.
Hearsay, potentially admissible under FRE 803(4).
5. A.
Nonhearsay
B.
Hearsay, potentially admissible under FRE 801(d)(1)(B).
C.
Hearsay, potentially admissible under FRE 801(d)(2)(A).
6. A.
Nonhearsay.
B.
Hearsay, potentially admissible under FRE 801(d)(2)(A).
C.
Hearsay, potentially admissible under FRE 803(3).
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, “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 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
“close-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. If do
not wish me to read any part of your answer simply cross it over and I will
ignore that text. If you find that you run out of writing space because of
cross-outs, you may write on the back of the designated answer pages, using no
more space than you crossed out. 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.
This matter comes before the Court of Appeals for the
Third Circuit on Stanley Johnson’s appeal from a judgment of conviction and
sentence entered in this criminal case on October 27, 2003. The district court
had jurisdiction pursuant to 18 U.S.C. sec. 3231 and the Circuit has
jurisdiction under 28 U.S.C. sec.
1291.
The background of the case is as follows. On May 2,
2000, a grand jury returned a three-count indictment against Johnson charging
him with conspiracy to commit carjacking, in violation of 18 U.S.C. sec. 371,
carjacking, in violation of 18 U.S.C. sec. 2119 (defining “carjacking” as the
use of force, violence or intimidation to take a vehicle transported in
interstate or foreign commerce from the person of another with “intent to cause
death or serious bodily harm”), and using and carrying a firearm in furtherance
of a crime of violence, in violation of 18 U.S.C. sec. 924(c)(1). The
indictment named Willie Ingram and Anthony Milton as coconspirators. In
particular, it charged that on July 2, 1998, Johnson, Ingram and Milton
approached Donald Foster and Sonia Smith-Burgest as they exited Smith-Burgest’s
1995 Chevy Blazer and that the three co-conspirators forced Smith-Burgest to
remove her jewelry and then stole the vehicle (the indictment does not charge
that the jewelry was stolen). The indictment alleges that all three men were
armed and that Johnson acted as a lookout.
At the outset of the trial, Johnson’s attorney sought
to prevent the government from introducing evidence related to Johnson’s 1995 conviction
for theft for impeachment purposes. This conviction was the result of a
purse-snatching without violence, which netted Mr. Johnson $15.00. The parties
agree as to the essential facts of this theft: Johnson was loitering near a bus
stop in downtown Philadelphia; a person who was waiting for a bus put her purse
down on the bench at the bus stop, and Johnson grabbed it and ran. The
Pennsylvania statute under which Johnson was convicted reads, in pertinent
part: “A person is guilty of theft if he unlawfully takes, or exercises
unlawful control over, movable property of another with intent to deprive him
thereof.” (18 Pa. C.S. sec. 3921 (2004)). The judgment of conviction was duly
certified by the clerk of the Philadelphia Superior Court.
The district court previously had denied Johnson’s
motion to preclude introduction of the prior conviction on cross-examination
and thus his attorney was asking the court to revisit this issue. There is no
record of the basis for the earlier ruling. The appeal here, however, challenges
only the second ruling. At that time, the government argued on alternative
grounds that the evidence of the prior conviction could be used for impeachment
purposes under Federal Rule of Evidence 609. First, it maintained that the
evidence was admissible pursuant to Rule 609(a)(1). Second, the government
asserted that the evidence of the prior conviction was admissible as a crime
involving dishonesty or false statement pursuant to Rule 609(a)(2).
After hearing argument, the district court found that
the evidence was admissible under Rule 609(a)(2) stating:
I
think that if you take something with the intent to benefit yourself and you
know you’re not entitled to it, that is a sufficient element of dishonesty to
bring it within the rule. And it is my opinion that it would be appropriate to
cross-examine Mr. Johnson as to the theft.
Appelant’s Appendix
(hereinafter “AP”) at 34. However, the court also stated that the evidence
would alternately be admissible under Rule 609(a)(1).
At the trial,
Smith-Burgest positively identified Johnson and testified that he stood off to
the side during the carjacking and never said anything and that she did not see
any gun in his hand. Foster also testified, but was able to identify only
Ingram as one of the carjackers, as he did not get a good look at the faces of
the other two perpetrators. He indicated, however, that Smith-Burgest did get a
good look at them. Foster explained that he could not identify the man who
ordered Smith-Burgest to remove her jewelry, but that he was “the short guy.”
AP at 127. He further testified that the two taller men, Ingram and another
individual, pointed guns at him. Of the three men, Ingram and Johnson were
significantly taller than Milton.
All three defendants pleaded not-guilty, moved for and
were granted separate trials. Neither Milton nor Ingram testified at Johnson’s
trial.
