Evidence
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course description for Nesson's Winter Evidence 2009
Evidence C
Winter term, Block A M,T,W,Th,F 9:00 AM - 12:00 PM
Professor Charles R. Nesson 3 classroom credits LAW-36000A
Nesson's Winter Evidence explores the nature of truth, proof and the burden of persuasion through study of poker and the American jury trial. We explore perception, memory, credibility, clarity, relevance, prejudice, hearsay, confrontation and privilege. Focus is on principles and process of rhetorical storytelling instantiated in a judicial machine. This machine is our trial system, built of legal practice articulated in code and action, run by fallible beings each with a role to play, its output Justice. Expect multimedia, group activity and personal engagement.
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
- the game we choose to play
- the rules of the game we choose to play
- how we play to win
- the frame within the game within the frame
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 process as creation written in 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
- groups
- lunch plans
- playing poker
- moot court activity in real and second life
- film nights
Here are course evaluations from an earlier class.
where are you along the path of learning
- 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 the American jury from the myth of magna carta through the American Revolution to the present, as played out in the rules of evidence, in the roles of the courtroom players, and in how the roles are played. Players include prosecutor, judge, defense lawyer, and WE the People, jurors, witnesses, the observing public. The judge is in charge of running the show. We will tell the story of how the judge took jury power of the people away. WE the People have had no process for complaining, until now.
We will tell the story of poker along the way.
- each day in your journal your distillation of what you have learned
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 upstanding one of whom has liberty and responsibility. Call this group WE THE PEOPLE. Count yourself among us. WE would like to constitute a government that we may share the benefit, even the necessity of government. WE want to preserve our liberty. How do WE 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 government will promulgate, interpret and enforce rules that will threaten to stifle our liberty.
form groups
Vinny, the charge
The American Jury: Bulwark of Liberty
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
- Protection of Liberty Built into Process and Privilege
- 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
- the problem of pockets of resistance to the common good
VERDICT
The General Verdict: Jury Role as Check to Legislative and Executive Power
- Guilt of What?
- factual guilt of violation of statutory law
- moral guilt: judge of the whole case, fact and "law" in its original meaning
- Trial by Jury Constrained by Judges: The Jury's role with respect to Law, Fact and Justice
- Judicial transformation of the meaning of "law"
- Response of judicial conception of law and structure of process to Slave-Holding Textile_Manufacturing Capital
- Corporate Fear of Civil Juries in the Rise of Negligence and Unions
- Racism
- Robert Morris, Lemuel Shaw and Fugitive Slaves
- Emmett Till
- Swain v. Alabama
- White v. Crook
- 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 since become law that lawyers may not argue the injustice or stupidity 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 defendant to the jury.
- assume the role of advocate for a client asserting a liberty interest which is fundamental to him. What constrains you in carrying out your role?
- ethics, the domain between what you know to be true and what can be proved against you, personal code, inner sense of constraint on how to act and be true
- 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?
- assume the role of advocate for a client asserting a liberty interest which is fundamental to him. What constrains you in carrying out your role?
- My Cousin Vinny: Lawyer Meets Client
Factual GUILT Beyond Reasonable Doubt
The Ambiguity of Truth
- riddle of three hats
- the inference of self and perception of self by other
- Daniel Gilbert, He Who Cast the First Stone Probably Didn’t
- truth as correspondence asserted from coherence
- :Nesson, "The Evidence or the Event? On Judicial Proof and the Acceptability of Verdicts"
Unanimous General Verdict of Empowered Citizens
- 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 - 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
- The Client's Account
- 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
A Showing of A Civil Action, with pizza
The Judge's Roles; Director of Order, Protector of Liberty and Justice
- Solomon
- Judge Lemuel Shaw
- Judge Matthew Byrne - The Pentagon Papers Case
- Judge Walter Skinner
- Judge Chamberlain Haller
- Judge Julius 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
- whom or what do you serve
- the lawyer's roles
- 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
- the lawyer's rules
- My Cousin Vinny: Probable Cause
Cheating
Deception and Cheating in Law and Poker
Cheating in Prosecution
- criminal
- outright framing
- prosecutorial abuse of discretion
- civil
- 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.
- private v. public
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
Credibility:
- What and why do we believe
- Direct Examination
- leading questions
- scope of examination
- strategy
- Cross-Examination
- the testimonial capacities
- limitations
- strategy
- Witness Preparation
- Dr. Carol Leicher
Confronting Ones Accusers
- From the Trial of Sir Walter Raleigh to Where WE are now</b>
- U.S. Constitution
- hearsay
- 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?
- hold'em
- read and absorb at least the method and purpose of programming no-limit hold'em.
- articulate metaphors for each of the parameters of the program.
- 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
The Rules in Play
fred friendly
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
evaluation
class online poker tournament
Attorney Client Privilege
Presumed Guilty
- My Cousin Vinny: Resolution
Useful Links
- what's a WIKI
- How do I join in
- Federal Rules of Evidence
- Nesson's Evidence book
- The Question Tool
- Second Life
- WIKI 2005
- Berkman@10
2008 Exam
2008 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:
?start=00/00/00&end=00/00/00
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
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:
Using the probable cause hearing to pin down a witness's testimony
Scope of probable cause hearings
Destruction of evidence as obstruction of justice
The attorney-client privilege under moral and ethical questioning
Spoliation of incriminating evidence
Lecture 7 clips:
Character evidence on cross-examination
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:
Lecture 9 clips
Legalism = Interpretation of the Word
Murder in the Ajax Building Hypo
The Case of the Forgetful Witness Hypo
Negligent Entrustment and Window Washers Hypo
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
Skill of Being Able to See From the Other Side's Point of View
