Fall 2009

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Assignments:

Below are all the topics we will cover. At the end of each class, you will be told what to read for the next class.

Wherever below is stated “Focus on FRE ____,” that means for you to read the portion of the 2009-2010 Supplement pertaining to that rule. All other page numbers in parentheses are to the main 2008 textbook by Fisher.

For Lesson #1 on August 31, 2009, please read pages 1-30 and 989-992.

Audio file of Lesson #1 available here.

INTRODUCTION (p.1)

Tanner v. United States: Historical Prelude (p.5)

Focus on FRE 606(b) (p.7)

Tanner v. United States (p.7)

Tanner v. United States: Afterthoughts (p.15)

Evidence Law and Jury Mistrust (p.989)

UNIT I: RELEVANCE

CHAPTER 1 GENERAL PRINCIPLES OF RELEVANCE (p.18)

A. Probativeness and Materiality (p.18)

Focus on FRE 401 & 402 (p.20)

1. Probativeness (p.20)

George F. James, Relevancy, Probability and the Law (p.20)

Problem 1.1 ‘‘Show me the body’’ (p.21)

Problem 1.2 Brotherhood (p.22)

Problem 1.3 Polygraph Consent (p.22)

2. Materiality (p.23)

Problem 1.4 Knowledge (p.23)

Problem 1.5 Voluntary Intoxication (p.24)

United States v. James (p.25)

United States v. James: Afterthoughts (p.28)

Problem 1.6 Violin Case (p.30)

For Lesson #2 on September 2, 2009, please read pages 30 to 61:

Audio file for Lesson #2 available, here. PowerPoint slides for Lessons 1 & 2 combined, here.

B. Conditional Relevance (p.30)

Focus on FRE 104(b) (p.30)

Problem 1.7 Threat to Disclose (p.31)

Bill D’Agostino, Fitzhugh Case: Judge Allows Paternity Motive (p.31)

Cox v. State (p.32)

Cox v. State: Afterthoughts (p.34)

C. Probativeness Versus the Risk of Unfair Prejudice (p.38)

Focus on FRE 403 (p.38)

Rule 403, Phrase by Phrase (p.38)

1. Photos and Other Inflammatory Evidence (p.39)

State v. Bocharski (p.39)

Problem 1.8 Photo of Guns (p.43)

Andrew Ross Sorkin, This Tyco Videotape Has Been Edited for Content (p.44)

Commonwealth v. Serge (p.45)

United States v. James (p.50)

Excerpts from the Ruling on the Fuhrman Tapes (p.52)

Actual end of week 1.

For Lesson 3 on Wednesday, 9/09/09, please read through page 89, the end of Chapter 1.

Audio file for Lesson #3, here. PowerPoint slides projected in class during Lesson 3 and the first several minutes of Lesson 4.

2. Evidence of Flight (p.54)

United States v. Myers (p.54)

United States v. Myers: Afterthoughts (p.58)

Problem 1.9 Fleeing Trouble IM (p.59)

Problem 1.10 Fleeing Trouble II (p.60)

Problem 1.11 Staying Put (p.60)

3. Probability Evidence

People v. Collins

People v. Collins: Historical Postscript

4. Effect of Stipulations

United States v. Jackson

[Actual end of Lesson 3 on 09/09/09 was slightly into Old Chief.]

Old Chief v. United States

For Lesson 4 on 09/14/09, please review Old Chief, then read Chapter 2 skipping Tuer v. McDonald on pages 95-104. So, please read pp. 90-134, minus pp. 95-104.

Audio file for Lesson 4, here. PowerPoint slides for remainder of Lesson #4 (beginning of lesson is with Lesson #3, above.)

CHAPTER 2 THE SPECIALIZED RELEVANCE RULES

Specialized Relevance Rules: Analytical Charts

Specialized Relevance Rules Flowchart

A. Subsequent Remedial Measures

Focus on FRE 407

Problem 2.1 Wolf Attack

~~Tuer v. McDonald~~

Problem 2.2 Wood Chipper I

Problem 2.3 Wood Chipper II

Notes on Rule 407: Subsequent Remedial Measures

B. Compromise Offers and Payment of Medical Expenses

Focus on FRE 408 & 409

Bankcard America, Inc. v. Universal Bancard Systems, Inc.

