Law Commons^™

Tragedies Of The Cultural Commons, Etienne C. Toussaint

Faculty Publications

In the United States, Black cultural expressions of democratic life that operate within specific historical-local contexts, yet reflect a shared set of sociocultural mores, have been historically crowded out of the law and policymaking process. Instead of democratic cultural discourse occurring within an open and neutral marketplace of ideas, the discursive production and consumption of democratic culture in American politics has been rivalrous. Such rivalry too often enables dominant White supremacist cultural beliefs, values, and practices to exercise their hegemony upon law’s production and meaning. The result has been tragedy for politically disempowered and socioeconomically excluded communities.

This Article uses …

Contents May Have Shifted: Disentangling The Best Evidence Rule From The Rule Against Hearsay, Colin Miller

Faculty Publications

Vince brings a battery action against Dan based upon an encounter between the two men. Dan claims that he was acting in self-defense and wants to testify that Ed sent him the following text message minutes before the encounter: “Vince is coming to see you to collect on that drug debt that you owe him.” Dan could argue that he is offering the statement not to prove the truth of the matter asserted but to prove its “effect on the listener,” making it nonhearsay Specifically, Dan could claim that he is offering the statement to prove that, regardless of whether …

Bullshit!: Why The Retroactive Application Of Federal Rules Of Evidence 413-414 And State Counterparts Violates The Ex Post Facto Clause, Colin Miller

Faculty Publications

In Calder v. Bull, the Supreme Court recognized four types of laws that cannot be applied retroactively consistent with the Ex Post Facto Clause, including “[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” But, in its opinion in Carmell v. Texas, the Court determined that ordinary rules of evidence do not violate the Clause because they (1) are “evenhanded, in the sense that they may benefit either the State or the defendant in a …

No Expertise Required: How Washington D.C. Has Erred In Expanding Its Expert Testimony Requirement, Colin Miller

Faculty Publications

No abstract provided.

We Have A "Purpose" Requirement If We Can Keep It, James F. Flanagan

Faculty Publications

The Supreme Court in Giles v. California held that a defendant forfeits the right to confront a witness only when he purposefully keeps the witness away. Many see the "purpose" requirement as an unjustified bar to the use of victim hearsay, particularly in domestic violence prosecutions where victims often refuse to appear. The author defends Giles as a correct reading of history, and independently justified by longstanding precedent that constitutional trial rights can only be lost by intentional manipulation of the judicial process. Moreover, the purpose requirement does not prevent prosecutions or convictions because the definition of testimonial hearsay is …

Impeachable Offenses?: Why Civil Parties In Quasi-Criminal Cases Should Be Treated Like Criminal Defendants Under The Felony Impeachment Rule, Colin Miller

Faculty Publications

No abstract provided.

When Do Facts Persuade? Some Thoughts On The Market For “Empirical Legal Studies”, Elizabeth Chambliss

Faculty Publications

No abstract provided.

Forfeiture By Wrongdoing And Those Who Acquiesce In Witness Intimidation: A Reach Exceeding Its Grasp And Other Problems With Federal Rule Of Evidence 804(B)(6), James F. Flanagan

Faculty Publications

This article is the first comprehensive and critical analysis of the new exception to the hearsay rule that permits prosecutors to admit hearsay statements of absent witnesses when the defendant causes their unavailability at trial. The article develops the problems with the rule's overbroad language, its potential to admit unreliable hearsay and its relationship to the Confrontation Clause. These issues are of increasing interest to lawyers, judges and justices now that it is a federal rule and been adopted by ten states.

The first section is a comprehensive statement of the rule as now applied. The exception is traced from …