Evidence Syllabus

LAW 6330—Section 02BB—Class Number 16014


Professor Pedro A. Malavet


Fall 2019
Monday, Tuesday, Wednesday
3:00 to 4:15 p.m.
Room 355B


(As of 6 August 2019)

 

Course Description, Teaching and Expected Outcomes

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.

Prerequisite Knowledge and Skills. Students must have completed the first year curriculum and developed the skills required to analyze legal problems and to advocate effectively.

Purpose of the Course. To prepare students to apply evidence law in practice as well as to prepare you to successfully answer the usual questions about evidence law found in typical bar examinations.

Instructional Methods. I try to present information in different ways so as to reach students with different learning styles (visual, oral, etc.). I use technology in and outside of the classroom in order to accomplish this goal. I will lecture only very occasionally. Most of our classroom time will be dedicated to problem-solving either through case-analysis or the authors' casebook problems. I will generally assign a role to each panel member as the offering party or the objecting party and ask that they advocate their respective positions as permitted by the Federal Rules of Evidence, applicable common law principles, constitutional provisions and cases. I will gladly spend much more time explaining matters related to the course to individuals or study groups during office hours. I will also use short videos, available on demand on the website, to provide background information and to review important concepts.

My Basic Approach in the Classroom. I seek to train advocates because very few of us will be judges, rather, most legal professionals will use the Rules of Evidence to promote the interests of their clients. Accordingly, most of our time in the classroom will be spent learning advocacy skills particular to the field of Evidence. I will focus on teaching you the structure of legal arguments under the Rules and applicable caselaw and constitutional provisions. Do not look for “the answer,” instead look for the proper argument to be made given your frame of reference. Most of the time, I will ask you to justify knowledgeably why the objection should be sustained or overruled.

Classroom and Study Time-Management. The administration has chosen to change from a 14 to a 13-week semester. Accordingly, we are scheduled for 39 75-minute sessions; this will give us the 2925 minutes of class, or 125 minutes above the 2800 required for a four-credit class by ABA standards. Video lecture review should give us an additional 25 minutes to complete two full sessions that I will treat as collective review time, unless some contingency requires me to use them as make-up sessions.

  • In addition to the usual 225-minutes of classroom time each week, you should plan to allocate about eight (8) hours per week to class preparation and review throughout the semester as well as during the examination period.
  • The Assignments and Notes page provides you the units that we will cover, organized by session, week and chapter.
  • Preparation time should initially be spent reading the assigned text as well as related rules and committee notes or constitutional provisions pertinent to the day's discussion prior to the class session.
  • You should also regularly review your notes and the materials that I post on the website and the course Canvas on eLearning page.
  • In general, the materials on the website that are linked to each assignment are designed to prepare you for class discussion and the materials on Canvas are designed to supplement our class discussion and your related notes.

This Course is NOT IRAC-Focused

IRAC is an extremely useful system for deconstructing legal problems. That is precisely why we teach and emphasize it in so very many of our courses at the Levin College of Law. However, evidence is about learning to provide effective assistance of counsel in the American adversarial oral jury trial and thus, fundamentally, about advocacy and client representation within the applicable rules. Accordingly, in my class, you will have to engage in approaching problems from a partisan, client-duty perspective.

By the end of this course, I expect you to:

  • display a basic understanding of how evidence is gathered, presented, argued over and ultimately admitted or excluded from the American Oral (Jury) Trial;
  • identify the proper rule(s) of evidence, common law rules, constitutional provisions and applicable caselaw relevant to the resolution of a particular problem;
  • effectively advocate, orally or in writing, the solution to the problem from the perspective of the party whom you represent (prosecution or defense in a criminal case, plaintiff or defendant in a civil action) or the role that you are otherwise instructed to play (few of us will ever be judges);
  • follow the structure of analysis that I will spend the entire semester developing and teaching;
  • know what a motion in limine is, and have completed one using the fact-pattern from last-year's exam;
  • write an essay answer to my examination explaining a given result to an evidence problem using the proper structure, applicable rules and in appropriate detail;
  • be able to conduct basic research in the field of evidence;
  • understand changes in the rules and applicable caselaw as those develop throughout your careers, initially by studying the rules of the state where you will seek admission to the bar and identifying how they are similar to or different from the Federal Rules of Evidence;
  • be prepared to use these skills in your future practice.

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).

