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Articles 1 - 17 of 17
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The Cognitive Psychology Of Circumstantial Evidence, Kevin Jon Heller
The Cognitive Psychology Of Circumstantial Evidence, Kevin Jon Heller
Michigan Law Review
Empirical research indicates that jurors routinely undervalue circumstantial evidence (DNA, fingerprints, and the like) and overvalue direct evidence (eyewitness identifications and confessions) when making verdict choices, even though false-conviction statistics indicate that the former is normally more probative and more reliable than the latter The traditional explanation of this paradox, based on the probability-threshold model of jury decision-making, is that jurors simply do not understand circumstantial evidence and thus routinely underestimate its effect on the objective probability of the defendant's guilt. That may be true in some situations, but it fails to account for what is known in cognitive psychology …
Learning The Wrong Lessons From "An American Tragedy": A Critique Of The Berger-Twerski Informed Choice Proposal, David E. Bernstein
Learning The Wrong Lessons From "An American Tragedy": A Critique Of The Berger-Twerski Informed Choice Proposal, David E. Bernstein
Michigan Law Review
Margaret Berger and Aaron Twerski are among the leading scholars in their respective fields of Evidence and Products Liability. I have benefited from their work on many occasions. Precisely because of the deserved respect and esteem in which Berger and Twerski are held-not to mention the prominence of their forum, the Michigan Law Review-their proposal to create a new "informed choice" cause of action in pharmaceutical litigation is likely to receive sympathetic attention. Because I believe that their proposal is ill-conceived and dangerous, I feel compelled (with some trepidation) to write this response. Berger and Twerski propose that courts recognize …
From The Wrong End Of The Telescope: A Response To Professor David Bernstein, Margaret A. Berger, Aaron D. Twerski
From The Wrong End Of The Telescope: A Response To Professor David Bernstein, Margaret A. Berger, Aaron D. Twerski
Michigan Law Review
On the pages of this law review, in an article entitled Uncertainty and Informed Choice: Unmasking Daubert, the authors argued for the recognition of a new product liability cause of action when drug companies fail to warn about uncertain risks attendant to the use of non-therapeutic drugs whose purpose is to enhance lifestyle. We noted that in the post-Daubert era, plaintiffs have faced increasing difficulty in proving that a given toxic agent was causally responsible for the injuries suffered after ingesting a drug. That plaintiffs cannot overcome the barriers to proving injury causation does not mean that defendants have met …
Same Old, Same Old: Scientific Evidence Past And Present, Edward K. Cheng
Same Old, Same Old: Scientific Evidence Past And Present, Edward K. Cheng
Michigan Law Review
For over twenty years, and particularly since the Supreme Court's Daubert decision in 1993, much ink has been spilled debating the problem of scientific evidence in the courts. Are jurors or, in the alternative, judges qualified to assess scientific reliability? Do courts really need to be concerned about "junk science"? What mechanisms can promote better decision making in scientific cases? Even a cursory scan of the literature shows the recent explosion of interest in these issues, precipitating new treatises, hundreds of articles, and countless conferences for judges, practitioners, and academics. To this literature, Professor Tal Golan adds Laws of Men …
Davis And Hammon: A Step Forward, Or A Step Back?, Tom Lininger
Davis And Hammon: A Step Forward, Or A Step Back?, Tom Lininger
Michigan Law Review First Impressions
Prosecutors, defense attorneys, and lower court judges hoped that the Supreme Court’s ruling in the consolidated cases of Davis v. Washington and Hammon v. Indiana (hereafter simply Davis) would provide a primer on testimonial hearsay. In retrospect, these hopes were somewhat unrealistic. The Davis ruling could not possibly clear up all the confusion that followed Crawford v. Washington, the landmark 2004 case in which the Court strengthened the right of the accused to confront declarants of testimonial hearsay. In Davis, the Court focused on the facts under review and developed a taxonomy that will be useful in similar cases, but …
Circling Around The Confrontation Clause: Redefined Reach But Not A Robust Right, Lisa Kern Griffin
Circling Around The Confrontation Clause: Redefined Reach But Not A Robust Right, Lisa Kern Griffin
Michigan Law Review First Impressions
