EVIDENCE

Syllabus for Evidence

Fall 2004

Prof. Daniel Williams

Class: Tuesday and Thursday 10:15-12:15

Office Hours: Tuesday and Wednesday 3-5 p.m.

The course books are Evidence by George Fisher (Foundation Press 2002) and its companion supplement, Federal Rules of Evidence/Statutory Supplement, 2003-2004 Edition. You should study the evidence rules and the legislative material associated with the assigned reading. Additional materials (identified below as Supplemental Material) can be retrieved from TWEN (The Westlaw Education Network). Assignments from the Supplemental Material are part of the required reading. Any optional reading will be identified as such.

Call the bookstore (617/373-2286) or Gnomon Copy (617/536-4600) to determine if the course materials are available in advance.

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The study of evidence can be many things—a philosophical investigation into the nature of proof and valid reasoning, an examination of how trials are and ought to be conducted, a tutorial on how to prevail in a lawsuit (evidence as ammunition), an extended exercise in statutory construction, and more. Because evidence law is, for lawyers, a body of rules dictating ways facts may be proved or disproved at a trial, we will approach the subject through real-world problems, evidentiary puzzles that have occupied the attention of lawyers and judges in our courts. In the process we’ll improve our legal-reasoning and argumentation skills.

Both in class and in the exam, you will be expected to solve evidentiary problems by :

· citing from memory the pertinent provisions in the Federal Rules of Evidence (this you will have to do as lawyers in a courtroom),

· marshaling support for your analysis and arguments from the legislative history and the Advisory Committee Notes,

· identifying precedent provided in the casebook and the Supplemental Material and explaining how that precedent bears on the problem.

A word about class participation. Participation is essential to learn the material. Reading without doing won’t cut it. Wrestle with the problems, debate them with others, take risks with your thinking. After all, that is how you as lawyers will ply your trade. So work through the problems in the casebook before class (you may find it useful to work with others). We’ll often grapple with problems that are not in the casebook, problems that you’ll confront for the first time during the class. The motivation here is to promote our ability to think about the evidence rules in the heat of the moment.

The exam will be two and a half hours, closed book, roughly two-thirds short answer problems and the balance grappling with longer hypothetical scenarios that call for conventional issue-spotting and narrative explanation.

Please read Assignment 1 before the first class.

READING ASSIGNMENTS^*

1. RELEVANCE: What counts as proof? Relevance as a relational concept—what is relevant depends on what it is you are trying to prove. As a good trial lawyer would put it, what’s the story you want to tell and how does the evidence help you tell it?

Ø Introduction: pp 1-5, 7-16 (background)

Ø Chapter 1, Section A: pp 18-24, 30 (Problem 1.6)

2. TWO TOPICS IN THIS READING ASSIGNMENT:

n CONDITIONAL RELEVANCE: If something is relevant only upon satisfaction of a certain condition, or set of conditions, should the proponent of the evidence be forced to prove that condition or set of conditions? Why not let the opponent expose the absence of the condition to show that the proffered evidence is worthless? Consider whether the concept of conditional relevance make sense. Why not rely on the adversarial process alone and dispense entirely with the concept of conditional relevance?

Ø Chapter 1, Section B: pp 30-38

Ø Chapter 10: pp 696-99 (Detour into the doctrine of authentication. As you read and think about the material on these three pages, ask yourself: how is authentication related or akin to conditional relevance?)

Ø Supplemental Material: Romano v. Ann & Hope Factory Outlet, Inc.

n PROBATIVE VALUE VERSUS PREJUDICIAL EFFECT: When is relevant evidence too emotionally wrenching to be allowed? When and why do we mistrust a jury’s ability to analyze fairly and dispassionately an item of evidence? Does Rule 403 only apply to gruesome evidence, like gory photographs? Most importantly, why not use the Rule 403 approach for all evidence problems?

