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EVIDENCE – SPRING 2015 SYLLABUS
Mondays, Wednesdays – 3:00 p.m. – 4:15 p.m.
Room 118
Professor Herman N. (Rusty) Johnson, Jr.
Office 239C
Telephone: 726-2723
E-mail: [email protected]
Office Hours: Tuesdays – 11:00 – 12:00 or by appointment
Course Description and Purpose:
This course studies the rules that govern the limits we place on how facts are proved at trial, and by
extension, the limitations on the information juries hear. Most of the class time will be spent providing
you the opportunity to practice using the evidentiary rules to accomplish an adversarial goal. While
you will not be an accomplished trial attorney after this class, you should come out of the class with a
background in the basic trial rules and some sense of how to use these rules.
You will learn how the Federal Rules of Evidence are applied in the courtroom. The rules, principles
behind the rules, and cases interpreting them shall be examined. Primary emphasis is on the basic
concepts of relevance and prejudice, hearsay and confrontation clause, best evidence, authentication,
witness competency, opinion, and impeachment.
In class, we will focus more on problems than on cases. We will discuss the assigned cases, but the
emphasis in each class will be on using the Rules and the cases to solve the problems set forth and
highlighted in each reading assignment. The problems will come from three sources: (1) the problems
in the book; (2) movie clips that I play in class; and (3) Powerpoint slides. Your goal in reading should
be to understand the Rules at hand, and then figure out how to answer the problems delineated in the
reading. You use the Rules and the Advisory Committee commentary and cases interpreting those
Rules to answer the problems. Coming into each class, therefore, your priorities should be: (1) can I
answer all the questions in the book?, (2) Can I point to a source for how I answered it, either a Rule,
its commentary or a case in the reading?; and (3) do I understand the Rule and the cases well enough
to answer more questions on the fly from the hypos that will be posed in class?
When you are assigned a Federal Rule of Evidence, first read the Rule and the commentary in its
entirety. The cases are just there to help you interpret the Rules so that you can answer the problems.
As you attempt to answer each question, keep going back to the Rule and see if you can find something
that helps you answer it. The answers are usually there, but it might take going back and re-reading
the Rule a few times to get it.
Desired Outcomes
By the end of the course, you will be able to:
·
·
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Identify potentially admissible or inadmissible evidence.
Argue from an advocate’s perspective why the evidence should or should not be admitted at
a trial.
Assess from a judge’s perspective whether or not the evidence is admissible.
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·
Understand how questions regarding the admissibility of evidence affect a lawyer outside the
courtroom, in gathering and investigating facts, assessing a client’s options, providing legal
counsel to clients, drafting legal documents, and negotiating with opposing parties.
Text
George Fisher, Evidence (3d ed. 2013)
George Fisher, Federal Rules of Evidence 2014-2015 Statutory and Case Supplement (2014)
Assignments
I will give assignments to you in advance as we move through the Syllabus. I retain the discretion to
make additions and deletions to the syllabus.
Class Participation and Attendance
I expect members of this class to be prepared to participate energetically and professionally in class
discussions. Although I enthusiastically welcome volunteers for class discussions, I may call on
students randomly during class. Students who fail to sign the attendance sheet before leaving class
will be presumed to have been absent. Students who are extremely tardy may be counted as absent.
Excessive absence will affect grades in accordance with school policy, and at my discretion attendance
and participation can affect final grades.
Computer Policy
I permit the use of computers in class for note-taking and review of notes. If I ascertain that computers
are used during the class period for internet access, checking e-mail accounts, or any other non-class
related matters, then I retain the discretion to revoke the use of computers.
Grades
Grades will be determined by a final exam. The final exam will be a three-hour, in-class exam. We
will discuss the exam format in more detail as we near the time for its taking. I retain discretion to
adjust grades, including based on class attendance and participation as reflected previously.
Notice of ADA Policy
Samford University complies with Section 504 of the Rehabilitation Act and the Americans with
Disabilities Act. Students with disabilities who seek accommodations must make their request through
Samford University’s Disability Access and Accommodation coordinator, Anne Sherman, Director of
Disability Resources, 205-726-4078, [email protected]. A faculty member will grant reasonable
accommodations only upon notification from Disability Resources.
Students receiving accommodation at the Cumberland School of Law must follow up with Pam
Nelson, Director of Student Services and ADA Compliance, 205-726-2222, [email protected].
Classroom accommodations are not retroactive; therefore prompt attention to the process is
advisable. Students who wish to receive examination accommodations must provide a letter from
Disability Resources to the Director of Student Services and ADA Compliance no later than thirty
days prior to the last day of classes.
Because the process of evaluating and documenting a student’s need for accommodations can be time
consuming, students are encouraged to contact Disability Resources early in the semester in order to
ensure the completion of all necessary paperwork by the aforementioned deadline. Accommodations
received after the deadline will be processed for the following semester.
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INSTRUCTIONS: Reading assignments are from the Fisher casebook and supplement unless
otherwise indicated.
1.
