Friday, November 28, 2014

Let the questions begin

How can you bring in 701, because it says opinion, can you have an opinion as to a persons character, and if so, how does that not conflict with character.

Yes, you can have an opinion about a person's character, based on the witness' first-hand experience interacting with that person (e.g., Kelly can believe Mrs. Easterfield is "something of a liar" based on her experience working for her).

Remember that sometimes character evidence is admissible--within the limits of FRE 404(a)(2) and 608(a). So when character evidence is admissible, it can be proven by opinion (See 405(a) and 608(a)).

Monday, November 24, 2014


Monday audio.

The Q&A session is at 10:30 a.m. on Tuesday, December 2, in RDB 2007. The exam is at 1:30 p.m. on Wednesday, December 3.

Remember to post questions here or to me via email.

Information on the Final after the jump.

Friday, November 21, 2014

Films for Finals

In studying for finals, I thought it would be fun to watch legal films to see whether I understood the objections during the courtroom scenes. I watched Bananas (1971). This is a fun film by Woody Allen that parodies law and government by using exaggerated representations of politics, the media, and the judicial system. The film is on Netflix, but here is a clip from the courtroom scene where Woody Allen’s character, Mellish, is on trial for treason after participating in anti-Vietnam War demonstrations to impress a woman.

Evidentiary issues:
1) The prosecutor calls an officer to the stand in their case in chief who discusses Mellish’s criminal record. Mellish should have motioned to strike the officer’s statement, “he has a record; he was always being picked up at one demonstration or another,” under FRE 404(b). “He’s a bad apple – a commie,” should have been stricken pursuant to FRE 404(a).
2) The second witness introduces a recording of one of Mellish’s phone calls. The witness is asked whether, in his opinion, Mellish is a threat. It looks like the only issue here is FRE 404(a). The prosecutor cannot introduce evidence of Mellish’s character unless or until Mellish opens the door by offering evidence of his pertinent traits under FRE 404(a)(2)(A) mercy rule (there were no victims for FRE 404(a)(2)(B) to apply). However, if Mellish had opened the door prior to this scene, the evidence would be admissible. The witness offers an opinion in accordance with FRE 405(a), and the recording of Mellish’s call is not hearsay. The call is introduced because it is relevant to show the Federal government tapped Mellish’s phone, as the witness stated in laying the foundation. Thus, the audio clip is not being offered to prove the truth of the matter asserted because the clip has independent logical relevance. To prove the Federal government tapped his phone, it does not matter what is said on the call. All that matters is that the call was from Mellish’s phone.

There are more issues, and my analysis is not complete because there are two sides to every piece of evidence. You should watch the clip and look for more, or check out this list of other great legal films! Happy studying!

Wednesday, November 19, 2014

For Monday

Wednesday audio.

We will spend Monday going (fairly quickly) through Confrontation Clause. Think about the connections between the Sixth Amendment and the hearsay rules. Try to chart out how the Confrontation analysis works.

The Q&A Review session will be on Tuesday, December 2 at 10:30 in RDB 2007. Come armed with questions. And again, I am available in my office or electronically for questions.

Monday, November 17, 2014

Evidence in the states

This story tells of a 2013 state-court case in California, in which the attorney for a school district was able to admit evidence of a 14-year-old girl's sexual history and offer evidence and argue that she consented to sexual relations with an adult teacher. The suit was a civil action by the victim against the school district.

This evidence was permitted because of two features of California law. First, California's equivalent of FRE 412 applies only in criminal cases, whereas FRE 412 applies in both civil and criminal proceedings. Thus, while the teacher (who was convicted of lewd acts against a child) could not offer such evidence in the criminal proceeding, the school district could in the civil proceeding. Second, under California law, the age of consent in criminal cases is 18, but is indeterminate in civil cases, allowing for the possibility that someone as young as 14 can consent, even with an adult. As a result, consent was a relevant issue and there was no bar to using evidence of the victim's sexual predisposition to prove consent.

Ultimately, it did not matter, because the jury resolved the case by concluding the district was not aware of the teacher's actions. The girl is appealing, certainly arguing that the evidence was so outrageous that it could not be harmless.

FRE 803(5) explained

From one of your colleagues; this captures it perfectly:

1. Ask the witness the question
2. the witness doesn't remember
3. show the witness the record to refresh their memory
4. if it does, you don't need to go any further with the record
5. if it doesn't.... then 803(5) must be satisfied

My question is, 803(5) does not have to be satisfied for them to look at it while on the stand, but they wont actually read it aloud unless 803(5) is satisfied? Correct

If it is, then "reading it into evidence" means that the witness reads it and it becomes part of their testimony? Correct

And, if the person reading the record is a party, and the adverse party is the one offering it, the physical record may be admitted into evidence and the testimony comes in under 801(d)(2)? Correct

Further explanation on the initial effort to refresh: You can use many, many things to refresh recollection, to show a witness just to trigger her memory, although that does not come into evidence. So a document can be used as a trigger, even if it does not satisfy 803(5). The classic example is showing the witness a plate of pasta to let the smell trigger her memory (assuming she was eating pasta when she saw whatever she is testifying to). The plate of pasta does not come into evidence, it just allows the witness to testify.

FRE 803(5) comes into play with documents when you are unable to successfully jog the witness' memory. The rule than allows the witness to read the record into evidence, as her testimony.

For Wednesday

Monday audio.

We will continue with the hearsay exceptions involving unavailable declarants. Picking up on Questions ## 214-215: What happens if the prison refuses to allow Jesse to take Holman's deposition? What happens if Holman asserts the Fifth Amendment and the court accepts the assertion? What happens if Holman asserts the Fifth Amendment and the court does not accept the assertion?

Do the problems for Layered Hearsay and Catch-All Exception; we will work through those problems.

I hope to begin our discussion of the Confrontation Clause. For Wednesday, just read Crawford v. Washington.

Wednesday, November 12, 2014

For Monday

Wednesday audio.

We will pick-up with Question # 201 and the admissibility of the desk calendar under both FRE 803(6) and 803(5); what elements must you show. We will continue with the Documentary Exceptions.

Prepare the next two sections--Other Documents and Statements and Declarant Unavailable. I hope to get to the latter section near the end of Monday and spend all of Wednesday on that material.

Monday, November 10, 2014

For Wednesday

Monday audio.

We will continue with Question # 226 and how the plaintiff could fit it into 803(2). Also, does anything strike you as strange here in trying to show the timing of Kelly statements to Jessie?

We will finish the problems on Spontaneous Statements, then move on to Documentary Exceptions; please note the amended versions of FRE 803(6) and 803(7) in a separate section of the rules pamphlet.