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EvidenceFinal ExaminationProfessor Howard WassermanFIU College of LawFall 2020Final ExaminationFormat:This Final Examination will be administered over 48 hours, from 9 a.m. Wednesday, December 2 to 9 a.m. Friday, December 4. You can download the exam from the blog (fiuevidence.) at 9 a.m. Wednesday; it must be returned by uploading to the Evidence TWEN page by 9 a.m. Friday.The exam consists of sixteen (16) Short-Answer Questions, worth ten (10) points each. The exam will be worth 160 points towards your final grade.You have 48 hours to work on the exam. You may use as much or as little of that period as you wish, in whatever combination of periods you wish. You will not, and cannot possibly, work on it for the 48-hour period, and there is no need to try.Please write your answer in Word, if you have it. The first page of your answer should be a cover page containing your Blind ID #; begin your answers on the second page. Please title your document with just your Blind ID # and the name of the class (e.g., “4000 Evid.docx” or whatever).A Note on the Hypotheticals:The questions all derive from one criminal prosecution for sexual assault. The introductory paragraphs present the basic factual, background, and procedural situation; those facts apply to every question. Subsequent questions add additional facts or issues relevant to the issue in that question and in subsequent questions. Once some fact or piece of information is introduced, it can be used for all subsequent questions—that is, later questions may require that you refer back to earlier information.Some questions cross-reference the facts of a prior question (e.g., Question # 10 may ask an additional question as to something discussed in Question # 9). Sometimes multiple questions will ask you to address distinct aspects of one issue.Questions are in bold. All facts and information necessary to answer a question have appeared before that question. Any new information appearing after a question is for the next question and any subsequent questions.The case is in an unnamed court. But proceedings are governed by the Federal Rules of Evidence and applicable federal procedural statutes. Names are of the actual parties, witnesses, and participants in the real-world drama.Read the facts carefully. Much of the information is provided in the form of a trial transcript and witness testimony, so you must parse out what was said to find the key facts and information. There is not a question following each bit of testimony. Some information is provided to give you a full picture of the trial and evidence for use in later questions.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. Applicable substantive law also has been provided and should be used for your analysis where appropriate.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. Most questions are discrete, narrow, and precise, asking you to resolve a specific question or issue. The questions likely do not require you to scroll through multiple issues or possible rules. Any rule or issue you introduce or mention should be analyzed and applied to the facts in detail. Do not mention a rule in passing as a conclusion.Approaching Short-Answer QuestionsYou may write up to 200 words on Questions 1-15 and up to 250 words on Question 16. 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. When asked to be a party or the court, do not begin with “the party is likely to argue” or “the court is likely to find.” You are the party or the court, so just argue or find. 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.”); explain it, applying the facts you have. Do not recite a legal principle without providing its source, but do not simply cite a rule by number without explaining its content. 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. It is enough to cite to § ___ or FRE ___, although cite to the precise provision in proper format (e.g., FRE 804(a)(5)(A)(ii)).You cannot write a full and complete CREAC in this short space, so do not try. You can provide a very brief conclusion at the beginning or end of your answer. Use the bulk of space on the Rule, Explanation, and Application/Analysis (“REA”), in which you are more than conclusory and you get into detail about the law and the facts.Materials:You may use use any and all assigned materials from the class, including LCS, your rules pamphlet, and any and all other rules, statutes, and cases provided or assigned. You may use any original notes, outlines, or other study document that you were at least 25% responsible for creating (i.e., a communal outline created by a study group). You may not bring to the exam or use commercial outlines, supplements, or other materials and books that were not assigned as part of the class.Academic Policies and RulesThis examination is administered and conducted in accordance with all the provisions of the Florida International University College of Law Academic Policies, 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.People v. PelletierShane Thomas Pelletier, 30, is charged with one count of Sexual Intercourse Without Consent (SIWC) against M.V., a 20-year-old woman. SIWC is a felony. The crime occurs when a person “knowingly has sexual intercourse with another person without consent or with another person who is incapable of consent.” The prosecution must prove that the defendant had sexual intercourse with a person, that the other person did not consent or was incapable of consent, that the defendant knew he was engaging in sexual intercourse with the other person, and that the defendant knew the other person did not or could not consent.The law recognizes the following in criminal prosecutions for SIWC and other sex crimes: “A