Law Commons^™

Cross-Examination, Lloyd Paul Stryker

Buffalo Law Review

No abstract provided.

Evidence-Presumptions-Plaintiff's Res Ipsa Loquitur Against Defendants Presumption Of Due Care, Bernard A. Petrie S.Ed.

Michigan Law Review

Plaintiff sued for injuries resulting when an automobile which defendant was driving and in which plaintiff was sleeping left the highway. There was evidence that defendant suffered retrograde amnesia and could not recall the circumstances of the accident. The court, instructing on res ipsa loquitur for plaintiff, told the jury that it might infer negligence from the fact that the automobile inexplicably left the highway. The court also instructed that, if the jury believed that defendant suffered a loss of memory, defendant was presumed to have exercised due care. Verdict for defendant. Plaintiff contended that instruction on the presumption of …

Evidence-Confessions-Mcnabb Rule Not Applicable Under The Fourteenth Amendment, Harry T. Baumann S.Ed.

Michigan Law Review

Defendant, detained on a vagrancy charge in Texas, voluntarily confessed to a homicide committed in Nebraska. Upon his return to the latter state, the defendant repeated his confession and was subsequently arraigned, having been in custody for twenty-five days. The confessions were introduced at the trial and a conviction of manslaughter followed. Defendant, failing to gain a reversal in the state court, sought review by the United States Supreme Court, charging that a failure to arraign the defendant promptly in breach of local statutes was a want of due process under the Fourteenth Amendment. On certiorari, held, affirmed, Justices …

Evidence-Scientific Tests For Lntoxication-Admissibility, James B. Wilson S. Ed., John J. Edman S. Ed.

Michigan Law Review

It is the purpose of this comment to examine the admissibility and probative value of the tests available for determining the amount of alcohol in the human system.

Privileged Communications Between Psychiatrist And Patient, Manfred S. Guttmacher, Henry Weihofen

Indiana Law Journal

No abstract provided.

Protection Against Illegal Meansof Obtaining Evidence, Raymond W. Haman, James H. Flippen, Jr.

Washington and Lee Law Review

No abstract provided.

Speculative Evidence And The Administrative Process

Indiana Law Journal

No abstract provided.

Constitutional Law-Evidence-Use Of Illegally Obtained Evidence And Due Process Of Law, Allan Neef S.Ed.

Michigan Law Review

It is fundamental, even in a federal system, that a state be free to regulate the procedure of its courts in accordance with its own conceptions of proper policy, subject only to constitutional limitations safeguarding individuals from arbitrary action by the state. In the United States this constitutional protection is two-fold-both state and federal constitutions acting as limitations on state action. As a result, a problem arises as to what extent the federal courts can, in the enforcement of federal constitutional limitations, override state criminal procedures and the policies underlying them. It is clear that the states have, by virtue …

The Admissibility Of Evidence Procured By Illegal Search: Scotland, Zelman Cowen

Vanderbilt Law Review

The question whether illegality in the means of procuring evidence is a bar to its admissibility has received little consideration in the English authorities. There is little authority in the reports, while most text-writers do not deal with the problem at all. Halsbury, who considers it briefly, states a rule that if property or documents have been wrongfully seized, the seizures will be excused if they are in fact material evidence of a crime committed by any person." The principal authority cited in support is Elias v. Pasmore. Archbold states a similar rule, but Phipson, who twice cites Elias v. …

Particularizing Standards Of Conduct In Negligence Trials, James Fleming Jr., David K. Sigerson

Vanderbilt Law Review

The general principles to be applied by court or jury in deciding whether conduct is reasonable have been examined elsewhere.' The problem to be dealt with here concerns the specific application of the law's standard of conduct to concrete cases. How, that is, may it be shown what a party or his opponent should have done, in the way of taking precautions or the like, in the situation presented by the evidence? What kinds of proof or argument are available to make this showing? When must such a showing be made by proof? Is the jury or court to determine …

Evidence-Examination Of Witnesses-Use Of Pardoned Conviction To Attack Credibility Of Accused As Witness, Bernard A. Petrie S.Ed.

Michigan Law Review

To attack the credibility of defendant charged with larceny of an automobile, the prosecution cross-examined him as to a prior conviction based upon unauthorized use of an automobile. Defendant had received a full pardon pursuant to a Presidential proclamation of general amnesty for federal offenders with one year or more of honorable World War II service. On appeal after conviction, held, affirmed, one judge dissenting. A full pardon does not deprive the state of the right to use a prior conviction in attacking the credibility of the accused as witness. Richards v. United States, (D.C. Cir. 1951) 192 …

The Special Demurrer As A Discovery Device In Georgia, Edward E. Dorsey

Mercer Law Review

Under Georgia procedural rules, the special demurrer has two dissimilar functions, the first being to compel the striking or withdrawal of extraneous matter, and the second being to compel the demurree to plead, or to plead more fully, the facts relied upon to support his cause of action or defense, or the theory upon which it is based.

