Week-by-Week Schedule
1
Relevance and FRE 403 Balancing
Week 1 of 14
Readings
FRE 401-403; Old Chief v. United States, 519 U.S. 172 (1997); Casebook Ch. 1-2
Key Concepts to Master
- FRE 401: relevance = any tendency to make a fact of consequence more or less probable
- FRE 402: relevant evidence is generally admissible; irrelevant evidence is inadmissible
- FRE 403 balancing: probative value vs. unfair prejudice, confusion, waste of time
- Conditional relevance under FRE 104(b)
- Old Chief stipulation doctrine: alternative proof and unfair prejudice
- Limited admissibility and FRE 105 limiting instructions
Study Tasks
- Brief Old Chief v. United States and analyze the FRE 403 balancing
- Create a flowchart for admissibility: relevance → 403 → specific exclusion rules
- Practice five hypothetical relevance objections and rulings
- Create flashcards for FRE 401, 402, and 403 with their key language
2
Character Evidence: FRE 404 and 405
Week 2 of 14
Readings
FRE 404-406; Michelson v. United States, 335 U.S. 469 (1948); Casebook Ch. 3-4
Key Concepts to Master
- FRE 404(a): general prohibition on character evidence to prove action in conformity
- FRE 404(a)(2) exceptions: defendant's character, victim's character, witness character for truthfulness
- FRE 404(b): other acts evidence for non-character purposes (MIMIC: motive, intent, mistake, identity, common plan)
- FRE 405: methods of proving character (reputation/opinion vs. specific instances)
- FRE 406: habit evidence (admissible to prove conduct on a particular occasion)
- FRE 412-415: rape shield and sex offense rules
Study Tasks
- Brief Michelson v. United States on the character evidence rules in criminal cases
- Create a chart mapping each 404(b) purpose with an example fact pattern
- Practice distinguishing character evidence from habit evidence
- Create flashcards for the FRE 404(a) exceptions and the 404(b) permitted purposes
3
Habit, Subsequent Remedial Measures, and Other Policy Exclusions
Week 3 of 14
Readings
FRE 406-411; Halloran v. Virginia Chemicals Inc., 41 N.Y.2d 386 (1977); Casebook Ch. 4-5
Key Concepts to Master
- FRE 406: habit vs. character — frequency, specificity, semi-automatic nature
- FRE 407: subsequent remedial measures (not admissible for negligence/defect, but admissible for ownership, control, feasibility if controverted)
- FRE 408: compromise offers and negotiations (not admissible to prove liability or amount)
- FRE 409: offers to pay medical expenses
- FRE 410: plea bargaining statements and withdrawn guilty pleas
- FRE 411: liability insurance (not admissible to prove negligence, but admissible for agency, ownership, bias)
Study Tasks
- Create a master chart of FRE 407-411: what is excluded, what exceptions permit admission
- Practice five hypotheticals identifying which policy rule applies
- Compare habit evidence (FRE 406) with character evidence (FRE 404) using examples
- Create flashcards for each policy exclusion rule and its exceptions
4
Hearsay: Definition, Non-Hearsay, and the Framework
Week 4 of 14
Readings
FRE 801-802; Casebook Ch. 6-7
Key Concepts to Master
- FRE 801(a)-(c): hearsay = out-of-court statement offered to prove the truth of the matter asserted
- Non-hearsay purposes: verbal acts (legally operative words), effect on listener, state of mind, impeachment
- FRE 801(d)(1): prior statements by witnesses (prior inconsistent under oath, prior consistent, identification)
- FRE 801(d)(2): opposing party's statement (individual, adoptive, authorized, agent, co-conspirator)
- Implied assertions and the Wright v. Tatham problem
Study Tasks
- Work through 10 hearsay identification problems distinguishing TOMA from non-TOMA purposes
- Create a decision tree for hearsay analysis: is it a statement? offered for TOMA? any exemption?
