SOUTHWESTERN LAW SCHOOL

EVIDENCEBSPRING SEMESTER 2011 - SECTION 140 T1

SYLLABUS, COURSE REQUIREMENTS AND GRADING CRITERIA
PROFESSOR NORMAN M. GARLAND
Tel: 213-738-6773 Email: ngarland@swlaw.edu

This course will survey the common law, state statutory, and federal rules of
evidence. The rules, principles behind the rules, and cases interpreting them shall be
examined.

MATERIALS:

We shall be using WALTZ, PARK, & FRIEDMAN, EVIDENCE: CASES AND MATERIALS
th
(11 ed. 2009). Students must purchase DAVID W. MILLER, FEDERAL AND CALIFORNIA
EVIDENCE RULES 2009 STATUTORY SUPPLEMENT (Aspen 2009), which contains the
Federal Rules of Evidence (FRE), the California Evidence Code (CEC), and Notes
related to both. [Please note that the texts of the FRE and CEC are included in
appendices to the Casebook, along with the Notes related to the FRE; however, it is
easier to use and refer to them in a second volume, which is why the Miller Supplement
is required. Also, the Miller Supplement has the FRE and CEC provisions on facing
pages, which is exceedingly convenient.]

There are hypothetical problems that appear in the Casebook at the end of some
chapters or sub-chapters, most of which come from JEFFERSON'S CALIFORNIA EVIDENCE
BENCHBOOK. We shall be using these problems for classroom discussion and
presentation from time to time. Therefore, students may want to refer to the
Benchbook, copies of which are on reserve in the Library. Students who intend to do
advanced trial work, either in school or in practice, may wish to purchase the
Benchbook now. Be advised that the purchase of this expensive but excellent tool is
not required for this course.

Supplemental reading materials, which are also required reading for the course,
appear on the TWEN page for this class. These materials consist of articles, cases,
and other writings, that do not appear in your casebook but are important. You may
download these materials from the TWEN page onto a disk or print them out on any
printer. Or, you may just read the materials online or on your own computer after you
have downloaded them. These materials are noted in the syllabus assignments at the
point of class coverage.

There are three articles, included in the supplemental reading materials, which I
recommend that students read: An Overview of Relevance and Hearsay: A Nine Step

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Analytical Guide, 22 Sw. U. L. Rev. 1039 (1993); Of Judges and Juries: A Proposed
Revision of Federal Rule of Evidence 104, 23 U.C.D.L. Rev. 77 (1989), and An Essay
On: of Judges and Juries Revisited in the Context of Certain Preliminary Fact Questions
Determining the Admissibility of Evidence under Federal and California Rules of
Evidence, 36 Sw. U. L. Rev. 853 (2008) (a revisitation of the Judges and Juries article).
Since I wrote two and co-wrote the other, these articles compliment the class as I teach
it. The beginning of the first article is worth reading right awayBthe part dealing with the
first four steps. The second and third articles deal with a subject that comes up early in
the course and is a common thread throughout. The Overview article is also available
in a revised electronic version that includes a set of test questions that will help you
understand hearsay and relevance. Here is a link to this revised overview article:
http://lawschool.westlaw.com/Garland/welcome.html (this page can be accessed
through TWEN, by clicking on Alawschool home@ in the upper left corner of your TWEN
home page, then clicking on Asurvival guide@ and the next page (in the upper left; then,
on the next page, in the far right column AAdvanced Research@ you will see a link to my
work). In addition, the Nine Step Guide is also now available as a CALI lesson with
video by me.

Outside reading should be limited, especially at first. For those who wish to
go beyond the materials in the Casebook, a good choice is MCCORMICK, EVIDENCE (6th
ed. 2007). Another good choice is MUELLER & KIRKPATRICK=S EVIDENCE (3d Ed. 2003).
An interesting, easy-to-read work, available on reserve in the Library, is MAGUIRE,
EVIDENCE COMMON SENSE AND COMMON LAW (1947). For penetrating as well as broad
analysis of the finer points, Wigmore's multi-volume treatise may be consulted from time
to time. There are many other sources available. Be sure to concentrate on the
Casebook, the Rules themselves, and the Notes to the Rules as primary sources.
Before expanding your reading, consult with me.

