Thursday, December 7, 2017


   In regards to 803(8), if the report is by a government agency, and fits under the requirements (what is in rpt/if offered in crim/civil case reqs), then the report is automatically admitted? 
  Do you need someone to read it into the record? Or is that where 803(5) would come in and if the person doesn't remember the report because they make so many of them and seeing the report wouldn't refresh their memory, then they can read it in. Would there ever be a situation where the entire report can come in? 

If the report satisfies 803(8), it comes into evidence. A witness may testify about the contents of the report, just as any witness can testify to what she heard a declarant say. But the report comes in as an exhibit and the jury will be able to see the report in addition to hear the witness talk about it.

If the record is not admissible (whether because it does not satisfy the requirements of 803(8) or because of Confrontation concerns), it does not come into evidence. The person who made the report or observed/tested the things described in the report can testify to what he knows, using the report to refresh his recollection under 803(5). But the jury will not see the report.

Last-minute questions

I will be in my office, available by email, and available by blog to answer questions until noon Friday.

Good luck and try to have some fun with the fact pattern.

Wednesday, December 6, 2017

More Answers

(1) Does the 10 yr rule apply to bringing in prior sex charges/convictions under FRE 412-15?
 Do those rules say anything about 10 years? Then what is the answer?
(2) In a hearsay within hearsay analysis, I understand that if one layer doesn't come in, every hearsay layer that comes after it cannot, but what if part of a layer can be admitted along with every other hearsay layer?  I.e. what happens if only a portion is admissible and so are the hearsay layers before and after that one problem layer? Does the chain of hearsay layers break even if only a portion of one layer cannot come in?
 You can always break a statement (or an utterance with multiple statements) into pieces and only let some in and not others, if they all satisfy the rules. We saw this with the problem involving the neighbor and the paramedic. "Joe shot Leslie with a revolver" was ok from Brooke to the Neighbor; but the Neighbor to the Paramedic (admissible only under 803(4)) could only say that Leslie was shot with a revolver, but not identifying Joe (which was not pertinent to medical diagnosis or treatment). So the Paramedic could only testify that the neighbor said Brooke said Leslie was shot with a revolver.
(3) As a follow up to my last question about how to answer hearsay questions, I just want to confirm that we should not address relevance (rule and its application) unless it is an issue?

You have 150 words. Answer the question asked.

Tuesday, December 5, 2017

Hidden Assertions

I have a question regarding hidden assertions. I understand that there are hidden assertions within questions, such as, "has it stopped raining?" The hidden assertion is that it was raining before. Is this limited to questions? I know that commands are not assertions, but can there be a hidden assertion within a command, such as, "stop speeding." The hidden assertion would be that the person was speeding before?

It could be, depending on the context. If a police officer pulls over a driver and tells him "stop speeding," that asserts the driver was speeding. A public-service announcement to the world to stop speeding would not be. You also could have a hidden assertion in an exclamation ("Oh no, oh no, Joe").

Monday, December 4, 2017

Questions and Answers on Presumptions

Question in Bold; Answer in Plain Text
If the party with the initial burden of production (Party 1) shift the burden (because the applicable law says), and then party 2 meets that burden by producing rebuttable evidence that a reasonable jury could find that the issue/fact doesn't exist, does the issue always then go to the jury, or does the burden of production ever shift back to Party 1? 

It depends on what the substantive law says. Under 301, the case goes to the jury and the burden does not shift back. In employment-discrimination cases, the burden does shift back.
Also, I think I'm getting caught up on the burden shifting and presumption. Unless the law states otherwise, the burden of production doesn't shift and the party with the burden just has to meet that burden, correct? Would the only times (that we have discussed) that the burden shifts be with a presumption stated in the applicable law? I think I am confused because of the two examples we did in class, one with the Nita Insanity Defense, and the other with the basic facts needed to prove the presumed fact of fatherhood. 
No. The burden of persuasion doesn't shift. In the paternity example, the burden of production shifted when the proponent (the Husband in our hypo) offered sufficient evidence on the basic facts. The insanity hypo was unique because it separated the burden of persuasion from the initial burden of production--the defendant bore the initial burden of producing evidence of insanity, which shifted the burden of production to the prosecution and the burden of persuasion.
If the law says that the party has the initial burden of persuasion AND production, that is when that party has to do something to direct the presumption at the adverse party, such as with the paternity hypo. The must establish some basic facts in order for the presumption to be the default conclusion, unless the adverse party then rebuts that conclusion. If all of the basic facts aren't met, then the adverse party has nothing to rebut. But, if the law says that one party has the burden of persuasion and the other party has the initial burden of production to rebut the presumption, such as with the Nita insanity statute or the presumption of innocence, that is when the presumption will be the default conclusion, even if the party with the burden of persuasion on the issue does nothing, unless the adverse party meets their burden of production and rebuts the presumption?
This phrases it in a more-complicated than it needs to be. The presumption is the default conclusion--sane unless evidence offered to the contrary, innocent unless evidence is offered to the country.
Under 301, if  all the basic facts are not met, the burden of production never shifts. Maybe that means the other party is entitled to JML on the presumed fact, maybe it means the initial party has met but not shifted its burden (recall the difference between failing to carry on legally married as opposed to failing to carry on living as H/W).
If the party with the initial burden of production (Party 1) shift the burden (because the applicable law says), and then party 2 meets that burden by producing rebuttable evidence that a reasonable jury could find that the issue/fact doesn't exist, does the issue always then go to the jury, or does the burden of production ever shift back to Party 1? 

Again, depends on the substantive law.

Sunday, December 3, 2017

Materials for Exam

The Syllabus (and the Exam Instructions) say as follows: "You may bring your copies of the Federal Rules of Evidence and any additional statutes and rules that we used in class. No other materials may be brought into the exam."

My intention was to allow you to use the texts that we discussed in class, including any notations, highlights, or comments you made in the margins in learning the text over the course of the semester (recall that I encouraged you to mark-up the texts). I understand from several reports that some people are writing full outlines and answers in the margins of their books and papers. This was not what I intended, but at this point it is too late. So you may write whatever you like in the margins of the book and on the front page of any printed rules or statutes, although you may not write on the back of those printouts.

Friday, December 1, 2017

Q&A Review Session

Will be at 10 a.m. on Tuesday, December 5, not Thursday (some other school-related matters came up on Thursday which would limit me to a session of about 45 minutes). Please note the change. I apologize that this requires many of you to switch gears Bus Orgs, but the scheduling is unavoidable. We will be in RDB 2008.

Wednesday, November 29, 2017

Final Class


Be sure to go online to do the SPOTs (course) evaluations. The COL and professors do look closely at these, so we need a large enough percentage of classes filling them out.

Questions can be brought to my office, emailed, or posted to the blog. With email questions, I will post the question and answer to the blog (with the ID of the questioner removed).

Thanks again for a fun semester (you are the first group in four years with whom I was able to reach Confrontation Clause). Good luck on exams.