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The Child Quasi-Witness, Richard D. Friedman, Stephen J. Ceci Jan 2015

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 ...


The Mold That Shapes Hearsay Law, Richard D. Friedman Jan 2014

The Mold That Shapes Hearsay Law, Richard D. Friedman

Articles

In response to an article previously published in the Florida Law Review by Professor Ben Trachtenberg, I argue that the historical thesis of Crawford v. Washington is basically correct: The Confrontation Clause of the Sixth Amendment reflects a principle about how witnesses should give testimony, and it does not create any broader constraint on the use of hearsay. I argue that this is an appropriate limit on the Clause, and that in fact for the most part there is no good reason to exclude nontestimonial hearsay if live testimony by the declarant to the same proposition would be admissible. I ...


Confrontation And Forensic Laboratory Reports, Round Four, Richard D. Friedman Jan 2012

Confrontation And Forensic Laboratory Reports, Round Four, Richard D. Friedman

Articles

Crawford v. Washington radically transformed the doctrine governing the Confrontation Clause of the Sixth Amendment to the Constitution. Before Crawford, a prosecutor could introduce against an accused evidence of a hearsay statement, even one made in contemplation that it would be used in prosecution, so long as the statement fit within a "firmly rooted" hearsay exception or the court otherwise determined that the statement was sufficiently reliable to warrant admissibility. Crawford recognized that the Clause is a procedural guarantee, governing the manner in which prosecution witnesses give their testimony. Therefore, a prosecutor may not introduce a statement that is testimonial ...


The Rise, Decline And Fall(?) Of Miranda, Yale Kamisar Jan 2012

The Rise, Decline And Fall(?) Of Miranda, Yale Kamisar

Articles

There has been a good deal of talk lately to the effect that Miranda1 is dead or dying-or might as well be dead.2 Even liberals have indicated that the death of Miranda might not be a bad thing. This brings to mind a saying by G.K. Chesterton: "Don't ever take a fence down until you know the reason why it was put up."4


Shaken Baby Syndrome, Abusive Head Trauma, And Actual Innocence: Getting It Right, David A. Moran, Keith A. Findley, Patrick D. Barnes, Waney Squier Jan 2012

Shaken Baby Syndrome, Abusive Head Trauma, And Actual Innocence: Getting It Right, David A. Moran, Keith A. Findley, Patrick D. Barnes, Waney Squier

Articles

In the past decade, the existence of shaken baby syndrome (SBS) has been called into serious question by biomechanical studies, the medical and legal literature, and the media. As a result of these questions, SBS has been renamed abusive head trauma (AHT). This is, however, primarily a terminological shift: like SBS, AHT refers to the two-part hypothesis that one can reliably diagnose shaking or abuse from three internal findings (subdural hemorrhage, retinal hemorrhage, and encephalopathy) and that one can identify the perpetrator based on the onset of symptoms. Over the past decade, we have learned that this hypothesis fits poorly ...


Who Said The Crawford Revolution Would Be Easy?, Richard D. Friedman Jan 2012

Who Said The Crawford Revolution Would Be Easy?, Richard D. Friedman

Articles

One of the central protections of our system of criminal justice is the right of the accused in all criminal prosecutions "to be confronted with the witnesses against him." It provides assurance that prosecution witnesses will give their testimony in the way demanded for centuries by Anglo-American courts-in the presence of the accused, subject to cross-examination- rather than in any other way. Witnesses may not, for example, testify by speaking privately to governmental agents in a police station or in their living rooms. Since shortly after it was adopted, however, the confrontation right became obscured by the ascendance of a ...


Is A Forensic Laboratory Report Identifying A Substance As A Narcotic 'Testimonial'?, Richard D. Friedman Jan 2008

Is A Forensic Laboratory Report Identifying A Substance As A Narcotic 'Testimonial'?, Richard D. Friedman

Articles

Is a state forensic analyst's laboratory report, prepared for use in a criminal proceeding and identifying a substance as cocaine, "testimonial" evidence and so subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004)?


Does An Accused Forfeit The Confrontation Right By Murdering A Witness, Absent A Purpose To Render Her Unavailable?, Richard D. Friedman Jan 2008

Does An Accused Forfeit The Confrontation Right By Murdering A Witness, Absent A Purpose To Render Her Unavailable?, Richard D. Friedman

Articles

If an accused murdered a witness, should he be deemed to have forfeited the right under the Sixth Amendment "to be confronted with" the witness, absent proof that the accused committed the murder for the purpose of rendering her unavailable as a witness?