TWENBA Virtual Classroom on the Web

I have a Web page set up through The West Education Network (TWEN). Your
student password for Westlaw will get you access to this TWEN page as a student
registered in my class and on TWEN. All students using TWEN should go to
http://www.lawschool.westlaw.com. From that site, you may sign on TWEN (if you have
previously been registered), or register for TWENBjust follow the instructions. After you
have established your TWEN page connection, you must add my class to it. Look
carefully at the screen and follow the instructions for adding classes. If you have
difficulties, do not spend a lot of time trying to figure it out on your own. Contact
Westlaw [1800-WESTLAW (937-8529)], the computer lab assistant at the library, or me
for assistance (213-738-6773).

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 Once you have registered for TWEN you may access it from any computer
anywhere in the world. On the TWEN page you will find a copy of this syllabus,
supplemental course materials, discussion pages, and, as the semester moves on,
many other materials for use in class on a daily basis. You can participate in
discussions or hypothetical solutions contests on the TWEN pages. In addition, you will
see that you can e-mail messages to me directly from the TWEN pages. It is imperative
that you register and make use of the TWEN system. I use it regularly and extensively
throughout the semester. There is no charge for the use of TWEN. Note that I am
providing the supplemental materials on TWEN.

Your Southwestern Internet access allows you to send and receive e-mail from
any computer that has Internet access. My e-mail address is ngarland@swlaw.edu.
The Southwestern home page on the Web gives instructions on how to access your e-
mail from any computer that has Internet access. I will look at all e-mail addressed to
me and either answer it directly or post it to one of the discussion pages on TWEN.
Please be sure to sign any emails that you send to me so that I know with whom I am
communicating.

CLASS PREPARATION

Students are expected to have read the assigned materials. Class discussion
will commence with the assumption that everyone is thoroughly familiar with the
assigned materials.

PODCASTING AND VIDEOCASTING

CALI sponsors a project for distance learning in which a number of law professors
podcast their classes. I participate in this project and will continue it this fall. I will
record each class session and, immediately afterward, it will be available for download
into, a computer, an mp3 player, a video playback program, or just for listening or
viewing on line. Students will be able to access each class=s recording at this link:
http://evidence2011garland.classcaster.net/

SPECIAL RULES REGARDING ELECTRONIC DEVICES\

No Computers in the Classroom: While computers are a valuable tool for

research and study, they are inimical to participation, professionalism, and collegiality in
the classroom. The use of portable computers in class for any purpose, therefore, will
not be permitted.

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 Recording of class: Tape or digital recording of class meetings B including by
using cellular telephones with cameras is strictly prohibited. The class is recorded and
PodCast by Professor Garland, making personal recording unnecessary.

Other Electronic Devices: Common courtesy suggests that, once class begins,
you should TURN OFF all personal communication, entertainment, and information
storage devices, including, but not limited to, Blackberries, cellular telephones and, and
iPods and iPhones.

ASSIGNMENTS:

This course consists of 42 sessions, 1 hour and 20 minutes each. I have

prepared an assignment list giving the order and content of the course coverage by
dated class session (see table below). I will try to keep up with the syllabus schedule,
but students are advised to remain at least twenty five (25) pages ahead of class
coverage from day to day. Another suggestion: Sometimes, I will cover materials rather
slowly. Therefore you should review the reading material for the day immediately
before class, even if you have previously thoroughly read and briefed it.

I urge students to brief the cases that appear in the Casebook and to maintain an
outline of the subject to facilitate class discussion. In addition to discussion of the
cases and materials, students may be assigned to prepare in advance and present
analysis or argument on specific problems, including the hypothetical problems in the
Casebook.

ATTENDANCE AND GRADING:

Regular and punctual attendance is required. A student may be administratively

withdrawn from this course if he or she is absent from more than 20% of the regularly
scheduled class sessions. Each student is responsible for keeping track of his or her
absences. Attendance will be taken at the start of class through distribution of an
attendance sheet. If you are not in your seat at the beginning of class and do not
personally initial the sign-in sheet at that time, you are considered absent. Students
may initial only their own names, not those of other students. Lack of preparation, early
departure, or inappropriate behavior may result in a student being marked absent.