Problem 2.4 Hotel Inspection

Notes on Rule 408: Compromise and Offers to Compromise

Ray Henry, States Encourage Docs to Apologize

Comparing Rules 408 (Compromise) and 409 (Medical Expenses)

C. Liability Insurance

Focus on FRE 411

Williams v. McCoy

Problem 2.5 Claims Adjuster

Problem 2.6 Malpractice Insurer

Problem 2.7 Failure to Report

Shari Seidman Diamond & Neil Vidmar, Jury Room Ruminations on Forbidden Topics

D. Pleas in Criminal Cases

Focus on FRE 410

Problem 2.8 Prosecutor’s Offer

United States v. Biaggi

Problem 2.9 Mariotta’s Retrial

Notes on Rule 410: Pleas, Plea Discussions, and Related Statements

The Specialized Relevance Rules: Afterthoughts

Class on 9/16/09 is CANCELLED. For Lesson 5 on 09/22/09, please read pages 135 to 159, but skipping the Méndez law review article on pages 152-154. Audio file, here.

CHAPTER 3 CHARACTER EVIDENCE (135)

A. The Character–Propensity Rule

Focus on FRE 404

Man, Girl Sought in Street Fight Fatal to Youth

Girl Wife Held with Husband in Fatal Shooting

Zackowitz Goes to Death Chair Week of May 5

People v. Zackowitz

People v. Zackowitz: Afterthoughts

The Propensity Box

Character Evidence Flowchart

~~Miguel A. Mendez, Character Evidence Reconsidered: ‘‘People Do Not Seem to be Predictable Characters’’~~

B. Routes Around the Box

1. Proof of Knowledge

Problem 3.1 Hacker

Problem 3.2 Drug Seller

Problem 3.3 Train Crash

2. Proof of Motive

Problem 3.4 U.S. v. Peltier I

Problem 3.5 Streetcar Mishap

For Lesson 6 on 09/23/09, please read pages 159 to 197, but skipping United States v. DeGeorge and the materials on the Doctrine of Chances. So, you will be reading pp. 159-180, skipping 180-183, reading Absence of Accident and the two problems on pp 183-184, then skipping 184-190, and reading the bottom of 190 to top of 197. It is marked out below. PowerPoint slides for Lessons 5 & 6 combined. Audio file of Lesson 6, here.

Handout for Lesson #6 (modus operandi pleading) here.

3. Proof of Identity (p.159 - start of assignment for Lesson Six)

Problem 3.6 U.S. v. Peltier II

Problem 3.7 Lottery Lists

Problem 3.8 Cycling Brochures

United States v. Trenkler

United States v. Stevens

Problem 3.9 Misreading Stevens

4. Narrative Integrity (Res Gestae)

Problem 3.10 Russian Roulette

~~United States v. DeGeorge~~

5. Absence of Accident

Problem 3.11 Cleaning His Gun

Problem 3.12 Cruelty to Dogs

Alan Gathright, Rebuttal OKd If Burnett Testifies That Leo Bit Him

~~6. Doctrine of Chances~~

~~The Brides Case, Prisoner on Trial at the Old Bailey~~

~~Brides in Baths, Prisoner Sentenced to Death~~

~~Rex v. Smith~~~~: Afterthoughts~~

C. The Huddleston Standard

Huddleston v. United States

Problem 3.13 Past Acquittal [End of assignment for Lesson Six]

For Lesson 7 on 9/29/09: Please read pp. 197 - 223 (and, of course, accompanying materials in the Rule Book. PowerPoint slides, here. Audio file here.

D. Propensity Evidence in Sexual Assault Cases (p. 197)

Focus on FRE 413, 414, & 415

Lannan v. State

State v. Kirsch

Problem 3.14 Coon Plan and Domestic Violence

Notes on Rules 413, 414, and 415

Floor Statement of the Principal House Sponsor, Representative Susan Molinari, Concerning the Prior Crimes Evidence Rules for Sexual Assault and Child Molestation Cases

Report of the Judicial Conference of the United States on the Admission of Character Evidence in Certain Sexual Misconduct Cases

Sally Quinn, Baggage Check; How Far Should We Go?

