For Monday

Tuesday audio. Prelim Exam due next Tuesday in class.

Prep all of Process, Burdens, and Presumptions. What are presumptions and how do they operate? 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. 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);

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

Instructions. Regular type. Large type.

For Tuesday

Monday audio. Prelim Exam drops at 12:30 Tuesday, October 15; due in class on Tuesday, October 22. Instructions here.

We turn to Trial Process, Burdens of Proof, and Presumptions. Prep FRCP 50, FRCrP 29, Problems 103-104, and C&S pp. 5-11 and § 12.1. Again, you may want to review your Civ Pro notes/outline on burden of persuasion and burden of production; we will cover a lot of that territory, but as applied to a trial.

    • What is the burden of persuasion? What are the standards of persuasion and what does each mean?

    • What does it mean to meet and to shift the burden of production? How does the burden of production play out in trial?

Preliminary Exam Information

Evidence

Preliminary Examination

Professor Howard Wasserman

FIU College of Law

Fall 2024

Format:

This Preliminary Examinationwill be administered over one week. It will be available to see and download beginning at 12:30 p.m. on Tuesday, October 15 from the blog (fiuevidence.blogspot.com). It is due, in hard copy, at the beginning of class on Tuesday, October 22.

The exam consists of five (5) Short-Answer Essays. Four (4) questions are worth twenty (20) points and you may write up to 500 words. One (1) question is worth thirty (30) points and you may write up to 750 words. The exam is worth 110 points towards your final grade.

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, non-verbal conduct intended as an assertion, 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 Monday

Tuesday audio.

For Monday, finish all of Impeachment, covering PIS and Review. We might finish this on Monday but certainly will at the beginning of class on Tuesday.

The Prelim Exam will post at 12:30 p.m. next Tuesday, October 15, due at the beginning of class on Tuesday, October 22.

 

For Tuesday

Monday audio. My hope is that we will finish Impeachment next Tuesday (Oct. 15), in which case the Prelim Exam will be posted that afternoon and due on Oct. 22. We have one class to make-up, which we will do on Monday, November 4.

Prep the remaining sections of Impeachment: Character and PIS.

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 sorts of acts are probative of truthfulness or untruthfulness? 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? Work the rule.

What is the difference between contradiction and prior inconsistent statement? Given FRE 613, why might the difference matter? Does FRE 613(b) prohibit extrinsic evidence of a prior inconsistent statement? Consider the collateral/non-collateral line as you work those problems.

For Monday

Tuesday audio. Shana Tova to all who celebrate.

Prep the problems for Introduction to Impeachment, then move to Character, Bias. As you go through them, get precise as to which aspect of credibility you are talking about, whether it is collateral or non-collateral, and how to prove it (extrinsic or non-extrinsic or both). Note the overlap and the possible movement between categories.

Quick points of clarification:

1) Non-extrinsic evidence is the target witness' testimony--what the witness says in response to a question asked by the attorney. So if you ask a target witness "isn't it true that you said Y in the past?" and the witness says "yes," that is testimony, and thus non-extrinsic evidence, impeaching by prior inconsistent statement. If you ask a target witness "isn't it true that you have cataracts and were not wearing your glasses?" and the witness says "yes," that is testimony, and thus non-extrinsic evidence, impeaching by perception.

2) The prior inconsistent statement used to impeach is something that the witness said off the stand in the current case. It is not inconsistency within the testimony given in the current case. It is inconsistency with what he says on the stand and what he has said off the stand at some other time.

For Tuesday

Tuesday audio.

Note that I wrote something wrong on the board: The fourth piece on which testimony is evaluated should be sincerity, not consistency.

Finish Witnesses. 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." 

Review your notes (from the first day or two) on the trial process

Move to Impeachment: Introduction to Impeachment; do the Rules and the CS reading; the problems can wait until next week. 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.