Law Commons^™

Should Michigan Rule Of Evidence 703 Be Revised?, Brian Benner, Ronald L. Carlson

Popular Media

Technical witnesses regularly assist the fact-finding process in Michigan trials. Jury or bench trials in federal and state courts routinely feature the appearance of experts. Properly policed by our courts, few forms of testimony hold more promise for advancing the truth-seeking function of American litigation. The expanding presence of experts raises hard questions. Are the Michigan rules in turn with modern needs? Should the state rule controlling the basis for expert opinion be aligned with the federal pattern? If Michigan Rule of Evidence 703 could stand revision, does proper alteration require significant additions not presently contained in either state or …

Policing The Bases Of Modern Expert Testimony, Ronald L. Carlson

Scholarly Works

The expanding array of scientific (as well as some not-so-scientific) specialties available as sources for testimony raises hard questions. Will courts require that the witness' opinions be reasonably based upon trustworthy data? How far must judges inquire into the practice of other experts in the same field prior to allowing the trial witness to proffer an expert opinion? How much of the expert's supporting data will be received in evidence? This Essay addresses these and other important questions affecting the scope of modern expert testimony.

Balancing Government Efficienty And The Protection Of Individual Liberties: An Analysis Of The Conflit Between Executive Branch "Housekeeping" Regulations And Criminal Defendants' Rights To A Constitutionally Fair Trial, James F. Ponsoldt

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This Article addresses the issue of whether an accused person should be entitled to obtain and use at trial relevant government information or the testimony of government employees to prove his innocence, regardless of whether he has revealed in advance to his adversary his intended use of that information or the specific content of that testimony. Part I describes the federal "housekeeping" statute and the Justice Department's housekeeping regulations, which require that subpoenaed government employees not disclose evidence unless the person seeking that evidence has first summarized the requested evidence in advance, explained its intended use, and obtained permission from …

The Myth Of Conditional Relevancy, Vaughn C. Ball

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[This article is intended to supersede and replace an article with the same title published by the Arizona State Law Journal. That article, in its printed form, was disapproved by me prior to publication, and did not correctly state my views on the subject.] It is the thesis of this article, which may as well be stated first as last, that: (1) the received learning of the doctrine of conditional relevancy is erroneous, being based from the start on an incorrect analysis of relevancy; (2) the doctrine is inconsistent with the definitions of relevancy adopted in the Model Code, the …

"Just Sign Here--It's Only A Formality": Parol Evidence In The Law Of Commercial Paper, Ellen R. Jordan

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Part I will argue that certainty is especially important in the law of negotiable instruments, although it does not outweigh all other values. In light of the need for certain rules, this Article will consider the policy choices made by the drafters of the Uniform Commercial Code's Article 3 on Commercial Paper with respect to parol evidence. Part II will examine certain parol evidence that is admissible against even the law's most favored plaintiff, the holder in due course. Part III will focus on the Code's indirect treatment of the most troublesome parol evidence problems, those which arise when the …

Interpreting An Insurance Policy In Georgia: The Problem Of The Evidentiary Condition, Eric M. Holmes

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The purpose of this essay is to suggest an analytic framework for solving a recurrent insurance problem which springs from what might be called an "evidentiary condition." These conditions can be found in most classes of insurance policies. The immodest purpose of this modest essay is to devise a line of analysis which resolves the problems raised by evidentiary conditions and affords sensitivity and protection to all the competing interests in an insurance contract. The proffered solution, which I label the doctrine of evidentiary conditions, may furnish a doctrinal bridge for reconciling the two disparate contract schools.

Attacking Jury Verdicts: Paradigms For Rule Revision, Ronald L. Carlson, Steven M. Sumberg

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The rule that a juror cannot impeach his own verdict has been applied inconsistently by the courts. This article describes the majority rule, known as the Mansfield or no-impeachment rule, and examines its origin and supporting policies. It then presents minority rules, questions posed by post-verdict interviewing of jurors, and procedural problems that accompany the impeachment of verdicts. The article also analyzes the recent erosion of the Mansfield rule and suggests that an exception to the rule should be made to allow a juror to impeach his own verdict by proving that he was threatened.

