EXAM#____________

Final Examination
Evidence, Section LS1
Professor Jackson
Fall 2016

1. You have three (3) hours to complete this exam.

2. This exam is closed book. Any statutory provisions and definitions are set forth in the
applicable question as required. You are to base your answers on the common law unless
you are specifically told to apply a statute that is provided.

3. This exam has three parts, each weighed equally (100 points each part): (I) multiple-
choice; (II) short answer; and (III) an essay. If you are writing by hand, then you must
use a ParSCORE TEST FORM for the multiple choice questions. If you are typing, then
you must complete the multiple choice questions in the multiple choice section of
ExamSoft.

Part I: Part I consists of twenty-five (25) multiple-choice questions. Please mark

your responses to the multiple choice questions in the multiple choice section of
ExamSoft. If you are writing by hand, please mark your answer on the separate
“ParSCORE TEST FORM” using pen or pencil and following the instructions on
that form. If you change your answer, place a clear X through the wrong answer
and mark the correct answer. A machine will score the exam and any ambiguities
will be counted as a wrong answer. If your exam number has only 4 digits, please
add a leading zero.

Part II: Part II consists of ten (10) short answer questions to be answered in blue
books or typed. Label each answer in Part II by identifying the question number
(#1 through 10). If you answer Part II in a blue book, then write on every other
line. You are to base your answers on the Federal Rules of Evidence, unless you
are instructed to apply the California Evidence Code or contrast how each would
apply.

Part III: Part III consists of one (1) essay (write “ESSAY” on the top of each
page). Part III If you are writing by hand, please write your response in the blue
books provided. Please write clearly. Write on every other line and every other
page to permit instructor comments. If you are typing your exam using
ExamSoft, basic formatting will be applied to your exam when it is printed. Deal
with all issues raised, even though you believe disposition of one is controlling.

Appendix A: The Table of Contents to the Federal Rules of Evidence (FRE).

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4. Write your exam number on your exam. Put your student exam number at the top of this
page, each page of questions, each blue book, and the “ParSCORE TEST FORM”. Do
not use your name, student ID number or Social Security Number on any exam materials.

5. At the conclusion of the exam return all test materials, including blue books, ParScore
test form, scratch paper, and this exam, to the proctor. Students who do not return all
exam materials at the end of the exam may not be graded.

6. ExamSoft students must upload their exam within 24 hours, but you are encouraged to do
so before leaving the exam room. Exams not uploaded with 24 hours may not be graded.

GOOD LUCK!

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Part I: Multiple Choice Questions (100 points - 4 points each)

Recommended Time: 1 hour

Questions 1 – 3 based upon the following facts.

Local branches of the Bank of America installed new German-made vaults with a new
technology electronic combination system. However, on October 1, a robber was able to break
into the new vault at the West Portal branch of the bank in the middle of the night, stealing
$100,000 in cash. The bank and police investigators believe that the robber used special
technology to break into the vault. On the evening of November 1, James was caught breaking
into a similar vault in the middle of the night at the Columbus Avenue branch of the Bank of
America. James was caught by police after the vault was open with a special electronic device
that he later admitted enabled him to open the vault. He pled guilty to the attempted bank
robbery charge related to the Columbus Avenue branch incident on November 1. However, he
insists that he is not guilty of the October 1 robbery. Criminal charges are brought against James
for the October 1 robbery, and at trial, the prosecution seeks to offer evidence of the November 1
robbery and conviction. James decides not to testify in his defense at trial.

1. Should the trial judge admit the evidence?

a. Yes, because the crimes are so similar, the jury should be allowed to hear
evidence that James is likely to have committed the same crime.
b. Yes, evidence of the later robbery shows that James had the necessary knowledge
to carry out the earlier robbery.
c. No, this evidence of a specific act can only be used to impeach James if he takes
the witness stand.
d. No, since there is no eyewitness to the October 1 incident.

2. James is found guilty and sentenced to 10 years in prison for the October 1 incident and
was released five years ago. After his released, he is hired as a bouncer at a local bar. One
night at the bar, James has to break up a fight, and things get out of hand. As a result,
James is charged with assault and battery because James punched one of the patrons who
was in the brawl. This takes place one year after James was released from prison. At his
criminal trial for assault and battery, James claims self-defense and takes the stand on his
own behalf, stating that he has a nonviolent nature, even though he is employed as a
bouncer. His attorney asks him if he had seen the particular patron before. James
answered, “Yes, many times.” His attorney then asks, “Do you have an opinion about this
patron’s character for violence?” The prosecution objects. Should the judge allow James
to answer this question?
a. Yes, James can talk about every incident he has seen this patron push people
around.
b. Yes, James can provide his opinion of the patron’s violent character.
c. No, character evidence is inadmissible because the patron is not on trial.
d. No, not if the patron does not take the witness stand.

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3. The prosecution seeks to introduce evidence of James’s bank robbery conviction six
years earlier. Should the judge allow it?
a. Yes, if the court determines that the probative value outweighs its prejudicial
effect.
b. Yes, only if the bank robbery involves dishonesty or false statement.
c. No, evidence of an unrelated crime would never be allowed because of the
propensity rule.
d. No, once the sentence has been served, a prior conviction cannot be admitted
against a defendant.

Questions 4 is based on the following facts.

A pedestrian sued for injuries suffered when a car struck him while he was in a crosswalk. The
driver of the car alleged that the pedestrian's injuries were attributable to the pedestrian's own
negligence in crossing the street against the traffic light, which was green. The pedestrian sought
to testify that, as a pedestrian, he did not have liability insurance and therefore had a motive to be
careful.

