Archive Evidence 2007

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Welcome to the Evidence 2007 Course Wiki


Syllabus

January 2:

Nesson: Introduction to Course

  • Discussion of syllabus, class plan and requirements, group work, laptops in class, the Question Tool
  • introduction to the law lord, jury process
  • introduction of Martin Levin and Levin Lectures

Levin: Introduction to Trial Law and Pre-Trial Procedure

  • Overview discussion of trial process, terminology and roles
  • Initial Pleadings—Complaint, Answer, Reply
  • Discovery—Generally, Interrogatories, Requests to Produce, Requests to Admit, Non-Party Production, Depositions, Electronic Discovery
  • Pre-Trial Conference--Pre-Trial Memorandum, Motions in Limine, Witness & Exhibit List, Jury Instructions, Verdict Form, Trial Briefs
  • Initial Trial Preparation--File Organization, Trial Subpoenas, Venire List, Jury Instructions, Verdict Form, Examination Preparation, Deposition Readings and Videos, Stipulated Facts, Interrogatory Publication, Request to Admit Publication, Demonstrative Aids and Exhibits, Order of Proof, Opening Statement, Closing Argument, Voir Dire, Directed Verdict

Assignment:

  • Familiarize yourself with the pleadings in Bragg v. Linden Labs.
  • Log In to Second Life, choose an avatar, orient yourself, come to Berkman Island.

A page for those who would like to engage in a Discussion of the Bragg. v. Linden Labs Pleadings.

Levin's Reading on Pre-Trial Procedure

Nesson: audio journal 3jan07


January 3:

Nesson: Reaction and feedback on day one,

Levin: Trial Presentation

  • Theme of Case
  • Stylistic Issues
  • Exhibits and Demonstrative Aid Tools—Adobe Photoshop, Aerial Photography, Computer Animations, Diagnostic Scans, Medical Exhibits, Microsoft PowerPoint, Roxio Complete Media Creator, Scanners, Sympodium, Timelines, Trial Director, Vacuum Mounted Boards, Verdict Systems Sanction Software, Video Projectors, Visual Presenters
  • Motions in Limine

Nesson: Division of Function between Judge and Jury

  • The Rim
  • Procedure for handling issues of fact relating to proof of the complaint
  • Procedure for handling issues of fact relating to issues of law
  • Procedure for handling issues of law

Readings:

Nesson, "The Evidence or the Event? On Judicial Proof and the Acceptability of Verdicts"
American Jury

Levin's Reading on Trial Presentation

Questions from the Question Tool 1/03/07

Thoughts Provoked:


January 4:

Nesson: The Rules

Levin: Voir Dire

  • Theory
  • Focus Groups
  • Electronic Juries
  • Mock Trials
  • Venire Lists
  • Seating Charts
  • Juror Questionnaires
  • Venire Questioning
  • Jury Selection Software
  • Legal Doctrine

Levin's Reading on Voir Dire

Nesson: Burden of Proof

  • Concepts - Persuasion, Reasonable Doubt, Proof to a Preponderance
  • Constitutional grounding
  • Inferential Proof and the problem of the Blue Bus
  • Statistical Proof and the problem of the Prison Yard

Readings:

Amar, The Bill of Rights and our Posterity (particularly "story eight")
Duncan v.Louisiana, 391 U.S. 145 (1968)
In re Winship, 397 U.S. 358 (1970)
Batson v. Kentucky, 476 U.S. 79 (1986)
J.E.B. v.Alabama, 511 U.S. 127(1994)

Media:


January 5:

Nesson: Character as Relevant/Prejudicial Evidence

People v. Zackowitz, 254 N.Y. 192, 172 N.E. 466 (1930)
Return to the Scene of the Crime
"Money or Death"
Huddleston v U.S., 485 U.S. 681 (1988)
United States v. Beechum, 582 F.2d 898 (5th Cir. 1978)
Proof of Defendant's Good Character
Proof of Defendant's Violent Character
The Mayor
Careless Smoker
Tanford & Bocchino, Rape Shield Laws and the Sixth Amendment
Prostitution, Rape or Both?
Explanation for Pregnancy
State v. Jacques, 558 A.2d 706 (Me. 1989)


Levin: Opening Statements

  • Fundamentals
  • Format
  • Issues
  • Law

Nesson: Power of Narrative

  • Lawyer Credibility


Thoughts Provoked:


January 8:

Levin: Examinations 1

  • Direct Examination
  • Redirect Examination
  • Expert Examination
  • Confrontation
  • From Raleigh to Crawford
The Treason Trial of Walter Raleigh
Mattox v. United States, 156 U.S. 237 (1895)
Crawford v. Washington, 124 S. Ct. 1354 (2004)
Davis v. Washington(2006)

Jan 8 Feedback


January 9:

Nesson: Experts

Daubert v. Merrell Dow 113 S. Ct. 2786 (1993)
General Electric Co. v. Joiner,522 U.S. 136 (1997)
Kumho Tire Company v. Carmichael, 119 S.Ct. 1167 (1999)
Daubert v. Merrell Dow (on remand),43 F.3d 1311 (9th Cir. 1995)

Jan 9 Feedback


January 10:

Jury Instructions & Verdict Form

Nesson: Hearsay in Theory

Definition of Hearsay
L. Tribe, Triangulating Hearsay
J. Falknor, Evidence of Conduct
R. Park, McCormick on Evidence and the Concept of Hearsay
Arsenic and Hors d'Oeuvres
Murder at the Seaside Bistro
Assault on Massachusetts Avenue
Murder in the Ajax Building
Corn Crib Case
Captain Cook and Davey Jones
Black Crepe
Hot Pursuit?
The Stolen BMW
The Forgetful Witness

