Monday, September 25, 2017

For Wednesday

Monday audio.

We continue with FRE 408 in the Policy-Based Exclusions. Work through the rule, as to what cannot be proven and what evidence cannot be used as proof. Then move to Sexual Assault, which covers the rape shield (FRE 412) and special rules for other acts of sexual assault and child molestation (FRE 413-415); review the text and history of all the rules.

Then do the Relevancy Review questions. If we do not get to them on Wednesday, we will get to them next Monday, before moving to the next section in the class.

Saturday, September 23, 2017

Judges on judging

This is a dialogue between Richard Posner, who recently retired from the Seventh Circuit, and Jed Rakoff, a judge on the Southern District of New York. The conversation began from the question of whether judges should rely on their “common sense” (what Posner has described as “pragmatism” in judging). But it touches on many ideas relevant to this course—the different roles and competencies of trial and appellate judges, the importance of standards of review, and differences between the United States and civil law systems around the differing roles of judges and parties and the power of a court of appeals to review a trial court’s factual findings.

Wednesday, September 20, 2017

For Monday

Wednesday audio.

We move to the Policy-Based Exceptions, FRE 407-409 and 411. What are the rationales for each of these rules, both as it relates to the truth-finding process and to extrinsic policy concerns? Which rationales are stronger? Work through the text of each exception, in general and as it applies to the assigned problems.

Monday, September 18, 2017

For Wednesday

Monday audio.

We continue with Habit and the assigned problems. Think about the limits of what constitutes habit and how that may intersect with permissible uses of non-habitual acts under FRE 404(b)(2).

Then move to Policy-Based Exclusions, FRE 407-409 and 411. Consider the rationales for these limitations,  both for furthering and improving the truth-finding process and in furthering larger public-policy concerns extraneous to the truth-finding process. Spend time parsing the text and scope of these limitations.

Sunday, September 17, 2017

"The Confession Tapes"

A new Netflix series exploring cases in which people were convicted of crimes based on confessions that they claim were false, involuntary, or coerced. Only partly related to Evidence, but some of the episodes explore how cases are proved.

Thursday, September 14, 2017

For Monday: A quick review

I hope everyone is back home with power and A/C. Since it has been two weeks since we met, here is a quick reminder of where we left off and where we are going next.

We worked through all of FRE 404(b)(2) and the laundry list of permissible uses. We then had begun considered Questions ## 29-30 (the bar fight Joe was in and the time he shot at people in his driveway) and whether the prosecution could find permissible 404(b)(2) uses for the evidence. The prosecution had tried knowledge (how to use a gun), which the defense had responded to (not contested or unique). The prosecution had next offered effects of alcohol on capacity or ability, which defense was about to respond to. We will then consider other possible uses and responses. Nick is up for the prosecution, Allison G for defense.

We then move to Conditional Relevance, FRE 104(a) and (b). What is the difference between the rules? How do FRE 104(a) and (b) map onto the 3-part analysis for the use of other acts under Bell?

Then prepare Habit, Custom, and Character. Note the assigned unenacted provision to prep. What is going on with habit evidence under 406 and how does it connect with 404(b)?

Tuesday, September 5, 2017

Other Acts Evidence is Admissible to Show Lack of Mistake

In United States v. Sudds, No. ACM 39024, 2017 CCA LEXIS 574, at *23-24 (A.F. Ct. Crim. App. Aug. 23, 2017), the prosecution offered evidence that Defendant watched rape-themed porn ("other acts" evidence) to negate Defendant's affirmative defense that the sexual acts alleged were consensual ("mistake of fact" defense).

On appeal, the court found the trial court properly conducted a three-part test to determine admissibility of other acts evidence under Rule 404(b):
1. Does the evidence reasonably support a finding by the court members that appellant committed prior crimes, wrongs or acts?
2. What fact of consequence is made more or less probable by the existence of this evidence?
3. Is the probative value substantially outweighed by the danger of unfair prejudice?
The appeals court did not find error in admitting the other acts evidence.  "The evidence demonstrates Appellant watched raped-themed pornography during the time frame he allegedly raped and sexually assaulted his then-spouse." (Question #1)

"We find no abuse of discretion in allowing evidence that Appellant watched rape-themed pornography for the purposes of potentially proving the accused had an interest in forcible sexual acts and also to eliminate a mistake of fact as to consent defense which was at issue at the trial." (Question #2). 

Finally, the trial judge conducted a Rule 403 balancing test and found that "the probative value of the evidence is not substantially out-weighed by the danger of unfair prejudice." (Question #3).