The diversity of these two functions, coupled with the further rules which prohibit direct appeals from nisi prius rulings on special demurrer, but which permit reversal of an eptire proceeding where such a ruling is erroneous,' have for many years contributed to …

Evidence-Res Ipsa Loquitur-Evidence Of Specific Negligence As Affecting Reliance Upon General Negligence, Frank Bowen, Jr. S.Ed.

Michigan Law Review

Plaintiff sued in New York to recover for injuries sustained in a crash of an airplane owned and operated by the defendant. Plaintiff's pleading and proof relied upon general negligence and res ipsa loquitur, but after evidence of specific negligence was elicited upon cross examination of defendant's witness, plaintiff also used such specific negligence in argument to the jury. The defendant excepted to the jury instruction which gave the plaintiff the benefit of the res ipsa loquitur doctrine. Verdict was for the plaintiff. On appeal, held, the plaintiff was entitled to the benefit of the res ipsa loquitur doctrine, …

Constitutional Law—Admission Of Evidence Obtained By Use Of Stomach Pump Violative Of Due Process, Joseph A. Taddeo

Buffalo Law Review

Rochin v. People of California, 72 S. Ct. 205 (1952).

Evidence—Wire Recordings Of Confidential Communications Between Husband And Wife Held Inadmissable, Gerard J. O’Brien

Buffalo Law Review

Hunter v. Hunter, 169 Pa. Super. 498, 83 A (2d) 401 (1951).

Self-Crimination Privilege: "Links In The Chain", Judson F. Falknor

Vanderbilt Law Review

"According to their [the prosecution's] statement, a witness can never refuse to answer any question, unless that answer, unconnected with other testimony, would be sufficient to convict him of a crime. This would be rendering the rule almost perfectly worthless. Many links frequently compose that chain of testimony' which is necessary to convict any individual of a crime. It appears to the Court to be the true sense of the rule that no witness is compellable to furnish any one of them against himself...What testimony may be possessed, or is attainable, against any individual, the Court can never know. It …

The "Fourth Degree": The Lie Detector, Jack Streeter, Melvin M. Belli

Vanderbilt Law Review

Some police departments substitute for evidence the "third degree." It is illegal. Law courts could now supplement oral evidence with a "fourth degree"--the lie detector. It should be legal, when properly operated, when its results are properly introduced and weighed.

Any symposium on evidence ought to include some observations on cross-examination. A 'consideration of the instruments employable in the art of cross-examination should, of course, include a discussion of the instrument, the accepted use of which, some lawyers, and certainly the average layman, believe would make cross-examination unnecessary as to credibility.

The best legally available "lie detector" presently is a …

Requisite Proof Of Basis For Expert Opinion, John M. Maguire, Jefferson E. Hahesy

Vanderbilt Law Review

This article is about the factual foundation of expert opinion evidence. It is tentative, not dogmatic or even confident. It proposes for further consideration by others our effort at more precise shaping of doctrines which have become familiar but remained vague. These doctrines have to do with the degree of stringency which is and ought to be exercised in applying ordinary rules of evidential competency to proof of propositions of fact underlying or related to formulation and announcement of experts' opinions in litigated cases.

The Scope Of Summary Judgment Under The Federal Rules, Henry N. Williams

Vanderbilt Law Review

The Federal Rules of Civil Procedure provide that, under appropriate circumstances, either the plaintiff or the defendant may seek and obtain a summary judgment.' The detailed requirements of Rule 56 have been discussed elsewhere, and they will not be discussed herein other than as they aid in delineating the area covered by summary judgments. In determining the scope of Rule 56, the purpose of the rules as a whole must be considered as well as the effect of the discovery procedures of the rules. In addition the summary judgment rule must be explicitly distinguished from a motion for judgment on …

Real Proof I, Jerome Michael, Mortimer J. Adler

Vanderbilt Law Review

The trial of an issue of fact is an epistemic, a logical, and a legal affair. In its epistemic aspect it can be viewed as a process of learning: By means of the trial the jury acquires the knowledge which it must have in order to decide the issue. The analysis of this aspect of a trial is primarily concerned with the different kinds of knowledge and with the various ways in which knowledge is obtained. In its logical aspect the trial of an issue of fact can be viewed as a process of teaching: By their proof and disproof …

Constitutional Law-Fourth Amendment-Exclusion Of Contraband Evidence Obtained By An Illegal Search On Premises Not Owned By Defendant, Edgar A. Strause

Michigan Law Review

The defendant was in the unlawful possession of narcotics. Having been given a key by his two aunts to their hotel room with authority to use the room at will, defendant stored the narcotics there without the knowledge of the occupants. A federal officer entered the hotel room, searched the room, and seized the narcotics during the absence of the occupants, without a search warrant. The defendant was arrested the following day and claimed ownership of the seized narcotics. He was convicted in the District Court of the District of Columbia for violation of federal law, the court refusing to …

