Friday, August 26, 2016

What really happened?

Following class on Wednesday, someone asked if we were ever going to find out what really happened in our two cases. The answer is no, for two reasons. First, these are not real cases; they are fictional materials designed for a trial-advocacy class, with a set of facts that are evenly split and can go either way

Second, we--the lawyers, the judges, the jurors--never know what really happened in most cases. All we have are the separate pieces of information from witnesses doing their best to understand and describe what they, and all we can do is  put all those pieces of information together in the most logical way to reach the best decision we can. No one is omniscient and no one was there, so we cannot be "certain" about our conclusion. When we speak of discovering "the truth," we mean the closest approximation to "the truth" that human beings operating a human institution can reach. The best we can do is establish and apply a set of evidentiary and procedural rules that give us some confidence in how the information gets processed and in the conclusion that is reached. So the ambiguity that we always talk about is not only about what the law is, it is also about what the facts of any given case are.

Third, that uncertainty often arises because the facts we hear are open to competing interpretations pointing in opposite directions or towards opposite conclusions. The same fact can be understood either as innocuous or as suggesting guilty. Returning to my earlier post on The Night Of, the show does a great job of presenting facts that the audience has seen first-hand and knows to be innocent, but that can be presented and understood as suggesting guilt by by someone without that omniscience. And, of course, in real-life, the prosecutor, judge, and jury are never there and never omniscient.

Wednesday, August 24, 2016

For Monday

Wednesday audio.

We will finish Intro to Relevancy, beginning with the different pieces of evidence in Question # 10. Start with the question we left with: What might the prosecution argue in response to the defendant's position that Joe's elevated BAC shows that he could not have aimed properly to hit Leslie.

We then move on to Character and Prior Acts, focusing on FRE 404 and 405. Note that some of the problems assume  different set of facts. Do the LCS reading, which presents a good explanation and good hypos on character evidence. Read the ACN and figure out what, exactly is character evidence and why is it generally excluded?

Tuesday, August 23, 2016

TV recommendation: The Night Of

A TV recommendation for those of you looking to see law in action in a fictional setting: HBO's The Night Of, which has aired seven episodes, with the finale airing this Sunday. The last two episodes have focused on the murder trial, including showing some interesting evidentiary issues that we will be getting to in the coming weeks.

Wednesday, August 17, 2016

For Wednesday

Wednesday audio. Again, no class on Monday; add that to the three classes we have to make-up, on dates and time T/B/D. We will do the seating chart on Wednesday, as well.

We will continue with Introduction to Relevancy and Problems 3-14. Review the case file for MacIntyre v. Easterfield (our civil case) and become familiar with the details and facts of that case. You should now see how the class discussion over the questions is going to proceed, so prepare accordingly.

Go ahead and begin work on the next section Character Evidence and Bad Acts, which we may get to towards the end of class. Don't worry about the problems yet; review FRE 404(a) and the Principles reading for that section. We will get to 404(b) and the problems the following week.

Monday, August 15, 2016

For Wednesday

Monday audio. We are in RDB 2008 for the rest of the semester and will do the seating chart. We will spend a couple minutes at the beginning of class on questions about the syllabus, grading, etc.

If you have not registered for the blog, please follow the instructions to do so.

We continue with the introductory materials, beginning where we left off. There are two things you want to do on cross-examination: One is bring out evidence about the credibility of the witness; what is the other? Be sure to review the Rules Enabling Act and refresh yourself on the rulemaking process. Note the differences between § 2074(a) and (b).

We then move on to Relevancy, beginning with Introduction to Relevancy. We will go over the assigned rules, then jump into Problems 3-14. Be sure to review the Mitchell case file so you know enough to answer the questions.

Monday, December 12, 2011

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 15.

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 18, 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 Week 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 (4th ed. 2010) (NITA) (Case Files for People v. Mitchell and McIntyre v. Easterfield) (Problems)
2) Federal Rules of Evidence (2016) (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) (Pamphlet, 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 & Montagna, The Battle to Establish an Adversarial Trial System in Italy (Blog)

      Asimow, Popular Culture and the Adversary System (Blog)

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

Scheduling Notes:

   • No class on Monday, September 5 (Labor Day)

   • No class on Monday, October 3 (Jewish Holy Day): To be made-up at time T/B/D

   • No class on Wednesday, October 12 (Jewish Holy Day): To be made-up at time T/B/D

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.