Evidence: Law 6330 (4 Credits)

LAW 6330—Section 02BB
Professor Pedro A. Malavet
Fall 2014

Monday & Wednesday
3:00-4:50 p.m.

Room 355B


Course Description

A general course on Evidence focusing on admissibility at trial under the Federal Rules of Evidence. Four (4) Credits.


The Fall 2014 Practical Project is Ready

  • DUE DATE: Thursday, November 6, 2014, by 5:00 p.m.
  • File upload to the e-Learning on Canvas page.
    • All documents must be in either MS Word or PDF format and must be uploaded to the eLearning in Canvas course page using the Motion in Limine-Practical Project assignment created for that purpose.
    • The system will be set to allow multiple submissions up until the time of the final deadline. Uploading a file that is corrupted and cannot be opened will be treated as a failure to make a timely submission.
  • Click here to view the file

Spring 2014 Exam Review

The Feedback Memo is here: [Click here to view the Memo]

Course Canvas Page

  • I have published a Canvas course page on the UF eLearning system. In it you will find the following content:
    • PDF files (in the Files tab) with the text of all the Power Point presentations that I made last Spring when I taught this course.
      • I will update them as we cover the material this Fall
    • A calendar tool to sign-up for class participation online
    • Two video presentations (in the Modules tab) explaining the US judicial system and the basics of the American oral jury trial.

First Day Assignment: Fall 2014

  • The assignments for the class sessions for our first week of the Fall 2014 are posted below
  • Future assignments will be posted in the Assignments and Notes Page.
    (This page has now been updated for the entire Spring 2014, and I expect few changes for the Fall term).
  • The required class materials are: (1) Christopher B. Mueller and Laird C. Kirkpatrick, EVIDENCE UNDER THE RULES (7th. ed., Aspen Law & Business 2011; ISBN: 978-0-7355-0747-0); (2) Mueller & Kirkpatrick, 2014: Federal Rules of Evidence: With Advisory Committee Notes and Legislative History (Aspen Law & Business 2014; ISBN: 978-1-4548-4064-0).
    • I am still using the Seventh Edition of Mueller and Kirkpatrick. It is likely that they will issue a new edition for the Fall of 2015.
    • DO NOT PURCHASE A USED SUPPLEMENT: The Rules Supplement is the 2014 edition, newly-issued in the summer of 2014. You are allowed to annotate the supplement with your own outline and no other supplement will be allowed in the examination room.
    • Open Rules. “Open-Rules” means that you may have with you during the examination your required 2014 Mueller & Kirkpatrick Federal Rules of Evidence supplement. No substitutions will be allowed. Your supplements may be annotated with handwritten notes, but shall not have any attachments other than tabs to mark the location of specific material (the tabs may have on them numbers and the short titles of the referenced material and nothing more). Only handwriting may cover the blank spaces and the original printing on the supplements. The use of stick-on labels or paper, white-out or any other method to eliminate any of the original printing is prohibited. Other than the addition of handwritten notes and tabs, the supplements shall be in their original condition, no material may be added nor may any material be removed in any way. The supplements must be in their original bound form at the start of and throughout the examination.

Week One: August 18-20, 2014

    • Chapter: 1.0 Evidence Law and the System
    • Monday, August 18, 2014
      • Session 1-A
        • Class rules, testing, grading and administrative matters.
        • Review the Syllabus.
      • Session 1-B
        • 1.1 Introduction: Why Evidence & The Trial, 1-18
        • Pay special attention to What is the Record?, 12-18
    • Wednesday, August 20, 2014
      • Session 2-A
        • 1.2 Making the Record & Admitting Evidence, 19-29
        • Problem 1-A: How did it happen? (p. 25)
      • Session 2-B
        • 1.3 How Evidence is Excluded, 19-48
        • Consequences of Evidential Error, 41-47
        • Obtaining Review of Evidence Points, 47-48
        • Problem 1-B: He didn't object! (p. 46)

Power Point PDFs

  • I will post PDF files with the Power Point slides that I use in class in the eLEARNING/CANVAS course page. Click the eLearning link on the banner at the top of this page to login and download the files. The files are in the “Files” section of the course page.
  • I save the PPs in Outline format to make them more manageable, but I append any graphics or charts at the end.

“The Forest”

My general outline to deconstruct evidence problems in class —and in the exam.


  • From your left to your right, you start with the Preliminary Question:
    regular (FRE 104(a)) vs. conditional admissibility (FRE 104(b)).
  • You then move on to Part I:
    basic relevance question under FRE 401, which makes the evidence potentially admissible under FRE 402.
  • Then you move on to Part II:
    Is there a more specific admissibility or exclusion rule (e.g., FRE 801, FRE 404).
  • If you get past that, then you reach Part III:
    the FRE 403 balance (unless the rule in part II expressly states otherwise).
  • After Admission:
    If you admit, you also might still have to consider possible Limiting Instructions under FRE 105 or completeness admissibility under FRE 106, just to name two post admission rules.

Put Another Way

    ---> Preliminarily:
    Who Decides?
    Judge (FRE 104(a)) or Jury (FRE 104(b))
  • I. Is the evidence relevant?
    [FRE 401] [FRE 402]
  • II. More specific questions regarding admissibility
    e.g. [FRE 404] [FRE 801] [FRE 609]
  • III. FRE 403
    (a) What is the relevant evidence's probative value? [FRE 403]
    (b) Is the probative value substantially outweighed by the danger of unfair prejudice (or any of the other five reasons)? [FRE 403]
  • --->Post-admission:
    For what purpose is the evidence admitted?
    [FRE 105] This may also affect the 403 balance. (In other words, the limiting instruction may affect the balance.)
  • [FRE 106] The admission of a document may then allow the admission of the rest or parts of it.

Strength of the Evidence

The Summary Judgment or Judgment as Matter Law Standard


  • Note that the extreme left (from your perspective, looking towards the board) always represents 0%, meaning that no evidence at all exists to support the pertinent fact.
  • The start of the blackboard represents the start of the level of proof at which “Reasonable Minds” can find the fact to exist or not, and the strength of the evidence increases as you move from left to right, reaching the 50% mark in the middle of the two blackboards, and reaching preponderance at the start of the second blackboard.
  • The evidence becomes increasingly strong as you move along this continuum towards the mythical 100% or absolute truth of the fact alleged, which is represented by the extreme right corner of the classroom.

Spring 2014 Practical Project
Due Monday, March 31, 2014
Returned Thursday, April 17, 2014

  • The Practical Project for Spring 2014 is here [click here]
  • It is last year's exam fact-pattern, converted from an appeal to a Motion in Limine as usual.
  • You will upload your Motions through eLearning/SAKAI on or before 5:00 p.m. on MONDAY, MARCH 31, 2014.
  • NEW: A short video tutorial on how to use WestlawNext to get forms and other materials on Motions In Limine: http://vimeo.com/uflic/evidence by Research Librarian Jennifer Wondracek


Examination Feedback Memoranda

Practical Projects

Practical Project Feedback Memoranda

Handouts & Resources