Monday, August 21, 2017

For Wednesday

Monday audio.

We continue with Character and Prior Bad Acts; know FRE 404 and 405. Read FRE 405 carefully (along with the LCS reading) and see how narrow that rule is. Why not allow character evidence in the judicial system, when we use it in so many other contexts in life? Work through the assigned questions very carefully--connect your answers to the precise part (section and clause or language) of the Rule that may be in play.

Friday, August 18, 2017

United States v Davis: Whether Evidence is Relevant, Material, and More Probative Than Prejudicial Under Rule 412

Last September, the Army Court of Criminal Appeals (ACCA) came to FIU to hold oral arguments in United States v. Davis.  The question was whether the trial judge abused her discretion by excluding evidence of the victim's prior sexual history under Rule 412, specifically, that the victim was an "escort."

Appellant, who was convicted for sexual assault, argued the victim's prior sexual history should be admitted under an exception in Rule 412(b)(1)(C), which allows admission of evidence of the victim's sexual history if excluding that evidence would violate the accused's constitutional rights.

The ACCA tested whether the evidence was relevant, material, and if its probative value outweighed its danger of prejudice. To determine materiality, the court considered the importance of the issue for which the evidence was offered in relation to the other issues in the case, the extent to which the issue was in dispute, and the nature of other evidence pertaining to the issue. To determine whether the probative value of the evidence outweighed the danger of prejudice, the court considered concerns about harassment, prejudice, confusion, the witness' safety, and interrogation that is repetitive or only marginally relevant.

The court noted that Rule 412 is intended to protect the privacy of victims of sexual assault while protecting the constitutional rights of the accused. The accused has a right to cross examine a witness and to impeach the witness, but 412 limits the scope of the accused's right.

The defense sought to introduce evidence that the victim was an escort in order to rebut the government's theory that they targeted the victim in order to sexually assault her. Their theory of defense was the victim willingly came to their hotel room in order to charge for escort services, and that her lust for money and willingness to fabricate stories made her testimony incredible.

At oral arguments, the ACCA found the evidence was not relevant, because there was no escort agreement between the accused and the victim. The ACCA found the evidence was not material, because the conviction for sexual assault was based on 2 elements: the accused engaged in a sexual act with the victim, and the victim was substantially incapacitated (she was too drunk to consent, even if she was an escort). Finally, the court found the probative value was low because the defense was allowed to ask the witness questions about her prior meetings with men at hotels, without saying the word "escort."

Wednesday, August 16, 2017

Ft. Lauderdale plaintiff attorneys won a $4.7M verdict in a product liability case involving a ladder that broke while the plaintiff was on it. Defense stipulated that a manufacturing defect caused a stress fracture in the ladder, but attempted to introduce expert witness testimony to disprove that the stress fracture caused the defendant's fall and injuries.

The expert testimony was not admitted after a Daubert hearing (a hearing to determine the admissibility of expert testimony, at least in Federal court.) Plaintiff's credit this exclusion of evidence in helping them win their verdict.

For Monday

Wednesday audio.

We continue with the questions from Introduction to Relevancy, then move on to Character and Prior Bad Acts, which will cover both classes next week. Review the MacIntyre case file. Review the Committee notes for FRE 404. What is character evidence and why do we not like it? Should courts be more accepting of character?

Today should have given you a sense of how we will be working through questions in class, so review the case files and prep the questions accordingly. Again, look at and prep the evidence from both sides of the case.

Tuesday, August 15, 2017

Here is my first attempt at a sort of decision tree based on FRE 401-403:

Admissibility of Relevant Evidence

  1. Is the evidence relevant? If no, not admissible. FRE 402
    1. Does it make a fact more or less probable? FRE 401(a)
    2. Is the fact consequential to determining the outcome of the action? FRE 401(b)
  2. Is the relevant evidence excluded by other authorities? FRE 402
    1. US Constitution
    2. Federal statute
    3. Other Federal Rules of Evidence
    4. Other rules prescribed by SCOTUS
  3. Is the relevant evidence's probative value substantially outweighed by other factors? FRE 403 (court's discretion)
    • Unfair prejudice
    • Confusing the issues
    • Misleading the jury
    • Undue delay
    • Wasting time
    • Needlessly presenting cumulative evidence

Monday, August 14, 2017

For Wednesday

Monday audio.

