After the jump.
To be clear: These are samples, how one person might approach and answer the questions. Other responses or approaches might earn points.
You can use this to self-evaluate your answers. When I return papers next week, please review your graded paper with this before coming to me with questions.
Tuesday audio. Sample Answers to the Prelim Exam will post later this afternoon.
For Monday, prep the problems on Rulings on Evidence.
Depending on how quickly we get through these, we might begin Hearsay towards the end of class. Read C&S § 5.1 and the Introductory Note, The Hearsay Problem (pp. 195-200 in the Rules Pamphlet. We then will get deep into Intro to Hearsay on Tuesday. Hearsay will take us through the rest of the semester.
Schedule Update: We WILL have class the Monday before Thanksgiving (Nov. 23). We still have to make-up the class missed for the Jewish Holy Days. I will plan this for early November.
Monday audio. Prelim due at the beginning of class. Please follow instructions as to formatting, cover page, etc.
We will finish Presumptions; look at unenacted FRE 302, which reflects the common law approach to criminal presumptions.
Then prep the rules, statutes, and C&S reading for Rulings on Evidence. DON'T worry about the problems until next week.
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.
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.
Instructions. Exam. Due in hard copy at the start of class next Tuesday, October 20.
Good luck.
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.
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.
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.
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.
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.
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)?
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.
Prep the rest of Character, Bias, including the problems. As part of your reading, review the proposed revision to FRE 609 (pp. 357-58)
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).
Prep and review the rest of Witnesses for Monday. We will begin Impeachment on Tuesday.
I expect to distribute the Prelim Exam sometime in early October. It will consist of approximately 5-7 questions. You will have a week to complete it. It will cover the first three parts of the course--Relevancy, Witnesses, and Impeachment.
Above is the prelim exam and the sample answers from the Fall 2025 Prelim. This will give you a basic idea of the structure of the exam and what I am looking for in answers.
Tuesday audio. No class Monday. I will try to schedule two lunchtime make-ups (covering Monday and Labor Day) sometime next month.
We will finish Sexual Assault, then prep Relevance Review and all of Witnesses.
Monday audio. Don't forget about the Constitution Day event at 12:30 tomorrow in RDB 1000.
Review the rest of Policy Exclusions, then move to Sexual Assault.
We continue with Habit. Then move to Policy-Based Exclusions; prep all assigned for Monday and Tuesday of next week.
Here is the information for the Constitution Day event with Prof. Rabban. Please plan to attend for pizza, class participation, and a good educational opportunity.
Our Constitution Day 2026 program will feature Prof. David Rabban (University of Texas), presenting The First Amendment Law of Academic Freedom. This will be at 12:30 on Tuesday, September 15 in the Large Courtroom.
Class participation points awarded for attendance. Please attend; this is an especially important topic for students in this moment.
Tuesday audio. No class on Monday for Labor Day.
We pick up with the connection between 104 and 404(b). Will the second question in Bell--is the evidence admissible for a permissible purpose--resolved under 104(a) or (b) and why? Prep the remaining problems, arguing both pieces of the Bell analysis.
Then move to Habit, Custom, and Character.
We will finish with the final use in (b)(2)--Identity, then move to the assigned questions.
Prep Conditional Relevancy, which we then will map onto the two-step inquiry described in Bell.
By coincidence, here is a new 8th Circuit case involving rap lyrics. The court admitted them under 404(b)(2) to show knowledge of drug terminology.
We will finish Character Evidence with FRE 405(b). What does it mean for a trait to be an essential element? Does murder qualify? Does perjury? Does defamation? What does qualify?
For Monday and Tuesday, prep all of Other Acts; this covers FRE 404(b) and 405, plus C&S pp. 92-109 and problems 29-31. We will not get to the problems until Tuesday.
The divide in the Syllabus goes like this:
Character Evidence. FRE 105, 404(a), and 405, along with C&S pp. 69-89 and Problems 15-28.
Prior Bad Acts. FRE 105, 404(b), along with C&S pp. 92-109 and problems 29-31. We will begin this late next Monday and then all of Tuesday.
We will work through Character tomorrow and into next Monday. In working through the problems involving FRE 404(a), get specific--which provision and which clause of each provision.
Here. He focuses on judicial opinions, but the advice translates to all writing.
Prep the remainder of Introduction to Relevance.
We then move to Character Evidence. For next week, prep FRE 105, 404(a), and 405, along with C&S pp. 69-89 and Problems 15-28. Begin reviewing the MacIntyre v. Easterfield case file.
The following week, we will get to Prior Bad Acts, covering FRE 105, 404(b), along with C&S pp. 92-109 and problems 29-31.
Monday audio. Seating chart tomorrow. Questions about the syllabus, assessments, etc. in the first few minutes of class.
Prep Introduction to Relevance, covering all reading and up through Question 6.
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 the 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")
3) Federal Rules of Evidence (2026) (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:
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 17, 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 18.
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, come in late, or miss class. That is fine and understood. Please try to notify me in advance. Please enter and exit 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.
