Thursday, October 30, 2014

Mid-Term Answers

Exams are now available for pick-up outside my office. I am happy to meet with anyone to go over  the papers; just please redact the exam number.

A couple of general comments:

1) Don't fight the facts. Everything you need to answer the question is provided. If I didn't give you any facts, they are not important to the question. Whenever you start saying "assuming ___", stop.

2) Use the text of the actual rule as the starting point for your answer, rather than your potentially confused notes about what it says.

3) Several of you did not follow directions and provide word counts.

4) A complete answer explains the rule and applies it to the facts. If all you said was "under Rule 401, the evidence is irrelevant" without explaining what that means or what 401 says, you got less than full credit. Similarly, if all you said was "the evidence is admissible because it is relevant," you got less than full credit. Give me the rule, apply it, and tell me why it applies that way. You can do all that in 100 words, especially if you avoid repeating yourself and you avoid throat-clearing. Just dive into the answer with a rule, an explanation, and an application.

Sample Answers:

1) The motion is granted; the evidence is excluded. FRE 408(a)(1) prohibits evidence of “furnishing . . . a valuable consideration in compromising” a claim to prove the validity of a disputed claim or charge. The evidence of the settlement cannot be offered to show that Doodman was responsible for Vilson’s death and is guilty of the crime charged, the only possible relevancy on these facts. This does not fall within the exception in FRE 408(a)(2), because this is not conduct or statements during negotiations and the settlement was not of a claim brought by a public office or agency.

2) The evidence is irrelevant and thus not admissible (FRE 402); evidence is only relevant if it has any tendency to make a fact more or less probable than without the evidence where the fact is of consequence. (FRE 401). Doodman’s adoption has no logical connection to whether he was impaired or intentionally failed to provide aid following the accident. Even if relevant, the evidence should be excluded because the minimal probative value is substantially outweighed by the danger of unfair prejudice. Adopting his 42-year-old girlfriend makes Doodman look bad and may cause the jury to dislike him.

3) Statements that Doodman “smelled of alcohol” and having to roll down the window because of the smell of alcohol are both admissible under FRE 602, because the officers are testifying to what they perceived and did during their encounter with Doodman. The statement that Doodman “seemed intoxicated” also is admissible. A non-expert may testify in opinion, if rationally based on perception and helpful to the jury's understanding (FRE 701(a), (b)). “Intoxicated” is a characterization of Doodman’s behavior, based on the officer’s perception. The statement that Doodman “appeared impaired” is inadmissible, because the legal condition of impairment is not one the officer perceived.

4) Under FRE 404(a)(2)(A), the defense in a criminal case may offer evidence of the defendant’s pertinent trait to show that he acted in accordance with that trait on a particular occasion. The traits of being “caring and careful” and of never knowingly ignoring or failing to help are pertinent in this case, making it less likely that Doodman would intentionally fail to give aid to a person knowing that person was in danger. Under FRE 405(a), character traits may be proven by testimony in the form of an opinion, here Wore’s opinion as to Doodman’s character.

5) The Prosecution carried its burden of production that Doodman’s BAC was above .08. The burden of production shifted to Doodman, who did not rebut the basic fact (BAC) or presumed fact (impairment). This is a criminal case, so the court cannot instruct the jury to find a fact against the defendant. Impairment is an element, so the court instructs that the fact be proven beyond a reasonable doubt.

“You may, but need not, find that Doodman’s blood-alcohol level is sufficient evidence of impairment. But impairment must, on all the evidence, be proved beyond a reasonable doubt.”

Wednesday, October 29, 2014

Standards of Persuasion

This post begins from a discussion of standards of proof in university sexual assault proceedings. But it offers a nice overview of standards and the rationales for using different ones for different types of cases or claims.

For Monday

Wednesday audio.

We will continue with Introduction to Hearsay, starting where we left off with Question # 150. If the plaintiff wants to show that she would have been hired, how does she frame the relevancy argument to avoid the hearsay problem? We will finish with those problems, then move on to Exclusions, which focuses on FRE 801(d). Note the pending amendment to FRE 801(d)(1)(B) (p. 330 in the pamphlet). Remember that Exclusions mean these statements are not within the FRE 801(c) definition of hearsay and thus are not barred by the general rule.

No new reading, but be sure to review everything you prepped for today.

Tuesday, October 28, 2014

Reply to Daniel's Bank Witness Post


I actually saw this in action over the summer interning at a courthouse.  The process for how these documents get submitted as evidence all seemed very informal to me.  All the attorneys that do these foreclosure type cases are typically in and out of the same chambers on a weekly basis.  The attorneys for both plaintiffs and defendants all seemed to personally know the representatives that these banks are sending as "witnesses" regularly.  I even spoke with one representative from a bank who told me that his entire job consisted of just testifying and certifying the endorsements/documents in foreclosure proceedings up and down the State of Florida for one bank in particular.

Generally, I noticed that the representatives were anyone who could show up that day to court.  It could be anyone from a secretary, someone in human resources, even a mail room attendant once, but rarely an actual records custodian (or someone that had a comparable title or that actually handled/managed any of the documents).  It may depend on how lenient the jurisdiction is.  It seemed to me that these witnesses were handed a stack of papers right before walking into chambers, glanced them over, walked into the court room,  and then testified that they were true copies held in the ordinary course of business, and usually that's it.  No other questions asked.  I saw this most frequently with loans and bank notes that had passed through the hands of numerous lenders, and now the bank or insurance company is trying to prove history of lack of payment to a prior lender.

How is it that a rep/witness from one company can testify to what some other company before them did or had records of?  I'm still not sure procedurally how it works, but I did see it happen plenty of times this summer and the evidence was allowed.  Seeing it in action, the whole process doesn't seem very efficient or reliable to me.  What is the point of the witness?  Is it just about the formality of having someone under oath to blame if the records aren't real or are faulty?  It would be interesting to see how this plays out with the hearsay rules as this is such a common practice by these foreclosure attorneys.

I came across this article earlier this summer, but I think it is of some value in explaining more thoroughly.


Monday, October 27, 2014

Foreclosure Documents as Hearsay Evidence

This is an article from the Daily Business Review. As you might expect, mortgage records are crucial evidence in a foreclosure case. When banks became unable to "robo-sign" documents, some resorted to bringing in witnesses who had little-to-no knowledge of the mortgage documents that they testified about. Some courts have begun to consider that testimony to be inadmissible hearsay.

Foreclosure Reversal Issued in Case with 'Robo-Witness'

(If you are not registered with the Daily Business Review, then you may need to register in order to view the article.)

For Wednesday

Monday audio.

On Wednesday, we continue with Introduction. 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?

We then move to Exclusions and FRE 801(d). Note the amended version of FRE 801(d)(1)(B), which appears later in the rules pamphlet; this is an amendment that will take effect on December 1.

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?