Downlaod in Regular Print or Large print. For those who wish to see it online (formatted slightly off), the full text is reprinted after the jump.
Exam instructions can be found here or as first pages of the downloaded exam.
If you have any administrative questions or problems, reach out to the registrar's office.
The printed exam is due in my office by 4:30 p.m. tomorrow, Wednesday, November 29.
Good luck.
Evidence
Final Examination
Professor Howard Wasserman
FIU College of Law
Fall 2023
After the jump. This will be the cover sheet for the exam.
Q&A Review session at 10:30 next Monday, November 27. I am available for questions in person the rest of today and next Monday; I am available for questions via email until 10 a.m. next Tuesday, November 28.
The exam will be posted at noon on Tuesday, November 28, due in hard copy in my office at 4:30 p.m. on Wednesday, November 29.
Earlier in the semester, I gave you a clip from the movie The Jagged Edge as an example of "reverse 404(b)"--the defense using other crimes, wrongs, or acts to establish third-party guilt. Here is a real example, from a New York Times article, of reverse 404(b) to establish self-defense.
The case involves a high-profile assault by a homeless man of a neighborhood resident in San Francisco, a story that became a touchstone for tales of the city's "doom loop" of drugs, homelessness, and urban decay. Video evidence of the attack shows the victim spraying the defendant with bear mace prior to the assault. And videos later emerged of eight other incidents in which someone resembling the victim sprayed homeless persons with bear mace. So you can see what the defense would like to do with these videos--and spend some time on the theory for why and how.
The case is due to go to trial in a few weeks. The court found probable cause for the charges because of evidence the attack went beyond what self-defense justifies.
The trial court in the Georgia conspiracy trial of rapper Young Thug conditionally admitted some of his lyrics as evidence of intent and wrongdoing, rejecting arguments based on the First Amendment, as well as Georgia's equivalent to 404(b) and 403. We discussed this in class and it is, unfortunately, quite common.
We will have a Q&A Review session at 10:30 a.m. Monday, November 27.
The exam is scheduled for 1:30-4:30 p.m. on Wednesday, November 29. But I want to give you 28+ hours for the exam. So it will be available for download on the blog at noon on Tuesday, November 28 and due in person at 4:30 on Wednesday, November 29 (when the in-class would end).
The exam consists of 10 questions and is worth 120 points. Same format as the preliminary exam.
Tuesday audio. See the separate post for review and exam information.
We will finish Question # 222, then do a broad overview of the Confrontation Clause; read Chapter VIII in Capra (only about 15 pages).
Also, SPOTs evaluations are open. Please complete them--we do welcome the feedback.
SCOTUS granted cert today in Diaz v. United States, a case dealing with FRE 704(b), the rule prohibiting experts from testifying that a criminal defendant acted with the requisite mental state. The defendant in a drug case offered an "blind mule" defense (he did not realize he was carrying drugs); the prosecution rebutted with xpert testimony that drug dealers do not "typically" trust large amounts of drugs to unknown couriers, so in most circumstances a driver carrying the amount of drugs as Diaz knew he was transporting drug
The court should resolve a circuit split as to the scope of FRE 704(b)--whether it only prohibits expert opinion as to this defendant's mental state ("Diaz knew he was carrying drugs") or whether it also prohibits expert opinion about a general group of people that includes the defendant by obvious implication ("anyone carrying as much as Diaz was carrying knew he was carrying").
The Court will schedule the argument for later in the Term. Note this is the first pure FRE case the Court has taken in several years.
Prep Residual Exception and Layered Hearsay and the associated problems. We will begin the discussion with FRE 804(b)(6) and FRE 807.
We continue with Declarant Unavailable and ## 215-16. Is Holman's statement against interest? If it is, is he unavailable? And what can the plaintiff do to make him unavailable or to get this evidence?
Move to Layered Hearsay and Residual Exception.
Monday audio. Judicial lecture at 12:30 next Thursday, November 16 in RDB 1000.
Prep Documentary Exceptions, Other Documents, and Declarant Unavailable.
(From Brittany):
This is the big courtroom scene from Legally Blonde. Now that you know something about law, procedure, and evidence: What is the evidentiary point she is pushing, what are the problems with the chain of inference (including under 104(b)), what evidence is missing, and what is wrong with how she presented the evidence?
