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Full-Text Articles in Law
Jack Weinstein And The Missing Pieces Of The Hearsay Puzzle, Richard D. Friedman
Jack Weinstein And The Missing Pieces Of The Hearsay Puzzle, Richard D. Friedman
Articles
For the first three quarters of the twentieth century, the Wigmore treatise was the dominant force in organizing, setting out, and explaining the American law of evidence. Since then, the first two of those roles have been taken over in large part by the Federal Rules of Evidence (Rules). And the third has been performed most notably by the Weinstein treatise. Judge Jack Weinstein was present at the creation of the Rules and before. Though he first made his name in Civil Procedure, while still a young man he joined two of the stalwarts of evidence law, Edmund Morgan and …
Who Said The Crawford Revolution Would Be Easy?, Richard D. Friedman
Who Said The Crawford Revolution Would Be Easy?, Richard D. Friedman
Articles
One of the central protections of our system of criminal justice is the right of the accused in all criminal prosecutions "to be confronted with the witnesses against him." It provides assurance that prosecution witnesses will give their testimony in the way demanded for centuries by Anglo-American courts-in the presence of the accused, subject to cross-examination- rather than in any other way. Witnesses may not, for example, testify by speaking privately to governmental agents in a police station or in their living rooms. Since shortly after it was adopted, however, the confrontation right became obscured by the ascendance of a …
Does An Accused Forfeit The Confrontation Right By Murdering A Witness, Absent A Purpose To Render Her Unavailable?, Richard D. Friedman
Does An Accused Forfeit The Confrontation Right By Murdering A Witness, Absent A Purpose To Render Her Unavailable?, Richard D. Friedman
Articles
If an accused murdered a witness, should he be deemed to have forfeited the right under the Sixth Amendment "to be confronted with" the witness, absent proof that the accused committed the murder for the purpose of rendering her unavailable as a witness?
Holmes V. South Carolina Upholds Trial By Jury, Samuel R. Gross
Holmes V. South Carolina Upholds Trial By Jury, Samuel R. Gross
Articles
Bobby Lee Holmes was convicted of a brutal rape-murder and sentenced to death. The only evidence that connected him to the crime was forensic: a palm print, and blood and fiber evidence. (Biological samples taken from the victim for two rape kits were compromised and yielded no identifiable evidence.) Holmes claimed that the state's forensic evidence was planted and mishandled, and that the rape and murder were committed by another man, Jimmy McCaw White. At a pretrial hearing three witnesses testified that they saw White near the victim's house at about the time of the crime, and four others testified …
Confrontation After Crawford, Richard D. Friedman
Confrontation After Crawford, Richard D. Friedman
Articles
The following edit excerpt, drawn from "The Confrontation Clause Re-Rooted and Transformed," 2003-04 Cato Supreme Court Review 439 (2004), by Law School Professor Richard D. Friedman, discusses the impact, effects, and questions generated by the U.S. Supreme Court's ruling in Crawford v. Washington last year that a defendant is entitled to confront and cross-examine any testimonial statement presented against him. In Crawford, the defendant, charged with attacking another man with a knife, contested the trial court's admission of a tape-recorded statement his wife made to police without giving him the opportunity to cross-examine. The tiral court admitted the statement, and …
Face To Face With The Right Of Confrontation, Richard D. Friedman
Face To Face With The Right Of Confrontation, Richard D. Friedman
Other Publications
This article is an edited excerpt from the amicus curiae brief filed in Crawford v. Washington, heard before the United States Supreme Court on November 10, 2003. Prof. Friedman wrote the brief for the Court.
