Law Commons^™

Incoming Drug Calls And Performative Words: They're Not Just Talking About It, Baron Parke!, Christopher B. Mueller

Publications

No abstract provided.

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 …

Experts As Hearsay Conduits: Confrontation Abuses In Opinion Testimony, Ronald L. Carlson

Scholarly Works

The dispute over whether litigants may use experts to run unexamined hearsay into the trial record is a microcosm of a larger debate. The larger question is whether judicial review of expert testimony should be passive, or whether the expert witness process should be marked by active judicial policing. Does the plethora of expert opinions presently being offered in modern trials merit special scrutiny by the courts?

Some scholars urge that courts must accommodate experts. Proponents of this view favor few challenges to the unrestricted rendition of opinions by an expert, whether the expert is real or self-proclaimed. Under this …

Understanding Responses To Hearsay: An Extension Of The Comparative Analysis, Dale A. Nance

Faculty Publications

Response to Professor Damaska's presentation at the Hearsay Reform Conference, Minneapolis, Minnesota, 1992.

Toward A Partial Economic, Game-Theoretic Analysis Of Hearsay, Richard D. Friedman

Articles

In this Article, I offer a fundamentally different and nondoctrinaire way of approaching hearsay questions. In brief, I take the view that the resolution of a hearsay dispute, when the declarant is not on the stand, is essentially a matter of deciding who should bear the burden of producing the declarant, or more precisely, how courts should allocate that burden. Adopting a simple procedural improvement, concerning the examination of the declarant if she is produced as a witness, allows the court to allocate the burden optimally. If live testimony by the declarant would be more probative than prejudicial, then most …

Infinite Strands, Infinitesimally Thin: Storytelling, Bayesianism, Hearsay And Other Evidence, Richard D. Friedman

Articles

David Schum has long been one of our keenest commentators on questions of inference and proof. He has been particularly interested in, and illuminating on, the subject of "cascaded," or multi-step, inference.' This is a subject of importance to lawyers, because most evidence at trial can be analyzed in terms of cascaded inference. Usually, the proposition that the fact finder2 might immediately infer from the evidence is not itself an element of a crime, claim, or defense. Most often, an extra inference would be required to jump from that proposition to a proposition that the law deems material. Thus, inference …

Rationalizing Hearsay: A Proposal For A Best Evidence Hearsay Rule, Michael L. Seigel

UF Law Faculty Publications

The enterprise of this article is the theoretical construction of an optimal solution to the hearsay conundrum. Its first task is the elucidation of the premises upon which a rational hearsay rule can be built. Thus, the article starts by exploring the relationship between hearsay doctrine and the foundation of all rational truth-seeking enterprises, inductive logic. The article continues with an examination of the relationship between hearsay evidence and trial dynamics, for a workable rule must take into account the actual functioning of our adversary system.'" This two-pronged analysis leads to the proposal of a "best evidence hearsay rule."

Evidence, David A. Schlueter

Faculty Articles

This article addresses some of the more significant evidence cases decided by the Fifth Circuit during the survey period.' Before turning to the cases themselves, it is important to note at the outset that like other federal courts, the Fifth Circuit is generally not inclined to reverse a case on an evidentiary error. It should not be surprising then that in most of the cases which follow, the court implicitly deferred to the decision of the trial judge in deciding whether a certain piece of evidence was admissible.

Improving The Procedure For Resolving Hearsay Issues, Richard D. Friedman

Articles

In this article, I propose two changes in the way hearsay issues are usually resolved. First, in some circumstances courts should divide the burdens of producing the declarant-for example, by imposing the physical burden on the proponent and the financial burden on the opponent. Second, no matter how the declarant is produced as a witness, she should ordinarily testify as part of the proponent's case, subject to cross-examination by the opponent. If the declarant does become a witness, the admissibility of her out-of-court statement should not be resolved until her current testimony about the underlying events is received.

Hearsay: Part Iv, Paul C. Giannelli

Faculty Publications

No abstract provided.

Hearsay: Part I, Paul C. Giannelli

Faculty Publications

No abstract provided.

Supreme Court, Plain Meaning, And The Changed Rules Of Evidence, Randolph N. Jonakait

Articles & Chapters

No abstract provided.

Evidence, Fifth Circuit Symposium, David A. Schlueter

Faculty Articles

This article reviews decisions by the United States Court of Appeals for the Fifth Circuit on evidence issues and concludes that if an attorney has any hopes of obtaining appellate relief on an evidentiary issue, it is essential that the issues be presented concisely and completely to the trial court. The appellate courts will not reverse an evidentiary ruling of a trial court, even if the trial court has erred. This deference to the trial court is in recognition of the hundreds of rulings on evidence that the trial court must conduct within the course of a trial. In order …

Hearsay: Part Ii, Paul C. Giannelli

Faculty Publications

No abstract provided.

Hearsay: Part Iii, Paul C. Giannelli

Faculty Publications

No abstract provided.

Should Tennessee Bury The Dead Man Statute As Arkansas Has, W. Dent Gitchel

Faculty Scholarship

No abstract provided.

Prior Inconsistent Statements, H. Patrick Furman

Publications

No abstract provided.

