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.

For Monday

Tuesday audio.

We continue with the Sexual Assault rules. What is the purpose of FRE 412, as a matter of the truth-finding process and as a matter of external policy goals? Then turn to FRE 413-415. Again, consider why we have these rules and whether that rationale makes sense. Note the process by which these rules came to be and compare with unenacted FRE 404(a)(4) and FRE 405(c).

Prep Relevancy Review. We will work through some of those problems as a capstone to Relevancy.

Move to Witnesses, with a focus on FRE 601-602 and FRE 701. What does FRE 701 mean by "opinion" and what sorts of things can a witness testify to that are not, really, "facts?" What are the different things that a factfinder, an attorney, and a witness can do with a piece of information?

FRE 404(b) and 403 in action

H/T to Madeline: Eleventh Circuit decision in US v. Cenephat, illustrating the analysis of intent under FRE 404(b), inextricably intertwined acts, and 403 balancing. Good that she shared it, otherwise it would have made a nice final exam.

For Tuesday

Monday audio.

We continue with Policy-Based Exclusions, covering FRE 407-409 and 411 (skip 410). Note that FRE 408 is very confusing in its text, so take the time to parse it out. WPrep the remaining problems for this section. Please note, by the way, that the policy of a rule does not determine whether evidence comes in or not; the text of the rule decides that. The policy justifies the rule and perhaps gives guidance as to what the text means and how to apply it. But look to the text, not the policy, in arguing and deciding an evidentiary issue.

We move to Sexual Assault Rules, covering FRE 412 (the rape-shield) and FRE 413-415 (other acts of sexual assault and child molestation). How do these rules fit together? What is their purpose or policy goals; do they achieve those goals; and do those goals make sense? Why make special rules for sexual assault? What does "sexual predisposition" entail for FRE 412 purposes?

For Monday

Tuesday audio. Everyone needs to spend some time learning about the MacIntyre case.

We continue with Questions ## 43 and 44, the letter from Taylor to Ross about Jesse being sensitive. What claim or defense does that go to and why? What is the conditioning fact for it and how can the plaintiff establish it?

We then move to Policy-Based Exclusions. Each of these exclusions can be justified as improving the truth-finding process and as serving public policies extraneous to litigation; identify both rationales for each of these rules. Consider the role FRE 403 plays in each of these. Consider how FRE 407 applies in the following products-liability cases:

    π purchases a product in 2020; the accident occurs in 2021; the company redesigns the produc in 2022.

    π purchases a product in 2020; the company changes the product in 2021; the accident occurs in 2022.

    π purchases the product in 2020; the accident (caused by defects in the steering system) occurs in 2021; the company redesigns the braking system in 2022.

One more thing on "other crimes" evidence

Pily raised the following after class: Isn't "other crimes" evidence punishing someone for past actions rather than for current conduct, raising double jeopardy and due process concerns, especially if we require less evidence (proof sufficient to support a finding) to allow its use? This captures the theoretical and policy-based objection to this type of evidence. And it is a sub-species of the general objection to character evidence and why it is generally precluded--we punish bad conduct not bad people and the introduction of character evidence tempts the jury towards the latter.

The courts' answer has always been that any punishment imposed in this case is for the charged conduct; using the past conduct as evidence is not the same as punishing him for it. Whether you agree with that distinction or not, FRE 404(b)(2) rests on it.

But you can work this idea into your FRE 403 objections--the danger of confusion or unfair prejudice lies in the jury attempting to punish the defendant for his past bad conduct, distracting from the conduct at issue.

And it can backfire. OJ Simpson is before most of your time (that is scary). But the prosecution offered a lot of evidence of Simpson's past abuse of Nicole (trying to show motive and identity). And some jurors, interviewed after the case, said they believed that focus was an effort to get them to convict Simpson for being an abusive person who hurt his wife in the past, without any proof he committed murder now.

For Tuesday

Monday Part I; Monday Part II.

Move to Habit and Routine Practice. What is habit and how does it differ from character, other acts, and routine practice? What is the difference between and habit and routine practice?

Some final points on Identity under FRE 404(b)(2). The identity arguments for the shooting and barroom fights are not strong, although it was important to see and make the arguments. But identity requires real similarities in the details and manner of the action--something allowing the inference (beyond character) that the same person committed the evidential and charged acts. So this can be used for serial killers who follow a particular MO in the crimes--in choice of victim, location, manner of performing the acts, etc. The act has a "calling card" or "signature" or "fingerprint," linked to that person.

One example might be Ted Kaczynsky, the "Unabomber," who sent homemade bombs through the mail to people at universities, airlines, and other technology-related industries. Another is "Son of Sam," David Berkowitz, who used a .44 caliber handgun to kill women with long, dark waivy hair, usually by finding them in parked cars with their boyfriends.

Or, again, this scene from Home Alone.

Make-up Class # 1, Monday, September 16

We will hold the first of our three make-up classes from 12:30-1:45 next Monday, September 16 in RDB  2008.

My apologies for the late notice. I had wanted to use this date all along but had a conflict; that conflict just resolved and opened the time. Because I want to get these sessions out of the way as early in the semester as possible, the time seemed right. And I suspect most of you will still be in the building, as we will have met early that morning.

As always, the class will be audio-recorded.

No additional reading is necessary--as per this post, prep the remainder of Bad Acts and all of Conditional Relevancy, as assigned.

