Law Commons^™

Controlling The Jury-Teaching Function, Richard D. Friedman

Articles

When evidence with a scientific basis is offered, two fundamental questions arise. First, should it be admitted? Second, if so, how should it be assessed? There are numerous participants who might play a role in deciding these questions—the jury (on the second question only), the parties (through counsel), expert witnesses on each side, the trial court, the forces controlling the judicial system (which include, but are not limited to, the appellate courts), and the scientific establishment. In this Article, I will suggest that together, the last two—the forces controlling the judicial system and the scientific establishment—have a large role to …

The Child Quasi-Witness, Richard D. Friedman, Stephen J. Ceci

Articles

This Essay provides a solution to the conundrum of statements made by very young children and offered against an accused in a criminal prosecution. Currently prevailing doctrine allows one of three basic outcomes. First, in some cases the child testifies at trial. But this is not always feasible, and when it is, cross-examination is a poor method for determining the truth. Second, evidence of the child's statement may be excluded, which denies the adjudicative process of potentially valuable information. Third, the evidence may be admitted without the child testifying at trial, which leaves the accused with no practical ability to …

Jack Weinstein And The Missing Pieces Of The Hearsay Puzzle, Richard D. Friedman

Articles

For the first three quarters of the twentieth century, the Wigmore treatise was the dominant force in organizing, setting out, and explaining the American law of evidence. Since then, the first two of those roles have been taken over in large part by the Federal Rules of Evidence (Rules). And the third has been performed most notably by the Weinstein treatise. Judge Jack Weinstein was present at the creation of the Rules and before. Though he first made his name in Civil Procedure, while still a young man he joined two of the stalwarts of evidence law, Edmund Morgan and …

Adaptation And The Courtroom: Judging Climate Science, Kirsten Engel, Jonathan Overpeck

Michigan Journal of Environmental & Administrative Law

Climate science is increasingly showing up in courtroom disputes over the duty to adapt to climate change. While judges play a critical role in evaluating scientific evidence, they are not apt to be familiar with the basic methods of climate science nor with the role played by peer review, publication, and training of climate scientists. This Article is an attempt to educate the bench and the bar on the basics of the discipline of climate science, which we contend is a distinct scientific discipline. We propose a series of principles to guide a judge’s evaluation of the reliability and weight …

Pain, Love, And Voice: The Role Of Domestic Violence Victims In Sentencing, Hadar Dancig-Rosenberg, Dana Pugach

Michigan Journal of Gender & Law

Criminal law systems throughout the world have evolved to a stage where they no longer ask, "What is the appropriate role of the victim in a criminal trial?" The questions now relate to the scope of the victim's rights, in which procedures she has independent standing, and at what stage she should be heard. The process of the "prosecution stepping into the victim's shoes," whereby the state controls the entire criminal process, seemingly on behalf of the victim, has been replaced by the recognition that the interests of the prosecution (the State) are not always consistent with those of the …

Access To Information, Access To Justice: The Role Of Presuit Investigatory Discovery, Lonny Sheinkopf Hoffman

University of Michigan Journal of Law Reform

What is the relationship between access to information and access to justice? Private parties obviously have many publicly available points of access to the information they seek in order to file a lawsuit. Lawyers can talk to their clients and other willing witnesses. Documents can be gathered. Specific statutes may sometimes permit information to be obtained before a formal lawsuit is brought. On other occasions, however, information needed or desired will lie solely within the exclusive knowledge and control of another The ability of private parties to compel the production of information, documents, or testimony before litigation rarely has been …

Judges As Film Critics: New Approaches To Filmic Evidence, Jessica M. Silbey

University of Michigan Journal of Law Reform

This Article exposes internal contradictions in case law concerning the use and admissibility of film as evidence. Based on a review of more than ninety state and federal cases dating from 1923 to the present, the Article explains how the source of these contradictions is the frequent miscategorization of film as "demonstrative evidence, "evidence that purports to illustrate other evidence, rather than to be directly probative of some fact at issue. The Article further demonstrates how these contradictions are based on two venerable jurisprudential anxieties. One is the concern about the growing trend toward replacing the traditional testimony of live …

Expert Information And Expert Evidence: A Preliminary Taxonomy, Samuel R. Gross, Jennifer L. Mnookin

Articles

Federal Rule of Evidence 702 speaks in very general terms. It governs every situation in which "scientific, technical or other specialized knowledge will assist the trier of fact," and provides that, in that situation, "a witness qualified as an expert by knowledge, skill, experience, or education, may testify thereto in the form of an opinion or otherwise . . . .' In 2000, following a trio of Supreme Court cases interpreting Rule 702, the Rule was amended to include a third requirement, in addition to the helpfulness of the testimony and the qualifications of the witness: reliability. Under Rule 702 …

Experts, Carl E. Schneider

Articles

George Bernard Shaw famously said that all professions are conspiracies against the laity. Less famously, less elegantly, but at least as accurately, Andrew Abbott argued that professions are conspiracies against each other. Professions compete for authority to do work and for authority over work. The umpire in these skirmishes and sieges is the government, for the state holds the gift of monopoly and the power to regulate it. In Abbott's terms, "bioethics" is contesting medicine's power to influence the way doctors treat patients. If it follows the classic pattern, bioethics will solicit work and authority by recruiting government's power. A …

The Death And Transfiguration Of Frye, Richard D. Friedman

Articles

The rule of Frye v. United States was seventy years old, and had long dominated American law on the question of how well established a scientific principle must be for it to provide the basis for expert testimony. Even after the passage of the Federal Rules of Evidence, several of the federal circuits, as well as various states, purported to adhere to Frye's "general acceptance" standard. But now, unanimously, briefly, and with no apparent angst, the United States Supreme Court has held in Daubert v. Merrell Dow Pharmaceuticals, Inc. that the Frye rule is incompatible with the Federal Rules.

