SCORING CRITERIA
Good answer: 6 to 8 points depending on how specific you were. For example although both of the following are good answers, the first gets six points and second gets 8 points:
------- "Objection, prejudice outweighs probative value under Rule 403"
------- "Objection, the evidence involves sex and drugs so the high risk of unfair prejudice substantially outweighs probative value under Rule 403"
Don't confuse specificity with quantity of information. Both of the previous answers are better than the following, which fails to distinguish among the various types of evidence excluded by 403:
------ "Objection. Rule 403 provides that "although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." This evidence should therefore be excluded.
One good and one bad answer: 4-5 points
Incomplete answer: 3-5 points.
Unnecessary answer raising irrelevant evidentiary issues: 1-2 point deduction
Tangential answer (e.g., leading, Rule 807): 2-3 points
Wrong answer but right topic : 1-2 points
Way off the mark: 0 points
Also occasional additional 1-2 points for using correct procedure, e.g., offers of proof, motions to strike, being specific
TOTAL AVAILABLE POINTS ON PRACTICE EXAM: 200
Predicted highest score in class: 165-170
Predicted minimum score to get an A minus: 115-125
Predicted minimum score to get a B: 75-80
Predicted failing score (C minus or below): 30
NOTE: I have broken down the answers into numbered elements to show you everything I am looking for. That does not mean you are supposed to do so on the exam. You should write your answers in the form of objections and arguments as the instructions say to do.
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COURT: The plaintiff may call its first witness.
PLAINTIFF'S ATTORNEY: Thank you, your honor. We call Verena Deuble. She is a German citizen, your honor.
BAILIFF: Do you speak and understand English?
WITNESS: Yes, I am fluent in English.
BAILIFF: Do you swear or affirm to tell the truth in this matter?
WITNESS: I do.
DEFENSE ATTORNEY: Your honor, we object to any further testimony by this witness. We believe she is mentally incompetent to be a witness. She is almost 90 years old and believes that Elvis is
sending her letters.
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1. How should plaintiff respond to this objection?
Good answer (all elements required for full credit):
1) The witness should be allowed to testify.
2) Rule 601
3) says that everyone is a competent witness who takes the oath
4) She took the oath.
Part credt: Arguing that "everyone is competent" without mentioning the requirement of an oath.
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COURT: Overruled (not necessarily the right ruling).
BAILIFF: State your name and address for the record, please.
WITNESS: Verena Deuble. I live in Bad Nauheim, Germany.
Q: Ms. Deuble, how old are you?
A: 87 or 88; I'm not sure.
Q: Were you recently given an award by the Israeli government for saving the lives of a Jewish family in the Second World War?
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2. What objection(s) could the defense attorney make?
Good answer (all elements required for full credit):
1) Object to testimony about awards
2) Rule 404, character evidence.
3) Not admissible to prove conduct in conformity
4) Heroism is a trait of character.
Part credit: (a) Arguing general irrelevancy or Rule 403. Always use the more specific rule.
(b) Arguing this is improper bolstering of a witness's credibility before she has been impeached. Heroism is not closely related to truth-telling.
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COURT: Overruled (not necessarily the correct ruling).
A: Yes, I was.
Q: Are you acquainted with Elvis Presley?
A: Yes I am. I met him when he was in the U.S. Army. He was stationed near my home in 1958. The food on the army base was so bad, that he and some of his buddies would come over to my house
whenever they could get away, and I would fix them sandwiches. He was a nice young man with very good manners.
Q: Did you receive a letter addressed to you that was postmarked October 11, 1988, from Memphis, Tennessee?
A: Yes, I did. It was from Elvis Presley.
Q: Handing you plaintiff's exhibit one, is this Elvis' signature?
A: Yes it is.
PLAINTIFF'S ATTORNEY: We offer this letter into evidence.
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3. What response(s) can plaintiff's attorney make to this objection?
The letter has been authenticated by circumstantial evidence under Fed. R. Evid. 901, because it refers to personal matters that would only be known to the purported author (Elvis).
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COURT: Overruled.
DEFENSE ATTORNEY: In that case, we object to the letter as hearsay.
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4. What response(s) can plaintiff's attorney make to this objection?
Good answers (all elements required for full credit):
1) The whole letter
2) Does not fit the Rule 801 definition of hearsay
3) because not offered to prove the truth
4) But is offered to show that Elvis was capable of writing, so he must be alive;
-- or --
1) The portion of letter stating I am alive
2) Fits the exception for present physical condition, Rule 803(3)..
