Final Exam

Evidence § 2 - Fall 2004

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, during the exam 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; or (3) use any online or legal research services. 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. P, a middle-aged female in good health, sued D, a department store, as a result of a slip-and-fall accident. The accident occurred in broad daylight. P exited the store and turned left. She was wearing high-heeled shoes. P walked approximately 50 feet on D’s sidewalk. She then veered toward the curb, which was painted bright yellow, in order to avoid three metal grates in the middle of the sidewalk. The pathway between the first two grates and the curb measured about four feet. The pathway narrowed to three feet at the third grate. The sidewalk was in good repair except that the concrete in the vicinity of the third grate was deteriorated and the surface was spalling (chipped and scaling). Also, the curb by the third grate had subsided approximately three inches below the sidewalk, and there was a gap between the curb and the sidewalk. These conditions had existed for at least 15 years. As P stepped toward the curb near the third grate one of her heels caught in the gap. She fell and broke her leg.

Assume the applicable substantive law imposes a significant duty of care upon those who maintain sidewalks for public use. However, where a pedestrian is injured as a result of an “open and obvious” defect, she is considered contributorily negligent. In that circumstance, recovery is precluded unless she can prove that external conditions prevented her from seeing the defect or would otherwise excuse her failure to see it.

The National Academy of Sciences defines “Human Factors” as a discipline that “is primarily concerned with the performance of one or more persons in a task-oriented environment interacting with equipment, other people or both.” A quick Internet search reveals substantial industrial and scholarly treatment of the study of Human Factors. There are a number of scholarly journals, including The Journal of Human Factors and Ergonomics Society.

In order to avoid a defense of contributory negligence, P seeks to have Dr. Snyder, a professor at the Massachusetts Institute of Technology and a purported expert on Human Factors, testify concerning the Human Factors that would come into play in the circumstances of P’s accident. Specifically, if permitted to testify, Dr. Snyder would opine: (i) most people, and particularly women wearing high heels, do not like to walk on metal grates and would alter their path to avoid them; (ii) the bright yellow color of the curb would prompt the human eye to fill in any discontinuity that existed between the sidewalk and the curb; and (iii) the scene “was an accident just waiting to happen.”

(a) On what basis is P likely to argue that expert testimony is appropriate in her lawsuit? On what basis is D likely to argue that it is not? (5 points)

(b) Assume that the trial court rules that it will consider allowing expert testimony in this case subject to a proper foundation being laid. What will P need to establish before Dr. Snyder will be permitted to testify? (5 points)

(c) Assume that the trial court rules that it will permit Dr. Snyder to testify. Should the trial court permit Dr. Snyder to give any or all of the three opinions identified above? (5 points)

2. D is charged with making terroristic threats against V, his former employee. V testifies that on three successive nights D called her and left threatening messages on her answering machine; that she knew D was the caller because she recognized his voice and her “Caller I.D.” indicated that the call was placed from D’s telephone; and that on each occasion she typed the contents of the message into her computer and then rewound the answering machine so that the next call taped over the previous one. V further testifies as to what she heard D say on the tape. Finally, V testifies that she printed the messages that she typed on her computer. In one or two sentences, explain how the prosecutor should respond to the objections below. Each question is worth two points.

(a) D objects to V’s identification of D’s voice.

(b) D objects to V’s identification of D’s telephone number.

(d) D objects to V’s testimony concerning what D allegedly said on the ground that the computer printout is the best evidence of the content of D’s message.

(e) D objects to the computer printout of what D allegedly said because the content of the telephone messages is in issue and V destroyed them.

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) or FRE 801(d)(2)(C)-(E), 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. On December 2, 2004, the San Francisco Chronicle reported that New York Yankees slugger Jason Giambi had testified a year earlier before a grand jury and had admitted to using steroids. The Yankees would like to terminate the remaining four years of Giambi’s contract and avoid paying him the $82 million they would otherwise owe him. The only evidence of Giambi’s steroid use the Yankees have is the newspaper article.

2. To prove that Chai Soua Vang was the person who shot and killed six Wisconsin deer hunters and wounded two others, testimony by survivor Lauren Hesebach that shortly before Robert Croutteau was killed, Hesebach observed Croutteau look at the shooter’s hunter license number, which was pinned to the back of the shooter’s jacket; that Croutteau then wrote the number in the dust on an ATV; and that the number Croutteau wrote was “XXXXXX”.

3. Would your answer be the same or different if the Minnesota Rules of Evidence applied?

4. In Morales v. Portuondo (casebook p. 743), Jesus Fornes told the mother of one defendant and the attorney for another defendant that he was guilty and the defendants were innocent. Later, he invoked his privilege against self-incrimination and refused to testify at a post-trial hearing to set aside the verdicts against the defendants. The state trial court refused to allow the mother and the attorney to testify about what Fornes told them because in the court’s view the statements were inadmissible hearsay. Would this ruling be correct under the FRE?

