Friday, October 24, 2014

Thursday, October 23, 2014

Information on Mid-Term

There are 5 short-answer questions, each worth a maximum of four (4) points. It is worth ten percent (10 %) of your final grade. You may write a maximum of 100 words on each question.
It will be available for download from the FIU Evidence Blog ( beginning at Noon on Friday, October 24; your papers are due when class begins at 9 a.m. on Monday, October 27. Papers turned in after 9 a.m. will lose points.
Please write your answer on computer. You must work alone and may not consult or discuss the exam, your answers, or anything related to them with anyone else in the world. You may use your class notes and all course materials; you may not do any outside research or consult any additional sources.

Note on this Examination

This examination has several purposes. One is to perform a “spot check” and see how well you understand the material from the first part of the course. A second is to give you a general sense of the types of questions that will be on the final exam, although without the same time constraints.

A Note on the Hypotheticals:
The basic factual scenarios all are taken from actual cases; most underlying real-world facts and procedural and evidentiary issues are real, with some slight elaborations or changes. One case scenario/fact pattern often covers multiple questions, as indicated. When this is so, the introductory paragraphs present the basic factual and procedural situation; those facts apply to every question arising from that scenario. Subsequent questions may add additional facts or procedural issues relevant to the issue being tested in that question.
All cases are in federal court or in a state court governed by rules identical to the Federal Rules of Evidence. Names are tied (in obvious ways) to the role someone plays in the Hypo. Thus:
   Name begins with P: Plaintiff (civil)
   Name begins with D: Defendant (civil or criminal)
   Name begins with V: Victim
   Name begins with W: Witness who testifies at trial (may be multiple)
   Name begins with C: Character in the underlying real-world drama who will not be a witness
   Other characters (police officers, bystanders, etc.) are indicated at such
Read the facts carefully. While some are detailed, the questions and issues to be drawn out of each question are straightforward; don’t go looking for hidden balls. All necessary facts are provided; if some fact is not provided, that means it is not necessary to the analysis. You may draw appropriate conclusions from the absence of a fact. Do not assume facts.

Approaching Short-Answer Questions
You may write up to 100 words on each question. That is an intentionally wide figure to give you maximum room to write, although you probably will not (and should not need to) write that much on any question.  Save your words and avoid throat clearing; jump right into your answer; write as you would in making making an oral objection or argument at trial.

Answer each question in a separate paragraph, clearly identifying the question being answered at the start (write the question number in bold above the paragraph--e.g. Question 1). In a parenthetical at the end of each answer, state the number of words in that answer. You can do this by highlighting the paragraph and doing “word count” for just the highlighted portion.

Each answer should be concise, brief, and direct. A good answer will identify and briefly state the applicable rule (or relevant portion of the applicable rule) and apply it to the facts at hand to produce a conclusion with a short explanation. The questions lend themselves to short, quick answers, as if you were making, responding to, or ruling on an evidentiary objection at trial. Answer only the question asked. Note that questions will ask you to play a particular role--Proponent, Opponent, or Judge.

Good luck.

Wednesday, October 22, 2014

For Monday

Wednesday audio. Instructions for the mid-term will be posted later today; the exam will be available at noon on Friday and due at 9 a.m. Monday.

We will continue with Introduction to Hearsay and the advisory committee note on The Hearsay Problem. What are the other approaches to derivative proof and what the problems with them? Look at the basic overall structure of the hearsay rules. Then focus on the basic definition of hearsay in FRE 801(c) and the elements of what makes something hearsay. What does it mean for something to be offered to prove the truth of the matter asserted? Try to figure out the difference between a statement and an inference.

Consider the following. Chris testifies that he was on the phone with Joe the night of the murder. The prosecution wants to prove that Joe was in the boardinghouse at the time of the murder:
   1) Chris testifies that Joe said "I'm in my room at the boardinghouse."
   2) Chris testifies that Joe said "I'm sitting here in the pitch dark." Evidence shows that the power was out on the street where the boardinghouse is (but nowhere else in Nita City) from 9:45-midnight.

Is either within the basic definition of hearsay?

