Monday audio. Exams are in my office for those who missed class or did not stay to pick them up.
Prep and review all of Introduction to Hearsay. We begin with the question of how we determine whether someone intended conduct (such as opening the umbrella) as an assertion; what can we consider to answer that question?
Sample answers after the jump. Points could be awarded to things that were correct but took a different path.
Numbers:
Mean: 58.25
Median: 56.5
High: 101
Some comments on repeated problems:
• REA. Too many people skipped the RE and collapsed everything into the conclusion. Alternatively, don't spew a bunch of rules together (without explaining why or how they fit) before applying. Unless multiple rules combine to form a single rule (and, again, you must explain why and how they combine), you should not cite multiple rules in a row. Cite and explain a rule and apply it, then move to the next issue (explaining why you're moving to that issue). If you find yourself spouting multiple rules in a row, stop and rework.
• If evidence is barred by 404 or 407, that does not mean it is irrelevant; it means it relies on an impermissible inference to get there. Consider # 1. The evidence is relevant. If Ferrer is a smut and prostitution peddler, we can infer (through a propensity inference) that he peddles smut and prostitution on his web site, in which case the stuff on the site is not constitutionally protected and so the jawboning claim fails; that satisfies 401. The problem is that the inference runs afoul of 404(a), which is where your analysis should go. Same with # 6. The evidence is relevant: Changing practices make it more probable Dart was aware his prior actions violated the First Amendment and more likely his prior acts violated Backpage's rights. The problem is this inference runs afoul of 407.
• The relevancy analysis (which was unnecessary) in those two questions was too cursory in any event, in that many did not think carefully about possible long inferential chains. It stopped at "this case is about whether the sheriff engaged in jawboning and Ferrer's character as a prostitution peddler has nothing to do with that." Too conclusory. An actual relevancy analysis requires you to work through inferential chains to particular facts of consequence, not the claim as a whole. So what inferences can you draw from his character and where can they lead you? You must do the work on that.
• Stop using adverbs (as I said in the Good Writing post). Many of you changed legal standards by throwing in unnecessary adverbs and adjectives. If you are making a relevancy argument, you don't have to show the evidence has "high" probative value or "substantial" probative value or is "highly relevant;" so don't use those words. In fact, they undermine your case. What happens if the judge concludes the evidence is "relevant" but not "highly relevant?" Do you lose? Why make life hard for yourself?
• Don't make up facts and law. You had a specific legal standard. But many spoke in different terms with different legal meaning. For example, the legal issue is whether Dart knew or acquiesced in Smith's violative actions (sending the letters); that is not the same as whether Smith acted in her official role. Be precise and use the law you were given.
• Questions are not evidence and therefore a question cannot be inadmissible. The issue is whether the evidence sought by the question is inadmissible. Not the same thing. This affects citation--if explaining whether evidence is admissible, talk about the evidence (the witness answer), not the question. As always, precision matters.
• Don't talk about the other side. Make your arguments to issues, not to the other side.
• Question # 6: It is not enough to declare something a subsequent remedial measure. You must discuss the measure and explain why it satisfies the elements of 407--that it occurred after the injury and why it would have made the harm less likely.
• Many, many people stated the 401 standard properly ("more probable than without") than wrote "more probable than not" in their analysis portion. Proofread.
• Note that 406 and 404(b)(2) do the same thing--a way to admit other acts evidence. 406 is direct--it comes in for action-in-accordance, if a habit or routine practice. 404(b)(2) is indirect--it comes in for a non-action-in-accordance purpose. You thus don't need both. If you have a routine, you can get it in for propensity; no need to do the 404(b)(2) work.
• Separate habit from routine practice. The latter need not be semi-automatic or non-volitional.
• Question # 3 was tricky (thus more words and more points). The key was to separate the evidence (the letters) from the foundation issues (Dart's connection to the letters and Smith's testimony about sending them) the attorney raised in the objection. It moves in 3 steps. The letters are relevant to (in fact, they constitute) a violation--they show Smith jawboning. But these threats are relevant only if Dart approved the letters (given the substantive law). So now you have to find a way to link Dart to letters from Smith. That is where 104(b) comes into play--you need PSSF that Dart approved these letters. But we know he didn't approve them; we only know what Smith generally does with letters under Dart's policies--which is impermissible other acts to show action in accordance ("he approved of past letters therefore he approved these letters"). And that is where 406 comes into play--the office's general practices show his approval of these letters, thereby establishing the conditioning fact. The letters themselves are not evidence of routine practice. The letters are the evidence; routine practice (via Smith testimony) establishes the foundation.
We will finish Rulings on Evidence, beginning with Question # 114--why can Jesse raise the proper argument (it fits a hearsay exception) on appeal when she did not make the argument at trial?
We then move to Hearsay, which will take us through the rest of the semester. For Monday and Tuesday, prep Introduction to Hearsay. Be sure to read the Introductory Note to the Committee Notes, The Hearsay Problem. What are the four possible approaches to hearsay, what are the drawbacks to each, and why did the committee adopt the approach it did?
