Peter Tillers' General Home Page
Syllabus
Basic Course in the Law of
Evidence
Professor Peter Tillers
Fall Semester 2010
Cardozo School of Law
This course will emphasize "bread and butter," the black-letter workings of basic rules of evidence.
But you will also get a substantial dollop of "theory." This means you will need to do some thinking (as well as memorizing); in particular, you will need to think about the possible purposes of various rules and about general principles about the workings evidence and proof in litigation.
This I believe: You can't do the bread & butter properly without some understanding of (i) the possible purposes of the rules and (ii) the adversary system of litigation in which those rules play out. So you will get theory. But the theory you get will, I hope, help explain how rules of evidence work (as well as why they work the way they do).
Students who wish to explore the law of evidence in more depth have the option of doing independent research and writing a research paper (in addition to studying and mastering the basic course material). I welcome anyone who wishes to do such independent work in Evidence.
The required course book is
David Leonard & Victor Gold, Evidence: A Structured Approach (Aspen Publishers, 2d ed. 2008).
The Federal Rules of Evidence are provided in Appendix A of the course book. They are also available here.
I assign parts of the evidence module in Spindle Law. You must register and get a password to see cases, other authorities & comments. This online material is free. (You are strongly encouraged but not required to submit one or more online comments about a topic, a rule, or a case in the evidence module or about another person's comment.)
&&&
The final exam will have multiple choice questions with space for short explanations for your answers. I will also give one essay question, which will count for 50% of the exam & course grade.
Copies of Questions for Classroom Discussion are available at this web site .
Cosnider where unimaginative thinking can get you:
Richard Lempert, "The New Evidence Scholarship," 66 Boston University Law Review 439, 439 (1986): "[Although the federal codification movement had begun to breathe new life into the field of evidence,] law review articles about evidence [50 years ago] generally followed the model 'What's Wrong with the Twenty-Ninth Exception to the Hearsay Rule and How the Addition of Three Words Can Correct the Problem.' [These articles] were seldom interesting and if they had potential utility it was rarely realized, for the federal rules remain today largely as they were when enacted. The work was, in short, a timid kind of deconstructionism with no overarching critical theory to give it life."
Proof and Procedure
Study the material in & under this node in Spindle Law's evidence module.
Read Chapter 1 Part A, pp. 1-18
Coursebook at p. 10: "The first step is opening statements. ... Note that the term used is opening statement, not opening argument. This is because, in theory at least, the presentation is not an argument. Rather than advocating a particular position, counsel's job at this point is to present the fact-finder with a brief roadmap of the case she [or he] will present on her [or his] client's behalf."Read about the opening statement 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)
The U.S. Court of Appeals for the Second Circuit declaims on interim summaries by counsel (instead of the standard opening statement), with Justice Sotomayor (then judge) dissenting.
Is this sort of arguably-picayune question important?
Study these diagrams
Study the diagrams and text found in these notes on foundations, offers, objections, and related matters.
JJ C__I__O__B__F------->PLQ__OBJ__?____SUBMIT (e.g., PLA) -------->
Jy
------->
time
Read Chapter 1 Part B, pp. 18-25 (read; be prepared to discuss question 1 at p. 24, question 1A, and questions 2-7 at pp. 24-25)
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 why the rules about the specific and general offers and objections sometimes turn ignorance into bliss.
Sources of Evidence
Witnesses
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?
Study the material in and under this node in Spindle Law's evidence module.
Chapter 1 Part C Sections 1-2a, pp. 25-28 (read; be prepared to discuss questions 1-6 at pp. 27-28; be prepared to discuss the following additional question: Is a very seriously intoxicated person competent to serve as a witness in a federal trial?)
Note: The first part of Question 4 is unanswerable without historical evidence. But speculate.
Consider this problem. Then consider this judicial opinion. But cf. Commonwealth v. Murphy, 48 Mass. App. Ct. 143, 718 N.E.2d 395 (1999).
Chapter 1 Part C Section 2b, pp. 28-32 (read; be prepared for a very brief discussion of the two questions at p. 29; skim questions at p. 32)
Chapter 1 Part C Section 2c, pp. 33-41 (read; be prepared to discuss questions at p. 37 and p. 41)
Be prepared to discuss the following additional 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 United States v. Scheffer on this question.
