Law Commons^™

On Proving Mabrus And Zorgs, Michael S. Pardo

Vanderbilt Law Review

An unfortunate disconnect exists in modern evidence scholarship. On one hand, a rich literature has explored the process of legal proof in general and legal standards of proof in particular. Call this the "macro level" of legal proof. On the other hand, a rich literature has explored the admissibility rules that regulate the admission or exclusion of particular types of evidence (such as hearsay, character evidence, expert testimony, and so on). Call this the "micro level" of legal proof. Little attention, however, has focused on how the issues discussed in these two distinct strands of evidence scholarship intertwine. One important …

Reviving “Dead Letters”: Reimagining Federal Rule Of Evidence 410 As A Conditional Privilege, Peter G. Cornick

Vanderbilt Law Review

Though understudied relative to its fellow specialized relevance rules, Federal Rule of Evidence 410 protects a crucial element of the criminal justice system: plea negotiations. As written, the rule prevents the admission of evidence gathered during plea discussions, which helps assure criminal defendants that their candid discussions with prosecutors will not harm them in any future proceeding. But the Supreme Court has greatly weakened Rule 410, permitting broad waiver of the rule’s protections that run afoul of Congress’s purpose in creating the rule and its plain language. In light of these developments, the Note argues that Rule 410 should be …

Plea Bargaining, Discovery, And The Intractable Problem Of Impeachment Disclosures, R. Michael Cassidy

Vanderbilt Law Review

Several recent high-profile cases have illustrated flaws with the government's discovery practices in criminal cases and have put prosecutors across the country on the defensive about their compliance with disclosure obligations. The conviction of former Alaska Senator Ted Stevens on ethics charges was set aside after it was revealed that federal prosecutors withheld notes of an interview with a key government witness; one member of the Stevens prosecution team who was under investigation for contempt subsequently committed suicide. The Supreme Court remanded a double murder case from Tennessee for potential resentencing after it was revealed that state prosecutors had withheld …

The Individualization Fallacy In Forensic Science Evidence, Michael J. Saks, Jonathan J. Koehler

Vanderbilt Law Review

Forensic identification science involves two fundamental steps. The first step is to compare a questioned item of evidence to an exemplar from a known source and judge whether they appear so alike that they can be said to match. The second step is to assess the meaning of that reported match: What is the probability that the questioned and the known originated from the same source?

Different risks of error are present at each step. The risk of error in the first step is that a reported match between a questioned and a known sample might not really match. Even …

Burdens Of Proof: Degrees Of Belief, Quanta Of Evidence, Or Constitutional Guarantees?, C.M.A. Mccauliff

Vanderbilt Law Review

This Article analyzes the whole range of burdens of proof as well as their constitutional implications. Part H of the Article discusses the traditional burdens of proof and the use of probability theory in legal fact finding. Part HI of the Article studies the decision making processes of law enforcement officers, the judges that review their decisions, and the decision making processes in appellate and administrative review. Part IV of the Article returns to the trial process and analyzes burdens of proof, not as degrees of belief, but as reflections of constitutional due process that mandate a required degree of …

The Acquisition Of Evidence For Criminal Prosecution: Some Constitutional Premises And Practices In Transition, H. Richard Uviller

Vanderbilt Law Review

This Article isolates only two of the many aspects of the Court's labors affecting the acquisition of evidence for criminal prosecution. The first concerns the allocation of primacy among the values that the exclusionary response to the illegal acquisition of evidence serves: a theoretical choice that may carry some notable practical consequences. The second requires are examination of the role of the trial court in supervising the preaccusatory search for evidence in a way that suggests the possible obsolescence of the Supreme Court's ruling credo in the Stewart era.

Diminished Capacity-Recent Decisions And An Analytical Approach, Robert P. Bryant, Corbin B. Hume

Vanderbilt Law Review

The concept of diminished capacity allows a defendant in a criminal case to prove, usually by presenting psychiatrists who testify that he suffered from an abnormal mental condition, that he was unable to entertain the particular mens rea required for conviction.' Although courts historically have been reluctant to admit such testimony, in recent years a growing number of jurisdictions have recognized the concept of diminished capacity. Recent decisions in Pennsylvania, the District of Columbia, and North Carolina, as well as recently adopted statutes in ten other jurisdictions,illustrate the evidentiary, social, and constitutional issues raised by the concept of diminished capacity. …