There will be a midterm examination on Thursday, March 17, 2011 (unless

rescheduled). The midterm will consist of one (1) hour, closed book, of multiple choice
questions and will count as 25 % of the final grade in the course. The final examination

4
will be four (4) hours, closed book, one and one-half (1 2) hours of which will be
multiple choice. More information about the coverage, content and grading standards
for the final examination shall be explained at the appropriate time.

Grades for this course will be awarded based upon an alphabetical system and
will strictly follow Southwestern’s grading policies. After a grade is awarded for the
course, I am happy to discuss ways to improve a student’s performance. In accordance
with law school policy, however, assigned grades will not, and cannot, be changed
except for mathematical/clerical errors. No grade can be changed, for any reason,
ninety days after the final grade has been posted or the examination has been made
available to the student in the Registration Office, whichever is later.

STATEMENT OF REASONABLE ACCOMMODATIONS

Students who need accommodations due to disabilities should contact the Dean
of Students Office/Counseling Center. The office is located in W102 and can be
reached at (213) 738-6888 or disability@swlaw.edu.

It is the policy and practice of Southwestern Law School to comply with the
Americans with Disabilities Act of 1990 as amended by the ADA Amendments Act of
2008, Section 504 of the Rehabilitation Act, and state and local requirements regarding
students and applicants with disabilities. Southwestern will make every effort to provide
reasonable accommodations for students with medical, attentional, psychological,
learning, or temporary disabilities.

Accommodations are not provided to give a student an unfair advantage over

other students, but simply to allow a student with disabilities to have an equal
opportunity to be successful.

A student has the responsibility to meet with the Counselor/Disability Specialist

as early as possible to discuss his or her request for special accommodations.
Students who do not seek accommodations need not make their disabilities known.
Further information regarding procedures, policies and documentation required is
available in the Student Handbook.

OFFICE HOURS:

I have an open door policy and I welcome students' visits. One of the joys of
teaching for me is meeting with students one-on-one. In fact, I urge you to meet and
confer with me early on and throughout the semester. Please do not wait until the end
of the semester to come and see me.

In addition I have set aside specific hours for my Evidence students. If these
hours do not fit your schedule, please feel free to make an appointment with me

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personally or just call me and leave a message if I am not in (extension 6773). I will
return your call and arrange an appointment.

BW Building Room 441 Wednesday 3:30-4:30 p.m.

Thursday 3:30-4:30 p.m.

GENERAL COURSE OUTLINE:

The order in which we shall cover the materials in the Casebook is:

CHAPTER NO. DESCRIPTION

1 MAKING THE RECORD

2 INTRODUCTION TO RELEVANCE
12 SCIENTIFIC EVIDENCE
8 WRITINGS
9 COMPETENCY OF WITNESSES
2 RETURN TO RELEVANCE
3 HEARSAY AND EXCEPTIONS
5 IMPEACHMENT AND
CROSS-EXAMINATION OF
WITNESSES

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FIRST ASSIGNMENT:

Carefully read all of Chapter 1, Making the Record, and work the quizzes on
TWEN that cover the chapter. Read and study carefully pages 72-76 in Chapter 2A and
read quickly all of Chapter 1 for the first day of class. Read the article Ann Althouse,
Beyond King Solomon=s Harlots: Women in Evidence, 65 S. Cal. L. Rev. 1265 (1992)
for the first week of class. This article is available in the Supplemental Materials
document page on the TWEN page. I shall discuss it when we cover the Judgment of
Solomon, that appears on page 72 of the casebook.

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 SPRING 2011 - EVIDENCE - PROFESSOR GARLAND
SECTION 140 T1BMWTh 2:00 - 3:20 p.m. W311

Ses# Date Pages Chap FREs Description

1 M 1-70 1& 401, 402 Making the Record; Intro to relevance - relevant to what? The Judgment

1/10 & 72- 2A & 403 of Solomon

76

2 W 72-76 2A 401, 402 Ann Althouse, Beyond King Solomon=s Harlots: Women in Evidence, 65

1/12 TWEN & 403 S. Cal. L. Rev. 1265 (1992), Supp. Materials on TWENBnot in casebook;

Supp. Hart & McNaughton excerpt; James excerpt.

