Evidence: Law 6330 (4 Credits)

LAW 6330—Section 02BB

Professor Pedro A. Malavet
Fall 2016

Tuesday, Wednesday, Thursday
10:50 a.m. to 12:00 noon

Room 355C


Course Description

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


Fall 2016 Exam Review

I will be on sabbatical during the Spring 2017 and will therefore not have regular office hours during this period. However, you may pick you your graded exams from my assistant in the Faculty Support Office and I will publish a feedback memorandum for the exam and schedule some review time slots in the Spring starting after Thursday, February 9, 2017, when I will publish the feedback memo here. I will include instructions for exam review with me and the available time slots in the feedback memo.

Fall 2016 Practical Project

  • The Practical Project, the writing of a Motion in Limine based on last year's exam fact-pattern is here:
  • The Project is due on or before Thursday, October 27, 2016, at 5:00 p.m.
  • You upload a file attachment in MS Word or PDF format on the Assignment created for it.

The Fall 2015 Exam Feedback Memorandum is Here

  • The Exam Feedback Memo is up. [Click here to see it]
  • I will be available to discuss examination results during the Spring semester, beginning after Monday, February 8, 2015.
  • You may pick up the exam from my Assistant, Ms. Nathaly Rugel, in room 343. Please bring your exam number with you, as I keep them organized by exam number; you will also be asked for your student ID. You may make a copy of your exam answer and keep it for your records, but you have to return the original to me because faculty are required to keep exams for a few semesters.
  • If you are not physically in Gainesville, you are welcome to contact Ms. Rugel via email and we will upload a scan of your exam to the course Canvas Site, and you will be able to access it using your gatorlink ID.
  • Review Policy. Examination review is a good way to learn from your mistakes, and from your successes. I encourage you to review my feedback memo and your exam. I will be happy to sit down and discuss substantive matters with each student. I will first tell each of you what you did right. I will also gladly suggest ways to improve your exam-taking abilities.
  • No Grade Changes. I want to make one thing perfectly clear: I have never changed an exam grade for any reason other than a mathematical error. Barring mathematical errors, your grade is not going to be changed. Grading is a time-consuming and difficult process. The only fair way to do it is to grade in the context of each class. I look for a fair overall grade distribution and follow the rank of each student within the class in awarding the final grade.

First Day Assignment: Fall 2016

  • The assignments for the class sessions for our first week of the Fall 2016 will be posted below
  • Future assignments will be posted in the Assignments and Notes Page.
    (This page has now been updated for the entire Fall 2015, including references to the new edition of the casebook. However, I will have to adapt the lessons from the two-50-minute sessions that I have used since I started teaching the course, to our newly-mandated 70-minute sessions. I expect to work on this over the summer term).
  • The required class materials are: (1) Christopher B. Mueller and Laird C. Kirkpatrick, EVIDENCE UNDER THE RULES (8th. ed., Aspen Law & Business 2015; ISBN: 978-1-4548-4952-0); (2) Mueller & Kirkpatrick, 2016: Federal Rules of Evidence: With Advisory Committee Notes and Legislative History (Aspen Law & Business 2016; ISBN: 978-1-4548-7557-4).
    • DO NOT PURCHASE A USED SUPPLEMENT: The Rules Supplement is the 2016 edition, newly-issued in the summer of 2016. 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 2016 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 16-18, 2016

    • Chapter: 1.0 Evidence Law and the System
    • Tuesday, August 16, 2016
      • Session 1
        • Class rules, testing, grading and administrative matters.
        • Review the Syllabus.
        • 1.1 Introduction: Why Evidence & The Trial, 1-20
        • Pay special attention to What is the Record?, 13-20
    • Wednesday, August 17, 2016
      • Session 2
        • 1.2 How is Evidence Admitted, 20-31
        • Problem 1-A: How did it happen? (p. 26)
    • Thursday, August 18, 2016
      • Session 3
        • 1.3 How Evidence is Excluded, 31-43
        • Consequences of Evidential Error, 44-50
        • Obtaining Review of Evidence Points, 50-51
        • Problem 1-B: He didn't object! (p. 50)

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

Handouts & Resources

Mistaken ID and Innocence

A cautionary tale about mistaken eywitness 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