4. Should the pedestrian's testimony be permitted over the driver's objection?

a. Yes, because the pedestrian's lack of liability insurance is both material and
probative to the determination of his negligence.
b. Yes, because a party may introduce evidence of his own insurance or lack thereof,
although the opposing party may not introduce such evidence.
c. No, because the testimony is self-serving.
d. No, because evidence that a person was not insured against liability is not
admissible on the issue of whether the person acted negligently.

Questions 5 is based on the following facts.

An artist entered into a written agreement to sell a patron a partially finished painting once it was
complete. The patron later learned that the artist planned to sell the painting to a third party who
offered to pay the artist more than the contract price. The patron filed suit to compel the artist to
sell the painting to her in accord with the terms of their agreement, while the artist denied that
the painting the artist planned to sell to the third party was the subject of the agreement with the
patron. At trial, the patron did not introduce the written agreement or explain its absence. Rather,
the patron sought to testify that, when she signed the agreement, the artist had pointed to the
painting in question and stated that it was the patron's painting. The artist's attorney objected to
the testimony that the artist identified the painting as belong to the patron.

5. How should the court rule?

a. Sustain the objection, because the artist's statement was hearsay.
b. Sustain the objection, because the patron failed to produce the written agreement
or explain its absence.
c. Overrule the objection, because the statement is not hearsay.
d. Overrule the objection, because the statement was relevant.

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Question 6 is based upon the following facts.

Paul, a Little League baseball coach, is accused of sexually molesting a 10-year-old player in
Paul’s car after practice. The prosecutor intends to prove that Paul coaxed the child to his car by
telling him he was going to explain how to use a protective cup in the groin area. Paul molested
the boy during the demonstration of the cup.

During her case-in-chief, the prosecutor wishes to admit evidence that two weeks after the
alleged crime, Paul lured the same child to his car by telling the child that he, Paul, needed to
check if the child was using the protective cup properly. This resulted in another instance of
sexual molestation. Paul was never charged with this second offense. The defense objects to this
testimony.

6. Is the evidence admissible?

a. Yes. The prosecutor can introduce evidence of other child molestations by the
defendant.
b. Yes. This is proper impeachment evidence.
c. No. The evidence violates the character propensity rule.
d. No. The evidence is unfairly prejudicial.

Question 7 is based upon the following facts.

At a defendant's burglary trial, the defendant testified that the crime was committed not by him,
but by an acquaintance whose whereabouts are unknown. The defense seeks to introduce
properly authenticated evidence of the acquaintance's final judgment of conviction by a jury for
another burglary, in order to prove that the acquaintance was the type of person who could have
committed the burglary for which the defendant is on trial. The prosecution has objected to the
introduction of this evidence.

7. Should the court admit the evidence?

a. No, because the evidence is inadmissible as character evidence.
b. No, because the acquaintance is not available to testify.
c. Yes, because there is a hearsay exception for a final judgment of conviction.
d. Yes, because the defendant may present character evidence.

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Question 8 is based upon the following facts.

A man witnessed a hit-and-run accident in which a truck struck and killed a child. Immediately
after the accident, the witness gave police a signed, handwritten statement with a description of
the truck, including the make and model, as well as a description of the driver of the truck. After
several months, the authorities identified and charged a man who fit the witness's description,
although the pickup truck was never located. In the interim, however, the witness had suffered a
brain injury and no longer remembered any of the events from the date of the accident. At trial,
the prosecutor called the witness to testify. The prosecutor first showed the witness a photo of a
vehicle of the same make and model as the truck in an attempt to refresh the witness's memory.
The defense objected but was overruled by the judge. When this failed to refresh the witness's
memory, the prosecutor showed the witness his earlier handwritten and signed statement. Again,
the defense objected and was overruled. The witness testified that he had no memory of the
events described in the statement, but that he recognized his handwriting on the statement and
that the statement accurately reflected what he witnessed at the time. The prosecutor then moved
to introduce the photo and statement into evidence as exhibits, and the defense again objected.

8. How should the judge rule?

a. The judge should admit both the photo and the statement into evidence as
exhibits.
b. The judge should admit the photo, but not the statement, into evidence as an
exhibit.
c. The judge should admit the statement, but not the photo, into evidence as an
exhibit.
d. The judge should not admit the photo or the statement into evidence as exhibits.

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Questions 9 and 10 are based on the following facts.

Election night at the Local Bar turned ugly. In its aftermath, Johnny sued Billy for injuries he
claimed Billy inflicted. At the resulting civil trial, Johnny called Joyce, who testified she saw
Billy strike Johnny with a ping pong paddle. During the defense case, Billy called a longtime
acquaintance of Joyce, who testified as follows:

9. “When Joyce sold me her old car, she told me she had just replaced the brake pads, but
she was lying. My opinion, based on my dealings with Joyce, is that she’s a liar.”

If Johnny objects to this testimony, how should the court rule?

a. Exclude the first sentence and admit the second sentence.
b. Admit the first sentence and exclude the second sentence.
c. Exclude both sentences.
d. Admit both sentences.

10. Assume the court permits the acquaintance of Joyce to testify as described in question 9,
on cross-examination of the acquaintance, Johnny asked: (1) “Isn’t it true that you were
expelled from college for a semester for trashing your dorm room in a drunken rage?” (2)
“Didn’t you lie on your optometry school application about whether you had any
disciplinary offenses during college?”

