Evidence
Professor Howard Wasserman Fall 2014
Office: RDB 2065Monday/Wednesday, 9 a.m.-10:15 a.m.
Phone: 348-7482RDB 2007
e-mail:
Special Scheduling Notes (both sections):
• No class on Monday, September 1 (Labor Day)
• Final Class on Monday, November 24
Office Hours:Monday-Thursday, 1:20-2:30 p.m.
Friday, 10 a.m.-Noon
Whenever I am in my office
Post questions about class discussions, course materials, etc., to the Blog.
Course Outline
This is an introduction and survey of the law of Evidence, providing students with an understanding of the rules and procedures governing the presentation of proof at trial. Students will consider not only how the judicial system and the rules of evidence operate, but why they operate in that manner and whether they are effective in discovering truth and properly resolving disputes. An overarching issue will be how the Anglo-American “adversary system” compares with Continental or Inquisitorial System that prevails throughout much of the world in terms of the presentation of evidence.
The primary focus of the class will be on two hypothetical case files, one criminal and one civil, and on working through a series of evidentiary questions related to those two cases, operating under the Federal Rules of Evidence. You should thoroughly familiarize yourself with the details of both cases and be prepared to argue both for and against the admission of each piece of evidence, as well as to argue a judicial determination of admissibility. This practice orientation should provide students with a real-world understanding of the trial process and the way in which the rules of evidence control how parties prove their cases.
Required Class Materials
Robert P. Burns, Steven Lubet, & Richard Moberly, Evidence in Context (National Institute of Trial Advocacy) (4th ed. 2010) (Problems and Case Files for People v. Mitchell and MacIntyre v. Easterfield)
Federal Rules of Evidence (Wolters Kluwer) (2014)
Graham C. Lilly, Daniel J. Capra, Stephen A. Saltzburg, Principles of Evidence (West) (6th ed. 2012) (“LCS”)
Blog Materials (Wasserman’s Evidence Blog: (indicated in syllabus)
Evidence Blog
A course blog has been setup, Wasserman’s Evidence Blog. To read the blog, go to posts can be read going down from most recent to least recent. To post to the blog, go to you can log-in with a username and password.
To be able to post, you must register as an author and a reader. To register as an author, please send an e-mail to me (). In the subject line, type “Evidence Blog Registration;” in the body of the e-mail, please type your name and your e-mail address. You then will receive an e-mail “Invitation” inviting you to join as an author on the blog. You must follow the steps outlined in the invitation e-mail to register (under your full name, no handles or usernames) as an author. Please register under your full (first and last) name. Please do this at the beginning of the semester, as soon as you receive the invitation.
The blog serves several purposes. First is to make available the Syllabus and additional reading assignments, to be downloaded and read. I strongly recommend that you print out copies of these documents and bring them to class. Second, all classes will be audio-recorded and the audio file will be posted to the blog. Those of you who are worried about being able to catch everything said in class can go back and listen to the class again and fill-in any gaps. Third, this is how I will communicate with you about assignments, materials, additional questions, and what you should be thinking about and preparing for the next class. I also will post ideas and thoughts clarifying and expanding on class discussions and the course materials that we just covered, including answering in-class questions that we were not able to cover fully in class. You should get in the habit of at least checking the blog at least a couple times during the day.
Fourth, and most importantly, the blog is a forum for an ongoing conversation about the law of Evidence. The blog is intended to carry class discussions and conversations on the material outside the classroom, to enhance discussions beyond the limits of a 75-minute class session. This forum enables us to examine and discuss how these issues arise in real-world stories, cases, occurrences, events, as well as in the books you read and the TV shows and movies you watch. This also requires you to look beyond the course materials and to keep up with legal, social, cultural, and political events and link what happens to your own work.
