Evidence in the Adversary System

For your leisure-time reading: Prof. Alex Nunn (Texas A&M) argues that judges should exercise greater authority to sua sponte enforce the rules of evidence, even absent party objections. Adversarialism (in which parties control evidentiary issues, absent concerns for plain error) fails to produce the accuracy-of-verdicts that the rules of evidence seek. Judges thus need to take a more proactive hand in ensuring the evidence rules are maximally enforced, with the goal of greater accuracy.

Final Exam Instructions

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Format:

This Final Examination will be administered over fifteen days. It will be available to see and download beginning at 12:30 p.m. on Tuesday, November 25 from the blog (fiuevidence.blogspot.com). It is due by 4:30 p.m. on Wednesday, December 10, in hard copy at my office.

The exam consists of nine (9) Short-Answer Essays. Six (6) are worth twenty (20) points each; three (3) are worth thirty (30) points each. The exam is worth 210 points towards your final grad.

You may write up to 500 words on each question unless a question indicates otherwise.

The first page of your exam answer must be a cover page containing your Blind ID #; begin your answers on the second page. Staple the pages (no paper clips or binder clips). Please begin each answer on a new page. Double space your answers.

 

Each answer must include the word count for that answer, as described below. Two (2) points will be deducted from any answer not followed by a word count.

 

Once the exam becomes available, you may not discuss it, the questions, the answers, or anything about it—in any oral, written, non-verbal conduct intended as an assertion, or other form—with your classmates, me, any faculty member, your friends, your family, strangers, pets, extra-terrestrials, inanimate objects, or anyone in the known universe. Please respect your classmates, yourself, me, and the legal profession by adhering to this rule.

 

The use of ChatGPT and other generative AI, LLM, or similar programs is prohibited and will be deemed a violation of College of Law and university academic policies.

 

[Continue after the jump]

For Monday, November 24 (Final Class)

Tuesday audio. We have about 45 minutes to make-up on Monday, but I also want people to be able to attend Karaoke at 12:30 on Monday. So here is what we will do: We will start at 1:30, go into our regular class at 2, then stay a few minutes after 3:15, if necessary. Those of you in Prof. Roman's 3:30 Ad Law class can leave at 3:15; you won't miss anything too essential.

The final will post at 12:30 on Tuesday, November 25 and will be due by 4:30 p.m. on Wednesday, December 10, outside my office. You may turn it in sooner than that. The idea is that you can work on it throughout the 2+-week period.

A quick clarification on the Mass schedule. Several people asked about FRE 406 for this. But that addresses a different issue. FRE 406 allows evidence of the Church's regular practice ("we hold mass at 10:30 every Sunday") to show that it held mass at that time on Sunday, July 17. So if plaintiff asked Taylor on the stand "what time did you hold Mass during the summer," 406 would allow his testimony to establish that mass occurred at the time on July 17. FRE 406 allows plaintiff to prove the same fact via the same inference through the schedule. But doing so via the schedule raises a distinct hearsay problem, which is what we were dealing with. In other words, 406 controls what can be proven and through what inference; the hearsay rules control whether the particular piece of evidence (an out-of-court statement) can be used to prove the fact through that inference.

Review Declarant Unavailable, then prep Residual Exception (FRE 807) and Layered Hearsay. For Layered, let me get this idea out front, as several people have raised it outside class:

    FRE 805 requires that every layer (each statement by each declarant) must be admissible under the hearsay rules. Several people have been confused by what happens if some layer is not admissible; the answer is it depends on which layer fails--the one farthest from the witness or closest to the witness.

        If the problem is the outer layer, the inner layer may be ok, at least to the extent the declarant goes  beyond repeating the outer declarant. Consider # 227. Kerry's statement ("I remember leaving it in the library") was not admissible, therefore Kelly's statement repeating that is not admissible. But the other portion of Kelly's statement ("the pendant turned up") is admissible, so Jesse can testify to that Kelly having said that.

        If you lose the inner layer, the outer layer is also lost because the witness did not hear the outer layer and cannot testify to what the outer declarant said. That may eliminate part of the outer statement. Consider # 192. Brooke's whole statement ("Joe shot Leslie with a revolver") was admissible under 803(1) and (2) and 801(d)(1)(C); but the neighbor could not repeat the "Joe shot" part because it was not admissible under 803(4) (the only basis for admitting the neighbor statement repeating Brooke's statement). So the paramedic can testify only to the admissible portions of the neighbor's statement (those pertinent to medical diagnosis) repeating Brooke's statement--Leslie was shot with a revolver.  

                Or it may knock out the whole thing. Consider Ross's testimony about his conversation with Zanoni, if offered to show truth (that Jesse stole, so Ross did not make false statements). Zanoni telling the entire story to Ross is TMA with no exception, so it cannot come in. And since Ross did not hear what Jesse said, neither can Jesse' portion.

                Alternatively, the inner declarant (if possible) can testify to what the outer declarant said (e.g., Zanoni can describe his encounter w/ Jesse; the neighbor can testify to Brooke's entire statement). You eliminated a layer of hearsay. 

For Tuesday, November 18

Monday audio--Part I, Part II. We will do another 50 minutes at 1 p.m. next Monday.

We pick up with the coroner's report and the extra declarant (Brooke). Then look at # 199 (the Mass schedule). Think hard about relevancy, the obvious answer, the problem with the obvious answer, and the less-obvious (but more correct) answer.

Then move to Declarant Unavailable. Prep that entire section, paying close attention to the many ins-and-outs in Question ## 215-216. 

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Hearsay Review

This paper from Prof. Franklin Rosenblatt offers an excellent review of basic hearsay, including when a statement is offered TMA.

Part I offers one statement and shows how TMA depends on the very different fact(s) you can try to prove with that statement. Part II gives 31 examples and asks whether they are hearsay; test yourself.

For Monday, November 17

Monday audio. No class on Tuesday. Next Monday, we will do an extra hour (1-2, followed by regular class. Judicial Lecture at 12:30 on Wednesday in the Large Courtroom.

Quick point on Question # 227: Kelly's statement (the inner declarant) is admissible; Kerry's statement (the outer declarant) is not. So Jesse can testify to Kelly saying she had found the pendant; she cannot testify to what Kelly said Kerry said. 

For Monday, we will finish the final problems on Spontaneous Statements, then prep Documentary Exceptions and Other Documents. We will get to Declarant Unavailable later on Tuesday.

For Monday, November 10

Tuesday audio. No class next Tuesday, November 11. Lunch time make-up at 1 p.m. on Monday, November 17 and Monday, November 24. Moot Court semis at 6 tomorrow; Finals at 6 next Wednesday (Nov. 12). Judicial Lecture at 12:30 p.m. next Wednesday, November 12.

Most of Monday will be spent on Spontaneous Statements, but we might get to Documentary Exceptions towards the end. Otherwise, we will get to it the following Monday make-up and regular class.