Law B 503 A, Evidence
Autumn Quarter 2006
Class Meets 11:30 a.m. to 12:20 p.m. Tuesday, Wednesday, Thursday, and Friday
Professor Peter Nicolas
e-mail:
Office Room 343; office hours on a drop-in basis or by appointment
Course Description
This course will examine the rules governing the admission, exclusion, and presentation
of evidence in judicial proceedings. Topics to be covered in this course include relevancy; authentication; the “Best Evidence” rule; categorical rules of exclusion; character and habit evidence; competency of witnesses; examination and impeachment of witnesses; opinion and expert testimony; presentation of evidence; privilege; the hearsay rule and its exceptions; presumptions and burdens of proof; and the scope of judicial notice. While focused on the Federal Rules of Evidence—upon which most states model their own rules of evidence—the course will also examine some key distinctions in state court practice throughout the United States.
Required Texts
Peter Nicolas, Evidence: Problems, Cases and Materials (2005) (hereinafter “Text”)
Peter Nicolas, Statutory Supplement to Evidence (2005 edition) (hereinafter “Rules”)
Peter Nicolas, Evidence: Problems, Cases and Materials (2006-07 Supplement) (hereinafter “Supp.”)
Course Grading
In addition to taking an exam, students enrolled in this course will be expected to participate in the Federalism Project: each student will sign up to serve as an “expert” on three particular U.S. states (or territories), and will be expected, inter alia, to research and report on selected ways in which the rules of evidence differ from federal practice in those states’ courts.
On the exam, you will be permitted to use the required texts, any materials handed out in class, your own class notes, and any outlines that you have materially participated in creating, meaning that you prepared at least 25 percent of the outline. The use of hornbooks, commercial outlines, notes or outlines prepared by other people, or electronic databases (such as Westlaw) is strictly prohibited.
The final grade for the course will be determined as follows:
Federalism Project30%
Final exam70%
I reserve the right, on rare occasions, to make an upward adjustment for a student whose grade straddles the line between two letter grades but whose contributions to class discussion are substantial.
This course is subject to the mandatory curve now in effect for most courses at the law school. Please note that although the curve does not require me to assign any grades below a “B,” I am well aware of the existence of such grades and will assign them ifappropriate.
Workload
This is a rigorous, intellectually challenging course. Please review the syllabus carefully before the end of the add/drop period to determine whether you can handle the workload.
Attendance
To succeed in this course, it is extremely important that you attend class on a regular basis. In accordance with the law school attendance policy, I reserve the right to drop any student who attends fewer than 80 percent of the class sessions. I also reserve the right to drop any student who is absent on the first day of class to make room for students on the waiting list.
Use of Lecture Material
Lectures are provided for instructional purposes only and remain the intellectual property of the instructor. All other uses are prohibited. Lecture material is covered by copyright (Title 17, United States Code), and lectures may not be audio- or video-recorded without the instructor’s written consent.
Disability-Related Needs
To request academic accommodations due to a disability, please contact Disabled Student Services, 448 Schmitz, 206-543-8924 (V/TTY). If you have a letter from Disabled Student Services, please present the letter to me so that we can discuss the accommodations you might need in this class.
The Federalism Project
Each student must sign up to serve as an “expert” on three particular U.S. states (including the U.S. territories and the District of Columbia). The sign-up sheet is in my assistant’s office (Room 328), and students are expected to sign up no later than Tuesday, October 3, 2006. There will be a total of three research assignments over the quarter, and you must sign up for a different state or territory for each of the three assignments. Due dates are as indicated on the syllabus.
Written reports shall be no more than three typed, double-spaced pages in length (using Times New Roman 12-point font and 1-inch margins). You should append to the report the text and legislative history of the state rule of evidence (which does not count against the page length limit). You should cite not only to the text and legislative history of the state rule, but also, where appropriate, to case law.
To receive full credit (10 points) for a report, it must be turned in at the start of the class period in which the rule at issue is being discussed, and unless excused for cause, the student must be present for the entire class period and prepared to participate in the class discussion on the rule. Reports turned in later that day, or reports turned in on time by a student who is not present for class discussion, are subject to a 2 point penalty (resulting in a maximum possible grade of 8 points), with an additional 2 point penalty assessed for each additional day (or fraction thereof) that a report is turned in late.
Assignment # 1 – Compare and contrast the state’s rules governing the use of character evidence with Federal Rules 404 and 405. If you were applying the state’s rules instead of the federal rules to Problem 3-1, how would your answer differ?
Assignment # 2 – Compare and contrast the state’s spousal privileges to those recognized under federal law. If you were applying the state’s rules instead of the federal rules to Problem 5-5, how would your answer differ? [NOTE: In answering this question, assume that the actions filed in state court are grounded in state rather than federal law].