  • I will adopt the new 9th Edition of Mueller, Kirkpatrick and Richter's textbook and their updated rules supplement for the Fall of 2019.
  • DO NOT PURCHASE A USED SUPPLEMENT: The Rules Supplement is the 2019 edition, newly-issued in the summer of 2019. 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 print version of the supplement if you want to use it in the exam. Electronic copies will not be allowed.
  • 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.

Course Schedule and Assignments. I will post assignment with specific assignments in the Assignments & Notes page on the course website. If the servers should become unavailable as the university has announced may happen, I will use the course canvas page. I will attempt to structure assignments by class session. Students, especially those who sign-up for a particular class, should check with me to make sure what material will be covered. Students must read the assigned pages in the text as well as the pertinent Federal Rules of Evidence in your Supplement. The Notes and Comments in the Rules are extremely helpful and should likewise be included in your reading.

Testing, Participation and Grading

Testing:

  • 5% Pass Fail Syllabus Quiz. 5% of your testing grade will require you to complete the Syllabus Quiz that will be posted in the course Canvas page. You will have to post a perfect score by the given deadline. Prior to the deadline, you will be able to take the quiz multiple times until you reach the perfect score.
  • 5% Pass Fail Hearsay Quiz, Part I. I will post three hearsay quizzes. The first will count 5% of your testing score. In order to pass, you must post a complete score. The actual score does not matter, you simply have to complete the quiz once. The other quizzes will be available simply for self-assessment and will be strictly voluntary.
  • 10% Pass Fail Practical Project. You will have to complete a practical project that will consist of drafting a motion in limine based on a fact pattern that I will design. This project will be assigned during the second half of the semester and will account for 10% of your testing score and it will be graded on a pass/fail basis.
  • 80% Graded Exam. The remaining 80% of your testing score will be a points-graded, open-rule, proctored, written, in-room final exam will be given on the date set by the administration.
    • Examsoft. I will allow (and indeed encourage) the use of Examsoft for the exam. Please be sure that the software works properly on your laptop as early in the semester as possible. If you experience any problems, please visit the College of Law Technology Services Office.

Exam Make-up and accommodation. Exam accommodation is managed by the Levin College of Law’s Office of Student Affairs. Please visit the Office of Student Affairs’ page to review the College’s policies in this regard: http://www.law.ufl.edu/student-affairs/current-students/academic-policies#11. Exam make-ups will be as authorized by the Professor Malavet in coordination with the Office of Student Affairs.

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. Violations of the University Student Code of Conduct, the College of Law Honor Code or of the exam rules should be reported to me before or during the examination. Violation of these rules shall result in a failing grade and in my referring the matter to the pertinent university or college authorities.

Grading and Class Participation: When determining your final grades, I will consider class participation, to adjust your testing score, in two ways:

  1. Minimum participation. (20% of the overall grade.) Each student will be required to participate in class discussion, probably at least two to three times during the semester -the exact number depends on the size of the class, and will be announced early in the semester- in order to meet minimum participation requirements. My basic system for class participation requires that you sign-up to participate in the discussion during an upcoming class, using a calendar item that will be posted on the course canvas page; volunteers will be chosen for each class session. Signing up should be done during the entire semester. Students may not sign up more than once every three weeks. The advantages of this system are that you know you are "on call," the material that we will be covering, and it only happens a few times during the semester. Students who sign-up, are called upon, and answer correctly, get a participation credit, if they are unprepared, they will suffer an automatic deduction. I may call upon students at random as well. Additionally, you may raise your hand and offer to answer questions at any time. But you must still comply with the minimum participation requirements, unless I instruct you otherwise. Minimum Class Participation further includes:
    1. Regularly accessing the class materials made available online both in my webpage or in the class Canvas page.
      1. The notes in my website will give you major discussion points for which you should prepare. All students should review them before class, especially those who have signed up to participate on a particular date.
      2. All students must regularly access the Canvas page. Please note that Canvas analytics log each student's use of the course pages in great detail and I will use that to show your compliance with this requirement.
      3. Review one of the videos on US Courts and the American Oral Jury Trial that are posted on Canvas.
      4. I do not expect to use any graded quizzes other than those mentioned in the testing section. However, I may design some additional quizzes to help you, that is, as self-assessment and memory-reinforcement tools. They will not be individually graded, they must simply be completed when expressly required.
  2. Quality of Participation. I will consider the quality of student participation and conduct to further adjust final grades, as I deem appropriate.
  3. Current Grading Scale. The University of Florida follows a letter grade and grade point average system with a maximum letter grade of “A” and a maximum GPA of 4.0. Please visit the University Registrar's site for information on the current grade scale. [https://catalog.ufl.edu/ugrad/current/regulations/info/grades.aspx]
    Letter Grade Point Equivalent
    A 4.00
    A- 3.67
    B+ 3.33
    B 3.00
    B- 2.67
    C+ 2.33
    C (Satisfactory) 2.00
    C- 1.67
    D+ 1.33
    D (Poor) 1.00
    D- 0.67
    E (Failure) 0.00
  4. College of Law Grading Policy. The College of Law's grading policies are published in the Student Handbook. In general, faculty policy specifies that the mean grade for all seminars and course sections in which more than 15 students are enrolled must fall between 3.15 and 3.25 (inclusive). The mean grade for a course section is required to fall within the specified range. If 15 or fewer students are enrolled in a seminar or course section, there is no minimum GPA but the mean grade for a course section may not be higher than 3.60. The higher mean grade for courses in which there are 15 or fewer students is recommended rather than mandatory but in no event may the mean grade exceed 3.60. Grades are recorded permanently by the Office of the University Registrar. The GPA is determined by computing the ratio of grade points to semester hours of work attempted in courses in which letter grades are assigned.
  5. Grading Scale, Adjusted to the College of Law Mandatory Curve. This is my personal assessment of and advice about how you should interpret your grades at the Levin College of Law.