Prep Documentary Exceptions, with a special focus on (5), (6), and (8), and Other Documents and Statements. Do not move to FRE 804 for Monday; we will begin that on Tuesday.
Also, per our discussion of FRE 803(4) and back to the evidence rules committee's first meeting. See Tab 6 for a discussion of some of the holes and inconsistencies in FRE 803(4) and proposals to make some changes--including placing statements by medical professionals within the exception and moving statements made for purposes of litigation out of the rule.
Of cooperating witnesses in the New York (Michael Cohen) and Georgia (Ken Cheseboro, Jenna Ellis, and Sidney Powell) trials against Donald Trump. Steve Lubet, the essay author, is a co-author of Evidence in Context.
Monday audio. Be sure to watch the hearsay exceptions video from the Additional Materials post.
Complete all problems with Spontaneous Statements, beginning with # 231 and the hymn "gives Jesse the courage to go on." What is the problem in establishing the hearsay exception with # 227? Circle back to Question # 156.
Move to Documentary Exceptions, focusing on FRE 803(5) and (6) for tomorrow.
Tuesday audio--Part I, Part II.
We continue with Spontaneous Statements; prep the entire section. What are the elements of FRE 803(1)-(4)? Note again that the problems build on one another. So when we get to these exceptions, the questions can deal with everything that came before, including whether something is hearsay and whether it falls within an 801(d) exclusion; be ready to recognize all those issues.
I previously mentioned the agenda of the next meeting of the Evidence Rules Committee. FRE 609 is not the only rule it has in its sights. Tab 5 offers proposals on FRE 801(d)(1) and how to handle statements when the declarant testifies. The proposal adopts the view that the hearsay problems vanish (or at least reduce) when the declarant testifies. The committee will consider several proposals--from amending 801(c) to exclude from the definition of hearsay a witness' own statements to amending 801(d)(1) to make all witness prior statements admissible to amending 801(d)(1)(A) to make all prior inconsistent statements admissible (even when not made under penalty of perjury). As with the 609 proposal, this is many years from passage, if at all; but it shows how the Committee is thinking and how much this law may change over the course of your careers.
This video compiles hearsay objections during Johnny Depp's testimony in his case against Amber Heard. Note the Judge ruling on some and telling the attorney to wait on others, because it was not clear whether Depp's testimony about what someone else said would present hearsay. At some point you get the sense the attorney is objecting to make life difficult for opposing counsel.
See p. 14 of the agenda for the next meeting of the Evidence Rules Advisory Committee. The proposal would repeal FRE 609 and exclude criminal defendants from FRE 608(b)(1) evidence. The result would be that criminal defendants cannot be impeached with past misconduct to show character for untruthfulness. The draft Committee notes and supporting documents rehearse the criticisms of FRE 609--it deters defendants from testifying and its probative value is questionable. We are a long way from this becoming law--it is one proposal from one professor and would have to go through numerous steps and several years. But it shows the discomfort with character impeachment.
The draft notes state that past misconduct may come in for other purposes, substantive and impeachment, without FRE 609.
Consider the following, which illustrates how we move among categories of credibility: Criminal defendant is on the stand, being crossed in a non-drug case:
Q: Weren't you a drug dealer?
A: No.
Q: Weren't you convicted 14 years ago of felony drug distribution?
Absent 609, how might this evidence be admissible?
We will be returning to the rules committee in the coming days, because other proposals affect FRE 801(d)(1) and FRE 803(4).
We continue with Introduction to Hearsay; review and complete all problems and rules. Note this cartoon from the additional materials.
• Why does the definition of hearsay as requiring the statement to be offered for the truth make sense, given the purposes behind the hearsay rules.
• When is a statement not offered TMA, as indicated in the reading? Consider whether the following are TMA: A couple is injured in a car accident; both die. For purposes of probate, the court must determine who died first.
• To show that wife was alive right after the crash, a witness testifies that he heard the wife say "I'm alive."
• To show that wife was alive right after the crash, a witness testifies that he heard the wife say "My husband is dead."
• To show that husband died first, a witness testifies that he heard the wife say "My husband is dead."