Monday audio. No class next Monday. Prelim Exam due at the beginning of class next Tuesday.
We continue with Rulings on Evidence. This will take us through all or most of class next Tuesday. We then will begin Hearsay the following week.
Instructions. Regular type; Large type.
Due at the beginning of class on Tuesday, October 21.
Profs on the Evidence Profs Listserv (a group that knows how to party) got into a discussion of FRE 412(b)(1)(B) allowing "evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor." One prof (in response to a student question) wondered why the prosecution would offer evidence of prior sexual contact between the victim and defendant.
The discussion produced the following possible instances:
The platform I used to upload audio from earlier in the semester shut down. I am trying to go back to those videos and upload them, although sharing on Google docs is not working right now.
I will try to upload them by the end of this week.
Monday audio--First hour, first part of regular class, last part of regular class. No class next Monday, October 20. Prelim Exam instructions here. Prelim exam will post at 12:30 tomorrow; due at the beginning of class next Tuesday, October 21.
Continue with Question # 106 and the rest of presumptions, including Unencated Rule 303. In addition to what you have, consider the extreme case: Mrs. Young gives the testimony in (A), then the Insurance Co. calls a suprise witness-a man who takes the stand and says "I'm Jerry Young." Ins. Co. moves for Judgment as a Matter of Law; how should the court rule?
Move on to Rulings on Evidence.
Regular Type; Large Type. Reprinted after the jump.
The exam will post here at 12:30 p.m. on Tuesday, October 14.
Tuesday audio. Make-up at 1 p.m. Monday in RDB 2006, followed by regular class. No class on Monday, October 20. The Prelim Exam will post at 12:30 next Tuesday, October 14. It will be due at the beginning of class on Tuesday, October 21.
We continue with Trial and Presumptions; review FRCP 50 and FRCrP 29. What is a presumption and how does it operate, in the bigger picture and at the level of individual facts? Why have presumptions (or "instructed inferences") and how do they operate? What is the difference between a rebuttable presumption and an irrebuttable presumption? How does FRCP 50 operate with presumptions?
In addition to Question # 106, prep the following presumption: "If a child is born within 300 days of legally married opposite-sex couple living together as husband and wife, the husband shall be presumed to be the father." Husband sues Wife for custody of a child; he must prove paternity as an element of the claim (along with the best interests of the child).
Monday audio. Our second make-up will be at 1 p.m. next Monday, October 13.
We will finish a handful of problems from Impeachment. Put a slight twist on Question # 95 (in addition to what is in the book): Could Chris also testify that Joe is a peaceful person? And if he did, could the prosecution introduce the prior violent incidents?
We then move to Trial Process. For tomorrow, prep FRCP 50, FRCrP 29, C&S pp. 5-7 and 413-20, and Questions ## 103-104. We will discuss burdens of persuasion and production; I suggest reviewing your Civ Pro outline for that material.
We begin where we left off on FRE 609. What is the difference between the balancing in 609(a)(1) and (a)(2)? Prep and review Prior Inconsistent Statements and Impeachment Review. I hope to finish Impeachment by Monday or early Tuesday, then move to Trial Process.
I expect to distribute the Prelim Exam on Tuesday, October 14, due in class on Tuesday, October 21. You will have one week, including a Monday that you will not have this class.
Monday audio--One long recording. I expect that a normal class will not produce the traffic we saw today.
Review Character and prep Prior Inconsistent Statements. As you work through these problems, keep the Tom/Ira/Andrew framework in mind and identify who is who. Is there a difference between a "dishonest" act and a "false" act for 608 purposes?
On FRE 609, note that a proposal circulating in the Rules Committee would add the word "substantially" before "outweighs" in FRE 609(b)(1)(B).
Monday audio. Double session on Monday, September 29, with a slight change: We will begin at 1 p.m. (not 12:45), then go straight through until 3:15. We will make up the exra 15 minutes at some point.
In class I mentioned Florida's "other sex acts" rule: Florida § 90.404(2)(b)1, an exception to the other-acts rule for child molestation (not adult sexual assault).
Prep and review everything for Witnesses. Then prep Impeachment: Introduction and Impeachment: Character. We will identify 14 aspects of witness credibility that can be attacked or supported; this is a further breakout of the aspects described in the C&S reading.
Tuesday audio. No class on Tuesday. Our first make-up will be at 12:45 on Monday, September 29.
We will finish Sexual Assault. How does the changing paradigm of sexual assault change the effectiveness of FRE 412(a) in protecting victim privacy?
Prep Relevancy Review, which offers a nice capstone to the 400 rules. Then prep all of Witnesses, which will take us through next Monday and then our double session the following Monday.
Our next two sections are Witnesses and Impeachment. The Preliminary Exam will cover through and including Impeachment. So expect it to post sometime in early-/mid-October. It is a one-week take-home, consisting of 6-7 short-answer essays.
Texas appellate courts overturns conviction where prosecution offered evidence defendant wrote and performed rap.
Monday audio. Constitution Week panels tomorrow and Wednesday; both at 12:30 in RDB 1000. We will look for some make-up times for 9:30, TBD. Our first make-up will be at 12:45 on Monday, September 29.
