Open Access. Powered by Scholars. Published by Universities.®
- Keyword
-
- Testimony (126)
- Witnesses (103)
- Admissibility (101)
- United States Supreme Court (86)
- Sixth Amendment (61)
-
- Hearsay (55)
- Confrontation Clause (52)
- Police (51)
- Trials (47)
- Cross-examination (44)
- Juries (41)
- Law reform (39)
- Discovery (32)
- Reliability (32)
- Crawford v. Washington (31)
- Federal Rules of Evidence (29)
- Exclusionary rule (28)
- Fifth Amendment (28)
- Confessions (27)
- Expert evidence (27)
- Searches (27)
- Seizures (24)
- Custodial interrogations (23)
- Miranda v. Arizona (23)
- Michigan (22)
- Due process (20)
- Exclusions (20)
- Probability (20)
- Probative value (20)
- Children (19)
- Publication Year
- Publication
-
- Michigan Law Review (493)
- Articles (150)
- University of Michigan Journal of Law Reform (53)
- Book Chapters (24)
- Michigan Journal of International Law (13)
-
- Michigan Law Review First Impressions (10)
- Other Publications (8)
- Reviews (6)
- Michigan Telecommunications & Technology Law Review (4)
- Michigan Journal of Gender & Law (3)
- Michigan Journal of Race and Law (3)
- Books (2)
- Michigan Journal of Environmental & Administrative Law (1)
- Michigan Legal Studies Series (1)
- University of Michigan Journal of Law Reform Caveat (1)
- Publication Type
Articles 1 - 30 of 772
Full-Text Articles in Law
The Death Knell And The Wild West: Two Dangers Of Domestic Discovery In Foreign Adjudications, Shay M. Collins
The Death Knell And The Wild West: Two Dangers Of Domestic Discovery In Foreign Adjudications, Shay M. Collins
Michigan Law Review
Under 28 U.S.C. § 1782(a), parties to foreign legal proceedings can obtain discovery orders from United States federal courts. In other words, if a foreign party needs physical evidence located in—or testimony from a person residing in—the United States to support their claim or defense, they can ask a district court to order the production of that evidence. For almost two decades, § 1782(a) practice has operated as a procedural Wild West. Judges routinely consider § 1782(a) applications ex parte—that is, without giving the parties subject to the resulting discovery orders a chance to oppose them—and grant those applications at …
Fact-Finding Without Rules: Habermas's Communicative Rationality As A Framework For Judicial Assessments Of Digital Open-Source Information, Matthew Gillett
Fact-Finding Without Rules: Habermas's Communicative Rationality As A Framework For Judicial Assessments Of Digital Open-Source Information, Matthew Gillett
Michigan Journal of International Law
Jürgen Habermas’s theory of “communicative rationality” (also known as “communicative action”) provides a promising conceptual apparatus through which to justify and validate the International Criminal Court’s consideration of the emerging phenomenon of digital open-source information. Because of its process-based and inclusive qualities, Habermas’s communicative rationality is particularly apposite for the dynamic nature of digital open-source information and the heterogenous range of actors and institutions which have relevant experiences and skills to contribute to the generation of norms and determinations regarding its role before the Court. This is important, as the International Criminal Court’s procedural framework is largely silent on digital …
The Securities Law Disclosure Conundrum For Publicly Traded Litigation Finance Companies, Robert F. Weber
The Securities Law Disclosure Conundrum For Publicly Traded Litigation Finance Companies, Robert F. Weber
University of Michigan Journal of Law Reform
The Article examines a peculiar legal dilemma—implicating securities law, legal ethics, and evidence law—that arises when litigation finance companies (LFCs) become public companies. LFCs provide funding to litigants and law firms for prosecuting lawsuits in exchange for a share of the lawsuit recoveries. In recent years, LFCs have significantly altered the landscape of the civil justice system in common law jurisdictions. But their assets, which are just rights to proceeds from lawsuits, are notoriously opaque— who really can predict what a jury will do when it comes to liability and damages? When LFCs go public, this opacity frustrates public investors’ …
The Missing Algorithm: Safeguarding Brady Against The Rise Of Trade Secrecy In Policing, Deborah Won
The Missing Algorithm: Safeguarding Brady Against The Rise Of Trade Secrecy In Policing, Deborah Won
Michigan Law Review
Trade secrecy, a form of intellectual property protection, serves the important societal function of promoting innovation. But as police departments across the country increasingly rely on proprietary technologies like facial recognition and predictive policing tools, an uneasy tension between due process and trade secrecy has developed: to fulfill Brady’s constitutional promise of a fair trial, defendants must have access to the technologies accusing them, access that trade secrecy inhibits. Thus far, this tension is being resolved too far in favor of the trade secret holder—and at too great an expense to the defendant. The wrong balance has been struck.