5. D is charged with killing his girlfriend V on Thursday. D claims he was out of town that day. W testifies on behalf of the prosecution that V told W, “I’m afraid D is going to hurt me.”

6. In the same case, W further testifies that V told W, “D beat me last week.”

7. In the same case, W further testifies that V told W, “D and I are going meet on Thursday and try to work out our differences.”

8. In the same case, V’s doctor testifies that V told him, “I have had a severe headache ever since D beat me last week.”

9. P sues his employer D alleging D terminated him because of his age. D claims it terminated P because of poor performance. In support, D offers P’s personnel file, including a copy of a letter it received from a customer complaining about P. It is D’s regular practice to maintain employee personnel files, including positive and negative customer letters, and to rely on these files in making personnel decisions.

10. In the same case, D offers P’s most recent annual performance evaluation which it completed shortly prior to his termination. The evaluation was conducted by P’s supervisor and states in part, “We need to get rid of P because of his poor performance.” It is D’s regular practice to conduct performance evaluations on an annual basis and to rely on them in making personnel decisions.

Part III – Multiple Choice

(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. Which one of the following is false?

(a) An admission can be made by someone on behalf of a party-opponent.

(b) An admission can be in the form of an opinion.

(d) An admission can be disavowed at a later point in time.

2. Which one of the following is false?

(a) A prior inconsistent statement can be used for purposes of impeachment and, in some circumstances, as substantive evidence of what it asserts.

(b) A prior inconsistent statement must be shown to a witness before it can be used for impeachment.

(d) Extrinsic evidence is not admissible to prove a prior inconsistent statement unless the witness is given an opportunity to explain or deny it.

3. Which one of the following is false?

(a) The underlying rationale of the attorney-client privilege is to protect the adversarial process.

(b) The attorney-client privilege survives the death of the client.

(d) The attorney-client privilege is personal to the client and may not be waived by the attorney.

4. Which one of the following is false?

(a) In appropriate circumstances FRE 703 allows an expert to consider evidence that is otherwise inadmissible.

(b) In appropriate circumstances FRE 703 allows a jury to consider evidence that is otherwise inadmissible.

(d) In appropriate circumstances FRE 1006 allows a party to introduce evidence that is otherwise inadmissible.

5. Which one of the following is not a recent headline found on CNN.com?

(a) Man Accused of Stabbing Relatives Over Holiday Table Manners (a man allegedly stabbed two relatives after they criticized his table manners during Thanksgiving dinner).

(b) Woman Auctions Father’s Ghost on eBay (A woman’s effort to assuage her 6-year old son’s fears of his grandfather’s ghost by selling it on eBay drew more than 34 bids with a top offer of $78).

(c) Site Pulls ‘Free Chai Vang’ Buttons (CafePress.com claimed it thought Chai Vang was a political prisoner and was unaware that he had been charged with killing six Wisconsin deer hunters and wounding two others).

(d) The correct answer is (c). That headline is from the Minneapolis Star Tribune. L

Outline of Answers to Final Exam

Evidence § 2 – Fall 2004

Professor Fox

Fact Pattern # 1

The facts for this question were loosely drawn from Scott v. Sears, Roebuck & Company, 789 F.2d 1052 (4^th Cir. 1986). The question raises issues similar to those in Problem 9.11. The sample answer that follows is based on FRE 702 as amended in 2000. Answers that track the three-prong test of Daubert (reliability, fit and confusion of the issues) would also be acceptable.

(a) The appropriateness of expert testimony turns on whether “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” FRE 702. The plaintiff will argue that expert testimony is appropriate here to assist the jury in understanding why a middle-aged female in good health walking on a sidewalk in broad daylight was not contributorily negligent when she failed to observe what might appear to be an “open and obvious” defect in the sidewalk that had existed without incident for 15 years. The defendant will argue that this is a simple and typical slip-and-fall case involving an allegedly faulty sidewalk, a matter of common knowledge and experience, and that therefore expert testimony will not be of any assistance to the trier of fact.

(b) The foundation that P will need to establish as set forth in FRE 702 includes the following:

(i) Dr. Snyder is a qualified expert by virtue of knowledge, skill, experience, training or education;

(ii) Dr. Snyder’s testimony has a sufficient basis (appropriate facts or data);

(iii) “Human Factors” is based on reliable principles or methods (citing the Daubert or analogous factors); and

(iv) Dr. Snyder has applied those principles or methods in a reliable way in this case.