victim who is legally under the influence of alcohol or other intoxicating substances is incapable of consenting to sexual intercourse. A person is under the influence of alcohol if their Blood Alcohol Content is .06 or above, as measured in a blood or breath test.”According to the indictment, Pelletier found the intoxicated M.V. outside his apartment and brought her inside to help her get sober. Pelletier engaged in sexual intercourse with the unconscious or unaware M.V.Three weeks prior to trial, the government files a motion in limine, seeking a ruling that it can introduce evidence that in 2005, when Pelletier was 15 years old, a 14-year-old female acquaintance accused him of subjecting her to sexual intercourse without consent. The girl alleged that Pelletier and she were engaged in consensual non-intercourse sexual conduct and Pelletier ignored her command to stop when he tried to go further. Police investigated but pursued no charges. During a pretrial hearing on the motion, the following occurs:Court:Why is this relevant and admissible?Prosecution:It shows the defendant committed SIWC against M.V., based on his previously having committed SIWC against the prior 14-year-old victim.1) For the prosecution, argue this evidence is admissible.2)For the defense, argue this evidence is inadmissible.After considering the arguments, the court rules as follows:Court: I am going to deny the prosecution’s motion. This evidence of this prior accusation is not admissible at this time for the purpose the prosecution proposes right now. I may reconsider, or consider admitting it for a different evidentiary purpose, depending on what other evidence and information comes up at trial.Trial begins. Following jury selection and opening statements, the prosecution opens its case in chief by calling M.V. After some introductory information, examination continues.Q:What were you doing on the night in question?A:Bryan, Ginnie, Nat, and me were at Caras Park, down by the waterfront.Q:Who are they?A:Well, Bryan is my boyfriend. Ginnie is my good friend. And Nat is my cousin.Q:What were you guys doing at Caras Park?A:Drinking whiskey and hanging out. We jumped into the lake and went swimming at some point.Q:What time was this?A:We got to the park around 11. I think we went swimming at, like, closer to 11:30 or so. We were in the water for a while.Q:How were you feeling?A:Really drunk. I had taken a few giant swigs of whiskey from the bottle.Q:What happened after you went swimming?A:Well, we all got out of the water together and got dressed. But then I ran ahead of everyone and ran out of the park. I don’t remember much, if anything, after that.Q:You don’t remember?A:Not once I ran ahead of Bryan and everyone and ran out of the park.Q:What do you remember next?A:I woke up in this strange place, with some man I didn’t know on top of me. And he was, you know, inside me.Q:By that, you mean he was engaged in penis-in-vagina sexual intercourse with you?A:Yes.Q:Did you say anything at that point?A:No. I passed out.Q:What do you remember next?A:I woke up in the morning. I was lying in a strange bed, in my underwear. The defendant was next to me on the bed, not wearing any clothes at all, kind of kneeling and hovering over me.Q:What did you do?A: I screamed and pushed him away. That made him flustered and kind of panicked.Defense Counsel:Objection to her improper characterizations of both her and the defendant’s behavior.3) For the prosecution, respond to the objection.Direct examination continues as follows:Q:What happened after you pushed him away?A: I started asking him, like, who he was and where I was and what I was doing there and what was going on.Q:What did he say?A:He told me his name, Shane. He said he found me on the sidewalk outside his apartment throwing up and all confused. He said he could tell I was really drunk and out of it and that he brought me up to his apartment to help me out.Defense Counsel:Objection, Your Honor; hearsay.Prosecution:It is offered to show the defendant’s version of events in finding the victim and bringing her into his apartment, as well as his awareness of the victim’s intoxicated state.4) For the Court, rule on the hearsay objection.Direct examination continues.Q:What happened next?A:I told him I had to leave and get home. I found my clothes on the floor. They were all wet and covered in vomit.Q:Did he allow you to leave the apartment?A:Yes. He offered to walk me to the bus station.Q:Did you accept?A:Yeah. I was confused and scared. I didn’t have my cell phone. I was kind of afraid to say no to him.Q:Did he do anything else before you got on the bus?A:Yeah, he wrote his phone number on my arm and asked me to call him.Q:Do you know what time you got on the bus?A:About 7:45 in the morning.Q:How long did it take you to get home?A:Like 15 or 20 minutes to the bus stop, which is about a five-minute walk from my apartment.Q:So, when did you get back to your apartment?A:Sometime between 8:00 and 8:15 or so.Q:How did you feel as you were riding the bus home?A:Awful. I was crying. I felt like I was in a bad dream.After further testimony, direct examination of M.V. concludes. Defense begins cross-examination of M.V.Q:You had taken several swigs of whiskey, correct?A:Yes.Q:And you and your friends smoked marijuana earlier that night, correct?Prosecutor:Objection to relevancy as to the use of alcohol or marijuana.5)For the defense, explain how this evidence is relevant to helping your case.Cross examination continues.Q:As part of your activities in the park that night, you and your friends went down to the lake, correct?A:Yes.Q:And you went into the water, you went swimming?A:Yes.Q:Without clothes on, correct? You know, you took off your clothes to go swimming, naked, in public . . . in