Jan 10 Feedback



January 11:

Closing Arguments and Summation

  • Fundamentals of Closing Argument
  • Stylistics Issues Specific to Closing Argument
  • Addressing Issues Head-On in Closing Argument
  • The Law on Closing Argument

Levin Readings: Fundamentals of Closing Argument

Privilege

  • Attorney-Client Privilege
Bentham, Rationale of Judicial Evidence
Proposed Rule 503
The Blackacre Fraud
The Eavesdropper
The Energetic Investigator
Hit and Run
D.C.Bar on Ethics of Evidence Destruction
Smoking Gun
Clark v. State
Hitch v. Arizona
Upjohn v. United States

Jan 11 Feedback


January 12:


January 16

'We meet as usual in Austin North.'

Hearsay Exceptions
Stolen BMW
Forgetful Witness
He who Laughs Last...
Stage Fright (p. 474)
Stagger P (p. 475)
Snowmobile Crash (p. 475)
Strong Feelings and Future Plans (p. 476)
Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285 (1892)(pp. 476-480)
Shepard v. United States (II), 290 U.S. 96 (1933)(pp. 481-483)
Negligent Entrustment (pp. 484-485)
Window Washers
Accident Reports (p. 487)
Palmer v. Hoffman , 318 U.S. 109 (1943)(pp. 487-490)
Hospital Reports (p. 490)
Computer Records (p. 490)
Giving Them the Business (p. 491)
Police Reports (p. 495)
Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930)(pp. 495-497)
0.doc


JANUARY 18

late thursday afternoon

OPEN STRATEGY FOR UNIVERSITY

question tool as organizing force for class, for social gatherings, for web focal point of our activity,

we wish to organize a confernece in the shape of a cone through time with the conference days themselves just slices.

January 19

elements for question tool

  • best evidence
  • vinny
  • second life
  • digital discovery
  • other to be nominated

Useful Links

January 20

now the challenge begins
does the wiki stay alive
come alive
ok
we have a format
what is it
what are its component parts stated at a meta level such that others could produce it
can we feedback, tweak it, reiterate it
just like programming from scratch
here's from andy, ska phil rosedale

Hi Becca/Eon

Feedback (as requested at the end of the meeting yesterday).

1. I don't need to highlight the positive. You drew large crowds of enthusiastic people all 3 days. Format works.

2. Fitting everything in to 3 days is certainly difficult. Its starts out slow, and ends at breakneck pace. Don't think you want to add another day.

The only change I would suggest would to be include the opening arguments, straight after jury selection on day 1. And give the sides fixed amounts of time for their direct and cross so that they can rehearse and make sure they can fit their arguments in

Each side could have.. for example 40 mins for their directs and 20 for their crosses. They could use that as they choose. Maybe call 2 witnesses for 20 mins each or only one for 40. Their choice. Like a chess game, their clock stops when the other side does their cross. I'm sure there must be a chess clock in SL already that someone sells.

And to get it right, the teams could do a dry run with their witnesses beforehand. If they have not done this before in SL, they won't know whether their lines of questioning are too slow for SL audiences. particularly as they have to factor in the lag. What looks good on paper rarely translates to SL, and won't cut and paste effectively.

3. One of the law students on each side could be "director/co- ordinator" and be involved with all the groups on his/her side to make sure that they make a consistent presentation, and (for example) make sure that those who cross or close will pick up on issues that have come before. It felt like a number of disjoint scenes, rather than a consistent argument that was being developed. The closings, for example, did not summarize and draw conclusions from what had been heard before.

4. It might be worth having a "client" role as well as witness roles. Maybe one of the students. So they have to answer to someone, and maybe talk through their strategy in advance to an outsider.

5. Sitting on one side of the amphitheater I never heard the verdict. It would be good to mark a circle at the center of the amphitheater so, "if you stand here everyone can hear you".

6. Lag is a huge issue. Maybe close the sandbox (or the island itself) for an hour or so while the event is happening. When I was on the witness stand, SecondLife itself was almost completely unresponsive, and it was extremely difficult just to get a reply typed in (cut and paste was impossible). Maybe I need to discard my powerbook and buy a bigger computer.

7. Maybe allow a "not empathic" objection :-) Wasn't much empathy out there.

I hope it was a useful exercise for the law students. The one I spoke with did seem to really enjoy it.

Thanks for allowing me to get involved to the extent I did.

best regards

Andy

and here is my reply

andy, your contribution once again is wonderful and very much appreciated. i heard in your testimony the winning line for linden labs. may i have your permission to post your suggestions to our wiki? -c

Hi from GeoffMcG Xi (the infamous Bragg):

I'm excited that this excercise is not "out of sight, out of mind," and that the project continues with feedback and comments on how to proceed into an uncharted and promising future. I'll follow Andy's inspired lead and offer some ideas from a participant perspective;

1) Despite some of the snafus of using SL for a mock trial, I thought this was a tremedous success. Whether or not the success came from the synergy between the case facts itself (i.e., would a non-SL case be as successful in SL?) I can't say. But since Eon's committment to open access drove the move into SL, I think it is the right format to get outside, non-HLS perspectives (am I a non-HLS perspective???).

2) Wow, trials move slowly. Even more so in a text-based format. How can we trim the time yet boost the content?

