Evidence Syllabus Spring 2021 PDF

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Evidence Spring 2021 Prof. Martha R. Hochberger

EVIDENCE SYLLABUS Spring 2021 PROFESSOR MARTHA R. HOCHBERGER Office: C 327 212-431-2100 x 4140; [email protected] Office Hours Tuesdays, 9-11 am or by appointment I make every effort to be available as much as possible. While I am teaching remotely, email me for an appointment. Once we are back on campus, either email me or stop by my office to see if I am available. Class Times and Location Tuesday and Thursday, 11:15 a.m. to 12:30 p.m., Room WA10 Faculty Assistant Stan Schwartz 212-431-2168; [email protected] Required Texts Lempert, Gross, Liebman, Blume, Landsman & Lederer, A Modern Approach to Evidence – Text, Problems, Transcripts and Cases (5th Edition) (West Academic Publishing) (“Text”) The text is available both with and without some optional digital features (called Casebook Plus) that cost a little extra and that allow you to download the text and some supporting materials. The digital add-ons are not required for the course. A copy of the current Federal Rules of Evidence (with Advisory Committee Notes) (“FRE”) There are many print versions The FRE (with Advisory Committee Notes) can also be found on the web, where it is free at: www.law.cornell.edu/rules/fre Course Policies, Procedures, Goals, and Requirements Online etiquette Please note the following guidelines, which are designed to maintain an effective classroom experience:  The NYLS attendance rules apply; attendance will be taken at the beginning of each class on Qwickly  You must have your video on throughout the class; mute your microphone unless you are speaking  Feel free to use a background that affords you privacy, but does not distract  You should be in a space without any visual or auditory distractions and not in your bed

Evidence Spring 2021 Professor Martha R. Hochberger

 Focus on the task at hand; no emailing, texting, shopping, or other distractions during class  Appropriate attire should be worn, that means the same as you would wear for an in-person class  Please have assignment instructions and other relevant class materials available for use during class and make every effort to participate  Position your camera to avoid glare in the background; only you should be in front of the camera, with your face clearly visible from good lighting  The class is being recorded through Blackboard for educational purposes only; do not record the class yourself or use the Blackboard recording for any purpose other than our class  The online class is an excellent opportunity to observe, assess, and refine how you come across in a professional setting; this is a great opportunity to practice professionalism  You may want to use a second device like a tablet or a phone to view documents  Feel free to wear headphones to restrict ambient noise; I will probably wear them. Attendance Attendance is mandatory in all law classes and will be recorded for every class. Except for excused absences (those based on documented illness, personal or family emergency, or mandatory religious observance, and communicated to me as soon as is practical) attendance and attentive participation is a minimum requirement for successful completion of the course. It is your responsibility to check in on Qwickly. I cannot verify when students attend class and will not be disposed to changing the attendance records for failure to check in. If you have a problem checking in, let IT and me know, but first try a different browser. I have found Chrome to be the most useful browser for NYLS functionality. Please note that law school classes missed because of work or job search obligations cannot be considered excused. Arriving more than 10 minutes late for class or leaving more than 10 minutes early is considered an absence. Your grade in this course may be reduced if you have more than 3 unexcused absences. Per ABA and NYLS rules, your grade MUST be reduced if you miss more than 10% of class meetings (that is, 4 classes). If you miss more than 6 class meetings for any reason, even a very good one, you must be dropped from the class. In short, if you need to miss class, tell me. If you need to miss a lot of classes, speak with your academic advisor as soon as possible .

Class Participation Class participation is required. I expect you to be prepared for every class. I encourage voluntary participation, but will also call on students. There is no passing in this class. Course Goals and Objectives

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Evidence Spring 2021 Professor Martha R. Hochberger

The goal of this course is to help you achieve a working understanding of the Federal Rules of Evidence, the theory behind the many rules, the rationale for the many rules, and, most importantly, how the rules apply in practice. By the end of the course, you should have a basic understanding of the rules and how to apply them. More specifically, my goals and objectives in teaching this course include helping you get to a place where you:  Have a basic understanding of the Federal Rules of Evidence;  Understand the theory behind both the rules generally and each individual rule;  Understand the rationale or policy behind both the rules generally and each individual rule;  Can articulate the Rules of Evidence accurately, clearly, and precisely;  Have a basic understanding of how Evidence is used in a proceeding;  Can solve problems and apply the Rules of Evidence to varied factual and legal problems; and  Understand the critical role the Rules of Evidence play in our system of justice. Blackboard and E-mail You are responsible for checking both your NYLS email and the course Blackboard page daily. I will use both of these tools to communicate with the class, post any changes to this syllabus, and convey other important information. I check my email regularly and make every effort to respond in a timely fashion during work hours unless there is an emergency. Unless it is an emergency, I do not respond to emails after work hours or on the weekends and holidays. If you encounter any difficulties with the Blackboard site for this course, please contact the NYLS Help Desk: (phone) 212-4312316; (e-mail) [email protected] Exams & Grades Midterm Exam There will be a 75 minute in-class midterm consisting of multiple choice questions. Your grade on the midterm will count as 20% of your grade for the course overall. Final Exam There will be a three and a half hour in-class final exam consisting of multiple choice questions and essays. Your grade on the final will count as 80% of your grade for the course overall.

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Evidence Spring 2021 Professor Martha R. Hochberger

Other Grading Factors If you participate actively, thoughtfully, and consistently throughout the semester, I may increase your grade by a third of a letter grade (e.g., from B+ to A-). Irregular attendance, failure to participate, and lack of professionalism may result in a reduction of your grade.