a public lake, correct? And you were with a man, your boyfriend, when you went swimming naked in a public lake?Prosecutor:Objection.6)For the prosecution, state and argue your objection.M.V.’s testimony concludes. Prosecution calls Faith Stringer, M.V.’s roommate. Direct examination proceeds.Q:What time did the victim get home that morning?A:Around 8:15-ish.Q:How did she look and seem?A:She was bawling and her eyes were all red. Her clothes were wet and dirty, covered in vomit.Q:What did you do?A:I asked her what happened.Q:What did she say or do?A:She was crying and her voice was really loud and she was breathing really heavily, like struggling to breath. And she hugged me and cried.Q:Did she say anything?A:She said she had just been raped. That a guy she didn’t know had gotten her into his apartment and had sex with her when she was passed out.Defense Counsel:Objection; hearsay.Prosecution:Goes to the victim’s state of mind, Your Honor, her belief about what happened. In the alternative, it is admissible to show she was raped and falls within several possible hearsay exceptions.7)For the defense, respond to the argument that the evidence can be admitted to show M.V.’s state of mind.8)For the prosecution, argue that it is admissible to show M.V. was raped.The prosecution calls Nurse Winifred Layne. Layne is a registered nurse at the local hospital and a certified sexual-assault examiner. At her boyfriend’s urging, M.V. had reported the assault to the police later that afternoon; the officer had taken M.V. to Nurse Layne for an examination.Q:Did the victim say anything at the beginning of your examination?A:Yes. She said she had woken up in a drunken state in the middle of the night to find a man she had did not know—someone she had never seen or met before—engaged in sexual intercourse with her.Defense Counsel:Objection; hearsay.9)For the prosecution, respond to the objection.Direct examination of Layne continues.Q:Did you complete a physical examination of the victim?A:Yes.Q:What did you find?A:We found tenderness and redness around her genital area. This is often indicative of forced penetration.Q:Did you perform a vaginal DNA swab?A:Yes.Q:And what were the eventual results of that swab?A:It matched the DNA sample we got from the defendant.Q:What do you conclude from that match?A:The defendant and the victim had sexual intercourse at some point in the 48-hour period before the test was performed.Q:Did you also do a blood test on the victim, for consumption of alcohol or other substances?A:Yes.Q:What did you find?A:We found traces of THC, the intoxicant in marijuana. And we found an elevated level of alcohol in her blood, a blood-alcohol count of .03.Q:At what point is someone considered legally intoxicated by alcohol?A:At a BAC of .06.Q:At what time did you perform the examination?A:Early evening, around 6 p.m.Q:In your experience, if someone has a BAC of .03 at 6 p.m., would their BAC have been above .06 18 hours earlier, around midnight?A:Given how the average woman metabolizes alcohol, the BAC likely would have been well above .06 18 hours prior to having a .03 BAC.Direct examination of Layne concludes. On cross examination of Layne, the following exchange occurs:Q:You said you found tenderness and redness in the genital area?A:Yes.Q:That can be consistent with consensual intercourse, correct? Consensual intercourse can produce those same physical effects?A:Yes.The prosecution next calls Det. Luis Palmiero, the officer who took M.V.’s complaint, investigated the incident, and arrested Pelletier. Direct examination proceeds as follows:Q:Did you interview the defendant?A:Yes.Q:Where?A:I went with several officers to his apartment.Q:What did he tell you about the incident?A:Three different stories, actually. First, he said they had sex, but it was consensual. That the victim started kissing him and then he asked her for consent and she gave it to him. Then he changed and said that he didn’t do anything, that he woke up in the middle of the night with her on top of him. Then he changed again and said they didn’t have sex at all, that she flirted with him, but then she passed out on his bed in her underwear and nothing happened.Det. Palmiero is the final witness in the prosecution’s case-in-chief.Defense begins its case-in-chief by calling Pelletier to the stand. Direct examination proceeds. Q:When did you first see the complaining witness?A:Around midnight. I was in my apartment and I heard someone throwing up in the alley below the window. So, I went outside to see.Q:And who did you find?A:The complaining witness.Q:What did you do?A:I asked her if she needed help. She first said no. Then I asked again if she wanted to come upstairs to my apartment and to eat and drink some water and to try to sober up. And she said yes.Q:What happened after you brought her up to your apartment?A:She took off her clothes, which were kind of wet and gross. She took a shower. Then we were hanging out—she ate and we drank a little. I thought she was kind of flirting with me.Q:What did you do?A:I went to kiss her and she kissed me back.Q:And then?A:We went to lie down in bed.Q:Did you say anything to her?A:I asked if this was ok, if she was good with doing this.Q:And what did she say?A:She nodded her head.Q:Did she ever say anything—such as “stop” or “don’t”?A:No.Q:Did she ever say anything else showing or saying that this was not ok, the sexual activity you were engaged in?A:No.Q:Did she ever pass out or become unconscious at any point before or while you were having sex?A:Not that I saw.Q:Shane, is this the story you told the police when they came to your apartment?A:No.Q:Did you tell the police several different stories? A:Yes.Q:Why did you do that?A: I think -- because of being surrounded at my