3) It describes then-existing physical condition contemporaneously with the sensation
4) Being alive is a physcial condition
Part credit: Putting down "not for truth" without saying what it was offered for.
Part credit: Putting down "present sense impression" without explaining how foundation was satisfied.
Bad answers: (a) State of mind exception, 803(3). Elvis' state of mind is not in issue.
(b) Statement of past physical condition, 803(4). The statement was not made for diagnosis or treatment.
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5. Suppose plaintiff responds that the letter is the statement of an opposing party. What reply can the defense attorney make?
Elvis is not a party according to first line of facts.
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6. Suppose plaintiff responds that the letter is a declaration against interest. What reply can the defense attorney make?
There is no proof of Elvis' unavailability as required by Rule 804(a), and no proof that the letter is against Elvis' pecuniary interest.
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COURT: Overruled (not necessarily the correct ruling).
PLAINTIFF'S ATTORNEY: No further questions. We call Peter Richter.
BAILIFF: Do you swear to tell the truth?
WITNESS: I do.
BAILIFF: State your name and address.
WITNESS: Peter Richter, 3412 Mulholland Drive, Los Angeles.
Q: What is your occupation.
A: I am a freelance journalist who specializes in Elvis Presley. I have read every book written about him. I have one of the largest collections of Elvis memorabilia in the United States. Since his
alleged death in 1977, I have investigated and written about reports that he is still alive. For over ten years, this has been my full-time occupation, and I have had over 200 of my articles published. I
have talked to everyone I can locate who thinks they have seen or heard from Elvis since his death. Let me tell you, I have talked to a number of real fruitcakes out there, who think Elvis spoke to them
from cereal boxes, or they met him when they were taken aboard a UFO, and so forth. It is often hard to distinguish the crazy people from those who really have seen or communicated with Elvis
Presley. I guess you could say I am an Elvisologist.
Q: Handing you plaintiff's exhibit one, the letter allegedly from Elvis, in your opinion as an expert on Elvis Presley, do you think it is genuine?
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7. What objection(s) could the defense make?
Good answers (all elements required for full credit): .
1) I object to that this opinion
2) because it would violate Rule 702 governing expert testimony
3) This is not a field of specialized knowledge
4) Elvisology is common knowledge within jurors' experience. Expert opinions will therefore not assist jury.
--or--
3) No foundation that witness is using scientifically reliable theories as required by Daubert v. Merrel Dow.
4) Does not describe his methodology at all.
Bad answers: (a) Witness is biased. No rule prohibits calling biased witnesses.
(b) Witness is not qualified as expert. He has unique experience.
(c) Legal opinion. Not in purely legal terminology.
(d) Anything having to do with lay opinion rule; this person is an expert.
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8. If defendant objects that the witness lacks personal knowledge, how should plaintiff respond?
Good answer (all elements required for full credit):
1) Opinion should be allowed
2) This is an expert witness
3) Experts don't need personal knowledge
4) they just need a factual basis for their opinion. Rule 703.
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COURT: Overruled. (not necessarily the correct ruling).
A: I believe it is genuine.
PLAINTIFF'S ATTORNEY: No further questions.
DEFENSE ATTORNEY: Mr. Richter, this Deuble woman is not the first to come forward with a letter allegedly written by a living Elvis, is she?
A: No.
Q: In fact, you have seen a number of such letters and investigated their authenticity, haven't you?
A: Yes. I have investigated about 25 such claims. In most cases, the letters turn out to be forgeries.
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9. What objection(s) can the plaintiff's attorney make?
Good answer (all elements required for full credit): .
1) Objection to testimony about other forgeries
2) Irrelevant evidence of other events
3) No foundation of similarity of conditions
4) Move to strike (add 2 points)
-- or --
2) Low probative value and high danger of confusion of the issues under Rule 403
3) Because no foundation of similarity of conditions
No credit: Character evidence objection. Although this asks about a pattern, it is not a particular person's pattern.
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COURT: Overruled (not necessarily the correct ruling).
A: Yes.
Q: Mr. Richter, how did you find out about this particular letter?
A: I read about it in a German newspaper.
Q: Did you visit Verena Deuble?
A: Yes. She gave me the letter, and asked for my help in convincing the world that it was genuine.
Q: Supermarket tabloids will buy stories suggesting that Elvis is still alive, won't they?
A: Yes.
Q: Will they buy stories that Elvis is still dead?
