Peter Tillers' Home Page

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Federal Rules of Evidence

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The required book for this course is:

Jon Waltz & Roger Park, Evidence: Cases and Materials (Foundation, Updated 10th ed., 2005)

• The "Updated 10th Edition" (emphasis added) is not exactly the same as the "10th Edition." The Updated Edition contains the recent decision Crawford v. Washington and related material. I recommend that you buy the Updated Edition. However, if you are on a tight budget, you can instead buy a used copy of the 10th Edition and photocopy Crawford and the related material. The pagination of the 10th Edition and the Updated Edition is the same.

This course has an ANGEL course web site. There you will find (i) supplementary reading material, (ii) a calendar marked with important dates, (iii) folders for informal, evanescent "chats" about the law of evidence, the course, or anything else you please, and (iv) a folder -- "Evidence Forum" -- for permanent but unofficial discussion of topics in the law of evidence that happen to interest you.

In the course web site in ANGEL you will also find (v) a folder for recorded discussion that focuses on questions and arguments about the assigned course material.

I generally won't participate in the "chats" or in the informal but recorded discussions in ANGEL.

I may or may not participate in the discussions in the "Course-Related Questions and Discussions" folder in the "Lessons" page of ANGEL. My guess is that you will often answer each other's questions or make perfectly satisfactory arguments and counter-arguments and that I will have little or nothing to add.

The following books are recommended but not required:

Roger Park, David Leonard & Steven Goldberg, Evidence Law (Hornbook Series, Thomson-West, 2nd ed., 2004)

• This book will give you more information about black letter rules of evidence and it will give you some useful information about the policies underlying those rules. (But other excellent hornbooks are available. Use the hornbook that suits you best. [As a practical matter, you should use a {good} hornbook. Doing so makes life simpler.])

Terence Anderson, David Schum & William Twining, Analysis of Evidence (Cambridge U. Press, 2nd ed., 2005)(hereafter "ANALYSIS")

J.S. Covington, Jr., The Structure of Legal Argument and Proof (Wm. S. Hein & Co., 2nd ed., 2006) (hereafter "STRUCTURE")

• These last two books mentioned above will give you a deeper insight into the logic of evidence and inference. They probably won't help you pass the bar exam. But they will prepare you for litigation or for a judgeship.

Richard Lempert, ed., Evidence Stories (Foundation Press, 2006)

• This book puts flesh on some of the evidence doctrines that you will encounter in this course.

One of my very firm beliefs is that factual inference -- which is either a principal object or the principal object of proof at trial -- involves chains, complexes, and webs of inferences. My view of how evidence and inference work of course influences how I teach the law of evidence. Today there are various computer tools that purport to help people -- students, lawyers, judges, anyone -- to develop, visualize, and analyze webs, or complexes, of factual inferences. I believe that one such computer program -- Rationale -- stands out: Rationale is unusually user-friendly and is ready for at least limited (and perhaps for extensive) real-world use. This is why I ask that you purchase (for ca. $20) a subscription to this software and that you try to use this software now and then to describe, visualize, and analyze the evidence problems that you encounter in this course.

Note: If you are on a tight budget, you need not purchase a license to Rationale; I will not be asking the students in this course to make routine use of Rationale. However, my strong guess is that many of you will find this software useful in this course and that even more of you will find it to be useful in your law practice in the years to come.

You can purchase a subscription to Rationale at the Austhink web site.

Note: In endorsing Rationale, I do not necessarily endorse every feature of this software. For example, Rationale allows the development of hierarchical chains of inference -- of tree-like arrangements of inferences -- but, as far as I can determine, Rationale does not yet allow the development of "lateral" links among inferences in a complex of inferences (and it thus does not permit the development of genuine webs of inferences). But the developers of Rationale are working on refinements of their software. Furthermore, despite my (possibly-misguided) quibbles with some features of the software, I think the software as it stands is magnificent and that it can and will do most of the things that you or I would want it to do.

Exam

The final exam will be a 24-hour open-book take-home exam.

Contact Information

Office: 1005

Office hours:

4:00 - 6:00 p.m., Thursdays.

