first-year law review

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Evidentiary Foundations

Evidentiary foundation refers to a series of questions counsel must ask to provide a basis for the offered evidence. The necessary procedural steps for introducing exhibits into evidence are:

  • Requesting that the exhibit be marked for identification (don’t identify it)
  • Laying the foundation for the exhibit
    • Picture: ordinary fact witness
    • Models & charts: the object is an accurate reproduction for the purpose of illustrating the testimony of the witness
    • Real evidence: show chain of custody
  • Letting opposing counsel examine the exhibit
  • Offering the exhibit into evidence
  • Giving exhibit to trial judge
  • Voir dire examination of the witness, objection, and argument by opposing counsel
  • Ruling
  • Testimony concerning the exhibit
  • Giving the jury the exhibit or copies of it


Knowing what foundation to establish requires knowing which rule applies. All you need to do is transpose the elements of the rule into a series of questions.


September 10, 2007 Posted by | Evidence | 1 Comment


When a person dies intestate that person dies without a will. Further, if a will’s so poorly drafted that it disposes of only part of the probate estate, the result is partial intestacy. When a person dies intestate, the law of the state where decedent was domiciled at death governs the disposition of personal property, and where the real property is located governs the disposition of real property.


If there’s a surviving spouse, that person is always the first taker, and usually receives the largest share. The order of intestacy is as follows: Spouse, Descendants, Parents, Descendants of decedent’s parents, and finally Grandparents or descendants of grandparents. Each state has a statute that governs what goes where. Under the Uniform Probate Code, the spouse gets everything if no descendant or parent of decedent survives, or all descendants are also descendants of the surviving spouse. If there’s no descendant, but a parent survives, the spouse gets the first $200,000 plus three-fourths of the balance of the estate. If there are descendants and surviving spouse had descendants who aren’t from decedent, the spouse gets $150,000 and half of the balance of the estate. If surviving decedents aren’t descendants of the surviving spouse, the spouse gets $100,000 and half of the estate’s balance. Naturally nonprobate property is excluded from the estate prior to these figures. If there’s no taker, estate goes to the state.


In the case of simultaneous death, the Uniform Simultaneous Death Act says that if no sufficient evidence of the order of deaths, the beneficiary is deemed to have predeceased the donor. If joint tenants die simultaneously, one half is distributed as if A survived, and one half as if B survived.

September 10, 2007 Posted by | Wills & Estates | Leave a comment

Real, Documentary, and Demonstrative Evidence

Let’s deal with real evidence first. Real evidence is physical evidence (such as clothing or a knife wound) that itself plays a direct part in the incident in question. There are two types of real evidence: one which presents the thing itself, and one which presents an independent fact from which an inference can be made. The admissibility of real evidence turns on showing that the evidence is what it purports to be. The proponent has to establish that the item you’re offering is what you say it is. You have to give enough evidence for the jury to conclude that the item is authentic.


A subset of real evidence, sometimes considered it’s own set, is documentary evidence. Documentary evidence is any document having some bearing on the case is real evidence and documentary proof. It too has to be authenticated, but there are issues that have to be overcome such as the best-evidence rule and hearsay.


Demonstrative evidence is evidence that illustrates or demonstrates a real thing. In USS v. Town of Oyster Bay, the plaintiff was hit by a street sign that fell when hit the pole to which it was attached. At trial, defense counsel used a model of the pole which differed from the actual pole in several respects. On appeal, the plaintiff argued that the in-court demonstration should not have been allowed. The court held that it was within the trial court’s discretion to allow the demonstration. The dissenting opinion, however, said that the substantial similarity test should have been used. The substantial similarity test says that the demonstrative evidence must be substantially similar to the actual evidence. The test doesn’t require identity, but only the degree of similarity that will insure that the results are probative.