Easy Cases, Bad Law, And Burdens Of Proof, Roger B. Dworkin

Vanderbilt Law Review

Easy cases, as well as hard ones, sometimes make bad law. Pickett v. Cooper,' for example, was a straightforward automobile accident personal injury case. Defendant's car, on the wrong side of the road,collided with the car in which plaintiff was riding. Defendant contended that a tire blowout, rather than negligent driving, caused his car to be in the wrong lane, and he introduced evidence to support that contention. Instructing on the doctrine of "sudden emergency," the trial court told the jury to find for defendant if they believed "it [to be] as likely as not" that a tire blowout produced …

Omnibus Crime Control And Safe Streets Act Of 1968-Grand Jury Witness Standing To Suppress Illegally Obtained Evidence, Law Review Staff

Vanderbilt Law Review

Title III of the Omnibus Crime Control and Safe Streets Act of 19681 attempts to regulate the use of electronic surveillance and wiretap within fourth amendment guidelines developed by the judiciary. If evidence has been obtained in violation of the Act, the Act prohibits its introduction into judicial, legislative, and administrative proceedings. As recent courts of appeals cases indicate, however, one primary question has arisen concerning the operation of this exclusionary rule in the specific context of a grand jury proceeding: May a grand jury witness challenge the admissibility of evidence obtained in violation of the Crime Control Act?

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust--Treble Damage Actions--Private Litigant Whose Injury Was Reasonably Foreseeable Has Standing To Sue

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Constitutional Law--Free Exercise of Religion--First Amendment Violated by Compulsory Education Statute that Prevents a Parent from Raising His Children According to His Religious Beliefs

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Constitutional Law--Immunity Statutes-Section 201 of Organized Crime Control Act of 1970, Which Provides Only Use and Fruits Immunity, Violates Fifth Amendment

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Constitutional Law-Search and Seizure--AFDC Caseworker's Visit to Home of Nonconsenting Welfare Recipient Not Prohibited by Fourth Amendment

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Consumer Protection Law-Standing -United States Has Standing To Seek Injunction Against Practice of Obtaining Default Judgments Through False Affidavits Certifying Service …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust--Robinson-Patman-Adoption of Physical Comparison Test To Determine "Like Grade or Quality"

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Antitrust--Tying Arrangement Held Unfair Method of Competition Under Section 5 of Federal Trade Commission Act Atlantic Refining Company agreed to promote

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Bankruptcy--Tax-Rights of a Trustee in Bankruptcy Against an Unrecorded Tax Lien

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Constitutional Law--Applicability of the Fourteenth Amendment to a Charitable Trust in Which a State Agency Was the Original Trustee

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Constitutional Law--Clandestine Surveillance of Public Toilet--Not an Unreasonable Search

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Criminal Law--Joint Trials--Admission of Confession Implicating Both Defendants Held Erroneous

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Evidence--No Cross-Examination of Defendant's Character Witnesses as to His Prior Arrests and Conviction …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Advertising--Use of "Free," a Deceptive Practice Under the Federal Trade Commission Act

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Anti-Trust Law--Conspiracy To Subvert Competitor's Employees and Customers Violates Section 1 of the Sherman Act

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Conflict of Laws--Depositor's Request That Disposition of Foreign-Owned Funds Deposited In New York Bank Be Governed By New York Law Upheld as a Matter of Public Policy

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Constitutional Law--Applicability of Agricultural Adjustment Act of 1938 to Wheat Grown On State-Owned Farms

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Corporations--Dissolution of Close Corporation Not Granted On Mere Showing of Low Profits Insufficient To Provide Minority Shareholder With Adequate Return on Invested Capital

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Criminal Law--Illegal Searches and …

The Types Of Evidence: An Analysis, Lyman R. Patterson

Vanderbilt Law Review

Since the purpose of this article is to analyze evidence in functional terms, it may be helpful at the outset to state the basic ideas which underlie the discussion.

1. Evidence consists of propositions of fact which are related to another proposition, a proposed conclusion. Evidence is thus to be distinguished from the fact or facts which are its basis. 2. The essential relationship of propositions which are evidence to the proposition which is the proposed conclusion is relevancy. 3. The relevancy of evidence to the proposed conclusion is determined by the inference drawn from the evidence. If the evidence …

Contracts -- 1964 Tennessee Survey, Paul I. Hartman

Vanderbilt Law Review

I. Promissory Estoppel--Application by Federal Court

II. Third Party Beneficiary--Enforcement of Labor and Material Bond

III. Statute of Frauds--Statute as Defense to Third Party

IV. Parol Evidence Rule--Application to Extrensic Subsequent Agreement

V. Illegal Bargains--Agreement Not to Compete

VI. Death of Party to Personal Service Contract as Terminating the Contract

Evidence: A Functional Meaning, Lyman R. Patterson

Vanderbilt Law Review

A trial always involves two basic problems-the problem of ascertaining the truth of the matter in issue, and the problem of re-solving a dispute. The former can be characterized as the probative problem, arising from the problem of proving, and the latter as the forensic problem, arising from the procedural problem of proving-in-a-trial. The probative problem is a problem of evidence in that it is the problem of using evidence to ascertain the truth by "the ratiocinative process of continuous persuasion."' The forensic problem is a problem of the admissibility of evidence, and it is the forensic problem which has …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust Law--Violation of Section 7 of the Clayton Act by Joint Venture