On Billy’s objection to both questions, how should the court rule?

a. Disallow both questions.
b. Allow the first question and disallow the second question.
c. Disallow the first question and allow the second question.
d. Allow both questions.

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Question 11 is based upon the following facts.

A plaintiff sued a defendant for injuries he suffered while shaving with a razor manufactured by
the defendant. The plaintiff alleged that the razor was defectively designed. The plaintiff's expert
witness testified that the manufacturer should have used certain safeguards in the razor's design
that would have made the razor safer. In his testimony, the defendant did not deny that the
safeguards urged by the plaintiff's expert were feasible, but he argued that they were unnecessary
and that the razor was not defectively designed. The plaintiff seeks to cross-examine the
defendant about a safety modification the defendant has made to the razor since the plaintiff's
injury.

11. For which of the following substantive purposes may evidence of this modification be
used?
a. Both to prove that the razor was defectively designed and to prove that the
safeguards described by the expert were feasible.
b. Only to prove that the razor was defectively designed.
c. Only to prove that the safeguards described by the expert were feasible.
d. Neither to prove that the razor was defectively designed nor to prove that the
safeguards described by the expert were feasible.

Question 12 is based upon the following facts.

A plaintiff sued a defendant and his employer for personal injuries. The plaintiff claimed that she
was struck on the head by a wrench dropped by the defendant from a high scaffold, on which the
defendant was working in the course of a construction project. To prove that it was the defendant
who dropped the wrench, the plaintiff offers the wrench itself as evidence: The wrench bears the
brand name “Craftsman” on the handle, and other evidence shows that the wrenches used by the
defendant on the job are “Craftsman” brand wrenches.

12. Is the wrench admissible?

a. No, because but for the word “Craftsman” the wrench would be irrelevant and the
word “Craftsman” is inadmissible hearsay.
b. No, because the wrench is irrelevant as it fails to show that it is more likely than
not that the defendant was the person who dropped it.
c. Yes because the wrench is relevant direct evidence that it was the defendant who
dropped the wrench and is not hearsay.
d. Yes because the wrench is relevant circumstantial evidence that it was the
defendant who dropped the wrench and is not hearsay.

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Question 13 is based on the following facts.

The government prosecuted Emmy Bezler for stealing money from her employer. Several of
Bezler’s neighbors testified for the prosecution, saying that they had heard Bezler say that she
was having great difficulty paying off her student loans and could “really use” a little more
money. The defense makes a hearsay objection.

13. As the prosecutor, what is your best response?

a. Relevance, the statement has no tendency to connect to anything that matters.
b. Hearsay, because it is offered for the truth of the matter asserted.
c. Not hearsay, because it is a statement by party opponent.
d. 403, the statement will unfairly prejudice the defendant.

Question 14 is based on the following facts.

Christina Weston-Smith sued the Cooley Dickinson Hospital, claiming that the hospital violated
federal law by firing her because she had taken a maternity leave.

During trial, Weston-Smith attempted to introduce evidence of a lunch she had with her
supervisor Donna Bowles. At the lunch, Weston-Smith asked Bowles whether she had been laid
off because of the maternity leave. According to Weston-Smith, Bowles “clearly looked
extremely uncomfortable and didn’t answer. She sat there and turned color, you know, turned
bright red and didn’t answer the question, you know, he she evaded the issue, tried to talk about
something different. I tried to bring her back to the question, but her body language told me she
knew what I was talking about. But she did not answer the question in words.”

14. Which of the following would be the best objection by the hospital?
a. Relevance.
b. Lack of authentication.
c. Offers to compromise and statements.
d. Hearsay.

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Question 15 is based on the following facts.

A defendant visited her doctor to seek treatment for a bullet wound. While he was treating the
wound, the doctor asked the defendant how she was shot. The defendant replied that she was
struck by a police officer’s bullet while running away from a jewelry store she had robbed, but
she implored the doctor not to tell this to anyone. The doctor promised that he would not.
Although the defendant was never charged by the police, the owner of the jewelry store brought
suit against her seeking the value of the stolen goods. The defendant denied robbing the store. At
the trial, the owner calls the doctor to testify to the statement made to him by the defendant. The
defense attorney objects on the ground that such testimony is barred by the jurisdiction’s
physician-patient privilege.

15. Should the objection be sustained?

a. Yes, because the doctor acquired this information while attending to the defendant
in the course of treatment.
b. Yes, because the doctor agreed to the defendant’s specific request that this
information be kept confidential.
c. No, because the physician-patient privilege is inapplicable to the defendant’s
statement.
d. No, because the doctor is the one who is entitled to either claim this privilege or
waive it.

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Questions 16-17 are based on the following facts.

Claude, who owns a construction company called Garcia Construction, sued the federal
government for bid-rigging during the bidding process related to a new construction project in
the Presidio. Claude alleges that the government did not properly consider all bids based upon
the quality and costs of the construction work to be performed.

In discovery, Claude provides evidence of the government’s bid process and contract awards in
other projects on federal lands in the last 10 years. Reviewing Claude’s materials, the
government learns that Claude intends to present information about construction projects of all
different sizes, at all different locations and with vastly different bid processes and criteria than
at issue in this case. Claude also provides a report offering relevant information about federal
government projects, the bid process and the criteria for selection from Sara Elpointe. Elpointe
does not have a college degree and has never testified as an expert, but has 18 years of
experience in the federal government overseeing construction projects and related bidding
processes. Elpointe will not offer any opinion at trial.

