Evidence Assignments & Notes

LAW 6330 (4 credits)
Professor Pedro A. Malavet

Fall 2016: Section 02BB
Tuesdays, Wednesdays and Thursdays
10:50 a.m. to 12:00 noon
Room 355C

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.

As noted in what is already posted here, I have never taught this course in anything other than 50-minute sessions. I will spend time over the summer breaking-up the lessons into the designated 70-minute sessions.

Quicklinks by Week

General Comments

Fall 2016. 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 2016 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 16-18, 2016



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 23-25, 2016

Week Three: August 30-September 1, 2016

Week Four: September 6-8, 2016

Week Five: September 13-15, 2016

Week Six: September 20-22, 2016

I have opted to cover the constitutional cases that are included in the 8th Edition because of our new schedule. The problems are already updated in the web notes, but some of the cases are not. I will get to those at the start of each week.

Week Seven: September 27-29, 2016

Week Eight: October 4-6, 2016

Not updated below this line for
Fall 2016

We will cover Chapter 4, Hearsay Exceptions and Constitutional Doctrines, and then Chapter 5, Character Evidence and other specific Rules. However, this complex material is a bit more difficult to portion into the 70-minute sessions, so I will take a little more time to see how we should cover it.

Week Nine: October 11-13, 2016

Week Ten: October 18-20, 2016

I can think of no better illustration of the seriousness of the effect of the Sixth Amendment Confrontation Clause than Giles v. California and its application of the constitutional forfeiture doctrine.

I must confess that our discussion of Giles yesterday did NOT go AT ALL how I expected. Very interesting.

Week Eleven: October 25-27, 2016

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.

Not updated below this line for
Fall 2016

Week Twelve: November 1-3, 2016

Week Thirteen: November 8-10, 2016

Week Fourteen: November 15-17, 2016

Week Fifteen: No Classes This Fall 2016

The usual four hours of class over two days this week, except that Tuesday is a legislative Wednesday. No classes are scheduled for Wednesday, November 26, 2015, to allow for Thanksgiving travel.

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