Evidence 2008
this course expresses my understanding of law and its social, physical and rhetorical environment. i am joined in the enterprise of teaching it by my teaching assistants, andrew woods and kevin wallen. i thank my daughter rebecca for her inspiration and guidance in all dimensions of this enterprise. i thank the berkman center and the audio-visual department of harvard law school for the engine of intelligent expression they provide.
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. i am here to think with you about how we make and understand meaning from evidence.
our field of play is the American Jury Trial and the explosively expanding net
this is a course about process as 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
We consider two games, litigation and poker. by litigation i mean trial by jury. by poker i mean no limit tournament texas hold'em.
We seek to create a course that demonstrates value of:
- strategic thinking
- for use in and beyond the classroom in law and the business and pleasure of life;
- learning how to choose and better frame a question;
- understanding the law's process for framing and answering questions of citizen liberty; understanding the ideals of the law of evidence and the process by which law makes meaning, grasping this process both at individual and institutional levels and seeing connection between the two; seeing this process as a creation written in legal code, connecting with the idea that law is code, code is law;
- action we take in the process of learning the process;
- we build our future in law and code
- games to simulate reality, stimulate thinking, teach skills, have fun
- avatars animated by group processes interacting in a virtual world following the roles and procedures of the law of evidence;
- meeting and talking in both virtual and real space;
Our study of process encompasses
- laptops and journals
- groups
- lunch plans
- playing poker
- moot court activity in second life
- tournament play
- film nights and friday afternoons
Contents
- 1 where are you along the path of learning
- 2 Terms on which WE Start: Original Position: Liberty
- 3 Protection of Liberty Built into Process and Privilege
- 4 GUILT Beyond Reasonable Doubt
- 5 Client's Truth
- 6 Poker Teaches
- 7 Trial as a Constructed Drama of Evidence Offered and Tested to Prove Tort or Crime
- 8 Evidence Discovery and "Spoliation" (a fancy word for cheating)
- 9 Materiality --Framing the Question
- 10 Prejudical Evidence
- 11 Credibility and Confrontation
- 12 Legalism -- Hearsay and Exceptions
- 13 Witness Preparation
- 14 Experts
- 15 Attorney Client Privilege
- 16 The Rules in Play
- 17 Exam
- 18 glossary
- 19 Useful Links
- 20 Media Editing Project
where are you along the path of learning
- 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
- in your journal - what is your passion, what is the question driving your life
We will follow the story of jury trial from magna carta to the present, as played out in the rules of evidence, in the roles of the players, and in how the roles are played.
We will tell the story of poker along the way.
- 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 one of whom has liberty and a personal sense of responsibility. Call this group WE THE PEOPLE. Count yourself among us. How do WE the PEOPLE not lose our Liberty yet still claim the benefits of GOVERNMENT?
Imagine yourself speaking to this challenge in the voice of a founder about to make a government by which WE will seek to govern ourselves, knowing as we do that a government will promulgate, interpret and enforce rules that will threaten to stifle our liberty.
form groups
- My Cousin Vinny: Charged
Protection of Liberty Built into Process and Privilege
Process of Law
- Breyer, Active Liberty pp. 15-34
- Scalia, A Matter of Interpretation pp. 3-48
- "jury" - as Scalia would, start with the word - jury - a noun derived from juris - law
- The American Jury: Bulwark of Liberty
- 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
- the problem of pockets of resistance to the common good
- Nullification of the Jury's Role as Check to Legislative and Executive Power
- Trial by Jury Constrained by Judges: The Jury's role with respect to Law, Fact and Justice
- Racism and Slave-Holding Capital: Robert Morris, Lemuel Shaw and Fugitive Slaves
- Corporate Fear of Civil Juries in the Rise of Negligence and Unions
- 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 become a law of evidence that lawyers may not argue the injustice 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 client to the jury.
- assume the role of advocate for a client asserting a liberty interest which is fundamental to him. What are the constraints upon me in carrying out my role?
- ethics, my personal code, my inner sense of constraint on how i can act and be true to myself
- 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 are the constraints upon me in carrying out my role?
- My Cousin Vinny: Lawyer Meets Client
GUILT Beyond Reasonable Doubt
The Ambiguity of Truth
- riddle of three hats
- the inference of self and perception of the 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"
- My Cousin Vinny: The Arraignment
Client's Truth
- Meet my Clients:three live cases to think through. In each case consider what evidence and argument to offer in support of the claim or defense. Consider the time, place, form and manner in which to make the offer.
- GPSTS - Poker and the Law
- frame a declaratory action to be filed in Massachusetts to establish the legality of a charity poker tournament.
