Tuesday, November 21, 2017

Question about admissibility of deposition testimony


During depositions you can ask both direct and leading questions with some flexibility, but as I understand it the form of your question may result in some answers being inadmissible at trial.

How does your method of questioning and relationship with that witness (your own witness v. adverse) affect the admissibility of the deposition testimony? See FRCP 30(c)(1) ("[E]xamination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence.")

For instance, say I take the deposition of an adverse witness. Because I am taking the deposition, I begin with some open-ended background questions. I then cross-examine the witness to lock her testimony in based on her earlier statements or other facts of which I am aware. Counsel defending the deposition objects to the form of my questions, on the grounds they are leading. Witness answers, but objections preserved on the record.

Witness becomes unavailable for trial under FRE 804(a)(2)-(4). We have her testimony from the deposition, which I seek to admit. Because I am the proponent of the evidence, but during the deposition I cross-examined her, can a party object to my leading questions to prevent admissibility of her answers to my leading questions, even though the deposition transcript itself is generally admissible under FRE 804(b)(1)?

It is my understanding that, notwithstanding the objections as to form made during the deposition, the answers would be admissible because the leading questions were asked of an adverse witness under FRE 611(c)(2). It does not matter that I am the one offering the transcript as evidence.

I suppose a better question is this: in what circumstances would the form of questioning during the deposition affect the admissibility of the question & answers at trial, assuming objections were preserved during the deposition? And does it matter if I am using the deposition for truth of the matter asserted as opposed to some other purpose, such as impeachment by prior inconsistent statement?

Monday, November 20, 2017

Residual Hearsay

At the court this summer, we had an interlocutory appeal (I apologize, I can't remember the name of the case to cite) with these facts:

A 10 year old had given statements pre-trial regarding her dad's sexual abuse. A couple years later, during trial, she refused to testify to the details of the abuse, and if called to testify, she said she would deny it all.

Prosecution requested a ruling that the girl's pre-trial statements be admitted instead of, or in addition to, her testimony. The fear was she was recanting because of improper influence. The statements were not admissible under any other hearsay exceptions.

The court found that her pre-trial statements were admissible under Residual Exception 807(3) "more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts." The point for which it was offered: proving her dad's sexual abuse, and it was more probative than other obtainable evidence: the girl's testimony.

For Monday

Monday audio.

We continue with Declarant Unavailable. What is the difference between a witness unavailable under 804(a)(1) and (2)? What is the connection and difference between 804(b)(3) and 801(d)(2)? Then read the next two sections, on Layered Hearsay and Residual Exception.

My hope is to get through this on Monday, then spend Wednesday on a truncated overview of the Confrontation Clause.

Wednesday, November 15, 2017

For Monday

Wednesday audio.

We continue with Documentary Exceptions and Other Documents, starting where we left off with FRE 803(8)--reading the three parts to understand what sorts of statements each reaches and the rules for who may and may not introduce each type of statement.

Then move to Declarant Unavailable and the 804 exceptions. Parse 804(a)(5) to understand when a declarant in unavailable under that rule.

It goes without saying . . .

that when you write something this poorly, no matter the legal merits or your political point of view, you disserve your client and lose all credibility with opposing counsel and the court.

Monday, November 13, 2017

For Wednesday

Monday audio.

We continue with Question # 191 and the second line of hearsay, from the neighbor to the paramedic. Could that piece come in (as Brooke's statements did) under 803(1) or (2)? Why or why not? What else might work for the prosecution?

Then move to the next two sections--Documentary Exceptions and Other Exceptions. For Documentary, focus on FRE 803(5), (6), (7), and (8). Work through the exceptions and exceptions-to-exceptions in (8)(B) and (C); try to be precise in identifying what is and is not allowed? What is the difference between using 803(6) and 803(5) to allow some evidence? What is the argument that 803(7) is unnecessary?

Saturday, November 11, 2017

New Washington Evidence Rule on immigration status

The Supreme Court of Washington has approved new Evidence Rule 413, regulating use of evidence of immigration status. The Rule bars evidence of a party's or witness's immigration status in criminal cases unless status is an essential fact to prove an element of a claim or defense or to impeach by bias or prejudice. It bars evidence of status in civil cases unless status is an element, although with an exception allowing use in post-trial motions where a plaintiff subject to an order of removal received certain remedies in employment cases.