For other times,

Knock on my door to see if I am in and available. (I have an "open door" policy but I generally keep my office door closed. So please knock.) Exception: please do not knock on my door an hour or less before an Evidence class.

E-mail me for an appointment. (Please do not leave a voicemail message. Send an e-mail message instead. Many thanks.)

Email: peter@tillers.net

I generally answer e-mail messages quickly. I invite discussions by e-mail; I generally enjoy such discussions. If you think your question might be of general interest, consider putting your question in the "Course-related Questions and Discussions" folder on the "Lessons" page in ANGEL.

Coffee or Tea Breaks (Optional!)

We will have weekly or bi-weekly gatherings in the French cafe on 12th Street between 5th Ave and University. We may discuss evidence issues in the news -- e.g., evidence of satanic rituals in the murder trial of a Catholic priest, the latest study of lineup procedures, evidence in the Moussaoui sentencing hearing of people leaping to their deaths from the World Trade Center towers, rules of evidence in proceedings before military commissions, and so on. Or we may just gossip. But discussion of course material is out of bounds at these informal gatherings.

• Attendance at these gatherings is not mandatory. The basic idea is just to do something enjoyable that is also related to evidence or the law of evidence.
  
• These gatherings will continue as long as a few people -- e.g., two, three, or four people -- show up.
  
• The first meeting will take place Tuesday, September 11 (a "legislative Wednesday" at Cardozo), at 4:00 p.m. The dates and times of later gatherings will be announced later.
• Participants in these gatherings will have to pay for their own food and drinks, alas.

I will make introductory comments about the law of evidence. There will be a brief discussion of mechanics (exam, books, course web sites, etc.).

Casebook, pp. 74-76: James, Relevancy, Probability and the Law (emphasize pp. 74-75 through first full paragraph)

Casebook, pp. 78-79: McCormick excerpt on relevancy

Federal Rules of Evidence (FRE) 401-402 in Appendix A and related notes & history in Appendix B

An Exception to Inadmissibility of Irrelevant Evidence?: Note on "Background Evidence"

Tillers, "Logical Relevance versus Legal Relevance"

Problem: Beer Cans in the Car

Think in particular about the rule that relevant evidence is admissible and the rule that irrelevant evidence is inadmissible. What makes evidence relevant? And why should irrelevant evidence be excluded?

When we come to the Beer Can Problem, I will ask quite a few questions. Please study this problem carefully.

Further optional! reading: ANALYSIS Chapter 3.B at pp. 78-87

Review FRE 401 & the Advisory Committee's Note

In re Winship

Questions about Winship

Lempert, "Modeling Relevance"

Tillers, "Making (Inverted) Bayesian Thinking More Intuitive"

The New Evidence Scholarship ; Making (Inverted) Bayesian Thinking More Intuitive

Further (entirely optional!) reading: A more elaborate (more rigorous & more comprehensive) intuitive explanation of Bayesian logic: Eliezer Yudkowsky, "An Intuitive Explanation of Bayesian Reasoning"

For an intuitive and lucid (and thoroughly optional!) introduction to probability theory for non-mathematicians -- i.e., lawyers! :-) -- see Covington's STRUCTURE Chapter 5.

Important note:

Unless you are unusually proficient in mathematics, I do not expect or want you to use formal probability theory or Bayes' Theorem on the final examination. In this course I only want you to get an intuitive feel for the logic that underlies Bayesianism.

Even if you are unusually proficient in mathematics, I would prefer that you not use formal probability theory or Bayes' Theorem on the final exam. This is mainly because (I believe) ordinary problems of evidence and inference have many nuances that are extraordinarily difficult to capture with mathematical argument. (There is nothing simple about ordinary real-world problems of evidence.)

Problem:Compensation for Slaving over Pizza (with thanks to E. Green, C. Nesson & P. Murray)

Review FRE 401

FRE 403 in Appendix A and related notes & history in Appendix B

Prejudice in a Matrix: Possible Rationales for Various Parts of FRE 403

Ballou v. Henri Studios, Inc., Casebook, pp. 91-94

Old Chief v. United States, Casebook, pp. 81-91

1. Did Old Chief eliminate the legal notion of limited admissibility (cf. FRE 105), at least in the cases to which Old Chief applies? (Reconsider this statement by Justice Souter.)