Adjusting To Crawford: High Court Decision Restores Confrontation Clause Protection, Richard D. Friedman
Adjusting To Crawford: High Court Decision Restores Confrontation Clause Protection, Richard D. Friedman
Articles
In Crawford v. Washington, 124 S. Ct. 1354 (2004), the U.S. Supreme Court radically transformed its doctrine governing the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. Craitiord is a very positive development, restoring to its central position one of the basic protections of the common law system of criminal justice. But the decision leaves many open questions, and all lawyers involved in the criminal justice process will have to adjust to the new regime that it creates. This article outlines and summarizes the problems with the law as it stood before Crait/brd. It then explains the theoretical …
The Confrontation Clause Re-Rooted And Transformed, Richard D. Friedman
The Confrontation Clause Re-Rooted And Transformed, Richard D. Friedman
Articles
For several centuries, prosecution witnesses in criminal cases have given their testimony under oath, face to face with the accused, and subject to cross-examination at trial. The Confrontation Clause of the Sixth Amendment to the U.S. Constitution guarantees the procedure, providing that ‘‘[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witness against him.’’ In recent decades, however, judicial protection of the right has been lax, because the U.S. Supreme Court has tolerated admission of outof- court statements against the accused, without cross-examination, if the statements are deemed ‘‘reliable’’ or ‘‘trustworthy.’’ …
Face To Face': Rediscovering The Right To Confront Prosecution Witnesses, Richard D. Friedman
Face To Face': Rediscovering The Right To Confront Prosecution Witnesses, Richard D. Friedman
Articles
The Sixth Amendment to the United States Constitution protects the right of an accused 'to confront the witnesses against him'. The United States Supreme Court has treated this Confrontation Clause as a broad but rather easily rebuttable rule against using hearsay on behalf of a criminal prosecution; with respect to most hearsay, the exclusionary rule is overcome if the court is persuaded that the statement is sufficiently reliable, and the court can reach that conclusion if the statement fits within a 'firmly rooted' hearsay exception. This article argues that this framework should be abandoned. The clause should not be regarded …
Expert Information And Expert Evidence: A Preliminary Taxonomy, Samuel R. Gross, Jennifer L. Mnookin
Expert Information And Expert Evidence: A Preliminary Taxonomy, Samuel R. Gross, Jennifer L. Mnookin
Articles
Federal Rule of Evidence 702 speaks in very general terms. It governs every situation in which "scientific, technical or other specialized knowledge will assist the trier of fact," and provides that, in that situation, "a witness qualified as an expert by knowledge, skill, experience, or education, may testify thereto in the form of an opinion or otherwise . . . .' In 2000, following a trio of Supreme Court cases interpreting Rule 702, the Rule was amended to include a third requirement, in addition to the helpfulness of the testimony and the qualifications of the witness: reliability. Under Rule 702 …
Sometimes What Everybody Thinks They Know Is True, Richard D. Friedman, Roger C. Park
Sometimes What Everybody Thinks They Know Is True, Richard D. Friedman, Roger C. Park
Articles
This essay responds to D. Davis and W. C. Follette (2002), who question the value of motive evidence in murder cases. They argue that the evidence that a husband had extramartial affairs, that he heavily insured his wife's life, or that he battered his wife is ordinarily of infinitesimal probative value. We disagree. To be sure, it would be foolish to predict solely on the basis of such evidence that a husband will murder his wife. However, when this kind of evidence is cobmined with other evidence in a realistic murder case, the evidence can be quite probative. We analyze …
Confrontation: The Search For Basic Principles, Richard D. Friedman
Confrontation: The Search For Basic Principles, Richard D. Friedman
Articles
The Sixth Amendment to the Constitution guarantees the accused in a criminal prosecution the right "to be confronted with the Witnesses against him."' The Confrontation Clause clearly applies to those witnesses who testify against the accused at trial. Moreover, it is clear enough that confrontation ordinarily includes the accused's right to have those witnesses brought "face-toface," in the time-honored phrase, when they testify.2 But confrontation is much more than this "face-to-face" right. It also comprehends the right to have witnesses give their testimony under oath and to subject them to crossexamination. 3 Indeed, the Supreme Court has treated the accused's …
