Prelim Exam Results and Comments

Median: 57

Mean: 56.25

High: 99

Recall the sample answers.

After the jump, some common problems:

For Tuesday

Tuesday audio. No class Monday. Judicial Lecture at 12:30 next Tuesday (Nov. 12); class participation awarded for attending.

Move to Spontaneous Statements; prep all of it. What are the elements of each of 803(1)-(4) and what gives the statements in these exceptions sufficient guarantees of trustworthiness? What is the difference between a statement offered not for the truth to show state of mind and a statement of state of mind under 803(3)? Consider:

    • Read the Advisory Committee Notes on FRE 803(3) and the discussion of Hillmon. What inferences can be drawn from the following:

            W --- Dec ("Tomorrow, I'm taking my kids to the zoo along with Jim and his kids").

What pieces of this come in under FRE 803(3)? What about the following:

          W --- Dec ("Tomorrow, Jim is taking his kids to the zoo.")

    • Why does 803(3) not allow statements of memory or belief?

For Next Class

Monday audio--Original Recipe, Extra Crispy.

Prep Exclusions (FRE 801(d)). What is the difference between an exclusion and an exception? What are the possible ways to handle out-of-court statements where the declarant testifies? How does 801(d) draw that line?

Move to Spontaneous Statements, covering FRE 803(1)-(4); read the rules and Committee notes and the C&S reading but leave the problems for next week. What are the elements of each of 803(1)-(4) and what gives the statements in these exceptions sufficient guarantees of trustworthiness? What is the difference between a statement offered not for the truth to show state of mind and a statement of state of mind under 803(3)?

 

For Monday (Double Session)

Tuesday audio. My apologies for not noticing your outfit choices today.

We will spend all of class working through Introduction to Hearsay; prep the full section.

    • What do each of the elements of the hearsay definition mean?

    • What is the difference between a speaker's assertion and a listener's inference? How does that affect whether something falls within the definition of hearsay?

    • What does it mean to be "offered in evidence to prove the truth of the matter asserted?" Given the preference for adversary testing as the reason for limiting hearsay, why does drawing the line by whether the statement is offered TMA make sense?

    • Consider: Joe wants to establish that he was in his room, talking on the phone with Chris, at 10 p.m. Two versions; consider whether either or both is offered TMA:

            • Chris testifies that Joe said "I'm sitting in my room in the boardinghouse."

            • Chris testifies that Joe said "I'm sitting here in the dark; the power went out." There was a blackout affecting the street on which the boardinghouse sits.

    • When is a statement not offered TMA, as indicated in the reading? Consider whether the following are TMA: A couple is injured in a car accident; both die. For purposes of probate, the court must determine who died first.

            • To show that wife was alive right after the crash, a witness testifies that he heard the wife say "I'm alive." 

            • To show that wife was alive right after the crash, a witness testifies that he heard the wife say "My husband is dead."

            • To show that husband died first, a witness testifies that he heard the wife say "My husband is dead."

Prelim Exam Sample Answers

After the jump. Note that this is one approach. I grade on analysis not conclusions. So, for example, there may be other permissible 404(b)(2) uses in Question # 3.

For Tuesday

Monday audio.

We continue with Rulings on Evidence. Prep the remaining problems and be ready to work through them, piecing together all the pieces of FRE 103. What is the point of motions in limine?

We should move to the beginning of Hearsay. For tomorrow, prep all the assigned Provisions and the Introductory Note and C&S pp. 25-29 and §§ 5.01-5.03.

    • What is adversary testing of evidence (review notes on witnesses) and what is the problem with hearsay in terms of that?

    • What are the four approaches to hearsay the Committee describes and what are the benefits and drawbacks to each? What approach did the Committee adopt?

    • Note the basic overall structure of the hearsay rules and how the 800 rules fit together.

    • What is hearsay? What is a statement?

For Tuesday

Tuesday audio.

Complete and review all of Rulings on Evidence, including the extra statutes. Why make motions in limine (at the outset of litigation)? What are the standards of review and how do they affect the question of whether the district court erred? What is the role of plain error under FRE 103(e)?

I hope to get through this Monday and Tuesday. It is possible we will get to the very beginning of Hearsay late on Tuesday.

For Tuesday

Monday audio.

We continue with Presumptions. Prep Question # 106; for each possibility, think about the role of FRCP 50, who would move and the arguments from each side, and draft the appropriate jury instructions. Imagine the likely element(s) of this claim to recover life-insurance proceeds. In addition, consider the following further events:

    1) Mrs. Young fails to offer evidence of diligent-but-unsuccessful efforts.

    2) Mrs. Young offers evidence that Jerry has been gone for 6 years, she has not received tidings, and she has made diligent efforts.

    3) During trial, the insurance company calls a surprise witness, who takes the stand and identifies himself as Jerry Young.

Prep the remainder of this section, including unenacted FRE 303 on criminal presumptions.

FIU Law Votes, Tuesday October 22