2. If not, do juries obey when they are instructed to use evidence for one purpose but not another? (Consider these statements by Professors Neil Vidmar and Shari Diamond.)

Review FRE 401; read California Evidence Code (CEC) §210, Casebook, p. 1233; review FRE 403; and then consider the following two questions:

Question 1, Casebook, p. 94.

First assume that this civil action is brought in a superior court [a trial court of general jurisdiction] of the State of California. Then assume that the action is brought in a federal district court in California.

Question 2, Casebook, p. 94.

Assume that this civil action is brought in a superior court of the State of California.

The Power of Visual Images & Tangible Things: Prejudice, Persuasion, Efficiency & Truth

Picturing Homicidal Passion in Philadelphia

Film (in class)

Another film (in class)

Recommended (but optional!): Fred Galves, Where the Not-So-Wild Things Are: Computers in the Courtroom, the Federal Rules of Evidence, and the Need for Institutional Reform and More Judicial Acceptance, 13 Harv. J. Law & Technology 161 (2000); Solomon Paper

The John Salvi Case

Note on Forms of Evidence

The Ninth Circuit Court of Appeals Discusses the Meaning of "Direct Evidence"

Week 5:

Morgan, Basic Problems of Evidence, Casebook, pp. 77-78; United States v. Robinson (including the notes & diagrams); Tillers on the "Rule" against Inference on an Inference; FRE 104(b).

The extract from Morgan and The "Rule" against Inference on an Inference serve as background for a class exercise based on United States v. Robinson. A team of prosecutors and a team of defense counsel will make oral arguments at Robinson's (hypothetical) 2006 trial about admissibility of the sort of gun evidence at issue in Robinson (1976). Following this classroom exercise -- when you are going home -- ponder whether there is more to inference than probability.

Further optional! reading on relevance, circumstantial evidence, and multistage inference: ANALYSIS Chapter 2.C.2 at 62-63; ANALYSIS Chapter 3.D at pp. 90-94; ANALYSIS Chapter 10.A.1-5 at pp. 262-277 (skim Section 3); STRUCTURE at 119-127

Two optional! problems of evidence and inference in the spirit of Robinson:

1. Do Both the Good and the Evil Fear (and Flee) the Police in Washington Heights?

2. ANALYSIS Chapter 1.C.4.a at 21-23 & A Suspicious (?) Gesture by Mr. Sacco. See also ANALYSIS at 285-286

 

A Detour: Rules about Writings & Other More-or-Less-Material Things

Casebook, pp. 686-694; FRE 1001-1008.

McCormick, Evidence, CB 686; Sirico v. Cotto, CB 686; Case Note, CB 688; Herzig v. Swift & Co., CB 689; Meyers v. United States, CB 690; People v. Enskat, CB 692.

Week 6:

Days 1-2. Casebook, pp. 694-695 (McCormick), p. 697 (Note on Green Giant); Problem: The Problematic Promissory Note & Materials for this Authentication Problem; FRE 901-903.

Relevance & Some of Its Counterweights: Of Character, Other Acts & Habit

Day 3. Casebook, pp. 384-396 & pp. 397 (from Trial Manual) - 402; FRE 403-406. Read the Michelson decision with special care.

Class discussion: Tillers will assume knowledge of the assigned reading. He will lecture on the character evidence rule. During the lecture he will discuss hypothetical problems that illustrate the ins-and-outs of the rule.

Further optional! reading: People v. Zackowitz; Tillers, Diagram of Character Evidence Rule(s)

Days 1-2. Casebook, pp. 402-420; FRE 403-406. Re-read Michelson. Read the text of Rule 404 with special care and prepare to answer specific questions about the rule and its exceptions.

Class discussion: As before, Tillers will assume knowledge of the assigned reading and will proceed by lecturing and discussing hypothetical problems.

