Evidence

Nesson's Evidence 2009

Evidence C January 5-24, 2009 M,T,W,Th,F 9:00 AM - 12:00 PM

Professor Charles R. Nesson

Nesson's Evidence brings you the law of evidence in the context of the American jury trial. Nesson explores the nature of truth, proof and the burden of persuasion, often using the metaphors of poker, a game he encourages his students to learn. He explores perception, memory, credibility, clarity, relevance, prejudice, hearsay, confrontation and privilege. He focuses on principles of rhetorical storytelling instantiated in judicial process. This procedural engine is our trial system, built of legal practices articulated in code and action, run by fallible beings each with a role to play, its output what passes for justice. Expect multimedia, engagement in real cases, group activity and personal engagement.

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Feedback Memos/By e-mail

Feedback Memos/By e-mail including charlie's response

hilarious and informative Rhode Island Blogs

Rhode_Island_Court_Hearing_Blogs

Groups

Please fill in your group's roster before class on 8 January 2009. (Just hit the "edit" link adjacent to the heading and put your names underneath the appropriate group.) If you are having trouble remembering everyone's name, need to have contact details fleshed out, or can't figure out how to edit the wiki, e-mail Isaac.

Feminine Legal Brilliance	Law Lords	Liger	Pirates
Lakeisha Caton Michelle Chun Morgan Hill Nicole Jackson Carmel Shachar	Jay Gill Brandon Halter Eric Herrmann Justin Olsson Nick Perros Jimmy Richardson Emily Wack	Evie Breithaupt Nathan Floyd Ana Montoya John Ohlendorf Joel Peters-Fransen Debbie Rosenbaum Jessica Vu Brian Wessel	Kyle Tucker Josh Deutsch Silvia Martinez Ray Bilderbeck Melissa Causey Kyle Poe Jonathan Montgomery
S1/Eon's Peons	Team A		Team B
Alison Welcher Rob Williams Jonathan Menitove Rob Ellis Nick Morales Tobias Loss-Eaton	Pete Ostrovski Jared Jamesson Mike Posner Dan Silverman Sarah Solomon Liz Kim Ilan Goldbard	Andrew Midgett Kristin Kramer Frank Manley Phillip Stadermann Mitchell Griffith Devin Sullivan	Mark Cianci Brandon Buchanan Allison Hunter Loni Edwards Justin Liu Matthew Collin SeonJoo Yoon Saied Pinto John Gulliver

Assignments

Due before class on 8 January 2009: Start from the premise that we're going for a refund for the class of people that Joel represents. What's the best argument for a refund? Please work on your answer in groups, and e-mail your answers to Charlie and Isaac when you are done.

Results

Due before class on 9 January 2009: For those students who went to the court hearing in Rhode Island, please write out a blog entry/journal post/some account. Then, when you are done, please paste in what you have written on the blog page. Please do not read the blogs of others before you post yours.

Rhode Island Court Hearing Blogs

Do in class on 9 January 2009: Five things: (1) Tell the biggest thing you've learned; (2) Tell your biggest worry; (3) Speak directly to Nesson; (4) Sign, or don't; (5) Indicate "Do Not Share", or don't.

Shared Feedback Memos

Due before class on 13 January 2009: Watch Dr. Carol Leicher here. (RealPlayer [unfortunately] required.)

Due before class on 14 January 2009: Edit this brief, our response to the Plaintiffs' opposition to our motion to amend our counterclaim. (Exhibits A, B, C, and amended D included.)

Due before class on 16 January 2009:

Complete your grading (A, B, and C) of the edits of Nnamdi's brief and e-mail it to Isaac.
Revise your letter to Solicitor-General-designate Kagan in light of your group discussions and Charlie's remarks and submit it to him by e-mail.
Read the rules about attorney-client privilege, review the proposed rule 503 that has not been adopted, and Upjohn Co. v. United States, 449 U.S. 383 (1981), and be prepared to understand Nesson's discussion of it, and to discuss it yourselves.