Prep Exclusions (FRE 801(d)). What is the difference between an exclusion and an exception? What are the possible ways to handle out-of-court statements where the declarant testifies? How does 801(d) draw that line?
Move to Spontaneous Statements, covering FRE 803(1)-(4). What are the elements of each of 803(1)-(4) and what gives the statements in these exceptions sufficient guarantees of trustworthiness? What is the difference between a statement offered not for the truth to show state of mind and a statement of state of mind under 803(3)?
Tuesday audio. Double session on Tuesday; make-up at 12:30 in RDB 2006.
Final point on Rulings on Evidence. One final issue with motions in limine is whether, having lost on the motion pre-trial, the party must renew the objection or offer of proof at trial. FRE 103(b) tells us the party does not when the court rules "definitively" on the record. A "definitive" ruling contrasts with a "conditional" ruling. The ACN tells us the burden is on the party to clarify the nature of the ruling to know what to do at trial. Courts often rule conditionally on MILs, stating an initial view but leaving open the possibility of a different ruling depending on how trial goes. Strategic answer: Repeat objections and offers to be safe.
We begin Hearsay, which will cover the final weeks of the semester. Prep Introduction to Hearsay, including The Hearsay Problem in the ACN. Review the hearsay rules as a whole to see, generally, how they fit together.
• Why do we generally not like hearsay evidence? How does it relate to our prior discussion of how we evaluate testimony and how we subject it to adversary testing?
• What are the four approaches to hearsay the Advisory Committee identified and what are the problems and benefits of each?
• What are the elements in the definition of hearsay and what does each element entail?
• What is the difference between a speaker's assertion and a listener's inference and how does that affect whether something falls within the definition of hearsay?
• What does it mean to be "offered in evidence to prove the truth of the matter asserted?" Given the preference for adversary testing the reasons for limiting hearsay, why does drawing the line by whether the statement is offered TMA make sense?
• Consider: Joe wants to establish that he was in his room, talking on the phone with Chris, at 10 p.m. Two versions; consider whether either or both is offered TMA:
• Chris testifies that Joe said "I'm sitting in my room in the boardinghouse."
• Chris testifies that Joe said "I'm sitting here in the dark; the power went out." There was a blackout affecting the street on which the boardinghouse sits.
• When is a statement not offered TMA, as indicated in the reading? Consider whether the following are TMA: A couple is injured in a car accident; both die. For purposes of probate, the court must determine who died first.
• To show that wife was alive right after the crash, a witness testifies that he heard the wife say "I'm alive."
• To show that wife was alive right after the crash, a witness testifies that he heard the wife say "My husband is dead."
• To show that husband died first, a witness testifies that he heard the wife say "My husband is dead."
Given the double session, I expect to get through Introduction, Exclusions, and the beginning of Spontaneous Statements next week.
Monday audio. Exams available outside my office. Feel free to stop by to ask questions after taking the time to review the exam and all the posts.
Complete and review all of Rulings on Evidence, including the extra statutes. Why make motions in limine (at the outset of litigation)? What are the standards of review and how do they affect the question of whether the district court erred? What is the role of plain error under FRE 103(e)?
We should begin hearsay on Monday, which will lead to our double session on Tuesday. The make-up will be 12:30-1:45 in RDB 2006.
My apologies. I thought I had provided this at the beginning of the semester (or that you might carry them over from Civ Pro(). Put these to use for the final.
Exams will be available for pick-up at the end of class Monday.
Some general issues on the exams, in addition to I wrote on your papers. Please review this, the sample answer, and other comments; I am happy to meet to review and answer questions.
Please note what I mentioned in class: The recorded grade is two (2) points higher than what appears on your paper. I added two points to every paper when I realized it was not possible to cover some issues.
Because I know folks will ask:
Median: 41.75
Mean: 41.1
High: 56
Tuesday audio. Make-up class 12:30-1:45 on Tuesday, October 24.
We continue with Presumptions. Prep Question # 106; for each possibility, think about the role of FRCP 50, who would move and the arguments from each side, and the appropriate jury instructions. Imagine the likely element(s) of this claim. In addition, consider the following further events:
1) Mrs. Young fails to offer evidence of diligent-but-unsuccessful efforts.