- Create flashcards for the five types of opposing party statements under 801(d)(2)
- Practice identifying the non-hearsay purpose for each hypothetical
5
Hearsay Exceptions: Availability Immaterial (FRE 803)
Week 5 of 14
Readings
FRE 803(1)-(6); Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285 (1892); Palmer v. Hoffman, 318 U.S. 109 (1943); Casebook Ch. 7-8
Key Concepts to Master
- FRE 803(1): present sense impression (describing or explaining event while or immediately after perceiving it)
- FRE 803(2): excited utterance (relating to a startling event while under stress of excitement)
- FRE 803(3): then-existing mental, emotional, or physical condition (Hillmon doctrine for intent)
- FRE 803(4): statements for medical diagnosis or treatment
- FRE 803(5): recorded recollection (past recollection recorded)
- FRE 803(6): business records (kept in regular course, regular practice, at or near the time, by person with knowledge, trustworthy)
Study Tasks
- Brief Mutual Life Insurance v. Hillmon on the state-of-mind exception
- Create a comparison chart: present sense impression vs. excited utterance
- Practice classifying 10 statements under the correct 803 exception
- Create flashcards for FRE 803(1)-(6) with their foundational requirements
6
Hearsay Exceptions: FRE 803 Continued and FRE 804
Week 6 of 14
Readings
FRE 803(8), 803(18), 804; Williamson v. United States, 512 U.S. 594 (1994); Casebook Ch. 8-9
Key Concepts to Master
- FRE 803(8): public records (activities of office, matters observed under legal duty, factual findings in civil/against-government criminal)
- FRE 803(18): learned treatises (used on direct/cross of expert, read into evidence, not admitted as exhibit)
- FRE 804(a): unavailability defined (privilege, refusal, lack of memory, death/illness, absence)
- FRE 804(b)(1): former testimony (against party who had similar motive and opportunity to examine)
- FRE 804(b)(2): dying declaration (belief of impending death, about cause/circumstances)
- FRE 804(b)(3): statement against interest (against pecuniary, proprietary, penal interest, with corroboration for criminal defendants)
Study Tasks
- Brief Williamson v. United States on statements against penal interest
- Create a chart distinguishing FRE 803(6) business records from 803(8) public records
- Practice a hypothetical involving a dying declaration in a murder case
- Create flashcards for FRE 804 unavailability and each 804(b) exception
7
Confrontation Clause and Crawford
Week 7 of 14
Readings
Sixth Amendment; Crawford v. Washington, 541 U.S. 36 (2004); Davis v. Washington, 547 U.S. 813 (2006); Michigan v. Bryant, 562 U.S. 344 (2011); Casebook Ch. 10
Key Concepts to Master
- Crawford: testimonial statements require prior opportunity for cross-examination
- Testimonial vs. non-testimonial statements (primary purpose test)
- Davis/Bryant: 911 calls and emergency circumstances as non-testimonial
- Forfeiture by wrongdoing (Giles v. California: designed to procure absence)
- Confrontation Clause applies only in criminal cases
- Relationship between hearsay exceptions and the Confrontation Clause
Study Tasks
- Brief Crawford v. Washington and identify the testimonial hearsay framework
- Brief Davis v. Washington and apply the primary purpose test to 911 calls
- Create a flowchart: hearsay analysis → Confrontation Clause overlay for criminal cases
- Create flashcards for testimonial vs. non-testimonial statement categories
8
Impeachment of Witnesses
Week 8 of 14
Readings
FRE 607-613; United States v. Abel, 469 U.S. 45 (1984); Casebook Ch. 5, 11
Key Concepts to Master
- FRE 607: any party may impeach any witness (including their own)
- FRE 608(a): reputation or opinion evidence of character for truthfulness
- FRE 608(b): specific instances of conduct (on cross only, extrinsic evidence not allowed)
- FRE 609: impeachment by prior conviction (felony: 403 balancing; crimen falsi: automatic)
- FRE 613: prior inconsistent statements (must allow opportunity to explain)
- Bias, interest, and motive as impeachment grounds (not codified but always available)
Study Tasks
- Brief United States v. Abel on bias impeachment
- Create a chart of all impeachment methods with their rules and limitations
- Practice a hypothetical cross-examination using FRE 608(b) and 609
- Create flashcards for the FRE 609 ten-year time limit and balancing tests
9
Opinion Testimony and Expert Witnesses
Week 9 of 14
Readings
FRE 701-706; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999); Casebook Ch. 12
Key Concepts to Master
- FRE 701: lay opinion must be rationally based on perception, helpful, and not based on scientific/technical knowledge
- FRE 702: expert testimony requirements (qualified, reliable, sufficient basis, relevant application)
- Daubert factors: testing, peer review, error rate, general acceptance
- Kumho Tire: Daubert applies to all expert testimony, not just scientific
- FRE 703: experts may rely on otherwise inadmissible facts if reasonably relied upon