3 Th 77-80 2B 401, 402, Relevance & inference. Morgan excerpt; McCormick excerpt; Knapp v.

1/13 403 State, 168 Ind. 153 (1907); Note: Sherrod v. Berry, 856 F.2d (7th Cir.
1988)(en banc)

4 W 814- 12B 701-706 Scientific Evidence & Opinion: Daubert v. Merrell Dow, 509 U.S. 579

1/19 39, (1993); Kumho Tire Co., Ltd. v. Carmichael, 526 U. S. 137 (1999); U.S.

856- v. Salee, 162 F.Supp. 1097 (D. Alaska 2001); U.S. v. Scheffer, 523

61 U.S. 303 (1998)

5 Th 81-94 2C 403 Prob value v. prej effect. Sherrod v. Berry, reprise; Old Chief v. U.S.,

1/20 117 S.Ct. 644 (1997); Ballou v. Henri Studios, Inc., 656 F.2d 1147 (5th

Cir. 1981); Hypos, pp. 93-94.

6 M 634- 8A 1001-1008 The best evidence rule. McCormick excerpt; Sirico v. Cotto, 67 Misc.2d

1/24 42 & 104 + 636 (N.Y. Civ. Ct. 1971); Case Note; Hertzig v. Swift & Co., 146 F.2d

CEC §§ 444 (2nd Cir. 1945); Meyers v. U.S., 171 F.2d 800 (D.C. Cir. 1948);

1520-23 People v. Enskat, 20 Cal.App.3d Supp. 1 (1971), see also Mendez Note
& 1550 & re Comparison of the FRE and CEC Best Evidence Rule, TWEN Supp

TWEN

Supp

7 W 642- 8B 901-903, Authentication. McCormick excerpt; U. S. v. Dockins. 986 F.2d 888 (5th

1/26 49 & 104 Cir. 1993); United States v. Hampton, 464 F.3d 687 (7th Cir. 2006);

Note: Green Giant Co., 110 A.2d 599 (Me. 1954), First State Bank of

Denton v. Maryland Casualty Co., 918 F.2d 38 (5th Cir. 1990); Hypo p.
649.

8
Ses# Date Pages Chap FREs Description

8 Th 658- 9 601-606 Competency of witnesses. Hill v. Skinner, 81 Ohio App. 375 (1947);

1/27 83 & 104 + Tracy excerpt; NY Civil Practice Act & Rules, Section 4519; Comment to

CEC '' Section 1261; State v. Moore, 902 A.2d 1212 (N.J. 2006); Rock v.

700-704 Arkansas, 483 U.S. 44 (1987); Tanner v. US., 483 U.S. 107 (1987);
Competency of witnesses Hypos p. 683.

9 M A return to relevance - character, habit, and custom/Character in issue:

94-110 2D 401-403;
1/31 Cleghorn v. NY Central & H. River Ry. Co., 56 N.Y. 44 (1874);
404(a)
Wellman excerpt; Hypo, p. 96. Character evidence. Michelson v. U.S.,

335 U.S. 469 (1948); Camus excerpt; Maryland excerpt; "Theodore

Roosevelt as Character Witness"

10 W 111-35 2D 404(b); & Character evidence & Uncharged Misconduct Evidence McCormick

2/2 405 excerpt. Hypos p. 117; United States v. Carrillo, 981 F.2d 772 (5th Cir.

1993); Calif. Const. Art. 1 Sect. 28 & Note; U.S. v. Beasley, 809 F.2d

1273 (7th Cir. 1987); U. S. v. Cunningham 103 F.3d 553 (7th cir.

1996);Tucker v. State, 82 Nev. 127 (1966); Huddleston v. US, 485 U.S.

681 (1988); Note: Acquittal, etc.

