Exams will be available for pick-up at the end of class Monday.
Some general issues on the exams, in addition to I wrote on your papers. Please review this, the sample answer, and other comments; I am happy to meet to review and answer questions.
Please note what I mentioned in class: The recorded grade is two (2) points higher than what appears on your paper. I added two points to every paper when I realized it was not possible to cover some issues.
Because I know folks will ask:
Median: 41.75
Mean: 41.1
High: 56
• Perception (and all the other first 9 categories) is always non-collateral. It does not matter what is being perceived. So in Question # 2, perception is non-collateral and thus the report (as extrinsic evidence) is ok. It does not matter that the perception involves seeing the defendant throw the phone; all perception is NC. That is different than contradiction and prior inconsistent statement, where the subject of the PIS or contradiction matters.
• Be careful of your word choices. If you want to use fancy words, make sure you use them correctly and spell them correctly (especially when the different spelling gives the word a completely different meaning). Elicit and Illicit have very different meanings.
• Throwing an adverb or adjective into your answer, when not part of a legal standard, does not strengthen your argument. Since evidence must be "relevant," saying it is "directly relevant" does not help you any. Saying it multiple times starts to distract your reader.
• Question # 5: A 608(b) argument is unlikely here because it is doubtful this is a false act. You could argue it is untruthful--she is trying to hide something--but you have to make the argument that specifically. Also 608(b) evidence comes in to show a false act in the real world, from which we can draw a character inference. It is not dependent on anything the witness said on the stand. To the extent you want to argue that he testimony on CREX is different than her testimony on direct, that is contradiction, not 608(b).
• Question # 4: FRE 104(b) is about the chain of logical inference, not the legal standard. The legal standard in Murphy says the company need not have done anything with the alternative design. It doesn't say the company need not have known about the alternative design. So knowledge is not part of the legal standard. It is part of the logical standard--how can Hyundai be tagged with negligence if it had no knowledge about the alternative, even if negligence is established by the existence. Murphy does not answer that. It is an issue of the logical chain of inference.
• If the sum total of your 403 analysis is "The evidence is not excluded by Rule 403 because the probative value is not substantially outweighed by the danger of unfair prejudice," don't even bother with the sentence. If the sum total of your 403 analysis is "The evidence is excluded by Rule 403 because the probative value substantially outweighs the danger of unfair prejudice," really stop because you just made a sanctionable legal error.
• Question # 6: Many people were confused about the evidence offered here. The transcript shows that the testimony sought was about the defendant's awareness of whether her phone could be searched when she threw it in the water--that is the evidence objected to. It is being offered to show she was using the phone in a distracting manner. And the question asked you to explain how it was relevant to whether the defendant was distracted--what is the inferential chain from "knew the phone could be searched
to "using it in a distracted way.. That is not the same as asking about the relevancy of evidence the defendant was distracted. You must read the information and the question carefully.
• "Helpful" in FRE 701(b) is not the same thing as relevant. Saying the testimony is helpful because the jury could use it to reach a conclusion conflates the two. Opinion is helpful because the jury would not otherwise be able to understand the testimony or because it gets across the force of the testimony. Not the same as saying the jury can use the evidence to find a fact.
• Go easy on block quotations, especially if you find yourself using multiple ellipses, changing punctuation, or adding brackets. There is a good chance you are changing the rule's meaning. Learn to paraphrase or mix partial (accurate) quotations into it. It also will sound better as writing.
