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Evidence Commons™

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1998

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Articles 1 - 30 of 31

Full-Text Articles in Evidence

Lie Detection: The Supreme Court's Polygraph Decision, Bennett L. Gershman Sep 1998

Lie Detection: The Supreme Court's Polygraph Decision, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

In United States v. Scheffer, decided this past Term, the Supreme Court considered for the first time the admissibility of polygraph evidence. The Court held that exclusion of such evidence on behalf of a criminal defendant was supported by valid justifications and offended no constitutional right to present a defense.

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The Personhood Argument Against Polygraph Evidence, Or "Even If The Polygraph Really Works, Will Courts Admit The Results?", James R. Mccall Jan 1998

The Personhood Argument Against Polygraph Evidence, Or "Even If The Polygraph Really Works, Will Courts Admit The Results?", James R. Mccall

Faculty Scholarship

No abstract provided.

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Character At The Crossroads, Roger C. Park Jan 1998

Character At The Crossroads, Roger C. Park

Faculty Scholarship

No abstract provided.

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Admissibility Of Evidence In Virginia: A Manual For Virginia Trial Lawyers, 2nd Edition, Ronald J. Bacigal Jan 1998

Admissibility Of Evidence In Virginia: A Manual For Virginia Trial Lawyers, 2nd Edition, Ronald J. Bacigal

Law Faculty Publications

This book compiles statutory and case law dealing with the admissibility of evidence. An alphabetical format keyed into subject headings is utilized in order to facilitate quick, accurate access to cases and statutes which answer most basic evidentiary questions. We have also tried, where feasible, to use the language of the court or statute rather than our own interpretation. We believe this approach most usefully serves the purposes of providing a quick, authoritative answer. The format does not allow for extended theoretical discussion, nor does it purport to be an exhaustive survey of all relevant cases. The reader is encouraged …

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Taking The Cop Out Of Copping A Plea: Eradicating Police Prosecution Of Criminal Cases, Andrew Horwitz Jan 1998

Taking The Cop Out Of Copping A Plea: Eradicating Police Prosecution Of Criminal Cases, Andrew Horwitz

Law Faculty Scholarship

No abstract provided.

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Evidence: 1996-1997 Survey Of New York Law, Faust Rossi Jan 1998

Evidence: 1996-1997 Survey Of New York Law, Faust Rossi

Cornell Law Faculty Publications

No abstract provided.

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Blinded By Science: How Judges Avoid The Science In Scientific Evidence, Erica Beecher-Monas Jan 1998

Blinded By Science: How Judges Avoid The Science In Scientific Evidence, Erica Beecher-Monas

Law Faculty Research Publications

No abstract provided.

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Beyond Privacy, Beyond Probable Cause, Beyond The Fourth Amendment: New Strategies For Fighting Pretext Arrests, 69 U. Colo. L. Rev. 693 (1998), Timothy P. O'Neill Jan 1998

Beyond Privacy, Beyond Probable Cause, Beyond The Fourth Amendment: New Strategies For Fighting Pretext Arrests, 69 U. Colo. L. Rev. 693 (1998), Timothy P. O'Neill

UIC Law Open Access Faculty Scholarship

No abstract provided.

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Daubert In The States, Paul C. Giannelli Jan 1998

Daubert In The States, Paul C. Giannelli

Faculty Publications

No abstract provided.

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Hearsay: Traps & Problem Issues, Paul C. Giannelli Jan 1998

Hearsay: Traps & Problem Issues, Paul C. Giannelli

Faculty Publications

No abstract provided.

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Lost Lives: Miscarriages Of Justice In Capital Cases, Samuel R. Gross Jan 1998

Lost Lives: Miscarriages Of Justice In Capital Cases, Samuel R. Gross

Articles

One of the longstanding complaints against the death penalty is that it "distort[s] the course of the criminal law."' Capital prosecutions are expensive and complicated; they draw sensational attention from the press; they are litigated-before, during, and after trial-at greater length and depth than other felonies; they generate more intense emotions, for and against; they last longer and live in memory. There is no dispute about these effects, only about their significance. To opponents of the death penalty, they range from minor to severe faults; to proponents, from tolerable costs to major virtues. ntil recently, however, the conviction of innocent …

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Focus On Faculty, Richard D. Friedman Jan 1998

Focus On Faculty, Richard D. Friedman

Other Publications

Professor Richard Friedman talks about his scholarship and work.

