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; 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 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.