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Evidence Commons

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1995

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Full-Text Articles in Evidence

New Federal Rules In Sex Offense Cases, Lynn Mclain Dec 1995

New Federal Rules In Sex Offense Cases, Lynn Mclain

All Faculty Scholarship

This article from the November/December 1995 issue of the Maryland Bar Journal details the changes made to the Federal Rules of Evidence following the enactment of the 1994 Comprehensive Crime Bill. Questions raised by the new rules and the response of the Judicial Conference are also discussed.


Third-Party Modification Of Protective Orders Under Rule 26©, Patrick S. Kim Dec 1995

Third-Party Modification Of Protective Orders Under Rule 26©, Patrick S. Kim

Michigan Law Review

This Note argues that similarly situated litigants always should be given access to protected discovered materials, while nonlitigants should gain access to protected materials only in exceptional circumstances. This approach effectively balances the privacy and property interests of the original parties and the intervening parties with the interests of adjudicative efficiency. Part I establishes that there is no general public right of access to civil discovery and that courts should disregard such purported rights when considering whether to modify a protective order. Part II identifies three interests that courts should weigh when considering whether to modify a protective order: the ...


Conditional Probative Value And The Reconstruction Of The Federal Rules Of Evidence, Dale A. Nance Nov 1995

Conditional Probative Value And The Reconstruction Of The Federal Rules Of Evidence, Dale A. Nance

Michigan Law Review

In a recent article, Richard Friedman articulates a modified and generalized version of the doctrine of conditional relevance, which he calls "conditional probative value." This version comes in response to a substantial body of academic criticism of the traditional doctrine. As one of the critics to whom Professor Friedman responds, I offer this reply with two purposes in mind: (1) to clarify the relationship between Friedman's analysis and my earlier reinterpretation of the conditional relevance doctrine; and (2) to address Friedman's specific proposals with regard to the Federal Rules of Evidence. I conclude that Friedman's articulation helps ...


Dna Profiling In North Carolina, James Morgan Oct 1995

Dna Profiling In North Carolina, James Morgan

North Carolina Central Law Review

No abstract provided.


The Flexible Doctrine Of Spoliation Of Evidence; Cause Of Action, Defense, Evidentiary Presumption And Discovery Sanction, Robert L. Tucker Oct 1995

The Flexible Doctrine Of Spoliation Of Evidence; Cause Of Action, Defense, Evidentiary Presumption And Discovery Sanction, Robert L. Tucker

Akron Law Publications

No abstract provided.


Using Leading Questions During Direct Examination, Charles W. Ehrhardt, Stephanie J. Young Oct 1995

Using Leading Questions During Direct Examination, Charles W. Ehrhardt, Stephanie J. Young

Florida State University Law Review

No abstract provided.


"X-Spurt" Witnesses, Richard H. Underwood Oct 1995

"X-Spurt" Witnesses, Richard H. Underwood

Law Faculty Scholarly Articles

In this article the author pulls together a history of expert witnesses in common law systems. Various issues are explored regarding expert witness testimony, including: the historical underpinnings of the practice, how Daubert controls that issue in modern times, rules of evidence, psychological science, and professional ethics.


The Admissibiity Of Inculpatory Statements In Washington Under The Rule For Declarations Against Interest After Williamson V. United States, Julianna Gortner Jul 1995

The Admissibiity Of Inculpatory Statements In Washington Under The Rule For Declarations Against Interest After Williamson V. United States, Julianna Gortner

Washington Law Review

Washington courts hold that where a statement by an unavailable declarant, offered in the trial of a third party inculpated by the statement, is predominantly disserving to the declarant's penal interest, the statement is admissible under the hearsay exception for declarations against interest. Federal courts have split on the admissibility of such declarations, with some courts holding that any non-disserving portions must be severed and excluded. In Williamson v. United States, the United States Supreme Court narrowed the scope of Federal Rule of Evidence 804(b)(3) on declarations against interest and held that only the individual portions of ...


The Presumption Of Innocence Imperiled: The New Federal Rules Of Evidence 413-415 And The Use Of Other Sexual-Offense Evidence In Washington, Jeffrey G. Pickett Jul 1995

The Presumption Of Innocence Imperiled: The New Federal Rules Of Evidence 413-415 And The Use Of Other Sexual-Offense Evidence In Washington, Jeffrey G. Pickett

Washington Law Review

The U.S. Congress has provisionally enacted three new federal rules of evidence (FRE). In cases of sexual assault or child molestation, FRE 413-415 allow the use, for any relevant purpose, of sexual assault or child molestation evidence not charged in the indictment or information. The new rules would operate in contravention of the traditional prohibition against using evidence of other misconduct for the purpose of proving that the defendant acted in conformity with a particular character trait on the occasion in question. This Comment surveys the arguments for and against the proposed changes. It concludes that Washington should not ...


