We begin where we left off on FRE 609. What is the difference between the balancing in 609(a)(1) and (a)(2)? Prep and review Prior Inconsistent Statements and Impeachment Review. I hope to finish Impeachment by Monday or early Tuesday, then move to Trial Process.
I expect to distribute the Prelim Exam on Tuesday, October 14, due in class on Tuesday, October 21. You will have one week, including a Monday that you will not have this class.
Monday audio--One long recording. I expect that a normal class will not produce the traffic we saw today.
Review Character and prep Prior Inconsistent Statements. As you work through these problems, keep the Tom/Ira/Andrew framework in mind and identify who is who. Is there a difference between a "dishonest" act and a "false" act for 608 purposes?
On FRE 609, note that a proposal circulating in the Rules Committee would add the word "substantially" before "outweighs" in FRE 609(b)(1)(B).
Monday audio. Double session on Monday, September 29, with a slight change: We will begin at 1 p.m. (not 12:45), then go straight through until 3:15. We will make up the exra 15 minutes at some point.
In class I mentioned Florida's "other sex acts" rule: Florida § 90.404(2)(b)1, an exception to the other-acts rule for child molestation (not adult sexual assault).
Prep and review everything for Witnesses. Then prep Impeachment: Introduction and Impeachment: Character. We will identify 14 aspects of witness credibility that can be attacked or supported; this is a further breakout of the aspects described in the C&S reading.
Tuesday audio. No class on Tuesday. Our first make-up will be at 12:45 on Monday, September 29.
We will finish Sexual Assault. How does the changing paradigm of sexual assault change the effectiveness of FRE 412(a) in protecting victim privacy?
Prep Relevancy Review, which offers a nice capstone to the 400 rules. Then prep all of Witnesses, which will take us through next Monday and then our double session the following Monday.
Our next two sections are Witnesses and Impeachment. The Preliminary Exam will cover through and including Impeachment. So expect it to post sometime in early-/mid-October. It is a one-week take-home, consisting of 6-7 short-answer essays.
Texas appellate courts overturns conviction where prosecution offered evidence defendant wrote and performed rap.
Monday audio. Constitution Week panels tomorrow and Wednesday; both at 12:30 in RDB 1000. We will look for some make-up times for 9:30, TBD. Our first make-up will be at 12:45 on Monday, September 29.
Prep 411 and 408; we will begin with questions 51 and 52, then move to FRE 408. Spend time trying to parse the rule and what is going on.
Prep Sexual Assault, covering FRE 412 (Rape Shield) and FRE 413-415 (special propensity rules).
Tuesday audio. Again, happy Leslie Thompson Mitchell Day to all who celebrate.
Couple clarifications:
1) Nothing "comes in" under FRE 104(a) or (b). Those are simply rules allocating responsibility for deciding issues.
2) On the connection between FRE 401 and 104(b): You have to determine relevancy under 401 first, walking step-by-step through the inferential chain. In doing so, you may recognize that the inferential chain works only if some outside fact is true. That is when you look at 104(b). For example: You have the key and want to prove Brooke set Leslie up--what is the inferential chain? And what fact do you then see that the chain requires?
3) The text of FRE 406 does not allow evidence of a person's routine practice. The point we made in class was that some courts have been a bit more forgiving on this even if the act does not qualify as habit (e.g., evidence of stopping for the same drink on the way from work every night). The only way to understand that is the court--atextually--allowing evidence of a person's routine practice. It may not work (and won't if the court actually reads the rule). But you can try it, depending on what courts in that jurisdiction have done. Just recognize what you are doing.
We continue with Habit. Then move to Policy-Based Exclusions; for Monday, prep FRE 407 and 409; we will do FRE 411 and 408 on Tuesday.
On FRE 407, consider the admissibility of the following and for what:
1) A purchased product in 2020; the accident occurred in 2021; ∆ redesigned product in 2022
2) A purchased product in 2020; ∆ changed product in 2021; accident in 2021
3) A purchased car in 2020; accident (involving steering problems) in 2021; redesign brakes in 2022
Someone is going to be a judge asked to decide the 104(b) issue on Question # 32. How do FRE 104(a) and (b) map onto the two questions for FRE 404(b)(2)? Be ready to argue both parts of that test as to the remaining other acts questions.
Then move to Habit and FRE 406.
