Wednesday, August 27, 2014

For Wednesday

Wednesday audio. Remember, no class on Monday for Labor Day; our next meeting is Wednesday, September 3.

We will continue with Character Evidence. We will start with FRE 405(b); think about when character or trait is an "essential element." As we said at the end of class, it is not honesty as a trait in a perjury case, since the only thing to prove for perjury is that the defendant lied under oath. So what does that mean? What about defamation (as in MacIntyre?) We then turn to FRE 404(b) and prior acts evidence. Move on to the reading on Conditional Relevance and FRE 104(a) and (b), which will help your understanding of prior acts.

Enjoy your long weekend.

Monday, August 25, 2014

For Wednesday

Monday audio.

No new reading for Wednesday; we will continue on Character Evidence and Prior Bad Acts. Go back and review all the questions for this section, being very precise about which provision of 404(a) something can (or cannot) come int under. Also, try to specifically figure out what FRE 405(b) does and when it applies.

Wednesday, August 20, 2014

More on Michael Brown

Everyone should read the sources mentioned in Carlos's post,; they provide a nice preview and application of character evidence and the stuff we are going to cover for about the next 4-5 class meetings. Think about these facts as you are prepping all of FRE 404.

Prof. Cassell (who is a former federal district judge) and Carlos are both likely right about FRE 403. The tilt is so strongly towards admissibility that very little is excluded purely under that rule. And the video has some apparent probative value in showing Brown might have had a state of mind that would have caused him to resist arrest. But there might be arguments to be made over how important Brown's state of mind actually is to the case. Again, it might depend on what the defense's theory of the case is and what other evidence shows.

A prosecutor might push back a bit on Carlos's suggestion that evidence of the robbery can come in some other way (the police report, witness testimony) that would be no more unfairly prejudicial than the video, so the video should clear FRE 403. Could the prosecutor argue that the video would have a unique effect on the factfinder (because of its vividness) that heightens the unfair prejudice (compare the photos you discussed in Question # 14)? Similarly, Prof. Cassell might be a bit quick in suggesting that his possible gang affiliation will come in to show a general tendency towards violence; typically gang affiliation only comes in if the events are somehow gang-related. Note the odd posture here: Usuaully gang member is the defendant, not the victim. (See Question # 28, which you'll do for next week).

Finally, note how the arguments as to the video/robbery are focused on relevance to Brown's state of mind, not the officer's. In a few classes, we will discuss why it can't come in for the officer's state of mind, under FRE 104(b). But again, we then come to the separate issue of how relevant Brown's state of mind actually would/should be.

Finally, as to "special treatment" of police officers: I probably would not phrase it that way. It's more that there is a general judicial reluctance to second-guess police officers for their snap judgments in the heat of the moment, including on the use of force; this is why it is so hard to prevail in civil rights suits. That  reluctance also might affect evidentiary rulings when officers are facing civil rights charges or civil rights claims, in deciding what is relevant and what is admissible. (For more on this view of police, we offer a course on Civil Rights Litigation).

For Monday

Wednesday audio (and I've checked, so I know this one works).

On Monday, we will continue with Introduction to Relevancy and those first assigned questions on relevancy, starting with # 7 and Slyviak's testimony about the mark on the door. What are the "holes" in Slyviak's testimony, how should the prosecutor respond, and is the testimony relevant. Again, in working through the problems, we are in a closed universe--we know/have all the evidence there is going to be in the case. Be sure to review the relevancy Problems you prepped for today.

We then move to Character Evidence and Prior Bad Acts. Read FRE 404(a) very carefully and try to parse out everything that is allowed or not. Note the one case to read (Bell). You also should begin reviewing the case file for MacIntyre and begin to familiarize yourself with that story--what are the claims and defenses in the case? Also, consider: Why exclude character evidence for the most part? Why don't we like character evidence?

Tuesday, August 19, 2014

Michael Brown's Robbery and Rule 403

            Today I came across two articles regarding the Federal Rules of Evidence (FER) and the events unfolding in Ferguson, Missouri. So I thought it appropriate to post about this matter in our evidence blog and commence a discussion.

            For a concise explanation of what happened and is happening in Ferguson, you should click here.

            Professor Paul Cassell writes about some of the evidentiary disputes that would arise if a federal prosecution of Darren Wilson, the police officer who shot and killed Michael Brown, were initiated. The article focuses on the admissibility of a video released by the Ferguson Police Department. The video shows Michael Brown pushing a store clerk and walking out of a convenience store with merchandise in his hand minutes before Officer Wilson killed him.

            The issue presented in the article is whether the video is admissible under Rules 403 and 404. Today I will just write about Rule 403 since that’s what we will cover in class tomorrow. I’m leaving Rule 404 to when we cover it in class.

Under Rule 403 the court may exclude relevant evidence if its probative value is “substantially outweighed” by, among other factors, unfair prejudice. In deciding whether to admit this video in evidence the court will balance how likely the video is to demonstrate that Brown had a reason for resisting Officer Wilson, with the possibility that a jury interprets the video as evidence that Brown was a violent person who could be justifiably killed.

