The University of Florida
Fredric G. Levin College of Law 
Evidence § A
LAW 6330-Sec. 3148

Fall 2011

Professor Pedro A. Malavet

Description: Four Credits. A general course on Evidence focusing on admissibility at trial under the Federal Rules of Evidence.

MATERIALS

Course Description and Rules

Assignments/
Notes

Exams/
Feedback

Projects/
Feedback

Graphics/ Handouts

FALL 2011 EXAM REVIEW IS HERE!

(Update of Tuesday, February 9, 2012)

The Exam and Feedback Memo are here.

[Click here for the exam] [Click here for the Feedback Memo]

 

Latest Course News

(Update of Thursday, November 3, 2011)

I have added a sample form of motion to the practical project (it is at the very end of the page).
I have also clarified that November 10, 2011 is THURSDAY not Wednesday.
Updated reading assignments should be posted by 5:00 p.m. today.

You have probably noted that motions come in many varieties. One common variation is to write "allegations of fact" and follow that with "memorandum of law". This format tracks the form of many orders issued by trial court judges that first make "Findings of Fact" and follow that with "Conclusions of Law". That is a perfectly common and thus perfectly acceptable form for your motions.

However, one of the pedagogical benefits of the project is for you to anticipate what a good exam answer essay would look like. A good answer to my exam would NOT separate the facts from the law in the manner I describe in the previous paragraph. A good essay would incorporate facts and law at every stage of the analysis in a cohesive argument. That is the kind of exam answer that I grade highly.

 

(Update of Monday, October 31, 2011)

I have updated the Practical Project to clarify that the moving party has not yet gone to trial. A few of his co-defendants have chosen to plead out, but the moving party is going to trial.

I have also posted in Sakai a chapter on basic and constitutional criminal procedure from my the book Introduction to the Law and Legal System of the United States that I use with my LL.M. students. I hope that this very basic material will help you to put the Crawford doctrine in particular in its proper context.

 

 

(Update of Monday, October 17, 2011)

The Practical Project for FALL 2011 is here. [Click here to view project].

 

(Updated September 9, 2011)

Setting up VPN

Dear students: the Virtual Private Network service to access WiFi at the College of Law may make it easier for you to establish a wifi connection during class. VPN also has other benefits, especially when you are connecting from outside University grounds. Please visit this site for setup instructions:

http://net-services.ufl.edu/provided_services/vpn/anyconnect/

 

(Update posted September 2, 2011)

Please make sure to enter your first and last names in your RWPOLL login window as they appear on ISIS; that way my secretary will be able to match it to the official roll.

By the way, the system logs your presence upon login, regardless of whether or not you vote on polls. However, please remember that I will count poll participation as part of your class-participation obligations.

Lastly, do not worry about device IDs. I just found out that the SAKAI system pulls that information directly from RWPOLL automatically. Therefore, as long as you are logged into RWPOLL and have entered the Evidence session ID, or if you have an operational clicker that is registered in the SAKAI course page, you are fine.

 

You MUST Complete Your Registration
(Posted August 28, 2011)

Dear Evidence Class: As of this morning, only 8 students remained unregistered for Turning Point. Please finish your registration before tomorrow's class. You should have received an automatic email reminder to register from the SAKAI system today.

Starting on Monday, August 29, 2011, attendance will be taken with the Turning Point system. Accordingly, any student who has not completed their device registration on the SAKAI system will be deemed to be absent from the pertinent class periods.

 

THANK YOU!

Dear Class:

I am very grateful for your patience and cooperation with the adoption of the Turning Point system. I also appreciate the willingness to assist your classmates displayed by those of you have successfully managed the licensing system.

We are down to only 13 students who have not been able to register their device ID on SAKAI.

When trying to activate your license after you get the confirmation email, be sure to logout from your guest login and start a new session. If you get the error message that the number of permitted connections has been exceeded when attempting to access a polling session, that means that your license has not been properly activated yet. The system only limits guest logins, i.e., unlicensed logins.

So, we will use the University's Turning Point system to poll during class. This will also allow you to enter your attendance automatically at the start of each hour, rather than waiting to sign a printed roll. Please visit www.rwpoll.com and license your account or purchase a clicker online (use the Turning Point link above; it is possible that some local stores sell them, but the Tech Hub told me that they did not have them).