Johnson testified in his own defense. He said that on
the evening of July 2, 1998, he had gone out around midnight to try to buy some
marijuana for personal use and that while he was on the street he saw Milton
and Ingram. According to Johnson, Ingram was holding a gun and asked him to
“watch for cops.” AP at 155. Johnson explained at trial that Ingram had a bad
reputation in the neighborhood and had “shot at people.” Id. He testified that
he acted as a lookout during the robbery and carjacking because he was afraid
that Ingram might shoot him if he did not participate. Johnson testified that,
after the completion of the robbery, Ingram yelled at him to get into the
stolen car and that he did so. Johnson testified that he did not have a weapon
during the carjacking. On cross-examination, the prosecutor questioned Johnson
regarding his 1995 theft conviction for purposes of impeachment.
The district court gave the following instruction to
the jury regarding Johnson’s theft conviction:
The testimony of a witness may be discredited or
impeached by evidence showing that the witness has been convicted of a felony,
a crime for which a person may receive a prison sentence of more than one year.
Prior conviction of a crime that is a felony is one of the circumstances which
[sic] you may consider in determining the credibility of that witness. Another
circumstance that you may consider is if the crime involved false statements.
It is the sole and exclusive right of you, the jury,
to determine the weight to be given to any prior conviction as impeachment and
the weight to be given to the testimony of anyone who has previously been
convicted of a felony.
You have heard that the defendant Stanley Johnson was
convicted of a felony. You may consider that evidence when deciding, as you do
with any other evidence, how much weight to give the defendant’s testimony.
This earlier conviction was brought to your attention only as one way of
helping you decide how believable his testimony was. You must not use his prior
conviction as proof of the crimes charged in this case or for any other
purpose. It is not evidence that he is guilty of the crimes that he is on trial
for in this case.
AP at 251-52. The jury found
Johnson guilty on all three counts. The district court subsequently sentenced
him to concurrent terms of 100 months in prison to be followed by three years
of supervised release. He timely appealed his conviction.
Johnson maintains that the district court erred in
allowing the government to impeach his testimony with his 1995 theft
conviction. He argues that the theft conviction was not admissible under Rule
609(a)(2) because it is not a crime that “involved dishonesty or false
statement.” Johnson further contends that the admission of his theft conviction
was reversible rather than harmless error and therefore the Circuit Court must
reverse his convictions on all three counts.
The government denies that the district court erred in
allowing it to impeach Johnson as to his prior theft conviction as a crime
involving dishonesty or false statement under Rule 609(a)(2). Appellee’s Brief
at 12. It maintains, however, as it did in the district court, that the
conviction was also admissible under Rule 609(a)(1) as a crime punishable by
imprisonment in excess of one year. The government urges the Circuit Court to
affirm the District Judge’s stated alternate ground for admissibility under
this rule. The government then argues that given the absence of explicit
“balancing” findings the Circuit Court may conduct a plenary review and, under
that standard of review, should find that the probative value of the theft
conviction outweighed its prejudicial impact on Johnson. The government
contends that, in any event, even if evidence of the conviction for theft
should not have been admitted the error was harmless.
INSTRUCIONS:
You are a law clerk
for the Honorable Theodore A. McKee, Circuit Judge in the United States Court
of Appeals for the Third Circuit. Judge McKee has been designated to draft the
court’s opinion reversing the District Court decision to admit evidence of
Johnson’s prior conviction for impeachment purposes under FRE 609. Among other
necessary findings, judge McKee instructs you that the court will hold that
admission of the evidence of the theft conviction was error because there were
no legitimate grounds for such a ruling. Specifically, the court will rule that
the District Court erred in admitting the conviction under FRE 609(a)(2). The
court will rule further that the evidence should also have been excluded under
the pertinent section of FRE 609(a)(1).
Judge McKee explains further: “We [the Circuit Court] review a district court’s decision to admit evidence for abuse of discretion but we exercise plenary review over a district court’s construction of the Federal Rules of Evidence. United States v. Brown, 254 F.3d 454, 458 (3d Cir. 2001). The District Court found that the 1995 conviction for purse snatching was punishable by imprisonment for a term in excess of one year. Johnson’s attorney conceded that there was no dispute on this point and that Johnson agreed that the one-year statutory threshold in Rule 609(a)(1) had been satisfied. However, we will conduct plenary review of the “balancing” that is required by Rule 609(a)(1). In this regard, we act as if we were the District Court.”
Judge McKee instructs
you to draft an opinion for the court that is consistent with these
instructions and thoroughly addresses the facts and arguments that are
described above, together with all pertinent rules and doctrines.
The text of the
question is taken almost verbatim from the court’s opinion in United States
v. Johnson, 388 F.3d 96 (3rd Cir.
2004).
[The exam allowed 12
pages each with 24 lines of text for the answer. This was more than enough
space.]