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?

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

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

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)

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 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)

Introduction to Privileges

CB Chapter 66

Psychotherapist-Patient Privilege

I reserve the right to make changes in the assignments.

California Evidence Code

Texas Rules of Evidence

Utah Rules of Evidence

Wyoming Rules of Evidence