Evidence 101

My summer classes ended with finals on Thursday and Friday. These finals were much more relaxed than exams during the regular semester. My Evidence final was actually very enjoyable. (That might have had something to do with it being 80% multiple choice instead of a long essay…)

I enjoyed my Evidence class as a whole much more than I expected. Evidence has a puzzle piece sort of feel to it which I like; if one way doesn’t work, you try another until you find a way to make it fit. That is especially true of the hearsay rule, which can be rather fun.

One of the topics we discussed in Evidence was eyewitness testimony. My professor told us of an experiment he did with one of his classes. He arranged with one of his students to allow a “thief” to come in and steal the student’s purse. The woman came into class, made a big scene, took the purse, and left – doing everything slowly and deliberately. After she left, the class discussed the characteristics they had noticed, such as height, weight, hair color, clothing, etc. There was a lot of variation in what the students claimed about the thief.

About a week later, the students were asked to identify the thief. They could choose one of five women: four who came into class  for a line-up or a fifth who was absent (not in the line-up).

The result? Each of the five woman was identified as the thief by 20% of the class. In other words, 80% of the class was wrong. And the real clincher was that the student who had her purse “stolen” and was practically face to face with the thief chose the wrong woman.

So eyewitness evidence is a little scary.

We also discussed the topic of presumption. Presumption is one of those words that’s easy to define outside of law, but can be messy inside the law. My professor gave us four different definitions.

• First, there is the typical non-legal definition: X usually causes Y, so when there is evidence of X, we can presume Y happened too.

• Second, there is a so-called irrebuttable presumption: this isn’t really a presumption, it’s a legal rule that if there is evidence of X, the jury must find that Y happened, even if there is evidence to the contrary.

• Third and fourth are the presumptions that actually affect how the law works: if there is evidence of X, the jury must find that Y happened. But if someone claims Y didn’t happen, someone has to try to prove either that it did or did not. (The difference between the third and forth types of presumption is which party has the burden of proof.)

In law, the word presumption gets complicated because people (e.g., legislatures) use it without defining which type of presumption they mean. Thus, the lawyers end up arguing about it or the court has to make up the best answer it can.

Another evidence topic we discussed is an efficiency tactic called judicial notice. This is actually shortcut to avoid having to prove something. Rather than presenting evidence of the fact, the lawyer will ask the judge to say, in effect, “this is so well-known or obvious that we are going to call it true for the purposes of this case.”

Judicial notice saves time and money. For example, asking the judge to take notice that NaCl is the chemical formula for table salt is much easier and cheaper than bringing in a chemist to testify about it. Judges can take notice of all sorts of things; for example, that a certain date was a Tuesday, that diamonds are hard, that DOG Street means Duke of Gloucester Street, that a city is located in a certain county, that mules are occasionally dangerous, that a given ice cream flavor is usually a certain color, or that snowmen usually have sticks for arms and a carrot for a nose. (Some of these examples are taken from A Modern Approach to Evidence, by Lempert, et. al., West Academic Publishing p. 1400.)

So that’s Evidence. It’s fun.

The weekend after finals was nice and relaxing. Friday afternoon I took a nap (I slept hard for two or three hours). Saturday I attended a baptism for our most recent convert, after which two other recent converts treated me to dinner at the country club. They are so kind and good and friendly. I felt very spoiled.

More Than Adequate

The convenient thing about living in a rainier climate is that every time my car starts getting really dirty, a storm rolls through and washes it off. This week it was especially convenient because I had run out of window washer fluid.

Another bonus about the climate here is that thunder is better in the east. Maybe it’s louder because it doesn’t run into any foothills. Or maybe the storms are bigger because they don’t have to climb over the mountains. Whatever the reason, thunder just sounds better in this half of the country. When I was little, I didn’t understand why people were afraid of thunder. It only started to make sense when I was serving a mission in Kentucky and Ohio. After a night of bed-shaking, heart-pounding thunder, I understood how someone could be afraid of it. I’m still not afraid of thunder, though. I relish a good, powerful drum roll across the sky.

I am not, however, a fan of another consequence of the rainy climate: humidity. The hot and sticky days have started. It hasn’t been too bad yet, but we’ve had a day or two when walking outside was like walking into a wall of air and not having my hair in a ponytail was a bad idea.

***

Over the last year, I’ve heard several remarks about 2Ls and 3Ls not reading for class. One person even expressed surprise that any upperclassmen still did any reading. That was hard for me to believe. As a student I had always done all of my reading. And considering the intense, competitive nature of law school, it seemed improbable that a large percentage of law students were not keeping up with daily reading.

Well, now I know why. Sometimes it just isn’t worth the time it takes. That, combined with a professor who openly acknowledged to the class that she didn’t really expect us to do all the reading, left me skimming a few chapters this week. And, as minimal perusal was adequate for those classes, I’m not exactly averse to doing it again in the future. I doubt I’ll ever give up on the whole concept of reading for class, though.

***

I made a happy discovery this week: a painting by James Christensen titled “A Lawyer More Than Adequately Attired.” The painting is good, but my favorite part is the explanation. It is just so, so true.

