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Evidence

 

Isaac Borenstein

 

Syllabus

 

Fall, 2004

 

Northeastern University Law School

 

 

 

A.  General Information

 

I can be reached as follows:

 

Cellphone:  (508)479-4642 (leave a voice mail)

 

e-mail: iab8@aol.com; and, Cargill Room 63            

 

Secretary:  Elsie Chan, Room 51 CG, (617)373-3346

 

Class text:

Required:  Fisher, EVIDENCE (Foundation Press 2002); Federal Rules of Evidence (same author) with Advisory Committee Notes and legislative history;

          Optional:  (Hornbook) Evidence (Roadmap), by

       Mueller & Fitzpatrick, 2nd ed.

 

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

 

Final Exam:

3 hours, essay(s); the only materials allowed will be a copy of the Federal Rules of Evidence, and a self-prepared outline.

 

Course Overview

 

A course on evidence examines the rules that determine how parties to civil lawsuits and criminal cases prove and disprove the legal claims you=ve been studying in your Asubstantive law@ courses.  If you care about legal claims and defenses, you must also be concerned about evidence rules.

 

We=ll be focusing primarily on the Federal Rules of Evidence, which govern trials in federal courts and in the forty-two states which have adopted the federal rules almost to the letter.  Knowledge of the federal rules is sufficient for the evidence questions on almost all bar examinations.

 

The evidence rule codifications are in at least one important respect different from other major sets of rules with which you may be familiar, such as the Internal Revenue Code and the Bankruptcy Code.  These other codes and accompanying regulations created and occupy the entire field of the procedures they regulate.  By contrast, evidence rules grow out of centuries of trial practice and common law judicial rulings.  As a result, techniques of persuasive storytelling both within the adversary system generally and in the context of a particular trial necessarily affect their meaning and interpretation.  Thus, many evidence rules set forth foundational requirements which are at bottom general guides to judicial discretion; in other words, there are, under the rules of evidence, findings of fact that a judge must often make, sometimes outside the presence of a jury, before deciding whether particular evidence is admissible. Thus, the course also focuses on the types of foundational arguments that lawyers can put forward to try to persuade judges to apply evidence rules in their clients= favor, and on how the unique factual circumstances of individual cases can affect evidentiary rulings.

 

The course book consists of cases, text and problems. During almost every class, a short video will be shown to help illustrate issues being covered. Problems may often be discussed in class, and it will be my practice to give you Asuggested@ answers to the problems.

 

It is also necessary that you read the Rules Of  Evidence, including legislative history and advisory committee notes. I also recommend the use of hornbooks, a particular one is listed above and is in stock at the bookstore; it is a worthwhile investment, useful beyond this course.  These are a number of other excellent hornbooks, study guides, and the like.  Upon request I would be glad to provide you with a list.

 

I look forward to getting to know you.  I hope that you enjoy the course, find it intellectually stimulating, and that you come to believe and understand that the rules of evidence are vitally important B even if not always seemingly fair B in seeking justice.  Although my primary goal is that you Alearn@ evidence, it is also very important to me that we discuss the Awhy@, how the rules Aought@ to be changed, and how to avoid unfairness.  For me, as corny as it may sound, achieving justice remains the fundamental reason I remain in this Abusiness@; rules, including those governing evidence, are supposed to be about this endeavor also.

 

 

Class Attendance

 

I consider regular class attendance a very important part of the course.  It is also a requirement of the school, and of the accrediting authorities.  You are each allowed 3 unexcused absences; after 3 absences, and before you are absent a 4th time, I require that you inform me of other absences and the reason.  4 or more unexcused absences will result in your receiving no credit for the course.  That is, if you have not received permission from me prior to your 4th absence, I will notify the appropriate Dean that you are no longer enrolled in the course and will not receive credit.  There will be no exceptions to this rule, except for a valid and verified medical or other emergency.  If you attend class on a regular basis, prepare for the readings and problems, and participate consistently, this will be reflected on your evaluation.

D.  Reading Assignments

 

Class 1 - Introduction pp. 1- 16

               Relevance Unit I: 

               Ch.1 General Principles of Relevance 

               Probativeness and Materiality pp.18-24

 

Class 2 - Probativeness and Materiality pp. 25-30

               Conditional Relevance pp.30-38

               Probativeness Versus The Risk of Unfair Prejudice  pp.38-48

 

Class 3 - Probativeness Versus The Risk of Unfair Prejudice pp.  48-78

               Ch 2. The Specialized Relevance Rules  pp.79-83

 

Class 4 - Subsequent Remedial Measures  pp. 84-96

               Compromise Offers and Payments of Medical Expenses 97-105

 

Class 5 - Liability Insurance  pp. 106-116

               Ch.3 Character Evidence 

                The Character-Propensity Rule pp.124-140

 

Class 6 - The Character-Propensity Rule  pp. 140-143

               Routes Around The Box  pp.143-166

 

Class 7 - Routes Around The Box  pp.166-175

               Propensity Evidence In Sexual Assault Cases pp.183-188

 

Class 8 - Propensity Evidence In Sexual Assault Cases  pp.188-208

               Proof of the Defendant's And The Victim's Character pp.208-224

 

Class 9 - Proof of the Defendant's and the Victim's Character in Civil pp. 224-231

               Evidence of Habit pp.231-236

 

Class 10 - Ch. 4 Character for Truthfulness 

                 General Principals pp.237-248

                 Use of Past Convictions pp.248-264

 

Class 11 - Use of Past Convictions  pp.264-277

                 Rehabilitation pp.277-280

                 Use of Extrinsic Evidence pp.280-285

 

Class 12 - Ch. 5 The Rape Shield Law

                 Historical Backdrop  pp.286-291

                 The Shield Law pp.291-299

                  The Law in Force pp.299-324

 

Class 13 - Reliability Unit II

                 Ch.6 Competency of Witnesses  pp.326-333

                 Ch.7 The Rule Against Hearsay

                 Historical Prelude  pp.334-336

                 Defining Hearsay pp.336-347

 

Class 14 - Defining Hearsay pp.347-362

 

Class 15 - Statement of Party-Opponents  pp.363-384

 

Class 16 - Past Statement of Witnesses and Past Testimony  pp.385-421

 

Class 17 - Hearsay Exceptions Under Rule 804: "Declarant Unavailable"  pp.422-455

 

Class 18 - Hearsay Exceptions Under Rule 803: "Availability of Declarant Immaterial"

                  pp.455-470

 

Class 19 - Hearsay Exceptions Under Rule 803: "Availability of Declarant Immaterial"

                  pp.470-496

 

Class 20 - Hearsay Exceptions Under Rule 803: "Availability of Declarant Immaterial"

                  pp.496-507

 

Class 21 - Residual Exception  pp.507-518                

                 Ch. 8 Confrontation and Compulsory Process

                 The Confrontation Clause and Hearsay pp.519-535

 

Class 22 - The Confrontation Clause and Hearsay pp.535-550

                 The Bruton Doctrine pp.550-573