Legal Writing and Research Commons^™

Assertion And Hearsay, Richard Lloret

Dickinson Law Review (2017-Present)

This article explores the characteristics and functions of assertion and considers how the term influences the definition of hearsay under Federal Rule of Evidence 801. Rule 801(a) defines hearsay by limiting it to words and conduct intended as an assertion, but the rule does not define the term assertion. Courts and legal scholars have focused relatively little attention on the nature and definition of assertion. That is unfortunate, because assertion is a robust concept that has been the subject of intense philosophic study over recent decades. Assertion is not a mere cypher standing in for whatever speech or conduct one …

Rock And Hard Place Arguments, Jareb Gleckel, Grace Brosofsky

Seattle University Law Review

This Article explores what we coin “rock and hard place” (RHP) arguments in the law, and it aims to motivate mission-driven plaintiffs to seek out such arguments in their cases. The RHP argument structure helps plaintiffs win cases even when the court views that outcome as unfavorable.

We begin by dissecting RHP dilemmas that have long existed in the American legal system. As Part I reveals, prosecutors and law enforcement officials have often taken advantage of RHP dilemmas and used them as a tool to persuade criminal defendants to forfeit their constitutional rights, confess, or give up the chance to …

Between Brady Discretion And Brady Misconduct, Bennett L. Gershman

Dickinson Law Review (2017-Present)

The Supreme Court’s decision in Brady v. Maryland presented prosecutors with new professional challenges. In Brady, the Supreme Court held that the prosecution must provide the defense with any evidence in its possession that could be exculpatory. If the prosecution fails to timely turn over evidence that materially undermines the defendant’s guilt, a reviewing court must grant the defendant a new trial. While determining whether evidence materially undermines a defendant’s guilt may seem like a simple assessment, the real-life application of such a determination can be complicated. The prosecution’s disclosure determination can be complicated under the Brady paradigm because …

Where The Constitution Falls Short: Confession Admissibility And Police Regulation, Courtney E. Lewis

Dickinson Law Review (2017-Present)

A confession presented at trial is one of the most damning pieces of evidence against a criminal defendant, which means that the rules governing its admissibility are critical. At the outset of confession admissibility in the United States, the judiciary focused on a confession’s truthfulness. Culminating in the landmark case Miranda v. Arizona, judicial concern with the reliability of confessions shifted away from whether a confession was true and towards curtailing unconstitutional police misconduct. Post-hoc constitutionality review, however, is arguably inappropriate. Such review is inappropriate largely because the reviewing court must find that the confession was voluntary only by …

Striking A Balance: A Proposed Amendment To The Federal Rules Of Evidence Excluding Partial Apologies, Chandler Farmer

Belmont Law Review

Regarding evidentiary protection for apologies, this note seeks to strike a balance by advocating for the approach adopted by a majority of states: evidentiary protection for some, but not all apologies. Such an approach, while not perfect, aligns the competing interests of encouraging the legal, psychological, and emotional benefits that accompany apologies with preserving a plaintiff’s right to utilize probative evidence. By way of introduction, section one of this note briefly discusses the current legal treatment of apologies in United States jurisdictions. Section two compares the advantages of excluding apologetic statements from evidence with the disadvantages of such evidentiary protection …

Techno-Jury: Techniques In Verbal And Visual Persuasion, Gregory J. Morse

NYLS Law Review

No abstract provided.

Standards Of Evidence In Administrative Proceedings, William H. Kuenhle

NYLS Law Review

No abstract provided.

Expert-Novice Differences And Implications For Choice Of Bench Versus Jury Trial, Anne W. Martin

Cardozo Law Review

No abstract provided.

Charting New Territory In Judicial Proof: Beyond Wigmore, Peter Tillers, David Schum

Cardozo Law Review

In this Article, Professor Tillers and Professor Schum investigate judicial proof in a way that combines three distinct methods of analyzing the probative significance of evidence. They call these three modes of analysis legal structuring, temporal structuring, and relational structuring. Although scholars in various disciplines have recognized the importance of these three types of analysis in the assessment of evidence, no extant theory provides a systematic account of the relationships between legal analysis, temporal analysis, and relational analysis. Professor Tillers and Professor Schum describe some of the matters that a three-dimensional analysis of proof must take into account and they …

Edmund M. Morgan, Felix Frankfurter

Vanderbilt Law Review

On a rough estimate, there were some two hundred items of every variety of legal writing: text books, case books, an unpretentious but wise little volume on the Introduction to the Study of Law, the successive stages of the Code of Evidence of the American Law Institute, essays scattered in dozens of law reviews, as well as those contained between book covers, like his Carpentier Lectures, book reviews, surveys of developments in the law both in the Nation and latterly in Tennessee. He has not been a one-subject scholar. But in one field, Evidence,he has become the contemporary master. History …

Mccormick: Handbook Of The Law Of Evidence, Mason Ladd

Michigan Law Review

A Review of Handbook of the Law of Evidence. By Charles T. McCormick

Morgan: Basic Problems Of Evidence, Alfred L. Gausewitz

Michigan Law Review

A Review of Basic Problems of Evidence. By Edmund M. Morgan.