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Federal Rules of Evidence




 

Syllabus
Basic Course in the Law of Evidence
Professor Peter Tillers
Spring Semester 2012
Benjamin N. Cardozo School of Law




The required course book is

Deborah Jones Merritt & Ric Simmons, Learning Evidence: From the Federal Rules to the Courtroom (West Academic Publishing, 2d ed. 2011).

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 during the course of the semester)
(some assignments may change)

 


 

Introduction & Background

Casebook [hereafter "CB"] Chapters 1-3 (required reading, but little or no class discussion)

 


Proof and Substantive Law

Study:

Note on factual proof and substantive law

In re Winship

Scan:

Scott Brewer, Three types of evidentiary claim (Just skim this material now. We may revisit this material later in the semester,)



Proof and Procedure

Trial Structure

CB Chapter 4

Study these diagrams

 

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

CB Chapter 5

Study the diagrams and text in these notes on foundations, offers, objections, and related matters.

Then work out these offer and objection problems

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

CB Chapter 6

A. Relevance and Probative Value


Relevance and Inference


 

P. Tillers, Logical Relevance versus Legal Relevance


logical versus legal relevance

 

Review Federal Rule of Evidence 401 & read the original Advisory Committee's Note

Review In re Winship

Study Questions about Winship

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?


pair of dice

Image from Wikimedia Commons

Richard Lempert Modeling Relevance

Optional reading: 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 Workings
Inferences Supported by Generalizations

Generalizations about people: False and invidious? Just invidious? Sometimes true and benign?: P. Tillers If wishes were horses: discursive comments on attempts to prevent individuals from being unfairly burdened by their reference classes (2005).


Complex Inference: Multistage Inference, Preliminary Questions, Conditional Relevance, and Inference-on-Inference


Summary of a Popular Theory of Inference



A case study: United States v. Robinson


 

Primarily but Not Entirely a Reprise: Preliminary Questions and the Laying of Foundations

Chapter 34
Federal Rule of Evidence 104

 

Conditional Relevance

Review Federal Rule of Evidence 104(b)
Original Advisory Committee's Note to Rule 104(b)

 

The Inference-on-Inference Rule

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)

 

Selected Complex Inference Problems

The following problems will not be discussed in class, but you might find it useful to study them:

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 7


Probative Value versus Dangers





Undisputed Facts and Stories
P. Tillers, Note on "Background Evidence"

Review CB Chapter 7 pp. 80-83 (stipulations & Old Chief)

Old Chief v. United States (1997)


 

Authentication

CB Chapter 69

 


 

Best Evidence Rule

CB Chapter 70

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 & Science(?)



Review CB Chapter 7 pp. 73 -76 (videos & photos)

 

*********************************************************************************************

 

File from Wikimedia Commons. Created by Edward H. Adelson

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 apart from 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?

 


 

Witnesses

CB Chapter 14

The casebook editors 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?

 

Witness Competence

Review CB Chapter 14 Section A & Section B.1, pp. 157-160
Review the first sentence of Federal Rule of Evidence 601
Original Advisory Committee's Note on Rule 601

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 bearing of In re Winship and United States v. Scheffer on this question.

Read What are the lessons of the Kelly Michaels case?

Review CB Chapter 2.B.2 & 4 (real evidence & demonstrative evidence). Now consider the John Salvi Problem.

Note on Forms of Evidence

Chapter 14 Sections 3-5, pp. 161-165 (judges, jurors & lawyers)


Note on the relationship between federal and state witness competence rules: CB 14 Section B.2, pp. 160-161; second sentence of Federal Rule of Evidence 601


Personal Knowledge

Review CB Chapter 14 Section C
Review Federal Rule of Evidence 602

 

Oaths and Affirmations

Review CB Chapter 14 Section D, pp. 169-171
Review Federal Rule of Evidence 603

Consider this problem. Then consider this judicial opinion. But cf. Commonwealth v. Murphy, 48 Mass. App. Ct. 143, 718 N.E.2d 395 (1999).

 


 

Impeachment & Rehabilitation of Witnesses

CB Chapters 15 & 17

CB Chapter 19 (unttruthful character on cross-examination)

United States v. Abel

The rules governing the use of "character evidence" are intricate. I suggest you use the following diagram from time to time to try to keep those rules and principles straight in your mind:

 

CB Chapter 20

CB Chapters 21-22

CB Chapter 23 (religious beliefs & impeachment)

Review this problem. Then consider this judicial opinion. But cf. Commonwealth v. Murphy, 48 Mass. App. Ct. 143, 718 N.E.2d 395 (1999).

 


 

Introduction to "Circumstantial" Character Evidence

Review Chapters 21-22
Michelson v. United States (1948)
CB Chapter 25

Reminder: consider referring to the following diagram from time to time.


The diagram may help you see the relationships (i) among different parts of the ban against "circumstantial" use of character 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.)