Group assignments made 15 January 2009:

Liger: Revise the front page text for joelfightsback.com to make it warmer, livelier, more compelling â in general, to implement the general remarks Nesson made about communications strategy and our front page. Do not feel restrained from making other suggestions if you are so inclined. Due Friday 16 January.
Law Lords: Prepare a Motion to Compel Response to a Subpoena served on Matthew Oppenheim, Darth Sidious of the RIAA and recording industry. You will receive information from and consult with Isaac. The target for having a deployable motion is by Sunday 18 January.
Team B: Prepare a physical and/or virtual poker tournament to be held next week by the class. Please have logistical information ready by Saturday 17 January.
Unassigned: Review the disclosures Joel has already been made, Plaintiffs' initial disclosures under Rule 26(a), and discussion surrounding it. Check for compliance with the rules, and suggest a use of the forms Rule 26 provides to meet the requirements in a way that does not complicate or burden our litigation strategy more than necessary. Isaac will help you with the documents you need.

Exam

DIRECTIONS: This exam is a take-home exam returnable by e-mail. Include your name and Harvard ID number; when it is completed, e-mail it to Moira Harding (mharding@law.harvard.edu). Your personal information will be redacted. Do NOT e-mail the exam to Prof. Nesson. The exam is limited to 1500 words, to be allocated over the two questions in any way you choose. Include in the subject line to Moira a statement indicating "SHARE" or "DO NOT SHARE". All exams will remain anonymous.

Question 1

The question: Of what is this evidence?

Question 2

What is the RIAA's best case against Joel? Engage and embrace, if you can, Joel's strongest case.

Evidence the way i learned it.

evidence is object in context from which another draws meaning. that's you. i am here to teach you how to make and understand evidence, to think with you about how we make and understand meaning from evidence.

process is substance. we consider relationships among

the game we choose to play
the rules of the game we choose to play
how we play to win
the frame within the game within the frame

We focus on two games: the game of Trial By Jury and the game of Poker. By jury i mean an American Jury; this is at base a course in american law. By poker i mean no limit tournament texas hold'em.

We seek to demonstrate:

critical strategic algorithmic thinking

for use in and beyond the classroom in law and the business and pleasure of life;

how to choose and better frame a question;

for use in all forms of discourse, the "question" being the most incisive way in which penetrating insight is expressed

how to better understand and play the game, win and have fun
how to put thought to action as a clinical way of learning and teaching

where are you along the path of learning

moebius transformation: the riemann sphere on the complex plane with u as insight point

Plato's Allegory of the Cave

Flatland, Edwin Abbott (to loosen your ability to see in different dimension - what seems complicated in one dimension may be simple when seen from another)

buy a journal book, find a pen you like to write with, keep a journal for this course, or if you choose, keep a digital journal

Our study of process encompasses

laptops and journals

groups

lunch plans

playing poker

film night

We will follow the story of the American jury from the myth of magna carta through the American Revolution to the present, as played out in the rules of evidence, in the roles of the courtroom players, and in how the roles are played. Players include prosecutor, judge, defense lawyer, and WE the People in their (our)participatory role as jurors. The judge is in charge of running the show. We will tell the story of poker along the way.

in your journal - what is your passion, what is the question driving your life

each day in your journal your distillation of what you have learned

Terms on which WE Start: Original Position: Liberty

EVIDENCE: The Law of Trial By Jury

Conceptualizing the "original position"

Imagine a land of heroes and heroines each upstanding, each one with a personal sense of civil liberty and civic responsibility. Call this group WE THE PEOPLE. Count yourself among the group. WE would like to constitute a government that we may share the benefit, even the necessity governing ourselves.

How do WE not lose our Liberty yet still claim the benefits of GOVERNMENT?

Imagine yourself speaking to this challenge.

form groups

Vinny, the charge

The American Jury: Bulwark of Liberty

Process of Law

Breyer, Active Liberty pp. 15-34

Scalia, A Matter of Interpretation pp. 3-48

"jury" - a noun derived from juris - law

Protection of Liberty Built into Process and Privilege

the problem of pockets of resistance to the common good

peers of the viscinage, peers of the district

trial by jury in the Massachusetts Declaration of Rights

trial by jury in the Constitution of the United States of America

racism in the Constitution of the United States of America

trial by jury in the early courts of the Massachusetts and the Nation

Akil Amar, The Bill of Rights and our Posterity

Chief Justice John Jay's Instruction to the Jury in Georgia v. Brailsford

VERDICT

The General Verdict: Jury Role as Check to Legislative and Executive Power

Guilt of What?

