Evidence : Problems, Cases and Materials

by Nicolas, Peter

• ISBN13: 9781594600432
• ISBN10: 1594600430
• Format: Hardcover
• Copyright: 2005-06-30
• Publisher: Carolina Academic Pr

Summary

This new casebook provides a comprehensive, problem-based approach to the rules of evidence. Organized around the federal rules of evidence, this casebook is more comprehensive than most in that it provides coverage of every single rule of evidence, down to the most obscure exceptions to the hearsay rule. Yet, through careful case choice and editing, Nicolas has produced a book that can easily be taught from cover-to-cover in as few as three semester hours.Key features of the casebook include 89 in-depth problems that are designed to teach all the nuances of the rules, an enriched section on scientific evidence, application of the rules to electronic evidence, and appellate review of evidentiary rulings. In addition, the casebook incorporates the Supreme Court's recent Confrontation Clause decision in Crawford v. Washington, as well as pending proposed changes to Rules 404, 408, 606, and 609.A separate supplement that includes the federal rules of evidence and selected legislative history will also be available, as well as a teacher's manual that provides suggested answers to the problems in the casebook. Available Supplements: Evidence: Problems, Cases and Materials Document Supplement 2005, 248 pp, paper, ISBN 1-59460-137-2 $28.00

Table of Contents

Preface	xix
Acknowledgments	xxiii
Table of Cases	xxv
Table of Federal Rules of Evidence	xxxix
Relevance	3	(46)
Rule 402: The Gateway to Admissibility	3	(3)
Problem 1-1: The Case of the Missing Cheesecake	4	(1)
Notes and Questions	5	(1)
Defining Relevance: Rule 401	6	(3)
Problem 1-2: Statutory Rape	7	(1)
Problem 1-3: One Too Many for the Road	7	(1)
Notes and Questions	7	(2)
Inferential Relevance	9	(6)
Problem 1-4: Tampering with Evidence	9	(1)
United States v. Dillon	9	(3)
State v. Wisdom	12	(1)
Notes and Questions	13	(2)
Determining Relevance	15	(1)
Problem 1-5: Same-Sex Sexual Assault and Child Molestation	15	(1)
Notes and Questions	16	(1)
Conditional Relevance	16	(3)
Problem 1-6: Green Baseball Cap	18	(1)
Notes and Questions	19	(1)
Pragmatic Relevance: Rule 403	19	(13)
Problem 1-7: I Killed Sally	20	(1)
Problem 1-8: Sexual Assault, Child Molestation, and Grand Theft Auto	20	(1)
Problem 1-9: Pornographic Photographs	20	(1)
Problem 1-10: Videotape	20	(1)
Problem 1-11: Hate Crime	21	(1)
Old Chief v. United States	21	(7)
Campbell v. Keystone Aerial Surveys, Inc.	28	(2)
Notes and Questions	30	(2)
Rule 105: An Alternative to Exclusion	32	(1)
Notes and Questions	32	(1)
Rule of Completeness	33	(1)
Notes and Questions	34	(1)
Relevance of Probabilistic Evidence	34	(15)
People v. Collins	34	(8)
United States v. Chischilly	42	(3)
Notes and Questions	45	(4)
Authentication	49	(32)
Introduction	49	(4)
Ricketts v. City of Hartford	50	(2)
Notes and Questions	52	(1)
Authentication of Physical Objects	53	(5)
Problem 2-1: Coke and Guns	53	(1)
United States v. Cardenas	54	(2)
United States v. Abreu	56	(1)
Notes and Questions	57	(1)