Katharine K. Baker, Once a Rapist? Motivational Evidence and Relevancy in Rape Law

United States v. Guardia

United States v. Mound

PowerPoint slides from Lesson 8, here. Audio file, here.

E. Proof of the Defendant’s and the Victim’s Character (p. 223)

Focus on FRE 404(a)(1), 404(a)(2), & 405

Michelson v. United States

Michelson v. United States: Afterthoughts

Problem 3.15 ‘‘I wouldn’t shoot anybody’’

Problem 3.16 Character of Victim I

Problem 3.17 Character of Victim II

Problem 3.18 Character of Victim III

F. Evidence of Habit (p. 240)

Focus on FRE 406

Halloran v. Virginia Chemicals Inc.

Halloran v. Virginia Chemicals Inc.: Afterthoughts

Problem 3.19 Steroids

CHAPTER 4 IMPEACHMENT AND CHARACTER FOR TRUTHFULNESS (page 246)

For Lesson 9 on 10/07/09, please read pages 246 to 287 in Fisher, but skipping the Uviller article on pages 255-258 and the Eisenberg article on pages 270-272. PowerPoint slides, here.

A. Modes of Impeachment

Impeachment Evidence Flowchart

B. Impeachment by Opinion, Reputation, and Cross–Examination about Past Lies

Focus on FRE 404(a)(3) & 608

United States v. Whitmore

H. Richard Uviller, Credence, Character, and the Rules of Evidence: Seeing Through the Liar’s Tale

Problem 4.1 Bar Fight

Character and Credibility: Study Guide (Part I)

Problem 4.2 Lawyer’s Lies

Jonathan D. Glater, Character to Be a Major Issue in Tyco Trial

C. Impeachment with Past Convictions

Focus on FRE 609

1. The Theory and History of Rule 609

H. Richard Uviller, Credence, Character, and the Rules of Evidence: Seeing Through the Liar’s Tale

Rule 609 and Defendant Testimony: Historical Prelude

Theodore Eisenberg & Valerie P. Hans, Taking a Stand on Taking the Stand: The Effect of a Prior Criminal Record on the Decision to Testify and on Trial Outcomes

2. Rule 609 in Force

Problem 4.3 Impeachment Modes

United States v. Brewer

Character and Credibility: Study Guide (Part II)

Problem 4.4 Weighing Tests

Problem 4.5 Meter Fixing

Rule 609: Case Notes on Appellate Review

Roselle L. Wissler & Michael J. Saks, On the Inefficacy of Limiting Instructions: When Jurors Use Prior Conviction Evidence to Decide on Guilt

For Lesson 10 on 10/12/09, please review pages 278-287 (assigned for last time) and read pages 287 to 311. PowerPoint slides, here. Audio file, here.

D. Rehabilitation (p.295)

Problem 4.6 Rehabilitating the Witness

Character and Credibility: Study Guide (Part III)

Problem 4.7 Bolstering

E. Use of Extrinsic Evidence (p.299)

Problem 4.8 Offering Proof

Character And Credibility: Study Guide (Part IV)

Problem 4.9 Selfish Lies

CHAPTER 5 THE RAPE SHIELD LAW

A. Historical Backdrop

People v. Abbot

State v. Sibley

John Henry Wigmore, A Treatise on the Anglo–American System of Evidence in Trials at Coon Law

For Lesson 11 on 10/14/09, please read pp. 311-347. PowerPoint slides, here. Audio file, here.