Further optional! reading: Tillers, §§ 1.1 through 1.5.1.3 of Notes (on "circumstantial" character evidence); Tillers, The American Character Evidence Prohibition: What Is Not Prohibited Is (Generally) Permitted; Tillers, Note on Other Crimes & Bad Acts to Show Plan, Scheme, or Pattern

Day 3. Casebook, pp. 421-428; Review FRE 403-405; Qs, p. 432; FRE 104(a)-(b); Advisory Committee's Note to FRE 104(a) & (b) in Appendix B.

Tucker v. State; FRE 104(a)-(b); Advisory Committee's Note to FRE 104(a) & (b) in Appendix B; Huddleston v. United States.

Week 8:

Casebook, pp. 432-435; United States v. Levin; State of New Jersey v. Radziwil; FRE 406; Advisory Committee's Note to FRE 406 in Appendix B; FRE 610; Problem

Order of class discussion: Park, Leonard & Goldberg; FRE 406; United States v. Levin; FRE 610; State of New Jersey v. Radziwil; Problem

Further optional! reading: P. Tillers, "The Death of a Youth and of a Drunkard: A Remarkable Story of Habit and Character in New Jersey," in Richard Lempert's Evidence Stories (Foundation Press, 2006).

Character Evidence in Sexual Misconduct Cases

Casebook, pp. 439-440 & 444-447 & 453-463; FRE 412-415.

Note; Olden v. Kentucky; Johnson v. Elk Lake School District; Park, Character at the Crossroads.

Further optional! reading: Tillers, Notes on Character Evidence

Weeks 9-10:

Insurance, Remedial Measures & Compromise

FRE 407-411; notes & problems (please go to folder "FRE 407-411: Problems" on the "Lessons" page in ANGEL)

Question: When jurors are told they may consider evidence for one purpose but not another or when they are told to disregard certain evidence or matters, do jurors follow instructions? For example, if jurors are told to ignore the existence or non-existence of insurance, do they follow instructions? Consider this article by Professors Neil Vidmar and Shari Diamond.

versus

General Rules and Principles Governing the Competency of Witnesses:

FRE 601-603 (including Advisory Committee Notes in Appendix B)

Skim FRE 605 & 606(a)

General Rules and Principles Governing the Impeachment of Witnesses:

Skim FRE 607-610 & 613

The Choice between Witness Disqualification and Testimonial Impeachment: 

Review FRE 401 & FRE 403

Problem: The Intoxicated Informer (with thanks to E. Green, C. Nesson & P. Murray)

Problem: Little Archie, the Child Witness (with thanks again to E. Green, C. Nesson & P. Murray).

Science and Witness Credibility:

FRE 701 and Advisory Committee's Notes in Appendix B.

FRE 702-706 and Advisory Committee's Notes in Appendix B.

Pay special attention to Advisory Committee's Notes to 2000 Amendments to FRE 701 & 702 in Appendix B.

Frye v. United States

Casebook, pp. 709-719: State ex rel. Collins v. Superior Court

People v. Hughes

Daubert v. Merrell Dow Pharmaceuticals (online) & at CB 867

Kumho Tire Co., Ltd. v. Carmichael (online) & at CB 875

United States v. Lewis

Rock v. Arkansas

United States v. Scheffer (online) & CB 912

 See also United States v. Abel (online) & at CB 566 and United States v. Lindstrom (online) & at CB 541

State of New Jersey v. Moore

CB 935: State of Arizona v. Chapple

David Feige, Stupid-Syndrome Syndrome, "Yet more junk science to confound the legal system," Slate (April 6, 2005)

Week 11:

Introduction to The Hearsay Rule

Casebook, pp. 100-103; Tillers, Picturing Hearsay Logic; Tillers, A Basic (Black-Letter) Definition of Hearsay; Casebook pp., 106-112; FRE 801(a)-(c), 802. Skim FRE 803(3). Computer exercise, "Hearsay from Square One."

Picturing Hearsay Logic; A Basic (Black-Letter) Definition of Hearsay; Park, Two Definitions of Hearsay

Constitutional Status of Hearsay Evidence in Criminal Trials

Ohio v. Roberts; Crawford v. Washington; Davis v. Washington

Further entirely optional! reading:

Richard Friedman's Confrontation Blog

Further optional! (but highly recommended) reading: Professor Samuel Gross on Bobby Lee Holmes

Week 12:

Back to Basics: What Is Hearsay and What Isn't?

