Preliminary Exam Instructions

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.

FRE 609 and the REA process

This letter from two Evidence law professors describes ongoing controversy over the proposed amendment to FRE 609 we discussed and the REA process.

To give some background and terminology: There is a Standing Committee, which is the least step before SCOTUS for all rules. There is an Advisory Committee for each set of rules (Civil, Criminal, Evidence, and Bankruptcy). And there is an Executive Committee that serves as an executive body for the process but does not draft the rules. The Advisory Committee does the initial work on a rule, submits a final proposal to the Standing Committee for approval, which sends its final proposal to SCOTUS.

Here, the Evidence Rules Committee and the Standing Committee approved the amendment; the Standing Committee put it out for final public comment, the final step before approval. But then the Executive Committee convinced the Standing Committee to pull the proposal and send it back to the Evidence Committee.

The letter also describes the longstanding controversy and criticism around 609 (which we touched on in class--deter criminal defendants from testifying and contribute to wrongful convictions), the many years of proposals (going back decades) to change or repeal, and the ultimately modest scope of the amendment.

Tyreek Hill Divorce

For those of you following the divorce case involving former Dolphin Tyreek Hill and his wife, Lakeeta Vaccaro:

The case involved evidentiary disputes over the playing of nannycam videos and evidence of a confidentiality agreement presented to Vaccaro during settlement negotiations. The court admitted some videos on Wednesday. This report on Vaccaro's testimony describes cross-examination by prior inconsistent statement.

This story goes into great (and explicit) detail about the content of numerous videos and phone calls offered as evidence. It illustrates an additional point: Beware news sources that suggest (as this one does) that a party seeking to exclude evidence or otherwise avail themselves of procedural or evidentiary rules is a bad actor seeking to "abuse" the process or hide something. (The documentaries about Thomas Randolph do the same). The rules exist for a reason; whatever you may think about a person, he is entitled to their protection.

For Monday, October 12

Tuesday audio.

Prep Impeachment Review and review PIS. We will complete Impeachment on Monday. Consider two variations on Question # 95: Can Chris testify to Joe's peaceful character as well as Joe's character for truthfulness? Imagine Joe is charged with Lying to Police, along with Murder.

We then turn to Trial Process. For Monday, prep FRCP 50, FRCrP 29, C&S pp. 5-7 and 413-420, along with the Colb and Hans & Jolly posts, and Problem 103. You will prep the rest of this section for Tuesday. Also, you may want to review your Civ Pro outline for the discussion of burdens of persuasion and production.

The Prelim covers all the 400 rules, witnesses, and impeachment. I will post it at 12:30 next Tuesday, October 13; it will be due in-person at the beginning of class on Tuesday, October 20. Here is a sample exam and answers.

For Tuesday, October 5

Monday audio.

Review Bias and prep all of Prior Inconsistent Statements.

Read FRE 609 carefully and break it into its pieces. What must be the first step to the analysis of 609(a)?

Prior Acts and Prior Docs

Two documentaries tell the story of Thomas Randolph, who was convicted in Nevada of murdering his sixth wife and the "hit man" he supposedly hired to kill her. HBO offers The Black Widower: The Six Wives of Thomas Randolph; Netflix has The Widower: 'Til Death Do Us Part.

The story gets its juice off the fact that three of Randolph's other prior wives died--one shot and two from cancer. Randolph was acquitted of conspiracy to kill Wife # 2 (the shooting), although convicted of tampering with one of the witnesses in that case. And the prosecution attempted to use evidence of Wife # 2 in the prosecution over Wife # 6. Here is the opinion of the Nevada Supreme Court on the case.

Neither doc is not great, as these things go. And the opinion tells a different story than the film. Still, worth watching for a couple of reasons: 1) the role of 404(b)(2) and 2) some good trial footage showing questioning of witnesses.

For Monday, October 5

Tuesday audio.

Prep the rest of Character, Bias, including the problems. As part of your reading, review the proposed revision to FRE 609 (pp. 357-58)

For Tuesday, September 29

Monday audio.

Prep all of Introduction to Impeachment, including the problems. Prep the rules and C&S reading for Character/Bias (don't worry about the problems in this section until next week).