Mid

Mid-Term Exam

Evidence § 2 - Fall 2003

Professor Fox

Instructions: This is an open book exam. You may use 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 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. 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 Dean of Students Jim Brooks at jhbrooks@wmitchell.edu (who will forward the answers to me), 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 March 29, 1989, the oil tanker Exxon Valdez ran aground on Bligh Reef in Prince William Sound, Alaska, spilling approximately eleven million gallons of oil. Hundreds of lawsuits by governmental agencies and private parties followed. In one such suit, commercial fishermen sought compensatory and punitive damages against Exxon and the captain of the Exxon Valdez, Captain Joseph Hazlewood. In essence, the plaintiffs’ theory was that Exxon knew that Hazlewood was an alcoholic who had dropped out of a treatment program and resumed drinking; that in the past he had boarded and commanded its supertankers after drinking; that on March 28, Exxon allowed Hazlewood to board and command the Exxon Valdez during a voyage through the treacherous and icy waters of Prince William Sound; that prior to taking command of the Exxon Valdez, Hazlewood consumed at least five double cocktails (about fifteen ounces of 80 proof alcohol) n waterfront bars in Valdez; and that as a result of his impaired judgment, Hazlewood delegated control of the ship to a tired, unqualified deck hand, left the bridge and returned to his cabin minutes before it was necessary to execute a critical and difficult turning maneuver necessary to avoid running aground on Bligh Reef. Each of the questions below is worth five points.

(a) In support of their theory of liability, plaintiffs offered evidence concerning Hazlewood’s frequent drinking, drunkenness and leaving the bridge during the early 1980’s. Exxon disputes the accuracy of plaintiff’s evidence and is prepared to counter it. On what basis would the plaintiffs contend this evidence is relevant? On what basis would you expect Exxon to object?

(b) Also in support of their theory of liability, plaintiffs offered evidence that Hazlewood had twice been convicted of driving his personal automobile under the influence of alcohol. Exxon denied knowing about these convictions. On what basis would the plaintiffs contend this evidence is relevant? On what basis would you expect Exxon to object?

(c) Compensatory damages are intended to provide redress for actual losses suffered; punitive damages, on the other hand, are aimed at deterrence and retribution. Assume that the plaintiffs have been largely compensated for their actual losses as a result of prior proceedings and that the primary issue in this proceeding concerns punitive damages. In support of their claim for such damages, plaintiffs offered evidence concerning the amount of Exxon’s insurance coverage? On what basis would you expect the plaintiffs to contend that this evidence is relevant? On what basis would you expect Exxon to object?

2. D is charged in a criminal prosecution with assault on a police officer. D contends that the police officer assaulted him and that he merely used reasonable force to defend himself. In one or two sentences below, explain how and why the trial court should rule with respect to the proffers of evidence below. Each question is worth two points.

(a) As part of its case in chief, the prosecution calls a witness to testify that on numerous occasions she had seen D start fights with people.

(b) As part of its case in chief, the prosecution calls a witness to testify that the defendant has a reputation in the community for being quick to start fights.

(c) As part of the defendant’s case in chief, the defense calls the officer’s former supervisor who testifies that in his opinion the officer “has a hair trigger temper.”

(d) As part of the defendant’s case in chief, the defense calls a witness who testifies that a month earlier the officer assaulted the witness without provocation of any sort.

(e) As part of the defendant’s case in chief, D testifies that he did not assault the officer. On cross-examination of D, the prosecution asks whether it is true that D’s wife has had to seek refuge in a shelter for battered women on several occasions during the past year.

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 PRE 801(a)-(c). Also consider whether the evidence is excluded from the definition of hearsay by FRE 801(d)(2). Each question is worth two points.

1. P, a customer, sues D, a grocery store, in a slip and fall case in which P claims that D negligently failed to clean up a spill. In order to prove that there was a spill, testimony by another customer, C, that she told “A nice young man who I think works for D” that “There is a spill over there in aisle 2.”

2. In the same case, to prove that E was in fact D’s employee, testimony by C that E said, “I work for D.”

3. In the same case, to prove that E’s name was “Eric,” testimony by C that E had a name tag that said, “Hi. My name is Eric. How may I help?”

