TRIAL ADVOCACY:
EVIDENTIARY FOUNDATIONS AND OBJECTIONS
Summer 2012
Professors:
Elizabeth I. Boals
Suite 310a
(202)274-4073
eboals@wcl.american.edu
Elizabeth L. Lippy
Suite 310
(202)274-4145
elippy@wcl.american.edu
Introduction:
Evidentiary Objections & Foundations is a practical course designed to enrich students’
understanding of the Federal Rules of Evidence and their application in a trial setting. Through a
series of exercises, which simulate witness examinations, students develop the skills to advocate
for and against the admissibility of evidence at trial. In addition to these trial simulation
exercises, the course has an instructional component that contextualizes the exercises.
The trial simulation exercises, which are followed by both professor and peer critiques, help
students master laying foundations for various types of evidence, making evidentiary proffers,
and objecting to evidence. Students gain an appreciation of the skills needed to be a successful
advocate at trial. Additionally, students prepare their own witnesses to testify, learn how
evidentiary rules can be used both strategically and tactically, and reconcile any ethical issues
and resulting constraints on courtroom behavior.
The professors will spend time in the first few classes discussing case theory and themes,
trial strategy, direct and cross examination (specifically asking nonleading and leading
questions), form of objections, proffers, and formalities of the courtroom. There is time
allotted in a few of the early classes for brainstorming sessions on the exercises. These
brainstorming sessions help students learn to flush out evidentiary issues. After a few in-class
brainstorming sessions, students will perform this function in their teams outside of class time.
Grading:
Grades are based on a student’s contribution to team exercise preparation; individual
performance of in-class exercises; individual participation in class discussions; service as lead
counsel and quality of written outlines; individual student improvement; and final examination
outline and, in-class motion.
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Materials:
Required Textbooks:
Trial Practice: Exercises in Witness Examination and the Rules of Evidence, P. Milich
(Thomson/West, 2005) [referred to as WORKBOOK]
Trial Evidence, Mauet and Wolfson, 5th edition (Aspen, 2012) [referred to as Trial
Evidence]
Recommended Textbooks:
Evidentiary Foundations, Imwrinkelried, 8th Ed. (LexisNexis 2012) (on reserve in the
library)
Class Structure:
The class is divided into two teams with a maximum of 6 students on each team. The exercises
in the WORKBOOK supply opposing positions and witnesses to the same fact pattern. For each
exercise, a person from each team will play that team’s witness, a person from each team will
prepare a direct examination and one person from each team will prepare a cross examination of
the opposing team’s witness. An additional member of each team will handle any pre-trial
motions in limine. For some exercises, students may also play the role of judge and provide an
explanation for their rulings.
The team members are responsible for assigning roles for each exercise to team members each
week. Students are responsible for evenly distributing roles to team members throughout the
semester. A different member of each team will serve as lead counsel for each in-class
exercise. Lead counsel is responsible for emailing a written outline (no more than five
pages double spaced) of the team’s brainstorming strategy session to the professors by the
Tuesday at 9:00 p.m. the evening before the in-class exercise. The outlines should include
topics such as case theory concerns, relevant FRE’s, potential counter arguments, ethical issues
and a few potential witness examination questions. Lead counsel will also represent the team in
any discussions or negotiations with opposing lead counsel and with the court that occur outside
of class.
From time-to-time as interesting evidentiary issues arise in class the professors may assign a
focused research question to a student for presentation of the answer in the next class.
A substantial amount of out-of-class team and individual preparation is required for this
class. Students must contribute to team discussions. At the end of the semester, students
will evaluate the contributions made to the team by their teammates.
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Syllabus:
Assignment for Week One:
READ - Trial Evidence, Chapter I, Advocacy Approach to Trial Evidence (pp. 1-7)
Chapter II, Role of Trial Judge § 2.3 (pp. 13-25)
REVIEW – WORKBOOK, Exercise #1
Week One: Wednesday, May 30
Introduction to Evidentiary Foundation & Objections course. Discuss structure of the
class, grading policy and attendance policy.
Discuss developing a case theory and the relationship between evidence and trial
strategy.
Discuss the fundamental evidentiary issues of direct and cross examination. Discuss
offers of proof, evidentiary proffers and making objections and preserving the record
for appeal.
Make team assignments.
Brainstorm Exercise #1.
