Mid-term 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)
Hospital staff at Mercy Hospital determined that syringes containing the powerful, and addictive, painkiller Demerol had been replaced with syringes containing a saline solution. Only five registered nurses had access to the locked cabinet where the syringes were kept. All five denied tampering with the syringes when interviewed by police. However, one of the nurses, Mary Jane, admitted to having been addicted to Demerol four years earlier but maintained that she was “clean” at this point in time. Jane was charged with tampering with a consumer product in violation of a federal statute.
(a) In its case in chief, the prosecution offers evidence that Jane was previously addicted to Demerol. On what basis could the prosecution argue that such evidence is admissible? How would you expect Jane’s counsel to respond? (5 points)
(b) The prosecution also offers evidence that four years earlier the hospital where Jane previously worked as a registered nurse under a different name fired her for stealing Demerol. On what basis could the prosecution argue that such evidence is admissible? How would you expect Jane’s counsel to respond? (5 points)
(c) The prosecution also offers evidence that Jane’s nursing licensed had been suspended as a result of the previous Demerol theft; that her license had subsequently been reinstated subject to certain conditions, including submitting to periodic drug testing; and that on at least one occasion three years earlier she was able to conceal her continued use of Demerol and retain her license by falsifying test results. On what basis could the prosecution argue that such evidence is admissible? How would you expect Jane’s counsel to respond? (5 points)
(d) Jane testifies in her own behalf and denies that she tampered with the Demerol syringes. On cross-examination, the prosecution seeks to establish that Jane pled guilty to theft for stealing Demerol from the prior hospital; and that as part of the plea agreement Jane admitted that she falsified hospital and patient records in order to conceal her conduct. The maximum penalty for that theft was six months in prison. However, Jane received a suspended sentence and did not serve any time. On what basis could the prosecution argue that evidence concerning the earlier conviction is admissible? How would you expect Jane’s counsel to respond? (5 points)
(e) Assume that the trial court refused to allow the prosecution to introduce evidence concerning the suspension of Jane’s nursing license and her falsification of drug test results in (c) above. On what basis could the prosecution argue that this evidence is admissible during Jane’s cross-examination? How would you expect Jane’s counsel to respond? (5 points)
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 hearsay within the meaning of FRE 801(a)-(c). Also consider whether the evidence is excluded from the definition of hearsay by FRE 801(d)(2)(A) or (B). Each question is worth two points.
1. In a proceeding to prove that X had acquired certain land through adverse possession, testimony by A, B and C that X threatened to shoot them 20, ten and two years ago, respectively, if they stepped foot on his land.
2. In the same proceeding, evidence that 20 years ago X built a fence around the land and posted “No Trespassing” and “Keep Out” signs on the fence.
3. In the same proceeding, evidence that 20 years ago X had joined a local landowners association.
4. P alleges that she was injured in a hit-and-run accident involving a car driven by D. D claims that his car was stolen earlier that same day. As proof that it was D’s car that struck her, W testifies that “I wrote the car’s license number on this slip of paper as it was speeding away.” P then offers the slip of paper.
5. In the same lawsuit, P seeks prove that D was the driver of the car by offering the testimony of the police officer who was assigned to investigate the accident. The officer testifies that he went to D’s house shortly after the accident and knocked on the front door. He then saw D look out the window and run out the back door.
6. In the same lawsuit, as further proof that D was the driver of the car, the officer testifies that he ran after and eventually caught D; and that D then said, “I guess I’m really in trouble now, huh?”
7. D, a politician, is charged with possession of cocaine with intent to sell. The prosecution’s theory is that D purchased three kilos of cocaine from an undercover agent in order to re-sell it at a profit and pay off campaign-related debts. D’s counsel contended in her opening statement that D and the County Attorney are members of opposing political parties; that the initial investigation of D was politically motivated; and that D was entrapped into committing the crime charged. (A valid entrapment defense requires proof that (a) the government induced the crime and (b) the defendant lacked a predisposition to engage in the criminal activity.) In the prosecution’s case in chief, the undercover agent testifies that the investigation of D began when an anonymous tipster called the police and said that D was selling cocaine in order to pay off campaign-related debts.
8. In the same prosecution, the undercover agent testifies on cross-examination that he initiated a call to D and said, “I hear you are selling cocaine to get rid of those campaign debts. I’ve got three kilos if you’re interested.”
9. To prove that Citigroup Center in New York City, one of five buildings the Federal government says Al-Qaida operatives studied as possible targets, was in fact safe, evidence that New York Gov. George Pataki and Laura Bush and her daughters visited the building.
10. To prove that President Bush is brighter than he is reputed to be, evidence that the President did not visit the Citigroup Center with Gov. Pataki and the President’s wife and daughters.
(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) Evidence that tends to establish the proposition it is offered to prove may nonetheless be inadmissible under FRE 401.
(b) Evidence is conditionally relevant under Rule 104(b) if it meets a “preponderance” standard in a civil case and a “beyond a reasonable doubt” standard in a criminal case.
(c) A stipulation can be used to minimize the possibility of unfair prejudice.
(d) A party can ordinarily refuse to accept an opposing party’s offer to stipulate to a fact and introduce evidence establishing that fact.
