Peter Tillers' General Home Page

This semester's course will emphasize "bread and butter,"  the black-letter workings of basic rules of evidence. But you will still need to do some thinking; in particular, you will need to think a bit about the possible purposes of various rules and about general principles about the workings evidence and proof in litigation.

Students who wish to explore 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.

The recommended (not required) supplementary Evidence hornbook is

Park, Leonard & Goldberg, Evidence Law: A Student's Guide to the Law of Evidence as Applied in American Trials (West Hornbook Series, 2d ed. 2004).

During the semester I will ask that you read or skim a few parts of the evidence module in Spindle Law. (This online material is free.) To get a password to this web material please send an e-mail message to info@spindleresearch.com and identify yourself as a student in this course.

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The final exam will have multiple choice questions with space for short explanations for your answers. I will also give one broad essay question, which will count for 1/4 of the exam.

• The exam I gave last year is available on the "Lessons" page of ANGEL.

Copies of Questions for Classroom Discussion are available at  this web site . 

Begin with these general questions: Is the law of evidence important? If so, why?

Chapter 1 Part A, pp. 1-18 (read this important background material; I will comment on this material)

Look at these diagrams

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)

Scan the diagrams and text found in these notes on foundations, offers, objections, and related matters. They may clarify some points made in your reading assignments about proof procedure.

When reviewing this material at the end of the semester, you might find it useful to look at the statements of legal rules and principles 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 please speculate.

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)

When reviewing this material at the end of the semester, you might find it useful to look at the statements of legal rules and principles in and under this node in Spindle Law's evidence module.

Authentication

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

Chapter 2 Part A,  pp. 81-92 (read; be prepared to discuss questions  at pp. 91-92)

Brainteaser: There may be something wrong with the editors' reasoning at p. 90. What is it? Consider Extract from Lecture "Rethinking Relevancy"

Chapter 2 Part C, pp. 101-110  (read;  be prepared to discuss questions at pp. 109-110)

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?

Chapter 2 Part E, pp. 121-133 (read; be prepared to discuss questions at pp. 132-133)

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See this optional material in Spindle Law on the relevance and undue prejudice principles. You might find this material particularly useful for review at the end of the semester.

Federal Rule of Evidence 407

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.)

Reminder: To get a password to this web site please send an e-mail message to info@spindleresearch.com and identify yourself as a student in this course.

Federal Rule of Evidence 408

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.)

Federal Rule of Evidence 409

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.)

Federal Rule of Evidence 410

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.)

Federal Rule of Evidence 411

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.)

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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.)

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Please refer to this chart from time to time. It may 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. The summaries of the workings of these rules and principles found here (rule against use of character or disposition to show conduct) and here (habit and routine organizational practice) in Spindle Law's evidence module might help you to keep things straight. (Focus on the material in the nodes.)

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Chapter 4 Parts A & B, pp. 317-354 (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.

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)

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)

Reminder: refer now and then to this chart. It will help you understand the complicated relationships between impeachment evidence and "circumstantial" character evidence.

Chapter 6 Part D, pp. 440-448 (read; be prepared to discuss questions at pp. 447-448)

Chapter 6 Part E, pp. 448-465 (read; be prepared to discuss questions at pp. 452, 456, 464-465 & 466-467)

Chapter 6 Part F, pp. 467-474 (read; be prepared to discuss questions at pp. 473-474)

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.

Chapter 3 Part A,  pp. 135-140 (read)

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)

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)

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)

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)

Chapter 3 Part I, pp. 180-181 (read)

Chapter 3  Part J Section 1, pp. 182-185 (read; be prepared to discuss questions at pp. 184-185)

Chapter 3 Part J Section 2, p. 185- to end of first full par. at p. 186 (read)

Chapter 3 Part J Section 3, pp. 189-193 (read; be prepared to discuss questions 3- 9 at pp. 192-193)

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)

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:

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:

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:

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 (skim; no discussion) & subsection b, pp. 239-244 (skim; no discussion)

unavailability (for Rule 804):

Chapter 3 Part N Section 1, pp. 244-246 (skim; no discussion)

former testimony:

Chapter 3 Part N Section 2,  pp. 248-255 (skim; no discussion)

dying declaration:

Chapter 3 Part N Section  3,  pp. 255-258 (read; be prepared to discuss questions at pp. 257-258)

statement against interest:

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)

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])

Read In re Winship and think about Questions about Winship; be prepared to explain why I assigned In re Winship -- 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)

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)

Chapter 8 Part E Section 2 pp. 595-596
Jaffee v. Redmond at pp. 596-600

I reserve the right to make changes in the reading assignments.

California Evidence Code

Texas Rules of Evidence

Utah Rules of Evidence

Wyoming Rules of Evidence