16. With respect to the other bid process evidence, the government filed a motion in limine
objecting on relevance grounds and that the potential for the jury’s confusion
substantially outweighs the probative value of Claude’s materials under Rule 403. The
trial court should:
a. Overrule the objections and admit the evidence because jury confusion is not a
concern for the court.
b. Sustain the relevance and/or Rule 403 objections and exclude the evidence.
c. Sustain the relevance objection and admit the evidence.
d. Overrule the objections and exclude the evidence.

17. With respect to Mr. Elpointe’s testimony, the government objected on the grounds that
Elpointe is not qualified and, because he offers no opinions on the case, his testimony is
not helpful. The trial court should:
a. Admit Elpointe’s testimony because he may be qualified as an expert based on his
experience alone and his testimony, even without an opinion, is helpful.
b. Admit Elpointe’s testimony, so long as he does not discuss his lack of education
or experience as a testifying expert.
c. Exclude Elpointe’s testimony because he cannot be qualified as an expert witness.
d. Exclude Elpointe’s testimony because his testimony cannot be helpful without
opinions that bear on the ultimate issue in the case.

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Questions 18 and 19 are based on the following facts.

The government charged Clara Anderson and Ben Williams with stealing artworks from a
museum. No one saw the robbers, but other evidence implicated these two defendants. The
government tried Anderson and Williams jointly; neither took the stand at trial. A police officer,
however, testified that Williams admitted during a stationhouse interrogation: “Yeah, we robbed
the museum. I didn’t think you’d catch us—I dressed as a vampire so no one would know it was
me.” The defense objected to this statement as hearsay.

18. What is the most likely ruling by the court?

a. The statement may be used against both parties.
b. The statement may be used against Anderson.
c. The statement may be used against Williams.
d. The statement cannot be used, it is unfairly prejudicial.

19. The government also introduced evidence that detectives found a vampire costume in
Anderson’s car. What is the effect on the defendants’ Sixth Amendment rights?
a. Violates both defendants’ Sixth Amendment rights.
b. Violates Anderson’s Sixth Amendment rights, because she did not make the
statement.
c. Does not violate Anderson’s Sixth Amendment right, but violates William’s Sixth
Amendment right.
d. Does not violate either defendant’s Sixth Amendment right, the evidence only
implicitly links costume to Anderson.

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Question 20 is based on the following facts.

Prospero is arrested for illegally selling handguns. After he is arrested, and before he is asked
any questions, he says: "Look, I'll plead guilty and I can tell you where I got the guns if you
promise me probation."

After his arraignment, Prospero's defense attorney brings him to the prosecutor's office, where
she offers to plead Prospero guilty if the prosecutor will recommend probation. During this
meeting, the defendant admits to the prosecutor that he sold the guns. The prosecutor refuses to
make a deal, and the case goes to trial.

During the defendant's case, Prospero testifies that he has never sold nor even possessed a gun in
his life. The prosecutor wishes to admit both the defendant's statement to the police in the squad
car, and the statements he made to the prosecutor in her office.

20. The court should:

a. Preclude both statements under Rule 410.
b. Allow the statement in the squad car for any relevant purpose, and admit the
statements made in the prosecutor's office but only for impeachment purposes.
c. Allow the statement made in the squad car, but only for impeachment purposes,
and allow the statements in the prosecutor's office, but only for impeachment
purposes.
d. Allow the statement in the squad car for any relevant purpose, but preclude the
statements made in the prosecutor's office completely.

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Question 21 is based on the following facts.

The San Diego zoo is being sued for damages after a white tiger escaped from its exhibit and
mauled a small child. The director of the zoo contacted the zoo's attorney the day after the
incident and said: "I just reviewed the records for the tiger exhibit and it turns out that a year ago
we hired an independent safety consultant who wrote up a report which said the exhibit was
unsafe and might result in tigers escaping. We took no action as a result of the report." The
attorney makes a record of the conversation and then asks to see the report. The director sends
the report to the attorney. The attorney receives an interrogatory asking for notes of "any record
of statements made by the zoo's director after the incident" as well as "any safety reports or
reviews that were made of the tiger exhibit."

21. How should the attorney respond?

a. Refuse to respond to either interrogatory because of attorney-client privilege.
b. Provide a copy of the safety report but not the record of the zoo director's
statement.
c. Provide the record of the zoo director's statement but not a copy of the safety
report.
d. Provide a copy of both the zoo director's statement and the safety report.

Question 22 is based on the following facts.

Cargill, a company that grows and processes “Honeysuckle White” turkeys, received consumer
reports that some of its turkeys had spoiled. The investigation of spoilgate was done by Cargill
employee, Everett Fine. Fine examined turkeys at these stores and made contemporaneous notes
of the production codes on the labels of spoiled turkeys. Cargill ultimately determined that the
spoilage was caused by Boag Cold Storage, which allowed a batch of turkeys to thaw and spoil.
Five months later, in a lawsuit against Boag for damages, Cargill attempted to introduce Fine’s
notes. Boag objected to the notes as hearsay.

22. How will the trial court most likely rule on the objection?
a. Hearsay, but it is a present sense impression.
b. Not hearsay, it is not a statement, they are notes.
c. Hearsay, it is an out of court statement.
d. Not hearsay, it is offered for the truth of the matter asserted.

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Question 23 is based on the following facts.

Sally crashed into Lucy's car, and Lucy claimed Sally was negligent and sued Sally for damages.
At trial, Lucy wishes to call Sally's brother Charlie, who will testify that Sally "is always
speeding, and never pays attention to the road when driving." Sally objects.