Tuesday, October 21, 2014


Hello everyone!

I think the following article is a good read before we jump into hearsay tomorrow. It is a good example of how hearsay makes it difficult for the factfinder to decide whether a declarant spoke truthfully.

See you all tomorrow!

Monday, October 20, 2014

For Wednesday

Monday audio.

We will finish Rulings on Evidence and the remaining problems.

We then begin Hearsay, with Introduction to Hearsay. Be sure to read the Advisory Committee's introductory note; what were the possible approaches to hearsay evidence, what are the problems with each, and why did the Committee settle where it did. Skim through all the hearsay rules as a whole to see how they all fit together. Then look closely at FRE 801(a), (b), and (c), which provides the basic definition of the concept.

Thursday, October 16, 2014

More on presumptions

In response:

If the presumption is rebuttable (as the overwhelming majority of presumptions you ever will deal with are), then evidence against both the basic and presumed facts is relevant no matter what, since the defendant has the option in how to rebut the presumption. In the rare case that the presumption is irrebuttable, the defendant could argue that once he has offered evidence and met the burden of production against one of the basic facts, evidence against the presumed fact is also relevant, just in case the presumption falls away. But the jury will be instructed to focus on the presumption first and may never have a chance (if they follow instructions, as we assume they do) to consider the evidence against the presumed fact.

From our paternity hypo (assuming an irrebuttable presumption): Husband carries his burden on the basic facts. Wife offers evidence 1) that they were not legally married (rebutting that one basic fact) and 2) DNA evidence that someone else is the father (rebutting the presumed fact); the court allows all of that evidence in. But the presumption is still in play, depending on how the jury resolves the fact of marriage, the one basic fact in dispute. So the court likely would instruct the jury as follows: "If you find that they were legally married, you shall find that Husband is the father." And if the jury finds they were legally married, it never will consider the DNA evidence. The court also may issue a second instruction, to the effect of "If you do not find they were legally married, then you may consider all the evidence to find by a preponderance whether Husband is the father."

Wednesday, October 15, 2014

Some thoughts and a questions about evidence attacking a presumed fact.

As the proponent of the basic facts for an irrebuttable presumption, you cannot make a pretrial motion to exclude evidence that attacks the presumed fact. This is because the evidence that attacks the presumed fact is relevant unless and until you meet your burden of production of the basic facts (and opposing counsel fails to meet the now shifted burden of production).

So, taking the example of an irrebuttable presumption of paternity used in class, if I wanted to exclude DNA evidence, I cannot do so with a motion in limine. I have to wait until I have established the presumed fact by meeting my burden of production on the basic facts (assuming that opposing counsel does not meet their burden of production on opposing the basic facts). Now that the presumed fact of paternity is established, the DNA evidence is no longer relevant and is thus inadmissible under FRE 401.

If opposing counsel attacks at least one of the basic facts, and they meet their burden of production (sufficient to support a finding/that a reasonable jury could find), can the DNA evidence come in?

I think it is admissible because when the basic facts of an irrebuttable presumption are in dispute and both sides have met their burden of production, the presumed fact is not established. Thus, the DNA evidence is relevant and admissible under FRE 401.

Am I correct that if this were a rebuttable presumption, then the DNA evidence could come in regardless of the basic facts?

For Monday

Wednesday audio. We will spend a few minutes reviewing presumptions, so please bring any questions with you.

A quick word about believability of Mrs. Young and other witnesses. The party trying to fight the presumption (e.g., the Insurance Co.) still will want to impeach Mrs. Young about her interest in the case and try to undermine her credibility.  The problem for the Ins. Co. is about burdens of production and the effect of the presumption, which is to shifts that burden. And the party with the burden of production cannot rely on disbelief of witnesses, but must offer affirmative evidence in support of its position. It is not enough for the Ins. Co. (which now has the burden of production) to argue that the jury might disbelieve Mrs. Young. So, yes, cross-examine Mrs. Young and ask about her interest in the case--it will be important for the jury to hear. But it cannot alone meet the burden of production.

We then will turn to Rulings on Evidence, which will focus on how evidentiary issues get argued. Note the two assigned statutes.