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Syllabus
Basic Course in the Law of
Evidence
Professor Peter Tillers
Fall Semester 2008
Cardozo School of Law
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 principles of evidence and proof.)
Students who wish to explore Evidence in more depth will 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).
You do not need to purchase a rules pamphlet. The Federal Rules of Evidence are provided in Appendix A of the course book. They are also available here.The recommended supplementary Evidence hornbook is either Graham Lilly, An Introduction to the Law of Evidence (West Concise Hornbook Series, 4th ed. 2006) or 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). Another excellent supplementary study aid is Mueller & Kirkpatrick, Evidence (West Black Letter Outlines, 2d ed. 2008).
The final exam will be multiple choice with your short explanations for your answers.
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; instructor 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.
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 to discuss 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)
AuthenticationChapter 1 Part C Sections 3a-3b, pp. 46-59 (read; be prepared to discuss questions at pp. 49, 52, 53-54, 57 & 59
Chapter 1 Part C Section 3b(v), pp. 59-62 (skim)
Best Evidence RuleChapter 1 Part C Section 3c, pp. 63-68 (read; be prepared to discuss questions at pp. 64-65 & 66-67)
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 B, pp. 93-101 (read; be prepared to discuss questions at pp. 100-101)
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?Chapter 2 Part E, pp. 121-133 (read; be prepared to discuss questions at pp. 132-133)
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 5 Parts A-C, pp. 387-409 & Part E, pp. 422-426 (no class discussion; but read this material and, making liberal use of up-to-date hornbooks, prepare answers to the questions at pp. 401-402, 405-407, 409 & 425-426; some of these questions will appear verbatim on the final exam; if after preparing your answers to these questions, you have queries about these questions, send me your queries by e-mail and I will send my replies to you and to the entire class -- but if you have queries about the questions in the course book, you must send me your queries no later than two weeks before the end of the semester)
You may find it useful to refer to this chart from time to time.
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 (review these questions; we may not discuss them in class)
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)
Chapter 4 Part E, pp. 382-385 (read; be prepared to discuss questions at pp. 384-385)
Chapter 6 Part A, pp. 427-433 (read; be prepared to discuss questions at pp. 431 & 432-433)
Federal Evidence Rule 607 (read)
You may wish to refer again, now and then, to this chart. It may help you understand the complicated relationship 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)
Chapter 3 Part A, pp. 135-140 (read; be prepared to discuss questions at p. 140)
Chapter 3 Part B, pp. 140-149 (read; be prepared to discuss questions at pp. 145-146 & 148-149)
Chapter 3 Part C, Introduction & Section 1 pp. 149-152 (read; be prepared to discuss questions at p. 152)
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. 156-164 (read; be prepared to discuss questions 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; be prepared to discuss questions at p. 174)
Chapter 3 Part H, pp. 174-180 (be prepared to discuss all questions at pp. 174-180)
Chapter 3 Part I, pp. 180-181 (read; I will recapitulate this material)
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, pp. 185-189 (read; be prepared to discuss questions at pp. 188-189)
Chapter 3 Part J Section 3, pp. 189-193 (read; be prepared to discuss questions 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 (& Rehabilitaton)Chapter 3 Part K, pp. 196-203 (read; be prepared to discuss questions at p. 203)
Chapter 6 Part H Section 1, pp. 479-502 (be prepared to discuss questions at pp. 488-490 & 501-502) 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 & be prepared to discuss)
Leaving Impeachment Behind and Returning to the Hearsay Rule: Hearsay Exceptions (as opposed to "hearsay exemptions" and "non-hearsay")Chapter 3 Part L, pp. 204-205 (read; I will recapitulate some of this material in class)
Chapter 3 Part M, Section 1, pp. 205-211 (read; be prepared to discuss questions at pp. 210-211)
Chapter 3 Part M Section 2, pp. 212-225 (read; be prepared to discuss questions at pp. 223-225)
Chapter 3 Part M Section 3, pp. 225-232 (read; be prepared to discuss questions at pp. 231-232)
Chapter 3 Part M Section 4, pp. 232-244 (read; be prepared to discuss questions at pp. 238-239 & 241-242 & 244)
Chapter 3 Part N Section 1, pp. 246-247 (read; be prepared to discuss questions at pp. 246-247)
Chapter 3 Part N Section 2, pp. 248-255 (skim; I will make a few comments)
Chapter 3 Part N Section 3, pp. 255-258 (read; be prepared to discuss questions at pp. 257-258)
Chapter 3 Part N Section 4, pp. 258-269 (read subsections a-c, skim subsection d, read subsection e; be prepared to discuss questions at pp. 262-263)
Chapter 3 Part N Section 5, pp. 270-276 (read; be prepared to discuss the questions at pp. 275-276)
Chapter 3 Part O, pp. 276-286 (read; be prepared to discuss the questions at pp. 285-286; warning: resist the dangerous temptation to think that the residual exception solves all potential hearsay problems)
Chapter 3 Part P Sections 6, 7 & 8, pp. 290 & 291-292 & 292-293 (skim)
Chapter 3 Part Q Sections 1-3, pp. 293-306; Giles v. California (2008) (read; be prepared to discuss the questions at p. 306)
Chapter 3 Part Q Section 4, pp. 306-315 (read the material in the course book and, in addition, read In Re Winship; be prepared to discuss the questions at pp. 314-315; be prepared to explain why you think I chose to assign In Re Winship)
Chapter 7 Part C, pp. 518-555 (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. 510-517 (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 and the limitations on the admissibility of expert and scientific evidence)
Chapter 8 Part A, pp. 557-559 (read)
Chapter 8 Part B, pp. 559-560 (read; important material, but no discussion in class of question at p. 560)
Chapter 8 Part C, pp. 560-568 (read; be prepared to discuss questions at pp. 567-568)
Chapter 8 Part E, pp. 593-605 (read; be prepared to discuss questions at pp. 604-605)
Chapter 8 Part G, pp. 612-620 (read; be prepared to discuss questions at pp. 619-620)
Chapter 8 Part D, pp. 568-593 (skim; I will highlight some important points)
I reserve the right
to make changes in the reading assignments. (Most such changes
would be relatively minor and would
involve deletions rather than additions to the existing assignments.)