This discussion will take the form of original posts by class members and me. I frequently will pose questions to be answered and discussed in writing on the Blog rather than class. Do not use the Comments section of a post; begin a new post with a new title. Topics for blog posts include thoughts, ideas, and commentary on issues and materials discussed in class; questions about the material (I strongly encourage using this forum to discuss questions and concerns that arise in class); and discussion and analysis of news stories, books, movies, and television shows (how did “Law and Order” deal with hearsay last night?), current events, and anything else relating to the law of evidence and the substance of this class. This also requires you to look beyond the course materials and to keep up with legal, social, cultural, and political events and link what happens to your own work. The site includes a "Blogroll" linking to a number of topical blogs and web sites, most of which highlight and comment on new cases, stories, issues, and legal developments on Evidence. You should get in the habit of checking these information-aggregating blogs during the course of a day; they are going to be important resources in your practice lives.
There are no guidelines about length, content, or style, other than to insist that it be relevant to this class, that it be respectful, and that it be somewhat thought-out and well-written. Humor is good. Also, if the post is substantive, it ordinarily should contain some original thought or commentary. In other words, please do not simply cut-and-paste long portions of a case or article into the post; provide a link or cite and give a very brief synopsis or summary, along with your own thoughts on it.
Course Evaluation
Seventy-fivepercent (75 %) of the grade for the class will be based on a three-hour, in-class, closed-book final examination. Ten percent (10%) will be based on a take-home mid-term. Fifteen percent (15 %) will be based on class participation, considering both class participation and participation in the on-line discussion, with a significant emphasis on class involvement.
Final Examination
The final examination will consist of short-answer questions.You may bring your copies of the Federal Rules of Evidence and any additional statutes and rules that we used in class. No other materials may be brought into the exam.
Mid-Term Examination
The mid-term examination will consist of ten (10) short-answer questions, following the form and structure of the final. You will have twenty-four hours to complete the questions, using any materials from class. The mid-term serves two purposes: 1) To assess how well you grasp the material from the early portions of the semester and 2) To give you a sense of the style of questions and answers that you will face on the Final.
Participation
Class participation is a mandatory aspect of this class, combining cold-calling and volunteers.
Class discussions will focus on a series of evidentiary problems and questions from two hypothetical case files. We will be going around the room on these problems. Everyone is expected to prepare and be ready to discuss these questions; be ready to argue both for and against the admission of each piece of evidence, as well as to provide and explain a judicial decision on that evidence.
In addition, class discussions will analyze and discusslaw and policy of particular rules. This means we will be closely reading and parsing the statutory text. You should never come to class without your Federal Rules of Evidence pamphlet and any assigned rules or statutes and you should never begin a class discussion without having the book open to the assigned rules.
In grading class participation, I will consider both the quality of your answers when cold-called, as well as overall participation and quality of comments in the broader discussion. In grading written comments on the Blog, I will consider the frequency with which you post, as well as the quality of your comments and how well they further understanding of the course materials and our discussions in and out of class.
Because much of the discussion focuses on the various rules, you should never enter this classroom without the Rules pamphlet and any assigned additional rules or statutes (downloaded from the Blog). Many of the answers to the issues we will discuss in class are contained in the rules themselves.
Technology
Laptops are not permitted in the classroom. Blackberries, iPhones,iPads, iPods, tablets, Treos, and other similar devices may not be used during class.
Phones must be turned off when you come into the classroom.
Class Conduct
Your regular, timely attendance and preparedness are expected and will contribute to your course mastery and that of your fellow students. Missing an occasional class is understandable and unremarkable, as is occasional unavoidable lateness. But if you are going to miss several classes, e-mail me and let me know why. If you know you are going to be late on a given day, please let me know in advance, if possible.
Please do not leave the classroom during class unless absolutely necessary.If you must leave, please do soquietly and unobtrusively.
I reserve the right to alter the rules regarding timeliness and leaving the room if I see the privilege being abused.
College of Law Academic Policies and Regulations
This class is administered and conducted in accordance with all the provisions of the Florida International University College of Law Academic Policies and Regulations, reprinted in the College of Law Student Handbook. Students are expected to be familiar with and to conduct themselves in line with those policies and regulations.
Class Assignments:
For each subject, the syllabus lists: Provisions (from the Federal Rules of Evidence Pamphlet or additional provisions found on the Blog); Problems to be prepared (from Evidence in Context); Commentary, including pages from LCS and any additional articles on the Blog; and Cases (from the Blog or the Rules Pamphlet, as indicated).