Statements "to show belief, knowledge, or state of mind rather than the truth of the matter asserted," are not hearsay:

Subramaniam v. Public Prosecutor, CB 106; Vinyard v. Vinyard Funeral Home, Inc., CB CB 107; Johnson v. Misericordia Community Hospital, CB 108

Statements in the form of "verbal acts," or legally-operative statements, are not hearsay:

Ries Biologicals, Inc. v. The Bank of Santa Fe; Strahorn, A Reconsideration, CB 109

Statements "to show belief or state of mind that is an element of a claim, charge, or defense" are not hearsay:

Fun-Damental Too, Ltd., CB 110

Morgan, Basic Problems, CB 125

FRE 801(a)-(c); Advisory Committee's Note to FRE 801(a)-(c) in Appendix B.

Use and Abuse of Statements to Show Belief, State of Mind, or "Knowledge":

United States v. Hernandez, CB 112

Modern (FRE) and Common Law Treatment of "Implied Statements," of Saying Things (Communicating Beliefs) without Intending To Do So & Making Assertions Seemingly without Meaning To Do So:

United States v. Zenni, CB 114

Examples of Saying Something by Saying Nothing: Commonwealth v. Knapp, CB 119; Morton, The Rothschilds, CB 120; Canadian Beef, CB 121

McCormick, Borderland, CB 121

Hearsay or Non-Hearsay Status of Belief, Knowledge, or State of Mind Offered as "Circumstantial Evidence":

Review FRE 801(a)-(c) & 602. Skim FRE 803(3) and 807.

Then study US v. Jaramillo-Suarez, CB 125; US v. Rhodes, CB 127

Then ponder the Bridges Case by reading

first, Lilly on Evidence, CB 128, and, second, Bridges v. State of Wisconsin

US v. City of Webster Groves v. Quick, CB 131

Morgan, Hearsay and Non-Hearsay, CB 132

Parrot May Have the Answer to a Killing, CB 133

Casebook, pp. 237-239; FRE 801(d)(1)(C); Photograph (with thanks to E. Green, C. Nesson & P. Murray); Casebook, pp. 239-242.

Weinstein's Evidence, CB 237; discussion of online Photograph; United States v. Owens, CB 239

Are human beings perceptual idiots? For an example of an article suggesting an affirmative answer see, e.g., xxx. But cf. Perceptual Errors

Review FRE 801(d)(1)(A) (including legislative history)

Consider BMW problem

FRE 613

Contemporaneous, Spontaneous(?) & Excited Utterances:

Casebook, pp. 146-149; FRE 803(1), 803(2), 803(3), 805; Questions, p. 159; Advisory Committee's Note to FRE 803(1) and 803(2) in Appendix B; Hypotheticals, Casebook p. 215

Statements Describing Then-Existing Internal States, including "Statements of Intention":

Review FRE 803(3); Hillmon case, Casebook, pp. 215-218; Hypotheticals, Casebook pp. 221-222 (exclude Hypothetical C) & pp. 227-228.

What Really Happened at Crooked Creek (optional! reading): Marianne Wesson, "The Hillmon Case, the Supreme Court, and the McGuffin," in R. Lempert, ed., Evidence Stories pp. 277-305 (Foundation Press, 2006)

Statements for Medical Diagnosis or Treatment:

FRE 803(4); Casebook, pp. 234-237 and related note in App. B, pp. 1141-1142.

Statements of Dead or Unavailable Declarants: Unavailability; Exceptions for Former Testimony, Dying Declarations, Statements against Interest & Forfeiture

Unavailability: FRE 804(a); United States v. Owens, CB 239

Former Testimony: FRE 804(b)(1). Distinguish (and study) Federal Rule of Civil Procedure 32(a). Read Note, Issue Preclusion, Casebook p. 192 & Note on the Concept of Predecessor in Interest, Casebook p. 193

Dying Declarations: FRE 804(b)(2); Cairns, Law and the Social Sciences, Casebook p. 137; King John, Casebook, p. 138; The Bedside of Lope De Vega, Casebook, p. 138; Stephen's Account, Casebook, p. 138.

