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Articles 1 - 18 of 18
Full-Text Articles in Evidence
Theorizing Corroboration, Maggie Wittlin
Theorizing Corroboration, Maggie Wittlin
Faculty Scholarship
A child makes an out-of-court statement accusing an adult of abuse. That statement is important proof, but it also presents serious reliability concerns. When deciding whether it is sufficiently reliable to be admitted, should a court consider whether the child’s statement is corroborated—whether, for example, there is medical evidence of abuse? More broadly, should courts consider corroboration when deciding whether evidence is reliable enough to be admitted at trial? Judges, rule-makers, and scholars have taken significantly divergent approaches to this question and come to different conclusions.
This Article argues that there is a key problem with using corroboration to evaluate …
Electronically Stored Information And The Ancient Documents Exception To The Hearsay Rule: Fix It Before People Find Out About It, Daniel J. Capra
Electronically Stored Information And The Ancient Documents Exception To The Hearsay Rule: Fix It Before People Find Out About It, Daniel J. Capra
Faculty Scholarship
The first website on the Internet was posted in 1991. While there is not much factual content on the earliest websites, it did not take long for factual assertions—easily retrievable today—to flood the Internet. Now, over one hundred billion emails are sent, and ten million static web pages are added to the Internet every day. In 2006 alone, the world produced electronic information that was equal to three million times the amount of information stored in every book ever written. The earliest innovations in electronic communication are now over twenty years old—meaning that the factual assertions made by way of …
Shields, Swords, And Fulfilling The Exclusionary Rule's Deterrent Function, James L. Kainen
Shields, Swords, And Fulfilling The Exclusionary Rule's Deterrent Function, James L. Kainen
Faculty Scholarship
When the exclusionary rule prevents the prosecution from using evidence necessary to bring a case to trial, the rule deters illegality while raising no issue about how it might interfere with usual factfinding processes. However, when a case proceeds to trial although a court has suppressed some prosecution evidence, courts need to decide the extent to which the defendant may benefit from the absence of the proof without opening the door to its admission. The exclusion of any relevant evidence raises similar questions, and courts often say the exclusionary rule is a shield from suppressed evidence, but not a sword …
Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler
Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler
Faculty Scholarship
Crawford v. Washington’s historical approach to the confrontation clause establishes that testimonial hearsay inadmissible without confrontation at the founding is similarly inadmissible today, despite whether it fits a subsequently developed hearsay exception. Consequently, the requirement of confrontation depends upon whether an out-of-court statement is hearsay, testimonial, and, if so, whether it was nonetheless admissible without confrontation at the founding. A substantial literature has developed about whether hearsay statements are testimonial or were, like dying declarations, otherwise admissible at the founding. In contrast, this article focuses on the first question – whether statements are hearsay – which scholars have thus far …
Truth, Deterrence, And The Impeachment Exception , James L. Kainen
Truth, Deterrence, And The Impeachment Exception , James L. Kainen
Faculty Scholarship
James v. Illinois permits illegally-obtained evidence to impeach defendants, but not defense witnesses. Thus far, all courts have construed James to allow impeachment of defendants' hearsay declarations. This article argues against allowing illegally-obtained evidence to impeach defendants' hearsay declarations because doing so unduly diminishes the exclusionary rule's deterrent effect. The distinction between impeaching defendants and defense witnesses disappears when courts allow prosecutors to impeach defendants' hearsay declarations. Because defense witnesses report exculpatory conduct of a defendant who always has a substantial interest in disguising his criminality, their testimony routinely incorporates defendant hearsay. Defense witness testimony thus routinely paves the way …
Unrecognized Right Of Criminal Defendants To Admit Their Own Pretrial Statements, The , Stephen A. Saltzburg, Daniel J. Capra
Unrecognized Right Of Criminal Defendants To Admit Their Own Pretrial Statements, The , Stephen A. Saltzburg, Daniel J. Capra
Faculty Scholarship