The controversy under the Federal Rules with respect to evidence of immigration status relates to its use under 608(b) as a specific instance of untruthful conduct. Some lower courts have held that entering the country unlawfully or lying about status is probative of truthfulness or untruthfulness.

Wednesday, November 8, 2017

For Monday

Wednesday audio.

We pick up with Question # 178 and the exceptions or exclusions you could use. Please note that all of these questions on Spontaneous Statements require you to consider everything covered previously in the hearsay portion--so consider admissibility because not within the basic definition, because of an 801(d) exclusion, and because of an 803 exception.

Then move to Documentary Exceptions, focusing on 803(5)-(8).

Monday, November 6, 2017

For Wednesday

Monday audio.

We continue with Hearsay Exclusions. We left on Question # 159 and the defense response to the argument that Jesse's statement can come in under 801(d)(2)(A). What other arguments can the plaintiff make for admissibility?

Then move to Exceptions: Spontaneous Statements (covering FRE 803(1)-(4)). What are the rationales for each exception--what gives each "sufficient guarantees of trustworthiness"? What are the elements of each exception.  Pay close attention to the scope and limits of the state of mind exception in 803(3), as well as the exception for statements of memory or belief. What is the difference between a statement not offered for the truth but showing state of mind and a statement of state of mind under 803(3)?

Wednesday, November 1, 2017

For Monday

Wednesday audio.

We continue with Introduction to Hearsay, then move to Hearsay Exclusions. Please take the time to prepare the questions so you are not looking (or seemingly looking) at it for the first time in class. We pick up with # 150 and Marlow's statement that Jesse was "exceptionally well qualified." Why is it relevant and what relevancies do not depend on the truth of the matter asserted? What other sorts of verbal utterances are not offered for truth?

In talking about "verbal acts," think about the following: Husband and Wife are in a car accident. Both eventually die. For probate purposes, it must be proven that H predeceased W. A witness to the accident ran to the car and heard the following:
   Version # 1: Wife yelled "I'm alive"
   Version # 2: Wife yelled "My husband is dead."

Consider hearsay objections to either version if trying to prove either that W was alive just after the accident or that H was dead.

Monday, October 30, 2017

For Wednesday

Monday audio.

We continue with Introduction to Hearsay. Go through the definition of hearsay in FRE 801(c) and think about all the elements to that definition--pay special attention to the terms "statement," "assertion," and "declarant." What does it mean for something to be offered "to prove the truth of the matter asserted"?

Consider the following: Chris testifies that he was talking on the phone with Joe at 10 p.m; Joe wants to show, through the conversation, that he was in his room at the boardinghouse. Consider two versions:
 1) Chris testifies that Joe said "I'm sitting in my room at the boardinghouse."
 2) Chris testifies that Joe said "It's pitch dark in here; I think the power went out." Evidence shows there was a blackout in Nita City that affected only the street on which the boardinghouse sits.

Is either statement offered for the truth of the matter asserted?

Sen. Robert Menendez Denied Mistrial

Senator Robert Menendez, a Democrat from New Jersey, is on trial for federal corruption charges. Just a bit ago, the Judge denied his motion for mistrial.

The defense moved for a mistrial after U.S. District Court Judge William H. Walls did not allow them to call their final witness. The defense wanted to use the defendants' former attorney to disprove a claim that the defendants had intentionally hidden the number of flights that they took on a private jet to and from a certain location. The Judge had also previously excluded other witnesses and evidence.

Based on the exclusions, the defense claimed that their client was not getting a fair defense. The defense stated that they were moving for mistrial because "the Court’s evidentiary rulings and comments throughout this trial evince a cumulative abuse of discretion that has deprived Defendants of their Fifth and Sixth Amendments rights to a fair trial, to an adequate defense, and to confront the witnesses against them."

This was the Judge's commentary on the denial: “The defense wants to spend morning, noon and night discussing the contracts in each case, the issue of multiple dosages and the issue of scanning with regard to the security contract with regard to the port in the Dominican Republic,” U.S. District Court Judge William H. Walls said. “It’s a question for this court to determine when enough of enough. It’s not a question that the court interferes with your presentation of the defense. Absolutely not."

You can read more on the defense's motion in this article, and the Judge's denial in this article.

