Monday, October 24, 2016
We continue with Presumptions. Prepare Question # 105, considering what should happen procedurally and the appropriate jury instruction. In addition, prepare two more hypos:
1) Mrs. Young fails to offer evidence of diligent and unsuccessful efforts to find her husband
2) Mrs. Young offers evidence that he husband disappeared 6 years ago.
Sample answers are below. Note that this is how I would have answered these questions. Different answers or conclusions received full credit, if correct.
A couple of comments:
• These questions lend themselves to quick CREAC analysis, so do that: Tell me the Rule/Explain it/Apply it to facts. (See below)
• Don't waste words. If you are told to make the prosecutor's argument, don't say "The prosecutor will argue . . ." Just argue.
• Answer the question asked about the subject asked. Don't go look for additional stuff not in the prompt
• When asked a relevancy question, you have to draw out the full inferential chain.
• When doing a 104(b) analysis, there must be evidence sufficient as to the conditioning fact, not to the larger fact. (See below)
• There is no excuse to misstate or be incomplete in stating the legal standard when it is in the rule book, you have the rule book with you, and you have a week to work on this. For example, it's not "makes the fact of consequence more probable." More probable than what?
• Median: 13
• Mean: 12.3
• High Score: 19
Remember this is only 20 points out of 115, so there is plenty of opportunity to make it back.
Wednesday, October 19, 2016
We continue with Process, Burdens of Proof, and Presumptions, turning now to Presumptions. What does it mean for there to be a presumption? How do they work? Why do legislatures/rulemakers create presumptions? Read FRE 301, along with the Advisory Cmte Notes on the rule to understand how presumptions function. Prepare to discuss both the death presumption from our cases and the paternity presumption I posted here on Monday.
The effect of a presumption and the work of FRCP 50 is that a court will find a fact and instruct the jury on that fact. So in working with the death presumption, draft the judge's instruction for each situation.
Monday, October 17, 2016
On Wednesday, we will finish Impeachment, with an offshoot of # 94. Suppose Joe is charged with Perjury. What is the relevancy and use of Chris' testimony that Joe is a truthful person?
We then turn to Process, Burdens of Proof, and Presumptions; this section of the course will consider the process in which evidence is offered and evidentiary rulings are made. Note the several rules and statutes to be downloaded from the Blog; please have them with you in class. Think about the meaning and purpose of burden of persuasion and burden of production (review this from Civ Pro, if you need to) and how that works at trial.
In thinking about Presumptions, prepare to discuss the following (fairly common) presumption: A child born to a lawfully married opposite-sex couple within 300 days of the couple living together as husband and wife shall be presumed to be a child of that marriage.
Monday, October 10, 2016
We continue with Impeachment; prep the last two sections--Prior Inconsistent Statements and Impeachment Review. Think about how the rules for character impeachment interact with the rules for substantive character evidence; consider how admissibility might differ in Mitchell were Joe charged with perjury. We should finish Impeachment by Wednesday, at the latest.
Saturday, October 8, 2016
Last Saturday you said that you can't offer evidence to accredit a witness unless that witness has been impeached or attacked. Is there a distinction to be made between the two?
Is it a requirement that a witness's credibility be actually harmed, or is it simply enough that opposing counsel attempt to discredit?
Wednesday, October 5, 2016
Because of the weather, the preliminary exam will not be posted on Friday. Instead, it will be posted at 12:15 next Monday, October 10 and you will have one week to do it, due at Monday, October 17 at the beginning of class.
For Monday, we will continue with Impeachment: Character. Are the two instances of Jesse's conduct (the items at the T-Mart and the money from the collection plate) admissible under FRE 608(b) to impeach Jesse? Consider the two prongs of the analysis for admitting specific instances.
Look at FRE 609 and figure out the various requirements under that rule. What is the inference at work under the rule--how do we get from a criminal conviction to a witness's character for untruthfulness? Does the inference make sense?
Then move on to prepare Impeachment: Prior Inconsistent Statements/Contradiction.
Think about the following: Criminal defendant is testifying. The following exchange occurs: