Law Commons^™

First, Do No Harm: The Use Of Covert Video Surveillance To Detect Munchausen Syndrome By Proxy- An Unethical Means Of "Preventing" Child Abuse, Michael T. Flannery

University of Michigan Journal of Law Reform

Since it was first identified in 1977, Munchausen Syndrome by Proxy has uniquely affected the way in which the medical and legal communities deal with the issue of child abuse. Inherent in the medical response to the disease are issues of suspicion, investigation, identification, confrontation, and, of course, the health of an innocent child. Given the deceptive dynamics of the disease, however, denial and disbelief naturally overshadow every action taken by medical professionals in pursuing these issues. Fortunately, as medical knowledge about the dynamics of the disease continues to develop, medical professionals become more willing and better able to identify …

The Big Chill: Third-Party Documents And The Reporter's Privilege, Bradley S. Miller

University of Michigan Journal of Law Reform

In the wake of Philip Morris' multi-billion dollar libel suit against ABC, a Virginia court has sanctioned a new method of discovery that promises to have an unsettling impact on the reporter's privilege to protect confidential sources. In Philip Morris Cos. v. American Broadcasting Cos., the tobacco giant moved to compel disclosure of the identity of a former R.J. Reynolds manager who suggested on ABC's Day One news program that tobacco companies add nicotine to the cigarettes they manufacture. At the same time, Philip Morris issued subpoenas for the expense records of two ABC employees who wrote and produced …

The Admission Of Criminal Histories At Trial, Department Of Justice Office Of Legal Policy

University of Michigan Journal of Law Reform

As part of a continuing series of studies on impediments to the search for truth in criminal investigation and adjudication, the Office of Legal Policy has carried out a review of the law governing the admission of the criminal records of defendants and other persons at trial. The results of this review are set out in this Report.

The Search And Seizure Exclusionary Rule, Department Of Justice Office Of Legal Policy

University of Michigan Journal of Law Reform

The fourth amendment guarantees the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." This guaranty is not self-executing, however, and the courts and criminal justice systems in this country have long been bedeviled by questions concerning appropriate methods of ensuring its observance. As a result of the Supreme Court's decisions in Weeks v. United States and Mapp v. Ohio, the method principally relied upon today is a judicially created rule excluding from criminal trials evidence obtained in violation of the defendant's fourth amendment rights.

The search and seizure …

Rape Shield Laws--Is It Time For Reinforcement?, Catherine L. Kello

University of Michigan Journal of Law Reform

This Note takes a critical look at civil suits arising from allegations of rape, particularly from the perspective of how these actions run counter to the spirit of rape reform and rape shield legislation. The analysis begins with a brief history of the Rape Shield Law and its intended purposes. Part II then utilizes two cases to outline the current dilemma posed by civil suits that are filed during a pending criminal sexual conduct prosecution. After presenting these cases, Part III considers whether a legislative remedy is required and determines that it is. Part IV then proposes a Model Statute. …

The Admissibility Of Prior Silence To Impeach The Testimony Of Criminal Defendants, Rex A. Sharp

University of Michigan Journal of Law Reform

This Note focuses on whether a defendant who was called as a witness at the prior, severed trial of a codefendant and refused to testify by invoking the fifth amendment can subsequently be impeached by this silence at his own trial. In addition to the obvious implications this issue has for severed criminal trials, the factors considered when deciding whether impeachment by silence should be allowed generally are in sharpest focus in this factual setting. Thus, the analysis of the constitutional and evidentiary questions this Note enlists to argue that impeachment by silence in this context is permissible applies as …

The Battering Parent Syndrome: Inexpert Testimony As Character Evidence, Thomas N. Bulleit Jr.

University of Michigan Journal of Law Reform

This Note proposes that courts refuse to give further consideration to admitting the battering parent syndrome as evidence in both civil and criminal proceedings arising out of child abuse. Part I of the Note describes the syndrome as it appears in the psychological literature. Part II suggests that current judicial attitudes favor the future admissibility of the syndrome, conditioned only on an improved showing of scientific accuracy. Part III demonstrates that regardless of scientific accuracy, the character evidence rule forbids courts from admitting the battering parent syndrome. Part IV argues that the important policies underlying the character evidence rule override …

Government Compensation For The Costs Of Producting Subpoenaed Documents: A Proposal For Legislative Reform, Norman Gross