    Letter Grade Point Equivalent
    A (Excellent) 4.00
    A- (Good) 3.67
    B+ (Above Average) 3.33
    B (Below Average) 3.00
    B- 2.67
    C+ (Poor) 2.33
    C 2.00
    C- (Very Poor) 1.67
    D+ 1.33
    D 1.00
    D- 0.67
    E (Failure) 0.00

General Information and Policies for the Course

Office Hours: I will have regular office hours, on Monday, from Noon to 1:00 p.m., Wednesday, from 4:15 to 5:15 p.m., and Thursday, from 2:30 to 4:30 p.m. My office is in Room 337 in Holland Hall. You may also see me after class or schedule appointments, subject to my having available time. Take advantage of office hours as early as possible in the semester. Do not wait until the end of the course to review material and bring your questions to me. Review material regularly, at least as we finish different sections. Additionally, if you feel lost, or if you have doubts that cannot be resolved during class or during the period immediately following it, please do not hesitate to come and see me. Office time is also a good opportunity to explore matters that are not directly related to the material being discussed in class.

Office hours are also an opportunity for you to become more comfortable with my mandatory class-participation policy. You are encouraged to come by and talk to me during office hours before you sign up to participate in class, or in anticipation of your turn, to chat with me about the material. In the past, I have been pleased to see that students who dread class-participation have really done well by simply "talking it through" with me beforehand.

E-mail. You may communicate with me by E-mail, but only for administrative matters. My address is MALAVET@LAW.UFL.EDU. E-mail messages from students must include the student's full name, so that I may ensure that I am communicating with a member of the class. I rarely answer substantive questions by E-mail because I find it a very inadequate medium to discuss course content. I rarely reply to attendance-related messages, since I check that at the end of the semester.

Web Page, eLearning on Canvas. This Syllabus and the currently-available weekly Assignment Sheets will be posted on my web site (http://nersp.osg.ufl.edu/~malavet). Additionally, I have created an area in the site for extensive evidence notes and will updated these class materials during the semester, as I deem appropriate. I have also created a Canvas course page in which I have posted printouts of the Power Point slides that I used last semester and I will update these printouts as I make changes to the current pages. I do not place materials on reserve in the library and I will not print out the material posted on the web site. It is your responsibility to review the website and the Canvas on eLearning course page regularly for updated class information; this is considered as part of your class participation for my course.