Overlap

I feel like I’ve been up to my ears in Evidence this week. No matter how much reading I do, I always seem to have more. Part of that is because we adjusted the schedule and met an extra time this week, and part of it is because condensing a twelve week course into four and a half weeks makes some pretty dense reading necessary.

Amidst all that reading we took a little foray into some fundamentals of criminal procedure (shorthand: crim pro). There was an excellent comment in the reading about constitutional limits placed on lawmakers:

“Yet, presumably, a state could not create a statute [that says]: All persons within 100 yards of an individual killed by force or violence shall be guilty of murder. It shall be an affirmative defense that the person did not commit the homicide.” Extracts from Fundamental Criminal Procedure, 2014 Edition, Fredric I. Lederer, William and Mary Law School.

In other words, Congress can’t say everyone is guilty until proven innocent. The US legal system is built on the principles of innocent until proven guilty and everyone deserves a fair trial. (That, incidentally, is the answer if you ever feel like asking a lawyer how he can defend someone who is probably guilty. The lawyer is there to hold the government to its responsibility and make sure the person gets a fair trial).

Crim pro intersects with Evidence in many other areas. Next, for example, we are studying privileges, which exempt certain people (like spouses or clergy) from testifying in certain circumstances. Of course, Evidence by necessity intersects with all other areas of law.

It’s kind of a fun class for that reason. In my other classes there’s a fictional separation between the subject matter at hand and other areas of law. There have been many times when my professors have responded to questions by saying something like: “That’s a good question. Ask your civil procedure professor” or “That might work if we were in torts, but this is contracts.”

In Evidence you can bring up any area of law you want and it will be applicable. In fact, you can’t get caught up in one area of law or you’ll start forgetting that a type of evidence that seems useless in one area is actually essential in another.

We also have a lot of overlap in Professional Responsibility - with criminal law, of all things. That isn’t because there are huge numbers of criminal lawyers. It’s primarily because my professor is a criminal prosecutor in Newport News and she tells us stories about her cases and clients. It’s not as bad as being in crim law again, mostly because I don’t have to read all the details in written cases. Still, I’m glad it’s only for five weeks and not a whole semester.

On a wilder note, the local animal life is becoming more apparent as we move into summer. This week I saw several rabbits (which looked more like escaped pets than wild animals), I avoided running over a turtle that was crossing Monticello Avenue (I saw it make a surprisingly quick and safe arrival on the other side of the street in my rearview mirror), and I discovered a bird’s nest in the tree outside my front window. And the lightning bugs are out. The first one I saw startled me; it was right by my hand and I thought it was a spark.

Feel free to send me jokes about why the turtle crossed the road. I’d come up with some myself, but I’ll be reading about Evidence.

Grades, Hearsay, and Bugs That Should Never Be In The House

The last piece of my 1L year showed up this week: grades. With one semester a little above and one semester a little below, my cumulative GPA for the year is about 3.0.

Law school has a reputation for cutthroat competitiveness. W&M doesn’t really live up to that reputation; the atmosphere here is best (and appropriately) described as collegial. But there is still an unavoidable undercurrent of worry about grades.

One of my professors acknowledged this last semester as he tried to allay fears about his final exam (on which a good grade is somewhere around 60%, if I remember correctly). “No one gets a C…” he told us with a shrug.

I don’t know if that is always true, but I am content to have a B average.

Truth be told, I’m even a little relieved. That relief goes two ways: I’m relieved that my grades are high enough to still qualify for in-state tuition next year, and I’m relieved to not have the pressure of really high grades. There’s something liberating in knowing they aren’t perfect, but they’re good enough.

The posting of grades gives me one other bonus: now I can clean out that stack of paper I was holding onto just in case of grading problems. (Law school uses a surprisingly large amount of actual paper. That took some getting used to after working in an office that was moving steadily in a paperless direction.)

Meanwhile, after two weeks we are about halfway through summer classes.

In Evidence we’ve just begun discussing hearsay. Hearsay is an out-of-court statement given as evidence (in court) that a fact is true. It has been the bane of law students (and probably lawyers and judges) for generations. The rule has, at minimum, 28 exceptions. It’s like telling a child that bedtime is at 8:00…unless the toys aren’t put away… or unless teeth aren’t brushed…or unless it’s Christmas …or unless there’s a monster in the closet…or unless they really need a drink…

There are good reasons for the hearsay rule. And there are good reasons for the exceptions. It’s just unavoidably messy.

In Professional Responsibility, my most frequent reaction is that the “problem” wouldn’t really be a problem with the simple application of morality. But we aren’t studying morality. We are studying ethics, which is a minimum, fuzzy standard of good conduct.

That being said, I think most lawyers hold themselves to a higher standard than the bare minimum. Yes, there are some who take advantage of loopholes and grey areas (and the legal profession is perhaps more susceptible to that than many other professions), but there are so many lawyers who really want to make a positive difference.

The York River (just outside of Yorktown)

Other happenings for the week include a run/walk through the woods (the volume of foliage here is still amazing to me), a staring contest with a deer in the woods (the deer won), and a nice Sunday drive down to Yorktown (a fun little water-front town which I’d like to explore some more).

I also caught one of these in my apartment:

I still think the bug population here is a bit excessive.