University of Michigan Journal of Law Reform

Current statutory and case law provide for the compensation of select categories of persons and entities that provide evidence to the federal government. This compensation scheme is inequitable insofar as it treats similarly situated persons and entities dissimilarly. This Note advocates the adoption of a blanket statutory provision to compensate all third party custodians for incurred costs in producing documents in compliance with a subpoena duces tecum issued on behalf of a federal authority. Part I describes the current federal reimbursement scheme. Part II examines the inequities that the current statutory scheme imposes upon similarly situated entities and argues for …

Constitutional Constraints On The Admissibility Of Grand Jury Testimony: The Unavailable Witness, Confrontation, And Due Process, Barbara L. Strack

University of Michigan Journal of Law Reform

Defendants, however, have raised serious constitutional objections to the introduction of grand jury testimony when the witness is unavailable to testify at trial. These claims have focused on the confrontation clause of the sixth amendment and the due process clauses of the fifth and fourteenth amendments. Defendants have contended that the introduction of testimony from a grand jury proceeding which cannot be subjected to cross-examination fatally compromises the defendant's right to a fair trial. Lower courts are split over admitting grand jury testimony in these circumstances, and the Supreme Court has yet to rule on the issue. As a result, …

Parent-Child Incest: Proof At Trial Without Testimony In Court By The Victim, Dustin P. Ordway

University of Michigan Journal of Law Reform

This Note argues that the incest victim should not testify personally at trial. Rather, the child's testimony should be replaced with tape-recorded pretrial examinations of the victim by an expert, supplemented by the in-court testimony of the examining expert. Part I discusses how the present system of requiring in-court testimony by the victim harms the child, fails to correct the incest problem, and produces unreliable evidence. Part II outlines and discusses the merits of the proposed reform. Part ill examines the proposed reform in light of the defendant's constitutional rights to due process and to confront witnesses against him. The …

Comparison Evidence In Obscenity Trials, Marguerite Munson Lentz

University of Michigan Journal of Law Reform

This Article critiques the approach endorsed in Hamling, particularly regarding the Court's failure to consider how the presentation of proof in an obscenity trial affects the defendant's constitutional rights. The Article urges that relevant comparison evidence should be admissible despite the risk of confusion or the opportunity to present expert testimony, and furthermore, that a court should be required to make explicit its findings regarding the relevancy of comparison evidence. Part I of the Article demonstrates the constitutional significance to the obscenity defendant of evidence, particularly comparison exhibits, bearing on prevailing community standards. Part II considers the assessment of …

The Privacy Protection Act Of 1980: Curbing Unrestricted Third-Party Searches In The Wake Of Zurcher V. Stanford Daily, Jose M. Sariego

University of Michigan Journal of Law Reform

This article analyzes the Privacy Protection Act as a response to Zurcher. Part I discusses the Zurcher decision and its effect on First and Fourth Amendment rights, as well as its impact on state testimonial privileges. Part II critically examines key features of the statute, focusing on the parties and materials protected, the police practices regulated, the remedies provided for violations, and the Act's constitutional underpinnings. Part II also offers suggestions for remedying the problems the Act currently presents. The article concludes that the Privacy Protection Act, while a necessary first step to minimizing the impact of Zurcher, is …

Reflections On Alfred Hill's "Testimonial Privilege And Fair Trial", Peter Westen

University of Michigan Journal of Law Reform

I have learned a great deal from "Testimonial Privilege and Fair Trial"-as I always do from Professor Hill's work. Indeed, he has changed my way of thinking in this area in several important respects. At the same time, I come to rather different conclusions than he regarding each of his three major topics. Part I of this article examines the problem of finding a "remedy" for testimonial privileges that violate a defendant's right to a fair trial. Part II discusses the problem of determining when a defendant is entitled to assert that the "right" has been violated. Finally, Part III …

The Impact Of The Foia On Nlrb Discovery Procedures, Del Dillingham

University of Michigan Journal of Law Reform

A prerequisite to filing a suit under the FOIA is the exhaustion of administrative remedies; in an unfair labor practice hearing, this means petitioning the Board for discovery. The increase in the number of suits against the Board under the FOIA demonstrates a growing dissatisfaction with the Board's discovery procedures. This article will discuss the impact of the FOIA on the Board's policies and practices and will examine various factors which must be considered in applying the Act to the NLRB.

