BEFORE THE EXAM STARTS, YOU MAY READ THE INSTRUCTIONS, AND COUNT TO MAKE SURE THAT YOU HAVE ALL TWENTY-EIGHT (28) 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.

Graduating Seniors: Students who are graduating in May should place a checkmark in the box next to the phrase “Graduating Senior” on the first page of the exam. Check only if it applies.

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; eight (8) Hearsay or Nonhearsay questions (Part II), for 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 therefor 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 and Review. The law school does not allow me to post grades when I turn them in (if I turn them in on time, which I usually do). I believe that in order to protect your privacy the University now only allows students to access grades individually by electronic means. I will be available to discuss examination results during the Fall semester of 2003, beginning after Tuesday, September 16, 2003. I will not discuss examination results during the Summer recess.

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 “perfect” answers, just the most correct one among the two alternatives available to you, in light of the question or statement presented. Unless otherwise expressly indicated, 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 word that you select as your response.

 Do not assume any facts not given to you. While you are expected to draw reasonable conclusions based on 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).

 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 “True” or “False.” The statement, as drafted, when read in the context of a Federal Trial, is either True or False.
 

1. Irrelevant evidence is not admissible.

True False

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

True False

3. Peter Scott is called as a witness by the defense to testify that he, not the defendant, committed an assault. Prior to this offer of testimony, and in separate proceedings, Scott was found to be criminally insane and incompetent to stand trial. He has publicly stated that Star Child, an all-powerful demon from the eighth dimension, ordered him to attack the victim. The government objects on the basis of competency. The court cannot possibly find Peter Scott to be competent to testify.

True False

4. Provided that a proper foundation can be laid, counsel may be allowed to question an expert witness about fees received for testifying as an expert in prior cases.

True False

5. In an appeal based on an evidentiary question a respondent establishes that the appellant failed to object to the admission of the evidence at trial. The appellate court is therefore completely precluded from reversing the lower court decision.

True False

6. When attacking the credibility of any witness using prior convictions, the only evidence that is admissible is evidence that the witness has been convicted of crimes punishable by death or imprisonment in excess of one year under the law under which the witness was convicted.

True False

7. Generally, evidence of character or trait of character is only admissible to prove that the person to which the evidence refers is a bad person.

True False

8. In an assault trial, the defendant is allowed to present the testimony of a character witness who says that “the defendant is a peaceable non-violent fellow.” When challenging the character witness’ testimony regarding the defendant’s good character, the prosecutor will only be allowed to ask questions referring to specific incidents in the defendant’s past if she meets the burden of convincing the court that there is a good faith basis for asking those questions.

True False

9. When certain evidence is found to be relevant, it may only be excluded if its probative value is substantially outweighed by considerations of the needless presentation of cumulative evidence.

True False

10. Counsel for plaintiff in a malpractice case calls one of the defendant doctors to the witness stand during their case-in-chief. If plaintiff’s counsel is in fact asking leading questions, an objection by defense counsel that plaintiff’s counsel is leading the witness must be sustained.

True False

11. In a civil trial, during cross-examination by defense counsel, the President of defendant Megacorp testifies that, in preparation for her testimony at trial, she reviewed a 30-page binder containing: 1) selected documents obtained through discovery from the Plaintiff, which was a partner in the project that led to the litigation; 2) documents obtained by defendant from the public records of the Florida Solid Waste Authority through a Sunshine Law request; and 3) documents prepared by defendant during the course of the project that had led to the litigation. The Megacorp president testifies at trial that her memory of what had occurred during the development of the project had been refreshed by reviewing all the documents in this binder, and was thus partially the basis for her testimony at trial. Plaintiff’s counsel asks the court to order production of the binder. Defense counsel objects that he selected the documents and that the binder thus constitutes work-product. Nevertheless, the court has the authority to order the production of the binder at trial.

True False

12. At the trial of Scott Peterson for the murder of his wife, Laci, the defense moves that the following people be excluded from the courtroom so that they cannot hear the testimony of other witnesses: (1) Sharon Rocha, the victim’s mother; (2) Dennis Rocha, the victim’s father; (3) Brent Rocha, the victim’s brother; and (4) Amy Rocha, the victim’s half-sister. All four are included in the prosecution’s witness list. The court has found that these persons are not essential to the presentation of the prosecution’s case and that the only applicable statutory exception allows “any victim of an offense” to be present during the entire trial even if they are going to testify. The court must order that they be excluded.