The Supreme Court’s consolidated ruling in United States v. Davis and United States v. Hammon is a classic of the genre of consensus opinions to which the Roberts Court aspired in its first, transitional term. The opinion, authored by Justice Scalia, contains practical accommodations unusual in a decision by the Court’s fiercest proponent of first principles. The restraint that characterized the term is, of course, more about considerations of logistics (including the desire to avoid re-arguments after the mid-term replacement of Justice O’Connor) than about the alignment of logic. Because it reflects temporary institutional constraints rather than intellectual agreement, the …
Davis/Hammon, Domestic Violence, And The Supreme Court: The Case For Cautious Optimism, Joan S. Meier
Davis/Hammon, Domestic Violence, And The Supreme Court: The Case For Cautious Optimism, Joan S. Meier
Michigan Law Review First Impressions
The Supreme Court’s consolidated decision in Davis v. Washington and Hammon v. Indiana offers something for everyone: by “splitting the difference” between the two cases—affirming one and reversing the other—the opinion provides much grist for advocates’ mills on both sides of this issue. While advocates for defendants’ rights are celebrating the opinion’s continued revitalization of the right to confrontation, which began in Crawford v. Washington, advocates for victims have cause for celebration as well: the decision is notable for its reflection of the Court’s growing—albeit incomplete— awareness and understanding of the dynamics of domestic violence and their implications for justice. …
Still "Left In The Dark": The Confrontation Clause And Child Abuse Cases After Davis V. Washington, Anthony J. Franze, Jacob E. Smiles
Still "Left In The Dark": The Confrontation Clause And Child Abuse Cases After Davis V. Washington, Anthony J. Franze, Jacob E. Smiles
Michigan Law Review First Impressions
In his concurring opinion in Crawford v. Washington, Chief Justice Rehnquist criticized the majority for holding that the Confrontation Clause applies to “testimonial” statements but leaving for “another day” any effort to define sufficiently what “testimonial” means. Prosecutors and defendants, he said, “should not be left in the dark in this manner.” Over the next two years, both sides grappled with the meaning of testimonial, each gleaning import from sections of Crawford that seemingly proved their test was the right one. When the Court granted certiorari in Davis v. Washington and Hammon v. Indiana (hereinafter Davis), hopes were high that …
Davis V. Washington And Hammon V. Indiana: Beating Expectations, Robert P. Mosteller
Davis V. Washington And Hammon V. Indiana: Beating Expectations, Robert P. Mosteller
Michigan Law Review First Impressions
I begin with a question of effectiveness: does the new Confrontation Clause doctrine effectively protect defendants with respect to the most im-portant types of problematic out-of-court statements? Although they leave much room for the introduction of hearsay in the immediate aftermath of crime generally, Davis v. Washington and Hammon v. Indiana (together hereinafter Davis) are better opinions from that broad perspective than I had feared. The new doctrine now covers and provides substantial procedural protection for a very important class of problematic hearsay—statements made to government agents investigating past crime.
Refining Crawford: The Confrontation Claus After Davis V. Washington And Hammon V. Indiana, Andrew C. Fine
Refining Crawford: The Confrontation Claus After Davis V. Washington And Hammon V. Indiana, Andrew C. Fine
Michigan Law Review First Impressions
Clarification of the Supreme Court’s newly minted interpretation of the Confrontation Clause was desperately needed, and Davis v. Washington and Hammon v. Indiana promised to provide it. Two terms earlier, in Crawford v. Washington, the Supreme Court had worked a revolutionary transformation of Confrontation Clause analysis by overruling Ohio v. Roberts and severing the link between hearsay jurisprudence and the Clause. Crawford was hailed by the criminal defense bar, since it seemed to presage a sharp reduction in the frequency of so-called “victimless” trials by holding that “testimonial” hearsay, no matter how reliable, was constitutionally inadmissible in the absence of …
Introduction To Evidence Stories, Richard O. Lempert
Introduction To Evidence Stories, Richard O. Lempert
Other Publications
An introduction to Evidence Stories, by Richard Lempert.This publication contains essays by leading evidence scholars discussing the stories behind landmark cases and illuminating principles and materials across the evidence curriculum. The seldom-told stories behind cases where evidence plays a significant role are now told with important illustrations of the development, application, and importance of the rules of evidence.