Chapter 1 Part C Section 2d, pp. 41-45 (read; be prepared to discuss questions at pp. 44-45)
Chapter 1 Part C Section 2e, pp. 45-46 (read; no class discussion of the questions)
Now consider the John Salvi Problem.
Sources of Evidence
Tangible Evidence
Authentication
Study the material in & under this node in Spindle Law's evidence module.
Chapter 1 Part C Sections 3a-3b, pp. 46-59 (read; be prepared to discuss questions at pp. 49, 52, 53-54, 57 & 59
Read the parts of this case dealing with authentication of e-mails. (For the time being ignore the discussion of hearsay issues.)
Chapter 1 Part C Section 3b(v), pp. 59-62 (skim)
Best Evidence Rule
Study the material in & under this node in Spindle Law's evidence module.
Chapter 1 Part C Section 3c, pp. 63-68 (read; be prepared to discuss questions at pp. 64-65 & 66-67)
Relevance and Related Matters
Read the material on relevance and undue prejudice found in and under this node in Spindle Law on the relevance and undue prejudice principles.
Relevance and Inference
Chapter 2 Part A, pp. 81-92 (read; be prepared to discuss questions at pp. 91-92)
P. Tillers, Logical Relevance versus Legal Relevance
Review FRE 401 & the Advisory Committee's Note
Questions about Winship; 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
David Kaye, Science in Evidence, Chapter 2 Part D, p. 117
Optional reading: P. Tillers, Making (Inverted) Bayesian Thinking More Intuitive.United States v. Shonubi, Chapter 2, Part D, pp. 119-120; P. Tillers If wishes were horses: discursive comments on attempts to prevent individuals from being unfairly burdened by their reference classes (2005)Extremely optional reading: Eliezer Yudkowsky, An Intuitive Explanation of Bayesian Reasoning
Probative Value versus Dangers
Chapter 2 Part B, pp. 93-101 (read; be prepared to discuss questions at pp. 100-101)
Undisputed Facts and StoriesP. Tillers, Note on "Background Evidence"
Chapter 2 Part C, pp. 101-110 (read; be prepared to discuss questions at pp. 109-110)
Prejudice, Probative Value, Persuasion, Efficiency, Pictures & Science(?)
Watch these animations and be prepared 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?
Relevance, Probative Value, and Preliminary Questions
Chapter 2 Part E, pp. 121-133 (read; be prepared to discuss questions at pp. 132-133)
A case study: United States v. Robinson
United States v. Summers at pp. 1291-1297 & footnotes: 10th Circuit discusses the inference-on-inference rule
Exclusion of Relevant Evidence for Reasons of "Collateral" Policy:
Subsequent Remedial Measures, Compromise and Offers to Compromise, Payment of and Offer to Pay Medical Expenses, Liability Insurance
In Spindle Law read this node on subsequent remedial measures and the subnodes on this topic. (You do not have to read the cited cases or the case briefs.)
In Spindle Law read this node on settlements and settlement negotiations and the subnodes on this topic. (You do not have to read the cited cases or the case briefs.)
In Spindle Law read this node on payment of medical expenses and offers to pay medical expenses and the subnodes on this topic. (You do not have to read the cited cases or the case briefs.)
In Spindle Law read this node on plea negotiations and discussions in criminal cases and the subnodes on this topic. (You do not have to read the cited cases or the case briefs.)
In Spindle Law read this node on liability insurance and the subnodes on this topic. (You do not have to read the cited cases or the case briefs.)
&&&
In a lecture or two I will illustrate some basic points about how these Rules work. (There are some surprising wrinkles that you need to know. I will emphasize the wrinkles.)
"Circumstantial" Character Evidence and Related Matters (e.g., Habit Evidence)
&&&
Refer to the following diagram from time to time.
The diagram will help you see the relationships (i) among different parts of the character evidence rule and (ii) between the character evidence rule and related rules (e.g., the habit rule, the use of character to impeach witnesses, etc.).
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 will help you to keep things straight. (Focus on the material in the nodes.)
&&&
Our coursebook at p. 319: "With very limited exceptions, trials in the United States are about conduct, not character. This is a fundamental principle, and it runs deep. The government can prosecute a person for possessing drugs, or for being under the influence of certain substances, but it is uconstitutional to prosecute a person for being a drug addict. A defendant can be a bad person and still be innocent. She can be a good person but still guilty. Rather than focusing generally on what kind of person a party may be, our system instead focuses on whether she engaged in specific conduct with a specific state of mind on a specific occasion or series of occasions. A person may have a bad character, or may have participated in crimninal or other wrongful conduct at times other than those that formed the basis of the charge or claim, but neither character nor uncharged misconduct may be made the ultimate issue in this action."