factual guilt of violation of statutory law

moral guilt: judge of the whole case, fact and "law" in its original meaning

Trial by Jury Constrained by Judges: The Jury's role with respect to Law, Fact and Justice

Judicial transformation of the meaning of "law"

Response of judicial conception of law and structure of process to Slave-Holding Textile_Manufacturing Capital

Corporate Fear of Civil Juries in the Rise of Negligence and Unions

Racism

Robert Morris, Lemuel Shaw and Fugitive Slaves

Emmett Till

Swain v. Alabama

White v. Crook

Privileges of Citizens and Their Lawyers

the privilege of privacy

the responsibility of lawyers

It was not at the time of our founding but has since become law that lawyers may not argue the injustice or stupidity of a law to an American jury nor inform jurors of their power to acquit notwithstanding their conclusion that the defendant has violated the letter of the law as given them by the judge. Judges prevent lawyers from doing so by holding them in contempt of court. This threat to their physical liberty constrains the freedom of lawyers to speak on behalf of the defendant to the jury.

assume the role of advocate for a client asserting a liberty interest which is fundamental to him. What constrains you in carrying out your role?

ethics, the domain between what you know to be true and what can be proved against you, personal code, inner sense of constraint on how to act and be true

contempt of court, the judge's weapons for enforcement against a lawyer who acts against the judge's order

what are the contemnor's rights when held in contempt by a judge?

My Cousin Vinny: Lawyer Meets Client

Factual GUILT Beyond Reasonable Doubt

The Ambiguity of Truth

necker cube

riddle of three hats

the inference of self and perception of self by other

Daniel Gilbert, He Who Cast the First Stone Probably Didnât

truth as correspondence asserted from coherence

the blue bus

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

Unanimous General Verdict of Empowered Citizens

My Cousin Vinny: The Arraignment

Client's Truth

Meet my Clients:three live cases to think through. In each case we will consider what evidence and argument to offer in support of our claim or defense in the various judicial contexts in which issues of proof arise.

The Case of the Non-Existent Crime: Potential Prosecution by the United States Government of Russ DeLeon '91 and Ruth Parasol, founders of PartyGaming, for violation of the Wire Act.

PartyGaming founder admits breaking US law

PartyGaming founder tells US court of regret

the Federal Wire Act

RIAA v. Joel Tenenbaum

field trip tuesday afternoon january 6 to providence rhode island to hear riaa's motion to compel joels mother to allow her computer hard drive to be imaged

Commonwealth v. Cusick

on appeal in massachusetts from conviction for marijuana possession, awaiting the commonwealth's brief on our constitutional challenges

Marijuana on Boston Common

The Client's Account

Trial as a Constructed Drama of Evidence Offered and Tested to Prove Tort or Crime

A Showing of A Civil Action, with pizza

Jonathan Haar, A Civil Action

Anderson v. Beatrice

The Judge's Roles; Director of Order, Protector of Liberty and Justice

Solomon

Judge Lemuel Shaw

Judge Matthew Byrne - The Pentagon Papers Case

Judge Walter Skinner

Judge Chamberlain Haller

Judge Julius Hoffman

judge's rules

what moves are you allowed to make, and when

what rules can you break, and when

what are your powers of enforcement

whom or what do you serve

lawyer's roles

John Doar - video

Bill Kuntsler (Contempt Specification #3)

Leonard Boudin

Jan Schlichtmann

Jerry Facher

lawyer's rules

what moves are you allowed to make, and when

what rules can you break, and when

what are your powers of enforcement

My Cousin Vinny: Probable Cause

SPOLIATION -- Cheating

Deception and Cheating in Law and Poker

Cheating in Prosecution

criminal

outright framing

prosecutorial abuse of discretion

civil

Anne Anderson v. Beatrice Foods

Cheating in Defense

the case of the energetic investigator

D.C.Bar on Ethics of Evidence Destruction

Smoking Gun

Nesson, Incentives to Spoliate Evidence in Civil Litigation, 13 Cardozo L. Rev. 793 (1991)

It was long a practice in our courts to permit lawyers to vet jurors peremptorily, to a certain number without need to have or state a reason.

What is the lawyer's responsibility to constitution, client and self with respect to race and gender in jury selection.