house unexpectedly by the police . . . I know it was because of being slandered and charged with this charge because it’s . . one of the worst things that a man can get charged with. And I’m just not that kind of guy. I would never do that to a female. So, it was kind of, I don’t know, disturbing.Prosecution:Object to testimony about what kind of guy the defendant is, to his being a good guy.10)For the defense, respond to the objection.The evidence in Question # 10 is admitted for the purpose stated by the defense.Defense counsel completes direct examination of Pelletier. Prior to the beginning of cross examination, the prosecution requests a sidebar conference.Prosecutor:We would like to offer evidence of the 2005 accusation of SIWC against the defendant.Defense:Absolutely not. Your Honor ruled on that issue prior to trial and said the evidence of a 15-year-old alleged or supposed prior act was inadmissible.Prosecutor:This court ruled that it was inadmissible for the purposes we urged in our motion in limine, fine, but that the evidence offered at trial might change its admissibility and thus the court’s decision. The defendant’s testimony placed his character in issue—he testified that he is not the type of person who would commit rape. So the evidence of the 2005 offense has a new, different relevance and thus different admissibility, in response to the evidence offered by the defense. We now would like to ask the defendant about this prior accusation, as well as offer a copy of the police report taken by that victim.Defense:I recognize there is no hearsay problem with either piece of evidence. But neither is proper in any event.11)For the court, decide whether the prosecution can ask the defendant about the prior accusation on cross examination.12)For the court, decide whether the prosecution can offer the police report from the prior incident. Accept that there is no hearsay problem in admitting the report.Cross examination of Pelletier continues.Q:To be clear, from your prior testimony: When you found M.V., you suggested that she come with you so she could, in your words, “sober up”?A:Yes.Q:So you could tell she was intoxicated?A:She was throwing up on the sidewalk, so I kind of assumed. I never asked, “hey, are you drunk” or anything like that.Q:She needed help to walk into the apartment with you, didn’t she?A:I put my arm around her while we walked and we kind of walked slowly.Q:She was unsteady walking?A:A little bit, yeah.Pelletier is the lone defense witness. The prosecution offers a brief rebuttal case, then rests. The evidence is closed.Trial moves to closing arguments—the prosecution, then the defense, then rebuttal from the prosecution (because it bears the burden of persuasion). Towards the end of the prosecution’s rebuttal closing, the following occurs:Prosecutor: This idea of this presumption of innocence is over. Mr. Pelletier had a fair trial. We were here for two weeks . . . He gets to cross-examine witnesses; he gets an opportunity to present evidence, including his own testimony, and other information through his lawyer. He had a fair trial. This system is not perfect, but he had a fair opportunity and a fair trial. He’s not presumed innocent anymore. Defense Counsel:Objection, that is a complete misstatement of the law.Court:Objection sustained. The jury will disregard the prosecutor’s comments.The court proceeds to jury instructions. During the court conference to prepare the instructions, the following occurs:Defense Counsel:Given the prosecutor’s misstatement during closing argument, we would ask Your Honor to provide a very specific instruction on the presumption of innocence, to ensure the jurors understand what the concept means and what it requires. Your Honor sustained our objection and struck the prosecutor’s improper comment from closing. But the jurors did hear it. So we believe it is important to make that concept clear to the jury.Prosecutor:We do not believe it is necessary, but have no objection, Your Honor.Court:Fine, I will provide such an instruction.13)For the court, draft an instruction explaining to the jury the meaning of the presumption of innocence.The court conference continues:Prosecutor:Your Honor, as you know, the law provides that in an SIWC prosecution, inability to consent is inferred when the victim is legally intoxicated. Given the evidence adduced at trial, we could ask that the court give the following instruction: “If you find that the victim was under the influence of alcohol or marijuana, you must find that she was incapable of consenting to sexual intercourse.” Defense Counsel:We object to that instruction, Your Honor. As stated, it would violate the defendant’s right to a jury trial.14) For the court, draft a proper instruction on the connection between consent and intoxication. Explain why this instruction is proper.The case is submitted to the jury, which returns a verdict of guilty. The jury is dismissed.With the jury dismissed, proceedings continue on the record.Defense Counsel:Your Honor, we move for a judgment of acquittal. The evidence offered in this case was insufficient.Prosecutor:This motion should be denied for two reasons, Your Honor. First, defense waived any argument about sufficiency of the evidence by not moving prior to the case being submitted to the jury and a verdict. Second, the evidence offered is more than sufficient to support this guilty verdict and this conviction.15)For the court, decide whether the defense has waived this motion.16)For the court, assuming no waiver, decide the defense motion and enter a judgment. (Note: You can write up to 250 words for this question)End of exam. End of class.See you in the next life, Jack. ................
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