In Agard v. Portuondo, the United States Supreme Court held that a prosecutor did not violate a testifying defendant's constitutional rights by inviting the jury to infer from the defendant's presence at trial that the defendant altered his own version of events to accord with other witnesses' testimony. Justice Scalia's opinion for the Court emphasized that jurors might well draw the inference even without a prosecutor asking them to do so. Although Agard is viewed as giving an advantage in a criminal trial to the government, this Article considers how Agard might be used to allow defense counsel to introduce …
Fifteen Years After The Federal Sentencing Revolution: How Mandatory Minimums Have Undermined Effective And Just Narcotics Sentencing Perspectives On The Federal Sentencing Guidelines And Mandatory Sentencing, Ian Weinstein
Faculty Scholarship
Federal criminal sentencing has changed dramatically since 1988. Fifteen years ago, judges determined if and for how long a defendant would go to jail. Since that time, changes in substantive federal criminal statutes, particularly the passage of an array of mandatory minimum penalties and the adoption of the federal sentencing guidelines, have limited significantly judicial sentencing power and have remade federal sentencing and federal criminal practice. The results of these changes are significantly longer federal prison sentences, as was the intent of these reforms, and the emergence of federal prosecutors as the key players in sentencing. Yet, at the same …
Keeping The Reformist Spirit Alive In Evidence Law Tribute, Stephen A. Saltzburg, Edward J. Imwinkelried
Keeping The Reformist Spirit Alive In Evidence Law Tribute, Stephen A. Saltzburg, Edward J. Imwinkelried
Faculty Scholarship
No abstract provided.
Regulating The Market For Snitches , Ian Weinstein
Regulating The Market For Snitches , Ian Weinstein
Faculty Scholarship
These are boom times for the sellers and buyers of cooperation in the federal criminal justice system. While prosecutors have always welcomed the assistance of snitches, tougher federal sentencing laws have led to a significant increase in cooperation as more defendants try to provide "substantial assistance in the investigation or prosecution of another person," to have some chance of receiving a significant sentence reduction. In 1996 one of every five defendants sentenced in the federal courts won mitigation by providing substantial assistance. Many more defendants tried but failed to close the deal. The overheated cooperation market is creating serious problems …
Substantial Assistance And Sentence Severity: Is There A Correlation Substantial Assistance, Ian Weinstein
Substantial Assistance And Sentence Severity: Is There A Correlation Substantial Assistance, Ian Weinstein
Faculty Scholarship
How much more severe are sentences imposed in districts with low substantial assistance rates than those in which the rate is very high? In the aggregate, not at all. At first blush this may puzzle readers because substantial assistance (SA) departures are very unevenly distributed across districts and SA accounts for nearly two-thirds of all downward departures, almost 7,900 of the 12,000 in fiscal 1996. Although this pattern could result in gross disparities among districts, my analysis of inter-district sentencing patterns reveals no statistically significant correlation between the rate of SA departures and the average length of sentences imposed in …
Conflicts Of Interest In Scientific Expert Testimony, Mark R. Patterson
Conflicts Of Interest In Scientific Expert Testimony, Mark R. Patterson
Faculty Scholarship
Conflicts of interest have significant implications for the reliability of scientific expert testimony. However, the courts' treatment of conflicts is not always in accord either with the treatment of conflicts in scientific practice or with the particular problems that scientists' conflicts present in court. In response, this Article proposes two basic changes in the treatment of scientific expert testimony. First, courts should strive to separate issues of bias from issues of scientific validity-the two sets of issues are now conflated at times. Second, courts should pay more attention to biases of scientists who perform the research underlying expert testimony, whereas …
Supreme Court Rules On Statements Against Interest, The , Michael M. Martin
Supreme Court Rules On Statements Against Interest, The , Michael M. Martin
Faculty Scholarship
Reliability has been defined as "worthy of dependence" or "of proven consistency in producing satisfactory results." It is a common concept as well as a quality for which individuals search in their everyday transactions, such as purchasing a car or selecting an express delivery service. It similarly shapes the rules of evidence pertaining to hearsay. Beth common law and modem evidentiary codes ban the admission of extrajudicial statements offered to prove the truth of a matter asserted because they are not made under oath, in the presence of the trier of fact, and subject to cross-examination. Without these safeguards, the …
The Whole Truth?: How Rules Of Evidence Make Lawyers Deceitful, Bruce A. Green
The Whole Truth?: How Rules Of Evidence Make Lawyers Deceitful, Bruce A. Green
Faculty Scholarship
No abstract provided.