This …
Recollections Refreshed And Recorded, Len Niehoff
Recollections Refreshed And Recorded, Len Niehoff
Articles
Witnesses forget stuff. When they do, the evidence rules give us two tools to help solve the problem. Lawyers call one "refreshed recollection" and the other "past recollection recorded," labels just similar enough to guarantee confusion. Nevertheless, these principles get at very different things and are well worth the effort necessary to distinguish and understand them. So how do we get there?
The Liar’S Mark: Character And Forfeiture In Federal Rule Of Evidence 609(A)(2), Jesse Schupack
The Liar’S Mark: Character And Forfeiture In Federal Rule Of Evidence 609(A)(2), Jesse Schupack
Michigan Law Review
Rule 609(a)(2) of the Federal Rules of Evidence is an outlier. The Rule mandates admission of impeaching evidence of a witness’s past convictions for crimes of dishonesty. It is the only place in the Rules where judges are denied their usual discretion to exclude evidence on the grounds that its admission would be more prejudicial than probative. This Note analyzes three assumptions underlying this unusual Rule: (1) that there is a coherently definable category of crimes of dishonesty, (2) that convictions for crimes of dishonesty are uniquely probative of a person’s character, and (3) that an assessment of moral character …
Recollections Refreshed And Recorded, Leonard M. Niehoff
Recollections Refreshed And Recorded, Leonard M. Niehoff
Articles
Witnesses forget stuff. When they do, the evidence rules give us two tools to help solve the problem. Lawyers call one "refreshed recollection" and the other "past recollection recorded," labels just similar enough to guarantee confusion. Nevertheless, these principles get at very different things and are well worth the effort necessary to distinguish and understand them.
So how do we get there?
Feigned Consensus: Usurping The Law In Shaken Baby Syndrome/Abusive Head Trauma Prosecutions, Keith A. Findley, D. Michael Risinger, Patrick D. Barnes, Julie A. Mack, David A. Moran, Barry C. Scheck, Thomas L. Bohan
Feigned Consensus: Usurping The Law In Shaken Baby Syndrome/Abusive Head Trauma Prosecutions, Keith A. Findley, D. Michael Risinger, Patrick D. Barnes, Julie A. Mack, David A. Moran, Barry C. Scheck, Thomas L. Bohan
Articles
Few medico-legal matters have generated as much controversy--both in the medical literature and in the courtroom--as Shaken Baby Syndrome (SBS), now known more broadly as Abusive Head Trauma (AHT). The controversies are of enormous significance in the law because child abuse pediatricians claim, on the basis of a few non-specific medical findings supported by a weak and methodologically flawed research base, to be able to “diagnose” child abuse, and thereby to provide all of the evidence necessary to satisfy all of the legal elements for criminal prosecution (or removal of children from their parents). It is a matter, therefore, in …
Incorporating Social Science Into Criminal Defense Practice, Eve Brensike Primus
Incorporating Social Science Into Criminal Defense Practice, Eve Brensike Primus
Articles
In recent decades, social scientists have created a treasure trove of empirical and sociological data that defenders can and should use to help their clients. Evidence rules, criminal law, and criminal procedure are filled with concepts informed by social science. When is evidence likely to unfairly prejudice a defendant in the eyes of a jury? Do police interact differently with members of minority populations and how should that inform concepts of reasonableness? How easy or difficult is it for people to identify individuals they see during high-stress criminal episodes? How effective are police interrogation tactics at getting at the truth …
Proof At The Salem Witch Trials, Leonard M. Niehoff
Proof At The Salem Witch Trials, Leonard M. Niehoff
Articles
As of the writing of this article, President Donald Trump's tweets have included roughly 400 references to "witch hunts." In a sense, this is unsurprising. The Salem witch trials have a special place in our national identity and vocabulary. Most Americans understand the reference, even if they know few of the historical details. And the phrase "witch hunt" serves as a useful shorthand for any frenzied chase after something that does not exist. The Salem trials also inspire a peculiar fascination: Perhaps no other site of deadly mass hysteria has become a major tourist destination.
