Final Make-up Classes

We have made up 2 hours of the 3:45 in cancelled class. Because of room scheduling, we will have to do this in two bursts:

 • Monday, November 17: 1 p.m.

• Monday, November 24: 1 p.m. 

For Monday, November 3

Tuesday audio.

Finish Introduction to Hearsay, the move to Exclusions. Make sure you see the proposed amendment to FRE 801(d) (p.355), which would take effect in December 2026.

For Tuesday, October 28

Monday audio. Exams are in my office for those who missed class or did not stay to pick them up.

Prep and review all of Introduction to Hearsay. We begin with the question of how we determine whether someone intended conduct (such as opening the umbrella) as an assertion; what can we consider to answer that question?

For Monday, October 27

Tuesday audio. 

We will finish Rulings on Evidence, beginning with Question # 114--why can Jesse raise the proper argument (it fits a hearsay exception) on appeal when she did not make the argument at trial?

We then move to Hearsay, which will take us through the rest of the semester. For Monday and Tuesday, prep Introduction to Hearsay. Be sure to read the Introductory Note to the Committee Notes, The Hearsay Problem. What are the four possible approaches to hearsay, what are the drawbacks to each, and why did the committee adopt the approach it did?

For Tuesday, October 21

Monday audio. No class next Monday. Prelim Exam due at the beginning of class next Tuesday.

We continue with Rulings on Evidence. This will take us through all or most of class next Tuesday. We then will begin Hearsay the following week. 

Preliminary Exam

Instructions. Regular type; Large type.

Due at the beginning of class on Tuesday, October 21. 

Thoughts on FRE 412

Profs on the Evidence Profs Listserv (a group that knows how to party) got into a discussion of FRE 412(b)(1)(B) allowing "evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor." One prof (in response to a student question) wondered why the prosecution would offer evidence of prior sexual contact between the victim and defendant.

The discussion produced the following possible instances: 

a) Prove the limits of consent -- the past instances are used to show what the complainant/victim previously consented to, with the inference that the complainant did not consent to the act in question.  (A kind of "setting limits" argument.). 

b) Narrative integrity (related to (a)) -- evidence to describe the entire relationship between victim and defendant. 

c) Removing the sting -- allowing the prosecution to preempt evidence that the defense is expected to offer. (Similar to why a party will offer evidence of its own witness' criminal conviction).

d) Incidental -- the past sexual conduct establishes the victim's prior relationship with the defendant, which might explain other aspects of the case.  For example, why the defendant might have access to the victim's apartment when identity is disputed.

e) Vestigial work-around of FRE 404(b) (and, somewhat, FRE 403). It allows the prosecution to offer evidence of a defendant's prior sexual behavior. FRE 413-415 did not exist when FRE 412 was enacted. Their later enactment renders the "by the prosecution" language of 412(b)(1)(B) superfluous--the prosecution can offer prior acts of sexual misconduct through the newer rules. But many rules are redundant; sometimes it is not worth the work (and the risk of unintended consequences) to remove them. 

A word on audio

The platform I used to upload audio from earlier in the semester shut down. I am trying to go back to those videos and upload them, although sharing on Google docs is not working right now.

 I will try to upload them by the end of this week. 

For Tuesday, October 14

Monday audio--First hour, first part of regular class, last part of regular class. No class next Monday, October 20. Prelim Exam instructions here. Prelim exam will post at 12:30 tomorrow; due at the beginning of class next Tuesday, October 21.

Continue with Question # 106 and the rest of presumptions, including Unencated Rule 303. In addition to what you have, consider the extreme case: Mrs. Young gives the testimony in (A), then the Insurance Co. calls a suprise witness-a man who takes the stand and says "I'm Jerry Young." Ins. Co. moves for Judgment as a Matter of Law; how should the court rule?

Move on to Rulings on Evidence. 

Preliminary Exam Instructions

Regular Type; Large Type. Reprinted after the jump.

The exam will post here at 12:30 p.m. on Tuesday, October 14.

For Monday, October 13

Tuesday audio. Make-up at 1 p.m. Monday in RDB 2006, followed by regular class. No class on Monday, October 20. The Prelim Exam will post at 12:30 next Tuesday, October 14. It will be due at the beginning of class on Tuesday, October 21.

We continue with Trial and Presumptions; review FRCP 50 and FRCrP 29. What is a presumption and how does it operate, in the bigger picture and at the level of individual facts? Why have presumptions (or "instructed inferences") and how do they operate? What is the difference between a rebuttable presumption and an irrebuttable presumption? How does FRCP 50 operate with presumptions?

In addition to Question # 106, prep the following presumption: "If a child is born within 300 days of legally married opposite-sex couple living together as husband and wife, the husband shall be presumed to be the father." Husband sues Wife for custody of a child; he must prove paternity as an element of the claim (along with the best interests of the child).

For Tuesday, October 7

Monday audio. Our second make-up will be at 1 p.m. next Monday, October 13.

We will finish a handful of problems from Impeachment. Put a slight twist on Question # 95 (in addition to what is in the book): Could Chris also testify that Joe is a peaceful person? And if he did, could the prosecution introduce the prior violent incidents?

We then move to Trial Process. For tomorrow, prep FRCP 50, FRCrP 29, C&S pp. 5-7 and 413-20, and Questions ## 103-104. We will discuss burdens of persuasion and production; I suggest reviewing your Civ Pro outline for that material.