Monthly Archives: November 1986

1986.11.00: On Teaching Evidence (Matthew Bender Law School Report November 1986)

1986.11.00 On Teaching Evidence (Bender Law School Report)(Leon)_Page_1-001

The Matthew Bender Law School Report
November 1986

On Teaching Evidence
Leon Letwin, Professor of Law, University of California at Los Angeles

My teaching of evidence rests on the premise that judicial opinions are not the optimal way to convey the basic ideas, distinctions, and policies in the field. For all of the recognized virh1es of cases as teaching vehicles, the traditional case approach has seemed to me, as to others, to be inefficient, narrowly focused on appellate perspectives, productive of student passivity, and unnecessarily repetitive, especially beyond the first year.

My approach emphasizes noncase materials and particularly the use of preassigned problems as a principal focus for classroom discussion. The relative de-emphasis of cases expresses no anti-theoretical bias. I hope rather to facilitate exploration of issues of fairness, accuracy and efficiency by more expeditiously conveying elementary technical doctrine and by permitting better class preparation as students cope with the solution of the assigned problems. Problem oriented teaching helps the student to become an active searcher for solutions rather than a passive observer of what others have said on the subject. It also permits a technical area to be cut into manageable sub-issues facilitating orderly exploration and development. Problems can be fashioned to take dead aim on the issues to be considered and in the optimal sequence, permitting quicker, more systematic consideration of complex areas.

Though de-emphasized, I employ cases when they make a particularly important contribution. This is notably the case in the exploration of constitutional issues such as self-incrimination and the hearsay-confrontation dilemma, as to which the rules have little to say. I also employ cases where the rules have, by design or accident, delegated particularly broad authority to the courts to define the actual contours of the rules. I find it difficult, for example, to grapple with the cascade of recent efforts by lawyers to expand the ambit of expert testimony into hitherto unexplored areas without considering some of the cases responding to these efforts.

Since in many areas I do not employ cases, I recognize my obligation to provide alternate sources for the ideas and doctrines under consideration. These other sources are essentially the rules of evidence, the legislative commentary thereto, and introductory textual notes that I have written. Thus I routinely direct students to the relevant provisions of the Federal Rules of Evidence and to the sometimes contrasting provisions of the California Evidence Code. I single out the Federal Rules because they are today’s dominant codification. I employ the California rules as the principal contrasting code because it is a significant alternative in content and style and because it includes comprehensive provisions where the Federal Rules have provided sparse treatment, for example in the areas of privileges and presumptions.

I also provide frequent introductory textual notes in which I seek to place in context the topic under consideration through a “lecture” concerning the underlying conceptions. My aims here are to encourage students to think about the issues as part of their advance preparation, to reduce the burden of reviewing elementary propositions and distinctions in class, and thus to liberate class time for consideration of the more interesting and difficult issues which abound in the field. I am quite willing to provide students with my views on a variety of matters in advance of class in written form. Thus, in connection with some of the assigned problems, I provide abbreviated answers, or hints to the appropriate answer, together with the problems. My aim is not to preempt classroom consideration of other solutions than mine. I provide the analyses on the premise that little of pedagogical value is gained by denying the students “the answer” to some problems as an aid in class preparation. I provide answers, for example, to numerous problems in which the issue presented is whether an out-of-court declaration falls within one or another definition of hearsay. I cheerfully concede that some of my suggested answers may be “wrong” or at the very least debatable. In that case, I use student doubts about my analysis as an occasion for classroom discussion.

Though emphasizing the Federal Rules, it is not my aim to teach a course in those rules. I see the enterprise rather as a survey of evidence, in which the Federal Rules often provide a starting point, one possible solution to the problem under consideration. My routine recourse to the Federal Rules may generate somewhat of a dilemma: Both the sh1dents and I sometimes find ourselves drawn into a prolonged consideration of how a specific, detailed issue might be resolved under the sometimes elaborate, difficult or confusing provisions of the Federal Rules-those governing character evidence, for example. Such an inquiry can, to be sure, be a useful educational exercise; it can also consume enough time to detract seriously from the overriding goal of surveying the underlying broad themes rather than studying the ample intricacies of the Federal Rules of Evidence. Given the time constraints imposed by the fifty-hour course I teach, I cannot do both. I attempt to tread a careful line between intermittent close looks at the answers given by the rules concerning some specific problem and a pervasive concern for breadth of treatment.

So much for my pedagogical method. As to content, there is little of surprise in the scope of my coverage. I emphasize the usual range of evidentiary topics-relevance, hearsay, character evidence, testimonial privileges, documentary evidence, and problems in the examination of witnesses. I have also, however, a strong desire to encourage students to recognize and think about the broad social and political implications of apparently neutral, “procedural” rules of evidence, in addition to the self-evidently more political sphere of constitutional-evidentiary rules. Because such political values seem to me particularly pronounced in certain areas, for example, in respect to character evidence, I spend considerable time on the various aspects of that subject: character evidence going to credibility, character evidence to prove conforming conduct, and on the attempted character uses of prior sexual conduct to discredit a rape complainant. More generally, I attempt to focus on the political and social choices implicit in many doctrines of relevancy, resting as they do on powerful but often unarticulated premises about the way the world is or ought to be.

[Professor Letwin is the author of the casebook Evidence Law: Commentary, Problems and Cases, available this month from Matthew Bender.]