Open Access. Powered by Scholars. Published by Universities.®

Evidence Commons™

Open Access. Powered by Scholars. Published by Universities.®

Selected Works

Federal Rules of Evidence

Articles 1 - 9 of 9

Full-Text Articles in Evidence

Co-Conspirator Declarations: The Federal Rules Of Evidence And Other Recent Developments, From A Criminal Law Perspective, Paul Marcus Sep 2019

Co-Conspirator Declarations: The Federal Rules Of Evidence And Other Recent Developments, From A Criminal Law Perspective, Paul Marcus

Paul Marcus

Perhaps the most important advantage available to a prosecutor in a criminal conspiracy case is the exception to the hearsay rule for co-conspirator declarations. The exception is widely used and is often a significant part of the government presentation. In essence, it provides that otherwise inadmissible hearsay declarations of coconspirators are admissible at trial against the defendant so long as they were made during the course and in furtherance of the conspiracy. The exception typically arises when an alleged co-conspirator declarant tells the witness (often an undercover police officer) all about the conspiracy, perhaps in the hope of attracting a …

Go to article

The Restyled Federal Rules Of Evidence, Davison M. Douglas, Sidney A. Fitzwater, Daniel J. Capra, Robert A. Hinkle, Joseph Kimble, Joan N. Ericksen, Marilyn L. Huff, Reena A. Raggi, Geraldine Soat Brown, Edward H. Cooper, Kenneth S. Broun, Harris L. Hartz, Katharine Traylor Schaffzin, Roger C. Park, Deborah J. Merritt, Andrew D. Hurwitz, W. Jeremy Counseller, Paula Hannaford-Agor Sep 2019

The Restyled Federal Rules Of Evidence, Davison M. Douglas, Sidney A. Fitzwater, Daniel J. Capra, Robert A. Hinkle, Joseph Kimble, Joan N. Ericksen, Marilyn L. Huff, Reena A. Raggi, Geraldine Soat Brown, Edward H. Cooper, Kenneth S. Broun, Harris L. Hartz, Katharine Traylor Schaffzin, Roger C. Park, Deborah J. Merritt, Andrew D. Hurwitz, W. Jeremy Counseller, Paula Hannaford-Agor

Davison M. Douglas

A lightly edited transcript of the Symposium held at the William & Mary School of Law on October 28, 2011.

Go to article

Character Assassination: Amending Federal Rule Of Evidence 404(B) To Protect Criminal Defendants, Liesa L. Richter Dec 2017

Character Assassination: Amending Federal Rule Of Evidence 404(B) To Protect Criminal Defendants, Liesa L. Richter

Liesa L. Richter

There is a war raging over the admissibility of the prior bad acts of criminal defendants in federal trials. While many circuits treat Federal Rule of Evidence 404(b) as a rule of “inclusion” and liberally admit such prior bad-acts evidence with predictably explosive effects on criminal juries, a few circuits are developing rigorous standards designed to foreclose prosecutorial use of such bad-acts evidence. This Article chronicles the well-documented permissive admission of the prior bad acts of criminal defendants notwithstanding the prohibition on such evidence by Federal Rule of Evidence 404(b)(1), as well as recent efforts by some federal circuits to …

Go to article

Goldilocks And The Rule 803 Hearsay Exceptions, Liesa L. Richter Dec 2017

Goldilocks And The Rule 803 Hearsay Exceptions, Liesa L. Richter

Liesa L. Richter

Criticism of the hearsay exceptions embodied in the Federal Rules of Evidence has reached a fever pitch in recent years. With scholars calling for the abrogation of the entire hearsay regime or of individual exceptions within it and the Advisory Committee on Evidence Rules exploring hearsay amendments, the time for genuine hearsay soul-searching may be at hand. This Article suggests that aggressive proposals to scuttle existing doctrine entirely in favor of alternative approaches to hearsay are overly broad, rejecting the benefits of significant portions of existing doctrine that are functioning well and threatening costly consequences that could make matters worse …

Go to article

Reality Check: A Modest Modification To Rationalize Rule 803 Hearsay Exceptions, Liesa L. Richter Feb 2016

Reality Check: A Modest Modification To Rationalize Rule 803 Hearsay Exceptions, Liesa L. Richter

Liesa L. Richter

No abstract provided.

Go to article

Impeachment Methods Illustrated: Movies, Novels, And High Profile Cases, Martin A. Schwartz, John Nicodemo Nov 2012

Impeachment Methods Illustrated: Movies, Novels, And High Profile Cases, Martin A. Schwartz, John Nicodemo

Martin A. Schwartz

No abstract provided.

Go to article

Trial Evidence 2011: Advocacy, Analysis, & Illustrations, Martin A. Schwartz, Deborah Jones Merritt, William G. Young Nov 2012

Trial Evidence 2011: Advocacy, Analysis, & Illustrations, Martin A. Schwartz, Deborah Jones Merritt, William G. Young

Martin A. Schwartz

No abstract provided.

Go to article

An Unsettling Development: The Use Of Settlement Related Evidence For Damages Determinations In Patent Litigation, Tejas N. Narechania, J. Taylor Kirklin Dec 2011

An Unsettling Development: The Use Of Settlement Related Evidence For Damages Determinations In Patent Litigation, Tejas N. Narechania, J. Taylor Kirklin

Tejas N. Narechania

The federal courts have struggled to define the role that prior third-party settlements should play in determining damages for patent infringement. Although the use of such evidence is governed by the Federal Rules of Evidence, appellate and district courts have failed to reach consensus regarding the appropriate application of these rules. Most recently, in ResQNet v. Lansa, the Federal Circuit noted that the most reliable evidence of damages for infringement may be a license that emerges from a previous settlement. This decision prompted a flurry of new rulings by district courts regarding the admissibility and discoverability of evidence of previous …

Go to article

Establishing Separate Criminal And Civil Evidence Codes, John J. Capowski Dec 2007

Establishing Separate Criminal And Civil Evidence Codes, John J. Capowski

John J. Capowski

This article suggests that the Federal Rules of Evidence (Rules) should be separated into distinct criminal and civil evidence codes. The arguments for this separation are both practical and theoretical, and this article is the first comprehensive discussion of this proposed separation.

The most important of the arguments for bifurcation is that our current unified evidence code leads to inappropriate admission decisions. These inappropriate admission decisions most often occur when the interpretation of a rule in a criminal case is applied in later civil law cases. This result is in part because our rules, and their interpretations, are transubstantive; they …

Go to article