More on RAP Lyrics and FRE 404

Texas appellate courts overturns conviction where prosecution offered evidence defendant wrote and performed rap.

For Tuesday, September 16

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). 

For Monday, September15

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 

For Tuesday, September 9

Monday audio.

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. 

Disappearing juries

Short essay discussing the decline of juries in civil and criminal cases.

For Monday, September 8

Tuesday audio.

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?

Greatest Legal Engine Every Invented

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.

 

For Tuesday, September 2

Tuesday audio.

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)?