The focus of class discussions will be the 250+ evidentiary problems. You must thoroughly familiarize yourselves with the facts, details, characters, and events of our two cases—People v. Mitchell (prosecution for murder) and MacIntyre v. Easterfield (civil action for damages for defamation).These are cases that you are working on as an attorney and you should master them accordingly. All the evidence and materials are in Evidence in Context.
During class we will go around the room and discuss the problems. You must be prepared for every class to handle the assigned questions as both the proponent and opponent of the admission of that piece of evidence, as well as the Judge ruling on that issue. I strongly recommend that you take the time to write-out notes and answers for each question prior to coming to class and use those notes for class discussion.
All rules and commentary are contained in the Federal Rules of Evidence pamphlet. When a rule is assigned, you should read the text of the rule first, then read the Advisory Committee Notes (which are in Part II of the Pamphlet), then go back and read the rule again.“Reading” a rule means understanding the rule; by the time you come to class, you should be able to paraphrase the rule in plain English and discuss and explain what it says and means and how it will apply. Our class discussion focuses on the Rules and statutes and the answers to most of the issues and questions can be found in the text and commentary. In preparing for class, understand how different rules connect and relate to the other rules.
Additional proposed or unenacted rules, as well as some cases and additional provisions, can be found on the indicated pages in the Rules Pamphlet.
The Syllabus links the relevant rules to the relevant questions and topics. In answering a question, the answer requires knowledge of any rule listed in the syllabus for that question or a rule we already covered.
You should not come into class without your rules pamphlet and any additional statutes or rules assigned from the Blog. Your pamphlet should be tabbed, dog-eared, and marked-up.Part I includes only the text of the Federal Rules, without notes; that will be helpful in class, where we will be jumping from rule to rule.
This course builds on itself. It is important that you grasp the rules and material that we discuss early in the semester in order to grasp the rules and materials that we discuss later in the semester. Do not simply forget or disregard the rules we discuss early in the semester, because they will come up again in answering questions later in the semester. You should approach each question by considering all the possible evidentiary concerns that might arise, including the concerns that we discussed earlier in the semester.
Introduction: Evidence and the Adversary System
Provisions:
Fed. R. Evid. 101-102, 611, 614
28 U.S.C. §§ 2072-2074 (Pamphlet, 385-86) (Rules Enabling Act)
Problems: Review case file inPeople v. Mitchell(in Evidence in Context)
Commentary:
LCS 1-7, 11-17, 66-67
Damaska, Presentation of Evidence and Factfinding Precision (Blog)
Pizzi & Montagna, The Battle to Establish an Adversarial Trial System in Italy (Blog)
Asimow, Popular Culture and the Adversary System (Blog)
Sklansky & Yeazell, Comparative Law Without Leaving Home (Blog)
Relevance:
Introduction to Relevance
Provisions
Fed. R. Evid. 105, 401-403
Problems:
3-14
Commentary:
LCS 32-47
Damaska, Evidentiary Barriers to Conviction (Blog)
Character Evidence and Prior Bad Acts
Provisions:
Fed. R. Evid. 105, 404-405