23. The Court should:

a. Preclude this testimony as irrelevant.
b. Preclude this testimony under Rule 404(a).
c. Admit this testimony under Rule 406.
d. Admit this testimony under Rule 404(b) with a limiting instruction that it is not to
be considered to prove propensity.

Question 24 is based upon the following facts.

David is suing the Ford Motor Company for damages arising from a car accident. David
contends that car was negligently manufactured, and a properly built passenger compartment
would not have collapsed. At trial David calls Dr. Matthews, who is certified as an expert in
orthopedics. Dr. Matthews testifies that she examined David personally and examined the
wreckage of the car and concluded that the collapsed passenger compartment caused the injuries
and that David will likely never walk again. David's attorney then asks whether the passenger
compartment would still have collapsed if the compartment had been buttressed by six steel rods
instead of just four. Ford's attorney objects to this question.

24. What is the proper ruling?

a. The proposed testimony is inadmissible because it is irrelevant.
b. The proposed testimony is inadmissible because the underlying data that forms
the bases of the opinion would be based on inadmissible evidence.
c. The proposed testimony is inadmissible because it calls for an opinion beyond the
scope of the witness' expertise.
d. The proposed testimony is admissible.

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Question 25 is based upon the following facts.

A defendant is convicted of murder and properly sentenced to life imprisonment. Subsequently,

the family members of the victim bring a wrongful death action against the defendant. They seek
to introduce a properly authenticated, certified copy of the final judgment to show that the
defendant wrongfully killed the victim. The defendant objects to the introduction of the
judgment.

25. May the plaintiffs introduce the copy of the final judgment from the defendant's criminal
case?
a. No, because a copy of the judgment does not satisfy the original document rule.
b. No, because the judgment is inadmissible hearsay.
c. Yes, because the defendant was found guilty of crime punishable by death or
imprisonment of more than one year.
d. Yes, because any criminal judgment is admissible in a subsequent civil action.

END OF MULTIPLE CHOICE QUESTIONS

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Part II Short Answer Questions (100 points)

Recommended Time: 1 hour

Questions 1 through 5 are based upon the following facts.

Plato was the president of haveaseat.com, an internet chair manufacturing company. Morale at
the company was very low after Plato announced a new (and less favorable) vacation and sick
leave policy at the company. Dino, a low-level employee on the assembly line, told co-workers
that he was going to make sure that Plato was “the first one to miss work and have to take
vacation.”

Approximately a week later, Elvin, Plato’s executive assistant, arrived at work and heard a
strange noise coming from Plato’s office. Elvin went closer and heard groaning and sobbing.
Elvin testified in his deposition that he (Elvin) entered, first saw Plato on the ground, and then
saw Plato’s chair crumpled into many little pieces around him. Plato sustained serious injuries.
Upon an investigation, Plato learned from other employees that Dino was responsible. Plato
sued Dino and the case proceeded to trial two years later.

1. At trial, Plaintiff Plato called Elvin to testify about what he saw upon entering Plato’s
office that day. Before the first question, Dino’s attorney objected to Elvin’s testimony
on relevance grounds because Elvin did not see the fall that gave rise to the law suit.

As counsel for Plato, describe your BEST response to the objection. (2 sentences) and
How should the trial judge rule on the objection? (1 sentence)

2. [Regardless of your answer to Question 2 above]

The trial judge allowed Elvin to testify. During his direct examination, Elvin testified: “The first
thing I noticed was the chair was broken into a hundred little pieces.” On his cross examination,
counsel for Dino asks Elvin about the different order of events he (Elvin) described in his pretrial
deposition. Plaintiff Plato’s counsel objects to Dino’s question on hearsay grounds.

As counsel for Dino, describe your BEST response to the hearsay objection. (2 sentences)
and How should the trial judge rule on the objection? (1 sentence)

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3. Assume for purposes of this question that, on cross examination, counsel for Dino asked
Elvin the following question and received the following answer:

Q: Actually, you first noticed Plato and then the dismantled chair, right?
A: Yea – I guess, that’s right. Whatever, the point is, it was a mess in there!

Before her closing, counsel for Dino asks your advice about how she can make use of the
conflicting testimony in closing? (2 sentences) Would your advice change under the California
Evidence Code (CEC)? If so, how? (2 sentences)

4. Counsel for Dino then requests and receives a 10-minute recess during his cross
examination of Elvin. Counsel for Dino asks for your advice in the hallway of the
courthouse regarding the following three avenues for questioning in his cross
examination (she wants to select the BEST one):

(1) Elvin has a felony conviction for destruction of property for which he served 13
months in prison; he was released 9 years prior to the accident and, thus, eleven years
before the date of the trial;
(2) Elvin was arrested 8 months ago for misdemeanor possession of drug paraphernalia
and his case is still pending as of the date of this trial; or
(3) Approximately 22 years ago when he was 23 years old, Elvin submitted a resume to a
prospective employer claiming that he had a degree from the University of San
Francisco, when in fact he had only taken a few classes at the time.
Advise counsel for Dino on the BEST avenue for questioning on cross examination
and, as compared to the other paths, why you believe it is his best option. (2-3
sentences)

5. In re-direct examination, Plaintiff Plato’s counsel asked Elvin what she thought caused
the accident. Elvin testified, “I believe that Dino loosened every screw in Plato’s chair
as loose as they could go without it falling apart before Plato sat in it.” After the
answer, counsel for Dino objected as an improper opinion and moved to strike Elvin’s
answer.

