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Articles 1 - 17 of 17
Full-Text Articles in Law
Blatantly Biased: Expanding Pena-Rodriguez To Cases Of Bias Against Sexual Orientation, Religion, And Sex, Tressa Bussio
Blatantly Biased: Expanding Pena-Rodriguez To Cases Of Bias Against Sexual Orientation, Religion, And Sex, Tressa Bussio
William & Mary Journal of Race, Gender, and Social Justice
No abstract provided.
The (Mis)Application Of Rule 404(B) Heuristics, Dora W. Klein
The (Mis)Application Of Rule 404(B) Heuristics, Dora W. Klein
Faculty Articles
In all of the federal circuit courts of appeals, application of Rule 404(b) of the Federal Rules of Evidence has been distorted by judicially-created "tests" that, while intended to assist trial courts in properly admitting or excluding evidence, do not actually test for the kind of evidence prohibited by this rule. Rule 404(b) prohibits evidence of "crimes, wrongs, or other acts" if the purpose for admitting the evidence is to prove action in accordance with a character trait. This evidence is commonly referred to as "propensity" evidence, or "once a drug dealer, always a drug dealer" evidence.
This Article examines …
"Sweet Childish Days": Using Developmental Psychology Research In Evaluating The Admissibility Of Out-Of-Court Statements By Young Children, Lynn Mclain
Maine Law Review
Young children are frequently precluded from testifying at trial on the grounds of incompetency because they cannot answer questions about abstract concepts regarding “truth” and “lies.” In this situation, should the child’s earlier, out-of-court statements disclosing the abuse and identifying the abuser also be inadmissible? The stakes are huge. If young children cannot testify, and their out-of-court statements are precluded, they simply become safe prey, unprotected by the judicial system. The pivotal question becomes, are there procedures that can ensure fairness both to children and to their alleged abusers? This article argues that a child’s testimonial incapacity at trial ought …
Exemplary And Exceptional Confusion Under The Federal Rules Of Evidence, Dora W. Klein
Exemplary And Exceptional Confusion Under The Federal Rules Of Evidence, Dora W. Klein
Faculty Articles
This Article proposes that the final provisions of Rule 407 and 411, which provide a list of examples of permitted purposes for which a court may admit evidence, are asking for trouble--specifically, the trouble that courts will interpret the list not as examples, but as a specially enumerated, exhaustive list of exceptions.
Face-To-Face With Facial Recognition Evidence: Admissibility Under The Post-Crawford Confrontation Clause, Joseph Clarke Celentino
Face-To-Face With Facial Recognition Evidence: Admissibility Under The Post-Crawford Confrontation Clause, Joseph Clarke Celentino
Michigan Law Review
In Crawford v. Washington, the Supreme Court announced a major change in Confrontation Clause doctrine, abandoning a decades-old framework that focused on the common law principles of hearsay analysis: necessity and reliability. The new doctrine, grounded in an originalist interpretation of the Sixth Amendment, requires courts to determine whether a particular statement is testimonial. But the Court has struggled to present a coherent definition of the term testimonial. In its subsequent decisions, the Court illustrated that its new Confrontation Clause doctrine could be used to bar forensic evidence, including laboratory test results, if the government failed to produce the …
The Propriety Of Jury Questioning: A Remedy For Perceived Harmless Error, Laurie Forbes Neff
The Propriety Of Jury Questioning: A Remedy For Perceived Harmless Error, Laurie Forbes Neff
Pepperdine Law Review
No abstract provided.
Bias Impeachment And The Proposed Federal Rules Of Evidence, John R. Schmertz, Karen Czapanskiy
Bias Impeachment And The Proposed Federal Rules Of Evidence, John R. Schmertz, Karen Czapanskiy
Karen Czapanskiy
In the fall of 1971 the Supreme Court's Advisory Committee presented to the Court the Proposed Federal Rules of Evidence. The Committee failed to include a rule on impeachment by bias, interest, or prejudice. In failing to include such a rule, the Committee bypassed the opportunity to reconcile a conflict over both the content and methodology of this form of impeachment. The authors, in an attempt to show the need for a rule dealing with bias impeachment, analyze the present decisional conflict in this area. They conclude by proposing a rule designed to add some uniformity to this highly persuasive …
Silence Should Be Golden: A Case Against The Use Of A Defendant's Post-Arrest, Pre-Miranda Silence As Evidence Of Guilt, Marty Skrapka
Silence Should Be Golden: A Case Against The Use Of A Defendant's Post-Arrest, Pre-Miranda Silence As Evidence Of Guilt, Marty Skrapka
Oklahoma Law Review
No abstract provided.
