Evidence Assignments & Notes


LAW 6330
—Sections RMAL & CMAL
—Class Number 32186 (In Person), 24966 (Online)


Professor Pedro A. Malavet


Spring 2022
Monday, Tuesday & Wednesday
5:30 to 6:45 p.m.
LCOL HH-382 for Class No. 32186

ZOOM for Class No. 24966


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

When taught in double 55-minute periods, the sessions will be split into fifty-five-minute segments designated "A," for the first one and "B," for the second. We are scheduled for 26 twice-per-week 120-minute slots that will each be broken down into two 55-minute sessions with a ten-minute break between them, for a net time of instruction of 110 minutes per session day, 220 minutes per week. That should allow us to complete the 2,800 minutes required by ABA standards over our now thirteen-week semester, with about one hour to spare.

When taught in 75-minute sessions, there will be one uninterrupted period per day. We will be scheduled for thirty-nine (39) 75-minute sessions for the semester. That means a total of 2,925 minutes of class are scheduled although we only need to complete 2,800 under ABA standards. The extra 125 minutes will give us some flexbility should there be the need to re-schedule some classes, which may be needed because I may be part of an ABA/AALS site visit team this term, as well as other contingencies.

Quicklinks by Week-Spring 2022 (Pending Update)
====>====> ====> Review

General Comments

Spring 2022. The calendar and lesson plans for the semester will be posted and updated regularly on this page. Only assignments with dates between Tuesday, January 18, 2022, and Monday, April 25, 20221, 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: January 18-19, 2022

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: January 24-26, 2022

Week Three: January 31-February 2, 2022

Week Four: February 7-9, 2022

Week Five: February 14-16, 2022

Week Six: February 21-23, 2022

Week Seven: February 28-March 2, 2022

March 7-11, 2022 is our 2022 Spring Break

Week Eight: March 14-16, 2022

Week Nine: March 21-23, 2022

Week Ten: March 28-30, 2022

  • Monday, March 28, 2022
  • Tuesday, March 29, 2022
    • Session 28
  • Wednesday, March 30, 2022
    • Session 29
      •  We will spend these two sessions on the Melendez-Diaz trilogy and on the specifics of the practical project motion in limine.
    • Scientific Evidence and the Sixth Amendment
      • Case Readings for both hours will include:
        • Edited versions of Meléndez 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.
      • 4.11. Hearsay: Public Records and Government Declarants in Criminal Cases: pp. 304-5, 313-322
        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.
    • Session 28
    • Session 29
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 Eleven: April 4-6, 2022

Week Twelve: April 11-13, 2022

Week Thirteen: April 18-20, 2022

We will finish any material left over from the readings from the previous week this week as needed.

I will then go back over hearsay basics and review the Crawford line of cases using the court's most recent case: Hemphill v. New York (January 20, 2022). The full text of this opinion is in the Supplemental Reading folder of the Canvas page.

I will also provide feedback on your Motions In Limine and we will also have a general review of the course.

Week Fourteen: April 25, 2022

Because we have consistently used 75 minutes per session and will thus complete our 2800 minutes the week prior, with time to spare, and since we have not needed to make up any sessions, this session is unnecessary. I will instead have ZOOM office hours.

  • Monday, April 25, 2022
    • Session 39
    • Not needed
    • CONVERTED TO ZOOM OFFICE HOURS
      • To discuss you motions in general and to answer questions
  • No Reading Period Office Hours
    • Our exam is scheduled for Monday, May 9, 2022. Online exams are now scheduled for the mornings so that the Office of Students Affairs may have time to resolve any problems with the exams of the day.

Week Fifteen: Not Likely to be Needed in Spring 2022

This week will not be needed.

Not Updated For Spring 2022 Below This Line

 

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.

 

 

 

 

This is the End!