"A Most Deplorable Paradox": Admitting Illegally Obtained Evidence In Georgia--Past, Present, And Future, Donald E. Wilkes Jr.

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This Article explores the admissibility of illegally obtained evidence in Georgia criminal cases prior to 1961 and during the post-Mapp era and endeavors to assess the future admissibility of illegally seized evidence in Georgia under both federal and state law.

Claiming Illegal Electronic Surveillance: An Examination Of 18 U.S.C. 3504(A)(1), Margaret V. Sachs

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This Comment will first discuss the making of claims under section 3504(a)(1), and will show that the statute should not be read to require that claims be accompanied by evidentiary support. It will then suggest that the statute should be read to encompass claims of attorney-third party conversations. Finally, the scope of the government's response to section 3504(a)(I) claims will be examined.

A Critique Of Two Arguments Against The Exclusionary Rule: The Historical Error And The Comparative Myth, Donald E. Wilkes Jr.

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“The great body of the law of evidence consists of rules that operate to exclude relevant evidence.” The most controversial of these rules are those which prevent the admission of probative evidence because of the irregular manner in which the evidence was obtained. Depending on whether the method of obtaining violated a provision of positive law, irregularly obtained evidence may be separated into two classes. Evidence obtained by methods which meet legal requirements but contravene some moral or ethical principle is unfairly obtained evidence. Evidence obtained in violation of a legal right or immunity is improperly obtained evidence, regardless of …

Scope Of Cross-Examination And The Proposed Federal Rules, Ronald L. Carlson

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In analyzing the proposed Federal Rules of Evidence, the drafting work of the Advisory Committee should not be overlooked. This is easy to do when any particular rule is isolated and criticized. For the most part, the total rules package prepared by the Advisory Committee represents a commendable effort to provide a needed set of uniform rules for federal trials. The ideas contained in the new rules are almost invariably well researched. When oversights or omissions in treatment do appear, however, it is well to raise these points for discussion. Congress is reviewing the Proposed Federal Rules, and the final …

Argument To The Jury And The Constitutional Right Of Confrontation, Ronald L. Carlson

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Dean Carlson poses the question: When a prosecutor refers to evidence outside the record in his summation, has he thereby violated the accused person's constitutional right to cross-examine the witnesses against him? The prevailing view is that this is reversible error only if the defendant can prove that the reference was highly prejudicial.

After a full analysis of all the leading decisions--and these are largely analogous in nature--the author proposes a new rule and a new approach to this unexplored area.

False Or Suppressed Evidence: Why A Need For The Prosecutorial Tie?, Ronald L. Carlson

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Many United States Supreme Court decisions have overturned criminal convictions for the reason that the government employed false evidence to obtain the conviction or failed to disclose relevant evidence important to the defense. In reversing federal or state judgments, the Court often has located direct proof of wrongdoing by the prosecutor. The notorious “bloody shorts” case is an example in point. There, the state introduced as evidence a pair of men’s “blood-stained” undershorts to achieve conviction of the accused. When the blood turned out to be red paint, the Supreme Court granted habeas corpus relief to the defendant because “[ilt …

Jailing The Innocent: The Plight Of The Material Witness, Ronald L. Carlson

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Unknown to many lawyers, American legal history is marred with numerous recorded episodes of extended imprisonment of innocent American citizens. Frequently guiltless of any offense, these citizens are held because they happen to be witnesses to a crime and are financially unable to post a bond to insure their appearance to testify at the trial of the person accused of committing it. Not simply a feature of law from a bygone era, these incidents of imprisonment continue to arise today. Occasionally, a situation occurs wherein the man accused of the crime is released on bail and spends his time before …

Highlights Of The Proposed Federal Rules Of Evidence, Thomas F. Green Jr.

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To prepare a draft of proposed rules, the Chief Justice of the United States, as chairman of the Judicial Conference, appointed an Advisory Committee of fifteen members. Membership is comrpised of eight trial attorneys, the former chief of the criminal appeals unit of the Department of Justice, four federal judges, and two members of law school faculties. A third academician, Edward W. Cleary, who before teaching had 11 years of active practice, is Reporter for the Committee, furnishing many of the ideas, doing or directing most of the research, and usually doing the original drafting. After three and a half …