Reconceiving The Right To Present Witnesses, Richard A. Nagareda
Reconceiving The Right To Present Witnesses, Richard A. Nagareda
Michigan Law Review
Modem American law is, in a sense, a system of compartments. For understandable curricular reasons, legal education sharply distinguishes the law of evidence from both constitutional law and criminal procedure. In fact, the lines of demarcation between these three subjects extend well beyond law school to the organization of the leading treatises and case headnotes to which practicing lawyers routinely refer in their trade. Many of the most interesting questions in the law, however, do not rest squarely within a single compartment; instead, they concern the content and legitimacy of the lines of demarcation themselves. This article explores a significant, …
Confrontation And The Definition Of Chutzpa, Richard D. Friedman
Confrontation And The Definition Of Chutzpa, Richard D. Friedman
Articles
You may know the standard illustration of chutzpa - the man who kills both his parents and then begs the sentencing court to have mercy on an orphan. In this article, I discuss a case of chutzpa that is nearly as outlandish - the criminal defendant who, having rendered his victim unavailable to testify, contends that evidence of the victim's statement should not be admitted against him because to do so would violate his right to confront her. I contend that in a case like this the defendant should be deemed to have forfeited the confrontation right. On the same …
Windfall Analysis: A New Look At Uncharged Conduct Evidence, David J. Achtenberg
Windfall Analysis: A New Look At Uncharged Conduct Evidence, David J. Achtenberg
Faculty Works
In criminal cases, the prosecution frequently offers evidence of uncharged conduct (usually prior criminal activity), claiming that it will tend to prove the mens rea element of the charged offense. When such an offer is made, Rule 404(b) of the Federal Rules of Evidence (FRE) creates a dilemma for the trial court. On the one hand, the rule forbids the introduction of uncharged conduct evidence (UCE) for one purpose: proof of a person's character in order to show that the person acted in conformity with that character trait on a particular occasion. On the other hand, it permits the introduction …
Prior Statements Of A Witness: A Nettlesome Corner Of The Hearsay Thicket, Richard D. Friedman
Prior Statements Of A Witness: A Nettlesome Corner Of The Hearsay Thicket, Richard D. Friedman
Articles
In Tome v United States, for the fifth time in eight years, the Supreme Court decided a case presenting the problem of how a child's allegations of sexual abuse should be presented in court. Often the child who charges that an adult abused her is unable to testify at trial, or at least unable to testify effectively under standard procedures. These cases therefore raise intriguing and difficult questions related to the rule against hearsay and to an accused's right under the Sixth Amendment to confront the witnesses against him. One would hardly guess that, however, from the rather arid debate …
Evidence: Indiana Moves Toward Adoption Of The Federal Rules, Ivan E. Bodensteiner
Evidence: Indiana Moves Toward Adoption Of The Federal Rules, Ivan E. Bodensteiner
Law Faculty Publications
No abstract provided.
Inculpatory Statements Against Penal Interest: State V. Parris Goes Too Far, James E. Beaver, Cheryl Mccleary
Inculpatory Statements Against Penal Interest: State V. Parris Goes Too Far, James E. Beaver, Cheryl Mccleary
Seattle University Law Review
This article first demonstrates that courts historically did not trust penal interest statements in general, and that courts were extremely suspicious of any statements by a third party that implicated the defendant. Since Washington adopted Federal Rule of Evidence 804(b)(3) verbatim, this article then analyzes the legislative history of the rule. The article concludes that the legislative history favored exclusion of inculpatory statements but that Congress failed to codify the exclusion because of unrelated problems. Finally, the article discusses the confrontation clause problems that arise when inculpatory statements are allowed into evidence. This article argues that the Parris holding should …
Perils Of The Rulemaking Process: The Development, Application, And Unconstitutionality Of Rule 804(B)(3)'S Penal Interest Exception, Peter W. Tague
Perils Of The Rulemaking Process: The Development, Application, And Unconstitutionality Of Rule 804(B)(3)'S Penal Interest Exception, Peter W. Tague
Georgetown Law Faculty Publications and Other Works
As the culmination of a decade of rulemaking, in 1975 Congress enacted the Federal Rules of Evidence, which include in rule 804(b)(3) an exception to the hearsay rule that allows federal courts to admit statements against penal interest. Having reviewed previously unpublished memoranda and nonpublic tape recordings of the deliberations of the Advisory and Standing Committees to the Judicial Conference and the Special Subcommittee on Reform of Federal Criminal Laws of the House Judiciary Committee, Professor Tague explores the development of rule 804(b)(3), one of the more controversial rules that emerged from that rulemaking process. After analyzing rule 804(b)(3) and …
An Evidence Code: The American Experience, Paul F. Rothstein
An Evidence Code: The American Experience, Paul F. Rothstein
Georgetown Law Faculty Publications and Other Works
Professor Paul Rothstien's opening address at the Conference on Current Trends in Evidence, Dalhousie University, 26th November 1976.
Rothstein discusses the American Evidence Code, the American experience with it, and compares it to a proposed Code that Canada is considering.
Bias Impeachment And The Proposed Federal Rules Of Evidence, John R. Schmertz, Karen Czapanskiy
Bias Impeachment And The Proposed Federal Rules Of Evidence, John R. Schmertz, Karen Czapanskiy
Faculty Scholarship
In the fall of 1971 the Supreme Court's Advisory Committee presented to the Court the Proposed Federal Rules of Evidence. The Committee failed to include a rule on impeachment by bias, interest, or prejudice. In failing to include such a rule, the Committee bypassed the opportunity to reconcile a conflict over both the content and methodology of this form of impeachment. The authors, in an attempt to show the need for a rule dealing with bias impeachment, analyze the present decisional conflict in this area. They conclude by proposing a rule designed to add some uniformity to this highly persuasive …