2001 Evidence Grading Key

EVIDENCE

Grading Key, Fall 2002

QUESTION I

72 points

The following hypothetical was taken almost verbatim from Problem 9-B on page 695 of C. Mueller and L. Kirkpatrick, Evidence Under the Rules (4th ed., Aspen Law & Business, 2000). Used with permission.

Study the following transcript of Mr. Richard's testimony on direct and cross examination. Consider whether either side has proper objections. Consider also how you would avoid or cure any problems in Mr. Richard's testimony. Discuss.

Mr. Richard is a proper witness		4 points ________
His testimony places him at the scene		4 points ________
and shows he has personal knowledge		4 points ________

Neither party objects	4 points ________
and neither party may complain on appeal	4 points ________

Statement as to Tamika's ballet lessons may be improper	4 points ________
No foundation has been laid	4 points ________
Is it hearsay? Did he learn this from the mother?	4 points ________

Is this speculation based on the child's attire?	4 points ________
Or did he learn this through an excited utterance?	4 points ________

Identification of defendant is improper	4 points ________
The answer ("I guess") is speculative	4 points ________

Estimate as to speed is proper	4 points ________
This is proper for a lay opinion	4 points ________
Is the witness a licensed driver?	4 points ________

Statement as to speed limit calls for conclusion of law	4 points ________
But witness may say there is a speed limit sign on the street	4 points ________

"Smell of pot" is objectionable	4 points ________
requires expert opinion	4 points ________
no basis for opinion	4 points ________

Driver has "guilty look" is probably admissible	4 points ________
as a proper lay opinion	4 points ________
Cross on how specifically he looked guilty	4 points ________

"Afraid he would lose his license" is clearly improper	4 points ________
It's speculative	4 points ________

"Broken back" and "dislocated shoulder" inadmissible	4 points ________
calls for expert medical opinion	4 points ________

"Car totaled" and "damage is about $5,000" is improper	4 points ________
calls for expert opinion	4 points ________

Other valid discussion	4 points ________
Good advocacy pointers on how to various points into evidence	4 points ________

QUESTION II

72 points

Dr. Sigmund Fraud, a psychologist, is called to testify that little Tamika suffered psychological trauma. Dr. Fraud is a Jungian psychologist, and he administered no tests and saw the child for less than an hour.

II-A. May Dr. Fraud testify Tamika suffered permanent psychological scarring? Discuss.

Dr. Fraud will qualify as an expert	6 points ________
Since Daubert, basis of expert's opinion need not be generally accepted	6 points ________
Court must perform a balancing test	6 points ________

General acceptability is only one factor now	6 points ________
Opposition may discredit Dr. Fraud through other testimony	6 points ________
Any reference to ABAJ article on Dr. West	6 points ________

II-B. You found an article in the Journal of Psychology entitled "How to Evaluate Psychological Trauma in a Child." You wish to use it to impeach Dr. Sigmund Fraud. Can you? Explain in detail how if at all you might be allowed to do so. Discuss.

Article is a learned treatise	6 points ________
Dr. Fraud must identify it as reliable authority	6 points ________
Either in court or on deposition	6 points ________

Or the court may take judicial notice that it is reliable authority	6 points ________
Which in this case is unlikely	6 points ________
Or counsel must have another expert testify to article's reliability	6 points ________

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