- University and RIAA
- frame a motion to quash a subpoena from a copyright holder to the university for the identity of a student downloader on grounds of undue burden
- Harvard Professors Nesson and Palfrey Tell RIAA : "Take a Hike"
- RIAA Targets New Colleges, Still Avoids Harvard
- Why the RIAA may be afraid of targeting Harvard students
- In the Fight Over Piracy, a Rare Stand for Privacy
- Marijuana on Boston Common
- frame a motion to dismiss a criminal prosecution for possession of marijuana on grounds of unconstitutionality under the Massachusetts Declaration of Rights
Poker Teaches
- 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)
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 Byrne - The Pentagon Papers Case
- Judge Skinner
- Judge Haller
- Judge Hoffman
- the 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
- the lawyer's roles
- the 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
- the lawyer's rules
- My Cousin Vinny: Probable Cause
Evidence Discovery and "Spoliation" (a fancy word for cheating)
Physical Discovery
- D.C.Bar on Ethics of Evidence Destruction
- Smoking Gun
- Mehrens - Whose Got the Button
- Hitch v. Arizona
- Anne Anderson v. Beatrice Foods
- Nesson, Incentives to Spoliate Evidence in Civil Litigation, 13 Cardozo L. Rev. 793 (1991)
Digital Discovery
- Privilege and Waiver
- Changes to Accommodate
Deception and Cheating in Law and Poker
- the case of the energetic investigator
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
Materiality --Framing the Question
Relevance and Prejudice
How do you introduce evidence to prove or refute a charge
How do you Object! How does the Judge Decide
My Cousin Vinny: Jury Selection
Prejudical Evidence
- What is evidence of a defendant's or a witness's character
- How may evidence of character be used?
- as direct affirmative proof of an issue in contest
- as inferential affirmative proof
- as attack on credibility
- People v. Zackowitz
- Return to the Scene of the Crime
- "Money or Death"
- United States v. Beechum
- Proof of Defendant's Good Character
- Proof of Defendant's Violent Character
- The Mayor
- Tanford & Bocchino, Rape Shield Laws and the Sixth Amendment
- Prostitution, Rape or Both?
- Explanation for Pregnancy
- My Cousin Vinny: Opening Statement
witness roles
Credibility:
- What and why do we believe
- Direct Examination
- leading questions
- scope of examination
- strategy
- Cross-Examination
- the testimonial capacities
- limitations on cross
- no extrinsic proof of collateral matter
- strategy
Credibility and Confrontation
- Confronting Ones Accusers: From the Trial of Sir Walter Raleigh to Where WE are now
- U.S. Constitution
- hearsay as it relates to the credibility of witnesses and the quality of confrontation
- 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
Legalism -- Hearsay and Exceptions
- Definition of Hearsay
- Kuntsler Contempt Specification #1
- 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
- Hot Pursuit?
- The Stolen BMW
- The Forgetful Witness
- He who Laughs Last...
- Stage Fright
- Stagger P
- Snowmobile Slaughter
- Strong Feelings and Future Plans
- Negligent Entrustment
- Window Washers
- Accident Reports
- Hospital Reports
- Police Reports
- My Cousin Vinny: Cross Examination
Witness Preparation
- how to prepare a witness
- Dr. Carol Leicher
- My Cousin Vinny: Expert Witness
Experts
- 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
Attorney Client Privilege
Presumed Guilty
- Bentham, Rationale of Judicial Evidence
- Proposed Rule 503
- The Blackacre Fraud
- Clark v. State
- The Eavesdropper
- The Energetic Investigator
- Hit and Run
- Upjohn v. United States
- My Cousin Vinny: Resolution
nico marshall nesson
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
evaluation
class online poker tournament
Exam
glossary
- liberty
- justice
- crime
- misdemeanor
- statutory offense
- elements of offense
- evidence
- sufficient to support a finding
- verdict
- guilty
- reasonable doubt
- privilege
- presumption
Useful Links
- what's a WIKI
- How do I join in
- Federal Rules of Evidence
- Nesson's Evidence book
- The Question Tool
- Second Life
- boris
- WIKI 2005
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:
[3] - Poker as a metaphor for the Federal Rules of Evidence
[4] - RIAA lawsuit against music downloading
[5] - Incompetent, Irrelevant, Immaterial!
[6] - Historical logic behind the idea of a jury of peers
[7] - Checks and Balances in our Due Process system
Lecture 4 clips:
[8] - How to keep the judge happy
[9] - Using the probable cause hearing to pin down a witness's testimony
[10] - Scope of probable cause hearings
[11] - Disturbing a verdict
[12] - Destruction of evidence as obstruction of justice
[13] - The attorney-client privilege under moral and ethical questioning
[14] - Preserving the record
[15] - Spoliation of incriminating evidence
Lecture 7 clips:
[16] - The importance of relevance
[17] - Limiting propensity evidence
[18] - Character evidence on cross-examination
[19] - Using extrinsic evidence
[20] - How the rape shield law came about
[21] - Why evidence of prior sexual acts with the Defendant is admissible even under the rape shield law
[22] - Rule 412 eliminates introduction of evidence of the victim's promiscuity
[23] - The Four Testimonial Capacities
[24] - Why leading questions are not allowed on direct examination (poor sound quality)
Lecture 10 clips:
[25] - Constructing witness testimony
[26] - Witness testimony and preperation: A guest speaker talks about a malpractice suit against her (long clip)