Authentication of Written Documents	58	(8)
Problem 2-2: The Threatening Note	58	(1)
United States v. Scott	58	(3)
United States v. Jones	61	(2)
Notes and Questions	63	(1)
United States v. Kairys	64	(1)
Notes and Questions	65	(1)
Authentication of Audio Recordings, Photographs, and Video Recordings	66	(6)
Problem 2-3: A Picture Is Worth a Thousand Words. . .	66	(1)
Problem 2-4: The Secret Recording	67	(1)
United States v. Rembert	67	(3)
United States v. Tropeano	70	(1)
Notes and Questions	71	(1)
Authentication of Telephone Conversations	72	(2)
United States v. Khan	72	(1)
First State Bank of Denton v. Maryland Casualty Co.	73	(1)
Authentication of Electronic Communications: E-Mail and the Internet	74	(4)
United States v. Siddiqui	74	(2)
United States v. Tank	76	(2)
Notes and Questions	78	(1)
Shortcuts for Authenticating Evidence	78	(3)
Relevance and Prejudice Refined	81	(60)
Evidence of Character	81	(34)
Character of Accused and Victim	82	(1)
Problem 3-1: Violent or Non-Violent?	83	(1)
Notes and Questions	83	(2)
Character As an Element of a Crime, Claim, or Defense	85	(1)
Notes and Questions	86	(1)
Proving Character and Challenging Such Proof	86	(1)
United States v. Monteleone	87	(4)
Notes and Questions	91	(1)
Evidence of Other Crimes, Wrongs, or Acts Used for ``Other Purposes''	92	(1)
Huddleston v. United States	93	(4)
Notes and Questions	97	(1)
United States v. Carroll	98	(3)
Notes and Questions	101	(1)
Problem 3-2: What Are the Odds?	102	(1)
Notes and Questions	102	(1)
Character Evidence in Sexual Assault and Child Molestation Cases	103	(1)
Problem 3-3: He Said, She Said	103	(3)
Problem 3-4: He Said, She Said Redux	106	(1)
Notes and Questions	106	(3)
Problem 3-5: He Said, She Said Redux II	109	(1)
Johnson v. Elk Lake School District	109	(5)
Notes and Questions	114	(1)
Evidence of Habit	115	(6)
Problem 3-6: Who Ran the Light?	116	(1)
Problem 3-7: Seat Belt Snafu	116	(1)
United States v. Yazzie	117	(3)
Notes and Questions	120	(1)
Subsequent Remedial Measures	121	(8)
Problem 3-8: Road Work	122	(1)
Problem 3-9: Slip and Fall	122	(1)
Diehl v. Blaw-Knox	123	(2)
Bush v. Michelin Tire Corporation	125	(3)
Notes and Questions	128	(1)
Compromises, Payment of Medical Expenses, and Liability Insurance	129	(7)
Problem 3-10: NASDAQ Attack	130	(1)
Problem 3-11: Distracting Cell Phone	130	(1)
Problem 3-12: Car Accident	130	(1)
Problem 3-13: Arson	130	(1)
United States v. Bailey	131	(2)
Notes and Questions	133	(3)
Pleas and Plea Discussions	136	(5)
United States v. Greene	137	(1)
Notes and Questions	138	(3)
Witness Qualification, Competency, and Examination	141	(122)
Competency of Witnesses	141	(17)
Problem 4-1: Interstate Bicycle Accident	143	(1)
Equitable Life Assur. Soc. of U.S. v. McKay	143	(2)
Legg v. Chopra	145	(2)
Notes and Questions	147	(1)
Problem 4-2: How Sausage Is Made	148	(1)
Problem 4-3: An Honest Misunderstanding	149	(1)
Tanner v. United States	149	(6)
Notes and Questions	155	(3)
Oath Requirement	158	(3)
United States v. Ward	158	(3)
Notes and Questions	161	(1)
Direct and Cross-Examination of Witnesses	161	(12)
United States v. Riccardi	165	(3)