Holmes V. South Carolina Upholds Trial By Jury, Samuel R. Gross Jan 2007

Holmes V. South Carolina Upholds Trial By Jury, Samuel R. Gross

Articles

Bobby Lee Holmes was convicted of a brutal rape-murder and sentenced to death. The only evidence that connected him to the crime was forensic: a palm print, and blood and fiber evidence. (Biological samples taken from the victim for two rape kits were compromised and yielded no identifiable evidence.) Holmes claimed that the state's forensic evidence was planted and mishandled, and that the rape and murder were committed by another man, Jimmy McCaw White. At a pretrial hearing three witnesses testified that they saw White near the victim's house at about the time of the crime, and four ...


On The Fortieth Anniversary Of The Miranda Case: Why We Needed It, How We Got It--And What Happened To It, Yale Kamisar Jan 2007

On The Fortieth Anniversary Of The Miranda Case: Why We Needed It, How We Got It--And What Happened To It, Yale Kamisar

Articles

Last year (the year I gave the talk on which this article is based) marked the fortieth anniversary of Miranda v. Arizona,' one of the most praised, most maligned-and probably one of the most misunderstood-Supreme Court cases in American history. It is difficult, if not impossible, to evaluate Miranda without looking back at the test for the admissibility of confessions that preceded it.


Miranda's Reprieve: How Rehnquist Spared The Landmark Confession Case, But Weakened Its Impact, Yale Kamisar Jan 2006

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 ...


Confrontation After Crawford, Richard D. Friedman Jan 2005

Confrontation After Crawford, Richard D. Friedman

Articles

The following edit excerpt, drawn from "The Confrontation Clause Re-Rooted and Transformed," 2003-04 Cato Supreme Court Review 439 (2004), by Law School Professor Richard D. Friedman, discusses the impact, effects, and questions generated by the U.S. Supreme Court's ruling in Crawford v. Washington last year that a defendant is entitled to confront and cross-examine any testimonial statement presented against him. In Crawford, the defendant, charged with attacking another man with a knife, contested the trial court's admission of a tape-recorded statement his wife made to police without giving him the opportunity to cross-examine. The tiral court admitted ...


How Earl Warren's Twenty-Two Years In Law Enforcement Affected His Work As Chief Justice, Yale Kamisar Jan 2005

How Earl Warren's Twenty-Two Years In Law Enforcement Affected His Work As Chief Justice, Yale Kamisar

Articles

Before becoming governor of California, Earl Warren had spent his entire legal career, twenty-two years, in law enforcement. Professor Kamisar maintains that this experience significantly influenced Warren's work as a Supreme Court justice and gave him a unique perspective into police interrogation and other police practices. This article discusses some of Warren's experiences in law enforcement and searches for evidence of that experience in Warren's opinions. For example, when Warren was head of the Alameda County District Attorney's Office, he and his deputies not only relied on confessions in many homicide cases but also themselves interrogated ...


The Crawford Transformation, Richard D. Friedman Jan 2004

The Crawford Transformation, Richard D. Friedman

Articles

Crawford v. Washington, 124 S. Ct. 1354 (2004), is one of the most dramatic Evidence cases in recent history, radically transforming the doctrine governing the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. Crawford is a very positive development, but leaves many open questions - and forces Evidence teachers to rethink how they teach hearsay and confrontation.


Face To Face': Rediscovering The Right To Confront Prosecution Witnesses, Richard D. Friedman Jan 2004

Face To Face': Rediscovering The Right To Confront Prosecution Witnesses, Richard D. Friedman

Articles

The Sixth Amendment to the United States Constitution protects the right of an accused 'to confront the witnesses against him'. The United States Supreme Court has treated this Confrontation Clause as a broad but rather easily rebuttable rule against using hearsay on behalf of a criminal prosecution; with respect to most hearsay, the exclusionary rule is overcome if the court is persuaded that the statement is sufficiently reliable, and the court can reach that conclusion if the statement fits within a 'firmly rooted' hearsay exception. This article argues that this framework should be abandoned. The clause should not be regarded ...


Adjusting To Crawford: High Court Decision Restores Confrontation Clause Protection, Richard D. Friedman Jan 2004

Adjusting To Crawford: High Court Decision Restores Confrontation Clause Protection, Richard D. Friedman

Articles

In Crawford v. Washington, 124 S. Ct. 1354 (2004), the U.S. Supreme Court radically transformed its doctrine governing the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. Craitiord is a very positive development, restoring to its central position one of the basic protections of the common law system of criminal justice. But the decision leaves many open questions, and all lawyers involved in the criminal justice process will have to adjust to the new regime that it creates. This article outlines and summarizes the problems with the law as it stood before Crait/brd. It then ...