Exercise to prepare for next week:
WORKBOOK, Exercise #1
Suggested reading for Exercise #1:
Trial Evidence:
Chapter IV, Direct Examination of Witnesses §4.2 (pp. 41-45), §§4.6-7 (pp. 52-61),
and §§4.9-10 (pp. 64-69)
Chapter V, §§5.2-3. Special Relevancy Rules: Character Traits (pp. 75-98)
Chapter VII, §7.1. Direct Examination of Witnesses: Hearsay Exceptions
(pp. 163-175)
Chapter VII, §7.2. Present Sense Impressions (FRE 803(1)) (pp. 175-176)
Chapter XI, §§11.1-2. Judicial Notice (pp. 347-350)
Week Two: Wednesday, June 6
Simulation: Exercise #1. Discussion of rulings, trial strategy and critique.
Brainstorm Exercise #4
Exercise to prepare for next week:
WORKBOOK, Exercise #4
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Suggested reading for Exercise #4:
Trial Evidence:
Chapter V, §§5.3(2) and (5). Other Crimes, Wrongs and Acts (FRE 404(b)) (pp. 98109) and Habit and Routine Practice (FRE 406) (pp. 119-123)
Chapter VII, §7.3. Excited Utterances (FRE 803(2)) (pp. 176-181)
Chapter VIII, §§8.2-3. Subsequent Remedial Measures (FRE 407) (pp. 236-240)
and Compromise/Offers of Compromise (FRE 408) (pp. 240-242)
Week Three: Wednesday, June 13
Simulation: Exercise #4. Discussion of rulings, trial strategy and critique.
Exercise to prepare for next week:
WORKBOOK, Exercises #5
Suggested readings for Exercise #5
WORKBOOK, Notes on the Confrontation Clause and Hearsay (pp. 165-166)
Trial Evidence:
Chapter IV, §4.11. Refreshing Recollection/Recorded Recollection (FRE 612,
803(5)) (pp. 69-74)
Chapter V, §§5.1-3. General Relevance (FRE 401, 402, 403, 404) (pp. 75-124)
Chapter VI, §6.4. Prior Statement by Witness (FRE 801(d)(1)) (pp. 141-150)
Chapter VII, §7.4 and §§7.11-12. Existing Mental, Emotional or Physical Condition
(FRE 803(3)) (pp. 181-186), Public Records (FRE 803(8)-(17))(pp. 213-217) and
Recorded Recollection (FRE 803(5) (pp. 217-220)
Chapter XII, §12.3. Impeachment Procedures (pp. 370-409)
Week Four: Wednesday, June 20
Simulation: Exercise #5. Discussion of rulings, trial strategy and critique.
Exercise to prepare for next week:
WORKBOOK, Exercises #7 and #9
Suggested readings for Exercises #7 and #9:
Trial Evidence:
Chapter VI, §§6.4-5. Admission by party-opponent (FRE 801(d)(2)) and Prior
Consistent Statements (FRE801(d)(1)) (pp. 141-162)
Chapter VII, §7.4. Existing Mental, Emotional or Physical Condition (FRE 803(3))
(pp. 181-186)
Chapter IX, §9.1-9.5. Direct Examination of Experts, Introduction, Frye, Daubert,
Joiner and Kumho Tire, Relevancy, and Reliability (pp. 273-293)
Chapter XII, §12.6. Conduct Probative of Untruthfulness (FRE 608) (pp. 400-405)
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Week Five: Wednesday, June 27
Simulation: Exercises #7 and #9. Discussion of rulings, trial strategy and critique.
Exercise to prepare for next week:
WORKBOOK, Exercises #3 and #15
Week Six: Wednesday, July 6 (Make-up for July 4 holiday)
Simulation: Exercises #3 and #15. Discussion of rulings, trial strategy and critique.
Exercise to prepare for next week:
WORKBOOK, Exercise #20
Week Seven: Wednesday, July 11
Simulation: Exercise #20. Discussion of rulings, trial strategy and critique.
Exercise to prepare for next class:
WORKBOOK, Exercise #31
Week Eight: Wednesday, July 18
Simulation: Exercise #31. Discussion of rulings, trial strategy and critique.
Exercise to prepare for next week:
WORKBOOK, Exercise #34
Week Nine: Wednesday, July 25
Simulation: Exercise #34. Discussion of rulings, trial strategy and critique.
Exercises to prepare for next week:
Final Simulation Exercises TBA
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