2) Mrs. Young offers evidence that Jerry has been gone for 6 years, she has not received tidings, and she has made diligent efforts.
3) During trial, the insurance company calls a surprise witness, who takes the stand and identifies himself as Jerry Young.
Prep all of Rulings on Evidence, which I hope to get to late on Monday and certainly on Tuesday.
Download here or read after the jump. Due at the beginning of class next Tuesday, October 10. Please read and abide by all rules. Good luck.
Tuesday audio. Preliminary Exam posts at noon; due in class next Tuesday. Note that the syllabus makes clear that you are not to leave class once it has begun; I will begin enforcing that. If you have some reason to get-up mid-class, please notify me in advance.
We continue with Presumptions and FRE 301. Why have presumptions--why does the law require the finding of a material fact from certain basic facts? See C&S p. 423 for some common presumptions--why allow those presumptions? What is the difference between a rebuttable and irrebuttable presumption? Consider how FRCP 50 motions fit into this. What is the purpose of factual presumptions? Work all the possible permutations in Question # 106 (on the death presumption); also work the following problem:
Consider the following presumption and how it would work under FRE 301 and FRCP 50: A child born within 300 days of married opposite-sex couple living together as husband and wife shall be presumed to be the product of the marriage.
H sues W for custody and must prove paternity. Consider how the presumption operates on the following:
1) H offers evidence that they were legally married, living as H&W, and the child was born within 300 days of their living together; W offers no evidence.
2) H offers evidence that they were living as H&W and the child was born within 300 days, but no evidence they were legally married.
3) H offers evidence they were legally married but no evidence they were living as H&W.
4) H offers evidence that they were legally married, living as H&W, and the child was born within 300 days of their living together; W offers evid they were not legally married.
5) H offers evidence that they were legally married, living as H&W, and
the child was born within 300 days of their living together; W offers evidence they were not living as H&W.
6) H offers evidence that they were legally married, living as H&W, and
the child was born within 300 days of their living together; W offers evid that H had vasectomy, DNA evidence showing someone else as father, and evidence of an extra-marital affair.
Evidence
Preliminary Examination
Professor Howard Wasserman
FIU College of Law
Fall 2023
Format:
This Preliminary Examination will be administered over one week. It will be available beginning at noon on Tuesday, October 3 and due in hard copy at the beginning of class on Tuesday, October 10. You can download the exam from the blog (fiuevidence.blogspot.com); you will return it in class.
The exam consists of seven (7) Short-Answer Questions, worth ten (10) points each. The exam will be worth 70 points towards your final grade.
You may write up to 300 words on each question unless a question indicates otherwise.
The first page of your exam answer must be a cover page containing your Blind ID #; begin your answers on the second page. Please staple the pages (no paper clips or binder clips).
Each answer must include the word count for that answer, as described below. Two (2) points will be deducted from any answer not followed by a word count.
Please begin each answer on a new page.
Once the exam becomes available, you may not discuss it, the questions, the answers, or anything about it—in any oral, written, or other form—with your classmates, me, any faculty member, your friends, your family, strangers, pets, extra-terrestrials, inanimate objects, or anyone in the known universe. Please respect your classmates, yourself, me, and the legal profession by adhering to this rule.
Monday audio--Part I, Part II. Prelim Exam will be posted here at noon tomorrow; due in class Tuesday, October 10.
Prep Process, Burdens, and Presumptions. We will continue discussing the burden of production and the other possibilities besides Pty I meeting the burden. How does burden of production work within the trial process and under what rules? What are presumptions and how do they operate? See C&S p. 423 for some common presumptions. Consider the following presumption and how it would work under FRE 301 and FRCP 50: "A child born within 300 days of a legally married cis-gendered opposite-sex couple living together as spouses shall be presumed to be the product of the marriage." What is the difference between a rebuttable and irrebuttable presumption?
This Tenth Circuit case, beginning on page 20. The court offers a nice standard for what inferences are permissible under 701 and when they are grounded in expertise requiring qualification under 702. At issue was a company CEO's testimony about lost profits for calculating damages in a breach-of-contract case and whether it was based on his observations and knowledge as CEO (and thus constitutes lay opinion) or whether it relied on more complex math, experience, and expertise (and thus his qualification as an expert).