Challenging Witness Competency , Michael M. Martin
Challenging Witness Competency , Michael M. Martin
Faculty Scholarship
Despite the modern trend to hear all the evidence, a surprising number of witnesses can still be challenged on competency grounds.
New York Proposed Code Of Evidence: Article V, The Symposium: The New York Proposed Code Of Evidence, Michael M. Martin
New York Proposed Code Of Evidence: Article V, The Symposium: The New York Proposed Code Of Evidence, Michael M. Martin
Faculty Scholarship
Article V of the New York Proposed Code of Evidence sets forth the rules of evidentiary privilege. Unlike other articles of the Proposed Code, it differs significantly from its federal counterpart. Article V of the Federal Rules of Evidence consists of only rule 501, which provides that, unless otherwise required by the constitution or federal statute, privileges in federal courts are governed by "the principles of the common law as they may be interpreted... in the light of reason and experience." Rule 501 further provides, however, that questions of privilege in civil cases as to which state law supplies the …
Inherent Judicial Power: Flexibility Congress Did Not Write Into The Federal Rules Of Evidence , Michael M. Martin
Inherent Judicial Power: Flexibility Congress Did Not Write Into The Federal Rules Of Evidence , Michael M. Martin
Faculty Scholarship
This Article focuses on the question whether, or to what extent, a federal court is bound by the explicit and implicit restrictions placed by Congress on a court's power to admit evidence. This is a question that did not arise prior to adoption of the Federal Rules of Evidence because previous prospective rulemaking in the procedural area was in truth a judicial exercise. Although Congress had an implicit veto power over rules of procedure prescribed by the Supreme Court, it never exercised that power. Thus, a lower court's decision to disregard a rule of procedure raised, as a practical matter, …
Uncertain Rule Of Certainty: An Analysis And Proposal For A Federal Evidence Rule, The , Michael M. Martin
Uncertain Rule Of Certainty: An Analysis And Proposal For A Federal Evidence Rule, The , Michael M. Martin
Faculty Scholarship
Two characteristic principles of Anglo-American evidence law are the requirement that witnesses testify only to their personal observations (the "first-hand knowledge" rule) and the prohibition against witnesses testifying to their inferences (the "opinion" rule). However, a longstanding exception to these principles permits witnesses possessed of skill or learning to draw inferences, often from facts they have not personally observed. Because such expert opinion testimony is exceptional, it is hedged about with various restrictions in addition to those such as relevancy which apply to all testimony. The predicate for admission of expert opinion testimony generally consists of two elements. First, the …
Former-Testimony Exception In The Proposed Federal Rules Of Evidence, The , Michael M. Martin
Former-Testimony Exception In The Proposed Federal Rules Of Evidence, The , Michael M. Martin
Faculty Scholarship
According to one member of the Advisory Committee which drafted them, the proposed Rules of Evidence for the United States Courts and Magistrates were promulgated to "improve the truth-finding capacity of the courts," as well as to provide the benefits of simplification and uniformity. In much the same way that the Federal Rules of Civil Procedure have led to modernization of procedural rules in many states, the proposed Federal Rules of Evidence may be the vehicle by which improvements unsuccessfully codified in the Model Code of Evidence and the Uniform Rules of Evidence can finally be achieved across the United …