Evidence Assignments & Notes

LAW 6330 (4 credits)
Professor Pedro A. Malavet

Fall 2017: Section 02BB
Mondays, Tuesdays, Wednesdays
1:00 to 2:10 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 70-minute sessions as noted below.

Quicklinks by Week

General Comments

Fall 2017. 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 2017 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 14-16, 2017



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: August 21-23, 2017

Week Three: August 28-30, 2017

Week Four: September 5-6, 2017

Week Five: September 11-13, 2017

Week lost to Hurricane Irma.

Sessions moved to Week Six starting September 18, 2017.

As I announced at the start of classes, because we use the 70-minute sessions in full, we already have two extra classes scheduled. Accordingly, I will only have to find one 70-minute session as a make-up. I will announce the date and location of that session in coming weeks.
  • Monday, September 11, 2017
    • Session canceled
  • Tuesday, September 12, 2017
    • Session canceled
  • Wednesday, September 13, 2017
    • Session canceled

Week Six: September 18-20, 2017

Week Seven: September 25-27, 2017

I have added a new 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 Eight: October 2-4, 2017

Week Nine: October 11-13, 2016

Week Ten: October 16-18, 2017

Week Eleven: October 23-25, 2017

 

Week Twelve: October 30-November 1, 2017

 

Week Thirteen: November 6-8, 2017

 

Week Fourteen: November 13-15, 2017

 

Week Fifteen: November 20, 2017

 

Not Yet Updated Below this Line for Fall 2017

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.

Click here to see that report.

Week To be Edited

Week to be Edited

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.

Click here to see that report.

  • Monday, November 8, 2016
  • Tuesday, November 9, 2016
    • Session 39
    • Scientific Evidence and the Sixth Amendment
    • Melendez, Bullcoming and Williams.
      Readings for this Class will consist of:
      Edited versions of Melendez and Bullcoming that are already posted to the course Canvas pages under Supplemental Readings.
      Students will discuss the first two cases and I will lecture on Williams (the full opinion of Williams is also posted to the canvas page).
      • First came Melendez Diaz v. Mass., and then things got messy.
      • 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).
  • Wednesday, November 10, 2016
    • Session 40
    • Michigan v. Bryant, Notes at pages 411-12 (I will provide the entire opinion and use it to discuss the analysis as you should have included it in your motions)
      • The full opinion is already posted to the course Canvas page: Files->Supplemental Reading
    • Motion in Limine Discussion

Week to be Edited

  • Monday, November 15, 2016
    • (Extra Session; will be converted to office hours if we do not need to use it, but I may hold them in the classroom as collective office hours)
      • In Room Review
  • Wednesday, November 17, 2016
    • Session 42
      • (Extra Session; will be converted to office hours if we do not need to use it, but I may hold them in the classroom as collective office hours).
        • In Room Review


Week to be Edited

No Classes on Thanksgiving Week This Fall 2016

  • No Sessions this year.

Not updated below this line for
Fall 2016 or 17

Review Session

  • New 403 Standard v. Reverse Balancing Video


  • Review Session:
    • Date: Monday, November 30, 2015
    • Time: 1:00-3:00 p.m.
    • Room: Holland Room 355B
    • NOTE that we have moved back to our regular classroom from 350 as originally scheduled.
  • Review Session and More Exam Discussion
  • (Note that I will NOT answer substantive questions after the review session).
    • I will take the first half hour to one hour to go over basic exam instructions and my general exam expectations;
    • I will also take this time to describe how you could have constructed a good exam answer using the facts of the Practical Project.
    • Then, 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:
    • Friday, December 4, 2015 starting at 1:00 p.m.
    • Please arrive by 12:30 in order to get your exam and the instructions and be started on time at 1:00.
  • EXAM ROOMS: TBA