Thursday, October 26, 2017

Exams Ready--Some Do's and Don'ts

The preliminary exams have been graded and will be available outside my office tomorrow (Friday) morning. I am happy to meet and discuss the exam at any time, but please first read my comments and compare your answers to the model answers.

No letter grades are assigned. This is just a numbered score, which will be added to everything else you do this semester.

Some thoughts on the exams, what your analysis should look like, and what I saw as common mistakes. What I am looking for (and where you went wrong) should be clear from the sample answers I posted.

1) CREAC. Don't give a rule number, then apply it. And definitely don't give me a conclusion. Tell me what the applicable rules say and explain them, then apply the facts to them This was by far the most common mistake. Many of you will see "What does it say" written next to where you just said "Under Rule 401, the evidence is admissible." Tell me what 401 says before you apply it. Don't tell me why something is relevant without first explaining what relevancy means.

2) Don't highlight/underline/bold/italicize key words that you want me to see. Trust your reader to get it. Don't break your answers into sections "Rule," "Application," "Conclusion." I know you are taught to outline and think about problems that way, but that should not be your written answer. Integrate the analysis in a paragraph or essay.

3) Don't outline with bullet points. You will get no credit for that, especially when you had a week to work on this.

4) Be thorough in your answers where you have the space and time to do it, with a full explanation of the rule and a full application. (This will be harder on a timed final-it should have been easy on this). Some of you answered questions in 40-50 words. While I said you would not need all 150 for many answers, 40-50 words on a question that requires analysis is almost certainly not sufficient.

5) Don't fight the facts, don't make up facts, don't overstate the facts. Keep it simple.

6) There is no way that 406 could have been in play here. These trades were not non-volitional acts. And even if the court went broad, they were not the equivalent of a "routine practice," such as how the Church sends out its mail or stopping at the same bar and ordering the same drink at the same time every day.

7) Intent can be proven by conduct. So it is not sufficient to say in # 6 that the characterization of his trades as unique or unexpected did not show intent. It could show intent because unusual trades may allow an inference of intent to manipulate those trades.

8) There is no excuse for getting facts wrong when you had a week to work on this and you had the exam in front of you. There is absolutely no excuse for getting the legal standard wrong when you had the rule in front of you. Too many people did both of those.

Wednesday, October 25, 2017

Presumptions/Instructed Inferences in Criminal Cases

For the sake of time, I am going to highlight a few things to know about presumptions or instructed inferences in criminal cases. Federal courts follow these rules as a matter of judge-made evidentiary common law; the Advisory Committee proposed unenacted FRE 303, but it was never enacted. It does lay out what courts do.

You see a common presumption/instructed inference every day: That l a BAC of .08 means legal intoxication. This is a presumption--a person with a .08 is presumed to be under the influence. But it does not mean that someone with a .08 must be under the influence, nor does it mean that someone with a .07 is not under the influence. But the .08 shifts the burden of production in the prosecution.

A few points to highlight.

1) In criminal cases, these inferences are permissible only. The court cannot find a fact against the criminal defendant or order the jury how to resolve a fact against a criminal defendant. The instructions to the jury on the effect of the presumption must remind the jury about the burden of persuasion and standard of proof. And it must remind the jury that it must look at all the evidence, not only the presumption. Again, review unenacted FRE 303.

2) The burden of production does shift to the defendant. But the court cannot take the case from the jury. Even if the defendant offers no evidence, the case still goes to the jury and the jury is instructed that it may, but need not, find that the basic facts are sufficient evidence of the presumed fact.

3) Review unenacted FRE 303(c) for how the court will instruct the jury on presumptions. And it distinguishes between facts that establish guilt (elements) and lesser facts.

4) There is a higher demand for a close logical connection between the basic facts and presumed fact in a criminal case--the inference must be especially strong.

Feel free to ask any questions.

For Monday

Wednesday audio.

We continue with Rulings on Evidence. Read FRE 103(e) to understand Plain Error. Then work through the assigned questions.

We then move to Hearsay, which will take us through the rest of the semester. Read Introduction to Hearsay; look at the text of the hearsay rules as a whole to see how they fit together. Read the Introductory Note: The Hearsay Problem, describing different approaches to derivative proof and how the Advisory Committee considered addressing the problem. Then work through FRE 801 and the elements of the basic definition of hearsay (hint: It's a lot more complicated than you thought from watching TV).