  • If you have any problems accessing the course website, please contact me directly via email.
  • If you have any problems accessing the course Canvas page, please contact the UF Helpdesk:
    • Available 24 hours a day, 7 days a week
    • (352) 392-HELP (4357)
    • helpdesk@ufl.edu

Class Attendance and Conduct: Attendance is mandatory. Additionally, students arriving late or leaving the room during class are an undue distraction. I will take roll daily by passing around a sign up sheet. It is the student's responsibility to initial the sign-up sheet in the appropriate place whenever they are in class, i.e., the roll does not have to come to you, you must come to the roll. Failure to sign the roll will be treated as an unexcused absence. I will allow three (3) unexcused absences per semester on a no-questions-asked basis (provided however that none of them may occur during the last eight sessions of the semester). Additionally, I am willing to be flexible about allowing a few excused absences, late arrivals or early departures, for good cause —such as a doctor's appointment, child-care problem or job interview— provided that the good cause is brought to my attention beforehand or as soon as possible thereafter in the case of unanticipated occurrences. Excuses must be submitted in writing or via E-mail. Students will have no more than seven days after the time of the unanticipated occurrence to bring excuses to my attention, provided however that I will not accept any excuses offered after our last session of the semester. Signing an attendance sheet for a classmate, or having a classmate sign an attendance sheet for you shall result in administrative removal from the course. There will be seating chart for our course. Students are required to get their names on the chart and thereafter to abide by the seating arrangement designated therein.

  • NO REASONABLE EXPECTATION OF PRIVACY
    • While I do not anticipate recording any class sessions or using video conferencing systems during the course, if the need for either should arise, please be advised.
    • No Reasonable Expectation of Privacy. As our classroom is an open environment for members of the class and of the law school community, you are hereby warned that you do not have a reasonable expectation of privacy in the classroom relative to having your likeness, voice or the general vicinity of your seat captured by the video and audio devices that are used for these purposes.

Electronics in the Classroom. Pagers and cellular telephones should be turned off during class (unless you need to be “on call” for serious matters; in such cases, however, please put the phone or pager on “vibrate only” mode).

Laptop or Tablet Use. Laptop computers and tablets are wonderful tools for class-related note-taking and reference, however, during class time it is inappropriate to use electronics for any other purpose. In addition to any other appropriate sanction, electronics use in class is a privilege and —pursuant to our faculty policy— I will suspend or rescind it, individually or collectively, if it is abused.

Professionalism in the Classroom. Naturally, you are all bound by the Regulations of the University of Florida, University Student Code of Conduct, the College of Law Honor Code and my rules. But more than obeying rules, classroom behavior is about showing proper professionalism. Proper conduct in the classroom is intended to encourage everyone to participate in, to derive benefit from, and ultimately to enjoy the class. It is perfectly acceptable, and indeed professionally required, that you demand professional behavior of your classmates in and out of class. If you see conduct that is unprofessional and that affects your quality of life in the classroom or at the college of law, you should privately approach the offending student and ask that they modify their behavior. If private discussion is impractical or unsuccessful, you should bring the matter to the attention of the instructor or an appropriate official at the College of Law or the University of Florida. You should do so privately, though not anonymously, but you are strongly encouraged to bring serious matters to my attention, or that of other pertinent authorities, as soon as possible, so that I, or they, may take appropriate measures.

University Policy on Academic Misconduct.  Academic honesty and integrity are fundamental values of the University community. Students should be sure that they understand the UF Student Honor Code at http://www.dso.ufl.edu/students.php.

Sanctions. Absences, tardiness and any other unprofessional conduct will be initially dealt with on a case-by-case basis as a matter of course grading, at the discretion of the instructor. The imposition of disciplinary measures will follow the process provided in the Regulations of the University of Florida, University Student Code of Conduct and the College of Law Honor Code. Serious class disruptions may result in expulsion from the disrupted session. Excessive absences -even if an excuse is offered*- may result in administrative removal of the offending student from the course or in a reduction of his/her grade. Absent waiver, other matters will be referred to the pertinent committee or administrative hearing, without prejudice to the instructor's normal grading discretion.

  • * While I would not reduce someone's grade for excessive excused absences, I might administratively remove them from the course, although I would ensure that this was done on a "passing" basis. I would do this if, in my judgment, the person has missed so much of the semester that he or she cannot really benefit from the course.

Other University and College of Law Policies

Religious Holy Days. Absences due to observance of a religious holy day shall be treated as excused absences. Please inform me via email.

The College of Law’s Policy on Religious Holy Days states: The College of Law respects students’ observance of major religious holidays. If an instructor has an attendance policy limiting the number of absences, reasonable alternative means shall be established by the instructor to satisfy the attendance policy and accommodate the religious obligations of the student.