Nutramax Laboratories, Inc. v. Twin Laboratories, Inc.	168	(4)
Notes and Questions	172	(1)
Personal Knowledge Requirement	173	(4)
Kemp v. Balboa	173	(2)
Notes and Questions	175	(2)
Calling and Interrogation of Witnesses by the Trial Judge	177	(3)
United States v. Martin	177	(2)
Notes and Questions	179	(1)
Opinion Testimony by Lay Witnesses	180	(7)
Problem 4-4: Funny Lookin' and Funny Smellin'	180	(1)
Problem 4-5: ``He Sounded Like a Black Man''	181	(1)
Asplundh Manufacturing Division v. Benton Harbor Engineering	181	(3)
United States v. Glenn	184	(1)
Notes and Questions	185	(2)
Expert Witnesses	187	(65)
Qualification of Expert Witnesses	187	(1)
Problem 4-6: Pot-Smoking Expert Witness	187	(1)
Waldorf v. Shuta	187	(3)
Notes and Questions	190	(1)
Reliability of Expert Witness Testimony	190	(1)
Daubert v. Merrell Dow Pharmaceuticals, Inc.	190	(6)
Notes and Questions	196	(3)
A Closer Look at Daubert and the Helpfulness Requirement	199	(1)
DNA Evidence	199	(1)
United States v. Chischilly	199	(4)
United States v. Hicks	203	(3)
Fingerprint and Handwriting Analysis	206	(1)
United States v. Crisp	206	(8)
Polygraph Evidence	214	(1)
United States v. Prince-Oyibo	214	(4)
United States v. Scheffer	218	(6)
Eyewitness Reliability	224	(1)
United States v. Lester	224	(7)
Battered Woman Syndrome	231	(1)
United States v. Young	231	(3)
Notes and Questions	234	(1)
Bases for Expert Witness Testimony	234	(1)
United States v. Stone	235	(2)
Notes and Questions	237	(2)
Opinion on the ``Ultimate Issue''	239	(1)
Woods v. LeCureux	240	(2)
Problem 4-7: Gay Panic Defense	242	(1)
United States v. Finley	243	(2)
United States v. Hayward	245	(1)
Notes and Questions	246	(1)
Court-Appointed Experts	247	(1)
FTC v. Enforma Natural Products, Inc.	247	(4)
Notes and Questions	251	(1)
Exclusion and Sequestration of Witnesses	252	(11)
United States v. Rhynes	252	(9)
Notes and Questions	261	(2)
Privileges	263	(84)
Introduction	263	(3)
Notes and Questions	265	(1)
Attorney-Client Privilege	266	(31)
Problem 5-1: Drinking & Driving	266	(1)
Problem 5-2: A Guilty Conscience	267	(1)
In re Grand Jury Subpoenas	267	(4)
Notes and Questions	271	(2)
Upjohn Company v. United States	273	(5)
Notes and Questions	278	(2)
Problem 5-3: Monica-Gate	280	(1)
United States v. Zolin	281	(6)
Swidler & Berlin v. United States	287	(4)
Notes and Questions	291	(2)
Problem 5-4: The Misdirected E-Mail	293	(1)
Gray v. Bicknell	294	(2)
Notes and Questions	296	(1)
Spousal Privileges	297	(14)
Problem 5-5: Love & Loyalty	297	(1)
Trammel v. United States	298	(5)
United States v. Singleton	303	(3)
United States v. Sriram	306	(3)
Notes and Questions	309	(2)
Psychotherapist Privilege	311	(12)
Jaffee v. Redmond	311	(10)
Notes and Questions	321	(2)
Parent-Child Privilege	323	(12)
Problem 5-6: The Bond between Mother and Child	323	(1)
In re Grand Jury	323	(11)
Notes and Questions	334	(1)
Clergy-Communicant Privilege	335	(12)
Problem 5-7: Forgive Me, Father ...	335	(1)
In re Grand Jury Investigation	336	(8)
Notes and Questions	344	(3)
The ``Best Evidence'' Rule	347	(26)
Introduction	347	(1)
Notes and Questions	348	(1)
What Qualifies As a ``Writing, Recording, or Photograph?''	348	(5)