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Civil Rights--Anti-discrimination Law as a Vehicle for a Private Civil Action

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Condemnation--Landowner Cannot Recover From Federal Government for Damages Caused Before Date of Taking Where Government Did Not Previously Contemplate, Condemning Property

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Constitutional Law--Loss of Nationality--Foreign Residency Statute Held Violative of Due Process

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Constitutional Law--Reapportionment--Both Houses of a State Legislature Must Be Based as Nearly as Is Practicable on Population

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Constitutional Law--Twenty-first Amendment--Scope of State Power Over Intoxicants Moving Within Its Borders

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Evidence--Statutory Presumptions--Reasonableness Is Implicit in Test of Rational Connection

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Evidence -- 1963 Tennessee Survey, Lyman R. Patterson

Vanderbilt Law Review

The doctrine of judicial notice is that an indisputable proposition of fact or a proposition of law of the jurisdiction is not subject to proof. The doctrine thus serves to relieve the litigant of the burden of proving certain facts and law, and is one of immense theoretical implication for the trial lawyer. A fact which is judicially noticed has much greater probative value than a fact which is proved, no matter how strong the proof. Judicial notice thus offers the trial lawyer an extremely effective, but apparently largely unused, device in litigation. None of the cases involving judicial notice …

The Use Of Coerced Confessions In State Courts, J. A. Spanogle

Vanderbilt Law Review

It is now well settled that involuntary confessions must be excluded from evidence in all criminal trials in state courts. It has been difficult, however, to distinguish a voluntary confession from an involuntary one, because the term "involuntary" is not well defined. This lack of definition, which creates great problems for state trial and appellate courts in attempting to apply the rule to individual cases, has, in turn, stemmed from a lack of understanding of the reasons for excluding involuntary confessions. The United States Supreme Court has handed down thirty-four coerced confession cases, holding confessions admissible in some factual situations …

Recent Case Comments, Law Review Staff

Vanderbilt Law Review

Conflict of Laws--Workmen's Compensation--Forum's Use of Foreign State's Tort Law for Recovery Against Third Party Does Not Require Forum's Use of Foreign State's Election Provision in Workmen's Compensation Suit

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Constitutional Law--Advertising-Statute Restricting Size,Number, and Location of Gasoline Price Signs Is Unconstitutional

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Evidence-Attorney--Client Privilege--Applicability When a Corporation Is the Client

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Evidence--Attorney-Client Privilege-Doctor's Report to Attorney on Condition of Client Is Within Privilege

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Federal Jurisdiction--In Federal Question Action Federal Court Is Competent To Exercise In Personam Jurisdiction Over Corporation if It Has Sufficient Contacts With United States

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Federal Rules of Civil Procedure--Counterclaim Not Compulsory in First Suit …

Statement Of Fact Versus Statement Of Opinion -- A Spurious Dispute In Fair Comment, Herbert W. Titus

Vanderbilt Law Review

In attempting to solve problems in a variety of areas lawyers continuously make use of a distinction between statements of "fact" on the one hand and those of "opinion" on the other.' So versatile is this distinction that it has been used to solve problems raised in such diverse areas of the law as evidence and defamation. However, since the turn of the century the fact-opinion dichotomy has been severely criticized as a means of deciding what kinds of testimony should be allowed in a legal trial. Yet in the law of defamation, where this distinction has been extensively applied …

The Dilemma Of The Directed Acquittal, Richard H. Winningham

Vanderbilt Law Review

Some of the worst abuses of state criminal due process, the author believes, result from anachronistic and artificial restraints which prevent the trial judge from directing acquittals. Therefore,he advocates for all states a uniform policy and practice recognizing and authorizing directed acquittals where the evidence is legally insufficient to support a conviction.