1. Visit the website and click the "Create Account" link
ALTERNATELY: You may download the FREE APP for smart phone, key word "RESPONSEWARE"

2. Click the "Get a license code" link.

(The UF School code is "4ufl" (without the quotes))

3. Fill in the email, password and security image information.

4. Click "Create Account".

5. Hopefully by now you are ready to participate in online polling and automatic attendance-taking.

Trouble getting your textbook? Check with local bookstores

As of Monday, August 22, 2011, the College of Law Bookstore has copies of our casebook
and Wilbert's still has them in stock as well.

I have placed the first chapter of the text in the Legal Information Center's electronic reserve system just in case.

Required Texts:

(1) Christopher B. Mueller and Laird C. Kirkpatrick, EVIDENCE UNDER THE RULES (7th. ed., Aspen Law & Business 2011);
(2) Mueller & Kirkpatrick, Federal Rules of Evidence: With Advisory Committee Notes and Legislative History (Aspen Law & Business 2011).

The casebook is mandatory, and you must have the seventh edition. You must also purchase the current Rules Supplement, which will be the only book allowed in the exam room and it includes the new restyled Federal Rules of Evidence, as well as a comparison chart to the older version of the FRE.

For our first session on Monday, August 22, 2011, review the course description and rules and read pages 1-18 of the casebook. You may review reading assignments in the Assignments and Notes page.

Second session: Tuesday, August 23, 2010, first hour: Pages 19-29, Problem 1-A.

Second session: Tuesday, August, 23, 2010, second hour: Pages 29-48, Problem 1-B.

Raising your hand is so 2001!

I will use the University's Turning Point polling system to collect your answers to in-class questions. The system allows you to answer questions via computer webbrowser, smartphone app or using a dedicated "clicker". Ideally, you could use this system to enter your daily attendance rather than waiting for the sign up sheet to reach you, but at the very least I will use it for instant polling during class sessions.

For more information, visit the following sites:

http://www.rwpoll.com
(polling login page)

http://classrooms.at.ufl.edu/crs.php
(University Information Page on electronic polling)

http://www.turningtechnologies.com/studentresponsesystems/
(Information from the software and hardware supplier contracted by UF)

FALL 2010 EXAM REVIEW

The feedback memo is here: [click here to see memo]. After you review the memo, you may come by my office during office hours to get your exam (please have your examination number with you). You can make a copy of the exam for your records, but you must return the original to me, as I am required to keep them for two semesters.

After you review the memo and your exam, you may schedule a meeting with me to discuss what you did well and what you might improve upon.

REVIEW SESSION

Friday, December 3, 2010; 1:00 to 4:00 p.m.
Levin Advocacy Center Courtroom

The review session will take place in our regular classroom, the courtroom in the Levin Advocacy Center.

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 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 on Friday.

EXAM ROOMS: Our exam room assignment has been changed to rooms 382, 345 and 270 (handwriting only). ALL students will pick up the exam and receive my instructions in room 382. After that, you may go to the other rooms to complete the exam.

After the review session, I will not answer any substantive questions in any way.

FALL 2010 PRACTICAL PROJECT

The practical project fact-pattern is ready. The exercise is intended to help you understand hearsay and the Crawford doctrine. [click here to review it]

The Legal Information Center put together a basic bibliography of texts and database searches that will assist you in drafting the motion in limine.
[click here to view the bibliography]

White Board PDF

Please [click here] to download the pdf file of the basic white board layout that I am using. I have simplified the graphics to make it more readable.

 

Some Basic Information for our Course


Pattern Jury Instructions

The instructions that are actually given to the jury are very helpful in clarifying evidentiary points.

Click here to view the few instructions that I used in class.

Click here to go the 11th Circuit's website
to download Pattern Jury Instructions

The Two Basic Blackboard Outlines

I was finally able to use a digital camera to take a picture of your blackboard -- thanks to Ms. Amirin and the FLALAW staff--  which allows me to reproduce the basic outlines that I repeatedly use in class. Here they are:

"The Forest "

(my general outline to deconstruct all evidence problems)

From your left to your right, you start with the Preliminary Question:  regular (FRE 104(a)) vs. conditional admissibility (FRE 104(b)). You then move on to Part I:  basic relevance question under FRE 401, which makes the evidence potentially admissible under  FRE 402. Then you move on to Part II: Is there a more specific admissibility or exclusion rule (e.g., FRE  801, FRE 404). If you get past that, then you reach Part III: the FRE 403 balance (unless the rule in part II expressly states otherwise). After Admission: If you admit, you also might still have to consider possible Limiting Instructions under FRE 105 or completeness admissibility under FRE 106, just to name two post admission rules.
 