  • Meet with the witnesses before hand. Andy and I put lots of time into preparing our testimony--reading the court filings, finding blog posts to flesh out the facts of the case, putting it all together into a presentable whole. As such, I think we can be seen as delegates for the case specifics. This is an enormous resource to more fully employ in the future. I had a blast doing it, and wouldn't hesitate to put the effort into another run. But I felt removed from the attorneys. At times, I felt there were arguments made to the jury that I could have suggested wouldn't fly at all. Now, granted I know most of the jurors through this and the Cy1 experience. But the knowledge that we at-large participants have about SL could have been used more effectively.
  • Attorneys need to spend time in SL to understand how the system works, the speed of chat, the role of typed communication. There is room for rhetorical subtlety in SL, but you need to know your audience. Long, double barrel questions don't work well. If you spend more time in-world, I think you'll pick up the flow of conversation and be a more effective in-world advocate.
  • Cross examinations seemed a bit scattered. The questions were more open ended than I expected, and I often time think the attorneys lost their main points.

3) Use we participants more. I know that most of the jurors were/are willing to debrief on what was effective, chat about the experience, and give feedback. This is the real strength of open-access programming from the enrolled student's perspective. We are the court of public opinion and we can give you more than a verdict. So please, use us!


more feedback

january 23. we will use you tonight. here, i am about to post feedback from my students. help us process it and reduce it to the best possible next iteration of our algorithm. what follows is my student response to the second question i left them with focused on reaction to their experience learning with second life. (including help reformatting that which appears below)

-)
Rebecca Nesson 	
to cyberone
	
show details
	 Jan 22 (1 day ago) 
Wednesday 8-9pm EST, Berkman Island amphitheater
Discussion and Feedback from Bragg v. Linden

Hello all,

Our trial of Bragg v. Linden on Berkman Island was definitely a success.  The Harvard Law School litigators presented strong cases with the help of the very adept witnesses.  And then a jury of at-large SL residents deliberated and delivered a verdict.  We learned a lot from this first attempt at running a trial in SL and are hoping to do a series of additional trials this spring.  For that purpose, we would like to request feedback from the participants and offer and opportunity to discuss what happened during the trial last week.

For those who would like to get up to speed on what happened, all of the transcripts and other materials are available here: http://cyber.law.harvard.edu/cyberone/wiki/Evidence_2007

Please join me (Rebecca Nesson/Berkman) and Professor Nesson (Eon Berkman) on Wednesday night at 8pm EST (5pm SLT) for an hour-long discussion. 

Best,
Rebecca

2) The Second Life Trial

I have a few suggestions on how to improve the Second Life experience from both a learning/experiential viewpoint and a technical/administrative viewpoint. From an experiential viewpoint, I believe this would be a much better learning tool in smaller groups, or as individuals. While I like the idea of this being optional, a sort of challenge by choice, to get only those interested parties involved, I think placing those interested parties into large groups naturally causes a certain mass-decay of ownership. Students in very small groups (2-3 people at most) or as individuals will have a significantly greater sense of ownership in both their avatar and its actions. Whatever assignment each student, or group, receives regarding the Second Life trial this sense of ownership will ignite a greater and more serious effort. It is all too easy, in large groups, to feel alienated and separate from the activities. My second ‘experiential’ suggestion would be to have students more involved in every facet of the case. By creating a greater number of groups the students will have to fill more roles from attorneys to jurors to judges to witnesses. Finally I think a fictional or adapted case would be better for this situation. While having a real case as the model for the Second Life trial in this situation, Bragg v. Linden Labs, was poetically fitting a created case could excite the students more by providing affidavit testimony and evidence to be dissected and analyzed. This would serve a greater purpose of forcing students to decide what evidence to present/attempt to enter on the record and how best to get it in. Ultimately I believe a more in-depth involvement of students on a more individualistic nature will improve both the efforts put in and the education derived.

I also have a more technical/administrative suggestion. To carry the metaphor of Second Life a step further if Second Life is a virtual ‘real world’ than a trial in Second Life must be a more constrained/rule-bound occurrence than normal conversation (as in real life). While having moderators can assist this situation actually developing ‘mods’, or programmed modifications to the Second Life interface, would go much further in making a Second Life trial a reasonable facsimile for our justice system. ‘Mods’ could, for example, be used in presenting jury questions and accumulating responses during the disorganized jury selection process. A ‘mod’ could then be employed to strike jurors in real time, actually moving the avatars out of one portion of Berkman Island and into another, and keep an accurate and clear tally of those left. Similarly ‘mods’ could insure the trial stays uncluttered with interruptions from observers or non-participating Second Life residents. While most of the things these ‘mods’ would accomplish can already be done with various tools of the Second Life interface, creating a user-friendly ‘Trial Mod’ could insure that students are not hit with a storm of non-pertinent stimuli while attempting to conduct the trial. I am not sure if creating such a program is possible within the Second Life system as is, but if not, perhaps someone could contact Linden Labs and arrange for special modifications to Berman Island as needed by Harvard Law School.

2. I was impressed by the Second Life exercise, but it felt like more of an experiment crafted to test the boundaries of Second Life, or virtual worlds generally, rather than an exercise developed for educational purposes. That’s not to say that Second Life couldn’t be used in an educational capacity, or even that this particular activity wasn’t educational, but our roles in the activity seemed far too discrete. For instance, my group was involved in jury selection and nothing else. We came up with some questions, delivered them, and that was essentially all we did. I’m not sure how this could be resolved without expanding the program (maybe by having redundant trials), but I think the next class-based SL trial should integrate students more effectively and consider the experience each student is having rather than looking exclusively at the total, objective experience.