Statements against Interest: FRE 804(b)(3). Skim US v. Barrett, Casebook, p. 201 & Williamson v. US, Casebook. p. 206

Forfeiture: FRE 804(b)(6)

FRE 807; McCormick, Law and the Future: Evidence, Casebook, p. 304; Emerging Problems under the Federal Rules of Evidence, Casebook, p. 312

Week 14:

Study FRE 801(d)(2); Advisory Committee's Note to FRE 801(d)(2) in Appendix B.

Then consider:

Simple Admissions: Reed v. McCord, CB 160

Tacit Admissions: United States v. Hoosier, CB 161; Snippets at CB 163-164 (Jury Intructions; St. Luke; Our Crowd; Another View); La Buy, Jury Instructions in Federal Criminal Cases, CB 168

Review the optional! problem Do Both the Good and the Evil Fear (and Flee) the Police in Washington Heights?. See also David Schum's classic analysis of the inferential issues generated by possibly-furtive behavior: A Suspicious (?) Gesture by Mr. Sacco.

Vicarious Admissions: Agents & Employees: Mahlandt v. Wild Canid Survival & Research Center, CB 168; Big Mack Trucking, CB 172; FRE 805 & BMS Problem (see Hearsay on Hearsay folder on Lessons page in ANGEL); Sabel v. Mead Johnson, CB 176.

Vicarious Admissions: Co-Conspirators:

Review FRE 801(d)(2)(E) & FRE 104. (Note: The final sentence of present FRE 801(d)(2) was added in 1997, after the Bourjaily decision.)

United States v. Di Domenico, CB 178.

United States v. Goldberg, CB 179; United States v. Doerr, CB 180.

Bourjaily v. United States, CB 183.

Read Baker v. State, CB 242 & Adams v. New York Central, CB 248.

Then analyze: Problem: Keeping Track of Boxes (with thanks to E. Green, C. Nesson & P. Murray).

Business Records

FRE 803(6)-(7) (including notes & history in Appendix B that relate to FRE 803(6))

Laying the Foundation for Business Records, Casebook, p. 254; Questions, pp. 260-261.

Public Records; Other Records (but focus on public records & especially on FRE 803(8)).

Read FRE 803(8)-(10).

Skim FRE 803(11)-(14). Compare FRE 803(15) & (16) (hearsay exceptions for unrecorded documents).

Read notes & history relating to FRE 803(8) in Appendix B on pp. 1148-1156.

Hypothetical, Casebook, p. 289; Questions 1-3, 7, Casebook, pp. 290-292.

Analyze: Problem: The Pesky Professor

Week 15:

Impeachment and Cross Examination

Segment 1:

Casebook, pp. 364-365 ("fighting fire with fire" excerpt). Skim FRE 607, 608(a), 608(b).

Casebook, pp. 499-506. Study FRE 607, 611, 615. Prepare answers to Questions, p. 502. Note on extrinsic evidence, Casebook, p. 515. Prepare answers to Questions, pp. 515-516.

State v. Oswalt; Questions, p. 502; Questions, pp. 515-516.

Casebook, 524-541; Hypos, pp. 536-537 & 541; FRE 608-609, 806, 803(21).

Hypos, pp. 536-537 & 541.

Segment 2:

Casebook, pp. 541-549; FRE 608, 609, 610.

Review United States v. Lindstrom (online) or at CB 541; Questions, p. 545; Judson Falknor; UPI-Harlow Story.

Casebook, pp. 549-554, pp. 494-499 & pp. 566-572; FRE 613, 801(c), 801(d)(1)

Coles v. Harsch; Goldstein, Trial Technique; Park, Leonard & Goldberg; Morgan; United States v. Hogan; review United States v. Abel (online) or at CB p. 566

Segment 3 (only if time allows):

Privileges; Marital Privileges

Casebook, 628-634; review FRE 501; proposed but rejected FRE 505 in Appendix B

Rule 501; proposed but rejected Rule 505; Trammel v. United States

FINIS

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