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Psychiatric Evidence In Criminal Trials: To Junk Or Not To Junk?, Christopher Slobogin Jan 1998

Psychiatric Evidence In Criminal Trials: To Junk Or Not To Junk?, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This Article begins, in Part I, with a brief review of the past four decades" of psychiatric and psychological testimony in criminal trials (henceforth referred to simply as "psychiatric testimony"). Although this review cannot be called comprehensive, it does make clear that, contrary to what the popular literature would have us believe, psychiatric innovation is neither at an all time high nor the prevalent form of opinion testimony by mental health professionals. At the same time, such "nontraditional" expert opinion from clinicians, on those rare occasions when it does occur, has changed over the past few decades in both content …

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Hearsay, Dead Or Alive?, Roger C. Park Jan 1998

Hearsay, Dead Or Alive?, Roger C. Park

Faculty Scholarship

No abstract provided.

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Confrontation: The Search For Basic Principles, Richard D. Friedman Jan 1998

Confrontation: The Search For Basic Principles, Richard D. Friedman

Articles

The Sixth Amendment to the Constitution guarantees the accused in a criminal prosecution the right "to be confronted with the Witnesses against him."' The Confrontation Clause clearly applies to those witnesses who testify against the accused at trial. Moreover, it is clear enough that confrontation ordinarily includes the accused's right to have those witnesses brought "face-toface," in the time-honored phrase, when they testify.2 But confrontation is much more than this "face-to-face" right. It also comprehends the right to have witnesses give their testimony under oath and to subject them to crossexamination. 3 Indeed, the Supreme Court has treated the accused's …

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Damaška: Evidence Law Adrift. A Book Review, Richard O. Lempert Jan 1998

Damaška: Evidence Law Adrift. A Book Review, Richard O. Lempert

Reviews

Let me state my biases at the start. I am a great fan of Professor Damaska and have been ever since I read his first book, The Faces of Justice and State Authority. Professor Damaska's most recent book, Evidence Law Adrift, adds to my admiration. In Evidence Law Adrift Professor Dama~ka examines Continental and Anglo-American trial procedures and argues that changes in the way Anglo-American courts resolve cases, especially the marginalization of the jury trial, strip common law evidence doctrine of its theoretical base and place it in danger of becoming an intellectual curiosity confined, in Professor Damaska's words, "to …

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Anchors And Flotsam: Is Evidence Law 'Adrift'?, Richard D. Friedman Jan 1998

Anchors And Flotsam: Is Evidence Law 'Adrift'?, Richard D. Friedman

Reviews

Difference, as well as distance, yields perspective. A comparison of legal systems may search for common underlying principles, or for lessons that one system might learn from another. But it may also be aimed primarily at illuminating one system by light shed from another. This is the aim of Evidence Law Adrift, Mirjan Damagka's elegant study of the common law system of evidence, and he is ideally suited for the task. Born and schooled in Continental Europe, he has lived and taught in the United States for twenty-five years. His relation to the common law system of evidence is, I …

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The Federal Psychotherapist-Patient Privilege After Jaffee: Truth And Other Values In A Therapeutic Age, Christopher B. Mueller Jan 1998

The Federal Psychotherapist-Patient Privilege After Jaffee: Truth And Other Values In A Therapeutic Age, Christopher B. Mueller

Publications

No abstract provided.

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Tadić, The Anonymous Witness And The Sources Of International Procedural Law, Natasha Affolder Jan 1998

Tadić, The Anonymous Witness And The Sources Of International Procedural Law, Natasha Affolder

All Faculty Publications

On May 7, 1997, Trial Chamber II of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia released its verdict in its first trial. While the proceedings of the International Tribunal were commended for their fairness, criticism quickly erupted as a result of the Trial Chamber's decision to allow anonymous testimony to be used in the Tadic trial. This article explores the Trial Chamber's decision to allow the use of anonymous testimony as a protective measure. It focuses on the challenge of defining the sources …

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Substantial Assistance And Sentence Severity: Is There A Correlation Substantial Assistance, Ian Weinstein Jan 1998

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 …

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Conflicts Of Interest In Scientific Expert Testimony, Mark R. Patterson Jan 1998

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 …

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Law In The Backwaters: A Comment Of Mirjan Damaška's Evidence Law Adrift, Samuel R. Gross Jan 1998

Law In The Backwaters: A Comment Of Mirjan Damaška's Evidence Law Adrift, Samuel R. Gross

Reviews

The most problematic part of Professor Mirjan Damaška's fine book is the title.' Professor Damaška does an excellent job of situating American evidence law in the procedural context in which American trials occur. He identifies three major procedural elements. First, juries are traditionally cited as the primary or sole explanation for our extensive set of exclusionary rules, which are said to express mistrust of lay adjudicators. Professor Damaška points out as well that lay juries permit a divided court, with a professional judge who has exclusive control over "questions of law," and that this division is necessary for the operation …

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The Evidentiary Theory Of Blackmail: Taking Motives Seriously, Mitchell N. Berman Jan 1998

The Evidentiary Theory Of Blackmail: Taking Motives Seriously, Mitchell N. Berman

All Faculty Scholarship

No abstract provided.

