Law Commons^™

Evidence - Curative Admissibility, Theodore R. Vogt

Michigan Law Review

If one party be permitted, for any reason, to introduce inadmissible evidence, may his opponent counter with like evidence to offset any· advantage the former may have obtained? Or, as Dean Wigmore puts it: "Does one inadmissibility justify or excuse another?"

The problem is again brought to notice by the decision of the Iowa Supreme Court in the recent case of Maasdam v. Jefferson County Farmers' Mutual Insurance Association. In that case the lower court was reversed because it refused to permit the defendant to introduce evidence as to the market value of the insured articles after plaintiff had …

The Hearsay Rule, Edmund M. Morgan

Washington Law Review

Any attempt to define a legal concept makes advisable an inquiry into its origin and evolution. If it be a substantive law concept, the social purpose that is designed to serve—whether the avoidance of evils or the creation or furtherance of positive benefits—must be considered. If it be a concept of procedural law, the functions it is, or is thought to be, designed to perform in the process of reaching the factual and legal bases for satisfactory determination of disputes between litigants must be examined. It is proposed, therefore, first to look briefly at the causes which brought the hearsay …

Taxation-Proceeding Before United States Board Of Tax Appeals -Validity Of Subpoena Duces Tecum - Unreasonable Search And Seizure, Royal E. Thompson

Michigan Law Review

In a proceeding for judicial process to compel defendant to obey a subpoena duces tecum issued by the United States Board of Tax Appeals, defendant asserted that the documents called for were irrelevant to the issue involved, and that the subpoena was a violation of the Fourth Amendment to the Federal Constitution. Held, a witness is not entitled to resist a subpoena for mere incompetency or irrelevancy. To question admissibility, the papers must be so manifestly irrelevant as to make it plain that it is a mere "fishing expedition." One paragraph of the subpoena was declared invalid, as lacking …

Evidence--Hearsay--Res Gestae Exception--Necessity That Declarant Have Knowledge--Qualifications Of Ordinary Witness, V. V. C.

West Virginia Law Review

No abstract provided.

Evidence -- Competency Of Wife To Testify Against Husband--Rules Of Evidence In Federal Court, Philip A. Hart

Michigan Law Review

The defendant was convicted of transporting a female in interstate commerce for immoral purposes. Over the defendant's objection the trial court permitted testimony against him to be given by the defendant's wife. This ruling he assigned as error but held a wife is competent as a witness against her husband. Yoder v. United States, (C. C. A. 10th, 1935) 80 F. (2d) 665.

Evidence - Statutory Presumptions In Criminal Cases - Constitutionality - Due Process, Malcolm L. Denise

Michigan Law Review

Defendant admitted killing deceased with unlicensed pistol. The trial court instructed the jury pursuant to a statute which provided that in the trial of a person charged with committing or attempting to commit a felony against the person of another while armed with any firearm capable of being concealed upon the person, without having a license or permit to carry such firearm, the fact that he was so armed should be prima facie evidence of his intent to commit such felony. Upon objection that the statute was unconstitutional as depriving defendant of due process of law, the court held that …

Witnesses - Instruction As To Credibility Of Police Officers And Paid Detectives, Theodore R. Vogt

Michigan Law Review

Defendant was convicted of violating the liquor laws. He complained of the trial court's refusal to instruct the jury that greater care should be used in weighing the evidence of police officers than that of other witnesses. Held, such an instruction was properly refused because the witnesses were regular members of the city police force. McCartney v. State, 129 Neb. 716, 262 N. W. 679 (1935).

Workmen's Compensation-Burden Of Proof Of Cause Of Accident- Presumptions, Michigan Law Review

Michigan Law Review

Decedent, who was an employee of respondent, was found dead in respondent's store with a rope around his neck and legs. The doctor found that death was caused by asphyxiation by hanging. The deputy commissioner held that petitioner had not sustained the burden of proving that decedent met with an "accident arising out of and in the course of" employment, and that the mere finding of the body of an employee on the premises of an employer will not alone raise a presumption that there was an "accident arising out of and in the course of" the employment. Dietz v. …

Evidence-Alienation Of Affections-Wife's Testimony As To Statements Made To Her By Alienated Husband Concerning Defendant

Michigan Law Review

In a suit for alienation of husband's affections, plaintiff testified as to certain statements made by her husband in the absence of the defendant. These statement purported to be repetitions of statements made by the defendant to plaintiff's husband. Defendant objected to the admission of this testimony on the ground that it was hearsay. The court held that the testimony was admissible, not to prove the truth of the facts, words, or conduct embodied in the statements and chargeable to the defendant, but to show the husband's state of mind toward the plaintiff. Richards v. Lorleberg, (App. D. C. …

Verbal Acts And Spontaneous Declarations, Robert E. Ireton

Kentucky Law Journal

No abstract provided.

