Evidence Commons^™

The Liar’S Mark: Character And Forfeiture In Federal Rule Of Evidence 609(A)(2), Jesse Schupack

Michigan Law Review

Rule 609(a)(2) of the Federal Rules of Evidence is an outlier. The Rule mandates admission of impeaching evidence of a witness’s past convictions for crimes of dishonesty. It is the only place in the Rules where judges are denied their usual discretion to exclude evidence on the grounds that its admission would be more prejudicial than probative. This Note analyzes three assumptions underlying this unusual Rule: (1) that there is a coherently definable category of crimes of dishonesty, (2) that convictions for crimes of dishonesty are uniquely probative of a person’s character, and (3) that an assessment of moral character …

Unbuckling The Seat Belt Defense In Arkansas, Spencer G. Dougherty

Arkansas Law Review

The “seat belt defense” has been hotly litigated over the decades in numerous jurisdictions across the United States. It is an affirmative defense that, when allowed, reduces a plaintiff’s recovery for personal injuries resulting from an automobile collision where the defendant can establish that those injuries would have been less severe or avoided entirely had the plaintiff been wearing an available seat belt. This is an unsettled legal issue in Arkansas, despite the growing number of cases in which the seat belt defense is raised as an issue. Most jurisdictions, including Arkansas, initially rejected the defense, but the basis for …

The Truthsayer And The Court: Expert Testimony On Credibility, Michael W. Mullane

Maine Law Review

The purpose of this Article is to analyze the admissibility of expert testimony on credibility. State v. Woodburn serves as a lens to focus on the broader issues. The primary issue is an examination of expert testimony on credibility in light of the Federal Rules of Evidence and their progeny. The Rules of Evidence mandate admission or exclusion of expert testimony based on certain criteria. How are these criteria applied to expert testimony on credibility? How should they be applied? The surprising survivability of other criteria discarded by the Rules is also considered.

Gatekeeping Science: Using The Structure Of Scientific Research To Distinguish Between Admissibility And Weight In Expert Testimony, David L. Faigman, Christopher Slobogin, John Monahan

Northwestern University Law Review

Fundamental to all evidence rules is the division of responsibility between the judge, who determines the admissibility of evidence, and the jury, which gauges its weight. In most evidentiary contexts, such as those involving hearsay and character, threshold admissibility obligations are clear and relatively uncontroversial. The same is not true for scientific evidence. The complex nature of scientific inference, and in particular the challenges of reasoning from group data to individual cases, has bedeviled courts. As a result, courts vary considerably on how they define the judge’s gatekeeping task under Federal Rule of Evidence 702 and its state equivalents.

This …

Face-To-Face With Facial Recognition Evidence: Admissibility Under The Post-Crawford Confrontation Clause, Joseph Clarke Celentino

Michigan Law Review

In Crawford v. Washington, the Supreme Court announced a major change in Confrontation Clause doctrine, abandoning a decades-old framework that focused on the common law principles of hearsay analysis: necessity and reliability. The new doctrine, grounded in an originalist interpretation of the Sixth Amendment, requires courts to determine whether a particular statement is testimonial. But the Court has struggled to present a coherent definition of the term testimonial. In its subsequent decisions, the Court illustrated that its new Confrontation Clause doctrine could be used to bar forensic evidence, including laboratory test results, if the government failed to produce the …

Proving Personal Use: The Admissibility Of Evidence Negating Intent To Distribute Marijuana, Stephen Mayer

Michigan Law Review

Against the backdrop of escalating state efforts to decriminalize marijuana, U.S. Attorneys’ Offices continue to bring drug-trafficking prosecutions against defendants carrying small amounts of marijuana that are permitted under state law. Federal district courts have repeatedly barred defendants from introducing evidence that they possessed this marijuana for their own personal use. This Note argues that district courts should not exclude three increasingly common kinds of “personal use evidence” under Federal Rules of Evidence 402 and 403 when that evidence is offered to negate intent to distribute marijuana. Three types of personal use evidence are discussed in this Note: (1) a …

Sweet Caroline: The Backslide From Federal Rule Of Evidence 613(B) To The Rule In Queen Caroline's Case, Katharine T. Schaffzin

University of Michigan Journal of Law Reform

Since 1975, Rule 613(b) of the Federal Rules of Evidence has governed the admission of extrinsic evidence of a prior inconsistent statement in federal court. Rule 613(b) requires the proponent of the prior inconsistent statement to provide the declarant an opportunity to explain or deny it. There is no requirement that the proponent provide that opportunity at any particular time or in any particular sequence. Rule 613 reflected a change from the common law that had fallen out of fashion in the federal courts. That common law rule, known as the Rule in Queen Caroline’s Case, required the proponent of …