Batson v. Kentucky, 476 U.S. 79 (1986)

J.E.B. v.Alabama, 511 U.S. 127(1994)

private v. public

ken stalter: masks

Mike Caro, Tells from Actors

cheating online - AbsolutePoker

My Cousin Vinny: Public Defender

the Point - Credibility and Confrontation

How do you introduce evidence to prove or refute a charge

How do you Object! How does the Judge Decide

The Rim

Commonwealth v. Edelin

The Wire

Prejudical to the Point

How may evidence of character be used?

as direct affirmative proof of an issue in contest

as inferential affirmative proof

as attack on credibility

Credibility:

What and why do we believe

Direct Examination

leading questions

scope of examination

strategy

Cross-Examination

the testimonial capacities

limitations

strategy

Witness Preparation

Dr. Carol Leicher

Confronting Ones Accusers

From the Trial of Sir Walter Raleigh to Where WE are now</b>

U.S. Constitution

hearsay

The Treason Trial of Walter Raleigh
Washington v. Swan
Mattox v. United States (1895)
Crawford v. Washington (2004)
Davis and Hammon

My Cousin Vinny: Cross Examination

Scientific Truth in Court

Wells v. Ortho
Agent Orange
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)

My Cousin Vinny: Expert Voir Dire

Poker Teaches Legal Thinking

Poker Teaches Strategic Thinking: Learn to Play One Card War

introduction to poker as a game and as a metaphor

play one card war

a lesson from the professor- - Howard Lederer: Poker is a Strategic Betting Game

analyze the final hand in The Cincinnati Kid: What was the kid's mistake?

analyze in the final hand in Rounders: What hand can Teddy possibly have been playing? What was his tell?

hold'em

Crandell Addington can tell you a history of hold'em

A. Alvarez, The Biggest Game in Town

A Big Deal, The Economist

read and absorb at least the method and purpose of programming no-limit hold'em.

Strategic Thinking

articulate metaphors for each of the parameters of the program.

Sjoerd Henstra & Robin van der Zwan, Artificial intelligence and data mining applied to no-limit Texas Holdâem

skim for flavor, or dig deeper if you wish

Binmore, Game Theory: A Very Short Introduction (Oxford, 2007)

Axelrod, The Evolution of Cooperation ?, (Chap.1)

Grossman, New Tack Wins Prisoners Dilemma

Francis Beer, Games and Metaphors

Baird, Game Theory and Law (1994)(Chap.1)

Poker Teaches (Google Video)

Jury Nullification

Preliminary Jury Instructions

The Rules in Play

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fred friendly

the kerosene burner

socratic inquiry - poker thinking

willingness and ability to see from the other side

rodney king

how do you feel about lisa and vinny having pulled off a successful fraud upon the court

the verdict

exam

evaluation

class online poker tournament

Attorney Client Privilege

Presumed Guilty

Bentham, Rationale of Judicial Evidence

The Eavesdropper

The Energetic Investigator

My Cousin Vinny: Resolution

2008 Exam

exam

2008 Media Editing Project

here are videos of the class...:

Lecture 1 - 2008/01/02
Lecture 2 - 2008/01/03
Lecture 3 - 2008/01/04
Lecture 4 - 2008/01/07
Lecture 5 - 2008/01/08
Lecture 6 - 2008/01/09
Lecture 7 - 2008/01/10
Lecture 8 - 2008/01/11
Lecture 9 - 2008/01/14
Lecture 10 - 2008/01/15
Lecture 11 - 2008/01/16
Lecture 12 - 2008/01/17
Lecture 13 - 2008/01/18

Can't edit the wiki? create an account and email your username to mharding@law.harvard.edu. I'll reply to your message when your editing priviledges have been activated.

To select a segment from any of the above lectures that you'd like to appear as a separate link, click on the lecture you're looking for and copy and paste the file path that appears in editing mode. Add the parameters (the start time and the end time) at the end in the following format:

?start=00/00/00&end=00/00/00

e.g., hour/minute/second.

Lecture 1 clips:

Poker as a metaphor for the Federal Rules of Evidence

RIAA lawsuit against music downloading

Incompetent, Irrelevant, Immaterial!

Historical logic behind the idea of a jury of peers

Checks and Balances in our Due Process system

Lecutre 3 clips:

Arraignment - differances between civil and criminal cases

Symbolic trial over a hidden object

Archibald Cox