Criminal Law--Evidence--Admissibility Of Evidence Of Trailing By Bloodhounds, George T. Skinner

Kentucky Law Journal

No abstract provided.

Evidence - Witnesses - Privilege Of Reporter Not To Testify Concerning Confidential Communications

Michigan Law Review

Defendant, a newspaper reporter, refused to reveal to a grand jury which was investigating gambling and the lottery racket the names and addresses of persons and places mentioned in certain newspaper articles he had written on that subject, on the ground that the information was given to him confidentially and its source was therefore privileged. He was committed for contempt, and sued out a writ of habeas corpus. Held, writ dismissed. Mooney v. Sheriff, 269 N. Y. 291, 199 N. E. 415 (1936).

Book Review. Underhill, H. C., A Treatise On The Law Of Criminal Evidence, Jerome Hall

Articles by Maurer Faculty

No abstract provided.

Administrative Law-Operation Of Federal Statute Creating Presumption Against Suicide In Compensation Cases

Michigan Law Review

A carpenter making repairs nearby, hearing a sharp report followed by groans, found plaintiff's husband lying upon the floor. He died without recovering consciousness from a bullet wound through the breast. The pistol to which the fatal bullet was traced lay in a partly closed drawer which was spattered with blood as was the counter near by. The ejected shell lay some feet away in the position where it would be found had the pistol been discharged directly in front of deceased's breast. There were powder burns on his clothes. Contradictory evidence of deceased's mental state was adduced toward the …

Evidence-Privilege-Husband And Wife-Attorney And Client

Michigan Law Review

A husband and wife are involved in marital difficulties. Together they consult an attorney in an effort to compromise their dispute, or failing in that, to arrange a property settlement prior to separation or divorce. Such a joint consultation may be for any one of a variety of purposes. In a later action, for divorce or separate maintenance for example, the question arises whether either the attorney or one of the spouses can disclose words spoken by the other spouse in the consultation. For instance, can the attorney or the husband disclose the wife's admission of adultery?

Powers-Exercise Of Power By Residuary Clause In Will-Admissibility Of Evidence To Show Donee's Intent

Michigan Law Review

Testator was the donee of general powers of appointment conferred upon him by his mother's deed and will. By the ninth clause of this will he gave to two named persons "all the rest and residue of my personal property . . . to be divided equitably among the members of said two families as they may in their uncontrolled discretion decide." Held, this did not exercise the powers of appointment. Evidence was admitted to show the testator's knowledge of the nature and scope of his property and of the fact that his estate was being diminished by the …

Search And Seizure - Burden Of Proving Illegality Of Search For Purpose Of Suppressing Evidence

Michigan Law Review

Defendant was charged with unlawful possession of five mink skins during the closed season. His motion made before trial to suppress the evidence because of unlawful seizure was denied. He was convicted, and now appeals assigning the refusal to suppress the evidence as error. Held, judgment affirmed. The court said, "Upon a motion to suppress evidence because of an unlawful seizure, the burden of establishing that his rights have been transgressed is upon the party asserting such transgression." State v. Drew, 217 Wis. 216, 257 N. W. 681 (1934).

Evidence -Admissibility Of Statements Of Fact Made During Negotiation For Compromise, John E. Tracy

Michigan Law Review

At present, the various jurisdictions hold with comparative uniformity that while offers to settle a dispute are not admissible in evidence, statements of independent fact made during such compromise negotiation are admissible. The routes of logic by which the courts arrive at this similarity in result are marked by some fundamental differences, as will be shown later, but the result is the same under any theory. The question therefore presents itself, whether the distinction made by the courts between the admissibility of offers to compromise and statements of fact made during compromise negotiations can be justified under a system of …

The Importance Of Scientific Analysis Of Evidence In The Prosecution Of Crime, E. P. Coffey

Indiana Law Journal

Address by E. P. Coffey, Director of Federal Technical Laboratory of the Department of Justice, Washington, D. C., before the Indiana State Bar Association, September 6, 1935.