Ø Chapter 1, Section C: pp 38-44

Ø Chapter 1: pp 25-28, 44-48

3. PROBATIVE VALUE VERSUS PREJUDICIAL EFFECT (continued)

Ø Chapter 1: pp 48-54

Ø Chapter 1, Section C: pp 66-78

Ø Supplemental Material: People v. Adamson

Ø We may not use class time to discuss the material in Chapter 2, but you should still read pages 79-83, 95-96, 101-05, 120-23. The rules and material are rather straightforward

4. CHARACTER EVIDENCE—THE PROBLEM OF PROPENSITY: There is in life a tendency to draw conclusions about what happened by looking to who was involved. And so there is a temptation to find culpability based upon who the accused is rather than on proof of what the accused has done. We now begin our study of Rule 404, one way the law of evidence deals with this temptation.

Ø Chapter 3, Section A: pp 124-43

Ø Chapter 3, Section B: pp 143-49

5. MORE ON CHARACTER EVIDENCE—ROUTES AROUND THE PROPENSITY BOX UNDER RULE 404(b) AND THROUGH IT UNDER RULE 413: Even though proof of other bad acts might lead to judgments about the accused’s character (and thus lead to propensity reasoning), we know there are occasions when such evidence is important to prove something other than the accused’s character. We continue that topic with this reading assignment. And then there’s the exceptional treatment of sexual assault cases—why do we permit propensity reasoning there?

Ø Chapter 3, Section B: pp 150-72

Ø Chapter 3, Section C: pp 175-82

Ø Chapter 3, Section D: pp 182-93, 201-08

Ø Problem 9.12 at pp 694-95—concern yourself only with the facts presented in Problem 9.12)

Ø Pages 193-201 are optional (I particularly recommend Rep. Molinari’s Floor Statement in support of Rule 413)

6. PROVING AND ATTACKING CHARACTER—A LOOK AT RULES 405 & 406; THE RULES FOR (AND THE ART OF) IMPEACHMENT (RULES 608 & 609): As we’ve seen with Rule 413, sometimes propensity reasoning is allowed. Another illustration of that is Rules 608 and 609. These rules allow argument that a person who has been untruthful in the past may be unworthy of belief now—naked propensity logic. Consider whether allowing propensity reasoning within this narrow sphere makes sense.

Ø Chapter 3, Section E: pp 208-23

Ø Study Rule 406 and consider Problem 3.18 on page 236

Ø Chapter 4, Section A: pp 237-47

Ø Chapter 4, Section B: pp 248-49, 255-64

Ø Supplemental Material: State v. Conlogue

7. THE RAPE SHIELD LAW AND OUR FIRST LOOK AT THE CONSTITUTIONAL RAMIFICATIONS IN APPLYING THE RULES OF EVIDENCE: Cross-examination is a powerful courtroom weapon. Rules 608 and 609 provide some ground rules for cross-examination. Now we will examine Rule 412, the rape shield law, which limits considerably how a complainant in a sexual assault trial may be cross-examined. Consider how Rule 412 ought to be interpreted: is it a strict prohibition with narrow exceptions, or is it a rule like Rule 404(b), one that only prohibits propensity reasoning but otherwise does not bar evidence designed to further other litigation aims? How does an accused’s constitutional right to present a defense bear on our interpretation of Rule 412? Indeed, what bearing do the Fifth and Sixth Amendments to the U.S. Constitution have on our understanding of the rules of evidence generally?

Note: Our discussion of the constitutional ramifications in applying the rules of evidence will extend into the next reading assignment. The reading for Chapter 6 (a mere two pages) is a bit of a detour. It deals with competency, a brief topic for us. I assign it now to kill two birds with one stone: first, to address the topic; and second, to aid in your reading of the Michaels and the Rock case, which introduce us to the constitutional considerations we will be discussing.

Ø Chapter 4, Section B: pp 254-55 (Problem 4.2), 264-70 (the discussion of Luce v. United States and Ohler v. United States at pages 270-73 is optional)

Ø Chapter 4, Section C: pp 277-80

Ø Chapter 4, Section D: pp 280-85

Ø Chapter 5, Section A: pp 286-91

Ø Chapter 5, Section B is optional.