Make-Believe: The Rules Excluding Evidence Of Character And Liability Insurance (Symposium: Truth And Its Rivals: Evidence Reform And The Goals Of Evidence Law), Samuel R. Gross
Articles
Article IV of the Federal Rules of Evidence includes several rules that prohibit the use of specified types of information as evidence of particular propositions. Subsequent remedial measures are inadmissible to prove negligence (but admissible to show ownership, control, et cetera),' settlement offers are inadmissible to prove liability (but admissible to show bias or prejudice, or for other purposes),2 and so forth. Any exclusion of relevant evidence involves some distortion of reality in the sense that the picture presented to the trier of fact includes less information than the available total. That will be true whether the evidence is kept …
Dealing With Evidentiary Deficiency, Richard D. Friedman
Dealing With Evidentiary Deficiency, Richard D. Friedman
Articles
Lack of information distorts litigation. Claims or defenses that a party might prove easily, or that might even be undisputed, in a world of perfect information can be difficult or impossible to prove in the real world of imperfect information. Some information deficiencies are inevitable, at least in the sense that we could not eliminate them without incurring undue social costs. In some cases, however, a person's conduct may have caused the deficiency. More generally, the person may have had available a reasonable alternative course of conduct that would have eliminated, or at least mitigated, the deficiency. Ariel Porat and …
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 …
Confrontation And The Utility Of Rules, Richard D. Friedman, Ronald J. Allen, Alex Stein, Roger C. Park, Margaret A. Berger, Nancy J. King, John Jackson, Eleanor Swift, Craig R. Callen, Eileen A. Scallen
Confrontation And The Utility Of Rules, Richard D. Friedman, Ronald J. Allen, Alex Stein, Roger C. Park, Margaret A. Berger, Nancy J. King, John Jackson, Eleanor Swift, Craig R. Callen, Eileen A. Scallen
Articles
There is a good reason why evidence scholars continue to be fascinated and perplexed, and some courts continue at least to be perplexed, by the types of evidence that tend to be lumped together misleadingly under the headings nonassertive conduct or implied assertions. Evidence of this sort highlights a paradox of the prevailing law of hearsay. I believe that this paradox cannot be resolved without fundamentally transforming the structure of that law. Thus, while I agree - within the current framework - with many of the insights so ably stated in this Symposium, I think evidence scholars must devote their …
Character Impeachment Evidence: The Asymmetrical Interaction Between Personality And Situation, Richard D. Friedman
Character Impeachment Evidence: The Asymmetrical Interaction Between Personality And Situation, Richard D. Friedman
Articles
In Part I of this Comment, I present a short version of my argument against the admissibility of character impeachment evidence of criminal defendants, showing how the key elements ofthis argument are present in Professor Uviller's own Article. In Part II, I suggest that, notwithstanding Professor Uviller's comments to the contrary, an asymmetrical result-never admitting character evidence to impeach criminal defendants but admitting such evidence in some circumstances to impeach other witnesses- is perfectly reasonable. Finally, in Part III, I contend that Professor Uviller's interesting judicial surveys support the solution I have proposed for the problem of character impeachment evidence.
Toward A Partial Economic, Game-Theoretic Analysis Of Hearsay, Richard D. Friedman
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 …
Character Impeachment Evidence: Psycho-Bayesian (!?) Analysis And A Proposed Overhaul, Richard D. Friedman
Character Impeachment Evidence: Psycho-Bayesian (!?) Analysis And A Proposed Overhaul, Richard D. Friedman
Articles
Typically, arguments for restricting character impeachment evidence are based in part on the premise that prior crimes, at least violent crimes, generally indicate little about a person's veracity. The argument advanced here against character impeachment of criminal defendants does not rely on that premise; in fact, it accepts the premise that prior antisocial behavior, even not involving dishonesty, often does indicate a good deal about a person's general truthtelling inclination. A careful analysis of the situation of the accused on the witness stand-rather than an easy assumption about irrelevance-leads to this Article's broad conclusion that character impeachment evidence of criminal …
Improving The Procedure For Resolving Hearsay Issues, Richard D. Friedman
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.