Monday, October 23, 2017

Reminder: Air Force Court of Criminal Appeals Arguments

Reminder that at noon tomorrow, Tuesday, October 24, the College of Law will host oral arguments of the Air Force Court of Criminal Appeals in United States v. Swafford. You can download the appellant brief and government brief; the main claim is the defendant was denied effective assistance of counsel in his marijuana-possession prosecution.

Attendance point will be awarded for attendance.

For Wednesday

Monday audio.

We continued with Presumptions, starting with 105(C) and the proper instruction of the court concludes that Watson's testimony is sufficient evidence of "not death" (that Jerry is alive). Work through the remaining pieces of Question # 105. Look at unenacted FRE 303, which shows how to approach presumptions/instructed inferences in criminal cases.

Then move to Rulings on Evidence, where we focus on how objections are made and ruled upon. Note the statutory provisions on the blog, dealing with appealability. Prepare the assigned questions.

Preliminary Exam-Sample Answers

After the jump. These are only outlines of how I would have written the answers. There are other things you could have written or structured it. But notice how CREACy it is--Rule, explanation of rule, application to facts.

Saturday, October 21, 2017

Illegitimate Presumptions

Patton v. Vanterpool, No. S17A0767, 2017 WL 4582398 (Ga. Oct. 16, 2017)

Georgia's Supreme Court decided that its statutory presumption of legitimacy, which includes children born via artificial insemination if they are born during the normal gestation period within wedlock, does not apply to children born via IVF.

The father disputed whether the children were legitimately his because he and the birth mother are divorcing.

Attorney for the father argued that the mother failed to establish the basic facts for the statutory presumption. She did not meet her burden of production, because the Georgian Supreme Court interpreted the statute (based on legislative intent as indicated by a series of amendments) to only apply to artificial insemination, and not IVF (which involves insemination outside the womb and subsequent embryo implantation.)


  • The Georgian Supreme Court just created a whole LOT of bastards; and
  • Lawyers in Georgia are going to be busy re-drafting IVF consent in the context of married couples to include an acceptance of legitimacy; and
  • Fathers paying child support for IVF-born children may end up fighting their obligations.
Awesome job, Georgia.

Wednesday, October 18, 2017

For Monday

Wednesday audio. Good luck on the preliminary exam; they are due at the beginning of class.

We continue with Process and Presumptions, working with the paternity presumption. Start where we left off: Pty I (Husband) fails to carry its burden of production on one or more of the basic facts. Will Pty II (Wife) certainly get judgment as a matter of law on this fact? Is there anything H can do to avoid J/M/L? Then, what happens when the burden of production shifts to Pty II--what can it do and what must it do? What is the difference between a rebuttable presumption and an irrebuttable presumption and how does that affect what Pty II is able to do to rebut the presumption? When do parties offer this evidence within the trial process?

We then will work through the questions on Nita's death statute. For each step, consider the process involved and write the jury instruction the court might use. Be sure to look at unenacted FRE 303, which would have codifed the common law approach to criminal presumptions.

No new reading (unless you want to get ahead). We will not get to Rulings on Evidence until Wednesday.

Tuesday, October 17, 2017

Exam Note

The text above Question # 4 mentions trades in 2010 and 2011 and Question # 4 mentions a 2011 trade. This refers to the same set of trades, all of which occurred in 2011. Please use those facts accordingly.

Here is an updated and correct copy of the exam is here.


We do not discuss scientific evidence in the class, but just so you know that CSI as just as nonsensical as Law & Order.

Monday, October 16, 2017

Preliminary Examination

Here. Good luck.

For Wednesday

Monday audio.

We continue with Procedure. Look at FRCP 50 and FRCrP 29; see how they work, they fit with the trial process we explored today, and how they incorporate the concept of burden of production. We then turn to presumptions under FRE 301 and 302; read 301 along with the advisory committee notes to understand how they work. What is the difference between a rebuttable and irrebuttable presumption? Why have presumptions? What do they achieve and how do they affect the process?

In addition to the death presumption n the book, consider operation of the following presumption: "A child born within 300 days of a legally married opposite-sex couple living together as husband and wife is the issue of the marriage."

Work through how that presumption would work.