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Courts' Evolving Roles In Daubert Decisions, Susan J. Becker Jan 1998

Courts' Evolving Roles In Daubert Decisions, Susan J. Becker

Law Faculty Articles and Essays

In Daubert, the Supreme Court interpreted Federal Rule of Evidence 702 to permit an arguably more-relaxed standard for the admission of expert scientific evidence than previously allowed under the popular Frye test.

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No Bad Men!: A Feminist Analysis Of Character Evidence In Rape Trials, Aviva A. Orenstein Jan 1998

No Bad Men!: A Feminist Analysis Of Character Evidence In Rape Trials, Aviva A. Orenstein

Articles by Maurer Faculty

No abstract provided.

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Kentucky Law Survey: Evidence, Robert G. Lawson Jan 1998

Kentucky Law Survey: Evidence, Robert G. Lawson

Law Faculty Scholarly Articles

This Article is a survey of recent developments in evidence law. It focuses on specific issues, including statements for medical treatment or diagnosis, tape recordings, "probativeness" versus "prejudice," and others.

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Make-Believe: The Rules Excluding Evidence Of Character And Liability Insurance (Symposium: Truth And Its Rivals: Evidence Reform And The Goals Of Evidence Law), Samuel R. Gross Jan 1998

Make-Believe: The Rules Excluding Evidence Of Character And Liability Insurance (Symposium: Truth And Its Rivals: Evidence Reform And The Goals Of Evidence Law), Samuel R. Gross

Articles

Article IV of the Federal Rules of Evidence includes several rules that prohibit the use of specified types of information as evidence of particular propositions. Subsequent remedial measures are inadmissible to prove negligence (but admissible to show ownership, control, et cetera),' settlement offers are inadmissible to prove liability (but admissible to show bias or prejudice, or for other purposes),2 and so forth. Any exclusion of relevant evidence involves some distortion of reality in the sense that the picture presented to the trier of fact includes less information than the available total. That will be true whether the evidence is kept …

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Thoughts From Across The Water On Hearsay And Confrontation, Richard D. Friedman Jan 1998

Thoughts From Across The Water On Hearsay And Confrontation, Richard D. Friedman

Articles

This article draws on the history of the hearsay rule, and on recent decisions of the European Court of Human Rights, to argue that the right to confrontation should be recognised as a basic principle of the law of evidence, and that aspects of the Law Commission's proposals for reform of the hearsay rule, and of the Home Office's proposals for restrictions on the right of cross-examination, are therefore unsatisfactory.

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Built On Lies: Preliminary Reflections On Evidence Law As An Autopoetic System, Richard O. Lempert Jan 1998

Built On Lies: Preliminary Reflections On Evidence Law As An Autopoetic System, Richard O. Lempert

Articles

This Symposium on Truth and Its Rivals seems most concerned with what one might think of as the "output" side of evidence law that is, whether the rules of evidence enhance the likelihood that trial verdicts will capture the true state of the matter giving rise to the litigation. From this perspective, the legitimate rivals to truth are values that may justify decisions that eclipse the truth. The most obvious examples are rules of privilege, which allow probative information to remain concealed even where it is essential to accurate fact finding.

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Truth And Its Rivals In The Law Of Hearsay And Confrontation (Symposium: Truth And Its Rivals: Evidence Reform And The Goals Of Evidence Law)." , Richard D. Friedman Jan 1998

Truth And Its Rivals In The Law Of Hearsay And Confrontation (Symposium: Truth And Its Rivals: Evidence Reform And The Goals Of Evidence Law)." , Richard D. Friedman

Articles

In this paper, I will look at the problem of hearsay and confrontation through the lens offered by this symposium's theme of "truth and its rivals." I will ask: To what extent does the law of hearsay and confrontation aspire to achieve the goal of truth in litigation? To what extent does it, or should it, seek to achieve other goals, or to satisfy other constraints on the litigation system? And, given the ends that it seeks to achieve, what should the shape of the law in this area be? My principal conclusions are as follows: In most settings, the …

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