Tuesday, November 27, 2018

Final Exam Information

The exam consists of sixteen (16) Short-Answer Questions, worth four (4) points each. The exam will be worth 64 points towards your final grade. You have three (3) hours. You may write up to 175 words on each question.
The exam can be taken either on computer using ExamSoft or in bluebooks.

A Note on the Hypotheticals:
The questions all derive from one criminal prosecution for a hate crime. The introductory paragraphs present the basic factual and procedural situation; those facts apply to every question. Subsequent questions add additional facts or procedural issues relevant to the issue being tested in that question. Some questions also may cross-reference the facts of a prior question (e.g., Question # 10 may ask an additional question as to a motion discussed in Question # 9).
Questions are in bold. All facts going to a question have already appeared before that question. Any new information appearing after a question is for the next question and any subsequent questions.

The case is in federal court and governed by the Federal Rules of Evidence and appropriate federal statutes. Names are tied in obvious ways to the role someone plays in the Hypo. Thus:
   Name begins with P: Plaintiff
   Name begins with D: Defendant
   Name begins with V: Victim
   Name begins with W: Witness who is not party but testifies at trial (may be multiple)
   Name begins with C: Character in the underlying real-world drama who will not be a witness

Read the facts carefully. Some of the information is provided in the form of a trial transcript, so you have to parse out what was said to find the key facts. All necessary facts are provided; if some fact is not provided, that means it is not necessary to the analysis. You may draw appropriate conclusions and inferences from the absence of a fact. Do not assume facts and do not fight the facts you are given.

Read the questions carefully. Answer only the question asked. The questions and issues to be drawn out of each question are straightforward. Do not look for tricks or hidden balls.

Approaching Short-Answer Questions
You may write up to 175 words on each question. That is an intentionally wide figure to give you maximum room to write, although you probably will not (and should not need to) write that much on many questions  Do not feel that you must write to the limit on every question; if you can give a complete answer in fewer words, do so. Save your words. Avoid throat clearing. (“The issue is” “As the Court, I would find . . .” “The defendant will argue . . .”). Jump right into your answer. Write as you would in making an oral objection or argument or decision at trial. If asked to be a party or the court, don’t begin with “the party is likely to argue” or “the court is likely to find.” You are the party or the court, so just answer. If asked to reach a conclusion, do so. Do not italicize or bold or underline words you want the reader to see; the reader can figure it out.

Answer each question in a separate paragraph, clearly identifying the question being answered at the start (write the question number in bold above the paragraph--e.g. Question 1). In a parenthetical at the end of each answer, you must state the number of words in that answer. For those taking the exam by computer, you can do this by highlighting the paragraph and doing “word count” for the highlighted portion. For those handwriting the exam, you need to count the words. Each answer that does not include a word count will lose one point.

Each answer should be concise, brief, and direct. A good answer will identify and briefly state the applicable rule (or relevant portion of the applicable rule) and apply it to the facts at hand to produce a conclusion with a short explanation. Do not simply recite legal conclusions (e.g., “The evidence is relevant because it makes a fact more probable than without.”) or conclusions in the case (e.g., “The evidence should be admitted.”). The questions lend themselves to short, quick answers, as if you were making, responding to, or ruling on an evidentiary objection at trial. State the rule, explain it, and apply it to the facts that you are given. Answer only the question asked. Note that questions will ask you to play a particular role--Proponent of evidence, Opponent of evidence, or Judge ruling on evidence. It is enough to cite to § ___ or FRE ___, although cite to the precise provision being discussed (e.g., FRE 804(a)(5)(A)).

You may bring to the exam your copy of the Federal Rules of Evidence, as well as printed copies of any statutes and rules that were assigned during the semester. No other materials may be brought to the exam or used.

Academic Policies and Regulations:
This examination is administered and conducted in accordance with all the provisions of the Florida International University College of Law Academic Policies and Regulations, reprinted in the College of Law Student Handbook.  Students are expected to be familiar with and to conduct themselves in accordance with those policies and regulations.

Good luck.

Monday, November 26, 2018

Questions and Answers I

My first question: how do we differentiate between a contradiction v. P/I/S?
In my notes, I have contradiction as something inconsistent within the same line of testimony. But if that's the case, what would be considered "extrinsic evidence" to prove it?

P/I/S is a prior statement by the target witness that is inconsistent with the target witness' trial testimony. Contradiction is any other evidence inconsistent with the target witness' testimony (e.g., evidence that Mrs. Easterfield terminated a pregnancy).

Extrinsic evidence would be proving the P/I/S or contradiction by anything other than having the target witness admit to the statement or contradicting evidence.

My second question: if we want to establish Routine Practice for a person rather than an org, what do we have to show exactly? Just establish that the act was done with invariable regularity? 


