Wednesday, September 17, 2014

For Monday

Wednesday audio.

We will continue with Sexual Assault, starting with the rationales for FRE 412, especially as related to the truth-finding process. It is true we don't want judgment on prior acts, but why not? Do the exceptions in 412(b)(1) make sense? We then will go through 413-415 and their function and rationale.

We then will do Relevancy Reviewed, a few problems as a refresher on relevance and the basic relevance rules.

We then begin Witnesses, which focus on the form evidence takes and who can offer evidence. In looking at this, think about the language of FRE 701, in relation to three distinct ideas: 1) What a witness can testify to; 2) What you can argue to the jury; and 3) What the jury can conclude.

Monday, September 15, 2014

For Wednesday

Monday audio. Remember that it only seems to work on Firefox, not Safari.

We will continue with Policy-Based Exclusions, picking up with FRE 411 and the extrinsic policy justifications for the rule. We then will cover FRE 408 in detail; think about Elizabeth's tie-in to med mal lawsuits.

We then move to the sexual assault rules--FRE 412, which is the rape shield, and FRE 413-415, which govern prior acts of sexual assault and child molestation. Why have these rules? What do they have in common and in what ways are they different?

Finally, go ahead and do the problems for Relevancy Reviewed; we may get to some of them at the end of Wednesday's class. 

Saturday, September 13, 2014

Multiple Med Malpractice suits

    On Friday, I read an article (CBS news) on Medical malpractice statistics in Florida that disturbed me.  It specifically looked at one doctor who is still practicing medicine despite having  at least one of  his patients dying under his care and has paid out 11 medical  malpractice claims in 14 years.  The article says the doctor has denied any wrongdoing.  The big question a watch group posed is "When you look at these doctors with the largest number of malpractice suits, you have to ask the question -- at what point could we have prevented the last five, or the last ten?"
       This made me wonder how prior acts and payouts of insurance may have or not have come into evidence on the later repeat med mal cases.  Since these are civil suits, I think prior acts of medical malpractice or prior acts of insurance payouts would be prohibited under 404(b)(1).   Does any of the policy based rules that we will discuss next week come into play?  FRE rule 408 (offers of compromise) or FRE 411 (liability insurance) would seem applicable in a sense, but upon reading the rules it would appear to be prohibited to introduce evidence that a certain doctor has been negligible and that he has made multiple payouts before.  How would a plaintiff proceed with this evidence upon a future case against the same doctor?

Wednesday, September 10, 2014

For Monday

Wednesday audio.

On Monday, we will continue with Habit and Routine Practice and the assigned problems. What use can the plaintiff make of the incident with the engagement ring over dinner? Assume that the court decides losing/accusing is not a habit--what use can the plaintiff make of that incident?

We then move on to Policy-Based Exclusions, covering FRE 407-409 and 411. Think about the policy reasons justifying each of these rules and whether those make sense.

Tuesday, September 9, 2014

Plan and Identity

Alejandra raises some questions about FRE 404(b)(2) uses and FRE 104. Let's try to break it down.

The only conditional relevance issue is whether Joe did kill his first wife--whether there is sufficient evidence to support a finding that Joe committed the prior act. If he did not kill her, then nothing about the other act is relevant. This is the first step in the 3-step 404(b) analysis.

That is separate from whether the other act is admissible for some other purpose under FRE 404(b)(2) (which is a question for the court under FRE 104(a)); this is the second step in the anaysis. So what other purpose may work? Properly understood, this is not plan. Plan is about an other act and the instant act being part of one plan or scheme and I don't think you have the evidence to support any such connection between the two. I suppose a "plan" argument might work if you had evidence showing that Joe was trying to get rich by marrying and then murdering a series of women. But again, I don't think you have that.

When you're looking at similarities between acts, you are in identity. On the new facts Alejandra has posited, we have one additional similarity between the acts--both spouses were wealthy, had left their fortunes to Joe, and Joe was after the money. The question then becomes whether that is enough to establish the distinctive and unique substantial similarity required for identity. Again, that is not a conditional relevancy question; it is a question of admissibility, of whether the requirements of FRE 404(b)(2) are satisfied.

Joe The Gold Digger

Hi class,

I’m trying to understand conditional relevance so I was going over the last question we did in class (#35) about Joe’s first wife and tweaked it a little to see how conditional relevance would apply.

If Joe’s first wife had left her entire estate to Joe in her will, could a prosecutor argue the relevance of her death as part of a plan under 404(b)(2)? would his argument be that Joe has committed these crimes as part of a larger scheme to obtain money. Would the prosecutor argue that because Joe thought Leslie, after their marriage, had made a will that left everything to him (Pg.38) and the stepmom was getting in the way of their marriage, he meant to shoot the stepmom but shot Leslie instead? 
What would the Rule 104 issues be?


Monday, September 8, 2014

FRE 104(b) in action

Carlos' post and some of our class discussion has touched on the potential prosecution (whether for homicide or on federal civil rights charges) of Off. Wilson for the shooting death of Michael Brown and if/how the evidence of Brown robbing the store might come in. The leading theory is a convoluted one, about Brown resisting because he believed he was being arrested for robbing the store (i.e., using the other act to show knowledge).

Of course, the more straight-forward argument for the defense would be that the robbery justifies Wilson initially trying to stop Brown and shooting when he fled, because he was attempting to question a suspect in a felony or trying to stop a fleeing felon.

Why can't the defense make that argument?

For Wednesday

Monday audio.

We will finish with Character on Wednesday, with Question # 35--is there proof sufficient to support a finding that Joe killed his first wife? And what is the effect if Joe had been convicted or plead guilty to the first shooting?

We then turn to Habit and Custom, with FRE 406. Be sure to review unenacted FRE 406(b). What is going on with habit evidence and how does it interact with FRE 404?

Thursday, September 4, 2014


Hello everyone,

Food for thought-when we were reviewing 404(b) in class, it struck me that  there are certain allegations that must be predicated on multiple offenses to be properly tried. 

The first thing that came to mind were cases where a caretaker has Munchausen Syndrome by Proxy ("MSBP").

For those unfamiliar with MSBP, it is a psychological disorder where a caretaker purposely makes the individual(s) they care for ill. People with MSBP usually do so only to rush their charges to hospitals, or seek immediate medical treatment immediately afterward. They appear concerned and disheartened by the infirmity that befalls their charge. 

Given the outward appearance of concern, the first few offenses often go unnoticed. After all, a set of worried parents up all night in a hospital room don't seem like the type that would abuse their child, or even neglect their child. It is not until the events have been so numerous that they bewilder medical staff and authorities, that the caretakers are suspected of foul play.

Imagine for a moment that you're in the courtroom. You are working on behalf of the state and you bear the burden of proof. At the table adjacent to you sits a weeping mother who has been accused of murdering her child. You know from medical records that the child did not have any underlying medical condition that would have resulted in death, yet she had frequented the hospital with her toddler with a number of strange and inexplicable maladies. The same exact pattern had preceded the burial of her child before. Under the Federal Rules of Evidence, you know that you cannot use evidence of crimes, wrongful acts, and other acts to prove character and thereby show that someone with a particular trait is more likely to have committed a crime. 

Enter FRE 404(b)(2). You can use that evidence to prove other things like motive, intent, opportunity, etc. Generally, appellate courts defer a lot to trial courts as to what is and isn't admissible evidence and rarely are trial courts overturned at the appellate level unless there has been an outright abuse of discretion by the trial judge. Austin v. State, 222 S.W.3d 801 (Tex. App. 2007) is a decent example of everything discussed above. I'd urge you to check it out if this is of interest to you!