September 6, 2007 Posted by | Evidence | Leave a comment

Judicial Notice of Scientific Principle and Legislative Facts

Our discussion today focused on two cases, State v. Graham and Muller v. Oregon. State v. Graham focused on taking judicial notice of a scientific principle. In this case, Graham was convicted of going 65 mph in a 50 mph zone. He was caught by troopers using radar guns. The question on appeal was whether radar, as a device for detecting speed, a scientific principle so soundly established as to be accepted by the courts. The court held that the device, when maintained and operating within specs, measures speed accurately, and that it should be used.


Judicial notice of a scientific principle is hard because Rule 201 doesn’t tell us when a court can take notice of a scientific principle. The old standard was the Fry test which said scientific proof is admissible only if it’s generally accepted as valid by the scientific community. You’d use experts to establish the community’s view, then eventually courts would just take judicial notice of the principle. This worked until scientific advances outpaced the test. Now, before a jury can consider scientific proof, the court must determine it’s reliable, then the jury can determine what weight to give it. This protects the jury from unreliable evidence, but also allows the principle in.


The second case we looked at was Muller v. Oregon in which Justice Brandeis, before he was a justice, submitted a brief which was basically one page with a forty-five page footnote. The case was about limiting the hours a woman could work in certain industries, and the footnote included statutes and sociological research that backed that policy. The legislation referred to aren’t technically authorities, but they do represent the widespread belief that something is factual. Judicial notice is taken of all matters of general knowledge. Legislative facts are necessary in the judicial process, especially in interpreting the Constitution or other laws. When called upon to interpret a statute, courts should understand the nature of the evil the legislature was trying to correct.


The problem for judges using legislative facts is that socio-economic facts aren’t in law books. Judges can get those facts and the legislative goal however they need to. In his brief, Brandeis didn’t have to establish truth, he just said that the legislation and data support the need and the conclusion that there’s a rational basis. Again, Rule 201 doesn’t say anything on legislative facts. The standard for taking judicial notice doesn’t exist so as to provide courts with flexibility.

August 31, 2007 Posted by | Evidence | Leave a comment

Alternatives to Formal Proof: Judicial Notice

In court, some proof can be taken for granted. Ordinary language certain is taken for granted, as are ordinary ways of thinking. Additionally, judicial notice, which is a short cut for doing away with the formal necessity for evidence because there is no real necessity for it, can be taken of something commonly known. In Varcoe v. Lee, the defendant argued that the prosecution had not entered evidence that the place he hit a girl was a business district. This is important because there was a statute saying one could only drive 15 mph in a business district and that failing to do so made one liable for negligence as a matter of law. The justices said the requirements for judicial notice are: that it be well established and authoritatively settles, be practically indisputable, and that this common, general, and certain knowledge exist in the particular jurisdiction. According to Rule 201 of the FRE, judicial notice can be taken: When it’s generally known within the jurisdiction, and when it’s capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

August 30, 2007 Posted by | Evidence | Leave a comment

Dead Hand Control

Let’s deal with the problem of dead hand control. The question is, To what extent should a person be able to use wealth to influence behavior after death? The reason this is a problem is because in the United States, courts don’t substitute their own judgment for the decedent’s, but it seems like there has to be some limit. In the Restatement 3d on Property, it says, “The donor has the freedom of disposition, and pretty much anything goes as long as the donative transfer doesn’t interfere with spousal rights, creditors’ rights, unreasonable restraints on alienation or marriage, provide for promoting separation or divorce, impermissible racial or other categoric restrictions, provisions encouraging illegal activity, and the rules against perpetuities and accumulations.” So there are several limits on the decedent’s right to dispose of his property as he sees fit.


An interesting case we read was Shapira v. Union National Bank. Here, Dr. Shapira said in his will that his each of his sons must marry a Jewish woman, both of whose parents are Jewish. One of the sons, Dan, took exception to that provision and challenged it. The question in this case was whether the decedent’s provision was constitutional or against public policy. The court held that the right to receive property by will is a creature of the law, and is not a natural right or one guaranteed or protected by either the Ohio or the United States constitution. In Ohio, a testator may legally disinherit his children. Dan argued that enforcing the provision would go against the precedent set in Shelley v. Kraemer that judicial enforcement is the same as state action which restricts the right to marry. Provisions such as Dr. Shapira’s aren’t state action because Dan’s right isn’t restricted, he can marry whomever he wants, he just won’t get the money. Thus, the state isn’t restricting, the dad is, even if the state enforces the will. It is also not contrary to public policy because gifts conditioned on a beneficiary marrying within a particular class or religion constitute only a partial restraint on marriage, which is reasonable and valid and not against policy.


