EXAM#______________________

Part II: Essay Question (100 points)

Recommended Time: 1 hour, 30 minutes

Vanessa, 5 years old, lives with her mother, Connie, and her mother's boyfriend, Dan. They live
in Yosemite National Park where Dan works for the Curry Company. During one of Vanessa's
first days in her new kindergarten classroom, she became upset for no clear reason. When her
teacher Wendy asked what was wrong, Vanessa cried, "I don't like it when Dan touches me on
my private place." Wendy immediately reported this to the school's principle, Mr. Goff.
It was soon arranged for Vanessa to meet with the school's counselor, Ms. Hunt, a licensed social
worker with a B.A. in child development. During that videotaped session, Vanessa, using play
dolls to illustrate, recounted how Dan had sexually molested her on several occasions over the
past weeks. Ms. Hunt shared the video of the session with Mr. Goff, who called the police.
The police arranged for Vanessa to be medically examined at the local hospital by a physician
specially training in sexual abuse response exams (known as a "SART" exam). During the
exam, for which police officers were present, photographs were taken of Vanessa's vaginal area,
which showed some skin reddening. Around the same area, Vanessa also complained of pain.
Dan was arrested. As he was being handcuffed, he asked Connie to explain to the officers "why
this is all a big mistake." Connie then proceeded to tell the officers that, three nights ago, she
had come into the bathroom to find Dan bathing Vanessa, and Vanessa appeared upset and was
crying, "No, please, not there! Please don't wash me there again!" Connie went on to claim that
Vanessa was mad at Dan for making her take baths, and invented that he molested her.
Because the crime is alleged to have happened on National Park land, Dan is charged in Federal
Court with 18 U.S.C. § 2243, sexual abuse of a minor. During the preliminary hearing, Vanessa
testified. Before taking the stand, Vanessa was asked: "Do you solemnly swear to tell the truth,
the whole truth and nothing but the truth, so help you God?" Vanessa, clutching her favorite
stuffed animal, responded in a sing-song voice: "okie-dokie." Over the next two hours, Vanessa
testified, giving many non-responsive answers and often becoming easily distracted.
During one brief period of focus, Vanessa testified: "Dan likes to have bath time with me. He
likes to wash my pee-pee." When asked for how long, Vanessa responded, "till it hurts." When
asked how many times this had happened, Vanessa answered: "every night before bed." On
cross, Vanessa was asked if she was "making up the whole story that Dan touched you on your
pee-pee." She responded "I guess sooooo," and then appeared to become distracted again.
On the first day of trial, Vanessa and her mother did not appear in response to their subpoenas.
In monitored jail calls recorded just before trial, Dan can be heard pressuring Connie to skip
town with Vanessa before their subpoena summons date. Investigators responded to Dan's and
Connie's cabin to find that Connie's car was gone and several suitcases were missing from the
closet. An all-agency "be on the lookout" bulletin failed to locate Connie or Vanessa.

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During her case in chief, the prosecutor called Wendy to testify that she has taught kindergarten
for several years and that:
1. Vanessa said: "I don't like it when Dan touches me in my private place."
2. For the handful of days Vanessa attended Wendy's classroom, Vanessa seemed "atypically"
withdrawn and nervous for a five year old girl.
The prosecutor then called the police officer who interviewed Connie to testify that:
3. Connie said that, three nights earlier, she had come into the bathroom to find Dan bathing
Vanessa, and she appeared upset and cried, "No, please, not there! Please don't wash me
there!"
The prosecutor then moved these exhibits into evidence:
4. This excerpt from the certified (i.e., self-authenticated) copy of the preliminary hearing
transcript: Vanessa's testimony that "Dan likes to have bath time with me. He likes to wash
my pee-pee . . . till it hurts . . . every night before bed."
5. The medical records from the SART exam, which include a photograph purporting to show a
close-up of Vanessa's vaginal area. (The prosecutor subpoenaed and received an authentic
copy of these records along with an affidavit in compliance with FRE 902(11).)
The prosecutor then called Ms. Hunt, as a percipient witness and as an expert, to testify about her
qualifications, and that:
6. Her full session with Vanessa was captured on video, which is then offered by the prosecutor
into evidence.
7. Vanessa showed all the signs of sexual abuse victimization, including repression and denial,
as catalogued by the seminal child counseling treatise, Examining Children for Evidence of
Sexual Abuse, (Butler and Evans, 3d. Ed. 2015), which is a reliable authority in her field.
The prosecution rested.
The judge next asked if there would be a defense case. The defense first called its own proposed
expert witness, Dr. Randolph James, M.D., a university professor emeritus in child psychiatry, to
testify to his qualifications and that he reviewed Ms. Hunt's recorded session (provided to the
defense by the prosecution in discovery). In addition, Dr. James gave this expert opinion:
8. Vanessa, though five years old, has an unnatural, pathological preoccupation with sexual
subject matter, and a distinct predisposition and tendency to imagine or conjure sexual
situations where none exist.
The defense attorney next said that his client, Dan, would like to testify.

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9. But first, the defense wanted the judge to rule that Dan's 2003 felony conviction for child
molestation (in violation of California Penal Code 288(a)) -- for which Dan received a six
year sentence but was released after three years -- will not be allowed to be raised by the
prosecutor by question or extrinsic evidence. (Two weeks before the start of trial, the
prosecutor gave notice to the defense of the government's intention to use this conviction at
trial.)
The defense finally called Vanessa's grandmother, Ann, as a character witness to testify that she
has known Dan during his entire eleven year relationship with Connie, and that:
10. Dan is the most honest, peaceful, Christian man, who loves Vanessa as his own daughter and
would never hurt her.

All of the above-described evidence items, numbered 1 to 10, were admitted at trial.
a. Set out all appropriate evidentiary objections and responses that should have been
made at trial to this evidence. Give the full arguments made by the parties as well as
any necessary explanations of and references to the applicable Federal Rules of
Evidence (which you can identify either by rule number or by description).
b. Additionally, explain whether or not the trial judge properly admitted the evidence.

END OF PART II: ESSAY QUESTION

END OF EXAM

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