Mississippi College Law Review Volume 29 Article 4 Issue 1 Vol. 1 2010 Teaching the Portraits, Mosaics and Themes of the Federal Rules of Evidence Lee D. Schinasi Follow this and additional works at: https://dc.edu/lawreview Part of the Law Commons Custom Citation 29 Miss. 83 (2010) This Article is brought to you for free and open access by MC Law Digital Commons.
It has been accepted for inclusion in Mississippi College Law Review by an authorized editor of MC Law Digital Commons. For more information, please contact walter@mc. TEACHING THE "PORTRAITS, MOSAICS AND THEMES" OF THE FEDERAL RULES OF EVIDENCE Lee D. BACKGROUND AND INTRODUCTION.
Turning a Constellation of Dots into an Understandable Matrix. Transition from the Common Law of Evidence to the Federal Rules of Evidence. Connecting the Federal Rules of Evidence to First Year Courses. The Themes, Portraitsand Mosaics Regime of the Federal Rules of Evidence.
EXAMINING THE REGIME. Category A: Article IV, VI, VIII, X. - The "Evidentiary Process. Relevance and its limits.
Article IX Authentication and Identification. Contents of Writing, Recordings, and Photographs. Category B: Rules 611, 103, 104, 105 and 403. The "Evidentiary Mechanics" of Trying a Case.
Mode and Order of Interrogation and Presentation. Rulings on Evidence. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time. Schinasi, Professor and Director of Clinical Placements/Associate Clinical Professor, Dwayne 0.
Andreas School of Law at Barry University. I wish to express my sincere gratitude to Dean Leticia Diaz and the Dwayne 0. Andreas School of Law at Barry University for supporting this schol- arship, as well as Ms. Melissa Sherman, my research assistant, for her invaluable help.
Most impor- tantly, I want to thank Professor Edward J., Professor of Law, University of California. Davis who many years ago shared the original concept for this article. 83 84 MISSISSIPPI COLLEGE LAW REVIEW [VOL. An "Evidentiary Preference" for Greater Admissibility.
Purpose and Construction. Definition of "Relevant Evidence". Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time. General Rule of Competency.
Testimony by Experts. The Hearsay Rule and Hearsay Exclusions. Requirement of Authentication or Identification. Requirement of Original.
Category D: Rules 403, 404, 405, 412-415, 608, and 609. The "Tipping Point" Rules - Who to Believe?. Rule of General Applicability. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time.
Rules that Deal with Character Evidence. CharacterEvidence Not Admissible To Prove Conduct. Methods of Proving Character. Rules that Deal with Character Evidence in Sex Offenses.
Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition. Evidence of Similar Crimes in Sexual Assault and Child Molestation Cases, and Evidence of Similar Acts in Civil Cases Concerning Sexual Assault and Child Molestation. Rules that Deal with Credibility Evidence: Who to Believe. Evidence of Characterand Conduct of Witness.
Impeachment by Evidence of Conviction of Crime. 147 2010] "PORTRAITS, MOSAICS AND THEMES" 85 I. BACKGROUND AND INTRODUCTION A. Turning a Constellation of Dots into an UnderstandableMatrix Although it was three decades ago, I still remember the insecurity as- sociated with preparing my first several Federal Rules of Evidence classes.
It was painfully obvious that while teaching the individual rules would be tough enough, teaching anything that approached a meaningful apprecia- tion for the overarching philosophy, application, and interrelationship of those rules would be problematic at best.2 I was concerned that this limita- tion might compromise the value of my first classes, maybe even the entire course. Fortunately, those worries were significantly reduced by exper- ienced colleagues who provided tremendous background information and invaluable practical teaching assistance.3 Their thoughts have remained with me over the years and eventually helped create the "portraits and mosaics regime" to the Federal Rules of Evidence which is the subject of this article. The regime and this article were constructed to accomplish five things. First, for professors new to teaching evidence, the regime is a macro level philosophical and practical overview of the statute.
It introduces the Rules' most significant evidentiary concepts and how they interrelate. Second, the article can be used as a teaching outline for a new evidence professor's first several classes. To aid in this process, the article includes references to the underlying authority and rationale for each rule and principle presented. This information will help provide the background and resultant confi- dence necessary for teaching those first few sessions.
Third, it is a helpful road map for beginning evidence students. It allows them to more quickly and more efficiently understand their evidence course as it unfolds. Fourth, for those of us who have been teaching evidence for a while, the article may provide a new thought or two on the Rules that can be incorpo- rated into existing notes. Fifth, the portraits and mosaics regime can be a helpful tool in managing classroom time.
As discussed throughout the arti- cle, evidence law has become increasingly complex over the past several decades. Amendments to the Rules caused by Supreme Court cases have made the time necessary to teach traditional subjects more precious. The logical place to begin gaining an appreciation for these topics resides in Edward H. Cleary, PrimlinaryNotes on Reading the Rules of Evidence, 57 NEB.
Professor Cleary was the reporter for the Advisory Committee that drafted the Federal Rules of Evidence. His original insights and interpretations remain a wonderful read today. After so many years it is a pleasure to thank Paul Giannelli. Westerhead III and Richard W.
Weatherhead Professor of Law, Case Western Reserve; Stephen A. Saltzburg, Wallace and Beverly Woodbury University Professor, George Washington University Law School; David A. Schlue- ter, Hardy Professor of Law, St. Mary's University School of Law; and Michael H.
Graham, Professor of Law, University of Miami School of Law. Two leading examples of evidence's increasing complexity and the resultant additional class- room time required to thoroughly teach complex areas of the Federal Rules of Evidence reside in the amendments to Rule 702, caused by Daubert v. Merrell Dow Pharm. 579 (reformulating the standards for admitting expert opinion testimony and scientific evidence), and the recalculation of constitutional standards applicable to Article VIII evidence in criminal cases caused by Crawford v.
