Evidence 2008

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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

We start this class with focus on two games, though our interest in games encompasses all of them: 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 create a course that demonstrates value of:

  • critical strategic algorithmic 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;
for use in all forms of discourse, the "question" being the most incisive way in which penetrating insight is expressed
  • games and understanding games to simulate reality, stimulate thinking, teach skills, have fun
  • avatars
animated by individual and group process, interacting in a virtual world, useful for learning and teaching roles and procedures in law and civil discourse
meeting and talking in combined virtual and real space;
  • understanding the law's process for framing and answering questions;
understanding the ideals of the law 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;
  • understanding civil liberty
for use as a citizen of america and your community and family

  • putting thought to action as a clinical way of teaching and learning
for use in building a technologically assisted culture of good faith in law and code and self-sustaining financial structure

Our study of process encompasses

laptops and journals
lunch plans
playing poker
moot court activity in second life
tournament play
film nights and friday afternoons

Here are course evaluations from an earlier class.

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
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

Evidence the way i learned it

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.

Fried, Liberty: The Very Idea
Magna Carta
Trial By Jury

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
Akil Amar, The Bill of Rights and our Posterity
Chief Justice John Jay's Instruction to the Jury in Georgia v. Brailsford
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
Emmett Till
Swain v. Alabama
White v. Crook
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?

My Cousin Vinny: Lawyer Meets Client

GUILT Beyond Reasonable Doubt

The Ambiguity of Truth

necker cube

NeckerCube 01.jpg

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 Didn’t
truth as correspondence asserted from coherence
the blue bus
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 logo round sm.jpg

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

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

Danielellsbergtime.jpgA Civil Action.jpg

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

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
John Doar - video
Bill Kuntsler (Contempt Specification #3)
Leonard Boudin
Jan Schlichtmann
Jerry Facher
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
My Cousin Vinny: Probable Cause



Deception and Cheating in Law and Poker

Cheating in Prosecution

outright framing
prosecutorial abuse of discretion
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


What and why do we believe
Direct Examination
leading questions
scope of examination
the testimonial capacities
Witness Preparation
Dr. Carol Leicher

Confronting Ones Accusers

From the Trial of Sir Walter Raleigh to Where WE are now
U.S. Constitution
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?
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 Hold’em
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



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



class online poker tournament

Attorney Client Privilege

Presumed Guilty

Bentham, Rationale of Judicial Evidence
The Eavesdropper
The Energetic Investigator

My Cousin Vinny: Resolution




statutory offense
elements of offense
sufficient to support a finding
reasonable doubt

Useful Links

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:


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

Credibility of jury's verdict

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:

How to keep the judge happy

Using the probable cause hearing to pin down a witness's testimony

Scope of probable cause hearings

Disturbing a verdict

Destruction of evidence as obstruction of justice

The attorney-client privilege under moral and ethical questioning

Preserving the record

Spoliation of incriminating evidence

Lecture 7 clips:

The importance of relevance

Limiting propensity evidence

Character evidence on cross-examination

Using extrinsic evidence

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:

Example of jury localization

Limiting the power of juries

King Solomon's evidence

Lecture 9 clips

Legalism = Interpretation of the Word


Hearsay Exceptions

Legalism continued

Murder in the Ajax Building Hypo

Belief of Impending Death

The Case of the Forgetful Witness Hypo

Negligent Entrustment and Window Washers Hypo

Legalism and Hearsay

Lecture 10 clips:

Constructing witness testimony

Witness testimony and preperation: A guest speaker talks about a malpractice suit against her (long clip)

Lecture 13 clips

Comments on Socratic Method

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