Assignments All reading and problem assignments can be found in the Lempert textbook and the FRE. There may be some other short assignments, as well. I may post quizzes on Blackboard from time to time. If I do, I will notify you in class, in an email blast and there will be an announcement on Blackboard. Introduction to Evidence (Classes 1 & 2 – January 19 & 21) Intro to the Course The Federal Rules of Evidence Competency and the Requirement of Personal Knowledge Lay and Opinion Testimony Examination of Witnesses – Direct and Cross-Examination Preparation for Class Text, 1-15; 141-93 FRE 101-06; 601-03; 611; 701; 1101 Problems II-1; II-2; II-8 Relevance The Meaning(s) of Relevance (Classes 3 & 4 – January 26 & 28) Introduction to Relevance Materiality Circumstantial and Direct Evidence Conditional Relevance Credibility FRE 403 Balancing Preparation for Class Text, 215-43 FRE 401-403 Problems III-5; III-6 Relevant but Inadmissible (Classes 5 & 6 – February 2 & 4)

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Evidence Spring 2021 Professor Martha R. Hochberger

Overview Subsequent Remedial Measures Offers to Compromise, Plea Discussions and Guilty Pleas Payment of Medical Expenses, Liability Insurance and Similar Happenings Preparation for Class Text, 287-325 FRE 407-411 Problems IV-1; IV-3; IV-6; IV-7; IV-8; IV-9 Character and Credibility Intro to Character; Character in Issue; The Propensity Rule (Classes 7-9 – February 9, 11, & 18) Class does not meet on February 16 when Monday classes meet. Character in Issue Propensity Evidence Other Bad Acts Evidence (permissible and impermissible uses) Preparation for Class Text, 345-94 FRE 404-406 Problems V-1; V-3; V-4; V-5; V-7; V-9 Exceptions to the Propensity Rule (Class 10 – February 23) Criminal Defendant’s Good Character Alleged Victim’s Bad Character Preparation for Class Text, 394-410 FRE 404, 405 Problems V-21; V-22: V-23 Impeachment (Classes 11-13 – February 25, March 2 & 4) Impeachment in General Impeachment by Propensity Evidence Other Forms of Impeachment

Preparation for Class

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Evidence Spring 2021 Professor Martha R. Hochberger

Text, 411-71 FRE 607-610; 612-613 Problems V-25; V-26; V-27; V-30; V-31; Hearsay (Classes 14-23 – March 9 to April 15) Intro to Hearsay And The Basic Rule Against Hearsay (Classes 14 & 15 – March 9 & 11) Definition Policy The Basic Rule Against Hearsay Preparation for Class Text, 547-79 FRE 801-02, 805 Problems: VI-3 (1-18) NO CLASSES SPRING BREAK MARCH 15-19 Exclusions from the Hearsay Rule: Admissions (Classes 16 & 17 – March 23 & 25) Personal Admissions Adoptive, Authorized and Vicarious Admissions Preparation for Class Text, 589-611 FRE 801 Problem VI-18; VI-20 Exclusions from the Hearsay Rule: Certain Prior Statements of Witnesses (Class 18 – March 30) Sworn Prior Inconsistent Statements Prior Consistent Statements to Rebut Claims of Recent Fabrication Prior Identifications Preparation for Class Text, 757-71 FRE 801 Problem VI-119

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Evidence Spring 2021 Professor Martha R. Hochberger

MIDTERM EXAM (Class 19 – April 1) Hearsay Exceptions (Class 20 – April 6) Present Sense Impressions Excited Utterances Preparation for Class Text, 621-38 FRE 803 (1) and (2) Problem VI-42

Hearsay Exceptions (Cont’d) (Class 21 – April 8) Statements of Physical Condition Statements of Then-Existing State of Mind Statements Made for Medical Diagnosis or Treatment Preparation for Class Text, 638-53 FRE 803 (3) and (4) Problems VI-45 Hearsay Exceptions (Cont’d) (Class 22 – April 13) Recorded Recollection Business Records Public Records Preparation for Class Text, 662-81 FRE 803 (5), (6), (7) and (8) Hearsay Exceptions Requiring Unavailability; The Residual Exception (Class 23 -April 15) The Meaning of Unavailability Former Testimony Dying Declarations Statements Against Interest The Residual Exception

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Evidence Spring 2021 Professor Martha R. Hochberger

Preparation for Class Text, 702-26; 746-54 FRE 804 (a), (b)(1), (b)(2) and (b)(3); FRE 807 The Confrontation Clause (Class 24 – April 20) The Sixth Amendment Relationship to the Hearsay Rule Preparation for Class Text, 811-86 Problem VII-2 (P. 858) Privileges (Class 25 – April 22) Privileges Generally Marital Privileges The Attorney-Client Privilege Preparation for Class Text, 929-955; 982-84; 1034-46 FRE 501 Problems VIII-33 (p. 1014) Expert Testimony (Class 26 -- April 27) Preparation for Class Text, 1125-27; 1134-66 FRE 701-06 Problems IX-2 Exhibits (Class 27 – April 29) Types of Evidence Authentication The Best Evidence Rule Preparation for Class Text, 1269-1309 FRE 901, 902, 1001-04

Final Review (Class 28 --May 4)

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Evidence Spring 2021 Professor Martha R. Hochberger

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