As the trial court, describe the test you should apply to rule on the objection (2 sentences)
and how you would rule under that test?

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Questions 6 and 7 are based upon the following facts.

The plaintiff, Pedo-tech, a legal technology company, alleges that Depo Doctor, a deposition
services company, stole its concept of an iphone app designed to facilitate the calculation of
damages during mediations. Pedo-Tech may bring a civil action as either a patent infringement
case in federal court or a wrongful appropriation case in California state court. At trial, Pedo-
tech seeks to present the testimony Professor Peter Van Nostram, a law professor in the field of
Intellectual Property at Tech State University, and the country’s leading authority in the field of
invention origins. “Invention origins” is a new, cutting-edge field that uses contextual analysis
to opine on the feasibility of an invention originating within a business. Professor Van Nostram
has written and lectured extensively on the topic and his work has been favorably peer-reviewed.
In this matter, Professor Van Nostram reviewed Depo Doctors’ website, press releases, over 30
of its recent patent applications, and interviewed 12 current and former Depo Doctor employees.
Professor Van Nostram will testify that, in his opinion, the iphone app at issue is not a product
consistent with Depo Doctor’s business and Depo Doctor must have stolen the idea from Pedo-
Tech.

6. Before trial in a motion in limine, counsel for Depo Doctor objects to the professor’s
testimony on the following two grounds: (a) “the professor relies on nothing but hearsay
and other inadmissible information not before our jury”; and (b) “the professor
impermissibly seeks to tell this jury how to resolve the case and his opinion embraces the
ultimate issue in this law suit.”

As the trial court, how do YOU rule on each of the two objections? Why? (1 sentence each)
As counsel for Pedo-Tech, explain whether it would be more advantageous for YOU to file
in federal court for presenting the testimony of Professor Van Nostram. Why? (2
sentences)

7. A former employee in Depo Doctor’s research and development department offered the
following in his interview with Professor Van Nostram: “If we had the brain power to
come up with ideas like that iphone app, then I would still be working there instead of at
Best Buy.” At trial, counsel for Pedo-Tech attempted to admit the above former
employee’s statement through Professor Van Nostram. Counsel for Depo Doctor
objected on hearsay grounds and the trial judge sustained the objection because “the
former employee’s statement was not during or within the scope of his employment.”

As the trial court, explain YOUR ruling. (1 sentence)

As counsel for Pedo-Tech, was there any way for Pedo-tech to argue that the court should
admit this hearsay statement? If so, explain. (2 sentences)

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8. Winston has a prior conviction for possession of an unregistered firearm for which he
served 15 months in state prison. Winston appealed his conviction on the constitutional
grounds of an unlawful search and seizure of the firearm. His appeal is still considered
“pending” (it has not yet been decided by the appellate courts), even though Winston was
released three months ago.

As the prosecutor, can you ask Winston about the firearm conviction? (2 sentences) Would
your answer change if governed by the California Evidence Code (CEC)? If so, how? (2
sentences)

Questions 9 and 10 are based upon the following facts.

A new intern joins your law office and is working on a trial team with the managing partner.
The managing partner told the new intern to review the prior trial transcripts for the opposing
party, Dunder, because of “many missed objections.” Dunder denied any and all wrongdoing in
the incident during his testimony in the first trial and his testimony related to many photographs,
charts and videos. The firm is planning for a new trial involving similar testimony from Dunder.

9. The new intern tells you that the managing partner said something to her about the
“original document or best evidence rule.” The intern is perplexed because all of the
photos and charts appear to be “originals,” not copies, and she does not know of any
“better” evidence is available.

In the context of the new intern’s assignment, describe the best evidence or original
document rule under Article X of Federal Rules of Evidence to the new intern. (2-3
sentences)

10. The intern next tells you that the managing partner is excited because, during a settlement
discussion between trials a month ago, Dunder, in the presence of his attorneys,
“basically admitted that this whole incident was his fault.” The lawyers for Dunder then
went on to propose a very low settlement offer that your firm’s client summarily rejected.
Thus, the impending trial is still on.

The managing partner next asked the intern to brief how they can use Dunder’s admission of
fault a month ago: (i) in their case-in-chief; and (ii) if and when Dunder again denies any
wrongdoing during his testimony.

Advise the new intern for both scenarios raised in this assignment. (2-3 sentences)

END OF SHORT ANSWER QUESTIONS

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Part III: Essay Question (100 points)

Recommended Time: 1 hour

In February 2016, Professor Jackson filed papers to run for Alameda County Superior Court
Judge. One of his opponents, Benny Lee, was a Deputy District Attorney. In discussing his
plans to run with his wife Joan, Benny told Joan that he was going to call himself a “Mortgage
Fraud Prosecutor” for his ballot designation “because no one pays attention to judicial races and
so you need a sexy ballot designation. And besides, I’ve been prosecuting real estate cases
anyway and the liberals of Alameda County will eat it up.” Lee’s wife, a liberal herself, said,
“That’s it! I’m tired of you and your games, I’m leaving you!”

Jackson’s other opponent, Saundra Andrews, listed “victim’s rights attorney” as her ballot
designation. Andrews was a criminal defense attorney who was removed from the Court
Appointed Panel (“CAP”) for representing criminal defendants by the Alameda County Bar
Association (“ACBA”) because of various ethical violations including fraud. In a verified
complaint, Andrews filed a claim under penalty of perjury against the ACBA for removing her
from the list.