Déjà-Vu All Over Again- Elliott's Critique Of Eyewitness Experts, Saul M. Kassin, Phoebe C. Ellsworth, Vicki L. Smith

Articles

Echoing McCloskey and Egeth (1983), and motivated by Kassin, Ellsworth, and Smith's (1989) survey of 63 eyewitness experts, Elliott (1993) recently attacked the use of psychological experts on eyewitness testimony. There are two principal shortcomings of this critique. First, it misrepresents the eyewitness literature and the experts who use it. Second, it merely parrots complaints of the past. The same old arguments are made about the lack of sufficient research evidence, the standards by which experts should conduct their affairs, and the impact of it all on the jury. Perhaps the field needs periodic prodding and consciousness-raising on this issue, …

Expert Evidence, Samuel R. Gross

Articles

It seems that the use of expert witnesses in common law courts has always been troublesome. In his Treatise on the Law of Evidence, first published in 1848, Judge John Pitt Taylor describes several classes of witnesses whose testimony should be viewed with caution, including: enslaved people (which accounts for "the lamentable neglect of truth, which is evinced by most of the nations of India, by the subjects of the Czar, and by many of the peasantry in Ireland"); women (because they are more susceptible to "an innate vain love of the marvelous"); and "foreigners and others ... living out …

Clinical Realism: Simulated Hearings Based On Actual Events In Students' Lives, Samuel R. Gross

Articles

This essay describes a novel clinical format, a simulation course that is based on students' testimony about actual events in their own lives. The two main purposes of the course, however, are not novel. First, I aim to teach the students to be effective trial lawyers by instructing them in the techniques of direct examination and cross-examination and by making them sensitive to the roles of the other courtroom players: the witness, the judge, and the jury. Second, I hope to encourage the students to think about the social and ethical consequences of our method of trying lawsuits.

Interview Notes Of Government Agents Under The Jencks Act, Michigan Law Review

Michigan Law Review

Most courts that have considered the issue have concluded that the Jencks Act does not require the government to retain and produce rough interview notes. This Note examines the language and purpose of the Act to determine whether interview notes should be considered Jencks Act statements. Part I examines the policy underlying the Jencks Act and argues that the majority position sanctioning pre-trial destruction of interview notes conflicts with these statutory purposes. Part II discusses the statutory language and argues that the status of the witness as a government agent or a private individual determines the applicable section of the …

Opinions And Expert Testimony, John W. Reed

Book Chapters

Article VI of the Michigan Rules of Evidence contains the rules dealing with witnesses. Trials bring to mind testimonial evidence. There surely are other kinds of evidence, such as docmnents, guns, automobile tires, chemical substances, and the like. But most evidence comes from the mouths of witnesses, and even demonstrative evidence usually is admitted only after a witness has taken the stand and testified to foundation facts. So it is important and appropriate that we turn to the provisions of the rules that deal with qualifications and credibility of witnesses. I would like to direct your attention to MRE 601 …

Rules Pertaining To Witnesses, John W. Reed

Book Chapters

Article VI of the Michigan Rules of Evidence contains the rules dealing with witnesses. Trials bring to mind testimonial evidence. There surely are other kinds of evidence, such as docmnents, guns, automobile tires, chemical substances, and the like. But most evidence comes from the mouths of witnesses, and even demonstrative evidence usually is admitted only after a witness has taken the stand and testified to foundation facts. So it is important and appropriate that we turn to the provisions of the rules that deal with qualifications and credibility of witnesses. I would like to direct your attention to MRE 601 …

Revitalization Of The International Judicial Assistance Procedures Of The United States: Service Of Documents And Takings Of Testimony, Richard F. Gerber

Michigan Law Review

This comment will examine two aspects of such judicial assistance-service. of documents and taking of testimony-and it will analyze each from the viewpoint of assistance obtained abroad in aid of American litigation as well as assistance rendered within the United States in aid of foreign litigation. It will attempt to survey some of the problems involved in securing performance of these acts, indicate the changes in current practice which are likely to result from the revisions of the Federal Rules of Civil Procedure and the proposed amendments to the Judicial Code, and, last, suggest some additional measures which might promote …

Social Scientists Take The Stand: A Review And Appraisal Of Their Testimony In Litigation, Jack Greenberg

Michigan Law Review

"How to inform the judicial mind, as you know, is one of the most complicated problems,'' said Justice Frankfurter during argument of the school segregation cases. And as law deals more and more with issues of great public consequence the judiciary's need for knowledge increases. Much of this knowledge is within the realm of what are called the social sciences.

Although jurisprudents and social scientists have long complained of a gulf between law and social science, little notice has been given to the recent, recurrent collaboration between the two at the trial level. In a variety of cases social scientists' …

The Compensation Of Medical Witnesses, Harry B. Hutchins

Articles

The power to compel testimony is inherent in every court, for without it justice could constantly be thwarted. Generally all persons may be compelled to give evidence that is relevant to the matter in controversy. If, therefore, a person who has been duly summoned as a witness at a particular trial absents himself therefrom, without just cause, or attending, refuses to give evidence or to answer questions when directed so to do by the court, he is liable to punishment for contempt.1 But there are limitations upon the general rule, some based upon principles of legal policy and some upon …

Compensation Of Experts, Henry W. Rogers

Articles

The law relating to the compensation of experts is somewhat unsettled, and the cases are not numerous in which the subject has been considered. This very fact, however, lends additional interest to the subject, and the question is one of great importance. In some of the States the law expressly provides that when a witness is summoned to testify as an expert he shall be entitled to extra compensation. Such a provision may be found in the laws of Iowa, of North Carolina, and of Rhode Island.