For Monday

Tuesday audio. Remember we will not have class next Tuesday, September 17. That leaves 3 classes to make up, likely beginning in October.

Prep the rest of Other Acts, finishing the list in FRE 404(b)(2) and other uses.When is an other act "inextricably intertwined" and how is that significant for a 404(b) analysis? Work through the problems in this section.

In class we mentioned the use of rap lyrics for showing intent. The Restoring Artistic Protection ("RAP") Act would add a new rule to the FRE limiting the use of artistic expression, by requiring a stronger connection between the music and the case at issue. Several states have enacted or considered similar rules. This attempts to address the objection that the regular use of rap music and lyrics punishes bad art.

Then move to Conditional Relevance; prep FRE 104(a) and (b) (no need to do the rest of FRE 104) and everything else assigned. What is the difference in standard between (a) and (b)? How do (a) and (b) map onto the two questions in Bell's FRE 404(b)(2) analysis?

For Tuesday

Monday audio.

Prep all of Character Evidence and Prior Bad Acts, covering 404(a) and 404(b) and all the associated materials. What does it mean for character to be an essential element in FRE 405(b) and how does that square with 404(a)(1)? Is murder or perjury a charge on which character is an essential element? Is defamation a claim for which character is an essential element? What is? Review and understand each of the permissible uses in 404(b)(2), including how the court analyzed them in Bell.

By the way, I am very pleased with the level of preparation and engagement on the problems and with the material generally.

For Monday

Tuesday audio.

We continue with Character; prep FRE 404(a) and 405 and up through Problem # 27. What does it mean for character to be "in issue" or for a trait to be an element? Does defamation qualify? Does murder qualify?

On Tuesday, we will move to FRE 404(b), so be ready to complete the rest of that section for Tuesday and the following week.

For Tuesday, September 3

Tuesday audio. You hopefully now have a sense of how the problems will go and how you should prepare. 

No class next week or on Monday, September 2 (Labor Day); our next meeting will be Tuesday, September 3.

We continue with Introduction to Relevancy; prepare the remaining problems in this section. What does it mean to say "every fact has two faces" and how does that affect evidentiary strategy? Begin reviewing the MacIntrye case file, ready to identify the basic issues, claims, and defenses at issue. 

Then move to Character Evidence and Bad Acts. For next class, prep FRE 105, 404(a), and FRE 405, problems 15-17, and C&S 69-89. Consider: What is character evidence and why do we not want it admitted in judicial proceedings? What character judgments do you make in life and why don't we allow similar judgments in judicial proceedings?

For Tuesday

Monday audio. Very nice first day.

I will circulate a seating chart tomorrow; please try to keep the room reasonably balanced. We will spend the first few minutes tomorrow on the Syllabus.

We move to Relevance: Introduction to Relevance, with special attention to FRE 401-403. What are the elements of relevancy and what do those terms mean? What does "more probable than without" mean and what does it not mean? What does FRE 403 require and how does it interact with FRE 401? What is the difference between asking about the "weight" of evidence and about the "admissiblity" (or "relevance") of evidence? Become familiar with Mitchell and prep Questions #3-6 (that is as far as we will get). We will do the remaining questions and move on in the next class.

Welcome to Evidence and First Week Assignments

Welcome to Evidence. 

This blog will be my means of communicating outside of class.

Please download and read the Syllabus for complete details about the course, assignments, pedagogical approach, grading methods, and course rules. Review it prior to the first class. You should bring the Syllabus with you to every class.

Required Class Materials
1) Robert P. Burns, Steven Lubet, and James H. Seckinger, Evidence in Context (6th ed. 2023) (NITA) (Case Files for People v. Mitchell and McIntyre v. Easterfield) (Problems) 

2) Daniel J. Capra & Stephen A. Saltzburg, Principles of Evidence (9th ed. 2022) (West) ("C&S")

3) Federal Rules of Evidence (2024) (Wolters Kluwer) (Rules Pamphlet)

 

4) Additional statutes, cases, and other materials can be downloaded from the Additional Materials post (which you should bookmark).

 

I know many of you will be doing OCI this semester and that some interviews will be during class (including the first classes this week). I will discuss this at the beginning of the first session on Mony, but the short of it is: I know and of course you can leave early, come in late, or both for an interview; please notify me in advance and leave or return through the backdoor of the room.

Assignments for First Day of Class: After the jump

Good Writing and Talking Procedure

You will write two short-answer essay exams. Because you will have the time, I want to see them well-written and that you discuss the evidence and procedure in proper terms.

After the jump.

Name Cards

At our first meeting on Monday, August 19, I will provide a stack of tent cards on the table in the front of the classroom. When you come to the room, please find the card with your name on it and place it in front of you at your seat. You are responsible for keeping that card and having it with you at every class throughout the full semester.

I will distribute a seating chart on the second day of class, Tuesday, August 20.

Please try to distribute yourselves evenly between the two halves of the room.

OCI

Many of you do OCI this semester and interviews may be during class time, requiring you to leave early or come in late. That is fine and understood. Please try to notify me in advance and leave through the back door.

Additional Course Materials

After the jump are the additional materials (statutes, cases, readings, etc.) assigned throughout the semester, as indicated by the notation Blog on the Syllabus. This will be the post to return to for those materials and I will relink to this post periodically. You may want to bookmark this one so you can easily get to it later in the semester.