86 MISSISSIPPI COLLEGE LAW REVIEW [VOL. Transition from the Common Law of Evidence to the Federal Rules of Evidence The portraits and mosaics regime is a product of the 1970s, a period that marked transition from the common law of evidence to the Federal Rules of Evidence.' Having tried cases in both systems, the pedagogical advantages of the new rules were unmistakable. They illuminated a pat- tern or process for trying cases and for teaching evidence that was not read- ily apparent under the common law. Codification made the rules of evidence a visible and relatively concise universe of individual "portraits" which addressed specific substantive or procedural issues.6 Taken a step further, codification provided a vehicle for teaching how the individual portraits could be linked to create "mosaics" which identified those related major substantive and procedural rules of evidence necessary for a comprehensive understanding and application.
Al- though the portraits and mosaics existed at common law, the ability to identify and teach them was not as clear and would not have been as effec- tive. Codification overcame those limitations. For example, applying the portraits and mosaics regime to hearsay al- lows us to teach not only hearsay's definition,' the reasons for excluding hearsay,' and the exceptions or exemptions to the hearsay prohibition,' but also how and when to procedurally raise hearsay issues, 10 the conse- quences of failing to adequately or timely raise a hearsay issue," the tacti- cal considerations surrounding limiting instructions,1 2 how hearsay might be affected by related issues such as best evidence or authentication re- quirements,1 4 and how to determine whether otherwise admissible hearsay Washington, 541 U. 36 (2004), and its progeny (abandoning the 25 year-old standard for admitting hearsay evidence contained in Ohio v.
For an excellent discussion of moving from the common law of evidence to the codification of evidence see Robert H. Aronson, The Federal Rules of Evidence: A Model for Improved Evidentiary Decisionmaking in Washington, 54 WASH. This process has been incorporated into states' evidence codes as well. See Justice David M.
Borden, The New Code of Evidence: A (Very) Brief Introduction and Overview, 73 CONN. Robins, Evidence at the Electronic Frontier:Introducing E-mail at Trial in Commercial Litigation, 29 RUTGERS COMPUTER & TECH. Giannelli, Chain of Custody and the Handling of Real Evidence, 20 AM. 2010] "PORTRAITS, MOSAICS AND THEMES" 87 should nevertheless be excluded because its trial use might do more harm to the fact-finding process than could be justified." Over the past 30 years, the regime has been taught to law students, practitioners and judges.
During a semester as a Fulbright Scholar on the Nis Faculty of Law, Nis, Serbia, and under similar circumstances for ABA- CEELI in Moldova as a member of the Balti Faculty of Law, Balti, Moldova, it was an important part of explaining the American common law legal system.16 In every context, application of the portraits and mosaics regime provided insight and understanding about trying cases that would not otherwise have been possible. The regime can be adjusted to fit any teaching or litigation purpose." It can be focused on a specific aspect of evidence practice or tailored to meet the needs of a distinct audience.s Set out below is the version used to introduce and teach my traditional, four-hour evidence course.1 9 Gener- ally, the first two or three class meetings involve introducing the regime and discussing how it will be used throughout the semester and ultimately into practice. Connecting the Federal Rules of Evidence to First Year Courses During our first meeting students are asked: "What role should a code of evidence play in modern litigation?" 2 0 We eventually come to five re- sults. First, an omnibus reason: the Federal Rules of Evidence facilitate 15.
Dolan, Rule 403: The PrejudiceRule in Evidence, 49 S. Schinasi, Globalizing: Clinical Legal Education: Successful Under-Developed Country Experiences," 6 T. The regime can also be used to support many other techniques evidence professors use in- cluding case analysis, application of the rules through problem-solving, simulations involving posing, opposing, or resolving objections, and various combinations of these methods. See Calvin William Sharpe, Evidence Teaching Wisdom: A Survey, 26 SEATTLE U.
It can be used to support professors who teach the rules by using demonstrative evidentiary techniques, or those who use their own personal "war stories" to illustrate how the rules actually work inside the courtroom. See Paul Bergman, Teaching Evidence the "Reel" Way, 21 QUINNIPIAc L. Seigel, The Effective Use of War Stories in Teaching Evidence, 50 ST. The regime also plays a role in establishing evidentiary foundations as Professor Imwinkelreid's series of treatises on that topic demonstrates.
IMWINKELREID, FLORIDA EVIDENTIARY FOUNDATIONS (3d ed. Similarly, Professor Saltzburg's Trial Book series focuses on establishing the combination of rules necessary for admitting virtually any piece of evidence. SCHINASI, GERALD KOGAN, MARGRET STEINBECK & STEPHEN A. SALTZBURG, FLORIDA EVIDENCE TRIAL BOOK (2000).
See Paul Rothstein. Teaching Evidence, 50 ST. The regime allows students to see character and credibility evidence in a broader context helping them understand how the rules would actually be used at trial. For many years I have used RONALD L.
KIONKA & KRISTINE STRACHAN, EVIDENCE: TEACHING MATERIALS FOR AN AGE OF SCIENCE AND STATUTES (6th ed. It is important that students early on appreciate the varied and overarching role evidence plays in all forms of litigation. For instance, the Rules of Evidence can be defined as a guide for ascertaining the truth. Blink, Ethics, Evidence, and the Modern Adversary Trial, 19 GEO.
The Rules are also "tools that enable lawyers to introduce information 88 MISSISSIPPI COLLEGE LAW REVIEW [VOL. 29:83 juries being subjected to only appropriate and helpful proof.