No Magic Formula: A New Approach For Calculating The Ten Year Time Period For Admission Of Prior Conviction Evidence, Amy E. Sloan Jul 1995

No Magic Formula: A New Approach For Calculating The Ten Year Time Period For Admission Of Prior Conviction Evidence, Amy E. Sloan

All Faculty Scholarship

Federal Rule of Evidence (FRE) 609 governs admission of prior conviction evidence. Under this rule, it is easier to admit evidence of a prior conviction that is less than ten years old than to admit evidence of older convictions. The ten year period is measured from the later of either the date of conviction or the date of release from confinement.

Calculating the ten year period is fairly straightforward in most cases but becomes confusing when the witness has been confined for violating the terms of probation, parole, or some other period of conditional release. Does the confinement for violation ...


The Federal Rules Of Evidence--Past, Present, And Future: A Twenty-Year Perspective, Faust Rossi Jun 1995

The Federal Rules Of Evidence--Past, Present, And Future: A Twenty-Year Perspective, Faust Rossi

Cornell Law Faculty Publications

This Essay surveys three major transformations in state and federal rules of evidence since the introduction of the Federal Rules of Evidence. The Rules have not only inspired a movement toward codification in the states, they have also liberalized the admission of expert testimony and hearsay. This partially explains thirteen states' reluctance to codify. Judges have furthered this trend by admitting far more discretionary hearsay evidence than Congress intended. Professor Rossi doubts this expansion of the hearsay exceptions would have occurred without the adoption of the FRE and suggests that the newly formed Advisory Committee will produce greater substantive changes ...


Is The Doctor Hostile--Obstructive Impairments And The Hostility Rule In Federal Black Lung Claims, Timothy F. Cogan Jun 1995

Is The Doctor Hostile--Obstructive Impairments And The Hostility Rule In Federal Black Lung Claims, Timothy F. Cogan

West Virginia Law Review

No abstract provided.


A Six Step Analysis Of Other Purposes Evidence Pursuant To Rule 404(B) Of The North Carolina Rules Of Evidence, T. M. Ringer Jr. Apr 1995

A Six Step Analysis Of Other Purposes Evidence Pursuant To Rule 404(B) Of The North Carolina Rules Of Evidence, T. M. Ringer Jr.

North Carolina Central Law Review

No abstract provided.


Abandoning New York's "General Acceptance" Requirement: Redesigning Proposed Rule Of Evidence 702(B) After Daubert V. Merrell Dow Pharmaceuticals, Inc., Stuart J. Graham Apr 1995

Abandoning New York's "General Acceptance" Requirement: Redesigning Proposed Rule Of Evidence 702(B) After Daubert V. Merrell Dow Pharmaceuticals, Inc., Stuart J. Graham

Buffalo Law Review

No abstract provided.


Bitter Battles: The Use Of Psychological Evaluations In Child Custody Disputes In West Virginia, Alison Richey Mcburney Apr 1995

Bitter Battles: The Use Of Psychological Evaluations In Child Custody Disputes In West Virginia, Alison Richey Mcburney

West Virginia Law Review

No abstract provided.


The Advocate's Conflicting Obligations Vis-A.-Vis Adverse Medical Evidence In Social Security Proceedings, Robert E. Rains Mar 1995

The Advocate's Conflicting Obligations Vis-A.-Vis Adverse Medical Evidence In Social Security Proceedings, Robert E. Rains

BYU Law Review

No abstract provided.


3. False Allegations And False Denials In Child Sexual Abuse., Thomas D. Lyon Jan 1995

3. False Allegations And False Denials In Child Sexual Abuse., Thomas D. Lyon

Thomas D. Lyon

The amicus brief in the Kelly Michaels case ignores the risks that abused children will fail to reveal abuse unless direct and sometimes leading questions are asked. Although the brief correctly criticizes previous research for understating the risks that aggressive interviewing practices will lead young children to make false allegations of abuse, it overstates the likelihood that false allegations occur by overlooking the aspects of the Kelly Michaels case and the research it inspired that are unlike the typical abuse case.  The author discusses factors that lead abused children to falsely deny abuse and that minimize the likelihood that nonabused ...


The Expert’S Role In Construction Disputes, Robert Greenstreet Jan 1995

The Expert’S Role In Construction Disputes, Robert Greenstreet

Architecture Faculty Articles

This article explores the part that the expert witness plays in construction disputes and provides guidance for those who are asked to act in that capacity.


Incoming Drug Calls And Performative Words: They're Not Just Talking About It, Baron Parke!, Christopher B. Mueller Jan 1995

Incoming Drug Calls And Performative Words: They're Not Just Talking About It, Baron Parke!, Christopher B. Mueller

Articles

No abstract provided.


Classical Rhetoric, Practical Reasoning, And The Law Of Evidence , Eileen A. Scallen Jan 1995

Classical Rhetoric, Practical Reasoning, And The Law Of Evidence , Eileen A. Scallen

American University Law Review

No abstract provided.


