Professor Howard Wasserman Fall 2015

Evidence

Professor Howard Wasserman Fall 2015

Office: RDB 2065 Monday/Wednesday, 9 a.m.-10:15 a.m.

Phone: 348-7482 RDB 2007

e-mail:

Special Scheduling Notes:

• No class on Monday, September 7 (Labor Day)

• No class on Monday, September 14 (Jewish Holy Day): To be made-up at time T/B/D

• No class on Wednesday, September 23 (Jewish Holy Day): To be made-up at time T/B/D

• No class on Wednesday, November 11 (Veterans’ Day)

Office Hours: Monday-Thursday, 1:20-2:45 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) (2015)

Graham C. Lilly, Daniel J. Capra, Stephen A. Saltzburg, Principles of Evidence (West) (6th ed. 2012) (“LCS”)

Blog Materials (Wasserman’s Evidence Blog: http://fiuevidence.blogspot.com) (indicated in syllabus)

Evidence Blog

A course blog has been setup, Wasserman’s Evidence Blog. To read the blog, go to http://fiuevidence.blogspot.com/; posts can be read going down from most recent to least recent. To post to the blog, go to www.blogger.com; 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

Your grade will be based on four components:

1) Final Examination (80 points): Three-hour, in-class final examination. It will consist of twenty short-answer questions, worth four points each. 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.

2) Mid-Term Examination (24 points): Take-home examination, to be assigned at some point in October and turned in seven (7) days later. It will consist of six short-answer questions, worth four points each. The goal is to check your progress and grasp on the material from early in the semester and to give you a preview of the final exam format. You must work on this entirely on your own; you may not discuss the exam, the questions, or answers with anyone.

3) Class Participation (12 points):

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 discuss law and policy of particular rules and areas of evidence law. 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 discussions.

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, and other similar devices may not be used during class.

Phones must be turned off when you come into the classroom.

Class Conduct

You must be in class on time, unless I have previously given you permission to come late. You may not enter the room once class has begun, unless I have given you permission to come late. Once class has begun, you must remain in your seat, unless I have given you permission to leave during class. Exceptions to these policies for medical or similar reasons will be made upon presentation of appropriate documentation.

For those of you who prefer having (or being able to obtain) more precise notes, classes will be audio-recorded and the audio file for each class session will be posted on the Blog. You are welcome and encouraged to review the recording and supplement your notes. This is, in fact, comparable to what you will experience in practice. You will go through a day of trial or deposition working with your own brief notes and your participation in events, then receive a transcript a day or two later.

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 to 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 (Rules Enabling Act) (Pamphlet, Part 6)