Still, most practicing litigators probably …
New Juvenile Discovery Rules: Mandatory, Comprehensive, And Streamlined., Joshua B. Kay
New Juvenile Discovery Rules: Mandatory, Comprehensive, And Streamlined., Joshua B. Kay
Articles
The recently promulgated amendments and additions to the civil discovery rules include several changes affecting child protection and juvenile delinquency proceedings.1 The updates should make discovery in juvenile court matters more efficient by clarifying what is discoverable and requiring more timely exchange of information.
Preface To The Third Edition By The General Editor. Preface To The New Wigmore: A Treatise On Evidence: Selected Rules Of Limited Admissibility, Richard D. Friedman
Preface To The Third Edition By The General Editor. Preface To The New Wigmore: A Treatise On Evidence: Selected Rules Of Limited Admissibility, Richard D. Friedman
Other Publications
As General Editor of this treatise, my principal job is to recruit an excellent team of authors; no one in the modern day could hope to replicate John Henry Wigmore's one-man show. David Leonard, not only a superb scholar but also an exemplary person through and through, was one of the first people I asked, and to my delight he joined the project. He tackled his assignment with great ability and broad vision--and also graciousness in dealing with a slew of editorial comments from me. With a degree of efficiency and industry that can perhaps best be described in this …
General Editor's Introduction To The Treatise, Richard D. Friedman
General Editor's Introduction To The Treatise, Richard D. Friedman
Other Publications
There is a story -- recalled rather wistfully by an American in 1995, shortly after the thrashing of Young America by New Zealand's Black Magic -- that in 1851 Queen Victoria came to watch the first race for what became known as the America's Cup. “Who is leading?” she asked the signal master of the royal yacht. “The America,” came the reply. “Which boat is in second place?” the Queen wanted to know. The signal master replied: “There is no second, ma'am.'DD'
This story -- which, though perhaps apocryphal, has gained a life of its own -- captures perfectly the …
Making Rule 23 Ideal: Using A Multifactor Test To Evaluate The Admissibility Of Evidence At Class Certification, Cianan M. Lesley
Making Rule 23 Ideal: Using A Multifactor Test To Evaluate The Admissibility Of Evidence At Class Certification, Cianan M. Lesley
Michigan Law Review
Circuit courts are split on whether and to what extent the Daubert standard should apply at class certification. Potential plaintiffs believe that application of Daubert would make it nearly impossible to obtain class certification. For potential defendants, the application of the standard is an important way to ensure that the certification process is fair. This Note examines the incentives underlying the push to apply the Daubert standard at class certification and the benefits and drawbacks associated with that proposal. It proposes a solution that balances the concerns of both plaintiffs and defendants by focusing on three factors: the obstacles to …
Do You See What I See? Problems With Juror Bias In Viewing Body-Camera Video Evidence, Morgan A. Birck
Do You See What I See? Problems With Juror Bias In Viewing Body-Camera Video Evidence, Morgan A. Birck
Michigan Journal of Race and Law
In the wake of the Michael Brown shooting in Ferguson, Missouri, advocates and activists called for greater oversight and accountability for police. One of the measures called for and adopted in many jurisdictions was the implementation of body cameras in police departments. Many treated this implementation as a sign of change that police officers would be held accountable for the violence they perpetrate. This Note argues that although body-camera footage may be useful as one form of evidence in cases of police violence, lawyers and judges should be extremely careful about how it is presented to the jury. Namely, the …
Introduction, Shari S. Diamond, Richard O. Lempert
Introduction, Shari S. Diamond, Richard O. Lempert
Articles
