After the jump.
To be clear: These are samples, how one person might approach and answer the questions. Other responses or approaches might earn points.
You can use this to self-evaluate your answers. When I return papers next week, please review your graded paper with this before coming to me with questions.
Tuesday audio. Sample Answers to the Prelim Exam will post later this afternoon.
For Monday, prep the problems on Rulings on Evidence.
Depending on how quickly we get through these, we might begin Hearsay towards the end of class. Read C&S § 5.1 and the Introductory Note, The Hearsay Problem (pp. 195-200 in the Rules Pamphlet. We then will get deep into Intro to Hearsay on Tuesday. Hearsay will take us through the rest of the semester.
Schedule Update: We WILL have class the Monday before Thanksgiving (Nov. 23). We still have to make-up the class missed for the Jewish Holy Days. I will plan this for early November.
Monday audio. Prelim due at the beginning of class. Please follow instructions as to formatting, cover page, etc.
We will finish Presumptions; look at unenacted FRE 302, which reflects the common law approach to criminal presumptions.
Then prep the rules, statutes, and C&S reading for Rulings on Evidence. DON'T worry about the problems until next week.
We discussed in Civ Pro the difference between an element of a claim and an affirmative defense. The distinction takes on added importance in criminal trials, as the distinction triggers two concerns: 1) who bears the initial burden of production and 2) even if the defendant bears the burden of production, who bears the burden of persuasion, as criminal law often disaggregates them.
So consider this Tenth Circuit case. Under 18 U.S.C. § 1152, federal criminal law does not apply to "offenses committed by one Indian against the person or property of another Indian." So if the victim of a crime in "Indian country" (as the statute calls it) is an Indian, the defendant cannot be convicted if he also is an Indian. So, is Indian status an element (government bears the burden of production and persuasion to show defendant is not Indian) or an affirmative defense (defendant bears the burden of production that he is an Indian). And if the latter, who bears the burden of persuasion.
The Tenth Circuit held that it is an affirmative defense and that defendant bears the burden of production and persuasion (show Indian by preponderance). How the court got there is worth a read.
Tuesday audio. Prelim posts at 12:30 today; due at the start of class next Tuesday.
Prep the remainder of Presumptions, focusing on Question # 106. Look at unenacted FRE 303, which we will review. For # 106, include the following detours:
1) Mrs. Young fails to offer evidence of diligent efforts. Ins. Co. moves for judgment as a matter of law.
2) Mrs. Young offers evidence her husband has been gone for six years, she has received no tidings, and has made diligent efforts. Ins. Co. moves for judgment as a matter of law.
3) Mrs. Young testifies as in (A). In its case-in-chief, the Ins. Co. calls a surprise witness who takes the stand and testifies "I am Jerry Young." For the court, resolve Defendant's Motion for Judgment as a Matter of Law that Jerry is alive.
Instructions. Exam. Due in hard copy at the start of class next Tuesday, October 20.
Good luck.
Monday audio. Prelim Exam posts at 12:30 p.m. tomorrow (Tuesday).
Prep all of Trial, Burdens, and Presumptions. We begin where we stopped--what tools does the judge use to gatekeep and ensure parties carry their burdens of production? What is a presumption and what does it mean to have a "presumption of X"? Be ready to work through the paternity presumption in the Questions.
Here and after the jump. The exam will post to the blog at 12:30 on Tuesday, October 13; it is due at the beginning of class (hard copy) on Tuesday, October 20. It consists of five questions and is worth 150 total points.