Assignment # 3 – Compare and contrast the state’s hearsay exception for dying declarations with Federal Rule 804(b)(2). If you were applying the state’s rule instead of the federal rule to Problem 7-29, how would your answer differ?
Syllabus/Reading List
Chapter 1: Relevance
Tues., Sept. 26:Relevance (Text pp. xix-xxi, 3-15; Rule pp. 26-29, 179-180, 237-238; Supp. pp. 3-4)
Wed., Sept. 27:Roles of Judge & Jury (Text pp. 15-19; Rules pp. 8-11; Supp. p.4); Prejudice (Text pp. 19-32; Rules pp. 29-30; Supp. pp. 4-5)
Thurs., Sept. 28:Limiting Instructions (Text pp. 32-33; Rules pp. 11-12); Rule of Completeness (Text pp. 33-34; Rules p. 12); Relevance of Probabilistic Evidence (Text pp. 34-48)
Chapter 2: Authentication
Fri., Sept. 29:Authentication of Physical Objects & Written Documents (Text pp. 49-66; Rules pp. 162-166; Supp. p. 7)
Tues., Oct. 3:Authentication of Audio, Video, Photos, Voices & Electronic Communications (Text pp. 66-79; Rules pp. 166-171; Supp. pp. 7-8)
Chapter 3: Relevance & Prejudice Refined
Wed., Oct. 4:Character Evidence (Text pp. 81-103; Rules pp. 30-36; Supp. pp. 9-10, 83-85)
Thurs., Oct. 5:Character Evidence in Sexual Assault Cases (Text pp. 103-115; Rules pp. 46-56; Supp. pp. 10-11); Habit Evidence (Text pp. 115-120; Rules pp. 36-38; Supp. pp. 11-12)
Fri., Oct. 6:Subsequent Remedial Measures (Text pp. 121-128; Rules pp. 38-39; Supp. p. 12); Compromises, Payment of Medical Expenses, and Liability Insurance (Text pp. 129-135; Rules pp. 39-43, 46; Supp. pp. 12-13, 85-87); Pleas and Plea Discussions (Text pp. 136-139; Rules pp. 43-46; Supp. pp. 13-14)
Tue., Oct. 10:***ASSIGNMENT # 1 DUE***
Chapter 4: Witness Qualification, Competency, and Examination
Wed., Oct. 11:Competency (Text pp. 141-158; Rules pp. 61-62, 63-68; Supp. pp. 15, 87-89); Oath (Text pp. 158-161; Rules p. 63); Direct & Cross-Examination (Text pp. 161-173; Rules pp. 81-88; Supp. p. 15)
Thurs., Oct. 12:Personal Knowledge (Text pp. 173-177; Rules pp. 62-63; Supp. p. 16); Judge’s Involvement in Witness Examination (Text pp. 177-180; Rules p. 89-90); Lay Witness Testimony (Text pp. 180-186; Rules pp. 92-94; Supp. p. 16); Qualification of Expert Witnesses (Text pp. 187-190; Rules pp. 94-100); Reliability of Expert Witness Testimony (Text pp. 190-199; Supp. pp. 16-17)
Fri., Oct. 13:A Closer Look at Daubert (Text pp. 206-214, 224-234; Supp. pp. 17-18); Bases for Expert Testimony (Text pp. 234-239; Rules pp. 100-103, 104-105)
Tues., Oct. 17:Ultimate Issue Rule (Text pp. 239-247; Rules pp. 103-104; Supp. p. 18); Court-Appointed Experts (Text pp. 247-252; Rules pp. 105-107); Exclusion and Sequestration of Witnesses (Text pp. 252-262; Rules pp. 90-91; Supp. p. 19)
Chapter 5: Testimonial Privileges
Wed., Oct. 18:Introduction (Text pp. 263-266; Rules pp. 57-60, 206-210); Attorney-Client Privilege (Text pp. 266-280; Rules pp. 211-215; Supp. p. 21)
Thurs., Oct. 19:Attorney-Client Privilege (cont’d) (Text pp. 280-297; Supp. pp. 21, 91-96)
Fri., Oct. 20:Spousal Privilege (Text pp. 297-311; Rules pp. 219-221; Supp. p. 22); Psychotherapist Privilege (Text pp. 311-323; Rules pp. 215-219; Supp. pp. 22-23)
Tues., Oct. 24:Parent-Child Privilege (Text pp. 323-335; Supp. p. 23); Clergy Privilege (Text pp. 335-345; Rules pp. 221-223)
Wed., Oct. 25:***ASSIGNMENT # 2 DUE***; Reporter-Source Privilege (Supp. pp. 23-40)
Chapter 6: The “Best Evidence” Rule
Thurs., Oct. 26:Best Evidence Rule (Text pp. 347-372; Rules pp. 172-178; Supp. pp. 41-42)
Chapter 7: The Rule Against Hearsay