11 Th 111-35 2D 404(b); & Same as last class

2/3 405

12 M same 2D 404(b) & Same as last class

2/7 as last 405

class

13 W 135- 2D 404(b), Character/safety history - character in civil cases - habit evidence;

2/9 46 405, 104, Perrin v. Anderson, 784 F.2d 1040 (10th Cir. 1986); Questions, p. 139;
412, 413- Note, p. 139; Park, Leonard and Goldberg, Evidence Law excerpt;

415, & Halloran v. Virginia Chemicals Inc., 41 N.Y.2d 386 (N.Y. 1977); Hypos,
607-609 pp. 145-46.

14 Th 147- 4B 404, 405, Prior Sexual Conduct. Note on Rape Shield; State v. Cassidy, 489 A.2d

2/10 65 412, 413- 386 (Conn. App. Ct. 1985); Olden v. Kentucky, 488 U.S. 227 (1988);

415, 607- Note: U.S. v. Platero v. 72 F.3d 806 (10th Cir. 1995): Johnson v. Elk

609, & Lake School District, 283 F.3d 138 (3d Cir. 2002); Park excerpt;
104 Questions, p. 165.

15 M 165- 2E & 401-403, Similar happenings. Simon v. Kennebunkport, 417 A.2d 982 (Me.

9
Ses# Date Pages Chap FREs Description

2/14 79 F 407, 1980); Morris excerpt. Hypo, p. 169; Subsequent precautions. Tuer v.

McDonald, 47 Md. 507, 701 (1997) Rhode Island Rules of Evidence;

Hypos, pp. 178-79.

16 W 179- 2G 408-410, Offers in compromise - payment of medical expenses - withdrawn guilty

2/16 82 & 411 pleas. Davidson v. Prince, 813 P.2d 1225 (Utah Ct. App. 1991); Note re

U.S. v. Mezzanatto, 513 U.S. 196 (1995); Hypos, p. 182.

17 Th 184- 3A 801 Hearsay - rationale & meaning: Definitions. Tribe excerpt; Park excerpt;

2/17 213 McCormick excerpt; Estate of Murdock, 32 Muc. 352 (1983);

Subramaniam v. Public Prosecutor, 100 Solicitor=s Journal 566 (1956);

Vinyard v. Vinyard Funeral Home, Inc., 435 S.W.2d 392 (Mo. Ct. App.
1968); Johnson v. Misericordia Comm. Hosp., 97 Wis.2d 521 (Wis. Ct.

App. 1980); Ries Biologicals, Inc. v. The Bank of Santa Fe, 780 F.2d

888 (10th Cir. 1986); Hearsay - rationale & meaning: state of mind.

Strahorn excerpt; Fun-Damental Too, Ltd. v. Gemmy Industries Corp. 111

F.3d 993, 42 U.S.P.Q. 2d 1348 (2nd Cir. 1997); U.S. v. Hernandez,

750 F.2d 1256 (5th Cir. 1985); Hypos, pp. 197-98; U.S. v. Zenni, 492

F.Supp. 464 (E.D. Ky. 1980); Note re Regina v. Kearley, 2 App. Cas.

228 (H.L. Eng. 1992); Commonwealth v. Knapp; Morton excerpt;

McCormick excerpt; Wilson v. Clancy, 747 F.Supp. 1154 (D.Md. 1990);

Note: Silver v. NY Central Railroad, 329 Mass. 14 (1952); Morgan

excerpt; U.S. v. Jaramillo-Suarez, 950 F.2d 1378 (9th Cir. 1991); US v.

Rhodes; Commentary United States v Rhodes, Lilly excerpt.

18 W 184- 3A 801 Same as last class

2/23 213

19 Th 184- 3A 801 Same as last class

2/24 213

20 M 213-21 3A 801 Hearsay - rationale & meaning: Non-human evidence. U.S. v. Brown,

2/28 548 F.2d 1194 (5th Cir. 1977); City of Webster Groves v. Quick, 323

S.W.2d 386 (1959); Morgan excerpt; AParrot May Have the Answer;@

Morgan, Evidence Exam 1946

21 W 314-21 3B7 804(b)(2) Hearsay exceptions - dying declarations. Cairns excerpt; King John

3/2 & 104 excerpt; Bedside of Lope de Vega excerpt; Last Words of Louis XVI

10
Ses# Date Pages Chap FREs Description

Stephen=s account excerpt; State v. Jensen, Kenosha County (Wisconsin)

Circuit Court, April 7, 2008; Hypos, pp. 320-21.

