Law Commons^™

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 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.

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 …

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 …

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 …

Expert Testimony, Mason Ladd

Vanderbilt Law Review

The opinion rule of exclusion and the use of expert testimony, like much of the law of evidence, developed out of the adversary system of trial. Not until the Eighteenth Century was the opinion rule established, and although the courts had used witnesses with special knowledge to assist them in obtaining needed information, expert witnesses were not used in the modern sense.' There were also inquisitorial hearings in which the inquisitors were all persons with specialized experience, but this was not similar to the use of experts today as the inquisitors determined the issue upon the basis of their own …

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 …

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.

Some Developments In The Law Concerning Confessions, William Wicker

Vanderbilt Law Review

Our system of administering criminal laws is predicated upon accusatorial rather than inquisitorial proceedings. To maintain inviolate the safeguards consonant with this principle, we have placed upon the State an ever-increasing burden in proving the commission of the crime charged. That this burden has begun to weigh heavily, and perhaps onerously, becomes unmistakably evident from a study of recent developments in the law of confessions.

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 …

Declarations Against Interest, Edmund M. Morgan

Vanderbilt Law Review

"Declarations of a person, whether verbal or written, as to facts relevant to the matter of inquiry, are admissible in evidence, even as between third parties, where it appears: (1) That the declarant is dead; (2) that the declaration was against his pecuniary or proprietary interest; (3) that he had competent knowledge of the fact declared; (4) that he had no probable motive to falsify the fact declared." This, Mr. Justice Walker of North Carolina in 1906 stated to be the established rule.' What is its origin; for what reason is the evidence held to be admissible; to what extent …

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 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 …

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 …

Privileged Communications--Some Recent Developments, Lloyd S. Adams Jr., Mary E. Polk

Vanderbilt Law Review

It is the purpose of this Note to collect and discuss some of the newer decisions construing and applying the rules of evidence as to certain privileged communications, with a view toward indicating possible trends and developments or limitations, if any, in this field of the law of evidence. It is limited primarily to communications between husband and wife, attorney and client, physician and patient, and priest and penitent, with a short discussion of the so-called "novel privileges." The assumption is made that the reader is familiar with generally accepted definitions of the various privileges, as well as traditional limitations.' …

Federal Civil Procedure Rule 43(A): A Freak Among The Rules, Thomas F. Green Jr.

Vanderbilt Law Review

Rule 43(a) is an anomaly in the Federal Rules of Civil Procedure.'Attorney General Cummings, the chief sponsor of the enabling act, apparently did not contemplate the inclusion of any rule dealing with the admissibility of evidence. The American Bar Association, which sponsored similar bills before Congress for years, laid much of the groundwork but abandoned the project prior to successful completion. A report of the Association's committee charged with the duty of "pushing" the then current version of the bill stated that the court rules were not to deal with evidence. The broadest expression in the bill which was enacted …

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 …

Recent Cases, Law Review Staff

Vanderbilt Law Review

CONSTITUTIONAL LAW--RACIAL RESTRICTIVE COVENANTS--ALLOWANCE OF DAMAGES FOR BREACH

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CORPORATIONS--PARENT AND SUBSIDIARY--SUBSIDIARY AS INSTRUMENTALITY OF PARENT WHEN USED TO CARRY ON UNFAIR TRADE PRACTICES

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EVIDENCE--ADMISSIBILITY OF CONFESSION--SCOPE OF REVIEW OF COURT-MARTIAL BY COURT OF MILITARY APPEALS

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EVIDENCE--CONFLICT OF LAWS--APPLICATION OF DOCTRINE OF RES IPSA LOQUITUR

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EVIDENCE--DUE PROCESS--USE IN STATE PROSECUTION OF EVIDENCE FORCIBLY OBTAINED BY STOMACH PUMP

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EVIDENCE--ENTRIES IN THE REGULAR COURSE OF BUSINESS--TEST FOR EXTENT OF ADMISSIBILITY UNDER FEDERAL JUDICIAL CODE

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EVIDENCE--HEARSAY--ADOPTION OF LIBERAL ADMISSION RULES OF ADMINISTRATIVE TRIBUNALS IN ANTITRUST COURT ACTION

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EVIDENCE--IMPEACHMENT OF ONE'S OWN WITNESS--USE OF PRIOR INCONSISTENT STATEMENTS

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