A: No.
Q: In the case of the Deuble letter, didn't you sell a story to the Weekly World News for $5,000, in which you suggested the letter was genuine?
PLAINTIFF'S ATTORNEY: I object. This is confusing the issues and a waste of time.
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10. What response(s) can the defense attorney make to this objection?
Good answer (all elements required for full credit):
1) Evidence of financial interest
2) Offered to impeach
3) For bias bu showing self-interest.
4) Bias of witness always a significant issue for Rule 403 purposes.
Part credit if you discussed either probative value or prejudicial effect but not both.
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COURT: Overruled (not necessarily the correct ruling).
A: Yes I did.
DEFENSE ATTORNEY: No further questions.
PLAINTIFF'S ATTORNEY: We call Priscilla Presley.
BAILIFF: Do you swear to tell the truth?
WITNESS: I do.
Q: Are you Priscilla Presley, the actress and former wife of Elvis Presley?
A: Yes.
Q: Were you married to him in 1977 when he allegedly died?
A: No; we were divorced.
Q: Since 1977, have you received any letters or telephone calls from Elvis?
A: On the advice of my attorney and my theatrical agent, I am not going to answer that question. I think this whole proceeding is a farce and a sick attempt to capitalize on Elvis' memory. If I were to
testify that I had been receiving communications from beyond the grave, my career would be ruined. Look what happened to Shirley MacLaine.
Q: Handing you plaintiff's exhibit two, is this a statement that you prepared for me at my request, on September 12, 1988, in which I asked you about communications you received from Elvis?
A: Yes.
PLAINTIFF'S ATTORNEY: We offer exhibit two into evidence as the prior inconsistent statement of this witness.
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11. What objection(s) could the defense attorney make?
Good answers (all elements required for full credit):
1) I object to the statement
2) As improper impeachment
3) No foundation of inconsistency
4) The witness gave no actual courtroom testimony for the statement to be inconsistent with.
-- or --
3) Extrinsic evidence not admissible to impeach
4) Statement itself extrinsic, admissible only if witness denies it aftwer confrontation.
No credit: Hearsay objection -- Whether it is hearsay depends on whether it is a valid prior inconsistent statement; if so, it is not coming in for its truth, but to impeach.
Bad answer: Impeaching own witness. Rule 607 says anyone can impeach any witness
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COURT: Overruled (not necessarily the correct ruling).
PLAINTIFF: Nothing further
DEFENSE ATTORNEY: You were originally named a co-defendant, weren't you?
A: Yes.
Q: And did you settle out of court with Ms. Thompson?
PLAINTIFF: Objection under Rule 408, which prohibits evidence of offers to settle.
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12. What response can the defense attorney make?
Good answer (all elements required for full credit):
1) Evid of Settlement
2) Only excluded under Rule 408 if offered to show fault
3) Not offered to show fault but to show witness's bias
4) The settlement suggests that there is a quid pro quo giving the witness the motive to fabricate.
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COURT: Sustained.
DEFENSE ATTORNEY: No further questions.
PLAINTIFF'S ATTORNEY: We call Martha Camacho.
BAILIFF: Do you swear to tell the truth?
WITNESS: I do.
Q: State your name and address.
A: Martha Camacho. 455 Tulip Lane, Memphis.
Q: Are you the trust officer at the First Memphis Bank who supervises that Presley trust?
A: Yes. That has been my responsibility for ten years. Before that, I was a trust attorney for the bank.
Q: Have you been continuously in charge of that account since Elvis Presley was reported to have died?
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13. What objection(s) can the defense attorney make to this question? [This is a hard question]
Good answer (all elements required for full credit):
1) I object to the answer
2) No foundation of personal knowledge as required by Rule 602.
3) No foundation that witness knows when Elvis died.
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14. If the defense objects that "reports of Elvis' death" would be hearsay, what response can plaintiff make?
Good answer (all elements required for full credit):
1) Report of Elvis' death
2) Does not fit the definition of hearsay. Rule 801
3) No content
4) It asks for the witness's conduct using reports of Elvis's death merely for a time frame; the question does not ask the witness to describe the content of any communication.
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COURT: Overruled (not necessarily the correct ruling).
A: Yes.
Q: Under the terms of the trust agreement, when does Lisa-Marie Presley receive the bulk of the estate of Elvis Presley?
A: I do not know.
Q: Under the terms of the trust agreement, must Elvis be dead for the money to pass to Lisa-Marie?