22 Th 221- 3B1 803(1) & Hearsay exceptions - spontaneous & contemporaneous exclamations.

3/3 35 803(2) Hutchins & Slesinger excerpt; Truck Insurance Exchange v. Michling; 364

S.W.2d 172 (Tex. 1963); Lira v. Albert Einstein Medical Center, 559

A.2d 550 (Pa. Super. Ct. 1989); State v. Jones, 311 Md. 23 (1987);

Hypos, p. 235.

23 M 235- 3B2 801(d)(2) Hearsay exceptions - admissions by party opponent, admissions by

3/7 44 (a)-(d) conduct, admissions by silence. Reed v. McCord, 160 N.Y. 330 (1899);

U.S. v. Hoosier, 542 F.2d 687 (6th cir. 1976); La Buy excerpt; "The
Gospel According to Luke"; Stephen Birmingham AOur Crowd@ excerpt;

"Admission By Silence - Another View"; State v. Carlson, 311 Or. 201

(1991); Hypos, p.243; La Buy excerpt.

24 W 244- 3B2 801(d)(2) . Hearsay exceptions - admissions by party opponent, admissions by

3/9 64 (d) & (e). agent (& co-conspirator). Mahlandt v. Wild Canid Survival & Research

Center, Inc., 588 F.2d 626 (8th Cir. 1978); Hypos, pp. 247-48; Big
Mack Trucking Co. Inc. v. Dickerson, 497 S.W.2d 283 (Tex. 1973);
Sabel v. Mead Johnson & Co. 737 F. Supp. 135 (2nd cir. 1990) U.S. v.
DiDomenico 78 F. 3d. 294 (7th cir. 1996); U.S. v. Goldberg, 105 F.3d
770 (1st Cir. 1997); U.S. v. Doerr, 886 F.2d 944 (7th Cir. 1989);

Bourjaily v. U.S., 483 U.S. 171 (1987).

25 Th 244- 3B2 801(d)(2) Same as last class.

3/10 64 (d) & (e).

26 M 264- 3B3 804(b)(1) Hearsay exceptions - former testimony. Travelers Fire Insurance Co. v.

3/14 75 Wright, 322 P.2d 417 (Okl. 1958); Note, issue preclusion; Note,
predecessor in interest; U.S. v. Salerno, 112 S.Ct. 2503 (1992). Hypos,

pp. 274-75.

Hearsay exceptions - declarations against interest. State v. English, 159

27 W 275- 3B4 804(b)(3)
S.E. 318 (N.C. 1931); G.M. McKelvey Co. v. General Casualty Co. of
3/16 87 &
America, 142 N.E.2d 854 (Ohio 1957); U.S. v. Barrett, 539 F.2d 244
p. 404
(1st Cir. 1976); Williamson v. U.S., 512 U.S. 594 (1994); Hypos, p. 287.

see reference to Lilly v. Virginia, 527 U. S. 116 (1999) in Confrontation

note, at p. 404.

11
Ses# Date Pages Chap FREs Description

28 Th Midterm examination.

3/17

29 M 288- 3B5 803(3) Hearsay exceptions - state of mind of declarant. Adkins v. Brett, 184

3/21 311 Cal. 252 (1920); Hypos, p. 292; Mutual Life Insurance Co. of NY v.

Hillmon, 145 U.S. 285 (1892); Shepard v. US, 290 U.S. 96 (1933);
Hypos, p. 298; U.S. v. Pheaster, 544 F.2d 353 (9th Cir. 1976). Hypos,

p. 304. Zippo Manufacturing Co. v. Rogers Imports, Inc., 216 F.Supp.

670 (S.D.N.Y. 1963); Hypos, pp. 310-11.

30 W 3B6 803(4) & Hearsay exceptions - Medical Diagnosis or Treatment. "Emerging

311-14
3/23 &8 801(d)(1) Problems@; Hypos, p. 314. Hearsay exceptions - prior identification.
&
Weinstein's Evidence; Hypos, pp. 322-23; US v. Owens, 484 U.S. 554
321-
(1988); Hypos, p. 326.