Thursday, October 12, 2017

Air Force Court of Criminal Appeals Oral Arguments

At noon on Tuesday, October 24, the College of Law will host oral arguments of the Air Force Court of Criminal Appeals in United States v. Swafford. You can download the appellant brief and government brief; the main claim is the defendant was denied effective assistance of counsel in his marijuana-possession prosecution.

Attendance point will be awarded for attendance.

Wednesday, October 11, 2017

For Monday

Wednesday audio. The Preliminary Exam will be posted after class on Monday.

We should finish Impeachment on Monday, covering the rest of P/I/S and Review. Note how the issues become more and more non-collateral in the problems. The Review problems link 608 back to 404, so review. Consider the analysis changes if Chris testified that Joe had a peaceful personality and if Joe were charged with perjury rather than homicide.

Then move to Process, Burdens of Proof, and Presumptions (be sure to have all the Rules from the Blog with you in class). Our focus will be on the trial process and the rules for judgment as a matter of law. We will get to presumptions on Wednesday.

Do not let this happen to you

Not Evidence, but an illustration of the importance of looking at and knowing the rules. This is from Tuesday's Supreme Court argument in Hamer v. NHSC, which considers how to handle an appeal that was filed late because the district court gave the appellant an unlawfully long extension of time to file. NHSC, which prevailed in the district court, did not object when the judge gave Hamer too much extra time; Justice Ginsburg wanted to know why and the following exchange occurred:
MR. STEWART: And, again, so we were not -- we were not given the opportunity to -to look at the rules. We didn't have an opportunity to respond
JUSTICE GINSBURG: You didn't have an opportunity to look at the rules?
You cannot hear tone of voice from the transcript; we will have to wait for the transcript to be released on Friday. But Ginsburg's incredulity comes through in the text. You always, she seems to say, have an opportunity to look at the rules.

Monday, October 9, 2017

For Wednesday

Monday audio I, II.

We continue with FRE 609 and what convictions 609(a)(2) reaches. What does that "can readily determine that establish the elements" language mean? What about the express mention of "dishonest act or false statement"? How do 609 and 608(b) overlap and depart from one another? Complete the 609 problems. Consider the following from US v. Gilmore; the defendant is testifying and the following occurs on cross-examination by the government. Consider whether the court was correct and whether the evidence is admissible (thinking of all possible aspects of credibility).

Q: Were you a drug dealer?
A: No
Q: Weren't you convicted 14 years ago of drug distribution?
D Ct: Admit under FRE 609; No notice, no balancing.

Then move to Prior Inconsistent Statements and Contradiction and the assigned problems.

Wednesday, October 4, 2017

For Monday

Wednesday audio. Double session next Monday.

We continue with Introduction to Impeachment; we'll go through the remaining aspects of credibility, then begin working through the problems. We'll begin with the question of how we know whether a prior inconsistent statement is non-collateral or collateral. Work through the problems thinking of the C/NC and Extrinsic/Non-Extrinsic lines. Remember that the first nine aspects (the ones we covered in full today) are all non-collateral, meaning extrinsic and non-extrinsic evidence can be used.

Then move to Impeachment: Bias and the associated problems.

Monday, October 2, 2017

For Wednesday

Monday audio. The October 11 make-up conflicts with some student events, so intead it will be next Monday, October 9. The Preliminary Exam remains on for October 16-23.

We continue with Witnesses. Go through the questions, keeping in mind the distinctions among testimony by a witness, arguments by an attorney, and inferences from the factfinder. Consider: Is there a difference between a witness in a DUI negligence case testifying "the defendant was drunk" and "the defendant was under the influence"?

We then move to Impeachment: Introduction to Impeachment. Review the rules surrounding cross-examination and think about what a party wants to accomplish on cross. Consider two conceptual pairs that govern admissibility for impeachment: Collateral v. Non-Collateral Matters and Extrinsic v. Non-Extrinsic evidence. Read the materials in LCS on the aspects of credibility; we will flesh those out a bit further.

Wednesday, September 27, 2017

For Monday

Wednesday audio.

We continue with and will finish Sexual Assault. We left on the question of whether the defendant is limited in his cross-examination of V1 offering other-acts evidence in the prosecution for the sexual assault of V2. Consider the reasons for special prior-acts rules for sexual assault and child molestation. Be sure to look at the assigned unenacted rules, which show a different approach.