Third question: For a Declarant-Witness's Prior Statement under FRE 801, can we offer EITHER of the two statements as truth of the matter asserted (whichever statement is most favorable to me)? 

We only worry about T/M/A for the out-of-court statement. The trial testimony already can be offered for the truth of that testimony. The point is that 801(d)(1)(A) allows the out-of-court statement to also be offered for its truth

Fourth question: Please confirm: the difference between a recorded recollection under 803(5) and recollection refreshed is:

803(5) -  Only the recorded recollection is admitted. The purpose of this rule is that because the witness could not sufficiently recall, he cannot testify.

Recollection Refreshed: I can use any evidence to refresh the witness' recollection but that evidence is NOT read into evidence and only the witness' refreshed testimony is considered. 


Fifth question: Do we do a confrontation clause analysis for every hearsay exception/exemption? Even for records such as those under 803(6)?

No, only if the Confrontation Clause might be implicated, which requires a statement made to a government official that is testimonial in nature. A 803(6) business record is not made to a government official. And it probably is not testimonial, because we know that something only satisfies 803(6) if it is done for business purposes.

Saturday, November 24, 2018

Hearsay Hypo

A classmate writes:

B borrowed money from A . A is on trial for assaulting B 

The prosecution wants to show that because B borrowed money from A, A had motive to assault B because he was not paying her back. 

Prosecution seeks to bring in A’s friend to testify that a day before the assault A said (to her friend) “B owes me so much money and I know if he is not going to pay me back” 

The statement was made outside of the trial and defense object on hearsay grounds 

For the prosecution: the first theory I would try to bring evidence in would be to show A's state of mind. A’s state of mind  is relevant to show motive. It is not being offered for the TMA because the jury does not need to believe that B actually owed A money but that A believed B owed her money 

But can it also be admitted under FRE 801(d)(2)(A) a statement made by the opposing party? Because the statement was made by A who is the opposing party in the trial? 

Could it also be admissible under FRE 803(3) to show A’s state of mind? 

If we are arguing for the prosecution and there are different theories that a statement can come in under, is it best to start with the theory that asserts that the statement is NOT hearsay, and then move on to theories based on the exceptions to the hearsay rule? 

First, as a general matter, you should try to argue that something is not hearsay or within an exclusion, then move on to exceptions in 803 and 804, before 807 as your last resort. As a matter of rhetorical force, it is better to argue that something is not barred by the rules at all, before arguing for an exception--"it is not hearsay (and so admissible)," then move to "ok, it is hearsay, but let it in anyway." For the same reason you should argue that something isn't relevant before arguing it is relevant but should be excluded by 403.
Second, as to your analysis of this problem: You got it right on the first two points--it is not T/M/A but to show A's belief or it comes in under 801(d)(2)(A) (A, a party made the statement and it is offered by the prosecution). The third point--803(3)--does not work. A is not asserting what she is thinking or feeling. And to the extent she is expressing her belief in a fact, that falls within the exception to the exception in 803(3).

Tuesday, November 20, 2018

"These are my confessions" - Usher.

On Sunday night, rapper and internet sensation Tekashi6ix9ine  was arrested and later indicted on  racketeering and firearm charges.

Memes like this (edited for purposes of decorum) have started cropping up while I was distracted on instagram reviewing evidence. Memes aside, the idea of a celebrity-rapper's lyrics somehow being used against him in a federal prosecution poses an interesting scenario.

Edit: It appears that the Supreme Court has discussed this very topic in Elonis v. U.S. (2015).

Thursday, November 15, 2018

Final Class

Audio of final class.

The Q&A session will begin at 10:30 a.m. on Tuesday, November 27 in RDB 2008. We will stay for as much or little time as people have questions.

I am happy to answer questions whenever I am in my office, via email, or via questions posted to the blog. I will answer any emailed questions on the blog (with the name of the questioner removed).

The exam is on Wednesday, November 28. There will be around 15 questions (maybe one more or less), worth four points each. You can bring your rules and any other statutes, rules, and cases that you downloaded from the blog for use in class. No other materials may be brought into the exam room.

Tuesday, November 13, 2018

For Thursday

Tuesday audio.

We continue (and hopefully finish) Confrontation and LCS Chapter VIII. If we get through everything in our regular session, we will not need the make-up session. Stay tuned.

Thursday, November 8, 2018

For Tuesday

Thursday audio.

We pick up with # 234 and arguments for and against its admissibility under 804.

We then turn to Residual Exception and Layered Hearsay and the assigned problems. Also, for those of you who argued the evidentiary issue in moot court, make the argument that Mrs. Baratheon's statement can come in under 807.

We then turn to Confrontation Clause, which represents a Sixth Amendment overlay on hearsay. Read all of LCS, Chapter VIII.