Fri., Oct. 27:“Truth of the Matter Asserted” (Text pp. 373-385; Rules pp. 108-114, 120-121, 155; Supp. pp. 43-44)
Tues., Oct. 31:“Assertion” (Text pp. 385-397; Supp. pp. 44-47)
Wed., Nov. 1:Statutory Nonhearsay: Prior Statement by a Witness (Text pp. 397-411; Rules pp. 112, 114-116, 117-120; Supp. p. 47)
Thurs., Nov. 2:Statutory Nonhearsay: Party Admissions (Text pp. 411-426; Rules pp. 112, 116-117, 117-120; Supp. pp. 47-48)
Fri., Nov. 3:Statutory Nonhearsay: Party Admissions (cont’d) (Text pp. 426-435; Supp. p. 48); Exceptions: Present Sense Impressions & Excited Utterances (Text pp. 436-446; Rules pp. 121, 124-126; Supp. p. 49)
Tues., Nov. 7:Exception: Statements for Medical Diagnosis & Treatment (Text pp. 446-450; Rules pp. 121-122, 126-127, 139, 140; Supp. pp. 49-50); Exception: State of Mind (Text pp. 451-463; Rules pp. 121, 126, 139; Supp. p. 50)
Wed., Nov. 8:Exception: Past Recollection Recorded (Text pp. 463-470; Rules pp. 122, 127-128, 139, 140-141; Supp. p. 51); Exception: Business Records (Text pp. 470-480; Rules pp. 122, 128-131, 139-140, 141-142, 143-144; Supp. p. 51)
Thurs., Nov. 9:Exception: Public Records (Text pp. 481-494; Rules pp. 122-123, 131-134, 140, 142-143; Supp. pp. 51-52); Exception: Prior Court Judgments (Text pp. 494-496; Rules pp. 124, 137-139; Supp. p. 52)
Tues., Nov. 14:Exception: Reputation & Personal or Family History (Text pp. 496-504; Rules pp. 123-124, 134, 137-138, 140, 144-145, 150; Supp. p. 52); Exception: Learned Treatises & Other Documents (Text pp. 504-511; Rules pp. 123, 134-136; Supp. pp. 52-53)
Wed., Nov. 15:Unavailability (Text pp. 511-520; Rules pp. 144, 145-146, 150-151, 154); Exception: Former Testimony (Text pp. 520-533; Rules pp. 144, 146-148, 151, 153; Supp. p. 53)
Thurs., Nov. 16:Exception: Dying Declarations (Text pp. 533-543; Rules pp. 144, 148, 151); Exception: Statement Against Interest (Text pp. 543-548; Rules pp. 144-145, 149-150, 151-152, 153-154, 154-155; Supp. p. 53)
Fri., Nov. 17:***ASSIGNMENT # 3 DUE***; Exception: Statement Against Interest (cont’d) (Text pp. 548-556; Supp. pp. 53-54); Exception: Forfeiture by Misconduct (Text pp. 556-563; Rules pp. 145, 155; Supp. pp. 54-55)
Tues., Nov. 21:Residual Exception (Text pp. 563-570; Rules pp. 158-161; Supp. p. 55); Confrontation Clause (Text pp. 570-573, 575-585, 598-606)
Wed., Nov. 22:Confrontation Clause (cont’d) (Supp. pp. 56-71)
Chapter 8: Judicial Notice
Tues., Nov. 28:Judicial Notice (Text pp. 609-629; Rules pp. 13-19; Supp. p. 73)
Chapter 9: Burdens of Proof & Presumptions
Wed., Nov. 29:Burdens of Proof & Presumptions in Civil Cases (Text pp. 631-650; Rules pp. 20-25; Supp. p. 75)
Chapter 10: Impeachment & Rehabilitation of Witnesses
Thurs., Nov. 30:Introduction; Character for Untruthfulness (Text pp. 671-682; Rules pp. 68-72; Supp. p. 77); Prior Convictions (682-684; Rules pp. 72-81; Supp. pp. 89-91)
Fri., Dec. 1:Prior Convictions (cont’d) (Text pp. 684-694; Supp. pp. 77-79); Bias or Motivation (Text pp. 695-701; Rules p. 81; Supp. p. 79); Sensory Perception (Text pp. 701-704)
Tues., Dec. 5:Contradiction (Text pp. 704-706); Prior Inconsistent Statement (Text pp. 706-712; Rules pp. 88-89; Supp. pp. 79-80); Rehabilitation (Text pp. 712-717); Impeachment of Hearsay Declarants (Text pp. 717-721; Rules pp. 155-158; Supp. p. 80)
Chapter 11: Appellate Review of Evidentiary Rulings
Wed., Dec. 6:Appellate Review of Evidentiary Rulings (Text pp. 723-744; Rules pp. 3-8; Supp. p. 81)
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