Final Exam
Evidence § 2 - Fall 2003
Professor Fox
Instructions: This is an open book exam. You may use any written source (except another student’s exam paper) you choose in answering the questions 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 55 potential points on the both the mid-term and the final exams for a total of 110 potential points. Final grades for the course will be based on a 100-point scale. You will have one and one-half hours to complete each exam. Keep your answers short or you will not finish. You must return this exam with your answers.
Laptop Users Only: You may use a laptop computer to type 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; or (4) use the cut-and-paste feature, macros, or any other device that allows the movement of text within an answer. To preserve anonymity, either (a) e-mail your answers to Renate Behrendt, Administrative Coordinator – Academic Affairs, who will forward the answers to me, at rbehrendt@wmitchell.edu; or (b) download your answers to a floppy disk. In either case, be sure to include your exam number with your answers.
Part I - Fact Pattern Analysis
(25 points – 40 minutes)
1. On January 14, 2003, St. Cloud, Minnesota teenager Jason MacLennan shot and killed his father, Kenneth MacLennan, with a .22 caliber rifle he borrowed from a friend. Jason’s defense is that his father psychologically abused him so severely that he suffered from “battered-child syndrome” and killed his father in self-defense. He argues by analogy to cases holding that expert opinion testimony concerning “battered-woman syndrome” is admissible to assist a defense of self-defense made by women who have been accused of killing their batterers. Dr. Carl Malmquist, former head of the psychiatric division of Hennepin County Court Services, is prepared to testify on behalf of the prosecution that “battered-child syndrome” is not an official diagnosis and that there is little social scientific evidence to validate it. Assume the case is being tried in a federal court in Minnesota.
(a) Describe the decision-making process the court should follow in deciding whether evidence of “battered-child syndrome” is relevant.
(b) Describe the decision-making process the court should follow in deciding whether evidence concerning “battered-child syndrome” is reliable. (5 points)
(c) Would the decision-making processes above be the same or different if instead the case was tried in a state court in Minnesota? (5 points)
The rest of the story: The case was actually tried in state court. The trial was moved from St. Cloud to Duluth because of the extensive pre-trial publicity the case received. On September 30, 2003, after deliberating 11 hours, the jury convicted Jason of first degree murder. He was sentenced to life in prison and disqualified from inheriting his father’s estate.
2. Khalid El-Amin was a star basketball player for the Minneapolis North High School Polars and the University of Connecticut Huskies. El-Amin abandoned his last year of college eligibility in order to seek fame and fortune in the National Basketball Association. He was drafted by the Chicago Bulls for the 2001 season but was released mid-season. Subsequently, El-Amin tried out for the Minnesota Timberwolves, the Dallas Mavericks and the Miami Heat but did not make any of their rosters. He did land a position with a team in Israel (no irony in that). He has also played for teams in the Continental Basketball Association and Europe in a thus far unsuccessful attempt to return to the NBA.
Curtis Frazier contends that on April 16, 2000, he entered an elevator in a downtown Minneapolis parking ramp that was occupied by El-Amin and several of his friends. El-Amin allegedly assaulted Frazier, causing eye socket, nose and facial nerve injuries. Frazier sued El-Amin for damages.
The parking ramp was equipped with security cameras. A security guard watched the incident on a video screen as it occurred. The incident was also videotaped. The tape was left unattended in the ramp office for considerable periods of time. Four people watched the tape at various times while it was located in the office. The security guard eventually took the tape home. Somehow, the key part of the tape was recorded over and replaced (I am not making this up) by an episode of “Mister Rogers’ Neighborhood.”
(a) Frazier seeks to have the security guard testify as to what he saw on the video screen and to have the four people testify to what they saw on the tape. Assume that El-Amin’s counsel objects on “foundation” grounds to both forms of testimony. Identify the issues this objection raises and how they should be resolved. (5 points)
(b) Assume that El-Amin’s counsel also raises a “best evidence” objection to the testimony of the four people. Identify the issues this objection raises and how they should be resolved. (5 points)
The rest of the story: El-Amin was only able to attend the trial for a day because he had to leave to join his new team in Istanbul, Turkey. The judge permitted El-Amin to tell the jury his version of the facts (again, I am not making this up) by videotape. On August 26, 2003, the jury awarded Frazier $40,000 for pain and suffering, $4,000 for medical expenses and $10,000 in punitive damages.
Part II - Hearsay Quiz
(20 points - 35 minutes)
In one or two sentences, explain whether evidence in each of the fact patterns that follow is excluded from the definition of hearsay by FRE 801(d)(1)(A)-(C), is an exception to the hearsay rule under either FRE 803, 804 or 807, or is inadmissible hearsay under FRE 802. Each question is worth two points.
