We begin where we left off on FRE 609. What is the difference between the balancing in 609(a)(1) and (a)(2)? Prep and review Prior Inconsistent Statements and Impeachment Review. I hope to finish Impeachment by Monday or early Tuesday, then move to Trial Process.
I expect to distribute the Prelim Exam on Tuesday, October 14, due in class on Tuesday, October 21. You will have one week, including a Monday that you will not have this class.
Monday audio--One long recording. I expect that a normal class will not produce the traffic we saw today.
Review Character and prep Prior Inconsistent Statements. As you work through these problems, keep the Tom/Ira/Andrew framework in mind and identify who is who. Is there a difference between a "dishonest" act and a "false" act for 608 purposes?
On FRE 609, note that a proposal circulating in the Rules Committee would add the word "substantially" before "outweighs" in FRE 609(b)(1)(B).
Monday audio. Double session on Monday, September 29, with a slight change: We will begin at 1 p.m. (not 12:45), then go straight through until 3:15. We will make up the exra 15 minutes at some point.
In class I mentioned Florida's "other sex acts" rule: Florida § 90.404(2)(b)1, an exception to the other-acts rule for child molestation (not adult sexual assault).
Prep and review everything for Witnesses. Then prep Impeachment: Introduction and Impeachment: Character. We will identify 14 aspects of witness credibility that can be attacked or supported; this is a further breakout of the aspects described in the C&S reading.
Tuesday audio. No class on Tuesday. Our first make-up will be at 12:45 on Monday, September 29.
We will finish Sexual Assault. How does the changing paradigm of sexual assault change the effectiveness of FRE 412(a) in protecting victim privacy?
Prep Relevancy Review, which offers a nice capstone to the 400 rules. Then prep all of Witnesses, which will take us through next Monday and then our double session the following Monday.
Our next two sections are Witnesses and Impeachment. The Preliminary Exam will cover through and including Impeachment. So expect it to post sometime in early-/mid-October. It is a one-week take-home, consisting of 6-7 short-answer essays.
Texas appellate courts overturns conviction where prosecution offered evidence defendant wrote and performed rap.
Monday audio. Constitution Week panels tomorrow and Wednesday; both at 12:30 in RDB 1000. We will look for some make-up times for 9:30, TBD. Our first make-up will be at 12:45 on Monday, September 29.
Prep 411 and 408; we will begin with questions 51 and 52, then move to FRE 408. Spend time trying to parse the rule and what is going on.
Prep Sexual Assault, covering FRE 412 (Rape Shield) and FRE 413-415 (special propensity rules).
Tuesday audio. Again, happy Leslie Thompson Mitchell Day to all who celebrate.
Couple clarifications:
1) Nothing "comes in" under FRE 104(a) or (b). Those are simply rules allocating responsibility for deciding issues.
2) On the connection between FRE 401 and 104(b): You have to determine relevancy under 401 first, walking step-by-step through the inferential chain. In doing so, you may recognize that the inferential chain works only if some outside fact is true. That is when you look at 104(b). For example: You have the key and want to prove Brooke set Leslie up--what is the inferential chain? And what fact do you then see that the chain requires?
3) The text of FRE 406 does not allow evidence of a person's routine practice. The point we made in class was that some courts have been a bit more forgiving on this even if the act does not qualify as habit (e.g., evidence of stopping for the same drink on the way from work every night). The only way to understand that is the court--atextually--allowing evidence of a person's routine practice. It may not work (and won't if the court actually reads the rule). But you can try it, depending on what courts in that jurisdiction have done. Just recognize what you are doing.
We continue with Habit. Then move to Policy-Based Exclusions; for Monday, prep FRE 407 and 409; we will do FRE 411 and 408 on Tuesday.
On FRE 407, consider the admissibility of the following and for what:
1) A purchased product in 2020; the accident occurred in 2021; ∆ redesigned product in 2022
2) A purchased product in 2020; ∆ changed product in 2021; accident in 2021
3) A purchased car in 2020; accident (involving steering problems) in 2021; redesign brakes in 2022
Someone is going to be a judge asked to decide the 104(b) issue on Question # 32. How do FRE 104(a) and (b) map onto the two questions for FRE 404(b)(2)? Be ready to argue both parts of that test as to the remaining other acts questions.
Then move to Habit and FRE 406.
We continue with Other Acts, including the associated problems; think of all possible 404(b)(2) uses for each and the counter arguments. Take a look at the Restoring Artistic Protection Act of 2022 ("RAP Act"), which is intended to respond to and limit the 404(b) problems with using rap lyrics and other music for evidentiary purposes.
Prep Conditional Relevance and consider how that maps onto the two steps in Bell. What does "proof sufficient to support a finding" mean?
We shared the quotation about cross-examination ("greatest legal engine ever invented for the discovery of truth"), which originates with John Henry Wigmore (former dean of Northwestern Law and the leading early-20th-century evidence scholar). But he went further with it, writing in 1911:
the final establishment of the right of cross-examination by counsel, at the beginning of the 1700s, gave to our law of evidence the distinction of possessing the most efficacious expedient ever invented for the extraction of truth (although, to be sure, like torture, — that great instrument of the continental system, — it is almost equally powerful for the creation of false impressions.
As with much of what we cover in this class (or frankly any other), it goes both ways.
Prep the rest of Character and Bad Acts, covering 404(b) and US v. Bell. What does it mean for character to be an essential element of charge or claim? How does that square with 404(a)? What sorts of things are covered and what are not? Is murder? What about perjury?
What are the various permissible uses under 404(b)(2)?
We continue with Character. For tomorrow, prep FRE 404(a) and 405, along with Problems 15-27 and pp. 69-89 in LCS. Do not worry about FRE 404(b).
We will begin with when evidence of a character trait might be admissible (without looking at the exceptions in FRE 404(a)(2) and (3)). Then we will work the assigned problems.
We will get to FRE 404(b)(2) and the rest of the LCS reading next week.
Prep the remainder of Introduction to Relevance. Become familiar with the facts and basics of both cases.
Move to the beginning of Character Evidence. Read FRE 404(a) and the ACN, along with Capra pp.n69-71. We will just get into the basics of what character evidence is and why it is problematic.
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.
Here, again, are the discussion questions.
We move to Relevance: Introduction to Relevance, with special attention to FRE 401-403. Become familiar with Mitchell and prep Questions #3-8 (that is as far as we will get). We will do the remaining questions and move on in class next Monday.
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.
Here are Class Discussion Questions that we will use to guide class conversations (in addition to the problems in Evidence in Context). You now have most of the questions for the entire semester. You should print this and keep it with the Syllabus.
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")
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. Much of this is a review from Civ Pro last semester.
After the jump.
At our first meeting on Monday, August 18, 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 19.
Please try to distribute yourselves evenly between the two halves of the room.
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.
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.