B. The Shield Law (p.311)

Susan Estrich, Real Rape

Focus on FRE 412

Sherry F. Colb, ‘‘Whodunit’’ Versus ‘‘What Was Done’’: When to Admit Character Evidence in Criminal Cases

Harriett R. Galvin, Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade

C. The Law in Force

1. Past Sexual Behavior With the Accused

Problem 5.1 Emails

2. Explaining the Source of Physical Evidence

Problem 5.2 Fingerprints

3. Past Allegedly False Accusations

State v. Smith

Problem 5.3 Smith on Remand

Problem 5.4 Old Accusation

4. 404(b)–Style Uses of Evidence of Past Sexual Behavior

a. Proof of Bias

Olden v. Kentucky

Olden v. Kentucky: Afterthoughts

Problem 5.5 Bryant’s Accuser

Steve Henson, Bryant Defense Goes on Offense

Dahlia Lithwick, The Shield That Failed

b. Narrative Integrity (Res Gestae)

Stephens v. Miller

c. Defendant’s State of Mind

United States v. Knox

United States v. Knox: Afterthoughts

5. A Glance at Civil Cases

Problem 5.6 Jones v. Clinton

Neil A. Lewis, President’s Accuser May Be Questioned on Her Sexual Past

UNIT II: RELIABILITY

CHAPTER 6 COMPETENCY OF WITNESSES

Historical Prelude: Rules of Witness Competency and the Clash Between North and South (pp. 350-357).

For Lesson 12 on 10/19, please read the bottom of 357 to 386.
Audio file of Lesson 12, here.

Focus on FRE 601, 602, 603, & 610

Competency Rules Today

CHAPTER 7 THE RULE AGAINST HEARSAY (p.360)

A. Historical Prelude

The Trial of Sir Walter Raleigh, Knt. at Winchester, for High Treason (1603)

B. Defining Hearsay

1. The Basic Rule

Focus on FRE 801(a)–(c) & 802

An Introduction

Hearsay Evidence Flowchart

Problems

Problem 7.1 Affidavit

Problem 7.2 Gesture

Problem 7.3 Quoting Herself

Problem 7.4 Blood Test

Problem 7.5 Boasts

Problem 7.6 Horse Theft

Problem 7.7 Ineffective Assistance

Problem 7.8 Declarations

2. Defining Assertions

Judson F. Falknor, The ‘‘Hear–Say’’ Rule as a ‘‘See–Do’’ Rule: Evidence of Conduct

Problem 7.9 Ship Inspection

Problem 7.10 Amchitka Holiday

The Nature of Assertions

Hearsay Quiz

3. Exceptions to the Hearsay Rule: An Introduction

For Lesson 13 on 10/26, please read in Fisher pages 392 to 421. PowerPoint slides for Lesson 12 & 13 combined. Audio file, here.

C. Statements of Party–Opponents

1. The Party’s Own Words

Focus on FRE 801(d)(2)(A)

Problem 7.11 Billables

Problem 7.12 ‘‘Take My Blood’’

2. Adoptive Admissions

Focus on FRE 801(d)(2)(B)

Problem 7.13 Buddies

Problem 7.14 Jailhouse Meeting

3. Statements of Agents

Focus on FRE 801(d)(2)(C) & (D)

Pet Wolf Bites Boy in U. City

Mahlandt v. Wild Canid Survival & Research Center, Inc.

Problem 7.15 Shovel and Bucket

4. Coconspirator’s Statements

Focus on FRE 801(d)(2)(E) & 104(a)

Bourjaily v. United States

Bourjaily v. United States: Afterthoughts

Problem 7.16 Translation

D. Past Statements of Witnesses and Past Testimony

1. Introduction

Past Statements of Witnesses and Past Testimony (Chart)

Edmund . Morgan, Hearsay Dangers and the Application of the Hearsay Concept

For Lesson 14 on 10/28, please read Fisher pages 421-457, but skipping Commonwealth v. Weichell on page 448-451. Audio file, here. PowerPoint slides, here.

2. Inconsistent Statements Offered to Impeach

Focus on FRE 613

United States v. Barrett

Problem 7.17 Retraction

United States v. Ince

Problem 7.18 Why Such Excitement?

Fletcher v. Weir

~~Hearsay: Miranda and Silence~~

3. Inconsistent Statements Offered Substantively

Focus on FRE 801(d)(1)(A)

Problem 7.19 Domestic Violence

Problem 7.20 Domestic Violence IIM

4. Past Consistent Statements

Focus on FRE 801(d)(1)(B)

Tome v. United States

For Lesson 15 on October 30, 2009, please read pages 439 to 490, but skipping Commonwealth v. Weichell on pp 448-451, United States v. DiNapoli on pp 458-463, and Shepard v. United States on pp. 479-482. Audio file, here. PowerPoint slides, here. Audio file, here.

