Using Transcripts in Evidence Class, a Guest Post by Kevin Lapp

As my previous posts have indicated, I’m abeliever in the problem-based approach to teaching Evidence. As great as problemsare, though, they have their limitations. Usually, they are procedurally quite neat,setting up the witness’s proposed testimony on a platter within the context ofan ongoing trial. For these problems, the students simply have to decidewhether some proposed testimony would be admissible under the given, limitedfacts. This has tremendous efficiency advantages for the classroom, but it alsocomes with a cost: students do not see the full work that goes into elicitingadmissible testimony, which involves the important task of laying thefoundation for a particular witness’s testimony or a particular document orpiece of physical evidence. These issues can be discussed by simply askingthings like “what foundational information must the proponent have establishedfirst?” or “how would you authenticate the physical evidence?” But there’ssomething to be said for showing the students just how that happens. And that’sone reason I like to use trial transcripts in Evidence class to help thestudents learn the rules.

For showing the students how to lay properfoundations, I have found Imwinkelried’s EvidentiaryFoundations to be a great resource. I don’t require my students to purchasethe book, but I recommend it, and have relied on it to craft my own shortexamples for the students. As good and helpful as I think these transcriptsare, they aren’t the perfect transcript tool for teaching the rules, at leastnot alone. Or maybe it’s better to say that they are too perfect to stand asthe 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 thatare sustained, and good objections that are overruled. So I aim to putimperfect transcripts to use in the classroom. 

The Leonard, Gold, Williams Evidence: A Structured Approach textbookhas some nice transcript exercises, as do other textbooks. I used one from theLeonard/Gold/Williams book today to recap character and impeachment. It wasjust over 4 pages long, and covered several different issues very efficiently.We did a dramatic reading, with individual students assigned roles and readingtheir 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 correctlysustained 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 ifthey felt the same).

One of the best things that I thought theexercise did was to illustrate the workings of the character and impeachment rulesbecause we had actual witnesses in front of the classroom, being called totestify, cross-examined, and dismissed. In particular, the timing components ofthe character and impeachment rules were easier to see than they are by doingshort problems. Since we were conducting the quick trial in front of theclassroom, the students knew that we were still in the prosecution’scase-in-chief, or that the attempted impeachment followed or preceded testimonyby the person that the testimony impeached. It’s easy for the students to getoverwhelmed in learning this material, focusing so much attention on thecontent of the rules (what can you use to impeach) that they lose sight of thetiming aspect (when can you do it). This exercise illustrated plainly, forexample, the point that impeaching someone who hasn’t yet uttered a word attrial 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 LosAngeles, it was also a very L.A. experience to do a reading of a script inclass. Of course, it wasn’t perfect, and running through it for the first timein class taught me that I should summarize testimony as much as I can, andlimit the dramatic reading to short chunks of testimony that immediatelyprecede and include an objection and a ruling. But I found it a welcome changeof pace, and hope that it helped the students understand and apply the rules.In its imperfections, the transcript also gives the students the opportunity torealize that they can do the job of a lawyer, and can even come up with betteranswers and arguments than the ones contained in the transcript.

As always, I’d be curious to hear how othersuse trial transcripts in the classroom, or as homework assignments.