Final Exam
Evidence §
2 - Fall 2002
Instructions: This is an open book exam. You may use any written, printed source (except another student’s exam paper) you choose in answering the questions set forth below. Assume that the Federal Rules of Evidence (FRE) apply throughout the exam. Cite specific provisions of the FRE and applicable case law whenever appropriate. There are 110 potential points on the exam. The exam will be graded on a 100-point scale.
Laptop Users Only: You may use a laptop computer to type the exam. Contrary to what you were told in class, you are not required to use ExamSoft software for completing the exam. If you use a laptop, you may not (1) use a network or wireless card; (2) use e-mail, instant messaging, or in any other way consult with any other person; (3) use any online or legal research services; (4) use the cut-and-paste feature, macros, or any other device that allows the movement of text within an answer; or (5) use spell-check, thesaurus or dictionary features. (All students are free to use a paper dictionary or thesaurus.) A separate room has been designated for laptop users. To preserve anonymity, e-mail your completed exam to Dean of Students Jim Brooks at jhbrooks@wmitchell.edu. Be sure to include your exam number on your exam. Dean Brooks will forward the exam to me.
Part I - Fact Pattern Analysis
(60 points – one hour, 35
minutes)
V
was killed when she was then thrown off an all terrain vehicle (ATV) driven by
Driver. V’s estate (Estate) brings a
wrongful death action against Driver and Owner.
Estate’s theory of recovery against Driver is that V was thrown off the
ATV when Driver attempted to make a U-turn at a high rate of speed. Estate’s theory of recovery against Owner is
that Owner negligently allowed Driver to borrow Owner’s ATV. Estate seeks monetary remedies, including
loss of future compensation.
(a)
In Estate’s case in chief, W testifies that she has observed Driver operate
ATV’s on numerous occasions in the past; that Driver always attempts to make
U-turns at a high rate of speed; and that in her opinion Driver’s carelessness
likely caused the accident involving V.
Both Driver’s and Owner’s counsel move to strike W’s testimony on the
ground that it is improper opinion evidence.
How should the court rule and why?
(5 points)
(b)
Driver’s and Owner’s counsel move in the alternative to strike W’s testimony on
the ground that it is improper character evidence. How should the court rule and why? (5 points)
(c)
W further testifies that Driver and Owner have reputations in the community for
being careless persons. Both Driver’s
and Owner’s counsel move to strike W’s testimony on the ground that it is
improper character evidence. How should
the court rule and why? (5 points)
(d)
On cross-examination of W, Driver’s counsel asks W whether she falsely claimed
on her Federal income tax return to have had only $50,000 taxable income during
the prior tax year when in fact she had $100,000 taxable income. W denies that her tax return was incorrect in
this respect. Driver’s counsel then
seeks to establish through the introduction of various payroll records and
other documentary evidence that W’s taxable income was in fact $100,000 rather
than $50,000. Estate’s counsel objects
that this is improper impeachment. How
should the court rule and why? (5
points)
(e)
Driver’s counsel also asks W whether she had been consuming alcoholic beverages
on each of the occasions when she purportedly saw Driver attempt to make a
U-turn while riding an ATV at a high rate of speed. W responds by testifying that she does not
drink alcoholic beverages. Later, during
the defense case, W’s ex-boyfriend testifies on behalf of Driver that W is an habitual drunk.
Estate’s counsel objects that this is improper impeachment. How should the court rule and why? (5 points)
(f)
Also during the defense case, Driver and Owner seek to introduce evidence that
V had briefly worked at three minimum-wage jobs during the past year and had
been discharged from each of them.
Estate objects that the evidence is improper character evidence. How should the court rule and why? (5 points)
(g)
Estate calls W on rebuttal and seeks to introduce a letter from W’s
ex-boyfriend stating that he would “mess with her every chance he got” because
she had broken off their relationship.