5. Statements of Identification

Focus on FRE 801(d)(1)(C)

~~Commonwealth v. Weichell~~

United States v. Owens

Problem 7.21 Domestic Violence III

E. Hearsay Exceptions Under Rule 804: ‘‘Declarant Unavailable’’

1. Past Testimony

Focus on FRE 804(a) & 804(b)(1)

Problem 7.22 Domestic Violence IV

Problem 7.23 Roadway Incident

~~United States v. DiNapoli~~

Lloyd v. American Export Lines, Inc.

2. Statements Against Interest

Focus on FRE 804(b)(3)

Problem 7.24 Ask Magnolia

Williamson v. United States

For Lesson 16 on Monday, November 2, please read from page 475 through 535, but skipping Shepard (both installments, pages 479-482 and 499-501), the Historical Postscript (pp. 501–10), and Herbst et al., Young Children’s Understanding of the Physician’s Role … on pages 518-520. Audio file, here. PowerPoint slides, here.

Problem 7.25

Alice’s Restaurant

Problem 7.26 Accomplices

Problem 7.27 ‘‘Bucky Wasn’t Involved.’’

3. Dying Declarations

Focus on FRE 804(b)(2)

William Shakespeare, On Truth and Dying

Problem 7.28 Clyde Mattox

~~Shepard v. United States~~

Focus on FRE 806

Shepard v. United States: Afterthoughts

Bryan A. Liang, Shortcuts to ‘‘Truth’’: The Legal Mythology of Dying Declarations

4. Forfeiture by Wrongdoing

Focus on FRE 804(b)(6)

United States v. Gray

Rule 804(b)(6): Forfeiture by Wrongdoing

Public Comments

F. Hearsay Exceptions Under Rule 803: ‘‘Availability of Declarant Immaterial’’

1. Present Sense Impressions and Excited Utterances

Focus on FRE 803(1) & (2)

Problem 7.29 Dog Mauling

Problem 7.30 Dog Mauling II

Problem 7.31 Domestic Violence V

Problem 7.32 ‘‘Joe Puleio’’

2. Statements of Then–Existing Condition

Focus on FRE 803(3)

Mutual Life Insurance Co. v. Hillmon

Problem 7.33 Kidnapper

~~Shepard v. United States~~

~~Mutual Life Insurance Co. v. Hillmon~~~~: Historical Postscript~~

Lesson 17 was held on November 4, 2009, but it was abbreviated. Audio file, here. PowerPoint slides, here.

3. Statements for Medical Diagnosis

Focus on FRE 803(4)

Problem 7.34 Elder Abuse

United States v. Iron Shell

Problem 7.35 Child Abuse I

Problem 7.36 Child Abuse IIM

~~Melody R. Herbst, Margaret S. Steward, John E. B. Myers, & Robin L. Hansen, Young Children’s Understanding of the Physician’s Role and the Medical Hearsay Exception~~

Problem 7.37 Food Poisoning

For Lesson 18 on 11/09/09, please read to page 564 (the end of hearsay). Feel free to skip United States v. Vigneau (p.536) , Beech Aircraft Corp. v. Rainey (p.540), and United States v. Laster (p.560), although I encourage you to read Vigneau if you have the time. Audio file of lecture, here. Note that file is abbreviated and covers only first 69 minutes of class. PowerPoint slides, here.

4. Refreshing Memory and Recorded Recollections

Focus on FRE 803(5) & 612

Problem 7.38 License Plate

Johnson v. State

5. Business Records

Focus on FRE 803(6) & (7)

Palmer v. Hoffman: Historical Backdrop

Palmer v. Hoffman

Problem 7.39 Lawn Mowers

~~United States v. Vigneau~~

6. Public Records and Reports

Focus on FRE 803(8) & (10)

~~Beech Aircraft Corp. v. Rainey~~

Police Reports and Business Records

United States v. Oates

United States v. Hayes

United States v. Weiland

G. Residual Exception

Focus on FRE 807

New Courthouse Badly Damaged by Fire This Morning—Dome Burned Off

Dallas County v. Commercial Union Assurance Co.