Postscript: Another Look At Patane And Seibert, The 2004 Miranda 'Poisoned Fruit' Cases, Yale Kamisar Jan 2004

Postscript: Another Look At Patane And Seibert, The 2004 Miranda 'Poisoned Fruit' Cases, Yale Kamisar

Articles

Some months after I finished writing an article that, inter alia, discussed the lower court opinions in Patane and Seibert (an article that appears elsewhere in this issue of the Journa),1 the Supreme Court handed down its decisions in those cases.2 In Patane, a 5-4 majority held admissible a Glock pistol located as a result of a failure to comply with Miranda. In Seibert, a 5-4 majority agreed with the state court that a "second confession," one obtained after the police had deliberately used a two-stage interrogation technique designed to undermine the Miranda warnings, was inadmissible. 3 In ...


The Confrontation Clause Re-Rooted And Transformed, Richard D. Friedman Jan 2004

The Confrontation Clause Re-Rooted And Transformed, Richard D. Friedman

Articles

For several centuries, prosecution witnesses in criminal cases have given their testimony under oath, face to face with the accused, and subject to cross-examination at trial. The Confrontation Clause of the Sixth Amendment to the U.S. Constitution guarantees the procedure, providing that ‘‘[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witness against him.’’ In recent decades, however, judicial protection of the right has been lax, because the U.S. Supreme Court has tolerated admission of outof- court statements against the accused, without cross-examination, if the statements are deemed ‘‘reliable’’ or ‘‘trustworthy ...


Crawford V. Washington, Richard D. Friedman Jan 2003

Crawford V. Washington, Richard D. Friedman

Articles

On June 9, by granting certiorari in Crawford v. Washington, 02-9410, the Supreme Court signaled its intention to enter once again into the realm of the Confrontation Clause, in which it has found itself deeply perplexed. This time there was a difference, however, because the grant indicated that the Court might be willing to rethink its jurisprudence in this area. Crawford, like Lee v. Illinois, 476 U.S. 530 (1986), and Lilly v. Virginia, 527 U.S. 116 (1999), presents a classic case of what might be called station-house testimony. Michael Crawford was accused of stabbing another man. His wife ...


In Defense Of The Search And Seizure Exclusionary Rule (Law And Truth - The Twenty-First Annual National Student Federalist Society Symposium On Law And Public Policy - 2002), Yale Kamisar Jan 2003

In Defense Of The Search And Seizure Exclusionary Rule (Law And Truth - The Twenty-First Annual National Student Federalist Society Symposium On Law And Public Policy - 2002), Yale Kamisar

Articles

think Dean Pye's advice about casebook writing was sound,6 and what he had to say also applies to discussions and debates about such issues as the search and seizure exclusionary rule. We cannot (at least we should not) begin with Mapp v. Ohio. We need a prelude.


Dial-In Testimony, Richard D. Friedman, Bridget Mary Mccormack Jan 2002

Dial-In Testimony, Richard D. Friedman, Bridget Mary Mccormack

Articles

For several hundred years, one of the great glories of the common law system of criminal justice has been the requirement that prosecution witnesses give their testimony in the presence of the accused" face to face," in the time-honored phrase-under oath, subject to cross-examination, and, unless unfeasible, in open court. In the United States, this principle is enshrined in the Confrontation Clause of the Sixth Amendment, which provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." But now a new way is developing for witnesses for the prosecution ...


Miranda Thirty-Five Years Later: A Close Look At The Majority And Dissenting Opinions In Dickerson, Yale Kamisar Jan 2001

Miranda Thirty-Five Years Later: A Close Look At The Majority And Dissenting Opinions In Dickerson, Yale Kamisar

Articles

Over the years, Miranda v. Arizona1 has been criticized both for going too far2 and for not going far enough.3 Nevertheless, on the basis of talks with many criminal procedure professors in the sixteen months between the time a panel of the Fourth Circuit upheld a statute (18 U.S.C. § 3501) purporting to "overrule" Miranda and a 7-2 majority of the Supreme Court overturned that ruling in the case of Dickerson v. United States,4 I am convinced that most criminal procedure professors wanted the Supreme Court to do what it did-"reaffirm" Miranda. This is not surprising ...


A Suggestion On Suggestion, Richard D. Friedman, Stephen J. Ceci Jan 2001

A Suggestion On Suggestion, Richard D. Friedman, Stephen J. Ceci

Articles

Part I of the full article briefly describes the history and current slate of research into children's suggestibility. In this part, we argue that, although psychological researchers disagree considerably over the degree to which he suggestibility of young children may lead to false allegations of sexual abuse, there is an overwhelming consensus that children are suggestible to a degree that, we believe, must be regarded as significant. In presenting this argument, we respond to the contentions of revisionist scholars, particularly those recently expressed by Professor Lyon. We show that there is good reason to believe the use of highly ...