Then do the problems for Relevancy Review, which will sum up what we have done so far.

Then move to Witnesses and the associated problems. What is lay opinion and what are examples? Consider the differences among three things: Testmony/Evidence, arguments, and inferences. Who does each of those and how do the rules of evidence limit them?

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). 

Wednesday, August 30, 2017

For Wednesday

Wednesday audio. Enjoy Labor Day.

We pick up with Questions ## 29-30 on possible permissible 404(b)(2) uses. The Prosecution has tried knowledge of how to use a gun and capacity based on the effect of alcohol; we left off with the defense response to the latter. Consider other possible uses and responses.

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)?

Monday, August 28, 2017

For Wednesday

Monday audio.

We have a few final words on Question # 28 and the admissibility of MAAD. Pay close attention to the inference at work. Membership in an organization suggests beliefs and beliefs suggest action-in-accordance; beliefs are a permissible and highly relevant bit of information from which we can infer conduct. This is not the same as using character to show action in accordance. So back to # 28: If the defense argues that MAAD's beliefs (mediation and reasonable force in response to verbal abuse) are not relevant b/c they do not make the conduct alleged (unprovoked deadly force) more probable than without, what is the prosecution's response? And how does the FRE analysis fit here?

Move on to FRE 404(b)(2), which you should read in conjunction with US v. Bell, which shows how the courts analyze that rule and the list of permissible uses. Work through and understand the list of uses in 404(b)(2), as interpreted in Bell.  The LCS reading does a good job explaining the different uses.

As a general matter: It is essential that you spend time reading parsing these rules and doing a CREAC analysis for each rule and each problem.

Saturday, August 26, 2017

This summer I had the opportunity to hear a witness at a trial. The witness was the daughter of the plaintiff. The plaintiff had been injured in a car accident. Defendants stipulated to a breach of duty, but were disputing causation and damages.

The daughter-witness gave emotional testimony about how his father was a completely changed person after the accident, and could not longer go out and enjoy being with her because he was so physically and mentally impaired.

It sounded convincing. And the plaintiff did get a verdict in his favor, but several million short of their goal. The reason was discovered when the judge of the trial went to the jury and thanked them for their service: some jurors mentioned (without being asked) that they found the daughter seemed so rehearsed, and her mannerisms so false, that the jurors gave her testimony little weight. This had a direct impact on the resulting judgment. Plaintiffs did not give enough persuasive evidence to support the amount of damages they were seeking, even if they proved causation.

Wednesday, August 23, 2017

For Monday

Wednesday audio.

We continue with the Character and Prior Acts questions. then move to FRE 404(b)(2), which you should read in conjunction with US v. Bell, which shows how the courts analyze that rule and the list of permissible uses. Work through and understand the list of uses in 404(b)(2). Look at FRE 405(b) (which is the real meaning of character-in-issue) carefully. When does it apply? Is this character evidence, as understood in FRE 404(a)(1)? Does FRE 405(b) apply in MacIntyre?

Do not go to Conditional Relevance for Monday. We will not get to that under Wednesday.

Monday, August 21, 2017

For Wednesday

Monday audio.

We continue with Character and Prior Bad Acts; know FRE 404 and 405. Read FRE 405 carefully (along with the LCS reading) and see how narrow that rule is. Why not allow character evidence in the judicial system, when we use it in so many other contexts in life? Work through the assigned questions very carefully--connect your answers to the precise part (section and clause or language) of the Rule that may be in play.

Friday, August 18, 2017

United States v Davis: Whether Evidence is Relevant, Material, and More Probative Than Prejudicial Under Rule 412

Last September, the Army Court of Criminal Appeals (ACCA) came to FIU to hold oral arguments in United States v. Davis.  The question was whether the trial judge abused her discretion by excluding evidence of the victim's prior sexual history under Rule 412, specifically, that the victim was an "escort."

Appellant, who was convicted for sexual assault, argued the victim's prior sexual history should be admitted under an exception in Rule 412(b)(1)(C), which allows admission of evidence of the victim's sexual history if excluding that evidence would violate the accused's constitutional rights.

