Evidence: Law 6330 (4 Credits)

LAW 6330—Section 3148
Professor Pedro A. Malavet
Fall 2013

Monday & Wednesday
3:00-4:50 p.m.

Room 285B

LAW 6330—Section 1233
Professor Pedro A. Malavet
Spring 2014

Tuesday & Thursday
3:00-4:50 p.m.

Room 285C

Course Description

A general course on Evidence focusing on admissibility at trial under the Federal Rules of Evidence. Four (4) Credits.


Review Session: Wednesday, April 23, 2014

  • Review Session:
    • Date: Wednesday, April 23, 2014
    • Time: Noon to 5:00 p.m.
    • Room: 285C
  • 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 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.
  • How to Take An Exam From Me
  • Exam Date and Time:
    • Thursday, May 1, 2014
    • 1:00 to 5:00 p.m.
  • EXAM ROOMS: 359 & 360

Spring 2014 Practical Project
Due Monday, March 31, 2014
Returned Thursday, April 17, 2014

  • The Practical Project for Spring 2014 is here [click here]
  • It is last year's exam fact-pattern, converted from an appeal to a Motion in Limine as usual.
  • You will upload your Motions through eLearning/SAKAI on or before 5:00 p.m. on MONDAY, MARCH 31, 2014.
  • NEW: A short video tutorial on how to use WestlawNext to get forms and other materials on Motions In Limine: http://vimeo.com/uflic/evidence by Research Librarian Jennifer Wondracek

Exam Review for Fall 2013 Grades

  • The Feedback Memo is here.
  • My assistant Ms. Kays has the exams and you may pick them up from her. Unfortunately, she is out today, so please wait until Monday the 10th to start coming by her office.

Fall 2013 Practical Project
Due November 8—Returned Nov. 26

  • The Practical Project for Fall 2013 is here [click here]
  • It is last year's exam fact-pattern, converted from an appeal to a Motion in Limine as usual.
  • You will upload your Motions through eLearning/SAKAI on or before 5:00 p.m. on FRIDAY, NOVEMBER 8.
  • NEW: A short video tutorial on how to use WestlawNext to get forms and other materials on Motions In Limine: http://vimeo.com/uflic/evidence by Research Librarian Jennifer Wondracek
  • RETURNED: The graded practical projects were returned through eLearning on November 26 together with the pass/fail grade, I posted a detailed grading sheet (rubric) and I included short commentary on each submission on the grading page.
    • The eLearning grading page is found in the same location as the assignment. However, instead of seeing the submission page, each student will see a grade return window that shows the student's identification information, grade, original submission, the assignment —with the grading sheet now attached— and comments below that.

First Day Assignment: Spring 2014

  • The assignments for the class sessions for our first week of the Spring 2014 are posted below
  • Future assignments will be posted in the Assignments and Notes Page.
    (This page has now been updated for the entire Spring 2014).
  • The required class materials are: (1) Christopher B. Mueller and Laird C. Kirkpatrick, EVIDENCE UNDER THE RULES (7th. ed., Aspen Law & Business 2011; ISBN: 978-0-7355-0747-0); (2) Mueller & Kirkpatrick, 2013: Federal Rules of Evidence: With Advisory Committee Notes and Legislative History (Aspen Law & Business 2013; ISBN: 978-14548-2794-8). Please note that the new editions account for new cases in the confrontation area as well as the restyling of the Federal Rules of Evidence. Also, because the examination is “open rules,” you must purchase the designated Federal Rules of Evidence supplement. No other supplement will be allowed in the examination room.

Week One: January 7-9, 2014

    • Chapter: 1.0 Evidence Law and the System
    • Tuesday, January 7, 2014
      • Session 1-A
        • Class rules, testing, grading and administrative matters.
        • Review the Syllabus.
      • Session 1-B
        • 1.1 Introduction: Why Evidence & The Trial, 1-18
        • Pay special attention to What is the Record?, 12-18
    • Thursday, January 9, 2014
      • Session 2-A
        • 1.2 Making the Record & Admitting Evidence, 19-29
        • Problem 1-A: How did it happen? (p. 25)
      • Session 2-B
        • 1.3 How Evidence is Excluded, 19-48
        • Consequences of Evidential Error, 41-47
        • Obtaining Review of Evidence Points, 47-48
        • Problem 1-B: He didn't object! (p. 46)

Feedback Memo for Fall 2013 Will be Posted Here

  • Pending

Exam Review Starts February 7, 2014

  • As I indicated in the examination, exam review will start after I post the feedback memorandum on the course website on Friday, February 7, 2014.
  • Instructions for the review process will be included in the memorandum.

Power Point PDFs

I will post PDF files with the Power Point slides that I use in class in the eLEARNING/SAKAI course page. Click the eLearning link on the banner at the top of this page to login and download the files. The files are in the “Resources” section of the course page.

I will save handouts with six slides to a page to make the files more manageable. The files are text-searchable and you may also cut and paste from them to your outlines and notes.

The text is already posted in the notes pages, but one student asked if I could post the slides and I have no problem with that.

“The Forest”

My general outline to deconstruct evidence problems in class —and in the exam.


  • 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.

Put Another Way

    ---> Preliminarily:
    Who Decides?
    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


  • 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.


Examination Feedback Memoranda

Practical Projects

Practical Project Feedback Memoranda

Handouts & Resources