Dickerson V. United States: The Case That Disappointed Miranda's Critics - And Then Its Supporters, Yale Kamisar
Dickerson V. United States: The Case That Disappointed Miranda's Critics - And Then Its Supporters, Yale Kamisar
Book Chapters
It is difficult, if not impossible, to discuss Dickerson1 intelligently without discussing Miranda whose constitutional status Dickerson reaffirmed (or, one might say, resuscitated). It is also difficult, if not impossible, to discuss the Dickerson case intelligently without discussing cases the Court has handed down in the five years since Dickerson was decided. The hard truth is that in those five years the reaffirmation of Miranda's constitutional status has become less and less meaningful. In this chapter I focus on the Court's characterization of statements elicited in violation of the Miranda warnings as not actually "coerced" or "compelled" but obtained merely …
The Story Of Crawford, Richard D. Friedman
The Story Of Crawford, Richard D. Friedman
Book Chapters
Michael Crawford had been charged with assault. At his trial, the prosecution offered a statement made in the police station on the night of the incident by Crawford's wife Sylvia, who did not testify at trial. He objected, in part on the ground that this violated his right under the Confrontation Clause. The trial court nevertheless admitted the statement, and Crawford was convicted. The Washington Supreme Court ultimately affirmed the judgment. In rejecting the Confrontation Clause challenge, that court purported to apply the then governing doctrine of Ohio v. Roberts, under which the Clause posed no obstacle to admissibility if …
Improving Criminal Jury Decision Making After The Blakely Revolution, J. J. Prescott, Sonja B. Starr
Improving Criminal Jury Decision Making After The Blakely Revolution, J. J. Prescott, Sonja B. Starr
Articles
The shift in sentencing fact-finding responsibility triggered in many states by Blakely v. Washington may dramatically change the complexity and type of questions that juries will be required to answer. Among the most important challenges confronting legislatures now debating the future of their sentencing regimes is whether juries are prepared to handle this new responsibility effectively - and, if not, what can be done about it. Yet neither scholars addressing the impact of Blakely nor advocates of jury reform have seriously explored these questions. Nonetheless, a number of limitations on juror decision making seriously threaten the accuracy of verdicts in …
We Really (For The Most Part) Mean It!, Richard D. Friedman
We Really (For The Most Part) Mean It!, Richard D. Friedman
Articles
I closed my petition for certiorari in Hammon v. Indiana by declaring, “ ‘We really mean it!’ is the message that lower courts need to hear, and that decision of this case can send.” The prior year, Crawford v. Washington had transformed the law of the Confrontation Clause, holding that an out-ofcourt statement that is testimonial in nature may be admitted against an accused only if the maker of the statement is unavailable and the accused has had an opportunity to cross-examine her. But Crawford deliberately left undetermined what the term “testimonial” meant. Many lower courts gave it a grudging …
Miranda's Reprieve: How Rehnquist Spared The Landmark Confession Case, But Weakened Its Impact, Yale Kamisar
Miranda's Reprieve: How Rehnquist Spared The Landmark Confession Case, But Weakened Its Impact, Yale Kamisar
Articles
June marks the 40th anniversary of one of the most praised, most maligned-and probably one of the most misunderstood-U.S. Supreme Court cases in American history, Miranda v. Arizona. The opinion by Chief Justice Earl Warren conditions police questioning of people in custody on the giving of warnings about the right to remain silent, the right to counsel and the waiver of those rights. 384 U.S. 436. This ruling represents a compromise of sorts between the former elusive, ambiguous and subjective voluntariness/totality-of-the-circumstances test and extreme proposals that would have eliminated police interrogation altogether. But William H. Rehnquist didn't see Miranda that …
Videotaping Investigative Interviews Of Children In Cases Of Child Sexual Abuse: One Community's Approach, Frank E. Vandervort
Videotaping Investigative Interviews Of Children In Cases Of Child Sexual Abuse: One Community's Approach, Frank E. Vandervort
Articles
Legal scholars have long debated the efficacy and necessity of videotaping investigative interviews with children when allegations of child sexual abuse have surfaced. This debate has been advanced from the perspectives of adversaries in the criminal justice system, prosecutors and defense advocates. Absent from this debate has been the perspective of the broader community. This debate has failed to consider how other investigative tools might be used in conjunction with videotaping to advance the interests of the community. Moreover, the debate about videotaping has taken place with little actual data. This Article seeks to accomplish two goals. First, it seeks …