Peter Tillers' General Home Page
Basic Course in the Law of Evidence
Professor Peter Tillers
XXXX Semester XXX
XXXXX School of Law
The required books are
Weinstein, Mansfield, Abrams & Berger, Evidence: Cases and Materials (Foundation Press, 9th ed. 1997).
Weinstein, Abrams, Tillers, Brewer & Medwed, 2012 Rules, Statute and Case Supplement (Foundation Press).
Note: Casebook reading assignments always implicitly include related material in the supplement.
The final exam will have short-answer questions -- with space for short explanations for your answers. I will also give one or two essay questions.
Assignments(More details about each assignment will be given as the semester unfolds.)
P. Tillers reserves the right
to change the assignments found in this syllabus.
Proof and Substantive Law
Study this note on factual proof and substantive law
Scan (optional) Scott Brewer, Three types of evidentiary claim (Just skim this material for now. We may or may not discuss this material later in the semester.)
Proof and Procedure
Study these diagrams
For the time being just skim the following material:
Case law proclaims that the opening statement -- unlike closing argument -- cannot be argumentative. Is this rule realistic?It is also well settled that the opening statement "is not evidence." (The same is true of closing argument. The same is true of questions put to witnesses. They are also not evidence. [So what?])
Read about a closing argument in Montana ABA Journal (Aug. 18, 2009). See Heidt v. Argani, 2009 Montana 267 (August 14, 2009). Read A Sickening Closing Argument (August 21, 2009).
Offers & Objections (You must learn this [important] stuff largely on your own. There will be limited class discussion of this material.)
CB Chapter 1 Section E pp. 82-93.
See the diagrams and text in these notes on foundations, offers, objections, and related matters. Then try to work out these offer and objection problems. Then read: "Why the rules about general and specific objections and general and specific offers of evidence are really lies !" (Well, OK: partial lies, or "misstatements.") Read further about how and why the rules about the specific and general offers and objections sometimes turn ignorance into bliss.
Relevance and Related Matters
Casebook [hereafter "CB"] Chapter 1 pp. 1-15 (read as a block of material and revisit portions of it as class discussion proceeds).
The American law of evidence makes -- or attempts to make -- a sharp distinction between the relevance of evidence and the weight of evidence. Moreover, Americxan judges and legal scholars in Evidence routinely proclaim that the principle of relevance is the foundation of the law of evidence. See, e.g., the original advisory committee's notes to Federal Rule of Evidence 401 and Federal Rule of Evidence 402. But cf. Mirjan Damaska, Evidence Law Adrift pp. 54-56 (Yale 1997):
Note: Casebook reading assignments always implicitly include related material in the supplement. [hereafter "Supp."].
How far the ripple effects of court bifurcation can reach is clearly visible in the concept of relevance, seemingl ecumenical and independent of institutional context. This concept is one of the building blocks of Anglo-American evidentiary doctrine: .... In its most frequent application, relevance relates to the probative potential of an item of information to support or negate the existence of a fact of consequence (factum probandum). ... [T]he concept's task is not to suggest the strength of [the] connection [between such an item and a factum probandum]: that is a question pertaining to the weight of evidence. ...
If we now survey legal systems outside the common law world, we find that relevance so understood plays hardly any role in legal discourse. ... Why is a conceptual tool so central in Anglo-American procedure without importance in other systems?
The answer emerges from the contrast btewen the bifurcated common law court and unitary courts that prevail elsewhere. In the former, the judge stands at the gate of the fact-finding citadel, charged with determining whether information to be passed on to the ultimate fact finder possesses a sufficient cognitive potential to be admissible. ... Unitary court judges, by contrast, are not obliged to concentrate on the probative value of the information apart from the credibility of its transmitter. And because the probative value of the message and the trustworthines of the messenger are jointly considered [by a unitary court], the need to express these two aspects of evidence processing by two separate conceptual categories appears as a barren theoretical impulse.
A. Relevance and Probative Value
Relevance and Inference
P. Tillers, Logical Relevance versus Legal Relevance
Review Federal Rule of Evidence 401 & read the original Advisory Committee's Note
In re Winship CB p. 1123.
Recommended but not required: P. Tillers & J. Gottfried, United States v. Copeland: A Collateral Attack on the Legal Maxim that Proof Beyond a Reasonable Doubt Is Unquantifiable?
Image from Wikimedia Commons
Richard Lempert Modeling Relevance
P. Tillers, Making (Inverted) Bayesian Thinking More Intuitive.
Extremely optional reading: Eliezer Yudkowsky, An Intuitive Explanation of Bayesian Reasoning
Inferences and Our Generalizations about the World's WorkingsInferences Supported by Generalizations
Review People v. Adamson at CB pp. 6-8 & note 1 at CB pp. 9-10.
Generalizations about people: false and invidious? Just invidious? Sometimes true and benign?: Review note 5, CB pp. 14-15. Skim (optional) P. Tillers If wishes were horses: discursive comments on attempts to prevent individuals from being unfairly burdened by their reference classes (2005).
Review CB text from bottom of p. 2 to end of first full paragraph on p. 4.
Complex Inference: Multistage Inference, Conditional Relevance, and Inference-on-Inference
Review note 4 at CB pp. 11-13.Summary of a popular theory of inference
Review Federal Rule of Evidence 104(b)
Read the original Advisory Committee's Note to Rule 104(b)
Circumstantial Evidence and the Inference-on-Inference "Rule"
Regina v. Onufrejczyk CB p. 35 & notes 1-4.
CB note 5 at pp. 42-44.
Note: Is there a rule against piling an inference on an inference? Does the law of evidence prohibit pyramided inferences?
Skim: Costa v. Desert Palace, Inc., dba Caesars Palace Hotel & Casino, 299 F.3d 838 (9th Cir. 2002), affirmed, 539 U.S. 90 (2003); United States v. Summers, 414 F.3d 1287, 1291-1297 (2005)(including footnotes); Blog post, The Tenth Circuit Makes Pretty Good Sense of the Inference-upon-Inference Rule (July 31, 2005)
The following problems will not be discussed in class, but you might find it useful to study them:
Selected Complex Inference Problems
Possible Flight from the Police in Washington Heights
Possible Flight from the Police in Lincoln Heights
A Musty Historical Example: The Sacco and Vanzetti Case
B. Prejudice and Similar Matters
CB Chapter I Part B pp. 15-35 (read as one block of material)
Probative Value versus Dangers
Undisputed Facts; the Role of Stories in ProofP. Tillers, Note on "Background Evidence"
Old Chief CB p. 27.
It is sometimes argued - and a few courts have explicitly said - that the "undue prejudice rule" does not apply or should not apply in nonjury trials. See, e.g., . This thesis is sometimes part of a broader argument, the argument that rules of evidence - or, in any event, "technical" rules of evidence - do not or should not apply in nonjury trials. What position do you think the law of evidence should take and why? Cf. 1 Wigmore on Evidence (P. Tillers rev. 1983): rules of evidence in nonjury trials.
Authentication & Related Matters
CB Chapter 2 Sections 1-7.A pp. 94-211.
Best Evidence Rule
CB Chapter 2 Section 7.B pp. 211-236
J. David Goodman, Evidence Ruined by Storm May Subvert Court Cases, New York Times (January 1, 2013).
A problem like the best evidence rule problem -- in constitutional guise: Arizona v. Youngblood, 488 US 51 (1988); blog posts about some of the issues presented by Youngblood
Prejudice, Probative Value, Persuasion, Efficiency, Pictures, Recordings, Reconstructions, Experiments, Simulations & Science(?)
Review CB Section 5 at pp. 150-176 (photos, videos & recordings); Section 6 at pp. 176-181 (charts, diagrams, models); and Section at pp. 139-150 (demonstrations & experiments).
Are squares A and B different colors? Or are they the same color? See Wikipedia article. See Proof. Why does the illusion work? See the explanation by the creator of the illusion. What is the moral of the story, the moral of the illusion? Is the lesson that human beings are cognitively and perceptually defective and that they had better watch out? For a different view, see this blawg post by a bloviating law professor.
Watch these animations and be ready to discuss the following five questions:
1. Are the animations relevant?
2. Do the animations have to be relevant to be admissible?
3. If the animations are relevant, is the trial judge compelled to admit them if no rule other than the relevance rule mandates or authorizes their exclusion?
4. Can or should the trial judge use Rule 403 to exclude the animations?
5. Must the animations be authenticated and, if so, how might they be authenticated?
"Circumstantial" Character Evidence and Related Matters (e.g., Habit Evidence)
Refer to this diagram (see also below) from time to time: it should help you see the relationships (i) among the many different different parts of the rule purporting to prohibit the use of character to show conduct, and (ii) between the ban against "circumstantial" use of character and related rules (e.g., the habit rule, the use of character to impeach witnesses, etc.)
Note: My diagram refers to the unrestyled Federal Rules of Evidence. Hence, the numbering of the Rules in the diagram is sometimes different from that of the restyled Rules.
People v. Zackowitz & Notes, CB Chapter 5 Section 1 pp. 808-814
Federal Rule of Evidence 404
People v. Zackowitz CB ppp. 808-811 (1930), authored by our law school's namesake (Justice Cardozo), is a seminal decision that is in your casebook because it is meant to make you try to ponder the pivotal question: What is (are) the reason (reasons) for the ban against circumstantial character evidence? Review what Justice Cardozo said.. Then also consider the following materials:
Justice Jackson in Michelson v. United States, CB 875 (1948) (footnote omitted): "The inquiry [into character] is not rejected because character is irrelevant...."
P. Tillers in 1A Wigmore on Evidence Section 54.1 at pp. 1150-1151(P. Tillers rev. 1983): "The prohibition against 'character evidence' is one of the great enigmas of the law of evidence. The practical implications of the rule are complex and convoluted. The theoretical underpinnings of the rule are obscure. The historical origins of the rule are poorly understood. A variety of explanations have been given for the ban against character evidence. They include: (1) Character evidence has little probative value; (2) character evidence diverts the jury's attention from the merits of the case by inducing it to punish or reward a party for being good or bad in general; (3) in legal proceedings, adverse character evidence saddles a person with disabilities because of prior misconduct; (4) character evidence violates a social commitment to the thesis that each person remains mentally free and autonomous at every point in his life; and (5) the ban against character evidence is a (senseless) product of history."
So: What's wrong with character evidence? Why is it (supposedly) usually excluded? Is it really usually excluded?
Cf. P. Tillers, id., at p. 1151: "As an explanation for the existence of the rule against character evidence as a real social phenomenon, all of [the reasons mentioned above] for the rule are probably pertinent. However, these reasons are not entirely adequate if one supposes that there is a rational basis for the prohibition against character evidence. Some of the reasons seem palpably false in some situations. (Thus, for example, most observers think that the prior criminal activity of an accused may have significant probative value in a criminal prosecution.) Some of the reasons given seem insufficient to describe the present scope of the rule. (Thus, for example, the danger of prejudice to the parties does not explain the use of the character evidence rule in relation to the conduct of nonparties.) Other explanations seem inconsistent with the settled limitations on the scope of the rule. (Thus, for example, it is difficult to reconcile the admissibility of habit evidence with the premise that the rule generally affirms the principle of [human] autonomy.) In the light of these problems, the effort to explain the justification for the ban on character evidence seems to require a multivariate explanation; different policies or reasons are invoked to explain and justify different aspects of the ban on character evidence, and the search for a comprehensive justificatory theory is abandoned. However, this course of action also presents various perils. Thus, for example, an emphasis on the importance of the reliability of evidence often seems to conflict with the emphasis on affirming human autonomy. Furthermore, if the justifications for the rule are regarded as purposes that must inform the interpretation of the rule, the fixity of the rule itself tends to dissolve and to become replaced by the purposive analysis. The problem of rule fluidity is aggravated because there is no consensus on the amount of weight to be assigned to the various reasons that function as interpretive devices."
The law is sometimes just a mess, isn't it? (Don't quote me. This point is just between you and me. OK?)Karl Llewellyn said that the law is a bramble bush. Perhaps the character evidence rule is a bramble bush. If so, does that mean the rule can mean anything you want it to mean? (Try telling that to the trial judge.)
CB Chapter 5 Sections 2-4 pp. 815-929
CB Chapter 5 Section 5 pp. 808-929
Levin v. United States (be ready to explain why or whether religiously-motivated behavior cannot be habit)
State of New Jersey v. Radziwil
Optional reading: P. Tillers, The Death of a Youth and of a Drunkard: A Remarkable Story of Habit and Character in New Jersey (2006)
Introduction at CB 237-255. Witness Competence
The casebook and the law of evidence distinguish between testimonial evidence (which is supplied by witnesses) and non-testimonial evidence (sometimes called "real" evidence). But why is this distinction made? Is it because there is a difference between testimonial evidence and non-testimonial evidence? But isn't there a difference between gun evidence and fingerprint evidence? What's so important about the difference between evidence that comes from witnesses and evidence that comes from things such as rocks and blood?
CB Chapter 3 Section 1 at pp. 255-316
Study Federal Rules of Evidence 601-603.
Study first sentence of Federal Rule of Evidence 601 and the original Advisory Committee's Note on Rule 601
Problems for discussion:
Consider this problem. Then read this snippet from a Utah case. But see Commonwealth v. Murphy, 48 Mass. App. Ct. 143, 718 N.E.2d 395 (1999).
Be ready to discuss the following question: Is a very seriously intoxicated person competent to serve as a witness in a federal trial?
Be ready to discuss the following question: Did the New York State trial court in People v. McGrady violate the defendant's constitutional rights by preventing him from putting the five year old child on the witness stand? Consider the implications of In re Winship, Rock v. Arkansas CB p. 256, and United States v. Scheffer Supp. p. 571 for this question.
Read What are the lessons of the Kelly Michaels case?
Review CB Chapter 2 Section 4 at pp. 139-150 (demonstrative evidence). Now consider the John Salvi Problem.
Note on Forms of Evidence
Relationship between federal and state witness competence rules:
Second sentence of Federal Rule of Evidence 601.
Cf. second sentence of Federal Rule of Evidence 501; skim CB Chapter 9 Section 8 at pp. 1556 (relationship between federal and state privilege rules).
Interrogation, Impeachment & Rehabilitation of Witnesses
Pretrial preparation and interviewing of witnesses
CB Chapter 3 Section 2 at pp. 314-333 (preparation of witnesses - mainly in the U.S.)
Compare Mirjan Damaska, Evidence Law Adrift pp. 77-78 (Yale 1997) (footnote omitted):
[In Continental administration of justice the] pretrial collection of evidence is ... primarily the job of the judge or some other official. Although counsel for the parties are not prohibited from conducting investigations, their contacts with prospective witnesses are disfavored. ... Preparing witnesses for court appearance is strongly disapproved and may in some courts come dangerously close to tampering with evidence.
Form of Examination
CB Chapter 3 Section A (leading questions)
CB Chapter 3 Section B (refreshing recollection)
Consider A Memorable Interview
CB Chapter 3 pp. 362-381 (cross-examination)
CB Chapter 3 pp. 381-381-385 (redirect and re cross examination)
CB Chapter 3 Section 4.A at pp. 385-390 (prohibition against accrediting)
CB Chapter 3 Section 4.B.1 at pp. 390-401 (impeaching own witness)
CB Chapter 3 Section 4.B.2 at pp. 401- 464 (impeachment of opponent's witness)Consider this problem. Then read this judicial opinion. But cf. Commonwealth v. Murphy, 48 Mass. App. Ct. 143, 718 N.E.2d 395 (1999).