The Plain Feel Doctrine In Washington: An Opportunity To Provide Greater Protections Of Privacy To Citizens Of This State, Laura T. Bradley Jan 1995

The Plain Feel Doctrine In Washington: An Opportunity To Provide Greater Protections Of Privacy To Citizens Of This State, Laura T. Bradley

Seattle University Law Review

This Comment argues that Washington should return to an independent analysis of search and seizure doctrine under article I, section 7 of the state constitution and reject the admission of contraband seized during the course of a pat-down frisk. The decisions in Hudson and Dickerson have established an unnecessary and unworkable standard, and involve an increased invasion of personal privacy without the counter-balancing need to protect the safety of others. The plain feel doctrine as announced in Dickerson and Hudson developed from two well-established concepts in search and seizure law-the Terry frisk of persons to discover weapons and the plain ...


An Opinion: Federal Judges Misconstrue Rule 704 (Or Is That An Impermissible Legal Conclusion), Kathy Jo Cook Jan 1995

An Opinion: Federal Judges Misconstrue Rule 704 (Or Is That An Impermissible Legal Conclusion), Kathy Jo Cook

Cleveland State Law Review

This article addresses the need to formulate a uniform and predictable approach to the admissibility of expert opinion testimony which relates the law to the facts. First, it briefly discusses the history of expert opinion testimony. Second, it discusses, through a case analysis, the difficult, if not impossible task that courts have assumed in attempting to differentiate between two types of expert opinions: (1) those which are, by their nature, factual; and (2) those which require some level of legal analysis-directly relating the law to the facts of the case. Finally, this article suggests an alternative approach which is arguably ...


The Fourth Amendment Protection Against Unreasonable Searches And Seizures And The French Experience, Florence Sophie Boreil Jan 1995

The Fourth Amendment Protection Against Unreasonable Searches And Seizures And The French Experience, Florence Sophie Boreil

LLM Theses and Essays

Under the American approach to criminal justice, freedom of the individual is of the utmost importance. The American criminal justice system reflects a distrust of abuse of power and an emphasis on protection of personal freedom. However, the French take a contrary approach; under French law, freedom is achieved through the State. This paper examines the protection of individuals’ rights in American and French criminal procedure. Focus will be given to tracking the police investigatory powers in each country through searches and seizures, and the impact that those powers have on individuals’ rights. This paper will assert that the police ...


Mapping The Labyrinth Of Scientific Evidence, David L. Faigman Jan 1995

Mapping The Labyrinth Of Scientific Evidence, David L. Faigman

Faculty Scholarship

No abstract provided.


The Definition Of Hearsay: To Each Its Own, Roger C. Park Jan 1995

The Definition Of Hearsay: To Each Its Own, Roger C. Park

Faculty Scholarship

No abstract provided.


The Crime Bill Of 1994 And The Law Of Character Evidence: Congress Was Right About Consent Defense Cases, Roger C. Park Jan 1995

The Crime Bill Of 1994 And The Law Of Character Evidence: Congress Was Right About Consent Defense Cases, Roger C. Park

Faculty Scholarship

No abstract provided.


Probability And Proof In State V. Skipper: An Internet Exchange, Roger C. Park, Ronald J. Allen Jan 1995

Probability And Proof In State V. Skipper: An Internet Exchange, Roger C. Park, Ronald J. Allen

Faculty Scholarship

No abstract provided.


General Evidentiary Objections Still Valid In Maryland, Dinah S. Leventhal Jan 1995

General Evidentiary Objections Still Valid In Maryland, Dinah S. Leventhal

Maryland Law Review

No abstract provided.


Toward Uniform Application Of A Federal Psychotherapist-Patient Privilege, Catherine M. Baytion Jan 1995

Toward Uniform Application Of A Federal Psychotherapist-Patient Privilege, Catherine M. Baytion

Washington Law Review

In federal courts, Federal Rule of Evidence 501 governs all privileges, including the psychotherapist-patient privilege. Unlike many state statutes that explicitly recognize the psychotherapist-patient privilege and define its scope through exceptions, Rule 501 merely directs courts to use their reason and experience to interpret common law principles. Under this vague standard, the federal circuits lack uniformity in their treatment of the psychotherapist-patient privilege. This Comment suggests that Congress should explicitly recognize the privilege and define its scope through exceptions. To support this conclusion, this Comment discusses the justifications for recognizing a psychotherapist-patient privilege, uses the paradigm of formal versus nonformal ...


Still Photographs In The Flow Of Time, Richard D. Friedman Jan 1995

Still Photographs In The Flow Of Time, Richard D. Friedman

Reviews

Rarely is an image of the actual moment of death captured and preserved. When it is, as in the famous photographs of President John F Kennedy's assassination or of the summary execution of a Viet Cong officer by a South Vietnamese police chief,4 it is haunting. Even photographs of the moment before sudden death have great power-whether death is totally unexpected (as in a photograph of Luis Donaldo Colosio campaigning for the presidency of Mexico just before his assassination'), planned (as in a photograph of a man bound in an electric chair awaiting execution6 ), or in doubt and ...