Final Exam

Evidence Sec. 4 - Fall 1998

 

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 set forth below. Assume that the Federal Rules of Evidence (FRE) apply throughout the exam. Cite specific provisions of the FRE whenever appropriate. There is a total of 110 points on the exam. The exam will be graded on a 100-point scale.

 

Part I - Fact Pattern Analysis

(50 points - 80 minutes)

1. P, a female, sues D, a bank, alleging that D failed to promote her to a branch manager position because of her gender. D’s vice president of human resources has ultimate responsibility for employment-related decisions. In support of her claim, P calls W, a fellow employee, to testify. W testifies that he heard the then-current branch manager say that D’s vice president of human resources told him, "In order to be promoted around here you have to be flat-chested and wear pants." (The quoted statement is derived from Cedek v. Hamiltonian Federal Savings & Loan, 551 F.2d 1136 (8th Cir. 1987).)

  1. What is an "evidential hypothesis"? On behalf of P, construct an evidential hypothesis in support of admitting W’s testimony. (5 points)

  2. D objects that W’s testimony is hearsay. On behalf of P, construct an argument in support of admissibility. (5 points)

  3. Assume that on cross-examination W admits that the quoted statement was made three years earlier at a Christmas party; that the then-current branch manager was intoxicated at the time; and that he indicated that the vice president of human resources was "just kidding" when he made the statement. To what extent, if at all, do these additional facts affect your answers in (a) and (b) above? (5 points)

  4. In further support of her claim, P offers evidence that D had twice before been successfully sued by women alleging that the vice president of human resources had discriminated against them on the basis of gender. On behalf of D, construct an argument in opposition to the proffered testimony. On behalf of P, construct an argument in support of the proffered testimony. (5 points)

  5. Would your analysis in (d) above be the same or different if the lawsuits had been settled before trial? (5 points)

 

2. D is charged with assaulting V in a bar. D does not deny that an altercation occurred but claims that he acted in self-defense. The prosecution’s case hinges on the credibility of V.

  1. Before V testifies, the prosecution seeks to prove V’s reputation for truthfulness through the testimony of her priest. Should the priest be permitted to testify for this purpose? (5 points)

  2. As expected, V testifies that D initiated the altercation in question. On cross-examination, D’s counsel asks V whether she intended to initiate a civil suit against D for injuries allegedly incurred in the altercation. V responds in the negative. Would D’s counsel be permitted to rebut V’s testimony by introducing evidence that V had retained counsel for just that purpose? (5 points)

  3. After the prosecution rests, the defense calls CW. If permitted, CW will testify that V’s reputation in the community for truthfulness is a joke. Should CW be permitted to testify for this purpose? (5 points)

  4. Assume that the judge permits the testimony in (c) above. On cross-examination, should the prosecutor be permitted to ask whether CW is aware of the fact that V teaches Sunday School classes and has received an award from her church because of her outstanding moral character? (5 points)

  5. D testifies in his own defense and claims that V initiated the altercation. On cross-examination, should the prosecution be permitted to ask D whether he pled guilty a year ago to a misdemeanor offense of filing a false police report in connection with a similar barroom altercation? (5 points)

 

Part II - The Underlying Theory

(20 points - 30 minutes)

1. FRE 802 provides in relevant part that "[h]earsay is not admissible except as provided by these rules . . . ." Set forth below are four categories of out-of-court statements. Briefly explain what these categories are and the policy justification for excluding them from the reach of FRE 802. (10 points)

(a) Non-hearsay uses.

(b) Non-assertive conduct.

(c) Certain prior statements of testifying witnesses.

(d) Hearsay exceptions.

 

2. In Lightly (casebook p. 528), the Fourth Circuit Court of Appeals stated that "Every witness is presumed competent to testify . . . ." Similarly, in Ricketts (casebook p. 532), the Delaware Supreme Court stated that "the six year old rape victim is presumed competent to testify . . . ." Using the terms "burden of production" and "burden of persuasion," explain whether the "presumption of competency" referred to by these two courts is the same as or different from a "presumption" within the meaning of FRE 301. (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. In order to show that D is innocent of the crime charged, D offers testimony that another individual, X, fled the jurisdiction immediately after the crime was committed and thereby effectively admitted his guilt.

2. In order to rebut a contention that W testified favorably for the prosecution in return for leniency in an unrelated case, the prosecution offers a sworn statement made by W shortly after W entered into a plea agreement providing that the prosecution would recommend the minimum sentence.