Dallas County v. Commercial Union Assurance Co.: Afterthoughts

~~United States v. Laster~~

For Lesson 19 on Wednesday, November 11, 2009, please read in Fisher pages 565 through 639, plus Melendez-Diaz v. Massachusetts at page 403 in the Supplement, but skipping The Court’s Contested Originalism on pages 587 to 593. Audio file, here. So far, the PowerPoint slides remain missing.

CHAPTER 8 CONFRONTATION AND COMPULSORY PROCESS

A. The Confrontation Clause and Hearsay

Mattox v. United States

Confrontation Clause and Hearsay: Case Notes

Crawford v. Washington

Crawford v. Washington: The Court’s Contested Originalism

Robert Tharp, Domestic Violence Cases Face New Test Ruling That Suspects Can Confront Accusers Scares Some Victims from Court

Crawford v. Washington: Afterthoughts

Davis v. Washington & Haon v. Indiana

Davis v. Washington: Afterthoughts

Hearsay and Confrontation Flowchart

Problem 8.1 Deliver after Death

Carrie Antlfinger, Court Considers Letter Predicting Death

Problem 8.2 Confession in Blood

Problem 8.3 DOVE Interview

The Confrontation Frontier: Recent and Remaining Battles in the Crawford Revolution

Problem 8.4 Child’s Statements

Problem 8.5 Forfeiture Motion

Giles v. California: Case Note

Crawford, Davis, & Giles: Have They Helped or Hurt Criminal Defendants?

INSERT FROM SUPPLEMENT p. 403: Melendez-Diaz v. Massachusetts

The Trial of Sir Walter Raleigh: Historical Postscript

For Lesson 20 on Monday, November 16, 2009 please review from last assignment problems 8.4 and 8.5, Giles v. California Case Note on pp 628-633 and Melendez-Diaz in the Supplement. Then, please read in Fisher to page 693, skipping Gray v. Maryland (pp.654-661) and United States v. Gainer (pp. 684-688). Audio file of lecture, here. PowerPoint slides, here.

B. The Bruton Doctrine

Bruton v. United States

Problem 8.6 ‘‘Dog O‘ War’’

Jaxon Van Derbeken, Witness Links Attorneys to Prison Gang Testimony in Dog-Mauling Trial

Cruz v. New York

~~Gray v. Maryland~~

Problem 8.7 ‘‘He, She, or They’’

C. Compulsory Process

Chambers v. Mississippi

Chambers v. Mississippi: Historical Postscript

Holmes v. South Carolina: Case Note

For Lesson 21 on Wednesday, November 18, 2009, please read in Fisher pages 680 to 726, but skipping United States v. Gainer on pages 684-688 (do not skip the “Afterthoughts” section about Gainer on 688-691), and skipping United States v. Johnson on pp. 694-696. Please remember to read the relevant portions of the rule book on Rules 700 to 705. PowerPoint slides, here. Audio file, here.

CHAPTER 9 LAY OPINIONS AND EXPERT TESTIMONY

A. Lay Opinions

Focus on FRE 701

Problem 9.1 Despondently

Problem 9.2 How Old?

Lay Opinions: An Introduction

Problem 9.3 White Powder

~~United States v. Ganier~~

United States v. Ganier: Afterthoughts

Problem 9.4 Hieroglyphics

B. Expert Testimony

1. Who Qualifies as an Expert?

Focus on FRE 702

Problem 9.5 Horticulturist

Brian Richardson, Man Says He Helped Bring Drugs to State

~~United States v. Johnson~~

Jinro America, Inc. v. Secure Investments, Inc.

Problem 9.6 Drug Argot

2. (Im)proper Topics of Expert Testimony

Focus on FRE 702 & 704

a. Matters of Common Knowledge

Problem 9.7 Fading Memory

Problem 9.8 Confusion?

