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.
Move to Exceptions: Spontaneous Statements, covering FRE 803(1)-(4). This will cover much of tomorrow and into next Monday.
We have made up 2 hours of the 3:45 in cancelled class. Because of room scheduling, we will have to do this in two bursts:
• Monday, November 17: 1 p.m.
• Monday, November 24: 1 p.m.
Finish Introduction to Hearsay, the move to Exclusions. Make sure you see the proposed amendment to FRE 801(d) (p.355), which would take effect in December 2026.
Monday audio. Exams are in my office for those who missed class or did not stay to pick them up.
Prep and review all of Introduction to Hearsay. We begin with the question of how we determine whether someone intended conduct (such as opening the umbrella) as an assertion; what can we consider to answer that question?
Sample answers after the jump. Points could be awarded to things that were correct but took a different path.
Numbers:
Mean: 58.25
Median: 56.5
High: 101
Some comments on repeated problems:
• REA. Too many people skipped the RE and collapsed everything into the conclusion. Alternatively, don't spew a bunch of rules together (without explaining why or how they fit) before applying. Unless multiple rules combine to form a single rule (and, again, you must explain why and how they combine), you should not cite multiple rules in a row. Cite and explain a rule and apply it, then move to the next issue (explaining why you're moving to that issue). If you find yourself spouting multiple rules in a row, stop and rework.
• If evidence is barred by 404 or 407, that does not mean it is irrelevant; it means it relies on an impermissible inference to get there. Consider # 1. The evidence is relevant. If Ferrer is a smut and prostitution peddler, we can infer (through a propensity inference) that he peddles smut and prostitution on his web site, in which case the stuff on the site is not constitutionally protected and so the jawboning claim fails; that satisfies 401. The problem is that the inference runs afoul of 404(a), which is where your analysis should go. Same with # 6. The evidence is relevant: Changing practices make it more probable Dart was aware his prior actions violated the First Amendment and more likely his prior acts violated Backpage's rights. The problem is this inference runs afoul of 407.
• The relevancy analysis (which was unnecessary) in those two questions was too cursory in any event, in that many did not think carefully about possible long inferential chains. It stopped at "this case is about whether the sheriff engaged in jawboning and Ferrer's character as a prostitution peddler has nothing to do with that." Too conclusory. An actual relevancy analysis requires you to work through inferential chains to particular facts of consequence, not the claim as a whole. So what inferences can you draw from his character and where can they lead you? You must do the work on that.
• Stop using adverbs (as I said in the Good Writing post). Many of you changed legal standards by throwing in unnecessary adverbs and adjectives. If you are making a relevancy argument, you don't have to show the evidence has "high" probative value or "substantial" probative value or is "highly relevant;" so don't use those words. In fact, they undermine your case. What happens if the judge concludes the evidence is "relevant" but not "highly relevant?" Do you lose? Why make life hard for yourself?
• Don't make up facts and law. You had a specific legal standard. But many spoke in different terms with different legal meaning. For example, the legal issue is whether Dart knew or acquiesced in Smith's violative actions (sending the letters); that is not the same as whether Smith acted in her official role. Be precise and use the law you were given.
• Questions are not evidence and therefore a question cannot be inadmissible. The issue is whether the evidence sought by the question is inadmissible. Not the same thing. This affects citation--if explaining whether evidence is admissible, talk about the evidence (the witness answer), not the question. As always, precision matters.
• Don't talk about the other side. Make your arguments to issues, not to the other side.
• Question # 6: It is not enough to declare something a subsequent remedial measure. You must discuss the measure and explain why it satisfies the elements of 407--that it occurred after the injury and why it would have made the harm less likely.
• Many, many people stated the 401 standard properly ("more probable than without") than wrote "more probable than not" in their analysis portion. Proofread.
• Note that 406 and 404(b)(2) do the same thing--a way to admit other acts evidence. 406 is direct--it comes in for action-in-accordance, if a habit or routine practice. 404(b)(2) is indirect--it comes in for a non-action-in-accordance purpose. You thus don't need both. If you have a routine, you can get it in for propensity; no need to do the 404(b)(2) work.
• Separate habit from routine practice. The latter need not be semi-automatic or non-volitional.
• Question # 3 was tricky (thus more words and more points). The key was to separate the evidence (the letters) from the foundation issues (Dart's connection to the letters and Smith's testimony about sending them) the attorney raised in the objection. It moves in 3 steps. The letters are relevant to (in fact, they constitute) a violation--they show Smith jawboning. But these threats are relevant only if Dart approved the letters (given the substantive law). So now you have to find a way to link Dart to letters from Smith. That is where 104(b) comes into play--you need PSSF that Dart approved these letters. But we know he didn't approve them; we only know what Smith generally does with letters under Dart's policies--which is impermissible other acts to show action in accordance ("he approved of past letters therefore he approved these letters"). And that is where 406 comes into play--the office's general practices show his approval of these letters, thereby establishing the conditioning fact. The letters themselves are not evidence of routine practice. The letters are the evidence; routine practice (via Smith testimony) establishes the foundation.
We will finish Rulings on Evidence, beginning with Question # 114--why can Jesse raise the proper argument (it fits a hearsay exception) on appeal when she did not make the argument at trial?
We then move to Hearsay, which will take us through the rest of the semester. For Monday and Tuesday, prep Introduction to Hearsay. Be sure to read the Introductory Note to the Committee Notes, The Hearsay Problem. What are the four possible approaches to hearsay, what are the drawbacks to each, and why did the committee adopt the approach it did?
Monday audio. No class next Monday. Prelim Exam due at the beginning of class next Tuesday.
We continue with Rulings on Evidence. This will take us through all or most of class next Tuesday. We then will begin Hearsay the following week.
Instructions. Regular type; Large type.
Due at the beginning of class on Tuesday, October 21.