A Model For Fixing Identification Evidence After Perry V. New Hampshire, Robert Couch

Michigan Law Review

Mistaken eyewitness identifications are the leading cause of wrongful convictions. In 1977, a time when the problems with eyewitness identifications had been acknowledged but were not yet completely understood, the Supreme Court announced a test designed to exclude unreliable eyewitness evidence. This standard has proven inadequate to protect against mistaken identifications. Despite voluminous scientific studies on the failings of eyewitness identification evidence and the growing number of DNA exonerations, the Supreme Court's outdated reliability test remains in place today. In 2012, in Perry v. New Hampshire, the Supreme Court commented on its standard for evaluating eyewitness evidence for the first …

Logic, Not Evidence, Supports A Change In Expert Testimony Standards: Why Evidentiary Standards Promulgated By The Supreme Court For Scientific Expert Testimony Are Inappropriate And Inefficient When Applied In Patent Infringement Suits, Claire R. Rollor

Journal of Business & Technology Law

No abstract provided.

Scientific Evidence In The Age Of Daubert: A Proposal For A Dual Standard Of Admissibility In Civil And Criminal Cases , William P. Haney Iii

Pepperdine Law Review

No abstract provided.

Bayes' Law, Sequential Uncertainties, And Evidence Of Causation In Toxic Tort Cases, Neal C. Stout, Peter A. Valberg

University of Michigan Journal of Law Reform

Judges are the gatekeepers of evidence. Arguably, the most difficult duty for a judicial gatekeeper is to screen the reliability of expert opinions in scientific fields such as medicine that are beyond the ken of most judges. Yet, judges have a duty to scrutinize such expert opinion evidence to determine its reliability and admissibility. In toxic tort cases, the issue of causation-whether the alleged exposures actually caused the plaintiffs injury-is nearly always the central dispute, and determining admissibility of expert causation opinion is a daunting challenge for most judges. We present a comprehensive review of the courts' struggles with the …

Daubert's Backwash: Litigation-Generated Science, William L. Anderson, Barry M. Parsons, Drummond Rennie

University of Michigan Journal of Law Reform

In the 1993 landmark case Daubert v. Merrell Dow Pharmaceuticals, the United States Supreme Court articulated its position on the admissibility of scientific evidence. The Court reasoned that federal judges should rely on the processes scientists use to identify unreliable research, including the process of peer review, to determine when scientific evidence should be inadmissible. In response, lawyers and their clients, seeking to rely on such evidence, have begun funding and publishing their own research with the primary intention of providing support to cases they are litigating. This Article examines the phenomenon of litigation-generated science, how it potentially undermines …

Kumho Tire Co. V. Carmichael: The Supreme Court Follows Up On The Daubert Test, Martin A. Schwartz

Touro Law Review

No abstract provided.

Rule 804(B)(1): Former Testimony

Touro Law Review

No abstract provided.

Admissibility Of Dna Evidence

Touro Law Review

No abstract provided.

Rule 701: Opinion Testimony By Lay Witnesses

Touro Law Review

No abstract provided.

Rule 412: Sex Offense Cases; Relevance Of Alleged Victim's Past Sexual Behavior Or Alleged Sexual Disposition

Touro Law Review

No abstract provided.

Rule 901: Requirement Of Authentication Or Identification

Touro Law Review

No abstract provided.

The Supreme Court Rules On Statements Against Interest, Michael M. Martin

Touro Law Review

No abstract provided.

Character Evidence, James L. Kainen

Touro Law Review

No abstract provided.

Coconspirator Statements And Former Testimony In New York And Federal Courts With Some Comments On Codification, Randolph N. Jonakait

Touro Law Review

No abstract provided.

Evidence- Hearsay-Scope Of Federal Rule 43(A), David K. Kroll S. Ed

Michigan Law Review

The clocktower of plaintiff county's courthouse buckled and collapsed into the courtroom below. Charred timbers were found in the wreckage. Several residents reported that they saw lightning strike the tower five days before the collapse. Plaintiff carried insurance for loss by fire or lightning, and sued the insurers when they denied liability. Defendant claimed that the tower collapsed of its own weight because of faulty design, deterioration, and overloading. To account for the charred timbers defendant introduced into evidence a fifty-eight-year-old newspaper article from the files of the city newspaper describing a fire in the courthouse during its construction. The …