1. In a case arising out of an intersection collision, testimony that several minutes before the accident two bystanders saw D drive past; and that one bystander said to the other, “That guy must be going 100 miles per hour.”
2. In a slip-and-fall case in which P is seeking compensation for pain and suffering, testimony by a chiropractor who P consulted in anticipation of filing a lawsuit that P told the chiropractor, “My back really hurts.”
3. In the same case, the records of P’s appointment with the chiropractor, including, in the “Diagnosis” section of the records, a note in the chiropractor’s hand stating, “P experiencing severe back pain as a result of falling in D’s parking lot.”
4. In an intersection collision case in which both drivers died, a statement contained in an accident reconstruction report prepared by a state trooper that “In my opinion the blue car ran the red light.”
5. In the same case, a statement contained in the accident reconstruction report that a bystander told the trooper during the investigation of the accident that “The blue car ran the red light.”
6. In a case in which the prosecutor used the arresting officer’s notes to refresh the officer’s recollection of the events leading to D’s arrest, the notes are offered as further proof of those events.
7. A police officer found V lying on his back in a pool of blood, barely conscious and struggling to breathe. In response to the officer’s questions as to who caused V’s injuries, V mumbled “D” and then lapsed into a coma. Miraculously, V survived and then left the country to recuperate at a spa in Europe. Since V was still out of the country at the time of D’s trial for attempted murder, the prosecutor elicited testimony from the officer that V identified D as his assailant.
8. W gave a statement under oath to a police detective identifying D as the source of the cocaine found in her purse. At trial, W identified X as the source. The prosecution then offers W’s statement as proof that in fact D was her source.
9. Assume the same facts except that W made the original statement before a grand jury.
10. Assume again that W made the original statement before a grand jury but claims at trial to no longer remember who was the source of the cocaine.
(10 points - 15 minutes)
Each question is worth two points. Circle the correct answer on this exam sheet or include your answers to this question with your other answers.
1. W was working as a teller at the First Bank when it was robbed. She got a clear look at the robber. At the request of the police, W prepared a sketch of the robber. W had a heart attack and died within minutes of completing the sketch. The prosecution offers the sketch to prove that D was the robber. The sketch is:
(a) Inadmissible hearsay.
(b) Admissible as past recollection recorded.
(c) Admissible as a dying declaration.
(d) Admissible as an identification of a person after perceiving him.
2. Which one of the following is false?
(a) An expert can give an opinion that is based on hypothetical facts or data.
(b) An expert can give an opinion that is based on facts or data made known to the expert outside of the presence of the jury.
(c) Otherwise inadmissible evidence can be admitted for the limited purpose of showing the basis for an expert’s opinion if the court determines that the probative value of the evidence substantially outweighs its prejudicial effect.
(d) Otherwise inadmissible evidence becomes admissible as substantive evidence when an expert relies on the evidence in forming an opinion.
3. Which one of the following is false?
(a) Testimonial privileges are generally justified by considerations of social policy or privacy.
(b) Testimonial privileges are generally disfavored because they interfere with the search for truth.
(c) Testimonial privileges are generally “qualified” and subject to a balancing test.
(d) Testimonial privileges generally survive the death of the speaker.
4. Which one of the following is not a foundation element for a “summary” under FRE 1006?
(a) Admissibility of the underlying documents.
(b) Authenticity.
(c) Advance notice.
(d) Accuracy.
5. Which one of the following was not awarded a “Foot in the Mouth” prize by Britain’s “Plain English Campaign”?
(a) Actress Alicia Silverstone, on the movie “Clueless”: “I think that ‘Clueless’ was very deep. I think it was deep in the way that it was very light. I think lightness has to come from a very deep place if it is true lightness.”
(b) Actor Richard Gere, on self-knowledge: “I know who I am. If I was a giraffe and somebody said I was a snake, I’d think, ‘No, actually I am a giraffe.’”
(c) California Governor Arnold Schwarzenegger, on the sanctity of marriage: “I think that gay marriage is something that should be between a man and a woman.”
(d) Secretary of Defense Donald Rumsfeld, on epistemology: ”Reports that something hasn’t happened are always interesting to me, because as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns – the ones we don’t know we don’t know.” (You may think you know what he means, but you cannot you be sure that you know what you think you know.)
Give yourself two bonus points if you answered (c). Governor Schwarzenegger was nominated for the award but was edged out by Secretary Rumsfeld. L