"Can (Did) Congress 'Overrule' Miranda?, Yale Kamisar Jan 2000

"Can (Did) Congress 'Overrule' Miranda?, Yale Kamisar

Articles

I think the great majority of judges, lawyers, and law professors would have concurred in Judge Friendly's remarks when he made them thirty-three years ago. To put it another way, I believe few would have had much confidence in the constitutionality of an anti-Miranda provision, usually known as § 3501 because of its designation under Title 18 of the United States Code, a provision of Title II of the Omnibus Crime Control and Safe Streets Act of 1968 (hereinafter referred to as the Crime Act or the Crime Bill), when that legislation was signed by the president on June 19 ...


Congress' Arrogance, Yale Kamisar Jan 2000

Congress' Arrogance, Yale Kamisar

Articles

Does Dickerson v. U.S., reaffirming Miranda and striking down §3501 (the federal statute purporting to "overrule" Miranda), demonstrate judicial arrogance? Or does the legislative history of §3501 demonstrate the arrogance of Congress? Shortly after Dickerson v. U.S. reaffirmed Miranda and invalidated §3501, a number of Supreme Court watchers criticized the Court for its "judicial arrogance" in peremptorily rejecting Congress' test for the admissibility of confessions. The test, pointed out the critics, had been adopted by extensive hearings and debate about Miranda's adverse impact on law enforcement. The Dickerson Court did not discuss the legislative history of §3501 ...


Joe Grano: The 'Kid From South Philly' Who Educated Us All (In Tribute To Joseph D. Grano), Yale Kamisar Jan 2000

Joe Grano: The 'Kid From South Philly' Who Educated Us All (In Tribute To Joseph D. Grano), Yale Kamisar

Articles

No serious student of police interrogation and confessions can write on the subject without building on Professor Joseph D. Grano's work or explaining why he or she disagrees with him (and doing so with considerable care). Nor is that all.


The Suggestibility Of Children: Scientific Research And Legal Implications, Richard D. Friedman, Stephen J. Ceci Jan 2000

The Suggestibility Of Children: Scientific Research And Legal Implications, Richard D. Friedman, Stephen J. Ceci

Articles

In this Article, Professors Ceci and Friedman analyze psychological studies on children's suggestibility and find a broad consensus that young children are suggestible to a significant degree. Studies confirm that interviewers commonly use suggestive interviewing techniques that exacerbate this suggestibility, creating a significant risk in some forensic contexts-notably but not exclusively those of suspected child abuse-that children will make false assertions of fact. Professors Ceci and Friedman address the implications of this difficulty for the legal system and respond to Professor Lyon's criticism of this view recently articulated in the Cornell Law Review. Using Bayesian probability theory, Professors ...


Lilly V. Virginia Glimmers Of Hope For The Confrontation Clause?, Richard D. Friedman Jan 2000

Lilly V. Virginia Glimmers Of Hope For The Confrontation Clause?, Richard D. Friedman

Articles

In 1662, in The Case of Thomas Tong and Others, which involved charges of treason against several defendants, the judges of the King's Bench conferred on a crucial set of points of procedure. As reported by one of the judges, Sir John Kelyng, the judges agreed unanimously that a pretrial confession made to the authorities was evidence against the Party himself who made the Confession, and indeed, if adequately proved could support a conviction of that party without additional witnesses to the treason itself. But -- again unanimously, and quite definitively -- the judges also agreed that the confession cannot be ...


Confessions, Search And Seizure And The Rehnquist Court, Yale Kamisar Jan 1999

Confessions, Search And Seizure And The Rehnquist Court, Yale Kamisar

Articles

About the time William Rehnquist ascended to the Chief Justiceship of the United States, two events occurred that increased the likelihood that Miranda would enjoy a long life. In Moran v. Burbine,' a 6-3 majority held that a confession preceded by an otherwise valid waiver of a suspect's Miranda rights should not be excluded either (a) because the police misled an inquiring attorney when they told her they were not going to question the suspect she called about or (b) because the police failed to inform the suspect of the attorney's efforts to reach him.


Confrontation Confronted, Richard D. Friedman, Margaret A. Berger, Steven R. Shapiro Jan 1999

Confrontation Confronted, Richard D. Friedman, Margaret A. Berger, Steven R. Shapiro

Articles

The following article is an edited version of the amicus curiae brief filed with the Supreme Court of the United States in the October Term, 1998, in the case of Benjamin Lee Lilly v. Commonwealth of Virginia (No. 98-5881). "This case raises important questions about the meaning of the confrontation clause, which has been a vital ingredient of the fair trial right for hundreds of years," Professor Richard Friedman and his co-authors say. "In particular, this case presents the Court with an opportunity to reconsider the relationship between the confrontation clause and the law of hearsay." On June 10 the ...