Evidence Commons^™

Filmmaking In The Precinct House And The Genre Of Documentary Film, Jessica Silbey

Faculty Scholarship

This Article explores side-by-side two contemporary and related film trends: the recent popular enthusiasm over the previously arty documentary film and the mandatory filming of custodial interrogations and confessions.

The history and criticism of documentary film, indeed contemporary movie-going, understands the documentary genre as political and social advocacy (recent examples are Michael Moore's Farenheit 9/11 and Errol Morris's Fog of War). Judges, advocates, and legislatures, however, assume that films of custodial interrogations and confessions reveal a truth and lack a distorting point of view. As this Article explains, the trend at law, although aimed at furthering venerable criminal justice principles, …

Where Does Blaming Come From?, Lawrence Solan

Faculty Scholarship

No abstract provided.

Videotaped Confessions And The Genre Of Documentary, Jessica Silbey

Faculty Scholarship

This essay begins the exploration of two contemporary and related film trends: the recent popular enthusiasm over the previously arty documentary film and the mandatory filming of custodial interrogations and confessions.

The history and criticism of documentary film, indeed contemporary movie-going, understands the documentary genre as political and social advocacy (recent examples are Michael Moore's Farenheit 9/11 and Errol Morris's Fog of War). Judges, advocates, and legislatures, however, assume that films of custodial interrogations and confessions reveal a truth and lack a distorting point of view. As this Article explains, the trend at law, although aimed at furthering venerable criminal …

Issues In Article Iii Courts, Debra A. Livingston

Faculty Scholarship

Cases implicating classified information can pose difficult legal issues for Article III courts, and these issues may well grow more complicated and arise more frequently as the global war on terror continues. The manner in which these issues are resolved has profound implications for the national security, for the procedural rights of litigants, and for the public's ability to scrutinize legal proceedings. Indeed, the expanded use of secret evidence in Article III courts may raise questions about the very character of the courts themselves. Is there a point at which the demands placed upon these courts, pushing them in the …

Overenforcement, Alex Stein, Richard Bierschbach

Faculty Scholarship

No abstract provided.

Florida's Request For Admission Rule: 150 Years On The Road To Inconsistency, Ineffectiveness And Appellate Nullification, Mitchell J. Frank

Faculty Scholarship

No abstract provided.

Punishment Decisions At Conviction: Recognizing The Jury As Fault-Finder, Michael T. Cahill

Faculty Scholarship

No abstract provided.

Crawford V. Washington: Encouraging And Ensuring The Confrontation Of Witnesses, Robert P. Mosteller

Faculty Scholarship

In Crawford v. Washington (2004), the United States Supreme Court radically altered Confrontation Clause analysis for the admission of hearsay statements. It created a very firm rule of actual confrontation for a narrowed class of covered hearsay, termed “testimonial statements,” and created only a limited number of exceptions. This new regime differed dramatically from the trustworthiness/reliability mode of analysis of Ohio v. Roberts (1980), which provided very wide but incredibly shallow protection against the admission of hearsay offered by the prosecution against the defendant. This article analyzes the basic teachings and uncertainties left in the wake of Crawford, sifting through …

Crawford’S Impact On Hearsay Statements In Domestic Violence And Child Sexual Abuse Cases, Robert P. Mosteller

Faculty Scholarship

This Essay examines the important ancillary doctrines that need to be developed in the wake of Crawford v. Washington (2004) and the "testimonial statement" approach to Confrontation Clause analysis to ensure that when confrontation is provided it in fact satisfies the requirements of the Clause. More than just some opportunity to cross-examine is required. The witness must be asked to make a public accusation in his or her direct testimony rather than simply being made available for questioning by defense counsel. A public accusation in not simply an after-thought of the right; rather, both it and cross-examination are central components. …

“Testimonial” And The Formalistic Definition: The Case For An “Accusatorial” Fix, Robert P. Mosteller

Faculty Scholarship

The definition that the Supreme Court ultimately gives to the concept of testimonial statements will obviously be of critical importance in determining whether the new Confrontation Clause analysis adopted by Crawford affects only a few core statements or applies to a broader group of accusatorial statements knowingly made to government officials and perhaps private individuals at arm's length from the speaker. I contend that the broader definition is more consistent with the anti-inquisitorial roots of the Confrontation Clause when that provision is applied in the modern world. If my sense of the proper scope of the clause is roughly correct, …

Purpose As A Guide To The Interpretation Of The Confrontation Clause, Roger C. Park

Faculty Scholarship

No abstract provided.

Gaining/Losing Perspective On The Law, Or Keeping Digital Evidence In Perspective, Christopher J. Buccafusco

Faculty Scholarship

No abstract provided.