3. In the prosecution of D for arson, the prosecution offers the report of a fire marshal containing the results of the investigation concerning the origins of the fire and concluding that the fire was incendiary in origin.

4. In a negligence action against a general contractor arising out of a construction accident, P testifies that a subcontractor said that the general contractor failed to take adequate safety precautions on the project.

5. In a negligence action arising out of a slip-and-fall accident, an ambulance driver who was dispatched to the scene testifies that P said, "I just slipped on a banana peel here at Cub Foods."

6. P sues D for breach of contract. P claims that he conveyed a residence to D in exchange for a promise by D that P could live rent-free in the residence. In support of his claim, P offers an "Interview Report Form" made by X, a welfare department caseworker, following an interview with D, a welfare recipient, concerning D’s eligibility for welfare benefits. The "Interview Report Form" indicates that D told the caseworker, "I agreed to allow P to live rent-free in the residence." X does not testify.

7. In a negligence action arising out of an automobile accident in which P claims that D failed to take evasive action to avoid the accident, W, a passenger in D’s car, testifies that immediately before the accident D said, "I can’t turn the steering wheel."

8. In the prosecution of D for allegedly making a terroristic threat, the prosecution offers testimony by W that she heard D say, "I’ve planted a bomb at the Mall of America."

9. In order to rebut D’s contention that W’s testimony concerning an event at issue in the case was the product of failed recollection, P offers a statement made by W shortly after the event.

10. In a negligence action arising out of an automobile accident, B, a bystander, testifies that immediately after the accident P accused D of crossing the center line and that D hung his head and said nothing in response.

 

Part IV - Multiple Choice

(10 points - 15 minutes)

Circle the one correct answer for each question below on this exam sheet. Each question is worth two points.

1. Which one of the following is true?

(a) Evidence of a person’s character is never admissible in a civil case.

(b) A pertinent trait of an accused’s character offered by the accused can be proved by reputation or opinion evidence.

(c) A pertinent trait of an accused’s character offered in rebuttal by the prosecution can be proved by specific instances of conduct.

(d) Specific instances of conduct may be offered to prove that an accused acted in conformity with character on a particular occasion.

2. Which one of the following is false?

(a) An admission may bind a party even if the person who made the admission lacked personal knowledge of the matter admitted.

(b) A principal can be bound by the admission of an agent even if the agent was not specifically authorized to make the admission.

(c) An admission is binding as of the time made and cannot thereafter be retracted or explained away.

(d) An admission is not hearsay under the FRE even if it was made by an out-of-court declarant and is offered to prove the truth of the matter asserted.

 

3. Which one of the following is false?

(a) Bias is not considered to be "collateral" for purposes of the collateral evidence rule.

(b) Non-conviction misconduct bearing on a witness’ character for truthfulness can be proven by extrinsic evidence.

(c) Evidence of non-conviction misconduct bearing on a witness’ character for truthfulness is subject to the balancing test of FRE 403.

    1. Evidence that a person habitually acted in a certain way is generally admissible to prove that the person acted in a particular way on a particular occasion.

4. Assume P sues D for property damage arising out of an automobile accident. W testifies on behalf of P that D ran a red light. In which one of the following situations would extrinsic evidence to contradict W’s testimony be inadmissible?

(a) W testifies that he had never met P before the accident. D has evidence that in fact W and P are business partners.

(b) W testifies that he was on his way home from a prayer meeting when he observed the accident. D has evidence that in fact W had been drinking at a local watering hole for several hours prior to the accident.

(c) W testifies that he was on his way home from a prayer meeting when he observed the accident. D has evidence that in fact W, who is married, was returning from an adulterous liaison.

(d) W denies on cross-examination that he has ever said that P ran a red light. D has evidence that in fact W told a friend that P ran a red light.

5. Which one of the following symbols should students not use in connection with a law school exam?

(a) ¶

(b) §

(c) Ó

(d) L

 

Part V - Extra Credit

(10 points - 15 minutes)

D is accused of unlawfully carrying a handgun on board a commercial airliner. It is undisputed that a handgun was found in a carry-on bag on the airliner. D denies both that he carried the handgun on the airliner and that the carry-on bag belonged to him. Identify the evidentiary issues raised by the testimony that follows and briefly explain how those issues should be resolved.

(a) As proof that D did not carry the handgun on board the airliner, W testifies that she observed a security guard run a hand-held metal detector around D’s body and say, "You passed. Go on through." (5 points)

(b) As proof that the carry-on bag belonged to D, the police officer who arrested D testifies that the name tag on the bag said, "This bag belongs to D." (5 points)