Driver and Owner object that the letter is precluded by FRE 608(b) and
the collateral evidence rule. How should
the court rule and why? (5 points)
(h) Estate also calls Father Thomas, a priest at the parish W attends, who testifies that in his opinion W is a truthful and believable person. Driver and Owner object that this is improper character evidence and is in any event prohibited by FRE 610. How should the court rule and why? (5 points)
2. Zacarias
Moussaoui, a French citizen of Moroccan descent, was arrested in August 2001
when he attempted to enroll in a flight training school located in
On
A Grand Jury sitting in the United States District Court, Eastern District of Virginia, has indicted Moussaoui in connection with the September 11 hijackings. The prosecution contends that Moussaoui conspired with the 19 actual hijackers and theorizes that he was intended to be the 20th hijacker. The prosecution has announced that it will seek the death penalty. Moussaoui discharged his court-appointed counsel and has requested that he be allowed to represent himself. The district court judge, however, doubts Moussaoui’s competency to do so and has appointed “standby counsel” to assist in his defense.
The indictment charges Moussaoui with six counts of
conspiracy: Conspiracy to Commit Acts of Terrorism Transcending National
Boundaries; Conspiracy to Commit Aircraft Piracy; Conspiracy to Destroy
Aircraft; Conspiracy to Use Weapons of Mass Destruction; Conspiracy to Murder
United States Employees; and Conspiracy to Destroy Property. The indictment alleges in considerable detail
the nature of the al Qaeda terrorist organization and its emir (or prince),
Usama Bin Laden. According to the
indictment, members of al Qaeda pledged an oath of allegiance (called a
“bayat”) to al Qaeda and Bin Laden.
Those suspected of collaborating against al Qaeda were to be identified
and killed. The indictment further
alleges that al Qaeda and Bin Laden violently opposed the United States
because, among other things, (1) it is an “infidel” nation governed in a manner
inconsistent with the group’s interpretation of Islam; (2) it provided support
for other “infidel” governments or nations, including Saudi Arabia, Egypt and
Israel; (3) it was involved in the 1991 Persian Gulf war and in operations in
Somalia during 1992 and 1993; and (4) it has arrested persons belonging to al
Qaeda or affiliated terrorist organizations.
As a result, Bin Laden declared a “jihad” (holy war) against the
(a) In a handwritten motion filed with the court, Moussaoui described Bin Laden as “my brother in Islam and my Father in Jihad . . . may Allah protect him”; and described himself as “a Mujahadeen, if Allah accept me, I am a terrorist in your eyes (as terrorism is like beauty, it is in the eyes of the beholder).” He has also admitted to being a member of al Qaeda. However, Moussaoui denies that the September 11 hijackings were al Qaeda or Bin Laden operations, and that he personally had any involvement in the hijackings. Assume that Moussaoui is prepared to stipulate to all of the background facts alleged in the indictment concerning al Qaeda and its objectives, and his membership in and support for al Qaeda and Bin Laden. On what basis would you expect Moussaoui’s standby counsel to argue that the prosecution should only be permitted to offer evidence connecting Moussaoui to the hijackings, and should not be permitted to introduce the detailed evidence concerning the origins, tenets and activities of al Qaeda and Bin Laden alleged in the indictment? How would you expect the prosecution to respond? (10 points)
(b)
The prosecution intends to introduce videotapes of the planes crashing into the
World Trade Center, including the burning and subsequent collapse of the two
towers; testimony by survivors, including those who were badly burned or
otherwise seriously injured; family pictures of the victims; and cockpit voice
recordings from the plane that crashed in Pennsylvania as passengers attempted
to wrest control of the plane from the hijackers. On what basis would you expect the
prosecution to argue that the foregoing evidence is admissible? On what basis would you expect Moussaoui’s
standby counsel to object to receipt of this evidence? (10 points)
(20 points - 35 minutes)
1. The plaintiffs in Wilson v. United States, 645 F.2d 728 (9th Cir. 1981), a
civilian shipyard worker and his wife, allege that the worker was injured by a
metal sliver that penetrated his eye while working on a ship owned by the
United States government. The
plaintiffs’ theory was that Navy personnel working nearby caused a sliver of
metal to fly off in
Plaintiffs failed to
meet their burden of showing that any act or omission of defendant
The Court of Appeals affirmed:
Using
the terms “element,” “claim for relief,” “burden of production,” “burden of
persuasion,” “inference” and “presumption,” explain the rulings of the trial
and appellate courts. (10 points)
2. All would agree that behavior is sometimes
properly treated as assertive in nature and that assertive conduct raises
hearsay issues similar to oral or written assertions. There is sharp disagreement whether
non-assertive conduct also raises hearsay issues. What arguments can be made in support of
treating non-assertive conduct as hearsay?
