Harvard Law School
Program of Instruction for Lawyers

Recent Developments in the Law of Evidence and Proof

Visiting Professor Peter L. Murray

June 21-25, 1999
11:30 a.m. - 1:00 p.m.
Hauser 102

Course Syllabus and Assignments

This course will consider recent developments in the law of Evidence in five different topic areas, Character Evidence, Expert Testimony, Hearsay, Trial Presentations, and the Role of Evidence Rules and Fact Finder Function.

The materials will consist of certain of the Federal Rules of Evidence, reported cases, text selection, and problems. There will also be a computer assisted exercise to be performed at the Educational Technology Department in Holmes Hall.

Most, but not all, of the rules, cases and problems can also be found in Green & Nesson, Problems, Cases and Materials on Evidence (2nd Ed. 1994), and Green, Nesson and Murray, 1997 Evidence Supplement. Copies of these books are on reserve at the Library and need not be purchased for the course.

The web site also will contain periodic updates of course materials, copies of the presentation slides used during class and a discussion forum for electronic group discussion of some of the issues raised in the course. Please consult the Web site regularly before and during the course session.

In anticipation of each class there are several problems assigned. In preparation for class please consider these problems and be prepared to discuss them in class. Please note that the assignment for Wednesday, June 23 will be an interactive computer hearsay exercise to be performed on Monday or Tuesday at the Educational Technologies Department in Holmes Hall.

These materials will be updated and supplemented before and during the course session!

Course Schedule, Syllabus and Assignments

I. Monday, June 21, 1999 A. Reading Assignment for this Class

1. Federal Rules of Evidence 404, 405, 412, 413, 414, 608
2. People v. Zackowitz
3. United States v. Danzey
4. State v. Tucker
5. Doe v. United States
6. State v. Conlogue
7. State v. Saldahna
8. State v. Chapple

B. Topic for Discussion

Character Evidence - When, in what form, and for what purposes may evidence of a person's "character" or prior actions be received in evidence at trial? Use of evidence of "prior acts" for limited "non-propensity" purposes. Character evidence and impeachment of credibility. The growing use of evidence of psychological condition.

C. Problems for Discussion

1. Problem 1 - Judgment of Solomon

II. Tuesday, June 22

A. Reading Assignment for this Class:

1. Federal Rules of Evidence 701, 702, 703, 704, 705, 706
2. United States v. Frye
3. Daubert v. Merrell Dow
4. Joiner v. General Electric Corporation
5. Kumho Tire Co. v. Carmichael
6. State v. Williams
7. Wells by Maihafer v. Ortho Pharmaceutical Corp.
8. Federal Judges v. Science

B. Topic for Discussion

Expert Testimony - Daubert v. Merrell Dow and its progeny. Proposed rules changes and possible future developments in the law of expert testimony.

C. Problems

  1. Fryed by Frye
  2. The Dowser
  3. Good Buddy
  4. Abortion or Manslaughter
  5. Engineer's Investigation
  6. Pediatric Poison
  7. Medical Malpractice - VIII-11
III. Wednesday, June 23 A. Reading Assignment for this Class
  1. Federal Rules of Evidence 801-807.
  2. Dallas County v. Commercial Union
  3. Brookover v. Mary Hitchcock Memorial Hospital
  4. United States v. Garner
  5. Garner v. United States
  6. Idaho v. Wright
  7. Washington v. Swan
  8. Charles Nesson Takes a Shot at the Paradox Based on an Alternative Reading of Raleigh's Case

B. Topic for Discussion

Hearsay - Does the "hearsay rule" really make a difference? Creative new hearsay exceptions. Hearsay and the Confrontation Clause.

C. Computer Assisted Instruction

For this class there is a special assignment. Please organize yourselves in groups of 2-3 and go to the Educational Technology Department (Holmes Hall, Ground Floor) between the hours of 9:00 a.m. and 5:00 p.m. to perform the computer-video assisted exercise of Francis v. Spindler. (Several groups can be accomodated at one time) The exercise will take about 1 hour.

IV. Thursday, June 24

A. Reading Assignment for this Class

  1. Federal Rules of Evidence 901, 1006
  2. Maine Rule of Evidence 616
  3. D'Angelo, The Snooop Doggy Dogg Trial: A Look at How Computer Animation Will Impact Litigation in the Next Century, 32 U. San Francisco L. Rev. 561 (1998).
  4. Sisk v. State
  5. State v. Tatum

B. Topic for Discussion

Trial Presentations - New developments in illustrative aids, computer simulations, computer evidence. Digital technology in trial presentations.

C. Problems

  1. The Case of the Hidden Camera
  2. Digital Doubts
V. Friday, June 25

A. Reading Assignment for this Class

1. Tanner v. U. S.

2. People v. Collins

3. Nesson, The Evidence or the Event? On Judicial Proof and the Acceptability of Verdicts

4. Excerpts from Langbein, The German Advantage in Civil Procedure

B. Topic for Class Discussion

Evidence Rules and the Adversary System - Logical and intuitive proof, prejudice and jury decision-making. Possible new developments in the law of evidence and proof in a shrinking world. Common law and civil Law concepts of evidence and proof. The role of jury trial. A world without rules of evidence?

C. Problems

  1. Prison Yard
  2. Blue Bus


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