It might make sense to incorporate some sort of written assignment into the Second Life project. In place of the Saddam/Osama assignment, perhaps we could have done some sort of memo or short brief based on the case so that everyone reached a baseline level of familiarity with the proceedings. Required virtual attendance might also make sense. Further, if two trials were run, perhaps half the students could be a massive jury and half the students could be attorneys, witnesses, etc. in one trial and vice-versa in the next. There were, of course, practical issues. Lag was a big problem, controlling the group a lesser one. These are the sorts of logistical things that I imagine will work themselves out. One suggestion: I’m not sure that this would be appealing to anyone but I think it might be interesting to have one evening session (or a classroom session) during which everyone logs on to Second Life and participates while being present in the same room.

I think the process could be improved as a learning experience for the students if the trial were split between class and SL. Class could be used to practice introducing evidence. There could be a really dynamic mock trial experience with Nesson as judge where students attempt to admit evidence, make objections, and argue over the basis for admission or exclusion. What evidence they get in during class, they may use in SL to present to the jurors. Also, I think it would be interesting to poll the jury anonymously, and without deliberation, after each discrete stage in the trial to see where opinion changes, if at all. Ultimately, I think SL, with some technical tweaks, is ready for HLS, but I don’t know if HLS is ready for SL. As the comments for 1/20 on the Wiki showed, the students aren’t immersed enough into SL to know how to communicate effectively with that audience. It provides an extra obstacle. I think that, at least in this instance, the students did not learn from overcoming that obstacle, but rather that they didn’t see it, ran right through it, and therefore didn’t connect effectively with the jury. Perhaps the controversy could begin in SL, and the students could witness it in SL. Imagine, a tort committed in SL. The students see it. A team of students looks for evidence, gathers witnesses. Maybe we need 6 weeks…

(2) I think Second Life has potential as a teaching tool, but should be approached with a bit of caution. Our mock trial was fun and interesting, but I’m not sure that I got as much out of it as I could have. On the plus side, I made friends with all of my group members, which is not something that has ever happened for me in law school. I also learned a lot from the other group members as we attempted to combine our various ideas into a single line of questioning. We each approached the task in a completely different way and came up with widely varying strategies. Forcing myself to let go of the attachments I had to strategies that I came up with on my own was a good Necker Cube exercise, and I think exposure to others’ perspectives strengthened my own ideas. Finally, it was less intimidating and logistically easier to participate in a trial with a few “group” participants rather than lots of individual participants.

On the minus side, Second Life is a difficult medium for simulating trials. As we discussed in class, much of a jury’s decision-making is based on their in-person perceptions of parties, witnesses, etc. It is impossible to observe the effects of facial movements, tone of voice, and so forth in a Second Life trial because Second Life avatars are fairly basic. Second, the flow of the trial seemed awkward and artificial at many points. It’s difficult to tell when an avatar is done speaking, and the inability to judge witness’s reactions makes it easier to pre-script questions rather than to engage in actual dialogue. Finally, it would have been nice to be able to discuss the trial as it was occurring—particularly on points of law. It was not clear to many of us why certain objections prevailed and others were overruled. If the judge/professor could explain his or her reasoning as the trial went on, it might be a more useful learning experience.

One thing to try might be to conduct Second Life activities while all of the students are in the same physical place. For example, the Second Life mock trial could be conducted during regular class time. That way the class could discuss things out loud without interfering with the illusion that the Second Life trial was a real trial.

It might also be an interesting experiment to do a series of nearly identical mini-trials. For example, jurors could be drawn in different ways and the attorneys could be given different numbers of peremptory strikes and allowed to engage in different levels of questioning. Differing outcomes in the trials might suggest systematic biases that can be traced to those variables.


The novelty of Second Life excites me in some weird way. I have shown all my non-law school friends about it and continuously raved about the opportunities it could possibly offer us. It is almost a venue to unlimited land and property. By creating SL, I feel as if our physical land restrictions will become almost obsolete. I think at first people will be a little cautious about joining because the uncertainty of the laws/rules/procedure of SL (evidenced by Bragg v. Linden), but as the system’s laws increasingly become similar to Real World laws and rules people will become more comfortable about joining in this virtual enterprise. I currently do not know how many people use Second Life, but I would not register for it as of now simply because it seems there are a plethora of loopholes. Perhaps in half a dozen years or so, and when I actually have some funds! However, I was thoroughly impressed with our classes SL manners. The trial process was very slow and staggering. It took what seemed like forever for people to type in their comments, statements, arguments, etc. and I found myself waiting a long time for the next post. As a result, I had to reread the whole transcript in order to fully capture the events of each SL rendezvous. With this in mind, I found it incredibly impressive how many people attended, paid attention, and did not interrupt the proceedings. I think this shows how classy and respectful our class and HLS students are. I know most of us partake in online chatting and are most likely fast writers and readers, and the patience displayed in our SL endeavor is just so admirable. Other than this, I have no comments about SL. It was fun, different, and very cool, for lack of a better word. I will be using SL on my free time to explore other islands, build things, and just have fun.

2. SECOND LIFE I thought the first SL trial was an extraordinary success and should be conducted in the future, with the following improvements:

THE STORYTELLERS. The knowledgeable and enthusiastic witnesses were crucial to the trial's success, and Andy's knowledge helped shape our case-in-chief. It may be interesting to put an expert witness on the stand in the future, though I wonder whether the ability of finding qualified witnesses in general will be possible if the issues are unrelated to Second Life.

