COURSE OUTLINE AND ASSIGNMENTS
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1 EVIDENCE: COURSE OUTLINE AND ASSIGNMENTS Topic 1: Introduction to the Law of Evidence Read: Text pages 1 9 Rules 101, 102, 1101 A. Addressing Societal Conflicts/Disputes 1. Name various ways we address societal conflicts and disputes. 2. In all of these, what are we trying to achieve? B. Trials/Evidentiary Proceedings 1. Two key features 2. Purpose 3. Do trials C. Law of Evidence a. resolve disputes? b. achieve fairness? c. uncover the truth? 4. What are some obstacles to discovering the truth through trials? 5. As a citizen, what do you want trials to do with respect to the truth? Why? 1. Definition 2. Two keys D. Rules of Evidence 1. Four purposes Four implications 3. Regulatory function four reasons
2 4. Applicability a. 101 b c. Jury trials/bench trials E. Interpreting Evidence Rules 1. Plain meaning 2. Legislative history 3. Case law 4. Commentaries Topic 2: Core Evidentiary Concepts Read: Text pages 9 24, , Rules 103, 104, 201, 611 Prepare Problems 1 3 and 1 4 A. Evidence/Proof B. Vehicles of Proof C. Types of Evidence 1. Real, representative, testimonial 2. Direct/circumstantial D. Substantive/Impeachment Evidence E. Functions of Judge, Jury, Lawyers 1. Admissibility/weight 2. Judicial discretion/abuse F. Error/Waiver G. Plain Error/Harmless Error H. Record 2
3 Topic 3: Evidentiary Procedural Devices Read: Text pages 9 24 Rules 103(a)(1), 103(a)(2) A. Objection 103(a)(1) B. Motion to strike 103(a)(1) C. Offer of proof 103(a)(2) D. Motion in limine E. Cautionary/limiting instruction F. Limited admissibility 105 G. Curative admissibility Topic 4: Foundation Read: Text page 17 Rules 104(a), 602, 702, 803(2), 901(b)(6) A. Definition B. Evidentiary link C. Examples 1. Lay witness Expert witness Hearsay exception 803(2) 4. Telephone conversation 901(b)(6) 3
4 Topic 5: Relevancy Read: Text pages Rules 401, 402 Prepare Problems A. Importance of Relevance B. Two definitive propositions 402 C. Definition (??) some tendency 2. some fact 3. makes some difference 4. more likely/less likely 5. than without D. Incomplete definition What else do we need? 1. Substantive law 2. Claims 3. Defenses 4. Issues E. Three categories of facts 1. Consequential 2. Context 3. Credibility F. Probability assessment 1. Purpose of offer 2. Technical rule 3. Logic 4. Precedent 5. Common experience 4
5 6. Common sense 7. Expert help G. Not inherent characteristic H. Exists in relationship I. No weighing of believability J. Conditional relevancy 104(b) K. Text problems: 3-2, 3-3, 3-4, 3-5, 3-6, 3-7, 3-8, 3-10, 3-11, 3-12, 3-13, 3-14, 3-16, 3-18, 3-21, 3-23 Topic 6: Exclusion of Relevant Evidence Read: Text pages Rule 403 Prepare Problems A. The Master Rule 403 B. Applicability C. Assumption of Relevancy D. Important Features 1. Exclusionary 2. Balancing 3. Substantiality E. Critical Adverbs and Adjectives 1. Substantially 2. Unfair 3. Undue 4. Needless a. Cumulative evidence b. Repetitious evidence 5
6 F. Concept of Unfair Prejudice 1. Prejudice the adversarial objective 2 Unfair prejudice two guidelines G. Confusing/Misleading 1. Collateral matters 2. Technical/scientific/ official H. Convenience/Expeditiousness Topic 7: Character Evidence Read: Text pages 65 73, Rules 404(a), 405, , 608 Prepare Problems A. Propensity Evidence B. Basic Rule 404(a) 1. Inadmissibility 2. Character defined C. Exceptions 1. Essential element 2. Circumstantial evidence a. Trait of accused 404(a)(1) b. Trait of victim 404(a)(2) 3. Credibility 404(a)(3) 4. Sex offenses D. Proving Character 1. Three considerations 2. Three methods of proof 6
7 3. General rules as to use of methods of proof Topic 8: Other Crimes, Wrongs, Acts Read: Text pages 73 78, Prepare Problems Rule 404(b) A. General Rule and Exceptions B. Rule 404(b) C. Other Purposes 1. Intrinsic/extrinsic distinction 2. Rules of thumb D. Illustrative Analysis E. Proof Methods F. Procedural Requirements G. Minnesota Law: Spreigl Rule H. Additional 404(b) Points Topic 9: Habit and Routine Practice Read: Text pages , 91[g] Rule 406 Prepare Problems A. Rule 406 B. Distinctions 1. Habit/routine practice 2. Character 3. Reputation C. Three keys 7