A: I do not know.
Q: You are the trust officer of the bank, aren't you?
A: Yes.
Q: Do you know anything about the terms of the Presley trust?
A: Not off the top of my head. The bank is trustee for over 1,000 trusts. There are a dozen forms filled out for every one of those trusts. We employ a staff of four whose only job is to fill out more
documents for every transaction involving any of these 1000 trusts. In total, that's over 20,000 documents relating to trusts. I cannot be expected to recall the contents of each one.
Q: Did you happen to bring the records of the Presley trust with you today?
A: Yes. They amount to 44 pages.
PLAINTIFF'S ATTORNEY: We move into evidence the records of the Presley trust, as plaintiff's exhibit 3.
DEFENSE ATTORNEY: I object. The records are hearsay.
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15. What response(s) can plaintiff's attorney make to this objection?
Good answer (all elements required for full credit):
1) The records keot by the bank
2) Are admission of party-opponent, Rule 801d
3) Memphis Bank is a party; its records are statements made by employees authorized to make such statements.
Part credit: The trust document itself is not hearsay because it has legal significance (operative legal facts).
Irrelevant answer (no points): Anything having to do with personal knowledge; subsumed under hearsay exception foundations.
Bad answer: Business records exception -- no foundation showing routineness; no evidence they were made at or near time of event, by employee with personal knowledge.
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COURT: Overruled (not necessarily the correct ruling).
Q: As trust attorney for the Memphis Bank, were you present in November 1976 when the final trust agreement was signed?
A: Yes.
Q: Was Elvis Presley also present?
A: Yes.
Q: For how long were you and Elvis in the same room?
A: About one hour.
Q: Do you recall his appearance at that meeting?
A: Yes.
Q: Did he look like he was concerned about his estate, or did he look like he was trying to deceive someone?
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16. What objection(s) can the defense attorney make?
Good answer (all elements required for full credit):
1) Object to the characterization of Elvis' appearance
2) On opinion rule grounds (Rule 701)
3) As not "rational" conclusions of a type lay persons competently make
4) These are not common situations.
Part credit:
Arguing failure to lay an adequate foundation of personal knowledge. This opinion would require a foundation that the witness were familiar with how a "normal" Elvis looked in order to
compare a normal Elvis to a deceptive Elvis.
Part credit:
The opinion would not be helpful to the jury because there are better ways of communicating more precise information on issue that is important.
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COURT: Overruled (not necessarily the correct ruling).
A: He looked deceptive. He also looked drugged.
DEFENSE ATTORNEY: I object. The last answer about looking "drugged" is an irrelevant opinion.
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17A. What response(s) can plaintiff's attorney make to the opinion rule objection?
Good answer (all elements required for full credit):
1) The opinion is based on personal knowledge -- she saw Elvis
2) Opinions of intoxicated appearance are rational for a lay person -- within common experience.
3) Helpful to jury because difficult to break down into more concrete details.
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17B. What response(s) can plaintiff's attorney make to the relevance objection?
Good answer (all elements required for full credit):
1) Evidence of Elvis's drugged condition
2) Under Rule 402
3) Has probative value
4) On the theories that he had a drug problem, faked his death and entered drug rehab. While it may pose a Rule 403 danger, the defense did not object on Rule 403 grounds.
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COURT: Overruled (not necessarily the correct ruling).
Q: Now, directing your attention to June 5, 1981, at about 3:30 pm, were you speaking to Priscilla Presley on the telephone at that time?
A: Yes. Lisa-Marie was still a minor then, and Priscilla was discussing some matters relating to the trust with me.
Q: Did the entire conversation concern the trust?
A: No. Suddenly she said, "Martha, I'm going to have to call you back. There's a strange man out in the yard, staring at the house. I'm going to call the police. No wait, he looks familiar. Never mind.
He's leaving. That sure shook me up, for a moment there he looked just like Elvis."
DEFENSE ATTORNEY: I object and move to strike. Priscilla's statement is hearsay.
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18. What response(s) can plaintiff's attorney make?
Good answer (all elements required for full credit):
1) Priscilla's statement to witness
2) Is an excited utterance, Rule 803(2).
3) It describes startling event immediately thereafter
4) Seeing someone who looks like dead husband is startling
Part credit:
Present sense impression, Rule 803(1), because she was describing event she was seeing. The problem is that the statement relates to past events as well as describing current ones.
Bad answers: (a) Declaration against interest. [Priscilla was divorced, not a beneficiary of trust, would not gain anything if Elvis dead or alive; had no interest].