Evidence-Privilege-Confidential Communications Between Husband And Wife, James I. Huston

Michigan Law Review

Husband sued for divorce alleging that wife drank excessively and humiliated him in public by her conduct, and that she continually made false and profane accusations designed to make his life unbearable. As proof of the latter charge, plaintiff was allowed to introduce in evidence a wire recording of conversations between plaintiff and defendant in their bedroom. Plaintiff's son by a previous marriage had, by prearrangement with plaintiff, installed in their bedroom a microphone connected to a wire-recorder in the son's adjoining bedroom, with which recordings were made of four separate conversations between plaintiff and defendant. The recordings substantiated plaintiff's …

Some Comments On The Relation Of Pre-Trial To The Rules Of Evidence, Harry D. Nims

Vanderbilt Law Review

The term "Pre-Trial" is of such recent origin that it is found in few, if any, dictionaries. It seems to be used to describe conferences or hearings attended by counsel for litigants (and by litigants themselves, if they so desire) and a judge of the court to discuss the simplification of the issues to be tried, the sufficiency of the pleadings, the possibility of obtaining admissions and stipulations of facts and documents to avoid unnecessary proof, the limiting of the number of expert witnesses, and any other measures which may aid in the disposition of the case when it comes …

Spontaneous Declarations (Res Gestae), Thomas P. Hardman

West Virginia Law Review

In a comparatively recent case in which counsel contended that certain extrajudicial assertions were inadmissible on the ground that they were not "a part of the res gestae," Judge Learned Hand dismissed the argument with the observation that res gestae "is a phrase which has been accountable for so much confusion that it had best be denied any place whatever in legal terminology." In somewhat similar vein the supreme court of California has said that "Definitions of res gestae are as numerous as prescriptions for the cure of rheumatism and generally about as useful." The appropriateness of these trenchant observations …

Admissibility Of Evidence Of Similar Offenses In Criminal Prosecutions In West Virginia, R. E. M.

West Virginia Law Review

No abstract provided.

A Symposium On Evidence -- Foreward, Orie L. Phillips

Vanderbilt Law Review

This is the fifth in a series of symposia published by the Vanderbilt Law Review on important legal subjects. This symposium covers a number of selected subjects in the field of Evidence. The privilege accorded me of writing this foreword affords me the opportunity to express my sincere appreciation of this excellent symposium and the confident hope that it will be most helpful to students, judges and practicing lawyers.

The term "Evidence" imports the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved.' It embraces the rules of law …

Evidence As A Problem In Communicating, Edward W. Cleary

Vanderbilt Law Review

The law of evidence is sagging to the point of collapse under its own weight. It has cracked visibly in the administrative sphere, and what saves it in the courts is probably a rather general ignorance of what is actually between the covers of Wigmore, plus the fact that lawyers and judges often seem to be downright ashamed to push the rules to their logical extremes. Evidence in action is, happily perhaps, somewhat different from evidence in books. Nevertheless, among people who are thoughtful about such things there is general agreement that something ought to be done.

Judicial Notice, Charles T. Mccormick

Vanderbilt Law Review

The traditional Anglo-American system of proof demands rigorous guaranties of accuracy, with its requirement of witnesses having first-hand knowledge, its mistrust of hearsay, however reliable, except for narrow exceptions, and its insistence upon original documents and their authentication by witnesses. These requirements have their roots in the contentious or adversary system, where the party and not the judge is responsible for gathering and presenting facts, and in the method of jury trial. But this strict though scientific insistence upon proving everything at first hand is, like jury-trial itself, enormously costly in time, energy and money. The principal effect of the …

Presumptions In A One-Rule World, Alfred L. Gausewitz

Vanderbilt Law Review

In the 54 years since Thayer wrote the first excerpt, an enormous amount of excellent scholarship has been devoted to presumptions. Yet confusion persists. It may not be presumptuous, therefore, to suggest some causes of confusion more radical than those mentioned by Professor Morgan in the second excerpt quoted above. This is not to say that he has not stated them. In fact he has painstakingly pointed out the fundamental difficulties in a number of articles written both before and after he became draftsman of the Model Code. As draftsman he has had to carry a burden of expounding it …

Logical Or Legal Relevancy -- A Conflict In Theory, Herman L. Trautman

Vanderbilt Law Review

Is there a rational theory which serves as a basis for determining the admissibility of circumstantial evidence?

Circumstantial evidence involves the offer in evidence of Fact A for the purpose of having the trier of fact (jury, judge, administrative agency or arbitrator) first believe that Fact A is true, and from it infer the existence or truth of Fact B. Fact B may be one of the ultimate questions of factor propositions raised by the pleadings, or it may be a more remote fact or proposition which when established, again forms the basis for a further inference in the chain …