8 D. Admissibility E. Not Propensity Evidence Topic 10: Specialized Exclusions of Relevant Evidence Read: Text pages Rules Prepare Problems 6-2, 6-6, 6-7, 6-8, 6-11, 6-12, 6-13, 6-15, 6-18, 6-19 A. Probable Relevance B. Social Policy Considerations 1. Remedies Settlement Payments Plea bargains Financial responsibility Bad sex Topic 11: Lay Witnesses Read: Text pages , Rules 601, 602, 603, 701 Prepare Problems 8-1, 8-2, 8-3, 8-8, 8-10, A. Lay Witness - Definition B. Competency Rule Oath/affirmation 2. Personal knowledge 3. Proof of personal knowledge 4. Problems with lack of personal knowledge 5. Minn. Stat
9 C. Disqualification 1. Lack of competency 2. Privileges 3. Conflict of interest D. Lay Opinion/Inference Rule General rule 2. Exception Topic 12: Expert Witnesses Read: Text pages Rules Prepare Problems A. Four Requirements Subject matter 2. Helpfulness 3. Qualifications 4. Testimonial basis B. Form of Testimony 702 C. Bases Three means of acquiring 2. Inadmissible facts/ reasonable reliance rule 3. Disclosure D. Disclosure of Underlying Facts/Data 705 E. Ultimate Issue Fact issue 2. Legal conclusion 9
10 Topic 13: Examining Witnesses and Challenging Credibility Read: Text pages Rules 611, 603, 607, 609, 610, 612, 613 Prepare Problems U.S. v. Abel, 469 U.S. 45 (1984) A. Examining Witnesses 1. Form of question 2. Direct examination 3. Cross-examination 4. Control 611 a. Court b. Scope of cross-examination c. Leading questions 5. Testimonial capacities 6. Refreshing recollection 612 B. Challenging Credibility 1. Aim of credibility rules 2. Credibility in issue Truthfulness Testimonial capacities a. Accuracy issues know, remember, relate b. Sincerity issues impeachment c. Jury Instruction Guide 4. Impeachment 5. Extrinsic vs. intrinsic impeachment a. Extrinsic collateral issue/matter 10
11 b. Intrinsic impeachment (1) Bias (2) Incapacity (3) Contradiction (4) Prior inconsistent statement (5) Character for untruthfulness (6) Prior untruthful conduct (7) Prior criminal conviction 6. Who may impeach a. Common-law rule b. Rule Religious beliefs/opinions Bias a. Federal rule U.S. v. Abel Minnesota rule 616 (Bias as an impeachment vehicle) (1) Relationships/circumstances (2) Extrinsic evidence (3) Circumstantial evidence (4) Limitations on proof 9. Character and conduct 608 a. Whose? b. What character/conduct? c. Bolstering/rehabilitating d. Foundations (1) Reputation (2) Opinion e. Expert opinion f. Conduct 11
12 (1) When? (2) Limitations 10. Criminal conviction 609 a Whose? b. Meaning of conviction c. Two categories (1) Felonies (2) Dishonesty crimes d. Balancing tests (1) Witness 403 (2) Accused 609(a)(1) e. Time limit/exception f. Proof of conviction 11. Prior inconsistent statement 613 a. Meaning and scope b. Rationale and effect c. Impeachment vs. substantive evidence d. Degree of inconsistency e. Collateral matters f. Rule in Queen Caroline s Case g. Extrinsic evidence 12
13 Topic 14: Hearsay Read: Text pages Rules Prepare all problems in text, Chapter 10 A. Introduction to Hearsay 1. What is it? 2. Practical overview 3. Reliability factor B. Exclusionary Rule C. Formal Definition D. Hearsay Look-A-Likes But Not 1. Prior statements 801(d)(1) 2. Party statements 801(d)(2) E. Exceptions 1. Overview 2. Application and Residual exception F. Multiple Hearsay 805 G. Declarant s Credibility 806 Topic 15: Confrontation Clause Read: Text pages Crawford v. Washington, 541 U.S. 36, 124 S. Ct (2004) 13
14 A. Historical Overview B. Interaction Between Hearsay Rules and Confrontation Clause C. The Crawford Rule 1. Testimonial/non-testimonial statements 2. Examples of testimonial statements 3. Examples of non-testimonial statements 4. Objective test for Crawford statements 5. Declarant available and subject to cross-examination Topic 16: Non-Testimonial Evidence Read: Text pages Rules 901, 902, 1001, 1002, 1003, 1004, 1006 Prepare Problems A. Exhibits - Definition 1. Real evidence 2. Representative evidence B. Authentication/Identification Identification 2. Authentication 3. Foundation rule 4. Self-authentication C. Best Evidence Rule D. Duplicates Rule 1003 E. Admissibility of Secondary Evidence 1004 F. Summaries
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