Median: 57
Mean: 56.25
High: 99
Recall the sample answers.
After the jump, some common problems:
• Too many adverbs, especially "directly" ("directly relevant" or "speak directly") and "highly" ("highly probative"). That cannot be the total of your analysis. And repeating the adverb does not change that.
• Too many people writing the rule based on their notes or their summaries rather than the text of the actual rule. Again, when you do that, there is a real chance you will get it wrong or incomplete (because many of you do). There is no excuse for misstating the legal rule or statute when you have it in front of you--it's easy points.
• If multiple questions ask for the same rule, why not use the same rule/explanation for both? Many people stated and explained the rule different ways in different answers.
• Remember the language of 403 and where the burden lies. Don't shift that burden in your analysis. Many people discussed probative value and prejudicial effect, then said "the probative value outweighs the prejudicial effect." It doesn't need to.
• On Question # 1: Some confusion about what "helpful to the trier of fact" means in 701(b). It is not "helpful" in the sense of the relevancy of the information to deciding the case. It is whether the opinion (the witness testifying to conclusions or characterizations) is helpful. The question is whether "crazed look" (an opinion or characterization) is helpful for the jury understanding Hickey's testimony, not whether evidence of Burke's anger is relevant.
Also, Hickey said two things that qualify as opinion--that Burke was "pissed" and that he had a "crazed" look in his eyes. Both are permissible characterizations based on what he perceived and his experience and common sense. But you cannot use one opinion ("crazed look") as the perception for another opinion ("pissed").
Also, a lot of confusion between perception and logic/experience/common sense. Perception is not based on logic. Perception is based on what the witness sees/hears. She then uses logic/experience/common sense to draw inferences (angry, crazy) from those perceptions.
• On Question # 2: Understand the events of the case. Burke assaulted Loeb, then everyone tried to keep that assault a secret. The party bag had nothing to do with that secrecy. The party bag prompted Loeb to call Burke a pervert, which prompted the assault (the crime against the US). That is the end of the role of the party bag. No need to complicate it. Or to tie the bag into every element of the charge, such as Spota's knowledge. Evidence can prove one discrete element and leave it for other evidence to prove other elements.
• On Question # 3: The problem asked you to analyze relevancy and 404(b)(2). That should have been the hint to link them. Many of you got the right relevancy--it shows Hickey's fear of retaliation. But that relevancy also should have guided the 404(b)(2) purpose, because the purpose must connect with the relevancy you announced. Showing Spota's intent doesn't work (putting aside you have to show a connection between unrelated events for intent--one intentional act can't show intent for another). Same with motive-if the act shows Hickey's fear, it cannot show Spota's motive. That leaves you with two--Hickey's knowledge (which includes state of mind such as fear), as in the sample answer. Or opportunity/capacity--it shows Spota's capacity to exact revenge because of his position of power and thus why Hickey feared retaliation. But they connect.
Also, be careful how you explain other-acts purposes--you cannot make it sound like a version of propensity. If you try to argue opportunity as "the past act of abusing his power shows his ability to abuse his power now," that is propensity. The way you argue matters to whether you can get something in.
• On Question # 5: Too many people jumped to the analysis without stating and explaining the rules. So people threw around terms like extrinsic and non-collateral and categories of credibility (perception, recollection) without explaining what they mean.
• Referring you, again, to the writing instructions about how to write, how to structure, and how to cite and discuss rules. I do not care about bluebooking. I do care that you learn how to talk about courts and rules.
• Using "Mr." to describe people. Except in unique circumstances, it is distracting, awkward, and a waste of space. Especially as the prosecutor talking about the defendant or someone who conspired with the defendant.
• Objecting to Hickey's characterization of Burke's actions is not the same as saying anything about Burke's character.
• Still too conclusory on FRE 403 analysis. You must explain what the probative value is and why it is high, then what the unfair prejudice is and why it is high. It is not enough to repeat the rule and do nothing more.
• My door is always open. Please come see me with any questions or to review your paper.
