Tuesday, September 18, 2018

For Thursday

Tuesday audio.

We will continue our discussion of a witness using the word "rape" in a sexual-assault prosecution--as defense counsel, what are your arguments for not permitting this testimony? We then will talk briefly about FRE 704(b) and the concept of "vouching" by expert witnesses.

We then move to Impeachment, beginning with Introduction to Impeachment. Think about two paired concepts--"collateral" as opposed to "non-collateral" matters of impeachment and "extrinsic" as opposed to "non-extrinsic" evidence. We then will discuss 14 aspects of witness credibility (this is an expansion on the categories described in LCS).

Thursday, September 13, 2018

For Tuesday

Thursday audio.

We will complete the Relevancy Review questions. We then move to Witnesses, where we shift our focus from what can be proved to how it can be proven. As you go through the problems, consider the following distinction--what the witness can testify to, what the attorney can argue, and what the jury can find. What do we mean by a non-expert, fact witness (such as an eyewitness) testifying to her "opinion"?

Other acts evidence

Is an essay about murdering your husband admissible in a prosecution about murdering your husband?

Tuesday, September 11, 2018

For Thursday

Tuesday audio.

We continue with FRE 408 and the assigned problems. We then move to Sexual Assault Rules. Note the procedure by which these rules were enacted. What is the purpose of these rules, as well as their exceptions Do the rules achieve the stated purposes?What is "sexual predisposition"? Why single sexual assault and child molestation from the rule prohibiting other acts evidence?

Then do Relevancy Review, Problems 57-61. This will be a nice capstone to the first part of the course.

Thursday, September 6, 2018

For Tuesday

Thursday audio.

We continue with the Policy-Based Exclusions, covering FRE 407-409 and 411. Identify the justification for each, both in terms of furthering the truth-finding process and in terms of extrinsic, real-world values.

Then prepare the Sexual Assault Rules, FRE 412-415. Note the procedure by which these rules were enacted. What is the purpose of these rules, as well as their exceptions?

Thursday, August 30, 2018

For Thursday

Apologies--the recording apps have been causing my phone to crash, so there is again no recording for today. I believe I have the problem resolved. Again, please come see me if you are not sure of something from the class.

For Thursday (again, no class on Tuesday), cover Habit and Policy-Based Exclusions. Be sure to look at unenacted FRE 406(b), which shows how habit is proved. What is the difference between habit and character? Focus on the distinction between habit and routine practice, as described in the text of the rule.

Tuesday, August 28, 2018

For Thursday

Remember that we will not have class next Tuesday, which is being run on a Monday schedule. So our only meeting next week will be on Thursday.

We continue with Other Acts and the associated problems. Consider the following: Police officer shoots A, believing he was armed and dangerous; A sues the officer for excessive force. Can the officer offer evidence of three incidents in which A used a gun to show identity? Work through the problems, considering different 404(b)(2) uses of those pieces of evidence.

Then move to Conditional Relevancy, focusing on FRE 104(a) and (b). What does proof "sufficient to support a finding" mean? How do FRE 104(a) and (b) map onto the two questions Bell asks about 404(b) admissibility?

Thursday, August 23, 2018

For Tuesday

Thursday audio.

We will have final words about character as an essential element. Consider two other possible examples--entrapment as a defense in a criminal case and the tort of defamation (i.e., is MacIntyre a case in which character is an essential element).

In considering Question # 28, think about the relevancy of membership in an organization and the potential character problems raised by evidence of membership. Should Joe's membership in MAAD be admissible?

We then will dive in FRE 404(b). Go through each of the permissible uses in 404(b) to understand how and why they work, in conjunction with US v. Bell.