Problem 9.9 Housing Ads

b. Opinions on Law and Opinions on Ultimate Issues

Problem 9.10 Defendant’s Intent

Hygh v. Jacobs

For Monday, Lesson 22, please review 704-726, then press on to page 753. Daubert (correctly pronounced DOW-bert) v. Merrell Dow Pharmaceuticals, Inc., is very, very important. Crawford and Daubert are the two most important court opinions in our course. PowerPoint slides used in class, here. Audio file, here.

c. Opinions on Credibility

Problem 9.11 Officers’ Truthfulness

State v. Batangan

State v. Batangan: Afterthoughts

d. Opinions on Eyewitness Identification

United States v. Hines

3. Proper Bases of Opinion Testimony

Focus on FRE 703 & FRE 705

Rule 703: An Introduction

Problem 9.12 Stashing Guns

Problem 9.13 Doctor’s Note

In re Melton: Case Note

4. Assessing the Reliability of Expert Scientific Testimony

a. The Doctrine

Frye v. United States

Daubert v. Merrell Dow Pharmaceuticals, Inc.

Daubert v. Merrell Dow: Afterthoughts

Daubert v. Merrell Dow Pharmaceuticals, Inc.

B. Expert Testimony—Continued Gina Kolata, Judge Rules Breast Implant Evidence Invalid

Susan Haack, An Epistemologist in the Bramble–Bush: At the Supreme Court with Mr. Joiner

~~b. A Focus on Polygraph Evidence~~

~~United States v. Crumby~~

~~Problem 9.14 Polygraph Consent IIM~~

~~D. Michael Risinger, Navigating Expert Reliability: Are Criminal Standards of Certainty Being Left on the Dock?~~

~~United States v. Scheffer~~~~: Case Note~~

~~Henry T. Greely & Judy Illes, Neuroscience–Based Lie Detection: The Urgent Need for Regulation~~

For Lesson 23 on Wednesday, November 25, 2009, please read pages 774-804. PowerPoint slides here. Audio file, here.

5. Assessing the Reliability of Non–Scientific Expertise

a. The Doctrine

Kumho Tire Company v. Carmichael

Rule 702 Public Comments on 2000 Amendment

Problem 9.15 Hedonics

Michael J. Saks, The Aftermath of Daubert: An Evolving Jurisprudence of Expert Evidence

b. A Focus on Syndrome Evidence

Holly Hogan, The False Dichotomy of Rape Trauma Syndrome

State v. Kinney

William . Grove & R. Christopher Barden, Protecting the Integrity of the Legal System: The Admissibility of Testimony from Mental Health Experts Under Daubert/Kumho Analyses

Case Notes on Syndrome Evidence

Problem 9.16 Separation Violence

For Lesson 24 on Monday 11/30/09, please read Chapter 10 AUTHENTICATION, IDENTIFICATION, AND THE ‘‘BEST EVIDENCE RULE’’ on pages 805 to 839. Audio file of lecture, here. PowerPoint slides for Chapter 10 used in Lesson 24 and first part of Lesson 25, here.

CHAPTER 10 AUTHENTICATION, IDENTIFICATION, AND THE ‘‘BEST EVIDENCE RULE’’

A. Authentication and Identification

Focus on FRE 901 & 902

Introduction

1. Documents

Problem 10.1 ‘‘To Send Money’’

Problem 10.2 Handwriting Opinion

United States v. Stelmokas

Problem 10.3 Anonymous Note

2. Phone Calls

Problem 10.4 ‘‘Star 69’’

State v. Small

Carey Goldberg, Rulings in Simpson Trial Fuel Second–Guessing

3. Photographs

Sis v. Dixon

Problem 10.5 Staged Photo

Problem 10.6 Serge Animation

Wagner v. State

B. The ‘‘Best Evidence Rule’’

Focus on FRE 1001, 1002, 1003, & 1004

Introduction

Problem 10.7 Perjury Trial

Problem 10.8 Alice’s Restaurant IIM

Seiler v. Lucasfilm: Prequel

Seiler v. Lucasfilm

Problem 10.9 GPS Data

United States v. Jackson

For Lesson 25 on Wednesday, December 2, 2009, please read pages 842 to 885, but skipping In re Grand Jury Subpoena, Judith Miller, Reporter Jailed After Refusing to Name Source, and House Extends Law to Protect Reporters from the bottom of page 855 to the middle of page 870. PowerPoint slides from beginning of this class are posted, above. PowerPoint slides concerning privileges used in Lesson 25 are here. Audio file, here.

