Teaching the Law School Curriculum - Institute for Law Teaching ...

202 Evidence
we can discuss why animals are not treated as declarants: (1) try cross-examining them! and (2) they’re less
likely to lie than humans are!
• An out-of-court statement (by Jeb) is being proved. What is it offered to prove? Jeb is the plaintiff and he
is testifying in his suit against Brian. He must be offering it at trial to prove that Jeb’s dog was in Brian’s
yard, which is the TOMA by Jeb when he made the earlier OCS. Therefore, it is hearsay.
• Sometimes students don’t “see” the OCS unless it is in quotation marks. This example gives them an easy
opportunity to identify the OCS and put it in quotation marks: Jeb said, “Brian stole my dog.” Because it is
offered for the TOMA, it’s hearsay.
• This example lets the students apply their understanding of non-verbal assertive conduct under 801(a).
They can see that Jeb is making an OCS and that by nodding his head he is saying, “Yes, I’m sure; Brian
stole my dog.” Because it is offered for TOMA, it’s hearsay.
RULE 407. SUBSEQUENT REMEDIAL MEASURES
Lynn McLain, University of Baltimore School of Law
Comparing Federal and State Rules of Evidence Using Side-By-Side Charts
I teach at a state law school (Hawaii). Approximately 80% of our graduates practice in the state. I therefore
give significant treatment to both the Hawaii Rules of Evidence (HRE) as well as the Federal Rules of Evidence
(FRE). Most of the rules are the same in both systems. However, there are some significant differences. One of
the best ways to compare the significant FRE and HRE differences is to place one rule right next to the other rule.
I have made up approximately 15 of what I call side-by-side charts and placed them in a special handout for my
students. I compare the rules sentence by sentence and underline or bold the words that are different in each rule.
I use them as overheads in class as well as provide them to the students in a handout. Students say this is really
helpful to them. I have included one such overhead here.
HAWAII FEDERAL
When, after an event, measures are taken which, When, after an injury or harm allegedly caused
if taken previously, would have made the event by an event, measures are taken that, if taken
less likely to occur, evidence of the subsequent previously, would have made the injury or harm
measures is not admissible to prove negligence less likely to occur, evidence of the subsequent
or culpable conduct in connection with the event. measures is not admissible to prove negligence,
culpable conduct, a defect in a product, a defect
in a product’s design, or a need for a warning or
instruction. [amended in 1997]
This rule does not require the exclusion of This rule does not require the exclusion of
evidence of subsequent measures when offered evidence of subsequent measures when offered
for another purpose, such as proving dangerous for another purpose, such as proving ownership,
defect in products liability cases, ownership, control, or feasibility of precautionary measures,
control, or feasibility of precautionary measures, if controverted, or impeachment.
if controverted, or impeachment.
John Barkai, University of Hawaii William S. Richardson School of Law