Developments In Evidence Of Other Crimes, Nickolas J. Kyser

University of Michigan Journal of Law Reform

If the defendant in a criminal trial has a record of other offenses or is suspected of a number of crimes although charged with only one, the admissibility of evidence of these other offenses can be crucial. Admissibility depends in part on the purpose for which the evidence is offered. For instance, the prosecution is severely limited in its use of evidence of character. Until the defendant submits evidence of his good character, the subject cannot be raised and even after character is put in issue particular acts are not allowed to show character. The defendant's prior convictions may be …

The Use Of In Camera Hearings In Ruling On The Informer Privilege, Ronald E. Levine

University of Michigan Journal of Law Reform

The thesis of this article is that most of the problems of defining the scope of the privilege in a particular case are due to the paucity of information available to the trial judge who must rule on the issue. Furthermore, many of the formulas presently used are conceptually and functionally inadequate. Both of these problems can be solved by the use of in camera hearings, for such proceedings not only will provide the trial judge with sufficient information to make a fair and rational decision, but will also alleviate the present necessity to rule only on the basis of …

The Confrontation Clause And The Scope Of The Unavailability Requirement, Jerry J. Phillips

University of Michigan Journal of Law Reform

The confrontation clause is that language of the sixth amendment to the United States Constitution which provides, "[I]n all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him." Despite the seemingly absolute language of the confrontation clause, which would suggest that no hearsay evidence may be admitted against an accused in a criminal proceeding, its guarantee has been subject to exception. For example, when either a witness to an event or his testimony is shown to be unavailable, others will be allowed to testify as to the information which the declarant-witness has related …

Congressional Discretion In Dealing With The Federal Rules Of Evidence, Stuart M. Lockman

University of Michigan Journal of Law Reform

On November 20, 1972, the Supreme Court, pursuant to statutory authority, adopted the Federal Rules of Evidence. The new rules of evidence were not to take effect, however, until ninety days after they had been submitted to Congress. The rules were officially submitted on February 5, 1973, but even before that date they had become the subject of extensive legislative debate. While some attorneys praise the codification of evidence rules as a progressive step, others maintain that certain of these promulgations will have an objectionable impact on the federal judicial system or that the Supreme Court has exceeded its authority …

An Eclectic Approach To Impeachment By Prior Convictions, Lawrence A. Margolis

University of Michigan Journal of Law Reform

Almost every state permits persons convicted of a crime to testify in either their own or another person's behalf. Nonetheless, these states allow evidence of a person's prior criminal conviction to be used to impeach his credibility. The use of this method of impeachment in criminal trials has been the subject of substantial adverse criticism; yet, the practice remains widespread. This article first will discuss the problems that arise from the use of prior conviction evidence for impeachment purposes in criminal trials and then will examine several proposals that would restrict the use of such evidence. Finally, the article will …

Title Iii - Recalcitrant Witnesses, Jeffrey J. Greenbaum

University of Michigan Journal of Law Reform

This title represents a congressional attempt to codify the court-developed civil contempt practice. When a witness is granted immunity and still refuses to answer the question presented to him he can be ordered by a court to answer the specific question. Upon his continued refusal, a court can have him confined summarily until he complies with such order, or until he is no longer able to comply. Such confinement is not intended to be punitive in nature, but rather to coerce compliance with the court's order by imposing imprisonment as an alternative to answering the question. The witness will be …

Title Iv - False Declarations, Jeffrey J. Greenbaum

University of Michigan Journal of Law Reform

Title IV was designed to facilitate the bringing of federal perjury prosecutions, thereby strengthening the deterrent value of the perjury penalties and acting as a greater incentive for truthful testimony. It establishes a new false declarations statute applicable to court and grand jury proceedings, with maximum penalty slightly increased over that allowable under the previously controlling perjury statute.

Title Vi - Depositions, Peter A. Kelly

University of Michigan Journal of Law Reform

Title VI expands Rule 15 of the Federal Rules of Criminal Procedure to permit the Government to depose its witnesses in certain limited classes of cases. Previously only the defendant had been accorded this right. Upon the motion of either party at any time after a criminal indictment or information has been filed, the court may order that the testimony of the party's witnesses be taken by deposition if "due to exceptional circumstances it is in the interest of justice" that such testimony be taken and preserved. Such exceptional circumstances were intended by Congress to include the existence of a …

Title Vii - Litigation Concerning Sources Of Evidence, Peter A. Kelly

University of Michigan Journal of Law Reform

There are two operative provisions of title VII, both of which mitigate previous judicially imposed restrictions on governmental collection and presentation of evidence in "any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, or other authority of the United States.” The first purports to set aside the Supreme Court's holding in the 1968 case of Alderman v. United States, in which the Court held that, in cases involving unlawful electronic surveillance, the government must make full disclosure to the defendant of all records in its possession which contain any of …