Evidence Assignments & Notes


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


This page displays your weekly assignment sheets and provides links to the detailed notes for each class session and topic.

When taught in double 50-minute periods, the sessions will be split into fifty-minute segments designated "A," for the first one and "B," for the second.

This term will be divided into 75-minute sessions as noted below.

Quicklinks by Week
====>====> ====> Review 2018

General Comments

Fall 2019. The calendar and lesson plans for the semester will be posted and updated regularly on this page. Only assignments with dates between August and December of 2019 will reflect updated information.

Printing. Use the "print preview" command to view the precise pages that you wish to print out to refer to the latest reading assignments.

Assignment Sheets.
I will issue weekly assignment sheets with specific assignments, by posting them in the website. 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.

Week One: August 26-28, 2019



Videos on US Courts and Trials


These are from the MOOC The Global Student's Introduction to the Law of the United States that a team of professors at the Levin College of Law published last year. They may help you to see the context of the material that we are covering in very simple terms.

Judges and their Courts in the United States

(Click on the image to launch the video in a new window)

The American Oral Jury Trial and the Rules of Evidence

(Click on the image to launch the video in a new window)

Week Two: September 2-4, 2019

  • Chapter: 2.0 Relevance
  • Monday, September 2, 2019
    • Labor Day Holiday: No Class
  • Tuesday, September 3, 2019
    • Class canceled due to Hurricane Dorian
  • Wednesday, September 4, 2019
    • Class canceled due to Hurricane Dorian

Hurricane Dorian:

As I announced in class, and as noted in the syllabus, we will continue to use all 75 minutes of assigned time. This means that we will not be required to schedule additional sessions to make up the two classes lost to the hurricane. As long as no further cancellations occur, we will simply follow our currently-scheduled sessions.

Week Three: 9-11, 2019

Week Four: September 16-18, 2019

 

Week Five: September 23-25, 2019

 

Not yet updated for Fall 2019.

But I anticipate that we will move on to Chapter 6 on Witnesses.

Week Six: September 30-October 2, 2019

I have again included a session for the most recent decision by the SCOTUS on the 6th Amendment right to an impartial jury and its relation to racial bias. I will also cover some constitutional cases relevant to cross-examination (Chapter 7) and impeachment (Chapter 8).

Week Seven: September 24-27, 2018

Week Eight: October 1-4, 2018

Week Nine: October 8-11, 2018

Week Ten: October 15-18, 2018

Week Eleven: October 22-25, 2018

  • Chapter 4.0 Hearsay Exemptions and Exceptions
  • Monday, October 22, 2018
  • Wednesday, October 24, 2018
    • Session 31
      • 4.09.a. Applying Crawford: The Emergency Doctrine:
        Davis v. Washington, 404-412,
      • 4.09.b. Preview of Michigan v. Bryant, Notes at pages 411-12
        (Lecture setting up our discussion tomorrow)
        • I have extensive notes on the Bryant opinion here. I will lecture on Michigan v. Bryant to set up our discussion of the full opinion tomorrow.
        • Michigan v. Bryant shows you the primary effect and current status of the Crawford doctrine: All justices in the current court agree with the new interpretation the Sixth Amendment to bar the use of “Testimonial” hearsay absent a showing of unavailability and a prior opportunity to cross-examine, and they all buy into the Emergency Doctrine. They disagree on what CLASSIFIES as “Testimonial” or as an “Ongoing Emergency”. Normal judicial discretion differences. But they agree on the categories that represent a total abandonment of Ohio v. Roberts as a constitutional standard for applying the Confrontation Clause. Quite remarkable.
  • Thursday, October 25, 2018
    • Session 32
      • 4.10.a. Michigan v. Bryant, Notes at pages 411-12 (The full opinion is posted to the Canvas page, and I will use the full opinion to discuss the analysis as you should have included it in your motions as the student-panel and I discuss the details of the case and its ruling).
        • The full opinion is already posted to the course Canvas page: Files->Supplemental Reading
        • Motion in Limine Discussion built-into the class.
      • 4.10.b. Applying Crawford:
        The Cross-Examination Factor, 412-22
        • Problem 4-R: "Your witness" (pp. 416-8)
        • Lecture on the problem accompanied by discussion of the cross-refences to prior discussions of "Availability" and "Cross-Examination".
        • Lecture on the 104(a) standard and its use of the Bourjaily preponderance of the evidence as well as the questions of reliability and bootstrapping.
  • Friday, October 26, 2018
    • No Session: Practical Projects 2018 are Due before 4:00 p.m.
      • You upload the file using the Assignment in the course Canvas page.
  • Week 12: October 29-November 1
    MORE TIME FOR THE SIXTH AMENDMENT
    CONFRONTATION CLAUSE