It is worth noting that similar problems arise with law-enforcement testimony. Officers go back and forth between lay and expert testimony without expert qualification, often without the court closely monitoring this movement.
Tuesday audio. Make-up session 12:30-1:45 Monday in RD 2006.
Prep the remaining sections of Impeachment: Character, PIS, and Review. If we do not get through this on Monday, we will on Tuesday.
We will begin with the last step in the 608 process involving Tom, Ira, and Andrew. Spend some time on the structure of the pieces of FRE 608 and how this impeachment operates. Consider ## 75, 76, 78, and 79 together as different paths on the same issue; we will go through it in a slightly different order. Consider who each witness in the problems corresponds to. What must the proponent show to admit a specific instance of conduct under 608(b) and which rule (104(a) or (b)) guides that? What is the inference at work in FRE 609? What is the order for analyzing FRE 609(a), in terms of the elements to consider and when?
If we finish Impeachment on Tuesday as I expect, the preliminary exam will post at noon Tuesday and due in class on Tuesday, October 10. More details forthcoming, but the exam will consist of seven short essay questions.
Tuesday audio. No class Monday; g'mar tov to those observing. We will hold the make-up from 12:30-1:45 on Monday, October 2 in RDB 2006.
Continue Introduction to Impeachment, including the assigned problems. We will continue with the remaining five issues for credibility. The first nine (discussed in class) are non-collateral. Five remain. Read FRE 608(a) and (b) with care and try to work out the process through which a witness can be impeached (or accredited) on character for truthfulness. Note that character for truthfulness is one sub-part of witness credibility--the broad issue is "whether the witness is lying," whereas character offers one way to show "he is a liar therefore he is lying."
We continue with Witnesses and the associated problems. Consider the roles of three actors: The witness (bound by FRE 602 and 701), the attorney, and the factfinder; what inferences or guesses can each draw and how? Consider the admissibility of two pieces of testimony in a negligence case alleging defendant was impaired by alcohol:
1) Witness says "Defendant was drunk."
2) Witness says "Defendant was under the influence of alcohol."
Then move to Impeachment: Introduction to Impeachment; do the Rules and the CS reading. From the reading, pull out two distinctions: 1) Collateral issues v. Non-Collateral issues; 2) Extrinsic evidence v. Non-Extrinsic Evidence. What does each mean and how do they relate to one another. The CS reading breaks down numerous pieces of credibility--we will expand on that in class. Also, review your notes from earlier in the semester about the trial process.
Finally, a word on demeanor evidence. As we said in class, it raises problems. The nonverbal cues do not reliably indicate truthfulness or untruthfulness as much as something else--nervousness or discomfort or pressure about being in court, etc. And many nonverbal cues and the conclusions we draw from them play on stereotypes or biases about race and gender.
In this case,
the state court of appeals reviewed (and reversed) a restraining order
barring a woman (the defendant) from posting certain information about
her estranged husband (the plaintiff) in the midst of a rancorous
divorce. The trial court served as factfinder in issuing the restraining order. This from pp. 10-11:
In an oral decision supporting the issuance of the FRO, the judge found plaintiff credible and defendant not credible based on "demeanor," "body language," and the content of the testimony. Specifically, the judge remarked that plaintiff's "demeanor was straightforward," "[h]e didn't embellish" his testimony, "[h]e didn't fidget" while testifying, and his "testimony ma[d e] sense." Conversely, according to the judge, defendant's "testimony didn't make much sense," particularly since she claimed she made the video for the rabbinical judges but addressed the plea in the video to anyone who could help her. Additionally, the judge pointed out that during questioning, defendant was "looking all over the room" and "there was a blank look in her face."
In a footnote at the end of this ¶, the court of appeals noted that "there was no request for recusal" of the trial judge--a strong hint that the court of appeals believes the trial judge was biased in how it evaluated the witnesses and perhaps should have been recused. The court of appeals resolved the case on First Amendment grounds, so the credibility of each witness did not affect the outcome on appeal. Still, the trial court's language reveals the concerns over demeanor evidence.
Casey turns to Friends to illustrate the moral hazard inference that FRE 411 rejects:
We continue with the Sexual Assault rules. What is the purpose of FRE 412, as a matter of the truth-finding process and as a matter of external policy goals? Then turn to FRE 413-415. Again, consider why we have these rules and whether that rationale makes sense. Note the process by which these rules came to be and compare with unenacted FRE 404(a)(4) and FRE 405(c).