We will cover a few final introductory issues. Be sure to review the Rules Enabling Act and the origins of the Federal Rules of Evidence.

We then turn to Relevance: Introduction; review the Mitchell case file and prep questions 3-14. Break down the concept of relevancy in FRE 401, and its limits in FRE 403. What is the difference between the "weight" of evidence and the "relevance" or "admissibility" of evidence? How does that difference affect your answers to these questions?

Wednesday, June 21, 2017

Welcome to Evidence and the Evidence Blog

Welcome to the FIU Evidence Blog. There are three posts that you must read and follow prior to our first class meeting on Monday, August 14.

To read the blog, go to; posts can be read going down from most recent to least recent. To post to the blog, go to; you can log-in with a username and password. For complete information on the purposes and uses of the blog, read the Syllabus.

To be able to post, you must register as an author and a reader. To register as an author, please send an e-mail to me ( In the subject line, type “Evidence Blog Registration;” in the body of the e-mail, please type your name and your e-mail address. You then will receive an e-mail “Invitation” inviting you to join as an author on the blog. You must follow the steps outlined in the invitation e-mail to register (under your full name, no handles or usernames) as an author. Please register under your full (first and last) name. Please do this at the beginning of the semester, as soon as you receive the invitation.

Once you have registered, take a few minutes to explore how to write a post. Note that you can put up photographs and video. You also can put web links in the text by highlighting the text you want to use for the hyperlink and clicking the "Link" button.

Name Cards

At our first meeting on Monday, August 14, there will be a stack of name cards on the table in the front of the classroom. When you come to the room, please find the card with your name on it and place it in front of you at your seat. You are responsible for keeping that card and having it with you at every class throughout the full semester.

If you are not yet registered for the class (or are shopping classes), a card will be made once you have registered.

Course Materials and First Day Assignments

Please download and read the Syllabus (or from right) for complete details about the course, assignments, pedagogical approach, grading methods, and course rules. Review it prior to the first class. You should bring the Syllabus with you to every class.

Required Class Materials
1) Robert P. Burns, Steven Lubet, and James H. Seckinger, Evidence in Context (5th ed. 2017) (NITA) (Case Files for People v. Mitchell and McIntyre v. Easterfield) (Problems)
2) Federal Rules of Evidence (2017) (Wolters Kluwer) (Rules Pamphlet)
3) Graham C. Lilly, Daniel J. Capra, and Stephen A. Saltzburg, Principles of Evidence (7th ed. 2016) (West) ("LCS")
4) Additional statutes, cases, and other materials can be downloaded from this blog at right, under "Course Materials."

Assignments for First Day of Class:

Introduction: Evidence and the Adversary System


      Fed. R. Evid. 101-102, 611, 614

      28 U.S.C. §§ 2072-2074 (Rules Enabling Act) (pp. 377-78)

   Problems: Review case file in People v. Mitchell (in Evidence in Context)  


      LCS 1-7, 11-17, 72-73 (§ 3.5)

      Damaska, Presentation of Evidence and Factfinding Precision (Blog)

      Pizzi and Montagna, The Battle to Establish an Adversarial Trial System in Italy (Blog)

      Asimow, Popular Culture and the Adversary System (Blog)

      Sklansky and Yeazell, Comparative Law Without Leaving Home (Blog)

Scheduling Notes:

   • No class on Monday, September 4 (Labor Day)

Additional Notes:
No laptops permitted in the classroom.

You must be in class on time, unless I have previously given you permission to come late. You may not enter the room once class has begun, unless I have given you permission to come late.