UNIT III: PRIVILEGES

CHAPTER 11 PRIVILEGES: GENERAL PRINCIPLES

A. Rule 501’s Origins and Application

Focus on FRE 501

Federal Rule of Evidence 501: Historical Prelude

Focus on Proposed FRE 504

Jaffee v. Redmond

Problem 11.1 Relayed Threats

In re: Grand Jury Subpoena, Judith Miller

Adam Liptak, Reporter Jailed After Refusing to Name Source

Noam v. Levey, House Extends Law to Protect Reporters

For Lesson #26 on December 7, 2009, please review what we did not cover last time (pages 870-885), then continue on to page 927. PowerPoint slides, here. Audio file, here.

B. Witnesses’ Privileges vs. Defendants’ Need for Evidence

Problem 11.2 Right Meets Privilege

Focus on Proposed FRE 506 & 511

Devlin Barrett, Bridget Harrison, Jessie Graham and Denise Buffa, Jail Notes Led to Revelation

Jim Dwyer, In Court, a Priest Reveals a Secret He Carried for 12 Years

Morales v. Portuondo

Morales v. Portuondo: Afterthoughts

CHAPTER 12 THE LAWYER–CLIENT PRIVILEGE AND THE PRIVILEGE AGAINST SELF–INCRIMINATION

Jeremy Bentham, Rationale of Judicial Evidence

A. Scope of the Lawyer–Client Privilege

Coon Elements of the Professional Privileges

1. The Nature of Legal Services

Focus on Proposed FRE 503

~~People v. Gionis~~

2. Defining Confidentiality

Howell v. Joffe

Problem 12.1 Eavesdropped

Problem 12.2 Dumpster Diving

Barry R. Temkin, Errant E–Mail

Eileen Libby, The ‘‘Oops’’ Factor

Koch Foods of Alabama, LLC v. General Electric Capital Corp.

3. Defining Communications: Source of Fees and Client’s Identity

Problem 12.3 Unknown Driver

Problem 12.4 Stolen Typewriter

Problem 12.5 Counterfeit Bill

Problem 12.6 Handwriting

4. Duration of the Privilege

Michael Isikoff, Foster Was Shopping for Private Lawyer, Probers Find

Swidler & Berlin v. United States

B. The Crime–Fraud Exception

Problem 12.7 Custody Dispute

United States v. Zolin

C. Government Lawyers

In Re: Grand Jury Investigation [Rowland]

For Lesson #27 on December 9, 2009, please read pages 927 to 953. PowerPoint slides from Lesson 27 on 12/09/09, plus separately the slides used to introduce marital privileges. Audio file, here.

D. The Lawyer–Client Privilege and the Privilege Against Self–Incrimination

1. General Principles

A Guide Through the Doctrinal Thicket

Act of Production

Problem 12.8 Guilty Knowledge

Problem 12.9 Spell Check

Problem 12.10 ‘‘I Consent’’

2. The Problem of Use Immunity

Use and Transactional Immunity

United States v. Hubbell

United States v. Hubbell: Afterthought

For Lesson #28 on December 11, 2009, at 1:00 p.m. in Room 275, please read pages 954 to 977. PowerPoint slides from Lesson #28 on 12/11/09. Audio file, here.

CHAPTER 13 FAMILIAL PRIVILEGES

A. The Marital Privileges

1. The Spousal Testimonial Privilege

Tilton v. Beecher

Focus on Proposed FRE 505

Trammel v. United States

Sam Howe Verhovek, Athlete and Legal Issue on Trial

The Two Marital Privileges: Overview

2. The Marital Confidences Privilege

Problem 13.1 Office Emails

Problem 13.2 Kitchen Counter Note

United States v. Rakes

Problem 13.3 Poisoned Deadstock

~~B. A Parent–Child Privilege?~~

~~In re Grand Jury Proceedings~~

CONCLUSION: Evidence Law and Jury Mistrust Redux.