Evidence Commons^™

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 …

Constitutional Constraints On The Admissibility Of Grand Jury Testimony: The Unavailable Witness, Confrontation, And Due Process, Barbara L. Strack

University of Michigan Journal of Law Reform

Defendants, however, have raised serious constitutional objections to the introduction of grand jury testimony when the witness is unavailable to testify at trial. These claims have focused on the confrontation clause of the sixth amendment and the due process clauses of the fifth and fourteenth amendments. Defendants have contended that the introduction of testimony from a grand jury proceeding which cannot be subjected to cross-examination fatally compromises the defendant's right to a fair trial. Lower courts are split over admitting grand jury testimony in these circumstances, and the Supreme Court has yet to rule on the issue. As a result, …

The Exclusionary Rule: An Examination Of The Case Law And The Present Posture Of The Florida Supreme Court, Michael Shaw Tammaro

Florida State University Law Review

No abstract provided.

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 …

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.

Federal Rule Of Evidence 803(3) And The Criminal Defendant: The Limits Of The Hillmon Doctrine, Thomas A. Wiseman, Iii

Vanderbilt Law Review

This Note has examined the use of the common-law Hillmon doctrine and rule 803(3) in a limited context. Several approaches are available to a court that considers whether to admit a Hillmon statement. A court in a jurisdiction that still applies the common-law hearsay rule may adhere to the status quo. Ample authority exists to permit this approach. Nevertheless, because admission of a Hillmon statement risks certain inherent dangers, a common-law court should avoid a perfunctory application of the exception. Instead, the court must examine carefully each Hillmon statement to ensure that it does not prejudice the defendant's right to …

Using Convictions To Impeach Under The Florida Evidence Code, Charles W. Ehrhardt

Florida State University Law Review

No abstract provided.

The Expert As Educator: A Proposed Approach To The Use Of Battered Woman Syndrome Expert Testimony, Meredith B. Cross

Vanderbilt Law Review

This Recent Development proposes that courts should permit the use of battered woman syndrome expert testimony, but restrict its use to informing juries of the peculiar mental and emotional state of battered women. This role of the expert as educator would serve to dispel a jury's misconceptions about battered women and, at the same time, draw the focus of the testimony away from the implication which troubled the Buhrle court--that the battered woman syndrome represents a new defense to murder.The Advisory Committee explains in a note that rule 702 of the Federal Rules of Evidence suggests the use of expert …

Smith V. Fortune Insurance Co., 404 So. 2d 821 (Fla. 1st Dist. Ct. App. 1981), Sarah E. Nall

Florida State University Law Review

Evidence-FLORIDA COURT USES BROAD ADVERSE PARTY WITNESS DEFINITION FOR BOTH IMPEACHMENT AND ADMISSIONS PURPOSES

Hypnotically Induced Testimony: Credibility Versus Admissibility, Octavis White

Indiana Law Journal

No abstract provided.

The Numbers Game: Statistical Inference In Discrimination Cases, David H. Kaye

Michigan Law Review

A Review of Statistical Proof of Discrimination by David Baldus and James Cole

A Judicial Perspective On Opinion Evidence Under The Federal Rules, George C. Pratt

Washington and Lee Law Review

No abstract provided.

The Use/Nonuse/Misuse Of Applied Social Research In The Courts, Michigan Law Review

Michigan Law Review

A Review of The Use/Nonuse/Misuse of Applied Social Research in the Courts edited by Michael J. Saks and Charles H. Baron

Kentucky Law Survey: Evidence, Richard H. Underwood, Carolyn M. Geisler

Kentucky Law Journal

No abstract provided.

Administrative Law - Evidence - Hearsay - Residuum Rule, George P. Faines

Duquesne Law Review

An equally divided Supreme Court of Pennsylvania has held that uncorroborated hearsay evidence alone can support a factual finding in an administrative hearing if the proponent establishes some foundation for the hearsay's reliability or reliability is apparent on its face.

Unemployment Compensation Board of Review v. Ceja, 493 Pa. 584, 427 A.2d 631 (1981).

Constitutional Limitations On Obtaining Evidence For Scientific Analysis, Paul C. Giannelli

Faculty Publications

No abstract provided.

The Confrontation Clause, The Right Against Self-Incrimination And The Supreme Court: A Critique And Some Modest Proposals, David E. Seidelson

Duquesne Law Review

The impact of Supreme Court decisions on fifth and sixth amendment rights of the accused criminal is the subject of Professor Seidelson's most recent quest into the field of constitutional law. Using the Court's most recent decision on the sixth amendment confrontation clause as a vehicle, he examines the development of the clause over the past two decades and concludes that the Court's decisions have rendered the clause virtually coextensive with the hearsay rule. In a second part of the article Professor Seidelson discusses the effect of the Court's refusal to include physical evidence within the scope of the fifth …