Prep Relevancy Review. We will work through some of those problems as a capstone to Relevancy.
Then move to Witnesses, with a focus on FRE 601-602 and FRE 701. What does FRE 701 mean by "opinion?" What are the different things that a factfinder, an attorney, and a witness can do with a piece of information?
We continue with Policy-Based Exclusions, covering FRE 407-409 and 411 (skip 410). Note that FRE 408 is very confusing in its text, so take the time to parse it out. We start with how FRE 407 affects the evidence about Ross telling Kerry not to make accusations but to come to him when she has concerns. Prep the remaining problems for this section. Please note, by the way, that the policy of a rule does not determine whether evidence comes in or not; the text of the rule decides that. The policy justifies the rule and perhaps gives guidance as to what the text means and how to apply it. But don't look to the policy, rather than the text, in arguing and deciding an evidentiary issue.
We move to Special Rules in Sexual Assault, covering FRE 412 (the rape-shield) and FRE 413-415 (other acts of sexual assault and child molestation). How do these rules fit together? What is their purpose or policy goals; do they achieve those goals; and do those goals make sense? Why make special rules for sexual assault? What does "sexual predisposition" entail?
Two additional things worth thinking about FRE 404(b)(2) and other crimes, wrongs, or acts.
1) The permissible use a party will argue for other acts evidence may depend on which act is charged and which act is used as evidence. Recall the examples from class: As between a bank robbery and funding terrorism, whether it is plan, preparation, or both depends on whether government charges the robbery or the funding. As between bank fraud and murder of a witness, whether it is motive, consciousness of guilt, or both depends on whether government charges bank fraud or murder.
But that opens a way for a proponent of evidence (especially a prosecutor) to get around FRE 404(b) problems--charge all acts.That way, all acts are charged and none are evidential. The prosecutor can charge both bank fraud and killing the witness, making both charged rather than evidential acts
2) Here is a bit of "reverse 404(b)(2) identity" from the 1985 film The Jagged Edge. The woman lawyer is defense counsel for a man charged with murdering his wife in a specific and sexually ritualistic way. The defense calls a witness who was the victim of an identical specific and sexually ritualistic crime (the description in the testimony is very graphic). The defense is obviously trying identity--whoever committed the prior assault committed the charged murder and that person is someone other than the defendant. From the clip, what is the argument for and against admitting this testimony, given the two steps in the 404(b)(2) analysis? (Ignore the part where the defense asks about conversations with the DA).
We pick up with Habit and Routine Practice and Question # 40 and working through the remainder of the problems. To clarify something: FRE 403 is an automatic part of the habit analysis, as the courts ensure that habit is not defined so broadly as to undermine FRE 404(b)(1).
We move to Policy-Based Exclusions. For Monday, prep FRE 407--Problems 45-46, and CS § 4.1-4.2; for Tuesday, prep the entire section. Each of these exclusions can be justified as improving the truth-finding process and as serving public policies extraneous to litigation; identify both rationales for each of these rules. Consider the role FRE 403 plays in each of these. Consider how FRE 407 applies in the following products-liability cases:
π purchases a product in 2020; the accident occurs in 2021; the company redesigns the produc in 2022.
π purchases a product in 2020; the company changes the product in 2021; the accident occurs in 2022.
π purchases the product in 2020; the accident (caused by defects in the steering system) occurs in 2021; the company redesigns the braking system in 2022.
Natalia provides Randolph v. Nevada--A man was convicted of murdering his wife and a co-conspirator, partially using evidence of the death of his prior wife (a charge on which he was acquitted). Although it uses Nevada's other acts rule, the analysis is similar.
The video below discusses the case.
Tuesday audio. No class Monday; enjoy the long weekend.
Continue with Conditional Relevancy, which will double back onto 404(b). How do FRE 104(a) and (b) map onto the two questions in the FRE 404(b)(2) analysis as described in Bell?
Move to Habit and Routine Practice. What is habit and how does it differ from character, other acts, and routine practice?