True False
 
 

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. Vickie Lynn Marshall, whose professional name is Anna Nicole Smith, is the surviving spouse of billionaire J. Howard Marshall, II, who passed away in 1995, at the age of 90. In 1994, Mr. Marshall signed a will in which he left the sum of half a billion dollars to his wife, Anna Nicole, another half billion to his younger son, E. Pierce Marshall, and his remaining funds were to go to the University of Texas Medical Center; thus he effectively disinherited his oldest son, J. Howard Marshall, III. Not amused, the younger J. Howard Marshall files suit to invalidate the will. At the trial, he offers the following statement, attributed to his late father, to prove that the father lacked testamentary capacity: “I am Hugh Hefner.”

hearsay nonhearsay

2. Richard Pacheco, Joseph Pantoliano, together with Peter, Paul and Maurice “Buzzy” Dionne, were accused of being involved in a conspiracy to import and to distribute more than one thousand pounds of marijuana in 1983. But the boat carrying the drugs was intercepted by the U.S. Coast Guard, and it dumped its cargo. The intended importers of the illegal drugs remained unidentified until 1985 when Pacheco became a government informant in order to get revenge on the rest of the group, but especially on Pantoliano, because he found out that Mr. Pantoliano was having an affair with his wife. Pacheco is the government’s star witness in Pantoliano’s separate conspiracy trial. During the trial, the defense effectively charges that Pacheco is a liar and brings out evidence of his motivation to take revenge on Pantoliano. During its case-in-rebuttal, the prosecution offers the testimony of State Trooper Joseph Costa that during a February 1986 conversation Pacheco told Costa:
a) That he (Pacheco) attended meetings at Peter Dionne's house, with Pantoliano present, during which the operation was discussed.
b) That Peter Dionne asked him (Pacheco) to hold $100,000.00 in cash which was to be used to buy a boat.
c) That he returned the money to Peter Dionne, who gave it to Pantoliano who  was to use it to buy the boat.
d) That he (Pacheco) was present when Pantoliano returned some of the money after being unable to purchase a boat.
e) That Pantoliano had twice taken him (Pacheco) to a fishing dock where appellant was working as a watchman. There, they observed the comings and goings of police and other passersby. Pantoliano also told Pacheco that should anyone be working late at the dock where he (appellant) was working, he would get the keys to two other docks which could be used to off-load the boat.
f) That the venture fell apart because the Coast Guard seized the mother ship.
These statements are consistent with those made by Pacheco during his direct testimony and are offered as proof of Pantoliano’s guilt. These statements are:

hearsay nonhearsay

3. In a murder trial, George Bly, who was an eyewitness to the murder, testifies during the prosecution’s case-in-chief: “The man driving the aquamarine Lexus fired the shots.” On cross-examination, counsel for the defense asks Bly about a conversation that Bly had with police officer Christian on the day of the accident. Over the prosecution’s hearsay objection, defense counsel is allowed to ask Bly whether he said to officer Christian, “The man driving the brown Mazda fired the shots.” The statement, as offered is,

hearsay nonhearsay

4. In a negligence trial involving an auto accident, Bert Georges, who was an eyewitness to the accident, testifies during plaintiff’s case-in-chief that the defendant, Jonathan Miller, said to the plaintiff, Mary Jones: “I am so sorry that I hurt you.” The statement is offered as proof of Miller’s negligence.

hearsay nonhearsay

5. In the middle of a riot, police officers on foot are in hot pursuit of one of the people responsible for creating the fracas, Otto Leibowitz. His girlfriend, Lynn Summers, observes him running in a Westerly direction down University Avenue, being closely chased by police officers. When she sees that the officers have momentarily lost sight of Otto, Lynn starts screaming “Officers, officers, he went that way,” and points to the South, and the officers go in that direction. Meanwhile, Otto makes his escape to the West. Purposely sending police officers in the wrong direction during a hot pursuit constitutes obstruction of justice. The statement is offered by the prosecution at Otto’s trial for inciting to riot.

hearsay nonhearsay

6. 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 during the prosecution’s case-in chief. During cross-examination, the defense confronts Ruth with the letter to prove that she is lying.

hearsay nonhearsay

7. As proof that Professor James Larson planned to go to lunch with Professor Smith on Thursday, evidence that on Tuesday he said to his secretary, “On Thursday, I’m going to go out to lunch with Professor Smith.” The offering party ultimately wishes to prove only what Larson did on Thursday.