The jurors were delightfully engaged as well. To make voir dire more meaningful, the class should recruit more jurors through increased publicity on the internet and SL. The first trial's success should boost the visibility of the experiment. In addition, students from this year's class can serve as jurors or other roles in future years. Not only will it help the trial progress more smoothly, but it will help achieve the continuity of the sharing experience that you hoped to achieve with CyberOne.

Though Martin cautioned against gauging juror reactions, I would have liked to see their faces during the trial. Were the jurors engaged or staring off into space? Should we move on to the next line of questioning? Perhaps giving jurors a more active role during the trial will both improve the trial pacing and enable the groups to feel as if they are speaking to an audience, not just a virtual space.

THE REAL SPACE. Though SL touts its ability to bring remote users together, I would encourage groups to gather in the same physical space during the trial sessions. I felt as if I really got to know my classmates (some a little too well!), and the digital world has yet to devise a surrogate for the bonding power of laughter (or tears)--"lol" or "hehe" just doesn't cut it.

Furthermore, I wonder how much of the triviality that we felt during the earlier portions can be attributed to the fact that we were typing out the trial in our jeans or pajamas, at a desk used for all sorts of work or a comfortable couch. Perhaps this problem can be addressed by improving the feel of the SL space. For instance, holding the trial in the SL courtroom or creating suits for our avatars would add to the solemnity of trial, thereby strengthening our appreciation and respect for the process.

THE STORYTELLING. Before examining the witnesses, our group planned a series of questions to ferret out an answer in the style of the "murder in the Ajax building" case. The unexpectedly slow trial pace, however, forced us to cut out half of the questions and leave threads hanging without connection to the core issues of the case. Since students are unable to gauge the interest level of jurors and judge during the trial, the opening argument, the length of examinations and closing statements should be defined (~20 minutes).

Finally, the trial can involve more issues that we learned in class by having one side try to submit certain documents or prior statements, or by introducing expert witnesses (as suggested above).

2. Second Life

I thought the Second Life idea was really cool. When I first saw Berkman Island, I was amazed at the possibilities. My only real concerns were the inability to control the arena (people popping in and out) AND the difficulty of having a real pace of conversation in typing line by line. It truly lacks the realistic value where demeanor and other witness/attorney emotions can be adequately judged. If there was a way to actually use audio or something, this might fix it a bit

What about Second Life?

I thought this was an interesting experiment. I'm not sure how useful it was, but I enjoyed doing group work together to write the closing argument. One difficulty with the structure was that all the lawyers for each side were not in touch. We couldn't develop a coherent theory of the case to carry through the entire trial. As far as an instruction tool for evidence, I think it could be helpful in the future if there was more preparation with respect to items to enter into evidence. Trying things out is always a helpful way to learn.

1) The Trial in Second Life:

Despite my initial skepticism about conducting a trial in a virtual world, I think it turned out surprisingly well. It was interesting to try and put a case on its feet, and to see what a jury made of it. If the experiment is repeated in the future, I think there are a few steps which could be taken in order to make it a more valuable experience.

a) Ensure that each team has access to a computer with adequate speed/capacity to run Second Life without problems. While my team managed to avoid major problems by having numerous computers available, and switching when one computer froze, the whole thing would have been easier and more importantly, enabled the trial to proceed more fluidly, if we had had better computers. Maybe it's possible to download Second Life onto the computers in the computer lab (assuming those are better than your average student laptop)?

b) Start preparations earlier. While I think that all the teams did a commendable job, the timeframe which with we were working meant that everything was prepared very quickly. If we had known in advance what part of the trial we would be working on, and maybe even if we had mooted it in class, that would have added both to the learning experience, and again, to the smoothness of the actual Second Life trial. I also thought it might have been nice to involve what we had actually learned about evidence a bit more - maybe it would have been possible if we had had more time to try and introduce physical evidence, raise issues of hearsay, etc.

c) The Jury. It would have been nice to have a larger jury pool from which to choose. Also, I don't know if it would be possible to get a group who were more representative of the Second Life population as a whole, but I felt like our jury was very self-selecting. I think some of them joined Second Life expressly to participate in this project, and others were also involved with the course in some way. It might have been nice to have a group of people who were more randomly chosen.

I'm not exactly sure where I can see the Second Life trial going, other than on to another form in another class, but I think the idea of having a legal system that is internal to a virtual world is a very intriguing one. It is possible that if more of the citizenry of Second Life are made aware of the trial system, it could play a real role in the governance of the community. Many people spend vast amounts of time in Second Life, and I think the existence of some sort of civic community in the virtual world could be vital to connecting people and structuring their interactions.

Our moot court in Second Life worked, I thought, surprisingly well. But like Levin's lectures, the experience could be improved by concentrating on witness examination. This seems to me the key application of evidence law to trial practice, and many of the groups missed out on the opportunity to apply our learning in this way. If you were to do this again in future years (and I think you should), you should allow more witnesses, including a couple expert witnesses, so that each group can question a witness and object to opposing counsel's questioning of that witness. Requiring both counsel to explain objections and argue for or against them would also help us apply the knowledge we have learned.

This, however, doesn't mean we need to get rid of the other parts of the trial. We could divide the class in two and work through the opening statements together in class, deciding on strategy, wording, etc. We could then record these statements or post them as text files for the juror-avatars to read before witness examination begins. After witness examination, we could again get together in our big groups to come up with closing statements based on the testimony of the witnesses, etc., and post them as we did the opening statements. When the trial is over, we can use our experiences to inform a class discussion about what worked and didn't work about the online moot court, how we would modify the procedures to create a better online dispute-resolution process, and so on.