THE FOREST IN THE FIELD OF EVIDENCE:
---> Preliminarily:
Who Decides? [go]
Judge (FRE 104(a)) or Jury (FRE 104(b))

I. Is the evidence relevant?
[FRE 401] [FRE 402]

II. More specific questions regarding admissibility
e.g. [FRE 404] [FRE 801] [FRE 609]

III. FRE 403
(a) What is the relevant evidence's probative value? [FRE 403]
(b) Is the probative value substantially outweighed by the danger of unfair prejudice (or any of the other five reasons)? [FRE 403]

--->Post-admission:
For what purpose is the evidence admitted?
[FRE 105] This may also affect the 403 balance. (In other words, the limiting instruction may affect the balance.)

[FRE 106] The admission of a document may then allow the admission of the rest or parts of it.

Strength of the Evidence

(the Summary Judgment or Judgment as Matter Law Standard)

[You will probably note that I have digitally-removed the United States flag on the top, left.
I was simply not comfortable putting any words on top of it, especially the word "False"!]

Note that the extreme left (from your perspective, looking towards the board) always represents 0%, meaning that  no evidence at all exists to support the pertinent fact. The start of the blackboard represents the start of the level of proof at which  "Reasonable Minds" can find the fact to exist or not, and the strength of the evidence increases as you move from left to right, reaching the 50% mark in the middle of the two blackboards, and reaching preponderance at the start of the second blackboard. The evidence becomes increasingly strong as you move along this continuum towards the mythical 100% or absolute truth of the fact alleged, which is represented by the extreme right corner of the classroom.

Exams

Examination Feedback Memoranda

Practical Projects

Practical Project Feedback Memoranda

Graphics & Handouts

Policy Notes

Exam Review Procedure
(posted January 16, 2006)

The feedback memo has been posted.
Scroll to the link below, or click here.

Starting Date. As I indicated in the examination itself, I will be available to discuss examination results during the Spring semester, beginning after Tuesday, February 7, 2006. Exams and the Feedback Memorandum will be available beginning on that date. I will post the feedback memorandum in the website and my secretary will have the exams.

Exam Pick-up. You may pick up your exam from my secretary, Mrs. Betty Donaldson, by giving her your exam number and showing your university identification card. You must return the original exam to Mrs. Donaldson, but you may make and keep a photocopy of it.
 
Review Policy. You must review the feedback memorandum before scheduling a meeting with me. Examination review is a good way to learn from your mistakes, and from your successes. I will be happy to sit down and discuss substantive matters with each student. I will first tell each of you what you did right. I will also gladly suggest ways to improve your exam-taking abilities.
 
No Grade Changes. Barring mathematical errors, your grade is not going to be changed. Grading is a time-consuming and difficult process. The only fair way to do it is to grade in the context of each class. I look for a fair overall grade distribution and follow the rank of each student within the class in awarding the final grade.

A note about late arrivals
(posted in 2005)

During the course of the semester I often privately inform a number of students that repeated late arrival to class is unacceptable conduct, as I indicate in the “professionalism” section of my syllabus. 

The most common response to my admonition essentially amounts to: “I could not find parking.” Though most students with whom I spoke already understood this concept, it appears that I nevertheless need to point out that an inability to find parking is not an acceptable excuse for late arrival. The hunt for a parking space is a challenge which all of us who study or work on this campus must face regularly. Therefore, lack of parking is not an emergency that results in a justified delayed-arrival, rather, your lack of planning for the existing challenges of our campus produces unacceptable lateness. Each student is responsible for being in our classroom on time. That means that you must properly plan your schedule so as to arrive in class on time, which includes accounting for the danger of not finding parking minutes before class, the desire to get a drink, or any other regular activity that should be performed prior to taking your seat in the classroom. 

I hereby remind you that I will take note of repeated late arrival to reduce final grades and will consider administrative removal in severe cases. Furthermore, if the matter continues to be a problem, I will change my policy and stop treating job-interviews as excused absences.


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

THIS IS THE END!