            Professor Cassell and former federal prosecutor Ken White agree on the likelihood of this video being admitted in evidence. Their disagreement concerns the reason why the video would be admitted. Cassell cites to the fact that Rule 403 “strongly tips in favor of admitting relevant evidence.” On the other hand, White argues that normally such a video would have a “50/50 chance” of being admitted in evidence. However, White agrees that the video would probably be admitted but, unlike Cassell who bases his decision on Rule 403, such a decision would emanate from the fact that “cops generally get special treatment.”

            After reading this two articles I come out on the side of Professor Cassell because his opinion is based on the rules and current law, unlike White who relies on the special treatment police officers receive. As we learn in the readings for tomorrow’s class, the test for Rule 403 “tips the scales in favor of admissibility.” Principles of Evidence at 41. The video’s probative value is very high because it can demonstrate that Brown had a reason to resist the arrest. A jury may infer from the video that Brown was willing to resist the arrest because he believed he would be arrested for a robbery—in reality Brown was being stopped for jaywalking. White’s argument that the video would cause unfair prejudice because a jury may watch it and conclude that Brown “had it coming” is not entirely convincing. But even if it were true, such unfair prejudice is unlikely to “substantially outweigh the probative value” of the video. In the event a court finds for the prosecution, it is unlikely that the court would not allow evidence about the robbery to be presented to the jury. The defense could present alternative evidence that possesses the same probative value but reduces the prejudicial effects. Such evidence could be the police report that refers to the robbery incident, or a witness account of such incident. However, I don’t see how testimony from a witness or a police report are less prejudicial than the video.

P.S. I would like to know whether someone (Professor Wasserman?) could offer any insight into the alleged special treatment of police officers in Civil Rights cases. 

Monday, August 18, 2014

For Wednesday

That was a good start to the semester. My apologies; there was an error uploading the audio file.

On Wednesday, we will take a couple of minutes at the start of class to talk about the Syllabus. We then will begin Introduction to Relevance, which starts us with the fundamental concept of the Law of Evidence. Start to really dig into People v. Mitchell and prepare Problems 3-14.

Monday, December 12, 2011

Welcome to Evidence and the Evidence Blog

Welcome to Evidence and the FIU Evidence Blog. There are three posts that you must read and follow prior to our first class meeting on Monday, August 18.

To read the blog, go to; posts can be read going down from most recent to least recent. To post to the blog, go to; you can log-in with a username and password. For complete information on the purposes and uses of the blog, read the Syllabus.

To be able to post, you must register as an author and a reader. To register as an author, please send an e-mail to me ( In the subject line, type “Evidence Blog Registration;” in the body of the e-mail, please type your name and your e-mail address. You then will receive an e-mail “Invitation” inviting you to join as an author on the blog. You must follow the steps outlined in the invitation e-mail to register (under your full name, no handles or usernames) as an author. Please register under your full (first and last) name. Please do this at the beginning of the semester, as soon as you receive the invitation.

Once you have registered, take a few minutes to explore how to write a post. Note that you can put up photographs and video. You also can put web links in the text by highlighting the text you want to use for the hyperlink and clicking the "Link" button.

Name cards

At our first meeting on Monday, August 18, there will be a stack of name cards on the table in the front of the classroom. When you come to the room, please find the card with your name on it and place it in front of you at your seat. You are responsible for keeping that card and having it with you at every class throughout the full semester.

If you are not yet registered for the class (or are shopping classes), a card will be made once you have registered.

Course Materials and First Week Assignments

Please download and read the Syllabus (or from right) for complete details about the course, assignments, pedagogical approach, grading methods, and course rules. Review it prior to the first class. You should bring the Syllabus with you to every class.

Required Class Materials
1) Robert P. Burns, Steven Lubet, and James H. Seckinger, Evidence in Context (4th ed. 2010) (NITA) (Case Files for People v. Mitchell and McIntyre v. Easterfield) (Problems)
2) Federal Rules of Evidence (2014) (Wolters Kluwer) (Rules Pamphlet)
3) Graham C. Lilly, Daniel J. Capra, and Stephen A. Saltzburg, Principles of Evidence (6th ed. 2012) (West) ("LCS")
4) Additional statutes, cases, and other materials can be downloaded from this blog at right, under "Course Materials."

Assignments for First Day of Class:

1) Fed. R. Evid. 101-102, 611, 61
2) LCS 1-7, 11-16, 65-67
3) Case File: Review documents in People v. Mitchell (In Evidence in Context) Begin to familiarize yourself with the basic facts/information/characters/events of this case.
4) Damaska, Presentation of Evidence and Factfinding Precision (Blog)
5) Pizzi and Montagna, The Battle to Establish an Adversarial Trial System in Italy (Blog)
6) Asimow, Popular Culture and the Adversary System (Blog)
7) Sklansky and Yeazell, Comparative Law Without Leaving Home (Blog)

Scheduling Notes:
No class on Monday, September 1 (Labor Day)
Final Class on Monday, November 24

Additional Notes:
No laptops permitted in the classroom.

Please be on time unless it is unavoidable. Please do not leave once class has begun, unless absolutely necessary.