The other problems I saw with the online trial were mostly logistical. It was difficult to get our group together to work on things; people had evening plans, lived off-campus, and were otherwise unable to get together to talk things over. (This problem could perhaps have been solved if our group had put the wiki to better use.) Also, it was difficult for eight people to gather around one laptop screen to view the Second Life proceedings. Next year, I would suggest reserving classrooms with laptop-projector hookups.

(1) Second Life:

The experience got better with each evening of the trial -- the most interactive portions of direct and cross-examination were also the most interesting. It felt like we were using the parameters of the program to their greatest in this portion of the trial, and getting toward the nub of what it means to employ empathic arguments while exposing the other side?s weaknesses. However, it was somewhat difficult to focus our cross-examination questioning given the short period of time that we had. In addition, the slowness of the program made it difficult to tell when a witness was continuing to respond to a question we had posed, which slowed the fluidity of the trial. It seems like cutting down the number of entrants could potentially make the trial more technically smooth, given the comments of the guest witnesses on the wiki.

Another issue was that for a trial that ostensibly focuses on evidence, we were relatively narrowly limited to the credibility of the witnesses. For a future iteration of the Second Life trial, I would include more forms of evidence ? written and physical evidence, and then maybe include witnesses testifying as to the character of the evidence evidence. This might allow more of an opening for student-lawyers to try out our alternate-narrative wits on cross-examination. I think it would be beneficial to have time to practice and develop our lines of questioning together with the witnesses. In order to further develop our questioning skills, it might also be very interesting to have groups attempt a cross and direct live in class, and then do the same line of questioning at night in Second Life before the jury.

I enjoyed the experimental nature of the class. While not everything worked out exactly as planned, trying new teaching methods is the only way for education to evolve. To be honest, the trial in Second Life worked a lot better than I thought that it would. It was surprising to me how respectful everyone was of the process and of your authority. I thought that due to the anonymity of the people controlling the avatars, that there would be a lot of annoying interruptions and obnoxious gestures. I was fascinated to see how all the avatars sat quietly in their seats in the amphitheatre.

Jury selection seemed to me to be the most confusing part of the trial. The format does not lend itself well to asking individualized questioning and it is hard to tell whether the avatars are being genuine. Though they are often more vague, I think that a series of yes/no questions would work best. The transcript is a good tool to keep track of the responses. The attorneys would probably need more time than they had last week to distinguish between the avatars. It would also be great to recruit more potential jurors so that the attorneys could strike.

I think that Rebecca had a good idea about recording the opening and closing statements as mp3s and then playing them at the trial. Since opening and closing statements traditionally proceed uninterrupted anyway, it would be a good way to get across the desired tone and tempo.

So that leaves the witness direct and cross-examinations. They are tricky in Second Life because it is hard for the attorneys to emphasize a question or keep hounding the witness until the witness answers the question. It is also sometimes difficult to make objections. Again, I think that more leeway should be given to the attorneys to question the witnesses longer in order to get to their point.

With the experiment in Second Life and otherwise, I admire what you are doing to broaden the horizons of education. I do agree with you that the grading system currently employed at HLS does interfere with real learning. However, I do not think that having classes pass/fail is the answer. I agree with the students who said that if the classes were pass/fail, fewer students would come to class and even fewer would make an effort to pay attention. As our collective attention spans have gotten shorter due to all of the options on the internet, I think that one solution would be to have more graded assessments, not fewer. I think that most classes at HLS should have at least midterm and a final. That way, students would have a better idea if they are grasping the material halfway through the semester, rather than having stress/uncertainty continue to build until the end of the semester.

I was also very impressed with how well the Second Life trial went; especially the witness examinations. I thought the structure of the witness examinations, the fact that only two avatars were speaking at any one time, made things run especially smoothly. I was also thinking about what you said, about the unique use we made in class of the question tool, I think you were right that this would be a radical and effective use for this tool in future classes.

Second Life Second Life was certainly an interesting experiment. From the student's perspective, there didn't seem to be any advantage over real life. It took more time, demanded simplistic exchanges, and prevented the sort of human interaction that is critical in a real courtroom. I would have rather been able to question jurors individually, ask follow-up questions, etc.

Many of these problems stemmed from the fact that there was no mechanism by which to keep order (social pressure seems radically diminished online). When real mock jurors are in a room with the lawyers, they will sit through questioning, answer when you look at them, listen to witnesses, and refrain from ballet dancing. Next time (and I'm not sure if this is possible), it would be great if you could immediately remove disruptive avatars and make sure that everyone involved is truly prepared to go through process, so that we can get into more detail and not worry about them not paying attention.

Even with this change, communication between lawyers and witnesses will still be less than snappy, but this is inevitable online, unless there is a way to include voice. That said, I realize there are advantages to the system, and it may be quite hard to get outside people to participate in real life.

In any case, I would attempt to explain your reasons for trying this; from a student's perspective, the exercise is only valuable if it reflects real life--and real life mock trials certainly seem to have an advantage in this department. It didn't go badly, I suppose, but to sell it to students, it would be helpful to point out how it advances their own goals. I think a few people got the sense that we were cutting-edge guinea pigs, which put us on the wrong side of the experiment. If we knew what we were tying to get out of the experience, what we were trying to learn from conducting it online, I think we would have felt more invested.