(b) Admission. [Priscilla is not a party; no proof she was agent of Lisa-Marie]
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COURT: Overruled (not necessarily the correct ruling).
PLAINTIFF'S ATTORNEY: No further questions.
DEFENSE ATTORNEY: So you think Elvis was being deceptive when he executed the trust agreement?
A: Yes.
Q: Do you think he might have been planning to fake his own death?
A: Yes.
Q: If he is still alive, then Lisa-Marie does not get the proceeds of the trust, isn't that right?
A: Yes.
Q: So if the plaintiff wins this case, won't you and your bank get to keep all this money?
PLAINTIFF'S ATTORNEY: I object; irrelevant.
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19. What response(s) can the defense attorney make to this objection?
Good answer (all elements required for full credit):
1) Evidence that bank keeps money
2) Relevant to impeach witness
3) For bias
4) Financial motive of bank to want to keep money might affect witness who is employee.
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COURT: Overruled (not necessarily the correct ruling).
A: The bank would get to keep it, yes, but only until Elvis showed up.
Q: Let's change the subject. Are you acquainted with an attorney named Irwin Fisher?
A: Yes. He is a prominent trusts and estates attorney in town. I had business dealings with him many times. He handled the Elvis Presley trust on behalf of Elvis.
Q: Was he the one who brought you Elvis' death certificate?
A: Yes.
Q: And he told you to activate the trust?
A: Yes.
Q: Did he usually tell you to activate trusts while their creators were still alive?
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20. What objection(s) other than hearsay can plaintiff's attorney make to this question?
Good answer (all elements required for full credit):
1) I object to evidence of what Fisher usually did
2) As irrelevant character evidence, Rule 404a
3) Not admissible to prove conduct on this occasion
4) What an attorney usually did is "pattern" evidence, not admissible to prove he acted in conformity therewith on the contested occasion.
Bad answers: (a) Habit [question asked "usually"; habit requires "always"]
(b) Lack of personal knowledge [she said she has had many dealings with attorney]
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21. If plaintiff objected on hearsay grounds, what response(s) could the defense make?
Good answer (all elements required for full credit):
1) Instances where attorney gave instructions
2) Do not fit the definition of hearsay;
3) Commands or requests are not "assertions"
Bad answer: Admission by agent. [No proof that attorney is agent of plaintiff]
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COURT: Overruled (not necessarily the correct ruling).
Q: Let me change the subject. On March 5, 1991, in the District Court of Monroe County, did you plead guilty to the crime of shoplifting?
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22. What objection(s) could plaintiff's attorney make?
Good answer (all elements required for full credit):
1) I object to evidence of this crime
2) Tto impeach under Rule 609
3) No foundation this is either a felony or a crime of dishonesty -- shoplifting may or may not involve dishonesty and deception
4) Falls outside the 10-year rule.
Part credit: (a) You discussed one but not both foundation failures.
(b) You objected that this WAS not a crime of dishonesty rather than no foundation had been laid.
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COURT: Overruled (not necessarily the correct ruling).
A: Yes, I was.
DEFENSE ATTORNEY: No further questions.
PLAINTIFF'S ATTORNEY: Because of the publicity surrounding this lawsuit, has your bank changed its practices with respect to death certificates?
A: I'm not sure what you mean.
Q: Isn't it true that you now require an affidavit from the attending physician attesting to the death certificate?
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23. What objection(s) could the defense attorney make?
Good answer (all elements required for full credit):
1) I object to evidence of bank's current practice
2) as an irrelevant subsequent remedial measure, Rule 407.
3) If policy had been in place, improper activating Elvis trust might not have occurred
Part credit: Making a Rule 403 objection about confusing the issues and marginal relevancy.
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COURT: Sustained.
Q: When Mr. Fisher gave you the death certificate, did he say anything about his final meeting with Elvis?
DEFENSE ATTORNEY: Objection. Whatever was said or done at a meeting between Elvis and his attorney would fall within the attorney-client privilege.
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24. What response(s) can plaintiff's attorney make to this objection?
Good answer (all elements required for full credit):
1) Evidence of conversation with Elvis should be allowed
2) Not privileged
3) The privilege was not asserted by Elvis personally and no foundation that lawyer has authority to assert it.
4) No foundation has been laid that the meeting was confidential.
5) The privilege doesn't apply in suits among heirs.
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* * END OF EXAMINATION * *