Procedure And Evidence -- 1961 Tennessee Survey (Ii), Edmund M. Morgan, Joel F. Handler

Vanderbilt Law Review

Construction of Pleading--(a) Conclusions.- In an action by the administratrix of a decedents estate the allegations in the complaint that the intestate had a policy of insurance on his life for $1,500 and was induced by the fraud of defendant to make defendant the beneficiary by which she was able to collect the money upon his death and "that this $1500 insurance money is the property of the estate and defendant is accountable to complainant as administratrix of the estate" are sufficient as against ademurrer on the ground that the complaint fails to show any right or title in complainant …

Contracts -- 1961 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

I. Offer and Acceptance--Notification of Acceptance Before Notification of Revocation--Duration of Offer with Fixed Expiration Date

II. Implied and Quasi Contract--Claim for Services Where Family Relationship Involved

III. Parol Evidence Rule--Application of Rule to Third Party Not a Party to the Written Instrument--Pre-existing Duty as Consideration

IV. Exculpatory Contracts--Contracting Against Liability for Consequences of Own Negligent Conduct

V. Agreement in Restraint of Trade-Agreement of Seller of Business Not to Compete--Enforcement of Restraint in Area Greater than Required to Protect Purchaser

Bills And Notes -- 1961 Tennessee Survey, John A. Spanogle Jr.

Vanderbilt Law Review

The Tennessee courts decided three cases involving commercial paper this year. The Tennessee Supreme Court decided one case which, unless it is clarified in the near future, may upset principles which were heretofore well-established. Of the two cases decided by the appellate courts, one adopted a rule well-known in other jurisdictions, and the other adopted a sound minority view on a question not settled by the Uniform Negotiable Instruments Law.

The Theory Of Criminal Discovery And The Practice Of Criminal Law, David W. Louisell

Vanderbilt Law Review

To crystallize in a few words the motif of a career as varied and comprehensive as that of Eddie Morgan would in any event be difficult, but it is doubly so for a life devoted, as his has been, to stuff as vital and dynamic as procedure and evidence. For me, his work most fundamentally is to be characterized as a quest for greater rationality in the adjudicative process. Whether one thinks of his analysis of the hearsay rule,' or his rationale of the admissions exception to it, or his treatment of the dead man's statute, or his study of …

Rochin And Breithaupt In Context, James R. Richardson

Vanderbilt Law Review

Modern scientific methods of fact-finding present evidentiary problems of admissibility which are grounded in reliability of the process, validity of the technique employed and desired policy objectives. In the final analysis, these three facets of the problem are all indivisibly interrelated since, in order to determine acceptable policy, scientific process and application of that process must inevitably be considered in the light of the concept of due process even though due process as such may not be posed affirmatively in any particular decision.' Moreover, it must be recognized that these factors will be present in varying degrees of intensity, dependent …

Edmund M. Morgan, Felix Frankfurter

Vanderbilt Law Review

On a rough estimate, there were some two hundred items of every variety of legal writing: text books, case books, an unpretentious but wise little volume on the Introduction to the Study of Law, the successive stages of the Code of Evidence of the American Law Institute, essays scattered in dozens of law reviews, as well as those contained between book covers, like his Carpentier Lectures, book reviews, surveys of developments in the law both in the Nation and latterly in Tennessee. He has not been a one-subject scholar. But in one field, Evidence,he has become the contemporary master. History …

Edmund M. Morgan, Austin W. Scott, John W. Wade

Vanderbilt Law Review

Everyone who knows him well speaks of him as Eddie Morgan--or simply as Eddie. This includes his colleagues, whether they are at the same school or another one; his students, though this is privately, of course, when they are talking about him among themselves; and his former students. Especially his former students. No matter whether they have been out of school for many years or just a few years, they ask about him in the same way. The face and the voice disclose an admiration for him and a touch of awe, and yet at the same time a different …

The Hearsay System: Around And Through The Thicket, John M. Maguire

Vanderbilt Law Review

All these complicated rules about hearsay are very strange for us, our judges having the right to evaluate the importance of what a witness says or a paper may prove. In this regard, the position of our judges is much freer than yours; in general a German judge can refuse any means of evidence only if he thinks that the fact to be proved is without relevance to the case, or if he accepts the fact to be proved as true, or if the evidence cannot be reached or in his opinion is only designed to delay the procedure. The …

Judicial Notice -- Excerpts Relating To The Morgan-Wignore Controversy, John T. Mcnaughton

Vanderbilt Law Review

Author's Note: These two excerpts are from the author's preliminary draft of his proposed revision of the judicial notice chapter of Wigmore on Evidence. The excerpts are submitted for publication in this Edmund M. Morgan issue of the Vanderbilt Law Review for two reasons: First, because of the important role played by Professor Morgan in the recent development and articulation of the law of judicial notice and, second, because Professor Morgan and Dean Wigmore stand at opposite poles in the argument over judicial notice. At least they do with respect to one significant particular. They do not differ with respect …