Evidence Assignments & Notes


LAW 6330
—Sections C230 & R230
—Class Numbers 15010 & 27893


Professor Pedro A. Malavet


Spring 2021
Monday & Wednesday
4:45 to 6:45 p.m.
LCOL HH-360
and Via ZOOM

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.

Quicklinks by Week-Spring 2021 (Updated Through W-8, Mar 8-10)
====>====> ====> Review

General Comments

Spring 2021. The calendar and lesson plans for the semester will be posted and updated regularly on this page. Only assignments with dates between Wednesday, January 20, 2021, and ending on Monday, April 19, 2021, 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 20, 2021

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 25-27, 2021

Week Three: February 1-3, 2021

 

Week Four: February 8-10, 2021

Week Five: February 15-17, 2021

Week Six: February 22-24, 2021

Week Seven: March 1-3, 2021

If there is time, I will give a review of hearsay to set up our return to the subject next week.

Week Eight: March 8-10, 2021

Week Nine: March 15-17, 2021

Week Ten: March 22-24, 2021

Week Eleven: March 29-31, 2021

  • Monday, March 29, 2021
  • Wednesday, March 31, 2021
    • 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.
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: April 5-7, 2021

Week Thirteen: April 12-14, 2021

Week Fourteen: April 19, 2021

I am considering dedicating this session to review instead of coverage. But I will wait until I see the motions to make that decision.

Week Fifteen: Not Needed in spring 2021

Not Yet Updated Below This Line for Spring 2021

 

Will Not Be Covered in spring 2021

 

 

Material that Will not Be Covered in 2019



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 is the End!