31 Th 326- 3B9 803(5) Hearsay exceptions - past recollection recorded. Baker v. State, 35

3/24 37 Md.App. 593 (Md. Ct. Spec. App. 1977); Hypo, p. 337.

32 M 338- 3B10 803(6), Hearsay exceptions - business records. Maryland excerpt; Johnson v.

4/4 62 803(7) & Lutz, 253 N.Y. 124 (1930); U.S. v. Vigneau, 187 F.3d 70 (1st Cir.
805 1999); Hypos, pp. 260-61; U.S. v. Duncan, 919 F.2d 981 (5th Cir.

1990); Williams v. Alexander, 309 N.Y. 283 (1955); Hahnemann

University v. Dudnick 678 A. 2d. 266 (1996); Note: Potamkin Cadillac

Corp. v. B.R.I. Coverage Corp., 38 F.3d 627 (2d Cir. 1994); Palmer v.
Hoffman, 318 U.S. 109 (1943); Lewis v. Baker, 526 F.2d 470 (2nd Cir.
1975); Sana v. Hawaiian Cruises, Ltd., 181 F.3d 1041 (9th Cir. 1999).

33 W 338- 3B10 803(6), Same as last class

4/6 62 803(7) &

805

34 Th 338- 3B10 803(6), Same as last class

4/7 62 803(7) &

805

35 M 362- 3B10 803(6), Hearsay exceptions - public records; Beech Aircraft Corp. v. Rainey, 488

4/11 84 & 11 803(7), U.S. 153 (1988); U.S. v. Oates, 560 F.2d 45 (2nd Cir. 1977); Hypo, p.

12
Ses# Date Pages Chap FREs Description

803(8), 375; U.S. v. Grady, 544 F.2d 598 (2nd Cir. 1976); Hypos, pp. 376-77.

803(10), Hearsay exceptions - misc. Stroud v. Cook, 931 F.Supp. 733 (D. Nev.

803(22) 1996); Comments; Wellman excerpt; Note: Hearsay exceptions for

statements describing child or spousal abuse.

36 W 389- 3C 807 The future of hearsay. McCormick excerpt; The British Solution; Turbyfill

4/13 98 v. Int'l. Harvester Co., 486 F.Supp. 232 (E.D. Mich. 1980); Zenith Radio
Corp. v. Matsushita Electrical Industrial Co., Ltd., 505 F.Supp. 1190 (E.D.
Pa. 1980); Note: "Emerging Problems".

37 Th 398- 3C Sixth Phillimore excerpt: Sir Walter Raleigh’s Case; Ohio v. Roberts, 448 U.S.

4/14 424 Amend 56 (1980); NOTE: Cases interpreting Roberts; Crawford v. Washington,

541 U.S. 36 (2004); Davis v. Washington, 547 U.S. 813 (2006);

Melendez-Diaz v. Mass., ___ U.S. ___ 2009 WL 1789468 (2009)

Exculpatory evidence: Holmes v. South Carolina, 547 U.S. 319 (2006);
38 M 424- 3C & Sixth
Green v. Georgia, 442 U.S. 95 (1979). Forfeiture of Objections: Kirst
4/18 46 4 Amend
excerpt; Giles v. California, 128 S.Ct. 2678 (2008); Friedman excerpts;

Fighting Fire With Fire: Inadmissible Evidence as Opening the Door;

NOTE on Clark v. State

39 W 448- 5A- 607, 611, Impeachment & cross-examination; contradiction, character of W (prior

4/20 82 B(1), & 608(b) bad acts). Kaplan & Waltz excerpt; Mathew excerpt; "Susanna & the

5B(2 Elders"; "Gilbert Without Sullivan"; Mathew excerpt; Keeton excerpt

) Maguire excerpt U.S. v Hogan, 763 F.2d 697 (5th Cir. 1985); Ohio

(a) Rules of Evidence; State v. Oswalt, 62 Wn.2d 118 (1963); Questions;

& U.S. v. Copelin, 996 F.2d 379 (D.C. Cir. 1993). Impeachment &
(b) cross-examination; character of W (prior bad acts & psychiatric

condition). US v. Owens, 21 M.J. 117 (1985); Wellman excerpt; House

excerpt; Note on extrinsic evidence; Questions; United States v. Drake

932 F. 2d. (10th cir. 1991); U.S. v. Saada, 212 F.3d 210 (3d Cir.

2000).