Ø Chapter 5, Section C: pp 299-306

Ø Chapter 6: pp 332-33

Ø Supplemental Material: Rock v. Arkansas and State v. Michaels

8. TWO TOPICS IN THIS READING ASSIGNMENT:

n THE CONSTITUTIONAL LIMITS OF RULE 412: What happens when the accused’s efforts to present what seems like a legitimate defense collides with the goals of Rule 412?

Ø Chapter 8, Section C: pp 573-80, 585-86

Ø Chapter 5, Section C: pp 307-24

n INTRODUCTION TO THE RULE AGAINST HEARSAY

Ø Chapter 7, Section B: pp 336-44

9. MORE ON WHAT IS HEARSAY AND THE EXCEPTION FOR PAST STATEMENTS OF THE ADVERSARY: The rules deem statements by a party-opponent—the adversary against whom a statement is used—to be non-hearsay. Literally speaking, that is wrong, as such statements fall within the definition of hearsay. As you study this aspect of the rules, you may find it easier to regard Rule 801(d)(2) as actually an exception to the hearsay rule. What’s the theory in giving virtual carte blanche to using an adversary’s past statements? What does it tell you about what the hearsay rules are trying to accomplish? And if a person should be stuck with his or her damaging past statements, why not hold a person to the bad choices that make up his or her character?

Ø Chapter 7, Section B: pp 344-54, 360-2

Ø Chapter 7, Section C: pp 363-74

Ø Chapter 7, Section D: pp 399-404

Ø There are hearsay problems on pages 354-60 which may help clarify and reinforce your understanding what is and what is not hearsay.

10. TO TOPICS IN THIS READING ASSIGNMENT:

n THE CO-CONSPIRATOR EXCEPTION: Is the co-conspirator exception an inevitable offshoot of Rule 801(d)(2)? What are the limits to the co-conspirator exception?

Ø Chapter 7, Section C: pp 374-84

n MORE ON IMPEACHMENT (USING PAST INCONSISTENT STATEMENTS): After studying the co-conspirator exception, we’ll return to the topic of impeachment. In our daily lives, we find it helpful in evaluating credibility to know whether someone has said something different in the past. We see it in our current presidential campaign. We see it in films and books depicting trial lawyers examining witnesses. There are rules to how a lawyer may go about impeaching a witness with inconsistent statements. We’ll discuss those rules, and maybe even broach the artistry of a good impeachment.

Ø Chapter 7, Section D: pp 385-99, 404-05, 414-21

11. COUNTERING THE IMPEACHMENT BY USING PAST CONSISTENT STATEMENTS: Sometimes you pay a price for impeaching a witness. Evidence that otherwise would be inadmissible hearsay suddenly may become relevant to rehabilitate the witness. But the rules are strict in countering an impeachment.

Ø Chapter 7, Section D: pp 406-14

RULE 804's HEARSAY EXCEPTIONS FOR STATEMENTS AGAINST INTEREST AND DYING DECLARATIONS: Hearsay exceptions under Rule 804 require proof that the declarant is unavailable. What is an “unavailable” witness? Are there certain kinds of statements that wouldn’t be uttered unless they’re true? Is that so with statements uttered under the hush of impending death? True, as well, with statements that could harm you if law enforcement were to learn of them?

Ø Chapter 7, Section E: pp 422-28, 434-49

12. THE MIND AND EMOTIONS OF THE DECLARANT—HEARSAY EXCEPTIONS THAT DON’T DEPEND ON UNAVAILABILITY OF THE WITNESS: Consider the words of an innocent child, too young to be tainted by the petty biases and prejudices of the grown-up world. There’s a purity and power and credibility in them, isn’t that so? And what about the unguarded statement—we trust those, too, don’t we? When persons speak without artifice, without a genuine opportunity or motivation to embroider or concoct details, we believe them. Consider how we react to things said in a genuinely excited outburst, or things reported as they are being observed.