The ACCA tested whether the evidence was relevant, material, and if its probative value outweighed its danger of prejudice. To determine materiality, the court considered the importance of the issue for which the evidence was offered in relation to the other issues in the case, the extent to which the issue was in dispute, and the nature of other evidence pertaining to the issue. To determine whether the probative value of the evidence outweighed the danger of prejudice, the court considered concerns about harassment, prejudice, confusion, the witness' safety, and interrogation that is repetitive or only marginally relevant.

The court noted that Rule 412 is intended to protect the privacy of victims of sexual assault while protecting the constitutional rights of the accused. The accused has a right to cross examine a witness and to impeach the witness, but 412 limits the scope of the accused's right.

The defense sought to introduce evidence that the victim was an escort in order to rebut the government's theory that they targeted the victim in order to sexually assault her. Their theory of defense was the victim willingly came to their hotel room in order to charge for escort services, and that her lust for money and willingness to fabricate stories made her testimony incredible.

At oral arguments, the ACCA found the evidence was not relevant, because there was no escort agreement between the accused and the victim. The ACCA found the evidence was not material, because the conviction for sexual assault was based on 2 elements: the accused engaged in a sexual act with the victim, and the victim was substantially incapacitated (she was too drunk to consent, even if she was an escort). Finally, the court found the probative value was low because the defense was allowed to ask the witness questions about her prior meetings with men at hotels, without saying the word "escort."

Wednesday, August 16, 2017

Ft. Lauderdale plaintiff attorneys won a $4.7M verdict in a product liability case involving a ladder that broke while the plaintiff was on it. Defense stipulated that a manufacturing defect caused a stress fracture in the ladder, but attempted to introduce expert witness testimony to disprove that the stress fracture caused the defendant's fall and injuries.

The expert testimony was not admitted after a Daubert hearing (a hearing to determine the admissibility of expert testimony, at least in Federal court.) Plaintiff's credit this exclusion of evidence in helping them win their verdict.

For Monday

Wednesday audio.

We continue with the questions from Introduction to Relevancy, then move on to Character and Prior Bad Acts, which will cover both classes next week. Review the MacIntyre case file. Review the Committee notes for FRE 404. What is character evidence and why do we not like it? Should courts be more accepting of character?

Today should have given you a sense of how we will be working through questions in class, so review the case files and prep the questions accordingly. Again, look at and prep the evidence from both sides of the case.

Tuesday, August 15, 2017

Here is my first attempt at a sort of decision tree based on FRE 401-403:

Admissibility of Relevant Evidence

  1. Is the evidence relevant? If no, not admissible. FRE 402
    1. Does it make a fact more or less probable? FRE 401(a)
    2. Is the fact consequential to determining the outcome of the action? FRE 401(b)
  2. Is the relevant evidence excluded by other authorities? FRE 402
    1. US Constitution
    2. Federal statute
    3. Other Federal Rules of Evidence
    4. Other rules prescribed by SCOTUS
  3. Is the relevant evidence's probative value substantially outweighed by other factors? FRE 403 (court's discretion)
    • Unfair prejudice
    • Confusing the issues
    • Misleading the jury
    • Undue delay
    • Wasting time
    • Needlessly presenting cumulative evidence

Monday, August 14, 2017

For Wednesday

Monday audio.

We will cover a few final introductory issues. Be sure to review the Rules Enabling Act and the origins of the Federal Rules of Evidence.

We then turn to Relevance: Introduction; review the Mitchell case file and prep questions 3-14. Break down the concept of relevancy in FRE 401, and its limits in FRE 403. What is the difference between the "weight" of evidence and the "relevance" or "admissibility" of evidence? How does that difference affect your answers to these questions?

Wednesday, June 21, 2017

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 14.

To read the blog, go to http://fiuevidence.blogspot.com/; posts can be read going down from most recent to least recent. To post to the blog, go to www.blogger.com; 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 (howard.wasserman@fiu.edu). 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 14, 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 Day 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 (5th ed. 2017) (NITA) (Case Files for People v. Mitchell and McIntyre v. Easterfield) (Problems)
2) Federal Rules of Evidence (2017) (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) (pp. 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 and Montagna, The Battle to Establish an Adversarial Trial System in Italy (Blog)

      Asimow, Popular Culture and the Adversary System (Blog)

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

Scheduling Notes:

   • No class on Monday, September 4 (Labor Day)

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.