Wednesday, September 28, 2016

For Saturday makeup

Wednesday audio. See everyone at 11 a.m. Saturday in RDB 2008.

We begin Impeachment, with Introduction to Impeachment. Look at the LCS pages, which break out a number of different forms of impeachment, which we will break down further. Think about these forms in relevancy terms--it's the FRE 401 standard, but the fact of consequence is the credibility of the witness, rather than how someone acted in the real world (although it could be both).

For Saturday makeup

Wednesday audio. See everyone at 11 a.m. Saturday in RDB 2008.

We begin Impeachment, with Introduction to Impeachment. Look at the LCS pages, which break out a number of different forms of impeachment, which we will break down further. Think about these forms in relevancy terms--it's the FRE 401 standard, but the fact of consequence is the credibility of the witness.

Monday, September 26, 2016

For Wednesday

Monday audio.

Quick final word on FRE 413, as it relates to the Bill Cosby case. As I said in class, the State is relying on their 404(b), specifically "common plan or pattern," which often ends up sounding like propensity. This is necessary because Pennsylvania lacks an equivalent to FRE 413. But one argument in support of 413 is that the specific rule is necessary to keep courts from having to distort 404(b), while allowing this evidence in extreme cases. An alternative approach would be to adopt something like a "doctrine of chances" in these types of sexual-assault cases--is the likelihood of multiple allegations of drugging/sexual assaults much lower than the likelihood of the three brides drowning in a shallow tub?

We turn on Wednesday to Witnesses, which focuses on the form in which admissible evidence is presented. What constitutes an "opinion" under FRE 701? Consider the differences among three things--Inferences, arguments, and testimony--and what each means. Consider the three main actors in a trial--witness, attorney, and factfinder. Which actor does which of those things and why?

Wednesday, September 21, 2016

For Monday

Wednesday audio.

We continue with Sexual Assault Rules. What are the rationales for FRE 412, both as a matter of the truth-finding process and extraneous public policy? Then move on to the other-sex-crimes rules. How do these rules interact with FRE 404(b)? What about FRE 403? Does it matter that FRE 413-415 were enacted by Congress through the ordinary legislative process and not through the REA process? See the assigned unenacted rules.

Then do the Relevancy Review problems, which will sum and wrap up all the rules we have covered so far.

Monday, September 19, 2016

For Wednesday

Monday audio. Be sure to review past notes before coming to class. Also, remember that the questions are tied to the assigned rules.

We continued with the Policy-Based Exclusions. What are the rationales (as to truth and public policy) for the prohibition on using liability insurance? Why might plaintiffs' lawyers in automobile accident cases want the jury to know about mandatory insurance?

We then will move to Sexual Assault, covering FRE 412's rape shield and FRE 413-415, involving special prior acts rules for sexual assault and child molestation cases. How can we understood these rules as moving toward the same purpose? What are the rationales for excluding or including evidence under FRE 412? Why treat sexual assault/child molestation differently for prior acts purposes?

Go ahead and prepare the Relevancy Review questions, which we definitely will get to by next Monday.

Wednesday, September 14, 2016

For Monday

Wednesday audio.

We continue with Habit. Assume the court decides that Kerry losing-and-accusing is not a habit (because not sufficiently regularized). How could the plaintiff use the engagement-ring incident, considering its relevance to either (or both) of Ross' affirmative defenses. We then will look at Questions ## 43-44, dealing with Taylor's letter to Ross.

We then move on to Policy-Based Exclusions, FRE 407-411 (review FRE 410, although we will not cover it in class). Each of these rules excludes certain evidence that relies on certain inferences. Each be understood as driven by two types of concerns: 1) That excluding this evidence makes the truth-finding process function better and 2) Excluding this evidence serves other purposes/values extraneous to the truth-finding process. Think about the rationale for each of these rules and the rationale for them under both of those types of concerns.

Monday, September 12, 2016

For Wednesday

Monday audio. Be sure to take some time to review notes from today before class on Wednesday, as well as to review the reading that we did not reach.

We have one more question on Character--No. 36. We then move on to Habit. Look at the ACN to FRE 406--how does character differ from habit? What makes something a habit and how does it relevant?

No new reading for Wednesday; we will get to Policy-Based Exclusions next week. Do review the reading on Habit before coming to class.

Finally, an announcement: At noon on Tuesday, September 13 (tomorrow), the COL will host an oral argument for the Army Court of Criminal Appeals (ACCA). The issue in US v. Davis is the exclusion of evidence under FRE 412's Rape Shield, a rule we will be covering in the coming weeks. The argument likely will touch on evidence issues generally. I encourage everyone to attend.


Wednesday, September 7, 2016

For Monday

Wednesday audio. Reminder that you may not leave and return once class has begun. Also, absent truly extraordinary circumstances, I will no longer allow late entrance due to traffic.

We continue with Character/Prior Acts, with Questions ## 29-30; what other permissible uses (we have already covered Identity and Motive) could the prosecution try and what are the defense's responses?

We then move to Conditional Relevance. What does proof "sufficient to support a finding" mean and how is that different than the standard in FRE 104(a)? What does 104(a) cover and what does 104(b) cover? How does FRE 104(b) work with the 404(b) analysis described in Bell, especially as to the first prong? Then use 104(a) and (b) to do the remaining 404(b) problems.

Go ahead and prepare Habit, Custom, and Character, which we may get to at the beginning of class. What is habit and how is it different than character? What does FRE 406 permit and how does it interact with FRE 404(b)?