 

"Circumstantial" Character Evidence and Related Matters (e.g., Habit Evidence)

Background

Review CB Chapter 25

General Rule or Principle

CB Chapter 27
Federal Rule of Evidence 404(a)
First sentence of Federal Rule of Evidence 404(b)

The rules and principles governing the "circumstantial" [non-impeachment] use of character evidence are intricate. This summary (rule against use of character or disposition to show conduct) and this summary (habit and routine organizational practice) in Spindle Law's evidence module may help you to keep things straight. (Focus on the material in the nodes.)

Question: What is (are) the reason (reasons) for the ban against circumstantial character evidence?

Read People v. Zackowitz (1930) (Cardozo, J.).

Justice Jackson in Michelson v. United States, 335 U.S. 469, 475-76 (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 punishor 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.)

     

    Character as Element of Claim, Charge, or Defense

    CB Chapters 26
    Federal Rule of Evidence 405(a)
    Federal Rule of Evidence 405(b)
    Cf. Federal Rule of Evidence 404(b) (2)

    It is generally said that character is rarely "in issue" in a case. But is that true? I don't think so. See P. Tillers, Notes on character "in issue"

     

    (True) Exceptions to the Prohibition against Circumstantial Character Evidence

    CB Chapter 28

    Methods of Proving Character (Disposition)

    CB Chapter 29
    Review Chapters 21-22
    Review Michelson v. United States (1948)

    Other Crimes, Wrongs, or Acts

    CB Chapter 30
    Federal Rule of Evidence 404(b)
    Handout on Other Acts Evidence

    Tucker v. Nevada
    CB Chapter 34 Part C Section 1 Subsection b, pp. 414-416
    Huddleston v. United States

    Problem

    Habit & Routine Organizational Practice

    CB Chapter 31
    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. Tllers, The Death of a Youth and of a Drunkard: A Remarkable Story of Habit and Character in New Jersey (2006)

     


     

    Rape Shield Laws

    CB Chapter 32
    Federal Rule of Evidence 412


     

    Character & Propensity in Sexual Assault and Child Molestation Cases

    CB Chapter 33
    Federal Rules of Evidence 413-415

     


    Hearsay

    Introduction

    CB Chapter 35
    Read Picturing Hearsay

     

    Basic Ingredients of the Hearsay Rule

    CB Chapter 36 ("truth of the matter asserted"; "purpose"; non-hearsay utterances)

    Sharon's state of mind as (non-hearsay?) circumstantial evidence
    CB Chapter 37 ("statement"; non-verbal conduct)
    Hearsay Exemptions & Exceptions

    CB Chapter 38 (introduction to hearsay exceptions)

    CB Chapter 53 (admissions)

    CB Chapter 51 (statements against interest)

    CB Chapter 44 (hearsay within hearsay)

    On admissions again:

    Review Problem
    Another Review Problem

    CB Chapter 55 (co-conspirator exemption)

    A detour: review CB Chapter 36 Part C Section 2 pp. 444 - 448 & review Chapter 37 (assertive conduct hearsay; nonassertive conduct hearsay; assertive statement as nonhearsay "circumstantial" evidence);

    FRE 803(1)-(4) & CB Chapters 40-42 (exceptions for present sense impression, excitted utterance, state of mind, and medical diagnosis & treatment)

    CB Chapter 39 pp. 472-475 (pretrial identification);

    CB Chapter 18; Chapter 39 pp. 467 - 472 & 476 - 489 (prior statements of witnesses)

    CB Chapter 43 (past recollection recorded; refreshing recollection distinguished); review CB Chapter 16 (little class discussion)

    Consider A Memorable Interview

    CB Chapters 45 (business records) (little class discussion)

    CB Chapter 50 (dying declarations)

    Hearsay and Constitutional Rights
    CB Chapter 58 (Crawford & Confrontation)
    Read or review Davis v. Alaska (1974), Rock v. Arkansas (1987), Olden v. Kentucky (1988), United States v. Scheffer (1998)
    Review In re Winship and be prepared to explain why I assigned In re Winship here -- i.e., be prepared to argue that Winship speaks to more than just the question of the prosecution's constitutionally-required burden of proof in criminal trials.


     

    Expert and Scientific Evidence

    CB Chapter 60 (lay opinion; little or no class discussion)

    CB Chapter 61 (Frye, Daubert & [current] Rule 702 [as amended, 2000]; substantial class discussion)

    CB Chapter 63 (bases of expert opinion; some class discussion)

    CB Chapter 64 (focus on B.3 [probabilities], B.4 [polygraph tests] & B.5 [testimony about eyewitnesses]; substantial class discussion)


     

    Privileges

    Introduction to Privileges

    CB Chapter 66

    Psychotherapist-Patient Privilege
    CB Chapter 68 Section C, pp. 860-862
    Jaffee v. Redmond

     


     

    Concluding Thoughts & Comments




    I reserve the right to make changes in the assignments.



    Rules of Evidence in Several States

    California Evidence Code

    Texas Rules of Evidence

    Utah Rules of Evidence

    Wyoming Rules of Evidence


     
     



    Federal Rules of Evidence