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.

For Tuesday, October 5

Monday audio.

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)?

Prior Acts and Prior Docs

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.

For Monday, October 5

Tuesday audio.

Prep the rest of Character, Bias, including the problems. As part of your reading, review the proposed revision to FRE 609 (pp. 357-58)

For Tuesday, September 29

Monday audio.

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).

On writing

Count me on the more formal side of this discussion.

For Monday, September 28

Tuesday audio.

Prep and review the rest of Witnesses for Monday. We will begin Impeachment on Tuesday.

Sample Preliminary Exam

Exam; Sample Answers.

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. 

For Tuesday, September 22

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. 

For Tuesday, September 14

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. 

Happy Leslie Thompson Mitchell Day to All Who Celebrate

An annual event.

For Monday, September 14

Tuesday audio.

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.

Upcoming Constitution Day Event: The First Amendment Law of Academic Freedom

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.

For Tuesday, September 8

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.