Problems:
15-31
Review case file inMacIntyre v. Easterfield
Cases:
United States v. Bell (Blog)
Commentary:
LCS 67-84, 87-101
Damaska, Propensity Evidence in Continental Legal Systems (Blog)
Conditional Relevance
Provisions:
Fed. R. Evid. 104
Problems
32-38
Commentary:
LCS 59-66
Habit, Custom, Character
Provisions:
Fed. R. Evid. 406
Unenacted Fed. R. Evid. 406(b) (Pamphlet, 346-47)
Problems:
39-44
Commentary:
LCS 85-87
Policy-Based Exclusions
Provisions:
Fed. R. Evid. 407-411
Problems:
45-52
Commentary:
LCS 113-36
Sexual Assault
Provisions:
Fed. R. Evid. 412-415 (pay special attention to Advisory Committee Notes)
Unenacted Fed. R. Evid. 404(a)(4) and 405(c) (Pamphlet,342-46)
Commentary:
LCS 101-12
Relevancy Reviewed:
Problems:
57-64
Witnesses:
Provisions:
Fed. R. Evid. 601-606, 701, 704
Problems:
240-56
Commentary:
LCS 16-19, 277-79
Impeachment:
Introduction to Impeachment
Provisions:
Fed. R. Evid. 607-610
Problems:
65-73
Commentary:
LCS 279-82, 291-308
Damaska, Presentation of Evidence and Factfinding Precision (Blog)
Impeachment: Character, Bias, Interest, Prejudice, Prior Crimes, Convictions
Provisions:
Fed. R. Evid. 404(b), 607-610, 613
Problems:
74-80
Commentary:
LCS 299-300, 282-91
Impeachment: Prior Inconsistent Statements and Contradiction
Provisions:
Fed. R. Evid. 612, 613, 801(d)(1)(A)
Problems:
81-89
Commentary:
LCS 300-07
Impeachment Review: Impeachment and Rehabilitation
Provisions:
Fed. R. Evid. 404(a), 405(a), 801(d)(1)
Proposed Amendment to Fed. R. Evid. 801(d)(1)(B) (Pamphlet, 330)
Problems:
90-98
Commentary:
LCS 310-12
Process, Burdens of Proof, and Presumptions:
Provisions:
Fed. R. Evid. 301-302
28 U.S.C. § 1291-1292 (Blog)
18 U.S.C. § 3731 (Blog)
Unenacted Fed. R. Evid. 303 (Pamphlet,339-42)
Fed. R. Crim. P. 29 (Blog)
Fed. R. Civ. P. 50 (Blog)
Problems:
102-06
Commentary:
LCS 6-7, 384-406
Rulings on Evidence:
Commentary:
Fed. R. Evid. 103-106
28 U.S.C. § 1291 (Blog)
18 U.S.C. § 3731 (Blog)
Problems:
108-21
Commentary:
LCS 7-19
Hearsay:
Introduction to Hearsay
Provisions:
Fed. R. Evid. 801-807 (Review Rules only, without Advisory Committee Notes)
Introductory Note: The Hearsay Problem (Pamphlet, 189-94)
Fed. R. Evid. 801(a)-801(c) (with Advisory Committee Notes)
Problems:
142-69
Commentary:
LCS 137-59, 186-89
Damaska, Of Hearsay and its Analogues (Blog)
Hearsay Exclusions
Provisions:
Fed. R. Evid. 801(d), 805
Proposed Amendment to Fed. R. Evid. 801(d)(1)(B) (Pamphlet, 330)
Problems:
90, 176-85, 232
Commentary:
LCS 160-85
Hearsay Exceptions: Spontaneous Statements
Provisions:
Fed. R. Evid. 803(1)-(4)
Problems:
186-93, 226, 230
Commentary:
LCS 189-210
Hearsay Exception Video (Blog)
Hearsay Exceptions: Documentary Exceptions
Provisions:
Fed. R. Evid. 803(5)-(10), 612
Proposed Amendments to Fed. R. Evid. 803(6), 803(7) (Pamphlet 332-34)
Problems:
194-205
Commentary:
LCS 210-32, 19-22
Hearsay Exceptions: Other Documents and Statements
Provisions:
Fed. R. Evid. 803(11)-(23)
Commentary:
LCS 232-38
Hearsay Exceptions: Declarant Unavailable
Provisions:
Fed. R. Evid. 804
Problems:
214-18, 234
Commentary:
LCS 238-55
Layered or Multiple Hearsay
Provisions:
Fed. R. Evid. 805, 806, 613, 1006
Problems:
219-23
Commentary:
LCS 265-66
Hearsay: Catch-All Exception
Provisions:
Fed. R. Evid. 807
Problems:
224-25
Commentary:
LCS 258-65
Confrontation Clause: Hearsay and the Constitution
Cases:
Crawford v. Washington (Blog)
Michigan v. Bryant (Blog)
Giles v. California(Blog)
Bullcoming v. New Mexico (Pamphlet, 393-402)
Commentary:
Pamphlet, 192-94
LCS 267-76
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