hearsay nonhearsay

8.  Robert Harris was involved in a conspiracy to distribute cocaine with Bill Nichols. The DEA had been informed of this conspiracy and, pursuant to a warrant, had been listening to and recording Harris’ cellular telephone conversations for several months. During a cell phone conversation on October 13, 2002, Mr. Harris said to his girlfriend that he could not have dinner with her and her parents on October 15, “because I will be in Cleveland delivering forty kilos of cocaine for my boss, Bill Nichols.” Nichols, Harris and fourteen others were arrested on October 15, after the DEA and Cleveland police seized forty kilos of cocaine found in the trunk of Harris’ car after it was stopped near the Rock and Roll Hall of Fame. Nichols had been following Harris in his own car. When he was arrested, no drugs were found in Nichols’ car. Fearing that he would “rat” him out, Nichols had Harris killed by a fellow inmate at the detention facility where he was being held. At Nichols’ subsequent trial for possessing cocaine with intent to distribute, conspiracy, and traveling interstate to promote distribution or narcotics, the prosecution offers the statement by Harris to his girlfriend that was recounted above, to prove Nichols’ guilt.

hearsay nonhearsay
 

Referring only to the items that you classified as “hearsay” in this section, please provide further discussion as follows: 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 may be subjected to further analysis under the Rules. In the limited space provided in the next pages, simply write as to each pertinent item: (1) the number of the question; (2) as appropriate, “never admissible,” “admissible,” or “potentially admissible”; and (3) specifically identify any provisions of the Rules of Evidence or an evidentiary doctrine beyond parts (a), (b) and (c) of Rule 801, that are pertinent to your answer.
 In this section, it is appropriate to discuss additional facts or matters that would have to be established in order to completely resolve the admissibility question.
 

[There were 66 lines for writing the answers, approximately two and a half pages]

 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. 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.
 

Question:

David Wright, a Senior Cadet at the U.S. Air Force Academy, is charged with indecent assault on fellow Cadet Mary Johnson, and unlawful entry into her dormitory room. In this case the Government sought to use evidence pertaining to the indecent assault on Jane Smith, another cadet at the U.S. Air Force Academy, on October 18, 1996, as propensity evidence to prove that appellant also indecently assaulted Cadet Johnson in April 1996. Defense counsel conceded that evidence of the assault on Cadet Smith would properly come in under Fed.R.Evid. 404(b) to prove intent with respect to the charge of unlawful entry of Cadet Johnson's dormitory room. The defense made a motion in limine, however, to protest admission of such evidence to prove propensity and to request that the judge “preclude the prosecution and any Government witness from testifying about, mentioning or otherwise alluding to the proffered evidence.”
The prosecution asserted that the propensity evidence was admissible in order to prove the accused’s intent to sexually assault Cadet Johnson after breaking into her room. It argued that the evidence was admissible to prove propensity under Rule 413.
The trial judge determined that the alleged assault against Cadet Smith could be admitted for the purpose of demonstrating appellant’s propensity to commit similar sex offenses as charged. The following findings of fact and law were made:

1. The Accused was found guilty, pursuant to his plea of guilty, of unlawful entry of Cadet Smith’s dormitory room on 18 October 1996 and indecent assault on Smith once he was inside the room.

2. The indecent assault occurred while Cadet Smith was asleep on her bed in the early morning hours at approximately 0500. The Accused committed the assault by placing his hand inside her underwear and touching her vaginal area.

3. The Accused is now charged with the indecent assault of Cadet Johnson on 26 April 1996, as well as housebreaking of Cadet Johnson's room, at 0430 hrs. on 26 April 1996, that is, unlawfully entering her room with the intent to commit the criminal offense of indecent assault.

4. In order to prove the housebreaking offense, the facts of the indecent assault to which the accused has pleaded guilty should be entered into evidence as part of the facts and circumstances surrounding the commission of the offense to try and prove the Accused's intent.

5. With regard to the alleged sexual assault, the proffer in the prosecution's reply to the motion in limine states that Cadet Johnson will testify that the alleged assault occurred while she was asleep in the early morning hours. The proffer further states that she woke up in her dormitory room and found Wright on top of her and that Wright had put his hand under her clothes and was touching her vagina.
The trial Court concluded that the indecent assault to which Wright pleaded guilty was a form of the crime of “sexual abuse” defined in Chapter 109A of title 18 (18 U.S.C. § 2241) which forbids “knowingly caus[ing] another person to engage in a sexual act—(1) by using force against that other person.”  Accordingly, it is the type of offense that should be admitted into evidence in order to try and prove the indecent assault charge and that the probative value of considering this sexual assault for its bearing on the other offenses was not substantially outweighed by the danger of unfair prejudice. Consequently, it denied the defense motion in limine. But the court felt that the matter raised issues of first impression and thus certified an interlocutory appeal to the Circuit Court.

[This was followed by ten pages on which the answer could be drafted.]