CB Chapter 3 Section 4.C at pp. 464- 467 (rehabilitation of witness)
CB Chapter 3 Section 4.D at pp. 467-472 (polygraphy and similar matters)
Federal Rule of Evidence 802
Introduction to Hearsay; Definition and Rationale
Hearsay is not admissible unless any of the following provides otherwise:Kenneth Culp Davis, "Hearsay in Nonjury Cases," 83 Harvard Law Review 1362, 1362, 1365 (1970) (footnotes omitted):
a federal statute; these rules; or other rules prescribed by the Supreme Court.
The purposes of this brief commentary are (1) to emphasize what evidence scholars often overlook — that nonjury trials are more numerous than jury trials, (2) to urge that the Rules should deal explicitly with the question whether hearsay that may be inadmissible in a jury case should be admitted in a nonjury case, (3) to recommend continuation of the practice of admitting hearsay in a nonjury case without ruling on its admissibility, and (4) to propose a rule that a finding in a nonjury case may be based upon hearsay that would be inadmissible before a jury if it is “the kind of evidence on which responsible persons are accustomed to rely in serious affairs.”
(3) Because [proposed Federal Rule of Evidence] 8-02 makes hearsay “inadmissible except as provided” and because nothing else provides for admitting in nonjury cases hearsay that would be inadmissible in jury cases, adoption of the proposed Rules of Evidence may mean that the widespread practice in nonjury cases of admitting technically inadmissible hearsay “for what it's worth” will have to be discontinued. This result would be unfortunate, since exclusion of relevant and reliable hearsay rests heavily on the jury system and may make little or no sense in a nonjury case, especially when the hearsay happens to be the best evidence obtainable on a question of fact that must be answered.
Federal Rule of Evidence 801(a) ("These rules apply to proceedings in United States courts. The specific courts and proceedings to which the rules apply, along with exceptions, are set out in Rule 1101.")
Introduction, CB Chapter 4 pp. 473-475
Leake v. Hagert & associated notes CB pp. 475-480
CB pp. 480-522 (remainder of Section 1)
In United States v. Muscato CB 512 the court refers to State v. Bridges. See CB 518. Thie following notes are my effort to disentangle Bridges: Sharon's state of mind as (non-hearsay?) circumstantial evidence and A Hearsay Riddle Re-re-re-...-reconsidered
Hearsay Exemptions & Exceptions
CB Chapter 4 Section 3 (admissions)
CB Chapter 4 Section 4 (statements against interest)
On admissions again:
Another Review Problem
Federal Rules of Evidence 803(1)-(4) & CB Chapter 4 Sections 5-6 (exceptions for present sense impression, excited utterance, state of mind, and medical diagnosis & treatment)
FRE 801 (d)(1)(C) & original Advisory Committee's Note
United States v. Owens & associated notes CB Chapter 4 Section 2 at pp. 554-563 (pretrial identification);
CB Chapter 4 Section 2 at pp. 522-554 (prior statements of witnesses)
Review CB Chapter 3 Section 3.B at pp. 340-352. Read Federal Rule of Evidence 803(5) & CB Chapter 4 Section 2 n. 3 at pp. 539-540 (past recollection recorded; refreshing recollection distinguished)
Consider A Memorable Interview
CB Chapters 4 Section 7 (business records)
CB Chapter 4 Section 9 (dying declarations)
Hearsay, Fact Finding Accuracy, and Constitutional Rights
Crawford v. Washington Supp. Section 13 pp. 634-655. Lightly skim pp. 655-732 (In a lecture or two, I will summarize post-Crawford case law developments in the Supreme Court.)
Read or review Davis v. Alaska (1974), Rock v. Arkansas (1987), Olden v. Kentucky (1988), United States v. Scheffer (1998)
Review In re Winship.
Expert and Scientific Evidence
CB Chapter 3 Section 3.C (lay opinion; little class discussion of this material)
CB Chapter 6 Sections 1 & 2 (more detailed reading assignments in these Sections will be given later)
Introduction to PrivilegesCB pp. 1314-1316
Psychotherapist-Patient Privilege & Similar PrivilegesCB Chapter 9 Section 5
Concluding Thoughts & Comments
California Evidence Code
Texas Rules of Evidence
Utah Rules of Evidence
Wyoming Rules of Evidence