Judges As Film Critics: New Approaches To Filmic Evidence, Jessica Silbey

Faculty Scholarship

This Article exposes internal contradictions in case law concerning the use and admissibility of film as evidence. Based on a review of more than ninety state and federal cases dating from 1923 to the present, the Article explains how the source of these contradictions is the frequent miscategorization of film as “demonstrative evidence,” evidence that purports to illustrate other evidence, rather than to be directly probative of some fact at issue. The Article further demonstrates how these contradictions are based on two venerable jurisprudential anxieties. One is the concern about the growing trend toward replacing the traditional testimony of live …

Flags, Bennett Capers

Faculty Scholarship

No abstract provided.

Judges As Film Critics: New Approaches To Filmic Evidence, Jessica Silbey

Faculty Scholarship

This Article exposes internal contradictions in case law deciding the use and admissibility of film as evidence. Based on a review of more than ninety state and federal cases dating from 1923 to the present, the Article explains how the source of these contradictions is the frequent miscategorization of film as "demonstrative evidence," that category of evidence that purports to illustrate other evidence rather than to be directly probative of some fact at issue. The Article further demonstrates how these contradictions are based on two venerable jurisprudential anxieties. One is the concern about the growing trend toward replacing the traditional …

Cognitive Foundation Of The Impulse To Blame, Lawrence Solan

Faculty Scholarship

No abstract provided.

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 …

Visions Of Applying The Scientific Method To The Hearsay Rule, Roger C. Park

Faculty Scholarship

No abstract provided.

Eyewitness Identification: Expert Witnesses Are Not The Only Solution, Roger C. Park

Faculty Scholarship

No abstract provided.

Daubert On A Tilted Playing Field, Roger C. Park

Faculty Scholarship

No abstract provided.

The Limits Of The Polygraph, David L. Faigman, Stephen E. Fienberg, Paul C. Stern

Faculty Scholarship

No abstract provided.

Expert Evidence In Flatland: The Geometry Of A World Without Scientific Culture, David L. Faigman

Faculty Scholarship

No abstract provided.

Sometimes What Everybody Thinks They Know Is True, Roger C. Park

Faculty Scholarship

No abstract provided.

An Empirical Test Of Justice Scalia's Commitment To The Rule Of Law, Gary S. Lawson

Faculty Scholarship

On January 13, 2001, barely one month after the Supreme Court's decision in Bush v. Gore, a group of 554 legal academics calling themselves "Law Professors for the Rule of Law" took out a full-page ad in the New York Times that essentially accused the Court's majority of being faithless to the rule of law. In full, the advertisement read: BY STOPPING THE VOTE COUNT IN FLORIDA, THE U.S. SUPREME COURT USED ITS POWER To ACT AS POLITICAL PARTISANS, NOT JUDGES OF A COURT OF LAW We are Professors of Law at 120 American law schools, from every part of …

Convictions Of Innocent Persons In Massachusetts: An Overview, Stanley Z. Fisher

Faculty Scholarship

Scholars documenting the incidence and causes of wrongful convictions in the United States have focused on cases arising all across the country. Because reform of the practices that lead to such errors of justice must largely take place on the state level, there is value in examining wrongful convictions in particular jurisdictions. This article attempts to identify and briefly describe all known cases of conviction of innocent persons in Massachusetts from 1800 to the present time. Part I discusses the criteria for identifying "the innocent." For the purpose of gaining support for needed reforms in the law, the most persuasive …

The Other Shoe Drops: Minnesota Rejects Daubert, Peter B. Knapp

Faculty Scholarship

In 1991, the United States Supreme Court handed decided Daubert v. Merrell Dow Pharmaceuticals, Inc., rejecting the long-standing federal test for the admissibility of scientific testimony articulated in Frye v. United States. Unlike many states, however, which embraced Daubert within years--or even months--of the federal decision, Minnesota declined to make Daubert the law of the jurisdiction. In a pair of cases decided in 2000, Goeb v. Tharaldson and Sentinel Mgmt. v. Aetna Casualty & Surety, the court held that Minnesota would retain the general acceptance test. The court's rejection of Daubert can be read as an attempt to give the …

Expanding The Evidentiary Frame For Cooperating Witnesses, Daniel C. Richman

Faculty Scholarship

One telling feature of this conference as a whole has been the extent to which speakers have focused on the cooperation dynamic outside the courtroom. Prosecutors should take more pains to avoid suborning or even unconsciously encouraging perjury by the cooperator who is looking for a lower sentence. Courts and disciplinary authorities should ensure that such pains are taken.

What's interesting is how little attention has been given to changing what happens in front of the jury. Since our assignment has been to think "outside of the box" (which usually means proposing something interesting but really wrong or dangerous), I'd …

Of Two Wrongs That Make A Right: Two Paradoxes Of The Evidence Law And Their Combined Economic Justification, Alex Stein

Faculty Scholarship

No abstract provided.

Convicting The Innocent Beyond A Reasonable Doubt: Some Lessons About Jury Instructions From The Sheppard Case, Lawrence Solan

Faculty Scholarship

No abstract provided.

Using Evidence Of Women's Stories In Sexual Harassment Cases, Theresa M. Beiner

Faculty Scholarship

No abstract provided.