Thursday, September 3, 2015

Can Batman Testify?

A fun discussion. Some of it is more Crim Pro than Evidence, but still interesting. At about the 19:00 mark, they get to whether Batman can testify with his mask on--this actually comes up a lot with Muslim women testifying with their heads and faces covered.

Wednesday, September 2, 2015

For Wednesday

Wednesday audio.

We will complete the final questions on Character, beginning with # 35. Consider carefully the effect of Joe not having been charged with the prior shooting. Also, imagine that he had been convicted or pled guilty to the prior shooting; how would that affect the 104(b) analysis?

We then move on to Habit, Custom, and Character and FRE 406. Read the Committee Notes for this rule carefully, to see the distinction it draws between character and habit and to see the examples of "habits" the committee identifies.

Have a good weekend.

Monday, August 31, 2015



From the brief article I read about the verdict and case:

The fact finder found the accused had consensual intercourse with the victim. However, the accused and the victim both testified that they did not have intercourse. The consent question was addressed when evidence was presented that the victim consented to some acts but not all acts. The victim’s sister testified that the victim was willing to do some things with the accused. The jury’s weight of the all evidence seems strange to me. I understand he said she cases are hard to win in court. Consent is especially hard to prove when the victim is not incapacitated. The jury didn’t believe the victim’s testimony about the events and they didn’t believe the accused presentation of the evidence but somehow the reached a verdict beyond a reasonable doubt. I gleam that the stigma of the tradition of sleeping with young girls before graduation may have tipped the balance.  I don’t have all the facts and I my opinion is based on a brief article, so don’t take my assertions as fact. I didn’t follow the case closely.

For Wednesday

Monday audio. Remember that you may not leave the classroom once we have begun unless you have previously received permission from me.

We will continue with Character Evidence/Prior Acts, then combine it with Conditional Relevancy. What are the distinct realms and standards covered by FRE 104(a) and 104(b)? What does "proof sufficient to support a finding" mean? How do FRE 104(a) and (b) match with the first prongs of the Bell approach to the 404(b)(2) analysis?

Sunday, August 30, 2015

Prosecution failed to meet its burden

I am not sure if I see the issue in AP's statement that Professor Wasserman is referring to, but here goes:

Initially, the prosecution bears the burden of production (and the burden of persuasion) to prove beyond a reasonable doubt (standard for criminal cases) that the defendant committed all elements of the crime. When, and only if the prosecution succeeds in meeting its burden, then the burden shifts to the defendant.

With that in mind, the prosecution may have failed to prove beyond a reasonable doubt that the defendant had committed the alleged crime/act (which is probably why the defendant was acquitted of the sexual assault charge). Therefore, although the prosecution may have failed to meet its burden (and thus he was acquitted), AP's statement makes it sound like he was acquitted because the jury did not find the victim credible (read: she was lying). A better phrasing could have been: "The jury's verdict signaled that the prosecution failed to prove beyond a reasonable doubt that the defendant committed the act." This is a whole lot different than stating that the jury signaled it did not believe the victim.


Can a minor properly consent?


Can a minor properly consent to intercourse? I think not. Therefore, the jury probably came to the wrong decision regarding the sexual assault charge. Given that the defendant was convicted of the misdemeanor of having intercourse with a minor, it follows that he should have also been convicted of the felony of sexual assault (defined as non-consensual) as a matter of law.

Saturday, August 29, 2015

What's wrong with this statement?

From the Associate Press, talking about the mixed verdict in a sexual assault prosecution of a New Hampshire high-schooler: He was convicted of the misdemeanor of having intercourse with a minor, but acquitted of the felony of sexual assault (defined as non-consensual): (Hint: Think in terms of evidence, not the details of substantive state criminal law, which are somewhat unique in this case).

The jury by its verdict Friday signaled they didn’t believe Labrie’s assertions that he and the girl didn’t have intercourse but also didn’t believe her contention that it was against her will.

We will discuss burdens of production and persuasion later in the semester. But consider whether this statement is accurate and why or why not.

Wednesday, August 26, 2015

For Monday

Wednesday audio.

We continue with FRE 404 and Character Evidence.

We will pick up with FRE 405(b) and the idea of character-in-issue. I will emphasize here, and again in class, how narrow this is. It only applies when character is an enumerated element of the charge, claim, or defense; it does not apply when you are using character to prove something else. So it is extremely narrow, as we will see with other examples. What about defamation--is character in issue there? What about the defamation claims in MacIntrye?

We then turn to FRE 404(b), which deals with using specific instances of conduct to show action-in-accordance (distinct from how they may be used under FRE 405(a)). Read the list of permissible uses in FRE 404(b)(2) with care and think about how prior acts evidence might be relevant to one of those permissibleuses. Read US v. Bell, which illustrates how courts approach this rule.

Go ahead and prep Conditional Relevance and FRE 104(a) and (b), which will merge with the 404(b) discussion.

Monday, August 24, 2015

For Wednesday

Monday audio.

We continue with Character Evidence and Prior Bad Acts, starting with the exceptions in FRE 404(a)(2). In working through these problems, identify the precise provision and clause under which each piece of evidence might come in.

Some questions to consider:
   • How does FRE 405(a) interact with FRE 404(a)?
   • What does it mean for character to be "in issue"? (see the discussion of this in the committee notes to FRE 405)
   • There appears to be overlap between FRE 404(a)(2)(B) and 404(a)(2)(C). Are they redundant of one another? Or is there some evidence that could come in under (C) that could not come in under (B)?