Prep 411 and 408; we will begin with questions 51 and 52, then move to FRE 408. Spend time trying to parse the rule and what is going on.
Prep Sexual Assault, covering FRE 412 (Rape Shield) and FRE 413-415 (special propensity rules).
Tuesday audio. Again, happy Leslie Thompson Mitchell Day to all who celebrate.
Couple clarifications:
1) Nothing "comes in" under FRE 104(a) or (b). Those are simply rules allocating responsibility for deciding issues.
2) On the connection between FRE 401 and 104(b): You have to determine relevancy under 401 first, walking step-by-step through the inferential chain. In doing so, you may recognize that the inferential chain works only if some outside fact is true. That is when you look at 104(b). For example: You have the key and want to prove Brooke set Leslie up--what is the inferential chain? And what fact do you then see that the chain requires?
3) The text of FRE 406 does not allow evidence of a person's routine practice. The point we made in class was that some courts have been a bit more forgiving on this even if the act does not qualify as habit (e.g., evidence of stopping for the same drink on the way from work every night). The only way to understand that is the court--atextually--allowing evidence of a person's routine practice. It may not work (and won't if the court actually reads the rule). But you can try it, depending on what courts in that jurisdiction have done. Just recognize what you are doing.
We continue with Habit. Then move to Policy-Based Exclusions; for Monday, prep FRE 407 and 409; we will do FRE 411 and 408 on Tuesday.
On FRE 407, consider the admissibility of the following and for what:
1) A purchased product in 2020; the accident occurred in 2021; ∆ redesigned product in 2022
2) A purchased product in 2020; ∆ changed product in 2021; accident in 2021
3) A purchased car in 2020; accident (involving steering problems) in 2021; redesign brakes in 2022
Someone is going to be a judge asked to decide the 104(b) issue on Question # 32. How do FRE 104(a) and (b) map onto the two questions for FRE 404(b)(2)? Be ready to argue both parts of that test as to the remaining other acts questions.
Then move to Habit and FRE 406.
We continue with Other Acts, including the associated problems; think of all possible 404(b)(2) uses for each and the counter arguments. Take a look at the Restoring Artistic Protection Act of 2022 ("RAP Act"), which is intended to respond to and limit the 404(b) problems with using rap lyrics and other music for evidentiary purposes.
Prep Conditional Relevance and consider how that maps onto the two steps in Bell. What does "proof sufficient to support a finding" mean?
We shared the quotation about cross-examination ("greatest legal engine ever invented for the discovery of truth"), which originates with John Henry Wigmore (former dean of Northwestern Law and the leading early-20th-century evidence scholar). But he went further with it, writing in 1911:
the final establishment of the right of cross-examination by counsel, at the beginning of the 1700s, gave to our law of evidence the distinction of possessing the most efficacious expedient ever invented for the extraction of truth (although, to be sure, like torture, — that great instrument of the continental system, — it is almost equally powerful for the creation of false impressions.
As with much of what we cover in this class (or frankly any other), it goes both ways.
Prep the rest of Character and Bad Acts, covering 404(b) and US v. Bell. What does it mean for character to be an essential element of charge or claim? How does that square with 404(a)? What sorts of things are covered and what are not? Is murder? What about perjury?
What are the various permissible uses under 404(b)(2)?
We continue with Character. For tomorrow, prep FRE 404(a) and 405, along with Problems 15-27 and pp. 69-89 in LCS. Do not worry about FRE 404(b).
We will begin with when evidence of a character trait might be admissible (without looking at the exceptions in FRE 404(a)(2) and (3)). Then we will work the assigned problems.
We will get to FRE 404(b)(2) and the rest of the LCS reading next week.
Prep the remainder of Introduction to Relevance. Become familiar with the facts and basics of both cases.
Move to the beginning of Character Evidence. Read FRE 404(a) and the ACN, along with Capra pp.n69-71. We will just get into the basics of what character evidence is and why it is problematic.
Monday audio. Very nice first day.
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.
Here, again, are the discussion questions.
We move to Relevance: Introduction to Relevance, with special attention to FRE 401-403. Become familiar with Mitchell and prep Questions #3-8 (that is as far as we will get). We will do the remaining questions and move on in class next Monday.
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.
Here are Class Discussion Questions that we will use to guide class conversations (in addition to the problems in Evidence in Context). You now have most of the questions for the entire semester. You should print this and keep it with the Syllabus.
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")
You will write two short-answer essay exams. Because you will have the time, I want to see them well-written and that you discuss the evidence and procedure in proper terms. Much of this is a review from Civ Pro last semester.
After the jump.
At our first meeting on Monday, August 18, I will provide a stack of tent 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.
I will distribute a seating chart on the second day of class, Tuesday, August 19.
Please try to distribute yourselves evenly between the two halves of the room.
Many of you do OCI this semester and interviews may be during class time, requiring you to leave early or come in late. That is fine and understood. Please try to notify me in advance and leave through the back door.
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 so you can easily get to it later in the semester.