Experts bedeviled the legal system long before seventeenth-century Salem, when the town's good citizens relied on youthful accusers and witchcraft experts to identify the devil's servants in their midst. As in Salem, claims of expertise have often been questioned and objections raised about the bases of expert knowledge. Expertise, then and now, did not have to be based on science; but the importance of science and the testimony of scientific experts has since medieval times been woven into the fabric of the English jurisprudence that Americans inherited. In cases as long ago as 1299 we find examples of courts seeking …
The Persistence Of The Probabilistic Perspective, Richard D. Friedman
The Persistence Of The Probabilistic Perspective, Richard D. Friedman
Articles
The publication now of an essay written by Craig Callen nearly a decade ago is cause for wistful celebration. Even while we are reminded how suddenly and prematurely Craig’s life ended, it is good to have one more academic contribution from him, especially because it is marked by the erudition, thoroughness, gentleness, and humor that characterized him.
Controlling The Jury-Teaching Function, Richard D. Friedman
Controlling The Jury-Teaching Function, Richard D. Friedman
Articles
When evidence with a scientific basis is offered, two fundamental questions arise. First, should it be admitted? Second, if so, how should it be assessed? There are numerous participants who might play a role in deciding these questions—the jury (on the second question only), the parties (through counsel), expert witnesses on each side, the trial court, the forces controlling the judicial system (which include, but are not limited to, the appellate courts), and the scientific establishment. In this Article, I will suggest that together, the last two—the forces controlling the judicial system and the scientific establishment—have a large role to …
Cabining Judicial Discretion Over Forensic Evidence With A New Special Relevance Rule, Emma F.E. Shoucair
Cabining Judicial Discretion Over Forensic Evidence With A New Special Relevance Rule, Emma F.E. Shoucair
Michigan Law Review
Modern forensic evidence suffers from a number of flaws, including insufficient scientific grounding, exaggerated testimony, lack of uniform best practices, and an inefficacious standard for admission that regularly allows judges to admit scientifically unsound evidence. This Note discusses these problems, lays out the current landscape of forensic science reform, and suggests the addition of a new special relevance rule to the Federal Rules of Evidence (and similar rules in state evidence codes). This proposed rule would cabin judicial discretion to admit non-DNA forensic evidence by barring prosecutorial introduction of such evidence in criminal trials absent a competing defense expert or …
Neither Limited Nor Simplified: A Proposal For Reform Of Illinois Supreme Court Rule 222(B), Michael S. Smith
Neither Limited Nor Simplified: A Proposal For Reform Of Illinois Supreme Court Rule 222(B), Michael S. Smith
Michigan Law Review
A limited and simplified discovery system should broaden access to courts, resolve disputes quickly, and expedite relief to injured parties. It should not incentivize procedural gamesmanship or increase the system’s complexity. Regrettably, Illinois’s “limited and simplified” discovery system does both. The initiation procedure for the simplified system, Rule 222(b), creates procedural traps and perverse incentives for both plaintiffs and defendants, and conflicting appellate interpretations of the Rule intensify the problem. This Note examines the flaws underlying the current simplified discovery scheme and argues for reform. It examines simplified discovery schemes in other states to recommend a new system for initiating …
The Miranda Case Fifty Years Later, Yale Kamisar
The Miranda Case Fifty Years Later, Yale Kamisar
Articles
A decade after the Supreme Court decided Miranda v. Arizona, Geoffrey Stone took a close look at the eleven decisions the Court had handed down “concerning the scope and application of Miranda.” As Stone observed, “[i]n ten of these cases, the Court interpreted Miranda so as not to exclude the challenged evidence.” In the eleventh case, the Court excluded the evidence on other grounds. Thus, Stone noted, ten years after the Court decided the case, “the Court ha[d] not held a single item of evidence inadmissible on the authority of Miranda.” Not a single item. To use …
Digging Into The Foundations Of Evidence Law, David H. Kaye
Digging Into The Foundations Of Evidence Law, David H. Kaye
Michigan Law Review
Review of The Psychological Foundations of Evidence Law by Michael J. Saks and Barbara A. Spellman.