As not hearsay?
(10 points)
Part III - Hearsay Quiz
(20 points - 35 minutes)
Follow the path through the hearsay thicket to
determine whether evidence offered in the following situations should be
excluded by FRE 802. Give a brief
explanation in support of your answer. Each
question is worth two points.
1. To prove the license number of a car that was
involved in a hit-and-run accident, P offers testimony by W1 that immediately
after the accident a bystander yelled, “The license number of that car was GYX
242.”
2. In the same case, P offers testimony by W2
that she also heard what the bystander said; that she no longer recalls what
the number was; but that several minutes after the accident she wrote the
license number down on a slip of paper.
P offers the slip of paper.
3. In the same case, P offers testimony by W3
that he took a photograph of the license plate of the fleeing car. P offers the photograph.
4. In the prosecution of D for assaulting V, the
prosecutor offers testimony by W that shortly before the assault W told D that
D’s wife was having an affair with V. D
claims he acted in self-defense.
5. To prove that P, a four-year old child, is
entitled to damages for pain and suffering when his leg was injured in an
automobile accident, P offers testimony by W1 that she observed P grimace and
moan whenever he tried to walk.
6. In the same case, P offers testimony by W2
that P told her, “My leg really hurts whenever I try to walk.”
7. In the same case, P offers a notation made by
a clinic receptionist on an “Appointment Request” form indicating that the
reason P’s mother gave for making a doctor’s appointment was that “P’s leg has
hurt ever since he was injured in a car accident caused by D.”
8. In order to show motive in the prosecution of
D for embezzlement, the prosecutor calls W, a neighbor of D, who testifies that
he overheard D’s wife say to D, “So you blew your whole paycheck at Mystic Lake
Casino again.”
9. In the same prosecution, the prosecutor
offers the additional evidence that D hung his head and began to sob in
response to what his wife said.
10. In a negligence action arising out of an
automobile accident in which P claims that D failed to properly maintain the
brakes on her car and that this failure caused the accident, P offers evidence
that D had her brakes repaired the day after the accident.
(10 points - 15 minutes)
Each question is worth two points.
1. Which one of the following is false?
(a)
A person with no formal training in a particular field may nonetheless qualify
as an expert.
(b)
Expert testimony is not admissible because not helpful where jurors would
ordinarily have a general understanding of the matter under consideration.
(c)
General acceptance of an explanatory theory is no longer a relevant factor
after the Supreme Court’s decision in Daubert
v. Merrill Dow.
(d)
“Syndrome” evidence differs from the usual type of character evidence but
nonetheless may be admissible under the
2. Which one of the following is true?
(a)
A break in the chain of custody is always fatal to receipt of a tangible item
in evidence.
(b)
An e-mail message can sometimes be authenticated as to its source by reference
to its contents.
(c)
The truth of the contents of a document does not need to be independently
established if the document is self-authenticating.
(d)
A label on a product conclusively establishes who produced it.
3. P, a politician, sues D, a political
activist, for defamation based on the distribution of a flyer portraying P
engaged in a lewd act with a corporation.
The evidence shows that the image was digitally composed on a personal
computer, printed on an ink jet printer, and copied on a color
photocopier. The copies were placed
under the wiper blades of cars parked at a church service. Which one of the following is
admissible to prove the contents of the flyer?
(a) Testimony by a witness who saw the flyer.
(b)
The original printout of the flyer.
(c)
A copy of the flyer placed on windshields.
(d)
Any of the above.
4. Extrinsic evidence is permissible in all of
the following situations except:
(a)
To prove a witness engaged in prior acts of non-conviction misconduct bearing
on character for truthfulness.
(b)
To prove a witness engaged in prior acts of non-conviction misconduct
demonstrating bias.
(c) To prove a witness has a sensory or mental defect.
(d)
To prove a witness has been convicted of certain crimes.
5. Stella Liebeck won $2.9 million in a suit against McDonalds when a cup of coffee she was holding between her legs spilled while driving her car. In her honor, the Stella Award is given each year to the individual who wins the most frivolous lawsuit. Recent contestants include all of the following except:
(a)
An
(b)
A
(c)
A
(d)
A
(e)
A Claymont,
(f)
All of the foregoing were recent Stella Award
contestants. L