Practice And Procedure - Reservation Of Decision On Motion For Directed Verdict As Means Of Avoiding Unnecessary New Trials

Michigan Law Review

What may be done to remedy the situation if a jury brings in a verdict in favor of a party against whom a verdict should have been directed? This question becomes pertinent in view of the fact that judges, while hard pressed by counsel in the heat of trial, frequently wrongfully deny a motion for directed verdict and submit the case to the jury. One obvious remedy is the granting of a new trial by the trial judge, or by an appellate court after reversal. But this practice has proved eminently unsatisfactory, for it submits the aggrieved party to the …

A Judgment Of Conviction As Evidence In A Subsequent Civil Action, Charles Wise

West Virginia Law Review

No abstract provided.

The Parol Evidence Rule In West Virginia--When Is A Writing Complete, William F. Wunschel

West Virginia Law Review

No abstract provided.

Evidence-Use Of Photostatic Copies In Proving Books Of Account-Model Statute

Michigan Law Review

Private records, books of account, and documentary evidence in general present an evidenciary problem in litigation if one, in proving his case, must use the records and books of account of a third person outside the jurisdiction of the forum. A subpoena duces tecum is limited to the boundaries of the state of the forum. Written evidence in the hands of a third person outside the state where the litigation is being pursued can only be obtained by permission of the owner, and even if the owner does permit the transportation of records and books of account necessary to the …

Evidence - Admissibility Of Parol Evidence Showing That Contract In Writing Was Executed Only As Sham, John E. Tracy

Michigan Law Review

An individual is sued on a written contract or, suing on an alleged oral agreement, is confronted by a written contract which he has signed. He offers testimony that, although he executed the instrument which bears his name freely and with full knowledge of its contents, he is not to be held liable thereon because the agreement between the parties was that it should never be legally enforceable, the sole purpose of its execution having been to deceive some third person into a belief that the parties to the instrument had contracted together as in the instrument set forth.

Criminal Law And Procedure-Admissibility Of Evidence-Rule As To Determination Of Preliminary Question Of Fact

Michigan Law Review

Following his arrest for murder, the defendant was held thirty-six hours before being arraigned for the purpose of obtaining a confession. On trial the defendant objected to introduction of the confession on the ground that it was involuntary, having been induced by wrongful detention and beating by the police. Held, failure, after due request, to instruct the jury that unnecessary delay in arraignment is prohibited by law and that such delay might be considered in determining whether or not the confession was voluntary was reversible error. People v. Alex, (N. Y. 1934) 192 N. E. 289.

Evidence-Privileged Communications-Husband And Wife

Indiana Law Journal

No abstract provided.

Evidence - Federal Practice - Competency Of Wife To Testify In Defense Of Husband In Criminal Case

Michigan Law Review

The defendant, being tried in a federal district court on an indictment for conspiracy to violate the prohibition law, offered his wife as a witness in his behalf. The district court, following what it concluded to be the established rule of the federal courts, refused to allow her to testify. The circuit court of appeals affirmed this ruling without discussing the point. Certiorari was granted by the Supreme Court, limited to the question as to what law was applicable in determining the competency of the wife. Held, that the federal courts have the power to determine for themselves the …

Practice And Procedure - Direction Of Verdict - Scintilla Rule

Michigan Law Review

In an action to recover from the defendant gas company damage to the plaintiff's building caused by a gas explosion resulting from a defective pipe, the plaintiff's only evidence to prove the defendant's duty to repair it was that the pipe was used exclusively for the conveyance of the defendant's gas, and that the meters to which the pipe was connected were owned and controlled by the defendant. The trial court, by virtue of the scintilla rule, submitted the case to the jury which rendered a verdict for the plaintiff. Held, the scintilla rule no longer prevails in Ohio, …

Habitual Criminal Act-Constitutionality-Evidence

Indiana Law Journal

No abstract provided.

Witnesses-Cross Examination-Impeachment

Indiana Law Journal

No abstract provided.