Short Fall Arguments In Court: A Probabilistic Analysis, Maria Cuellar
Short Fall Arguments In Court: A Probabilistic Analysis, Maria Cuellar
University of Michigan Journal of Law Reform
A discussion about how statistical arguments are used in court, specifically in cases of Abusive Head Trauma in which the defendant has claimed that an accidental short fall, and not shaking or child abuse, has caused the child’s injuries.
Bias, Subjectivity, And Wrongful Conviction, Katherine Judson
Bias, Subjectivity, And Wrongful Conviction, Katherine Judson
University of Michigan Journal of Law Reform
A talk about bias, subjectivity and wrongful convictions.
Police Interrogations, False Confessions, And Alleged Child Abuse Cases, Richard Leo
Police Interrogations, False Confessions, And Alleged Child Abuse Cases, Richard Leo
University of Michigan Journal of Law Reform
A discussion on false confession cases in the United States.
Child Abuse--Nonaccidental Injury (Nai) And Abusive Head Trauma (Aht)--Medical Imaging: Issues And Controversies In The Era Of Evidence-Based Medicine, Patrick Barnes
University of Michigan Journal of Law Reform
A look at nonaccidental injury and abusive head trauma in children with a focus on Shaken Baby Syndrome.
Evidence Of Child Abuse: Inferring The Causes Of Effects, Stephen E. Fienberg
Evidence Of Child Abuse: Inferring The Causes Of Effects, Stephen E. Fienberg
University of Michigan Journal of Law Reform
A statistician's take on evidence of child abuse.
Child Abuse Evidence: New Perspectives From Law, Medicine, Psychology & Statistics: Introduction, Anna Kirkland, David Moran, Angela K. Perone
Child Abuse Evidence: New Perspectives From Law, Medicine, Psychology & Statistics: Introduction, Anna Kirkland, David Moran, Angela K. Perone
University of Michigan Journal of Law Reform
Introduction to the University of Michigan Journal of Law Reform Symposium, Child Abuse Evidence: New Perspectives from Law, Medicine, Psychology & Statistics.
Child Abuse Evidence: New Perspectives From Law, Medicine, Psychology & Statistics: Question And Answer Session, Kimberly Thomas, Keith B. Maddox, Samuel R. Sommers, Patrick Barnes, Richard Leo
Child Abuse Evidence: New Perspectives From Law, Medicine, Psychology & Statistics: Question And Answer Session, Kimberly Thomas, Keith B. Maddox, Samuel R. Sommers, Patrick Barnes, Richard Leo
University of Michigan Journal of Law Reform
A transcript of the Question and Answer session during the University of Michigan Journal of Law Reform Symposium, Child Abuse Evidence: New Perspectives from Law, Medicine, Psychology & Statistics.
Keynote Address: Can A Sign Or Occult Finding Predict A Causal Relationship?: How To Reason About Possible Child Abuse, Peter Aspelin
Keynote Address: Can A Sign Or Occult Finding Predict A Causal Relationship?: How To Reason About Possible Child Abuse, Peter Aspelin
University of Michigan Journal of Law Reform
Keynote Address for the University of Michigan Journal of Law Reform Symposium, Child Abuse Evidence: New Perspectives from Law, Medicine, Psychology & Statistics.