Happy Halloween

 

For Next Class

Tuesday audio.

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.

On Cross Examination

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.

For Next Class

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.

For Next Class

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.

Three Minutes of Hearsay (video from Megan Welch)

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.

Proposal: Eliminate FRE 609

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).

For Next Class

Monday audio.

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)?

 

For Monday

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.

For Tuesday

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.

Good writing

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.

Comments on exams

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

For Monday

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.

Preliminary Exam

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.

For Monday

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.

Preliminary Exam Information

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.

For Tuesday

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?