Problem 6-1: The Libelous Billboard	348	(1)
United States v. Duffy	349	(1)
Seiler v. Lucasfilm, Ltd.	350	(2)
Notes and Questions	352	(1)
What Qualifies As an Original?	353	(2)
Problem 6-2: Dangerous	353	(1)
United States v. Rangel	353	(1)
Notes and Questions	354	(1)
What Constitutes Proving Contents of a Writing, Recording, or Photograph?	355	(5)
Problem 6-3: The Libelous Billboard Revisited	355	(1)
Problem 6-4: A Picture Is Worth a Thousand Words Revisited	355	(1)
Problem 6-5: The Alibi	356	(1)
United States v. Gonzales-Benitez	356	(1)
United States v. Bennett	357	(2)
Notes and Questions	359	(1)
Duplicates	360	(2)
United States v. Haddock	361	(1)
Notes and Questions	362	(1)
Production of Original Excused	362	(4)
United States v. Marcantoni	362	(2)
Notes and Questions	364	(2)
Summaries	366	(4)
United States v. Bray	366	(4)
Role of Judge and Jury	370	(3)
Notes and Questions	371	(2)
The Rule against Hearsay	373	(236)
Introduction	373	(2)
Notes and Questions	375	(1)
What Does It Mean to Be Offered to Prove the Truth of the Matter Asserted?	375	(10)
Problem 7-1: Blowing Hot and Cold	376	(1)
Goodman v. Pennsylvania Turnpike Comm'n	376	(2)
Problem 7-2: The Elm Street Garage	378	(1)
United States v. Hanson	378	(2)
Problem 7-3: The Slanderous Statement	380	(1)
Problem 7-4: I'm Alive!	380	(1)
United States v. Montana	381	(1)
Notes and Questions	381	(1)
Problem 7-5: I'm the President	382	(1)
United States v. Parry	382	(1)
Problem 7-6: The Bumper Sticker	383	(1)
United States v. Snow	384	(1)
Notes and Questions	385	(1)
What Is an ``Assertion''?	385	(12)
Problem 7-7: Nobody Else Complained	385	(1)
Problem 7-8: Say Something If It Hurts. . .	385	(1)
Wilson v. Clancy	386	(1)
Problem 7-9: Did You Know?	387	(1)
United States v. Wright	388	(1)
Problem 7-10: Under a Watchful Eye	389	(1)
Miller v. Dillard's, Inc.	390	(1)
United States v. Zenni	391	(4)
United States v. Snow	395	(1)
Notes and Questions	396	(1)
Statements That Are ``Not Hearsay''	397	(39)
Prior Statements by Witness	398	(1)
United States v. Dietrich	398	(2)
Problem 7-11: The Improper Motive	400	(1)
Tome v. United States	401	(5)
United States v. Owens	406	(3)
Notes and Questions	409	(2)
Admissions of a Party-Opponent	411	(1)
Individual Admissions	412	(1)
United States v. Reed	412	(1)
Pau v. Yosemite Park and Curry Co.	412	(1)
Notes and Questions	413	(1)
Adoptive Admissions	414	(1)
United States v. Ward	414	(2)
Southern Stone Co., Inc. v. Singer	416	(2)
United States v. Paulino	418	(2)
Notes and Questions	420	(1)
Admissions of Agents and Employees	421	(1)
Problem 7-12: The Slip-and-Fall	421	(1)
Mahlandt v. Wild Canid Survival & Research Center, Inc.	421	(4)
Notes and Questions	425	(1)
Coconspirator Admissions	426	(1)
Problem 7-13: The Drug Cartel	426	(1)
Bourjaily v. United States	427	(4)
United States v. Johnson	431	(1)
Notes and Questions	432	(4)
Unrestricted Hearsay Exceptions	436	(75)
Present Sense Impressions and Excited Utterances	436	(1)
Problem 7-14: The Instant Message	436	(1)
Problem 7-15: The Cottage Cheese	436	(1)
United States v. Mejia-Velez	437	(2)
Miller v. Keating	439	(2)
Miller v. Crown Amusements, Inc.	441	(3)