40 Th 482- 5B(2 608 & Impeachment of W (prior convictions & bad reputation). Reasoning about

4/21 507 ) 609 Defoe; U.S v. Sanders, 964 F.2d 295 (4th Cir. 1992); Note; Calif. Const.

(c) & Art. 1. Sec. 28; US v. Wong, 703 F.2d 65 (3rd Cir. 1983); U.S. v.

(d) Brackeen, 969 F.2d 827 (9th cir. 1992); AAbby=s View@; Hypos, p. 495;
Note re Green v. Bock Laundry Machine Co., 490 U.S. 504 (1989);

13
 Ses# Date Pages Chap FREs Description

Luce v. US, 469 U.S. 38 (1984); Note re Ohler v. U.S., 529 U.S. 753
(2000) ; Mathes & Devitt excerpt; Hypo, p. 541. Psychiatric Condition:

U.S. v. Lindstrom, 698 F.2d 1154 (11th Cir. 1983); 1950 Annual Survey
excerpt; "Witness' Claim That He Once Was Harlow. A

41 M 507- 5B(3 613, Impeachment - prior inconsistent statements & bias. Coles v. Harsch,

4/25 26 )& 801(d) 129 Or. 11 (1929); Goldstein excerpt; Park excerpt; Morgan excerpt;

(4) (1), & Tome v. United States 513 U.S. 150 (1995) Minnesota Rules on
806 Evidence excerpt; Hypos, pp. 519-20. U.S. v. Abel, 469 U.S. 45

(1984); Waltz excerpt. Hypos, pp. 525-26.

42 W
Catch-up and review
4/27

Final Examination: Friday, May 6, 2011, 1:00 - 5:00 p.m.

14
 CRIMINAL TRIAL CHECKLIST - FEDERAL

1. Jacket brought in and case called.

2. Request disposition of pre-trial matters (including renewal of certain motions.)

3. Jury panel enters.

4. Both sides announce ready.

5. Jury panel sworn.

6. Voir dire.

7. Challenges--peremptory and for cause.

8. Alternates--challenges.

9. Jury sworn.

10. Rule on witnesses.

11. Request Jenks Act statements.

12. Opening statement by government.

13. Defense opening statement or reservation.

14. Government's case-in-chief.

15. Move admission of documents and other exhibits.

16. MOTION FOR JUDGMENT OF ACQUITTAL.

17. Defense opening, if reserved.

18. Defense case-in-chief.

19. Move admission of documents and other exhibits.

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20. RENEWAL OF MOTION FOR JUDGMENT OF ACQUITTAL.

21. Government's rebuttal case.

22. Government's closing argument.

23. Defense's closing argument.

24. Government's rebuttal.

25. Judge's instructions to the jury.

26. Objections to instructions.

27. Deliberation.

28. Verdict.

29. POLL JURY, IF GUILTY.

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 STEPS FOR ADMISSION OF EXHIBITS*

1. Have the exhibit marked for identification.

2. Show the exhibit to opposing counsel.

3. Ask the court's permission to approach the witness.

4. Show the exhibit to the witness.

5. Lay the foundation for the exhibit:

a. Show that it is relevant

b. Show that it can be identified

c. Show that the witness recognizes the exhibit

d. Show that the witness knows what the exhibit looked like on the relevant
date

e. Show that the exhibit is in the same or substantially the same condition

6. Offer the exhibit in evidence.

7. Have the exhibit marked in evidence.

8. Have the witness use or mark the exhibit, if appropriate.

9. Obtain permission to publish the exhibit to the jury.

10. Publish the exhibit to the jury.

*Adapted from Mauet, Fundamentals of Trial Techniques, Chapter 5 (3d ed. 1992).

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