    As I announced in class, I have changed the assignments for this week to focus in more detail on the first three cases in the Crawford Doctrine. Crawford itself on our first session. The Emergency Doctrine in our second session and lastly Michigan v. Bryant's "Totality of the Circumstances" test.

    I will move the three cases involving forensics to next week and combine them with the scientific/expert testimony standard. This will allow me to provide you with better context for the constitutional discussion involving forensics and the Confrontation Clause as well as allow me to introduce you to Florida's long discussion about adopting the new standard or not.

    NEXT WEEK:
    Scientific Evidence Standard and Forensics and the Confrontation Clause, Melendez, Bullcoming and Williams

    Melendez involved chemical analysis of drugs.

    Bullcoming involved blood-alcohol lab reports in a drunk driving prosecution. The majority, 5-4, applied Crawford to label them "testimonial" and thus to require a result similar to Melendez-Diaz.

    Williams involved the use of forensic reports of DNA analysis prepared at an outside laboratory (independent relative to law-enforcement) by a state technician who testified at trial and conducted separate testing of her own. This was a bench trial, and the court emphasized that the judge, unlike a jury, would not be confused about the proper use of the evidence. The plurality opinion by Justice Alito announced the result, but only garnered four full votes (his own and that of Chief Justice Roberts and Justices Kennedy and Breyer), Justice Breyer issued a separate opinion concurring in the ruling (but indicating he would have wanted additional briefing and reargument during the next term); Justice Thomas issued a separate opinion concurring in the judgment but concluding that the private laboratory report was too "informal" to be considered "testimonial"; Justice Kagan issued a lengthy dissent joined by Justices Scalia, Ginsburg and Sotomayor.

    Although the passage of time and the use of the cases by the lower courts has given us some clarity, the court has made a bit of a mess of the area of laboratory reports with Williams. But the concerns are matters of trial tactics and the use of government expert witnesses in criminal trials.

    However, as I noted above, Michigan v. Bryant shows you the primary effect and current status of the Crawford doctrine: All justices in the current court agree with the new interpretation the Sixth Amendment to bar the use of “Testimonial” hearsay absent a showing of unavailability and a prior opportunity to cross-examine, and they all buy into the Emergency Doctrine. They disagree on what CLASSIFIES as “Testimonial” or as an “Ongoing Emergency”. Normal judicial discretion differences. But they agree on the categories that represent a total abandonment of Ohio v. Roberts as a constitutional standard for applying the Confrontation Clause. Quite remarkable.

    JUNK SCIENCE IN THE COURTROOM

    Justice Scalia made repeated references in Melendez-Diaz, to the National Academy of Sciences 2009 report finding that much of the supposed forensic "science" evidence admitted in criminal trials was deeply flawed and was more like JUNK science. The Academy called for changes to how so-called scientific evidence is admitted in criminal trials.

    Click here to see that report.

    On September 20, 2016, the President's Council of Advisors on Science and Technology issued a follow up to that report, decrying the use of unreliable forensics in court proceedings and making recommendations for change.

    The report can no longer be found in the White House website, but here is a PDF version of it.

    Click here to see that report.

