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Prior Racist Acts And The Character Evidence Ban In Hate Crime Prosecutions, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

The killing of unarmed African-American Ahmaud Arbery and others ignited a wave of public outrage and re-focused attention on race and the criminal justice system. During the recent federal hate crimes proceedings for Arbery’s death, the prosecution introduced evidence relating to the alleged past racist acts of the defendants. This type of evidence may be seen as highly probative and desperately needed to do justice in hate crimes cases. On its face, however, such type of evidence appears to be inadmissible owing to the well-known—but little understood— evidentiary ban on character evidence prescribed in Federal Rule of Evidence 404(b) and …

Confrontation, The Legacy Of Crawford, And Important Unanswered Questions, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

This is a short piece for the University of Michigan Journal of Law Reform as part of its 2024 Symposium on “Crawford at 20: Reforming the Confrontation Clause.” The piece's purpose is to highlight certain important questions left unanswered by Crawford v. Washington and subsequent confrontation cases.

The Future Scope Of The Character Evidence Prohibition: The Contextual Statutory Construction Argument That Could Finally Force The Policy Discussion, Paul F. Rothstein, Edward J. Imwinkelried

Georgetown Law Faculty Publications and Other Works

The general prohibition of character evidence is one of the most important doctrines in American Evidence law. Since the Supreme Court has held that the Eighth Amendment forbids status offenses in adult prosecutions, the doctrine has constitutional overtones. Federal Rule of Evidence 404(b) applies the prohibition to evidence of an accused’s other crimes and wrongs. Since such evidence can be inflammatory and the Rule’s limits sometimes confusing, Rule 404(b) generates more published opinions than any other provision of the Federal Rules of Evidence. Although the prohibition extends beyond other crimes, most of the controversy swirls around the Rule’s application to …

Williams V. Illinois And The Confrontation Clause: Does Testimony By A Surrogate Witness Violate The Confrontation Clause?, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

This article comprises a four-part debate between Paul Rothstein, Professor of Law at Georgetown Law Center, and Ronald J. Coleman, who works in the litigation practice group at Cleary Gottlieb Steen & Hamilton LLP, on Williams v. Illinois, a Supreme Court case that involves the Confrontation Clause, which entitles a criminal defendant to confront an accusing witness in court. The issue at hand is whether said clause is infringed when a report not introduced into evidence at trial is used by an expert to testify about the results of testing that has been conducted by a non-testifying third party. …

Doctrinal Issues In Evidence And Proof, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The word evidence ordinarily means the statements, events, items, or sensory perceptions that suggest the existence or nonexistence of, or truth or falsity of, another fact. Thus, one may say, “hoofbeats are evidence a horse may be passing.” Proof is similar in meaning but may connote more certainty.

Evidence can also mean the study of either (1) how people make such inferences (especially when conjoined with the word proof) or (2) how law regulates information admissibility in the judicial context. Evidence in the latter sense is the name of a standard law school course in common law countries and a …

The Second Circuit And The Federal Rules Of Evidence, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The most significant development in federal trial procedure in recent years has been the enactment of the Federal Rules of Evidence, effective July 1, 1975. In the intervening two years since the Rules became effective, the courts of the Second Circuit have bad occasion to make several illuminating applications of and references to them.

An examination of some of these decisions provides insight into the kinds of questions that are coming up not only in the Second Circuit, but around the country, and the kinds of answers that are being given. It is not the bizarre or unusual case that …

Some Themes In The Proposed Federal Rules Of Evidence, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

Although the Federal Rules of Evidence are under consideration by Congress, it is unlikely that many of their major themes will be reversed. The present article examines some of these themes as they appear in the Supreme Court-approved draft. The aim is merely to make more explicit the effects of the Rules and suggest some questions for study.