The University of Florida Policy on Religious Holy Days is as follows: Students, upon prior notification to their instructors, shall be excused from class or other scheduled academic activity to observe a religious holy day of their faith. Students shall be permitted a reasonable amount of time to make up the material or activities covered in their absence. Students shall not be penalized due to absence from class or other scheduled academic activity because of religious observances. If a faculty member is informed of or is aware that a significant number of students are likely to be absent from his or her classroom because of a religious observance, a major exam or other academic event should not be scheduled at that time. A student who is to be excused from class for a religious holy day is not required to provide a second party certification of the reasons for the absence.

University Policy on Classroom Accommodation for Students with Disabilities. Students requesting classroom accommodation must first register with the Dean of Students Office. The Dean of Students Office will provide documentation to the student who must then provide this documentation to the instructor when requesting accommodation. You must submit this documentation prior to submitting assignments or taking the quizzes or exams. Accommodations are not retroactive, therefore, students should contact the office as soon as possible in the term for which they are seeking accommodations. Students are strongly encouraged to communicate with their professor and with the College of Law’s office of student affairs to ensure that they receive proper accommodation.

GatorEvals. Students are expected to provide professional and respectful feedback on the quality of instruction in this course by completing course evaluations online via GatorEvals. Guidance on how to give feedback in a professional and respectful manner is available at https://gatorevals.aa.ufl.edu/students/.  Students will be notified when the evaluation period opens and can complete evaluations through the email they receive from GatorEvals in their Canvas course menu under GatorEvals or via https://ufl.bluera.com/ufl/.  Summaries of course evaluation results are available to students at https://gatorevals.aa.ufl.edu/public-results/.

Etiquette and Netiquette

When participating in class discussion:

  • Take what you are about to say seriously
  • Be as brief as possible while still making a thorough comment
  • Always be respectful of others’ opinions even when they differ from your own
  • When you disagree with someone, you should express your differing opinion in a respectful manner
  • Do not make personal or insulting remarks
  • Be open-minded

We Discuss Sensitive Topics

The most difficult cases under the Federal Rules of Evidence and the Constitutional Doctrines that we must discuss often involve serious criminal offenses. Many of our most important cases and problems will address subjects such as murder, sexual assault, child-abuse and intimate partner violence. We must discuss these topics as part of any reasonable coverage of the field of Evidence.

However, please keep in mind that there will be among us victims, or friends and family of victims, of such crimes. This of course requires particular care and sensitivity during class discussion.

If you ever feel that a particular discussion will be too difficult, please communicate with me privately so that I may excuse you form the class or make arrangements for alternate participation methods.

If, however unintended it may be, discussion during our class should upset you as a victim, or for some other reason, please let me know privately or please seek assistance as discussed below.

When communicating electronically you should always:

  • Treat the instructor and your classmates with respect, even in email or in any other online communication
  • Always use your professors’ proper title, which in law school is “Professor,” not “Mr.”, “Mrs”, “Ms.” or “Miss,” followed by last name
  • Avoid the generic use of “professor” without a last name
  • Unless specifically invited, don’t refer to a member of the faculty by first name.
  • Use clear and concise language
  • Remember that all college of law level communication should have correct spelling and grammar
  • Avoid slang terms such as “wassup?” and texting abbreviations such as “u” instead of “you”
  • Use standard fonts such as Times New Roman and use a size 12 or 14 pt. font
  • Avoid using the caps lock feature AS IT CAN BE INTERPRETTED AS YELLING
  • Limit and possibly avoid the use of emoticons like :)
  • Be cautious when using humor or sarcasm as tone is sometimes lost in an email or discussion post and your message might be taken seriously or offensive
  • Be careful with personal information (both yours and other’s)
  • Sign your e-mail message with your full name (first and last names) and return e-mail address

Are you in distress?
Please Ask for Help

If you are having real-life problems that are affecting your general well-being or your studies, please let someone know. You are most welcome to come to me if you wish to talk about it. Additionally, the Office of Student Affairs, the University Counseling and Wellness Center and UMatterWeCare are good places to start.

Florida Bar Mental Health and Wellness Center

The Florida Bar, to its credit, is taking proactive steps to help improve the mental health and wellness of its members. In their own words:

The Florida Bar’s Special Committee on Mental Health and Wellness of Florida lawyers will work to destigmatize mental illness, recommend best practices and remedies, and help bring more balance into members’ daily professional lives.

https://www.floridabar.org/member/healthandwellnesscenter/