Notes and Questions	444	(2)
Statements for Purposes of Medical Diagnosis or Treatment	446	(1)
Problem 7-16: The Hit & Run Accident	446	(1)
United States v. Renville	446	(3)
Notes and Questions	449	(2)
Then-Existing Mental, Emotional, or Physical Condition	451	(1)
Problem 7-17: The Reverberating Clang	451	(1)
Problem 7-18: The Last Meeting	451	(1)
Mutual Life Ins. Co. of New York v. Hillmon	452	(3)
Shepard v. United States	455	(2)
United States v. Houlihan	457	(3)
Notes and Questions	460	(3)
Past Recollection Recorded	463	(1)
Problem 7-19: The License Plate	463	(1)
Parker v. Reda	463	(2)
United States v. Hernandez	465	(3)
Notes and Questions	468	(2)
Records of Regularly Conducted Business Activity	470	(1)
United States v. Vigneau	471	(3)
Ebenhoech v. Koppers Industries, Inc.	474	(3)
United States v. Gentry	477	(1)
Notes and Questions	477	(4)
Public Records and Reports	481	(1)
Problem 7-20: The Police Report	481	(1)
Problem 7-21: Cocaine and Cartography	482	(1)
Problem 7-22: The Unregistered Firearm	483	(1)
United States v. Oates	483	(5)
Beech Aircraft Corp. v. Rainey	488	(4)
Notes and Questions	492	(2)
Prior Court Judgments	494	(2)
Reputation & Personal or Family History	496	(1)
Problem 7-23: They Say It's Your Birthday ...	496	(1)
Blackburn v. United Parcel Service	497	(6)
Notes and Questions	503	(1)
Learned Treatises and Other Documents	504	(1)
Costantino v. David M. Herzog	504	(5)
Notes and Questions	509	(2)
Restricted Hearsay Exceptions	511	(52)
Unavailability	512	(1)
United States v. Williams	512	(1)
United States v. Carson	513	(1)
United States v. McGuire	514	(1)
United States v. Kehm	515	(3)
United States v. Peterson	518	(1)
Notes and Questions	519	(1)
Former Testimony	520	(1)
Problem 7-24: The Absent-Minded Witness	521	(1)
Problem 7-25: The Maple Syrup	521	(1)
Problem 7-26: The Car Accident	522	(1)
Problem 7-27: Arson	522	(1)
United States v. DiNapoli	522	(5)
Problem 7-28: The Antitrust Action	527	(1)
Lloyd v. American Export Lines, Inc.	528	(4)
Notes and Questions	532	(1)
Dying Declarations	533	(1)
Problem 7-29: The Last Breath	533	(1)
Shepard v. United States	533	(2)
United States v. Angleton	535	(7)
Notes and Questions	542	(1)
Statements against Interest	543	(1)
Problem 7-30: The Car Accident	544	(1)
Problem 7-31: Herpes	544	(1)
Heddings v. Steele	545	(2)
Notes and Questions	547	(1)
Problem 7-32: ``I Killed That S.O.B.''	548	(1)
Williamson v. United States	549	(6)
Notes and Questions	555	(1)
Forfeiture by Misconduct	556	(1)
Problem 7-33: The Grand Jury Witness	556	(1)
United States v. Cherry	557	(4)
Notes and Questions	561	(2)
The Residual Exception	563	(7)
Problem 7-34: The Grand Jury Witness II	563	(1)
United States v. Laster	563	(5)
Notes and Questions	568	(2)
Hearsay and the Confrontation Clause	570	(39)
Mattox v. United States	570	(3)
Notes and Questions	573	(1)
Barber v. Page	574	(1)
Notes and Questions	575	(1)
California v. Green	575	(6)
Notes and Questions	581	(2)
Ohio v. Roberts	583	(2)
Notes and Questions	585	(1)
United States v. Inadi	586	(2)
Notes and Questions	588	(1)
Idaho v. Wright	589	(4)
Notes and Questions	593	(1)