Estelle V. Smith: The Constitutional Contours Of The Forensic Evaluation, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In Estelle v. Smith,' the United States Supreme Court recognized for the first time that an evaluation of a criminal defendant by a mental health professional may implicate both the Fifth Amendment privilege against self-incrimination and the Sixth Amendment right to counsel. The issues raised in Estelle are significant not only for the legal profession but also for those in the mental health professions who perform "clinical" evaluations for the criminal courts. Estelle involved the case of Ernest Smith, who was sentenced to death by a Texas jury in 1974. Prior to trial, the judge ordered a psychiatrist, Dr. Grigson, …

Discovery Of Retained Nontestifying Experts' Identities Under The Federal Rules Of Civil Procedure, Michigan Law Review

Michigan Law Review

This Note proposes an approach to the problem of identification of rule 26(b)(4)(B) experts that differs from both of the approaches taken in the reported opinions. 9 Part I analyzes the language of rule 26(b) and rejects the majority approach. As a matter of statutory construction, rule 26(b )( 4)(B) governs the disclosure of the identity of nontestifying experts retained by a party in preparation for trial. Part II examines the underlying purposes of rules 26(b)(l) and 26(b)(4)(B) - to ensure adequate pretrial disclosure and to prevent unfairness in adversarial competition - and suggests that both interests may be accommodated. …

A Practical Approach To The Use Of Expert Testimony, Irving Younger

Cleveland State Law Review

I will raise the questions that a lawyer is likely to put to himself when preparing a case involving expert witnesses, followed by an explanation of how to deal with the expert witness in court. After raising particular issues, I will sketch out the answer that you will find, and since we need to look at some particular jurisdiction, I will pay attention to the federal jurisdiction and the twenty or so states that have enacted the Federal Rules of Evidence. Then, by way of contrast, I will refer to some New York cases, simply because first, I know them …

Robbins, Belton And Ross: Reconsideration Of Bright Line Rules For Warrantless Container Searches, Christopher J. St. John

Cleveland State Law Review

This Note analyzes the development of these warrantless container search and seizure exceptions to furnish a comprehensive review of their justifications. The major focus is on the underlying rationale of Belton and Ross and the possible ramifications of such far-reaching warrant exceptions. The Note recommends that state courts interpret their state constitutions to allow the less drastic alternative of warrantless seizures of certain containers rather than warrantless searches as permitted by Belton and Ross under the federal Constitution. In addition, an analytic methodology for isolating interrelated yet distinct search and seizure questions is proposed. Initially, a general background of fourth …

Search And Seizure Of America: The Case For Keeping The Exclusionary Rule, Yale Kamisar

Articles

Twenty years ago, concurring in Mapp v. Ohio (1961), Justice William 0. Douglas looked back on Wolf v. Colorado (1949) (which had held that the Fourth Amendment's substantive protection against "unreasonable search and seizure" was binding on the states through the due process clause, but that the Fourth Amendment exclusionary rule was not) and recalled that the Wolf case had evoked "a storm of controversy which only today finds its end." But, of course, in the twenty years since Justice Douglas made that observation the storm of controversy has only intensified, and it has engulfed the exclusionary rule in federal …

Discovery In Illinois And Federal Courts, 15 J. Marshall L. Rev. 1 (1982), Robert G. Johnston

UIC Law Review

No abstract provided.

Forensic Hair Analysis: The Case Against The Underemployment Of Scientific Evidence, Edward J. Imwinkelried

Washington and Lee Law Review

No abstract provided.

Manual Of The Law Of Evidence, Geoffrey Bennett

Journal Articles

Reviewing: Phipson & Elliott, Manual of the Law of Evidence. 11th ed. London: Sweet & Maxwell. 1980. 376 pp.

Assaults On The Exclusionary Rule: Good Faith Limitations And Damage Remedies, Pierre J. Schlag

Publications

No abstract provided.

The Business Papers Rule: Personal Privacy And White Collar Crime, John S. Applegate

Articles by Maurer Faculty

No abstract provided.

Objections - Howls Of A Dog-Pound Quarrel, The Hon. E. Maurice Braswell

Campbell Law Review

An uninterrupted offer of evidence by an attorney during a trial in North Carolina is a rare if not unknown experience in the workday of a Superior Court Judge. At some stage of the proceedings the legally abused and commonly misunderstood word "objection" will be interposed. Objections shatter the presentation of the case being pursued by the offering counsel. Objections generally generate delay, create discord, cause confusion when a novel point is presented, and always require a response from the judge. Because the judge's response provides the roots for appeal, he, as well as counsel, must be knowledgeable of the …

Failed Explanations And Criminal Responsibility: Experts And The Unconscious, Stephen J. Morse

All Faculty Scholarship

No abstract provided.

Light-Hearted Thoughts About Discovery Reform, John W. Reed

Other Publications

I am delighted to be here among friends from various settings and associations over the years. Having been unable to arrive until late last evening, I am in a poor position to offer useful commentary on what has been said here. But no matter-that is not my assignment. You have heard enough words of wisdom for one weekend. My pleasant assignment is to offer some "light-hearted" comments on discovery reform. I hope they do not prove to be "light-headed" as well.