Week Twelve: October 29-November 1, 2018

    • Context: Chapter 9: Scientific Evidence
    • Monday, October 29, 2018
    • Chapter 4.0 Hearsay Exemptions and Exceptions
    • Wednesday, October 31, 2018
      • Session 34
        • Scientific Evidence and the Sixth Amendment
        • 4.11. Hearsay: Public Records and Government Declarants in Criminal Cases: pp. 302-3, 311-320
          FRE 803(8)
          • For decades, Public Records, primarily those related to forensic results, would be used in criminal prosecutions as a substitute for the testimony of a number of government experts.
          • As long as this was a legislative prerogative, the rules determined the admissibility and were of course subject to amendment as provided by federal or state law.
          • Crawford changed that by imposing a confrontation clause limitation in criminal prosecutions. But three mixed cases have left matters a bit confused.
        • THREE CASES WITH PERHAPS MIXED RESULTS:
          Melendez, Bullcoming and Williams
          .
          • First came Melendez Diaz v. Mass., and then things got messy.
            • In this session I will spend time going over all three of the cases, but most of the time will be spent on Meléndez-Díaz and the problem. I will then focus on more extensively on Williams on the second session.
          • A note on Bullcoming v. New Mexico (the June 2011 decision) (when Bryant was resolved, the two newest justices were on the court, but only Justice Sotomayor could vote; Justice Kagan recused herself because she had signed an amicus brief in support of the petitioner State of Michigan when she was Solicitor General).
          • Williams v. Illinois, the DNA case made things very messy, but it is unclear how so.
        • Problem 4-N: "You Can't Offer the Police Report", pp. 318-9
          • 803(8) in Criminal Cases notes.
    • Thursday, November 1, 2018
      • Session 35
        • 4.12.a A Second Look at Melendez, Bullcoming and Williams.
          • I will focus on a more extensive look at Williams v. Illinois on Thursday.
        • Readings for both the Tuesday and Wednesday sessions will include:
          • Edited versions of Melendez and Bullcoming that are already posted to the course Canvas pages under Supplemental Readings and the full opinion in Williams v. Illinois that is also there.
        • 4.12.b. A review of Bootstrapping, Trustworthiness/Reliability and FRE 104(a) and Bourjaily (I was able to move this up into our discussion of Crawford, Davis/Hammon and Bryant, but I am happy to revisit it if time allows).

Week Thirteen: November 5-8, 2018

Week Fourteen: November 14-15, 2018

Monday, November 12, 2018 is the observance of Veterans' Day.

There will be no classes at the Levin College of Law on that date.


Week Fifteen: Extra Sessions, Monday, November 19 and Monday, November 26, 2018

We finish our 40 substantive sessions on Thursday, November 15, 2018. That leaves us two additional scheduled sessions that are slated for Monday, November 19, 2018, right before Thanksgiving, and for the Monday, November 26, 2018, right after Thanksgiving. I plan to use November 19, 2018 as open office hours BY APPOINTMENT and November 26, 2018 will be reserved as a review session.

I will also hold additional office hours during the reading period, November 27-29. I will only answer substantive course questions in person, not via email.

Judges and their Courts in the United States

(Click on the image to launch the video in a new window)

The American Oral Jury Trial and the Rules of Evidence

(Click on the image to launch the video in a new window)

Review Session: I will use the additional time as office hours and a review session.

Note that I will NOT answer substantive questions after the review session and the expanded office hours during the reading period.

  • Review Session and More Exam Discussion
  • (Note that I will NOT answer substantive questions after the review session).
    • Exam Instructions and Expectations
      • I will take the first half hour to go over basic exam instructions and my general exam expectations
      • You should review the instructions in the most recent exam:
        [Click Here to Go to Exams]
    • Specific Motion in Limine Practical Project Feedback
      • I will go over how you should have approached the Motion in Limine from both a practical drafting perspective as well as a substantive review of our material and preparation for for the exam.
      • I will also take this time to describe how you could have constructed a good exam answer using the facts of the Practical Project.
    • Specific Questions on Course Coverage
      • I will take specific questions. Please be prepared to reference a Rule of Evidence, a common law doctrine, a case or a casebook page number.
      • I will only address matters that I covered in class.
    • I will stay as long as students have questions, but students may leave any time they wish.
  • EXAMSOFT
    • Examsoft use will be permitted‚ and is indeed highly encouraged‚ to answer the essay question. Each student will be responsible for keeping track of their answer's length and shall be required to log into the examsoft template at the start of the examination. The template should be available for download a few days before the exam.
  • Exam Date and Time:
    • December 13, 2018
    • Exams will be handed out and fully proctored by the Office of Student Affairs. I will be available to them by phone.
  • Accommodations are Handled by the Office of Student Affairs
    • DO NOT BRING UP ACCOMMODATIONS TO FACULTY.
    • Handwriting must be treated as an accommodation in order to protect student anonymity.


This Completes the Fall 2018 Course Sessions

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

This is the End!