After learning of their ballot designations, Professor Jackson filed a claim in Federal Court
against Lee and Andrews challenging their ballot designations. Jackson claimed that these ballot
designations did not reflect either of his opponents’ true occupations as required by law and were
designed to mislead the voters. Lee, Jackson argued, should be listed as a Deputy District
Attorney and Andrews should be listed as a Criminal Defense Attorney.

***

During Jackson’s case-in chief:

Counsel for Jackson first presented a printout from the Alameda County District Attorney’s
website. On the website, there is a tab labeled “Meet our Team.” When a member of the public
clicks on the tab, a PDF document appears that lists all of the Deputy, Senior and Assistant
District Attorneys and their current assignments. Lee was listed as a “Deputy District Attorney”
and not a “Mortgage Fraud Prosecutor.”

(1) The Court took judicial notice of the document and admitted it into evidence and instructed
the jury that Lee was in fact a Deputy District Attorney.

(2) Next, counsel for Jackson called Lee’s wife to the stand. Counsel for Lee objected but the
Court ruled that since Lee’s wife agreed to testify, overruled the objection. Lee’s wife testified
that every pay check Lee received from Alameda County listed Lee as a Deputy District
Attorney and to her and Lee’s conversation relating to Lee’s ballot designation.

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(3) Jackson’s counsel called Andrews to the stand and asked her to explain why she described
herself as a “victim’s rights attorney.” Jackson’s counsel then showed Andrews the Verified
Complaint Andrews filed against the ACBA. Then the following occurred:

Question: “Showing you what’s been marked as Plaintiff’s 1, do you recognize it?”
Answer: “Yes.”
Question: “What is it?”
Answer: “It’s the verified complaint I filed against the ACBA.”
Question: “How do you know it’s the verified complaint you filed against the ACBA?”
Answer: “It’s the complaint I put together and it has my signature on it.”
Question: “And is it a true and correct copy of the verified complaint you filed against the
ACBA?”
Answer: “Yes.”
Question: “And you signed the verified complaint under penalty of perjury, meaning everything
in it is truthful and accurate?
Answer: “Yes.”
Question: “And in this verified complaint, you describe yourself as ‘a criminal defense attorney
who was on the CAP for 25 years.’ Isn't that correct?”
Answer: “Yes.”
Question: “And no where in this document have you described yourself as a ‘victim’s rights
attorney.’ Isn't that correct?”
Answer: “Yes.”

Jackson’s counsel then moved the document into evidence.

Lee’s case-in -chief:

(4) Lee offered a fellow Deputy District Attorney who was asked the following::

Question: “Isn’t it true that you have worked with Mr. Lee for 10 years?”

Answer: “Yes”

Question: “And during that period Lee exclusively handled real estate fraud prosecutions didn’t
he?”

Answer: “Yes.”

(5) Lee also offered an expert witness who testified that based on the above testimony and
reviewing Lee’s case files and watching Lee in court, that it was her opinion that Lee was in fact
a Mortgage Fraud Prosecutor.

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Andrews’ case-in-chief:

Andrews offered Emily Ganja as a witness. Ganja testified that she was a victim of a crime and
was having trouble getting her benefits from the Veterans Administration (VA). Ganja testified
that Andrews helped her fill out the forms necessary to get her benefits.

On cross examination of Ganja, counsel for Jackson asked Ganja about:

(6) her 2005 felony conviction for distribution of marijuana of which she received 3 years
probation; and
(7) how she fabricated her work experience on the forms she submitted to the VA that
Andrews helped her with.
Ganja denied both the conviction and the false statements on the form.

Next, Andrews called the Honorable Judge Hammer. Hammer testified that: (8) Andrews had
appeared in his court on many occasions and in his opinion, she is an honest person who would
never deceive voters.

(9) On cross examination of Hammer, counsel for Jackson asked Hammer if he was aware that
Andrews had been removed from the CAP list for fraud.
During rebuttal, counsel offered: (10) Ganja’s 2005 conviction for distribution of marijuana and
Ganja’s forms from the VA where she fabricated her work experience.

On May 1, 2016, the matter proceeded to trial in federal court. The above-
described evidence, particularly those items numbered 1-10, was admitted at
trial. Set out all appropriate evidentiary objections and responses that should
have been made at trial to the evidence. Did the trial court properly admit the
evidence? Why or why not?

END OF ESSAY QUESTION

END OF EXAM

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Appendix A: The Table of Contents to the Federal Rules of Evidence

FEDERAL RULES OF EVIDENCE

Article I. General Provisions:
101. Scope
102. Purpose and Construction
103. Rulings on Evidence:
(a) Effect of erroneous ruling:
(1) Objection
(2) Offer of proof
(b) Record of offer and ruling
(c) Hearing of jury
(d) Plain error
104. Preliminary Questions:
(a) Questions of admissibility generally
(b) Relevancy conditioned on fact
(c) Hearing of jury
(d) Testimony by accused
(e) Weight and credibility
105. Limited Admissibility
106. Remainder of or Related Writings or Recorded Statements

Article II. Judicial Notice:

201. Judicial Notice of Adjudicative Facts:
(a) Scope of Rule
(b) Kinds of facts
(c) When discretionary
(d) When mandatory
(e) Opportunity to be heard
(f) Time of taking notice
(g) Instructing jury

Article III. Presumptions in Civil Actions and Proceedings:

301. Presumptions in General in Civil Actions and Proceedings
302. Applicability of State Law in Civil Actions and Proceedings

Article IV. Relevancy and its Limits:

401. Definition of "Relevant Evidence"
402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of time
404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes:
(a) Character evidence generally:
(1) Character of accused
(2) Character of victim
(3) Character of witness
(b) Other crimes, wrongs, or acts

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405. Methods of Proving Character:

(a) Reputation or opinion
(b) Specific instances of conduct
406. Habit; Routine Practice
407. Subsequent Remedial Measures
408. Compromise and Offers to Compromise
409. Payment of Medical and Similar Expenses
410. Inadmissibility of Pleas, Plea Discussions, and Related Statements
411. Liability Insurance
412. Sex Offense Cases; Relevance of Victim's Past Behavior or Alleged Sexual
Predisposition
413. Evidence of Similar Crimes in Sexual Assault Cases
414. Evidence of Similar Crimes in Child Molestation Cases
415. Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or
Child Molestation

Article V. Privileges:
501. General Rule
502. Waiver

Article VI. Witnesses:

601. General Rule of Competency
602. Lack of Personal Knowledge
603. Oath or Affirmation
604. Interpreters
605. Competency of Judge as Witness
606. Competency of Juror as Witness:
(a) At the trial
(b) Inquiry into validity of verdict or indictment
607. Who May Impeach
608. Evidence of Character and Conduct of Witness:
(a) Opinion and reputation evidence of character
(b) Specific instances of conduct
609. Impeachment by Evidence of Conviction of Crime:
(a) General rule
(b) Time limit
(c) Effect of pardon, annulment, or certificate of rehabilitation
d) Juvenile adjudications
(e) Pendency of appeal
610. Religious Beliefs or Opinions
611. Mode and Order of Interrogation and Presentation:
(a) Control by court
(b) Scope of cross-examination
(c) Leading questions
612. Writing Used to Refresh Memory

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613. Prior Statements of Witnesses:

(a) Examining witness concerning prior statement
(b) Extrinsic evidence of prior inconsistent statement of witness
614. Calling and Interrogation of Witnesses by Court:
(a) Calling by court
(b) Interrogation by court
(c) Objections
615. Exclusion of Witnesses

Article VII. Opinions and Expert Testimony:

701. Opinion Testimony by Lay Witnesses
702. Testimony by Experts
703. Bases of Opinion Testimony by Experts
704. Opinion on Ultimate Issue
705. Disclosure of Facts or Data Underlying Expert Opinion
706. Court Appointed Experts:
(a) Appointment
(b) Compensation
(c) Disclosure of appointment
(d) Parties' experts of own selection

Article VIII. Hearsay:

801. Definitions:
(a) Statement
(b) Declarant
(c) Hearsay
(d) Statements which are not hearsay:
(1) Prior statement by witness
(2) Admission by party-opponent
802. Hearsay Rule
803. Hearsay Exceptions; Availability of Declarant Immaterial:
(1) Present sense impression
(2) Excited utterance
(3) Then existing mental, emotional, or physical condition
(4) Statements for purposes of medical diagnosis or treatment
(5) Recorded recollection
(6) Records of regularly conducted activity
(7) Absence of entry in records kept in accordance with the provisions of paragraph
(6)
(8) Public records and reports
(9) Records of vital statistics
(10) Absence of public record or entry
(11) Records of religious organizations
(12) Marriage, baptismal, and similar certificates
(13) Family records
(14) Records of documents affecting an interest in property

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(15) Statements in documents affecting an interest in property

(16) Statements in ancient documents
(17) Market reports, commercial publications
(18) Learned treatises
(19) Reputation concerning personal or family history
(20) Reputation concerning boundaries or general history
(21) Reputation as to character
(22) Judgment of previous conviction
(23) Judgment as to personal, family, or general history, or boundaries
804. Hearsay Exceptions; Declarant Unavailable:
(a) Definition of unavailability
(b) Hearsay exceptions:
(1) Former testimony
(2) Statement under belief of impending death
(3) Statement against interest
(4) Statement of personal or family history
(6) Forfeiture by wrongdoing
805. Hearsay Within Hearsay
806. Attacking and Supporting Credibility of Declarant
807. Residual Exception

Article IX. Authentication and Identification:

901. Requirement of Authentication or Identification:
(a) General provision
(b) Illustrations:
(1) Testimony of witness with knowledge
(2) Nonexpert opinion on handwriting
(3) Comparison by trier or expert witness

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(4) Distinctive characteristics and the like

(5) Voice identification
(6) Telephone conversations
(7) Public records or reports
(8) Ancient documents or data compilation
(9) Process or system
(10) Methods provided by statute or rule
902. Self-authentication:
(1) Domestic public documents under seal
(2) Domestic public documents not under sea
(3) Foreign public documents
(4) Certified copies of public records
(5) Official publications
(6) Newspapers and periodicals
(7) Trade inscriptions and the like
(8) Acknowledged documents
(9) Commercial paper and related documents
(10) Presumptions under Acts of Congress
(11) Certified domestic records of regularly conducted activity
(12) Certified foreign records of regularly conducted activity
903. Subscribing witness' testimony unnecessary

Article X. Contents of Writings, Recordings, and Photographs:

1001. Definitions:
(1) Writings and recordings
(2) Photographs
(3) Original
(4) Duplicate
1002. Requirement of Original
1003. Admissibility of Duplicates
1004. Admissibility of Other Evidence of Contents:
(1) Originals lost or destroyed
(2) Original not obtainable
(3) Original in possession of opponent
(4) Collateral matters
1005. Public Records
1006. Summaries
1007. Testimony or Written Admission of Party
1008. Functions of Court and Jury

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