4. In the same case, to prove that D was negligent, testimony by C that E said, “I should have cleaned up that spill an hour ago.”

5. In the prosecution of D for bigamy, three authentic applications for marriage licenses signed by D containing the statement, “I hereby affirm that I am not presently married.”

6. In the same case, three authentic marriage licenses containing the statements, respectively, “This is to certify that D and X were duly married on [date],” “This is to certify that D and Y were duly married on [date],” and “This is to certify that D and Z were duly married on [date].”

7. In a child custody dispute, to prove that mother is an unfit parent, testimony by Child’s social worker that Child runs away and hides whenever Mother enters the room.

8. In the same case, testimony by a neighbor that he heard Mother scream at Child, “You’re a rotten little brat. I wish you were dead.”

9. In the prosecution of St. Cloud teenager Jason MacLennan for the first degree (premeditated) murder of his father, the prosecution contends that Jason hated his father and killed him in order to claim his estate. In support of its theory, the prosecution offers a neighbor’s testimony that he heard Jason tell his father that the father’s girlfriend “was a whore.”

10. Jason claims that he acted in self-defense. In support, the defense offers Jason’s testimony that “I just remembered all those times I heard my mom crying, all those times [my father] said he was gonna hurt me, and I just started shooting.”

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 offer to stipulate is an appropriate factor for a court to consider in determining whether evidence is relevant.

(b) An offer to stipulate is an appropriate factor for a court to consider in determining whether evidence is unduly prejudicial.

(c) An offer to stipulate is an appropriate factor for a court to consider in determining whether other evidence concerning the subject matter of the stipulation should be received.

(d) An offer to stipulate is an appropriate factor for a court to consider in determining whether evidence is a waste of time.

2. Which one of the following is true?

(a) Lack of personal knowledge affects weight but not admissibility.

(b) Whether a witness possesses personal knowledge is solely for the court to decide under FRE 104(a).

(c) A verdict can be attacked based on testimony by a juror concerning what a bailiff told the jurors while they were on a break during deliberations.

(d) A verdict can be attacked based on testimony by a juror concerning improper comments made by another juror during deliberations.

3. Which one of the following is false?

(a) Evidence of a change in design subsequent to an accident is admissible if the defendant denies the feasibility of such measures.

(b) Evidence of a change in an instruction manual subsequent to an accident is admissible if the defendant denies the product involved in the accident was defective.

(c) A policy reason for excluding evidence of subsequent remedial measures to prove fault is that otherwise people would be deterred from taking steps to improve safety.

(d) A policy reason for excluding evidence of subsequent remedial measures to prove fault is that such measures are equally consistent with injury through accident and culpable conduct.

4. Which one of the following is false?

(a) The party who contends conduct was intended to be assertive has the burden of persuasion on that issue.

(b) The statements of party opponents are more freely admissible than the statements of non-party witnesses.

(d) Similar policy considerations underlie the treatment of statements that re not hearsay under FRE 801(d) and those that are hearsay exclusions under FRE 803, 804 and 807.

5. This question tests whether you are qualified for a professional career. The correct answers follow and there is no reason to cheat. The questions are not difficult. You just need to be able to think like a professional.

(a) How do you put a giraffe in a refrigerator?

Correct:

Open the refrigerator, put the giraffe in and close the door. This question tests whether or not you do simple things in a complicated manner.

(b) How do you put an elephant in a refrigerator?

Incorrect answer:

Open the refrigerator, put the elephant in and close the door.

Correct answer:

Open the refrigerator, take out the giraffe, put the elephant in and close the door.

This question tests your foresight.

Correct answer:

The elephant does not attend. The elephant is in the refrigerator. This question tests if you are capable of comprehensive thinking.

(d) There is a river filled with crocodiles. How do you cross it?

Correct answer:

Simply swim across. There are no crocodiles in the river because they are all attending the animal conference. This question tests your reasoning ability.

Test Results:

If you answered four out of four correctly, you are qualified for a professional career. Wealth and success await you.

If you answered three out of four correctly, you have some catching up to do but there is hope.

If you answered two out of four correctly, consider a career in fast food.

If you answered one out of four correctly, consider selling your blood. If may be your only hope for paying the rent.

If you answered none correctly, law school was a wise choice.

Enter number of correct answers here_____. :(