Restatement 2d on Property says a restraint to induce a person to marry within a religious faith is valid if and only if under the circumstances, the restraint doesn’t unreasonably limit the tranferee’s opportunity to marry. However, a will or trust provision is ordinarily invalid if it is intended or tends to encourage disruption of a family relationship.

August 30, 2007 Posted by | Wills & Estates | 1 Comment

The Right to Pass On Property: A Civil or Natural Right?

There are two ways at looking at devising property: that it’s a natural right or that it’s a civil right. Blackstone and Jefferson both thought devising property was a civil right because it’s regulated by the government. Locke, however, believed that devising property is a natural right because taking care of our descendants is a God-planted desire and devising property is a way to do that.


In the United States, devising property was viewed as a civil right until 1987 when the Supreme Court decided the landmark case of Hodel v. Irving. In the 19th century, Congress said Indian land would pass to the owners’ children. This resulted in severely fractured interests. To solve the problem, Congress said that such lands would escheat to the tribe. The issue was whether the escheat provision is a taking without just compensation. The Court held that the right to pass on valuable propety to one’s heirs is a valuable right, and the complete abolition of both the descent and devise of a particular class of property may be a taking because the value of the interests, though nominal, isn’t valueless. The right to pass on property is part of the bundle of sticks. Descent and devise may be regulated, but not abolished.


This represented a shift to the natural view of devising property. Note that this doesn’t concern the right to inherit, only the right to devise. Thus, if my parents wrote me out of their will, I wouldn’t be able to assert a right to inherit.

August 27, 2007 Posted by | Wills & Estates | Leave a comment

Starting a new year

Welcome to all you first years. Hopefully some of this stuff helps. You’ll see advanced topics too since I use this as a tool for reviewing and I’m just going to keep everything here.

August 27, 2007 Posted by | Uncategorized | Leave a comment

Question for readers…

First of all, I apologize for not posting more often lately. Our brief is due Monday so I’ll have some more time to post. Until then, I have a question. I’ve noticed that the post on implied and inherent constitutional powers gets a huge number of hits. By “huge” I mean it has the same hits as the next four combined. My question is, why is it so interesting? Is it a difficult topic, or do people have reasons for looking up info on implied and inherent powers? I’d like some feedback because I think I may do my writing requirement on implied and inherent powers. Thanks for the help in advance.

March 2, 2007 Posted by | Uncategorized | Leave a comment

Contracts: The Legal Duty Rule

There’s an important rule in contract law and that’s the legal duty rule. The legal duty rule says that a promise to perform what is already a legal duty isn’t consideration. For example, in Slattery v. Wells Fargo Armored Service Corp. an armored car was robbed. The plaintiff was a polygraph operator and discovered that a man he was testing for a matter unrelated to the robbery was the guilty party. He tried to recover the reward, but the court said that since he was working for the Sheriff’s Department at the time, he had a duty to report his findings.

An important case that illustrates the legal duty rule with contracts is Lingenfelder v. Wainwright Brewery. Here, an architect (the plaintiff was the plaintiff’s executor) was supposed to design a brewery for the defendant, but stopped work when another company was awarded a freezer contract that he wanted for his own company. The defendant offered to pay him commission in exchange for his continued work and the architect agreed. Wainwright, however, didn’t pay and the plaintiff sued. The court held that the architect was already under contract to design and build the brewery so Wainwright’s promise to pay for what he was already supposed to do was not consideration.  

January 30, 2007 Posted by | Contracts | Leave a comment