2. Which one of the following is false?
(a) An alteration made to a product design occurring between the time of sale of the product alleged to be defective and unreasonably dangerous in the lawsuit and the time of injury is barred by FRE 407.
(b) A change in an instructional manual may be a subsequent remedial measure barred by FRE 407.
(c) A remedial measure can be “feasible” within the meaning of FRE 407 but nonetheless be inadvisable.
(d) Evidence of a subsequent remedial measure is admissible in response to a claim by the manufacturer of a product that it had taken all reasonable safety precautions in designing the product.
3. Which one of the following is false?
(a) A statement by a driver as he exits his car following an accident, “It’s my fault, I’ll pay your damages” is not barred by FRE 408
(b) A party can prove that certain statements were made during compromise negotiations in order to establish that it had permission to engage in conduct that the opposing party now contends was impermissible.
(c) FRE 408 does not apply to statements made during the course of efforts to induce a creditor to accept an amount less than the amount that is admittedly due.
(d) Evidence that a party to a lawsuit settled with a third party is not barred by FRE 408.
4. Which one of the following is false?
(a) Extrinsic evidence of specific instances of conduct is not admissible under FRE 405(a).
(b) Extrinsic evidence of specific instances of conduct is not admissible under FRE 608(b).
(c) At common law, extrinsic evidence was admissible to impeach by contradiction regardless of whether the evidence was otherwise relevant.
(d) Under the FRE, the admissibility of extrinsic evidence to impeach by contradiction is regulated by FRE 403.
5. Which one of the following is not a recent headline taken from CNN.com?
(a) “Judge Rebuked for Encouraging Lying” (judge told jurors to think up a phony reason for not serving if they were racially biased but didn’t want to admit it publicly).
(b) “Loud Cell-phone Call Leads to Pregnant Woman’s Arrest” (transit police handcuffed a pregnant woman and forced her to lie on her stomach because she was cursing loudly on her cell phone and refused to stop).
(c) “Defendant Slashes His Lawyer in Court” (a man on trial for taking a kindergartner hostage slashed his public defender with a razor blade at the conclusion of the defense case; the public defender had argued that his client was insane and that this pretty much confirms it”).
(d) All of the above are recent headlines. L
Outline of Answers to Mid-term Exam
Evidence § 2 – Fall 2004
Professor Fox
Part I -- Fact Pattern
The facts are loosely derived from United States v. Cunningham, 103 F.3d 553 (7th Cir. 1996).
(a) The prosecution would offer this evidence in order to show motive. FRE 404(b). Jane would respond that this is in truth character evidence offered to prove conduct consistent with character on a particular occasion.
(b) The prosecution would argue that the evidence shows modus operandi and rely on the court’s analysis in Trenkler, casebook p.150. Jane would respond that the two incidents are not “so distinctive” that “nobody else could have committed this crime.” Proof of Modus Operandi, casebook p. 149.
(c) The prosecution would argue that this is further evidence of or provides context to evidence of motive, modus operandi and/or identity. Jane would respond that this is in truth character evidence and should in any event be excluded on FRE 403 grounds. In addition, it is hearsay (“The licensing authority said, ‘Jane is guilty.’”) The prosecution would respond that the licensing authority’s conduct was non-assertive and therefore there is no hearsay issue.
(d) The prosecution would argue that this is a crime involving false statement or dishonesty (falsifying hospital and patient records) and balancing of probative value and prejudice is not appropriate. FRE 609(a)(2). Jane would respond that 609(a)(2) does not apply since the prior crime simply involved theft and theft is ordinarily not a crime involving false statement or dishonesty. Brackeen, casebook p. 260. Jane would further respond that 609(a)(1) does not apply because the crime was not felony grade.
(e) The prosecution would argue that the evidence concerning falsification of hospital and patient records is non-conviction misconduct bearing on character for truthfulness. FRE 608(b). Jane’s counsel would respond that this is simply a pretext for introducing evidence that the court already correctly excluded. Also, the suspension has no bearing on character for truthfulness. Finally, the evidence relates to an incident that is minimally relevant because remote in time and should be excluded under FRE 403.
Hearsay Quiz
1. Verbal act. The words have independent legal significance (assertion of ownership) in the context of an adverse possession case.
2. Assertive conduct/verbal act – By engaging in this conduct, X is intending to assert, “This is my land,” and those words have independent legal significance in the context of an adverse possession case.
3. Non-assertive conduct. X is not asserting anything by joining the association (although we might infer that X believed he was a landowner). It would be something of a stretch, but an argument could be made that this is assertive conduct (“I own land”). In that case, the statement “I own land” would be an out-of-court statement and hearsay if offered to prove that X was a landowner.
4. Hearsay.
5. Non-assertive conduct. D is not intending to assert anything by fleeing (although we might infer guilt based on his flight).
6. Admission of party opponent. FRE 801(d)(2)(A).
7. Effect on listener. Explains why police initiated investigation and rebuts claim of political motivation.
8. Verbal act. This is legally significant language re inducement.
9. Assertive conduct. Like Problem 7.9, casebook p. 348.
10. Non-assertive conduct. Like Problem 7.8, casebook p. 347.
Multiple Choice
1. b
2. a
3. d
4. c
5. d