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.)
Chapter 4 Parts A & B, pp. 317-329
Coursebook at p. 329: "Character is rarely 'in issue' in a case." But is that true? See P. Tillers, Notes on character "in issue"
Capter 4 Part B Section e at pp. 329-354 (read very carefully; be prepared to discuss the questions at pp. 330, 340-342, 348-349 & 353-354
Chapter 4 Part C Sections 1-7, pp. 354-372 (read; be prepared to discuss questions at pp. 363-364, 367, 369-370)
Chapter 4 Part C Section 8, pp. 373-374 (be prepared to discuss these questions)
Chapter 4 Part C Section 9, pp. 374-380 (read; be prepared to discuss questions at pp. 379-380).
Chapter 4 Part D, pp. 380-382 (read; be prepared to discuss questions at p. 382); skim Levin v. United States and explain why or whether religiously-motivated behavior cannot be habit.
P. Tllers, The Death of a Youth and of a Drunkard: A Remarkable Story of Habit and Character in New Jersey (2006)
Chapter 4 Part E, pp. 382-385 (read; review questions at pp. 384-385; there will be little or no class discussion of these questions but I will comment on some of these questions)
Interrogation of Witnesses
General Structure of Witness Interrogation
Chapter 6 Parts A & B, pp. 427-436 (read; I will comment on some of the questions at pp. 431 & 432-433)
Federal Evidence Rule 607 (read)
Impeachment: Forms of Attack on Credibility
Reminder: refer now and then to this diagram. It will help you understand the complicated relationships between impeachment evidence and "circumstantial" character evidence.
Read the material in and under this node in Spindle Law.
Chapter 6 Part D, pp. 440-448 (read; be prepared to discuss questions at pp. 447-448)
Impeachment by Evidence of Character of Witness
Read the material in and under this node in Spindle Law.
Chapter 6 Part E, pp. 448-465 (read; be prepared to discuss questions at pp. 452, 456, 464-465 & 466-467)
Impeachment: Bias, Motive & Interest
Read the material in and under this node in Spindle Law
Chapter 6 Part F, pp. 467-474 (read; be prepared to discuss questions at pp. 473-474)
Impeachment by Contradiction
("extrinsic" impeachment; collateral matter rule)
Chapter 6 Part G,pp. 474-479 (read; be prepared to discuss questions at pp. 478-479)
Note: We will deal with impeachment by prior inconsistent statements later. First we must deal with the hearsay rule.
Hearsay
Introduction
Chapter 3 Part A, pp. 135-140 (read)
The Basic Ingredients of the Hearsay Rule
Read the material in and under this node in Spindle Law
Chapter 3 Part B, pp. 140-149 (read; be prepared to discuss questions at pp. 145-146 & 148-149; we may not discuss all of the questions at pp. 148-149 but you should be able to answer all of these questions)
Non-Hearsay Utterances and Conduct
Chapter 3 Part C, Introduction & Section 1 pp. 149-152 (read; be prepared to discuss questions at p. 152; but we may not discuss all of these questions)
Chapter 3 Part C Section 2, pp. 152-153 (read; be prepared to discuss questions at p. 153)
Chapter 3 Part C Section 3, pp. 153-156 (read; be prepared to discuss questions at pp. 155-156)
Chapter 3 Part C Section 4, pp. 156-160 (read; be prepared to discuss questions 3-9 at pp. 163-164)
Chapter 3 Part C Section 5, pp. 164-167 (read; be prepared to discuss questions at p. 167)
Miscellaneous (but important) Notes on Hearsay
Chapter 3 Part E, p. 170 (read)
Chapter 3 Part F, pp. 170-172 (read; I will refer back to this material after we have discussed hearsay exceptions)
Chapter 3 Part G, pp. 173-174 (read)
Hearsay Review Questions
Chapter 3 Part H, pp. 174-180 (study questions at pp. 174-180; no class discussion; later in the semester I will send along my analyses of some of the questions)
Hearsay Exceptions & Exemptions
Chapter 3 Part I, pp. 180-181 (read)
Read this node and Chapter 3 Part J Section 1, pp. 182-185 (read; be prepared to discuss questions at pp. 184-185)
Read this node and Chapter 3 Part J Section 2, p. 185- to end of first full par. at p. 186 (read)