Lilly v. Virginia	593	(4)
Notes and Questions	597	(1)
Crawford v. Washington	598	(9)
Notes and Questions	607	(2)
Judicial Notice	609	(22)
Problem 8-1: The Alibi	610	(1)
Problem 8-2: The Sweltering Heat	610	(1)
Problem 8-3: Currency Exchange	610	(1)
United States v. Marvin P. Jones	611	(2)
United States v. Bello	613	(4)
United States v. Lewis	617	(2)
United States v. Gould	619	(3)
United States v. William Allen Jones	622	(1)
United States v. Amado-Nunez	623	(3)
Notes and Questions	626	(5)
Burdens of Proof and Presumptions	631	(40)
Burdens of Proof in Civil Cases	631	(2)
Presumptions in Civil Cases	633	(17)
Problem 9-1: Proving Discrimination	637	(1)
In re Yoder Company	638	(3)
Legille v. Dann	641	(3)
St. Mary's Honor Center v. Hicks	644	(3)
Alabama By-Products Corporation v. Killingsworth	647	(2)
Notes and Questions	649	(1)
Burdens of Proof and Presumptions in Criminal Cases	650	(21)
Problem 9-2: Proving Hate	651	(1)
Patterson v. New York	652	(7)
County Court of Ulster v. Allen	659	(4)
Sandstrom v. Montana	663	(4)
Notes and Questions	667	(4)
Impeachment and Rehabilitation of Witnesses	671	(52)
Introduction	671	(1)
Character for Untruthfulness	672	(23)
Untruthful Character and Conduct	672	(1)
Problem 10-1: Lying for Beer, Lying for Jobs	672	(1)
United States v. Whitmore	673	(5)
United States v. Manske	678	(3)
Notes and Questions	681	(1)
Prior Convictions	682	(2)
Problem 10-2: The Criminal Resume	684	(1)
Altobello v. Borden Confectionary Products, Inc.	684	(2)
United States v. Browne	686	(2)
United States v. Cathey	688	(3)
Notes and Questions	691	(4)
Impeachment for Bias or Motivation	695	(6)
United States v. Abel	695	(3)
Firemen's Fund Ins. Co. v. Thien	698	(2)
Notes and Questions	700	(1)
Sensory Perception	701	(3)
United States v. Pryce	701	(1)
United States v. DiPaolo	702	(1)
Notes and Questions	703	(1)
Impeachment by Contradiction	704	(2)
United States v. Beauchamp	704	(1)
Notes and Questions	705	(1)
Impeachment by Prior Inconsistent Statement	706	(6)
Problem 10-3: The Turn-Coat Witness	707	(1)
United States v. Ince	708	(3)
Notes and Questions	711	(1)
Rehabilitation of Witnesses	712	(5)
United States v. Dring	713	(3)
Notes and Questions	716	(1)
Impeachment and Rehabilitation of Hearsay Declarants	717	(6)
Problem 10-4: The Dead Witness	717	(1)
United States v. Saada	718	(3)
Notes and Questions	721	(2)
Appellate Review of Evidentiary Rulings	723	(22)
Introduction	723	(2)
Problem 11-1: A Second Bite at the Apple	724	(1)
Preserving Claims of Error for Appellate Review and the Timing of Appellate Review	725	(12)
United States v. Meserve	725	(2)
United States v. Wynn	727	(1)
United States v. Adams	728	(2)
Crowe v. Boldoc	730	(1)
Luce v. United States	731	(2)
Ohler v. United States	733	(1)
Notes and Questions	734	(3)
Standards of Review of Claimed Errors in Interpreting and Applying Rules of Evidence	737	(4)
Peter Nicolas, De Novo Review in Deferential Robes?: A Deconstruction of the Standard of Review of Evidentiary Errors in the Federal System	738	(2)
Notes and Questions	740	(1)
Harmless Error Doctrine	741	(4)
United States v. Piper	742	(2)
Notes and Questions	744	(1)
Index	745