II. Second Life Mock Trial

For me, the most interesting question about this trial was why this format is better than a simple text based chat room. Obviously, there were some problems with people coming in and acting as a distraction at trial. While the same could happen in a chat room, there is an added absurdity to a half naked person dancing in front of the whole proceeding. There also was a general feeling of chaos at the trial. Eon didn't have the same sense of authority in Second Life that I imagine Nesson would in a real mock trial. One way to distinguish oneself would be to change font color (which I seem to remember Eon doing, but I'm not sure). Perhaps getting an judge-like robe would help as well, at least for taking advantage of the visual aspect of Second Life. Still, the general feeling that one is free to do as he or she pleases in Second Life saps the formality from the trial. The same would likely be true for a chat room as well though. Yet, perhaps that is the desired and most important effect of either format. By taking away some of the formality of the event, the students who are participating are more willing to take chance in their legal arguments. So long as the students continue to take the activity seriously, that might not be much of an issue. This still brings me back to the question of why use Second Life instead of a chat room. Undoubtedly there is a different feel to each medium. Within a chat room, a person is judge based upon what they say and how they say it (CAPS, appropriateness, color, size, etc.) whereas in Second Life that judgment is blended with the appearance of a person's avatar. There is a sense of physical space in Second Life that does not exist in a chat room. While I liked the feel it gave to the proceeding, I don't believe it adds much beyond that. One might argue that it adds formality, but a mediated chat room has the same effect if not more so. Perhaps the fact that a room full of avatars are focused on the speaking avatar gives just a bit more pressure to the speaker and thus a closer approximation to the real thing. I don't know if Second Life is better than a chat room, but as far as enjoying the activity, I do prefer it.

I think it would be helpful to bring all the groups on each side together at some point so they can discuss their overall strategy. If each attorney goes in a different direction then the argument will be all over the place and difficult for the jurors to follow. The problem with this is it drains the creative process out for some of the groups and empowers others. I suppose there is a trade off involved, and since the purpose of the class isn't to learn the case but rather to learn the technique then perhaps it is best left as is.

I hope that in the future attorneys will be able to exercise peremptory challenges. Taking away that aspect of the lawyer's responsibility seemed to cut the value of that activity in half. While we knew who we would strike, we did not need a lengthy discussion of which person should stay over others. If we had been given the chance to cut one person, we know who it would have been, but if we had to decide between which two to cut we would have needed to enter into a more complex discussion.

Generally speaking, I was satisfied with the trial. Several people I spoke felt that it was not very useful because we would not be using Second Life for a trial in real life. That criticism is faulty. This class is not a trial workshop class, but rather an evidence class. Second Life gives the opportunity to put the knowledge we have gained about evidence to work in a practical situation. In addition, the ability to consult with one's group and hear their thought process as to why or why not to make an objection was quite educational.

I am still eagerly awaiting (though it now seems it may be in vain) for the jury deliberations to be released. The ability for attorneys to see what might have worked and what did not work with the jury is a major perk of Second Life. I agree that it would be helpful for the attorneys to speak with the witnesses beforehand. In addition, I think it could be quite informative if the attorneys can speak with the jury and the witnesses after the trial to reflect on their different techniques and what did and did not work. In addition, perhaps you, Professor Nesson, could point out areas where objections could have been made or if objections that were made were appropriate.

I'd like to start out by saying that for me, the bifurcated approach struck precisely the right balance. I'm not sure it would work well in a fall/spring semester length course, but I it felt really good for a three week term. I like grades in general and like the competitiveness, so I felt like that need was fulfilled by the first two weeks of class. Then I got to enjoy a dessert of sorts in the Second Life trial experience. It felt like a space to be a little more bold and creative.

I had been on Second Life only briefly before this class. After reading about it in the news in October, I got an account and logged on for about 20 minutes. I didn't touch it again until this January. After I found out we would be using it for the class, I decided to get more acquainted with it. I traveled to the Berkman area and started exploring. One thing led to another and since then, I've spent many hours in the game learning its mechanics, meeting people, developing my avatar and building objects.

The reason I became so excited about Second Life and the mock trial was the fact that it was the tearing down of a division that is usually pretty rigid in my life. Law is my career and my educational endeavor, playing video games is one of my pastimes, one which I typically use as an escape from other parts of my life. Yet suddenly this division melted away and I found the opportunity to use a video game to engage with the law. Thus the experience was one that combined two of my interests and was completely novel. I really enjoyed it.

I would really like to see this idea go further and I'm putting out feelers in the Second Life world to see what the potential for in-world dispute resolution is. This is something I'm going to continue playing with even now that the class has come to an end.

  2. Second Life Experience – advice going forward 

I think Second Life (SL) represents a variety of interesting opportunities for innovations in education. At a minimum, SL could a better way of video-conferencing. One could imagine sitting in SL movie theater, and watching “Superman I,” while sitting next to an avatar, operated by a friend logged from a computer in the Shanghai airport. The two friends could chat about the movie in real-time, and share the experience over distance in a way that was not possible before. In an elementary or high school setting, one could imagine linking classrooms in St. Louis and Tokyo in a discussion about a short story, current events, etc. In law school, a similar arrangement could be set-up. A more sophisticated use of SL in the legal context might enable a law firm or NGO’s legal team to polish their arguments and the testimony of key witnesses against an OJ Simpson-style dream team at a fraction of the cost, because a Dershowitz could cross-examine the NGO’s key witness in his pajamas from the comfort of his Cambridge home.

As far as using SL as a tool to teach Evidence, I think that is more of a stretch. I can see it’s value in teaching sophisticated SL users about trial advocacy and the trial process. However, I think it is overly optimistic to expect students in even a semester-long course to become sufficiently comfortable with SL to be able to engage meaningfully in a mock trial in SL. Perhaps as SL becomes more user-friendly and broad-band connections/PC video cards improve, SL will become more useful in the classroom.