Some final points on Identity under FRE 404(b)(2). The identity arguments for the shooting and barroom fights are not strong, although it was important to see and make the arguments. But identity requires real similarities in the details and manner of the action--something allowing the inference (beyond character) that the same person committed the evidential and charged acts. So this can be used for serial killers who follow a particular MO in the crimes--in choice of victim, location, manner of performing the acts, etc. The act has a "calling card" or "signature" or "fingerprint," linked to that person.
One example might be Ted Kaczynsky, the "Unabomber," who sent homemade bombs through the mail to people at universities, airlines, and other technology-related industries.Another is "Son of Sam," David Berkowitz, who used a .44 caliber handgun to kill women with long, dark waivy hair, usually by finding them in parked cars with their boyfriends.
Or to use pop culture, this scene from Home Alone.
For Tuesday, prep the rest of Other Acts, finishing the list in FRE 404(b)(2) and other uses.When is an other act "inextricably intertwined" and how is that significant for a 404(b) analysis? Work through the problems in this section.
In class we mentioned the use of rap lyrics for showing intent. The Restoring Artistic Protection ("RAP") Act
would add a new rule to the FRE limiting the use of artistic expression, by requiring a
stronger connection between the music and the case at issue. Several states have enacted or considered similar rules. This
attempts to address the objection that the regular use of rap music and
lyrics punishes bad art.
Then move to Conditional Relevance; prep FRE 104(a) and (b) (no need to do the rest of FRE 104) and everything else assigned. What is the difference in standard between (a) and (b)? How do (a) and (b) map onto the two questions in Bell analysis?
Prep all of Character Evidence and Prior Bad Acts, covering 404(a) and 404(b) and all the associated materials. What does it mean for character to be an essential element in FRE 405(b) and how does that square with 404(a)(1)? Is murder or perjury a charge on which character is an essential element? Is defamation a claim for which character is an essential element? Review and understand each of the permissible uses in 404(b)(2), including how the court analyzed them in Bell.
We continue with Character Evidence and Bad Acts; do not prep the entire section. For tomorrow, prep FRE 105, 404(a), and FRE 405; Problems 15-28; and C&S 69-89 (which will be helpful in understanding (a)(2) and 405(b)). Work through the pieces of FRE 404(a). As you go through the problems, fit each into FRE 404(a)(1) and any exception(s) in FRE 404(a)(2); note that each exception has multiple clauses, so make sure you identify the applicable one. What is the connection between FRE 404(a) and FRE 405(a)?
Tuesday audio. You hopefully now have a sense of how the problems will go and how you should prepare. Hopefully everyone will have books by Monday.
We continue with Introduction to Relevancy; prepare the remaining problems in this section and begin reviewing the MacIntrye case file, ready to identify the claims and defenses at issue.
Then move to Character Evidence and Bad Acts; we will cover the first half of this section at the end of Monday and all of Tuesday. For next week, prep FRE 105, 404(a), and FRE 405; Problems 15-28; and C&S 69-89. Consider: What is character evidence and why do we not want it admitted in judicial proceedings? What character judgments do you make in life and why don't we allow similar judgments in judicial proceedings?
I will circulate a seating chart tomorrow; please try to keep the room reasonably balanced. We will spend the first few minutes tomorrow on the Syllabus.
We move to Relevance: Introduction to Relevance, with special attention to FRE 401-403. What are the elements of relevancy and what do those terms mean? What does "more probable than without" mean and what does it not mean? What does FRE 403 require and how does it interact with FRE 401? What is the difference between asking about the "weight" of evidence and about the "admissiblity" (or "relevance") of evidence? Become familiar with Mitchell and prep Questions #3-6 (that is as far as we will get).
Welcome to Evidence.
This blog will be my means of communicating outside of class.
Please download and read the Syllabus
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 (6th ed. 2023) (NITA) (Case Files for People v. Mitchell and McIntyre v. Easterfield) (Problems)
2) Daniel J. Capra & Stephen A. Saltzburg, Principles of Evidence (9th ed. 2022) (West) ("C&S")
After the jump are the additional materials (statutes, cases, readings, etc.) assigned throughout the semester, as indicated by the notation Blog on the Syllabus. This will be the post to return to for those materials and I will relink to this post periodically. You may want to bookmark this one.
