Evidence: Law 6330 (4 Credits)

LAW 6330—Section 02BB— Class Number 16014

Professor Pedro A. Malavet
Fall 2019

Monday, Tuesday, Wednesday
3:00-4:15 p.m.

Room 355B


Course Description

A general course on the Federal Rules of Evidence and related common law rules, as well as constitutional provisions applicable in this field, with special emphasis on recent Supreme Court rulings on the Sixth Amendment Confrontation Clause and its effect on the admissibility of hearsay. Four (4) Credits.

Practical Project for 2019 is Here

  • DUE DATE: Projects are due on or before 4:00 p.m. on MONDAY, November 18, 2019.
  • 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.
  • Click Here to Go to the Project

First Day Assignment Fall 2019

  • The basic materials for the course such as assignment sheets and the course syllabus will be posted on my webpage: http://nersp.osg.ufl.edu/~malavet
    • I will also post them in the course canvas page.
    • When the university takes down the servers that host my website, i will only post to the course canvas page.
  • The assignments for the class sessions for our first week of the Fall 2019 will be posted below.
  • Future assignments will be posted in the Assignments and Notes Page of the course webpage and another on the course canvas page.
    • (This page has now been updated for the entire Fall of 2018, including references to the current edition of the casebook. I will update them for the Fall of 2019 as we progress through the material, especially given our new session length).
  • The required class materials are: (1) Christopher B. Mueller, Laird C. Kirkpatrick and Liesa L. Richter, EVIDENCE UNDER THE RULES (9th. ed., Aspen Law & Business 2019; ISBN: 978-1-5438-0544-4; (2) Mueller, Kirkpatrick & Richter, 2019: Federal Rules of Evidence: With Advisory Committee Notes and Legislative History (Aspen Law & Business 2019; ISBN: 978-1-5438-1475-0).
    • DO NOT PURCHASE A USED SUPPLEMENT: The Rules Supplement is the 2019 edition, newly-issued in the summer of 2019 as usual. You are allowed to annotate the supplement with your own outline and no other supplement will be allowed in the examination room. You must purchase a printed version of the supplement if you wish to use it during the exam. Access to electronic versions will not be permitted during the examination.
    • Open Rules. “Open-Rules” means that you may have with you during the examination your required 2019 Mueller, Kirkpatrick & Richter 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 26-28, 2019

Week Two: September 2-4, 2019


Exam Review Fall 2018: On Your Own First,
With Me After You Read the Memo

You are welcome to see your exam answer and review it on your own right now. You must ask for your exam at the Faculty Support office on the third floor of Holland Hall. You will be asked to review the exam at the office and not be allowed to take it with you because we must ensure that the exams are properly preserved.

[Click here for a compact grading guide to assist you in your review]


[The Feedback Memo is here]

However, I will post it in the course Canvas page as well because this page will be taken down on February 15 when the university turns off the servers on which I have posted it for over 20 years.

I will create an assignment titled Exam Feedback for it.

Announcements: Fall 2017 Exam Review:
Feedback Memo is Posted


You may get your exam and a simple grading sheet for your own individual review by asking my secretary to get them for you in the Faculty Support Office in Room 323 in the West hallway of Holland Hall.

Please bring your exam number with you as they are filed by exam number. You will also be asked for your student ID in order to ensure privacy and confidentiality.

To avoid accidental loss and unnecessary administrative follow-up, please review the exams in the office. We are required to keep the originals and to archive them for about three years.

For your convenience, I post a simple Grading Sheet in PDF form [HERE].


The Feedback Memo is posted [here].

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.



Examination Feedback Memoranda

Practical Projects

Practical Project Feedback Memoranda

Other Resources

Mistaken ID and Innocence

A cautionary tale about mistaken eyewitness identification and an innocent person going to jail:

WARNING: Strong language about sexual assault and wrongful conviction

This is story about a victim of sexual assault who mistakenly identified a man as her attacker at trial and sent an innocent person to prison for 11 years. DNA and the actual attacker’s admission proved the truth, and the wrongly convicted man was released. The victim then sought him out and they both talk about mistaken identification leading to wrongful conviction.

Evidence Videos

These are videos prepared for my Evidence class or from our MOOC on the Legal System of the United States.

Click on the image to launch the video in a new window.

  • "Standard" v. "Reverse" FRE 403 Balancing REDUX

  • "Standard" v. "Reverse" FRE 403 Balancing

  • Impeachment: Intrinsic/Extrinsic Evidence

  • Impeachment: Character for Truthfulness and Contradiction

  • Defining Hearsay

  • Admissions (Mahlandt case) & Crawford Preview

  • FRE 803(3) Parts A and B

  • Judges and their Courts in the U.S.

  • The American Oral Jury Trial