- FRE 704: opinions on ultimate issues (except mental state of criminal defendant under 704(b))
Study Tasks
- Brief Daubert v. Merrell Dow Pharmaceuticals and memorize the four factors
- Create a comparison: Daubert (federal) vs. Frye (general acceptance) standards
- Practice a hypothetical Daubert challenge to proposed expert testimony
- Create flashcards for FRE 701-706 requirements
10
Privileges: Attorney-Client, Spousal, and Others
Week 10 of 14
Readings
FRE 501-502; Upjohn Co. v. United States, 449 U.S. 383 (1981); Trammel v. United States, 445 U.S. 40 (1980); Swidler & Berlin v. United States, 524 U.S. 399 (1998); Casebook Ch. 13
Key Concepts to Master
- Attorney-client privilege: confidential communication, for legal advice, between attorney and client
- Corporate attorney-client privilege (Upjohn: subject-matter test)
- Crime-fraud exception to attorney-client privilege
- Work product doctrine (Hickman): ordinary vs. opinion work product
- Spousal testimonial privilege (Trammel: witness-spouse holds) and marital communications privilege
- FRE 502: inadvertent disclosure and waiver
Study Tasks
- Brief Upjohn v. United States on corporate attorney-client privilege
- Create a chart comparing attorney-client privilege with work product protection
- Compare the two spousal privileges: who holds, what is covered, when applicable
- Create flashcards for privilege elements and their exceptions
11
Authentication, Identification, and the Best Evidence Rule
Week 11 of 14
Readings
FRE 901-903, 1001-1008; Casebook Ch. 14-15
Key Concepts to Master
- FRE 901(a): authentication as a condition precedent (sufficient to support a finding)
- FRE 901(b) examples: testimony of witness with knowledge, handwriting comparison, voice identification, distinctive characteristics
- Self-authentication under FRE 902 (certified copies, official publications, newspapers, business records with certification)
- FRE 1001-1003: best evidence rule (original writing required to prove content)
- Exceptions: original lost/destroyed, not obtainable, in possession of opponent, collateral matters
- FRE 1006: summaries of voluminous records
Study Tasks
- Create a chart of FRE 901(b) authentication methods with examples
- Practice authenticating electronic evidence: emails, text messages, social media posts
- Compare authentication (FRE 901) with the best evidence rule (FRE 1001-1008)
- Create flashcards for self-authenticating documents and best evidence rule exceptions
12
Residual Exception, Completeness, and Judicial Notice
Week 12 of 14
Readings
FRE 106, 201, 807; Casebook Ch. 15-16
Key Concepts to Master
- FRE 807: residual exception (trustworthiness, material fact, probative on the point, interests of justice, notice to opponent)
- FRE 106: rule of completeness (opposing party can require remainder of writing or recorded statement)
- FRE 201: judicial notice of adjudicative facts (not subject to reasonable dispute, generally known or accurately determinable)
- Effect of judicial notice in civil vs. criminal cases
- Competency of witnesses under FRE 601-606
- Dead Man's Statutes and their modern application
Study Tasks
- Practice applying the FRE 807 residual exception to a near-miss hearsay problem
- Create a flowchart for judicial notice analysis
- Compare judicial notice in civil cases (conclusive) vs. criminal cases (permissive inference)
- Create flashcards for FRE 807 requirements and FRE 201 standards
13
Evidence in Context: Putting It All Together
Week 13 of 14
Readings
Review all FRE provisions; Selected complex problems from casebook review chapters
Key Concepts to Master
- Multi-step admissibility analysis: relevance → character/policy → hearsay → privilege → authentication → best evidence
- Evidence objection and offer-of-proof mechanics
- Limiting instructions and their effectiveness
- Strategic considerations in evidence presentation
- Harmless error and plain error on appeal
- Interplay between FRE 403 and specific exclusion rules
Study Tasks
- Work through five complex problems requiring multi-rule analysis
- Create a comprehensive admissibility checklist covering all major rules
- Practice mock trial evidence objections with a study partner
- Create a master outline connecting all evidence topics
14
Review and Exam Preparation
Week 14 of 14
Readings
Review all FRE provisions; class notes and outlines; practice exams
Key Concepts to Master
- Issue-spotting across relevance, character, hearsay, privileges, and authentication
- Rapid FRE identification for each type of evidence problem
- Hearsay within hearsay (FRE 805) and multiple levels of analysis
- Integrating Confrontation Clause analysis into hearsay problems
- Writing organized evidence essays under time pressure
Study Tasks
- Complete a full practice exam under timed conditions
- Create a comprehensive one-page attack outline for evidence
- Review and consolidate all flashcard decks
- Identify your three weakest areas and re-read those FRE provisions and advisory committee notes
- Practice rapid-fire hearsay classification with a study partner