Friday, September 20, 2013
As my previous posts have indicated, I’m a believer in the problem-based approach to teaching Evidence. As great as problems are, though, they have their limitations. Usually, they are procedurally quite neat, setting up the witness’s proposed testimony on a platter within the context of an ongoing trial. For these problems, the students simply have to decide whether some proposed testimony would be admissible under the given, limited facts. This has tremendous efficiency advantages for the classroom, but it also comes with a cost: students do not see the full work that goes into eliciting admissible testimony, which involves the important task of laying the foundation for a particular witness’s testimony or a particular document or piece of physical evidence. These issues can be discussed by simply asking things like “what foundational information must the proponent have established first?” or “how would you authenticate the physical evidence?” But there’s something to be said for showing the students just how that happens. And that’s one reason I like to use trial transcripts in Evidence class to help the students learn the rules.
For showing the students how to lay proper foundations, I have found Imwinkelried’s Evidentiary Foundations to be a great resource. I don’t require my students to purchase the book, but I recommend it, and have relied on it to craft my own short examples for the students. As good and helpful as I think these transcripts are, they aren’t the perfect transcript tool for teaching the rules, at least not alone. Or maybe it’s better to say that they are too perfect to stand as the sole examples. The transcripts contain no mistakes in laying a foundation, and there are no judges making improper rulings in the transcripts. In my mind, a good pedagogical transcript has faulty foundations, improper objections that are sustained, and good objections that are overruled. So I aim to put imperfect transcripts to use in the classroom.
The Leonard, Gold, Williams Evidence: A Structured Approach textbook has some nice transcript exercises, as do other textbooks. I used one from the Leonard/Gold/Williams book today to recap character and impeachment. It was just over 4 pages long, and covered several different issues very efficiently. We did a dramatic reading, with individual students assigned roles and reading their parts in front of the classroom. When we got to a ruling on an objection, the students in the audience were asked to decide whether the objection was correctly sustained or overruled. We used about 30 minutes of class time on the exercise, and I thought it went well (I’ll be polling the students next week to see if they felt the same).
One of the best things that I thought the exercise did was to illustrate the workings of the character and impeachment rules because we had actual witnesses in front of the classroom, being called to testify, cross-examined, and dismissed. In particular, the timing components of the character and impeachment rules were easier to see than they are by doing short problems. Since we were conducting the quick trial in front of the classroom, the students knew that we were still in the prosecution’s case-in-chief, or that the attempted impeachment followed or preceded testimony by the person that the testimony impeached. It’s easy for the students to get overwhelmed in learning this material, focusing so much attention on the content of the rules (what can you use to impeach) that they lose sight of the timing aspect (when can you do it). This exercise illustrated plainly, for example, the point that impeaching someone who hasn’t yet uttered a word at trial isn’t allowed because the testimony has no relevance, even if the method (asking about a prior perjury conviction) would be permissible.
As someone still relatively new to Los Angeles, it was also a very L.A. experience to do a reading of a script in class. Of course, it wasn’t perfect, and running through it for the first time in class taught me that I should summarize testimony as much as I can, and limit the dramatic reading to short chunks of testimony that immediately precede and include an objection and a ruling. But I found it a welcome change of pace, and hope that it helped the students understand and apply the rules. In its imperfections, the transcript also gives the students the opportunity to realize that they can do the job of a lawyer, and can even come up with better answers and arguments than the ones contained in the transcript.
As always, I’d be curious to hear how others use trial transcripts in the classroom, or as homework assignments.