Element or Defense

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. 

For Monday, October 19

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. 

Prelim Exam

Instructions. Exam. Due in hard copy at the start of class next Tuesday, October 20.

Good luck. 

For Tuesday, October 13

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. 

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.