I should add that I learned a great deal about the Internet and the society in which it emerged, and I especially appreciated your push us out of our comfort zones.

It was a great experience for me as an observer. One of the strengths of SL over usual classroom experiences is the ability of everyone to "speak" at once whereas in the real classroom some ideas get lost as people (usually) take turns. In text chat, everyone can put an idea "out there" and have it seen by others, whether or not it becomes part of the major conversation. Given the subject of the course is evidence, perhaps trying to do an entire trial was too ambitious. Perhaps it would be well to scope a SL event on one aspect of a trial, to allow for more detailed consideration of that aspect. I did not experience it as going too slowly. The nature of asking questions is deliberative and having to text-chat causes one to select words carefully. I think this may also be another positive aspect of the use of the SL environment. Sitting in the back, I had difficulty seeing the avatars because of all the floating name tags. I wonder if the tags can be turned off.

I am responding now to an observation somewhere above that the avatars cannot display emotion visually and that limits an ability for lawyers to "read" the jury. How to display emotion on the faces of avatars has been determined, at least for "human avatars." I wonder if someone could create a special shirt for avatars serving on juries, such that there would be several "buttons" on the back for basic "emotions" like, Doubt, Sorrow, Disagreement, Surprise, and so forth. Since we ordinarly see our avatars from above and behind, humans whose avatars were serving on a jury could easily click the appropriate emotion "buttons" on the backs of shirts that would become facial expressions and could be seen by the lawyers and others.

"Bruce Flyer"

january 24

becca and i are hoping to offer Mock Trial in Second Life this spring: three trials in Second Life drawn from the body of work begun in cyberone
bloggers beware dealing with the case of Josh Wolf
spank no more
the filesharing solution, dealing with the case of DJ Drama

done in a syncopated weekly progression in real and second life
with goal to leave a residue of moderated opinion on the issues
and mutual respect among participants

Courage
i want to you to help me offer a new form of learning. here's my outline.

0. opencourseware

...

january 26

nesson here:

Friendly.jpg

yesterday in new york, seeing stuart sucherman, fred friendly's producer, thinking of him now as i type these words, listening to bob seger and his lady sing the answer is the question. when trust is almost broken, stuart sitting before me heavy and distracted telling me the course of his success. told him my sex life with fern was great. he thanked me for telling him and went on. then stuart shieber on a bench with twenty minutes before our meeting with y.s.chi, stuart with a question wanting to listen for an answer. sitting on the bench with stuart i sketched the comic version of the two of us knights emmisary from the lord of education coming to engage the lord of content, and so the vision played out. then in our meeting probing, probing. the thrill is in the chase. y.s. off the record, conor there to witness, with his permission i would tell it all, let you listen to a conversation between the chairman of our provost's committee on scholarly publication and the strategist for reed elsivier, vice chairman y.s.chi. (ys, with your permission which i would ask you to indicate if you are willing by editing this wiki to show your assent and participation. conor, please. indeed, instead of me writing to you about the substance of our meeting and next steps i would greatly appeciate you writing me and here with your understanding. i have suggested to my students in cyberone and evidence that they might like to come along on the adventure of exploring articulation and moderation of our university's most engaging questions.)


conversation between stuart shieber an y.s.chi put me in mind of our cyberone conversation, mike fricklas and wayne marshall speaking to each other across the copyright divide, which puts me in mind of aaron brooks lovely project, and my hope to catch sucherman's interest in bringing fred friendly seminars alive again in the university world of second life.

will we be able to do this as a course for credit at harvard law school, that is my question to answer today. may we do it, becca and scott and colin and rob and phil and all as berkman center clinical program, affirmative engagement with the medium. but first i have to get my grades in.


Friendly seminars in SL? YES PLEASE.


Press Coverage

There is an ongoing discussion of the case at the Second Life Herald

And, below, coverage from the METAVERSE MESSENGER":

Braggvlinden.jpg

Mock Bragg Trial Concludes

By DAGMAR KOJISHI Staff writer

The real life case of Bragg v. Linden Lab continues to wend its way through a tortuous legal process, but a virtual version of it has come to a close.

The next step in the real life saga was scheduled for Feb. 5, when a hearing was to be held on Linden's motion to compel International Chamber of Commerce arbitration in the case, as specified in the Terms of Service.

In the meantime, Harvard's Evidence 2007 course held in Second Life held a mock trial in late January, using SL residents as jurors and role-playing witnesses, and the jury reached a verdict.

(click to continue reading)

january 29

Hi Professor-

I'm going to post this link on the wiki as well, but I just wanted to
make sure you saw that New World Notes, a blog/news agency for Second
Life, has posted a story about our mock trial:

http://nwn.blogs.com/nwn/2007/01/mixed_up_realit.html#more

Also, when are your office hours this semester?
(nesson here: for office meetings please make a date with my assistant, moira harding)

Thanks!

Ken

(for past date entries see below0


Class Group Work

SL meeting transcript for Jan. 16th

transcript for Jan. 17th

transcript for Jan. 18th

Snapshots from the trial

Jury deliberation Transcript

pics from the end of class: [1] [2] [3] [4] [5]

New World Notes coverage of the trial [6]


Lecture Videos

Click here for a one-click install/subscribe with Democracy Player (basically, you automatically get your Evidence videos delivered and ready to watch).

Archived Audio Files (Evidence of Winter '06)

  • Winter 2006 Evidence Audio Files - here you can find segments ranging from 1 minute 15 minutes on rules, problems, historical figures, evidence concepts, and more. You can right click on the files to download them, or just listen to them streaming.

Useful Links