The facts indicate that Dr. Snyder is a “purported expert” in “Human Factors.” P can rely on the facts that Dr. Snyder has a Ph.D. degree (based on the “Dr.” title) and is a professor at a renowned school but would need to develop additional evidence establishing expertise. The facts are insufficient to tell us whether Dr. Snyder’s testimony has a sufficient basis. There are some facts from which we could conclude that “Human Factors” is based on reliable principles or methods but again P would need to develop this point further. Finally, the facts are insufficient to establish whether Dr. Snyder has applied “Human Factors” in a reliable way in this case.

(c) Opinion (i) seems to involve a matter of “common” rather than “specialized” knowledge and is therefore not appropriate for expert testimony. Opinion (ii) would appear to be helpful in explaining why the gap between the sidewalk and the curb was not an “open and obvious” defect and therefore why P’s failure to see it did not constitute contributory negligence. Opinion (iii) seems to simply tell the jury what result to reach (D negligently maintained the sidewalk). Hygh v.Jacobs (casebook p. 604 ff.)

Fact Pattern # 2

(a) This form of identification is permitted by FRE 901(b)(5).

(b) This form of identification is permitted by FRE 901(b)(9) provided that there is testimony showing how “Caller I.D.” works and that it produces accurate results. This is similar to Problem 10.3.

(c) This form of identification is permitted by FRE 901(b)(1). P is a person with knowledge concerning how the computer printout was produced and can testify as to what it is.

(d) The content of the telephone messages is in issue and either the computer printout or V’s testimony can be used to establish that content. There is no requirement that the “best evidence” of content be produced. This is similar to Problem 10.5.

(e) Since content is in issue here, the “original” recordings have to be produced. FRE 1002. However, secondary evidence of contents is permitted since the originals have been destroyed and the proponent (the prosecutor) did not destroy them (and therefore did not do so in bad faith). FRE 1004(1).

Hearsay Quiz

1. Hearsay within hearsay. Giambi’s statement to the grand jury would be an admission of a party opponent in a suit to void the balance of the contract. FRE 801(d)(2)(A). However, the newspaper article does not fit any recognized hearsay exception. (Dallas County v. Commercial Union Assurance Co. (casebook p. 507 ff.) is distinguishable because the newspaper article in that case, unlike the San Francisco Chronicle article, had circumstantial indicia of reliability.)

2. The number Croutteau wrote in the dust of the ATV is hearsay because it is the equivalent of a statement (“The shooter’s hunter license number is XXXXXX”) that was made by an out-of-court declarant and is offered to prove what it asserts. However, the statement qualifies as a “present sense impression” under FRE 803(1) because it was made “while the declarant was perceiving the event . . .” and is therefore not excluded by FRE 802.

3. The result would be different under the Minnesota Rules of Evidence because the Minnesota legislature moved the “present sense impression” exception to a new MRE 801(d)(1)(D). Since all 801(d) statements require that the declarant testify at the hearing and the declarant (Croutteau) is deceased, the statement would not qualify as a “present sense impression” under Minnesota law. (This is similar to the Reading Railroad example discussed in class.)

4. Fornes’ statement so tended to subject him to criminal liability that a reasonable person would not have made the statement unless he believed it to be true. Moreover, and even though the statement tended to expose Fornes to criminal liability and was offered to exculpate the two defendants, the court in Morales concluded that the circumstances strongly corroborated the truth of Fornes’ statement. Accordingly, Fornes’ statement qualifies as a hearsay exception under FRE 804(b)(3) and is therefore not excluded by FRE 802.

5. This is a statement concerning the declarant’s then-existing state of mind (fear of D) and is a hearsay exception under FRE 803(3).

6. This is an out-of-court statement and is hearsay if offered to prove what it asserts.

7. This is a statement concerning the declarant’s intent and is a hearsay exception under FRE 803(3). See Hillmon (casebook p. 459 ff.)

8. This is a statement made for purposes of medical diagnosis or treatment and is a hearsay exception under FRE 803(4). The ascription of fault is inadmissible unless relevant to treatment. See Iron Shell (casebook p. 471 ff. at fn. 10) and Problem 7.33.

9. Hearsay within hearsay. Even assuming the personnel record qualifies as a business record under FRE 803(6), the customer letter does not because the customer had no business duty to report. See Vigneau (casebook p. 492 ff., citing Johnson v. Lutz) and ACN to 803(6) (also citing Johnson v. Lutz).

10. Hearsay within hearsay. Again assuming the personnel record qualifies as a business record, the supervisor’s statement in the performance evaluation, like the accident report in Palmer v. Hoffman, is “dripping with motivation to fabricate.” See casebook at p. 485. The argument here is that the circumstances of the preparation of the evaluation (shortly before P’s discharge) indicate a lack of trustworthiness.

Multiple Choice

1. c

2. b

3. a

4. d

5. c