Trust and Mistrust of Juries; The Process of Proof & Appellate Review
FRE: 103
READING: 1-17
2.
Relevance; Conditional Relevance; 403 Balancing
FRE: 401, 402, 403
READING: 22-24, 25-39, 42-54
PROBLEMS: 1.1, 1.2, 1.3, 1.6, 1.7
3.
Relevance Continued; Stipulations; Preliminary Questions of Fact
FRE: 401, 402, 403
READING: 66-80, 82-94
PROBLEMS: None
4.
Specialized Relevancy Rules (Subsequent Remedial Measures, Settlement Offers &
Payment of Medical Expenses, Liability Insurance, Pleas in Criminal Cases)
FRE: 407, 408, 409, 411, 410
READING: 95-113, 117-138, 141-144
PROBLEMS: 2.1, 2.2, 2.3, 2.4
5.
Character Evidence and the Propensity Ban; Evidence of Defendant and Victim
Character
FRE: 404(a), 405
READING: 145-154, 234-252
PROBLEMS: 3.15, 3.16
6.
Character Evidence of Other Crimes, Wrongs, or Acts
FRE: 404(b)
READING: 155-180, 201-207
PROBLEMS: 3.1, 3.3, 3.4, 3.7, 3.11
7.
Propensity Evidence in Sexual Assault Cases; Rape Shield Law; Habit Evidence
FRE: 412, 413, 414, 415, 406
READING: 207-208, 218-234, 318-320, 322-332, 339-346, 252-256
PROBLEM: 5.6
8.
Authentication
FRE: 901, 902
READING: 894-897, 904-913
PROBLEMS: 10.4, 10.7
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9.
Best Evidence Rule, Witness Competency, Personal Knowledge
FRE: 1001-1008, 601-606
READING: 913-926, 364-374, 8-19
PROBLEMS: 10.9, 10.10
10.
Introduction to Impeachment; Impeachment of Witness by Capacity to Perceive, Bias, and
Character for Truthfulness
FRE: 404(a)(3), 607, 608
READING: 257-261, 269-276
PROBLEMS: 4.1, 4.2
11.
Impeachment by Prior Conviction
FRE: 608, 609
READING: 278-303
PROBLEMS: 4.3, 4.5
12.
More Impeachment Topics: Rehabilitation, Extrinsic Evidence, Prior Statements
FRE: 608, 609, 613, 801(d)(1)(A) & (B)
READING: 307-317, 435-444
PROBLEMS: 4.6, 4.7, 4.8
13.
Introduction to Hearsay and Hearsay Definition
FRE: 801, 802
READING: 374-396
PROBLEMS: All
14.
Hearsay Definition and Utterances and Conduct that are Not Hearsay
FRE: 801, 802
READING: 396-406
PROBLEMS: All
15.
Hearsay Exemptions for Admissions; Preliminary Questions of Fact
FRE: 801, 104
READING: 406-429
PROBLEMS: 7.11, 7.12, 7.13, 7.15, 7.16
16.
Hearsay Exemption for Prior Statements
FRE: 801
READING: 430-432, 452-473
PROBLEMS: 7.19, 7.20
17.
803 Exceptions (Present Sense Impression, Excited Utterance, State of Mind, Statements
for Medical Diagnosis)
FRE: 803(1)-803(4)
READING: 510-538
PROBLEMS: 7.29, 7.30, 7.33, 7.34, 7.36
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18.
803 Documentary Exceptions (Recorded Recollection, Business Records, Public Records)
FRE: 803(5)-803(8), 612
READING: 542-556, 561-574
PROBLEMS: 7.38, 7.39, 7.40
19.
Hearsay Exceptions under FRE 804
FRE: 804
READING: 474-504
PROBLEMS: 7.22, 7.23, 7.24, 7.28
20.
804 Continued and the Residual Exception
FRE: 804, 807
READING: 505-510, 574-585
21.
The Confrontation Clause
READING: 594-608, 614-625, 627-660
FRE: none
CONSTITUTION: 6th Amendment
PROBLEMS: 8.2, 8.3
22.
The Confrontation Clause Continued & Compulsory Process
READING: 674-681, 694-704, 709-734
FRE: none
CONSTITUTION: 6th Amendment
PROBLEMS: 8.4, 8.5, 8.8, 8.9
23.
Lay Opinion & Expert Opinion (Who is an Expert; Proper Topics)
FRE: 701, 702
READING: 735-739, 748-749, 752-783
PROBLEMS: 9.1, 9.3, 9.6, 9.7, 9.10, 9.12
24.
Expert Opinion (Proper Basis; Reliable Methods)
FRE: 702-706
READING: 783-810, 856-858
PROBLEMS: 9.13
25.
Privileges; Attorney Client Privilege
FRE: 501, 502
READING: 930-934, 974-1010
PROBLEMS: 12.1, 12.2, 12.4, 12.5, 12.7
26.
Crime-Fraud Exception; Spousal Privileges
FRE: 501
READING: 1010-1017, 1043-1060
PROBLEMS: 12.8, 13.1
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