Ø Chapter 7, Section F: pp 455-78

Ø Chapter 7, Problem 7.36: pp 478-79 (read the problem and we’ll analyze it in conjunction with a lecture on the rules for refreshing memory and recorded recollections).

13. BUSINESS RECORDS EXCEPTION AND THE POTENT USE OF REPORTS; THE CATCHALL RESIDUARY EXCEPTION: Would the 911 Commission Report be inadmissible hearsay?

Ø Chapter 7, Section F: pp 484-92

Ø Chapter 7, Section F: pp 496-506

Ø Chapter 7, Section G: pp 507-18

14. THE CONFRONTATION CLAUSE: We are all aware of the right of confrontation. But allowing hearsay evidence, by definition, deprives the accused of the opportunity to “confront” the witness. How can that be justified? Doesn’t the Sixth Amendment Confrontation Clause bar all hearsay testimony?

Ø Chapter 8, Section A: pp 519-25

Ø Chapter 8, Problems 8.1 and 8.2: pp 542-43, 559,

Ø Supplemental Material: Crawford v. Washington (note: this is a VERY IMPORTANT recently-decided case by the U.S. Supreme Court; it refashioned the entire Confrontation Clause analysis); People v. Cortes (applying Crawford to a 911 call); Snowden v. State (applying Crawford in a child-sex abuse prosecution).

Ø Chapter 7, Section A: pp 334-36 (optional three pages about the trial of Sir Walter Raleigh; Crawford invokes it often)

15. OPINION TESTIMONY: Facts, just the facts. Is that possible? Nietzsche once said, “there are no facts, just interpretations.” True? What might Nietzsche have meant by that, and what does such a notion suggest about how much latitude we give witnesses to offer opinions?

Ø Chapter 9, Section A: pp 587-94

EXPERT TESTIMONY: What makes a person an “expert”?

Ø Chapter 9, Section B: pp 594-604, 616-21

Ø Chapter 10, Section B: pp 714-19 (Detour into the Best Evidence Rule. Can you see a thematic commonality between the Best Evidence Rule and the law governing opinion testimony?)

16. CLOSING THE GATES ON JUNK SCIENCE—FRYE, DAUBERT, & KUMHO TIRE

Ø Chapter 9, Section B: pp 625-39, 648-51, 669-81

Ø Pages 639-48 is optional. It deals with what happened in Daubert on remand. I recommend it as an illustration of remarkable judicial craftsmanship, something we don’t see enough of.

17. SPECIAL TOPICS ON EXPERT TESTIMONY

Ø State v. Batangan: casebook at pages 608-13 (expert assessing another witness’s credibility in child-sex abuse prosecution)

Ø State v. Kinney: casebook at pages 682-87, 692-93 (rape-trauma expert to bolster credibility of complainant), plus Problem 9.12 at pages 694-95

Ø United States v. Hines: casebook at pages 613-16 (expert on eyewitness identification)

Ø In re Melton, Case Note: casebook at pages 621-25 (psychiatric experts in civil-commitment context)

Ø Barefoote v. Estelle: Supplemental Material (psychiatric experts in death-penalty context), plus casebook at pages 688-92

Ø U.S. v. Scheffer: Supplemental Material (defendant’s right to present polygraph evidence)

Ø Morales v. Portuondo: casebook at pages 741-54 (applying Chambers to evidentiary privileges; you may defer reading this case until the next Reading Assignment)

Ø People v. Collins: casebook at pages 54-64 (statistical probability as evidence)

18. PRIVILEGES

Ø Chapter 11: pp 728-32 (optional background reading)

Ø Chapter 11: pp 732-40

Ø Chapter 12, Section A: pp 755-65

Ø Chapter 12 (Problems 12.1, 12.2, 12.3, 12.4, and 12.5); pp 767-70, 774-75

Ø Chapter 12, Section B: 783-90

Ø Chapter 13, Section A: pp 828-41, 846-47 (Problem 13.1)

Ø Chapter 13, Section B: pp 847-58 (optional)

^*Remember: read the applicable rules associated with these reading assignments, along with the Advisory Committee Notes and the legislative material.