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
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Contents
- 1 Liberty: the Original Position
- 2 The American Jury: Bulwark of Liberty
- 3 VERDICT
- 4 Factual GUILT Beyond Reasonable Doubt
- 5 Client's Truth
- 6 Trial as a Constructed Drama of Evidence Offered and Tested to Prove Tort or Crime
- 7 SPOLIATION -- Cheating
- 8 the Point - Credibility and Confrontation
- 9 Scientific Truth in Court
- 10 Poker Teaches Legal Thinking
- 11 Jury Nullification
- 12 The Rules in Play
- 13 Attorney Client Privilege
- 14 2008 Exam
- 15 2008 Media Editing Project
- 16 Useful Links
- 17 Evidence the way i learned it.
Liberty: the Original Position
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 constituted a government and seek to preserve it so that we may share the benefit, even the necessity of governing ourselves.
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
- trial by jury in the early courts of the Massachusetts and the Nation
- the problem of pockets of resistance to the common good
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
- fifth amendment privilege
- 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?
- 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?
- My Cousin Vinny: Lawyer Meets Client
Factual GUILT Beyond Reasonable Doubt
The Ambiguity of Truth
- 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
- 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
Trial as a Constructed Drama of Evidence Offered and Tested to Prove Tort or Crime
A Showing of A Civil Action, with pizza
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
- 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
- lawyer's rules
- 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.
- private v. public
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
- read and absorb at least the method and purpose of programming no-limit hold'em.
- articulate metaphors for each of the parameters of the program.
- 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
The Rules in Play
fred friendly
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
- My Cousin Vinny: Resolution
2008 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
Direct v. circumstantial evidence and the role of the jury
Is reasonable doubt a probabilistic concept?
The Blue Bus Case - standard of proof in the civil case
Lecture 4 clips:
Using the probable cause hearing to pin down a witness's testimony
Scope of probable cause hearings
Destruction of evidence as obstruction of justice
The attorney-client privilege under moral and ethical questioning
Spoliation of incriminating evidence
Lecture 7 clips:
Character evidence on cross-examination
How the rape shield law came about
Why evidence of prior sexual acts with the Defendant is admissible even under the rape shield law
Rule 412 eliminates introduction of evidence of the victim's promiscuity
The Four Testimonial Capacities
Why leading questions are not allowed on direct examination (poor sound quality)
Lecture 8 clips:
Lecture 9 clips
Legalism = Interpretation of the Word
Murder in the Ajax Building Hypo
The Case of the Forgetful Witness Hypo
Negligent Entrustment and Window Washers Hypo
Lecture 10 clips:
Constructing witness testimony
Witness testimony and preperation: Dr. Carol Leicher talks about a malpractice suit against her (long clip)
Lecture 13 clips
Skill of Being Able to See From the Other Side's Point of View
Original v. Duplicate Document
Comments on the Closing Argument in the Verdict
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 |
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| S1/Eon's Peons | Team A | Team B | |
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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.
Useful Links
- Federal Rules of Evidence
- Nesson's Evidence book
- The Question Tool
- Berkman@10
- moebius transformation: the riemann sphere on the complex plane with u as insight point
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