Read this node and Chapter 3 Part J Section 3, pp. 189-193 (read; be prepared to discuss questions 3- 9 at pp. 192-193)
Read this node and Chapter 3 Part J Section 4, pp. 193-196 (read; be prepared to discuss questions at pp. 195-196)
Prior Statements of Witnesses & a Return to Witness Impeachment (& Rehabilitation)Read this node and Chapter 3 Part K, pp. 196-203 (read; be prepared to discuss questions at p. 203)
Read this node and Chapter 6 Part H Section 1, pp. 479-490 (be prepared to discuss questions at pp. 488-490)
Federal Evidence Rule 801(d)(1)(B) (prior consistent statements)
Chapter 6 Part C, pp. 436-440 (read; be prepared to discuss questions at pp. 439-440)
Review of All Forms of Impeachment: Transcript Exercise
Chapter 6 Part I, pp. 502-507 (study; no class discussion)
Leaving Impeachment Behind and Returning to the Hearsay Rule: Hearsay Exceptions (as opposed to "hearsay exemptions" and "non-hearsay")form & structure of hearsay exceptions:
Chapter 3 Part L, pp. 204-205 (read)
present sense impression & excited utterance:
Read this node and also this node
Chapter 3 Part M, Section 1, pp. 205-211 (read; be prepared to discuss questions at pp. 210-211)
then-existing state of mind (including then-existing intention); statement for medical diagnosis or treatment:
Read this node and also this node
Chapter 3 Part M Section 2, pp. 212-215 (read; do not read Hillmon); 221-225 (be prepared to discuss questions 1-12 at pp. 224 and questions 17-18 at p. 225)
past recollection recorded; refreshing recollection distinguished:
Read this node
Chapter 3 Part M Section 3, pp. 225-232 (read; be prepared to discuss questions at pp. 231-232)
business records:
Chapter 3 Part M Section 4, subsection a, pp. 232-239 & subsection b, pp. 239-244
unavailability (for Rule 804):
Read this node and Chapter 3 Part N Section 1, pp. 244-246 (skim; no discussion)
former testimony:
Read this node and Chapter 3 Part N Section 2, pp. 248-255
dying declaration:
Read this node and Chapter 3 Part N Section 3, pp. 255-258 (read; be prepared to discuss questions at pp. 257-258)
statement against interest:
Read this node and Chapter 3 Part N Section 4, pp. 258-261 (read subsections a-c), p. 269 (read subsection e); be prepared to discuss questions at pp. 262-263)
forfeiture:
Chapter 3 Part N Section 5, p. 270 (skim; no discussion)
residual exception:
Chapter 3 Part O, pp. 276-285 (skim; no discussion; warning: vigorously resist the temptation to think that the residual exception solves all potential hearsay problems)
learned treatises:
Chapter 3 Part P Sections 6, 7 & 8, pp. 290-293 (skim; no discussion)
Hearsay and Constitutional Rights
Chapter 3 Part Q Sections 1-3, pp. 293-306 (read; be prepared to discuss the questions at p. 306)
Review and study Davis v. Alaska (1974), Rock v. Arkansas (1987), Olden v. Kentucky (1988), United States v. Scheffer (1998) (no class discussion [except for Davis v. Alaska, these cases were previously assigned])Chapter 3 Part Q Section 4, pp. 306-315 (read the material in the course book and contemplate the questions at pp. 314-315)
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
Chapter 7 Part C Sections 1-5 pp. 518-526 & Sections 7-11 pp. 539-555 (read and be prepared to discuss all questions; note that Parts B and C of Chapter 7 are assigned out of order)
Note: Some important States -- including New York -- still adhere to a version of the Frye rule and do not follow -- at least not overtly -- the sort of approach spelled out in Daubert.
Chapter 7 Part B, pp. 510-518 (read; be prepared to discuss questions at p. 518; again please note that Parts B and C of Chapter 7 are assigned out of order) (today the limitations on the use of "lay opinion" are mainly of interest because of the interplay of lay opinion evidence and the limitations on the admissibility of expert and scientific evidence)
Psychotherapist-Patient Privilege
Read this node and Chapter 8 Part E Section 2 pp. 595-596
Jaffee v. Redmond at pp. 596-600
Concluding Thoughts & Comments
I reserve the right
to make changes in the assignments.