Implied Hearsay: Defusing The Battle Line Between Pragmatism And Theory, Ronald J. Bacigal

Law Faculty Publications

A return to the emotionally neutral fundamentals of the hearsay rule presents the clash between pragmatists and academicians in a setting which is free of the value laden considerations surrounding child abuse cases. This clash arises at the most fundamental level, that of defining hearsay. Many academicians favor a definition of hearsay as evidence whose reliability depends upon the veracity of someone not subject to cross-examination. Pragmatists (particularly trial lawyers) often find this formulation awkward and prefer a concise definition of hearsay as an out-of-court statement offered for the truth of the contents. The choice of definitions can make a …

Implied Hearsay, Ronald J. Bacigal

Law Faculty Publications

Lawyers sometimes exaggerate the significance of a single sentence or footnote in a court opinion. At other times a single phrase may turn out to be a time bomb which subsequently explodes with far reaching result:i. Court watchers thus spend considerable time trying to discern what is implied within the literal language of a court's opinion. It is no small irony that one of the latest implications in a Virginia Supreme Court decision relates to the implications contained within an out-of-court statement that cannot be literally defined as hearsay. A modification of the hearsay rule, or at least the hearsay …

Compulsory Process, Right To, Peter K. Westen

Book Chapters

The first state to adopt a constitution following the Declaration of Independence (New Jersey, 1776) guaranteed all criminal defendants the same ‘‘privileges of witnesses’’ as their prosecutors. Fifteen years later, in enumerating the constitutional rights of accused persons, the framers of the federal Bill of Rights bifurcated what New Jersey called the ‘‘privileges of witnesses’’ into two distinct but related rights: the Sixth Amendment right of the accused ‘‘to be confronted with the witnesses against him,’’ and his companion Sixth Amendment right to ‘‘compulsory process for obtaining witnesses in his favor.’’ The distinction between witnesses ‘‘against’’ the accused and witnesses …

The Subversion Of The Hearsay Rule: The Residual Hearsay Exceptions, Circumstantial Guarantees Of Trustworthiness, And Grand Jury Testimony, Randolph N. Jonakait

Articles & Chapters

Under the Federal Rules of Evidence, hearsay is generally prohibited, being admitted only when it falls within a limited class of specific hearsay exceptions. Two general hearsay exceptions were, however, engrafted onto the list of specific ones to allow the courts to confront new and unforseen hearsay problem Lower courts have interpreted these "residual" or "catchall" exceptions differently.

This Article analyzes judicial interpretations of the residual exceptions in cases considering the admissibility of grandjury testimony. The author initially discusses the traditional hearsay approach and reviews the legislative history of the residual exceptions. He then analyzes Fourth Circuit cases considering the …

Kentucky Law Survey: Evidence, Richard H. Underwood

Law Faculty Scholarly Articles

Kentucky courts faced a number of significant issues in evidence law during the Survey period. Several decisions dealt with character evidence and problems arising from the admission of evidence of prior criminal acts of the accused, either as substantive evidence or for impeachment. This Survey will highlight these cases and to a lesser degree discuss cases on hearsay admissions, opinion, the Kentucky Dead Man Statute and privilege, which also were decided during the Survey period.

The Silent Revolution, Faust Rossi

Cornell Law Faculty Publications

No abstract provided.

Kentucky Law Survey: Evidence, Robert G. Lawson

Law Faculty Scholarly Articles

This article is a survey of Kentucky law on evidence. Almost as often as not the government's case in criminal litigation will contain evidence indicating that the accused committed some offense other than the one for which he is being tried. Consequently a set of rules to control the use of evidence of "other crimes" has evolved. In most jurisdictions it consists of a single rule that prohibits the use of such evidence against a defendant along with a group of exceptions that virtually engulfs the prohibition against admissibility. Kentucky law is so structured. As all lawyers who engage in …

A Review Of The Proposed Michigan Rules Of Evidence, James K. Robinson, John W. Reed

Articles

On January 6, 1977, the Supreme Court of Michigan entered an order stating that it is considering adoption of the proposed Michigan Rules of Evidence which were submitted to the Court by the committee which it appointed in March 1975. The Court has solicited comments from interested persons regarding the proposed rules. A copy of the Supreme Court's order is published in this issue of the Bar Journal. The proposed rules are published in the January 26, 1977, issue of North Western Reporter, Second Series (Michigan Edition). The purpose of this article is to review in general the background and …

Bad News And Good News, John W. Reed

Articles

I have been asked to visit with you about some of my current interests in the evidence field, in which I teach. When you invite an academic lawyer to speak at your meeting, you obviously expect of him something other than the latest hot tips on trial strategy and tactics, something other than a speech entitled "Reflections on My Last Eleven Victories in Court." Others can do that for you, probably at lunch - or, even better, at cocktails with the successes more impressive and the defeats more forgivable under the influence of an ounce or two of alcohol.

Bad News And Good News, John W. Reed

Other Publications

Law schools do one thing superbly well: they teach the intellectual skills of reasoning, of distinction drawing, of deductive and inductive logic, of anlysis and synthesis. These are heavily verbal skills, at least in the context in which lawyers employ them, and students are tested for their mastery of these skills by written examinations. If one does well, he or she is placed on the law review, where these particular skills are honed even further.

Kentucky Law Survey: Evidence, Robert G. Lawson

Law Faculty Scholarly Articles

This article provides a survey of Kentucky case law on evidence. The author discusses: the “Cotton” doctrine, hearsay and the reported testimony exception, learned treatises, and the best evidence rule.

A Look At Florida's Proposed Code Of Evidence, Charles W. Ehrhardt

Scholarly Publications

The law of evidence had been codified in three states, California, New Jersey and Kansas, prior to the United States Supreme Court's promulgation of the Proposed Federal Rules of Evidence. The submission of the rules to the Congress, and their approval, as amended, by the House of Representatives served as the catalyst for renewed interest in evidence codification. Three states have recently adopted comprehensive Rules of Evidence that closely parallel the Proposed Federal Rules, and at least four other states, including Florida, have drafted or are actively considering the adoption of such a codification. During the 1974 session of the …

Evidence Code: Hearsay, Charles W. Ehrhardt

Scholarly Publications

No abstract provided.