Law Commons^™

On Proving Mabrus And Zorgs, Michael S. Pardo

Vanderbilt Law Review

An unfortunate disconnect exists in modern evidence scholarship. On one hand, a rich literature has explored the process of legal proof in general and legal standards of proof in particular. Call this the "macro level" of legal proof. On the other hand, a rich literature has explored the admissibility rules that regulate the admission or exclusion of particular types of evidence (such as hearsay, character evidence, expert testimony, and so on). Call this the "micro level" of legal proof. Little attention, however, has focused on how the issues discussed in these two distinct strands of evidence scholarship intertwine. One important …

Reviving “Dead Letters”: Reimagining Federal Rule Of Evidence 410 As A Conditional Privilege, Peter G. Cornick

Vanderbilt Law Review

Though understudied relative to its fellow specialized relevance rules, Federal Rule of Evidence 410 protects a crucial element of the criminal justice system: plea negotiations. As written, the rule prevents the admission of evidence gathered during plea discussions, which helps assure criminal defendants that their candid discussions with prosecutors will not harm them in any future proceeding. But the Supreme Court has greatly weakened Rule 410, permitting broad waiver of the rule’s protections that run afoul of Congress’s purpose in creating the rule and its plain language. In light of these developments, the Note argues that Rule 410 should be …

Confidences Worth Keeping: Rebalancing Legitimate Interests In Litigants' Private Information In An Era Of Open-Access Courts, Jeffrey W. Sheehan

Vanderbilt Journal of Entertainment & Technology Law

The ideal of the public trial in open court continues to guide decisions about public access to courts and their records, even as cases are increasingly decided "on the papers." This is still the case when those "papers" take the form of electronic documents that can be uploaded, downloaded, copied, and distributed by anyone with an internet connection. A series of opinions from the US Court of Appeals for the Sixth Circuit reinforcing this ideal of public access to court records and unsealing district court filings offers an opening to reconsider core values that must inform our treatment of private …

From Nuremberg To Kenya: Compiling The Evidence For International Criminal Prosecutions, Jennifer Stanley

Vanderbilt Journal of Transnational Law

The Prosecutor of the International Criminal Court has encountered significant difficulty in conducting investigations. Faced with violence on the ground, witnesses who fear repercussions, and limitations on resources, the Prosecutor has turned to relying on secondary forms of evidence, such as the reports of NGOs and other third-party information providers.

This Note argues that the Prosecutor's use of such evidence is problematic because it fails to adequately follow the evidentiary rules of the Court and, subsequently, to protect the rights of witnesses and defendants. Moreover, the Office of the Prosecutor's dependence on third-party evidence has stunted the Prosecutor's ability to …

The Risks Of Taking Facebook At Face Value: Why The Psychology Of Social Networking Should Influence The Evidentiary Relevance Of Facebook Photographs, Kathryn R. Brown

Vanderbilt Journal of Entertainment & Technology Law

Social networking sites in general, and Facebook in particular, have changed the way individuals communicate and express themselves. Facebook users share a multitude of personal information through the website, especially photographs. Additionally, Facebook enables individuals to tailor their online profiles to project a desired persona. However, as social scientists have demonstrated, the image users portray can mislead outside observers. Given the wealth of information available on Facebook, it is no surprise that attorneys often peruse the website for evidence to dispute opponents' claims.

This Note examines the admission and relevance of Facebook photographs offered to prove a litigant's state of …

Plea Bargaining, Discovery, And The Intractable Problem Of Impeachment Disclosures, R. Michael Cassidy

Vanderbilt Law Review

Several recent high-profile cases have illustrated flaws with the government's discovery practices in criminal cases and have put prosecutors across the country on the defensive about their compliance with disclosure obligations. The conviction of former Alaska Senator Ted Stevens on ethics charges was set aside after it was revealed that federal prosecutors withheld notes of an interview with a key government witness; one member of the Stevens prosecution team who was under investigation for contempt subsequently committed suicide. The Supreme Court remanded a double murder case from Tennessee for potential resentencing after it was revealed that state prosecutors had withheld …

The Individualization Fallacy In Forensic Science Evidence, Michael J. Saks, Jonathan J. Koehler

Vanderbilt Law Review

Forensic identification science involves two fundamental steps. The first step is to compare a questioned item of evidence to an exemplar from a known source and judge whether they appear so alike that they can be said to match. The second step is to assess the meaning of that reported match: What is the probability that the questioned and the known originated from the same source?

Different risks of error are present at each step. The risk of error in the first step is that a reported match between a questioned and a known sample might not really match. Even …

Fishing For The Smoking Gun, Y. Daphne Coelho-Adam

Vanderbilt Journal of Transnational Law

Industry-wide tort litigation, such as tobacco and gun litigation, poses a new problem for extraterritorial discovery. These suits allege conspiracies on the part of the tobacco and gun industries to conceal the dangers of their products from the public. Much of the evidence needed to prove the industries' knowledge is in their possession. These industries are international with companies located in the United Kingdom. Under U.S. discovery law the evidence is discoverable, but such is not the case under British discovery law. Therefore, the evidence and witnesses located in the United Kingdom are outside the grasp of U.S. plaintiffs. The …

The Hague Evidence Convention: The Need For Guidance On Procedures And Resolution Of Conflicts In Transnational Discovery, John C. Plaster

Vanderbilt Journal of Transnational Law

As international commercial disputes become more common, United States courts increasingly face difficult issues involved in transnational discovery. Two frequently encountered issues are choosing whether to use the discovery procedures of the Federal Rules of Civil Procedure or the Hague Evidence Convention and whether to enforce a discovery order when the order conflicts with a law of the state in which discovery is to occur. Although the Supreme Court has addressed both of these issues, it has left lower courts considerable discretion to deal with these issues case by case. Lower courts, therefore, have not been uniform in their approaches …

United States Punitive Damage Awards In German Courts: The Evolving German Position On Service And Enforcement, Klaus J. Beucher, John B. Sandage

Vanderbilt Journal of Transnational Law

This Article addresses the problems United States plaintiffs may face when seeking enforcement of United States court awards of punitive damages in German courts. The authors show the close relationship between service of process and subsequent enforcement procedures in Germany. The analysis focuses on two recent German court decisions that provide indications of how German courts might respond to requests to serve process and to enforce judgments in actions seeking punitive or multiple damages. The fundamentally different approaches to punitive damages taken by the German and the United States legal systems create the difficulties encountered when these two systems intersect. …

Extraterritorial Discovery: Cooperation, Coercion And The Hague Evidence Convention, Harold G. Maier

Vanderbilt Journal of Transnational Law

This Article reviews the most recent case law on this issue and examines the results of those cases in the light of existing principles of comity and of the newly promulgated Restatement of Foreign Relations Law of the United States (Revised). The analysis focuses on three important appellate court decisions, all of which are or have been before the United States Supreme Court, and examines the contents and origins of the United States Government's position on these issues as found in amicus briefs submitted in these cases. The article concludes with an evaluation of the dilemma evidenced by the need …

Obtaining Evidence Abroad, Harry J. O'Kane

Vanderbilt Journal of Transnational Law

This talk will avoid a discussion of whatever problems exist in true international litigation. True international litigation may be defined as that body of law devoted to disputes between nations and governmental bodies which are addressed in nonterritorial world courts or those courts accepting the disputes under their own system of jurisprudence. My remarks will focus on the problems in obtaining evidence in a country other than the United States for use in a suit within the United States. A tabular listing of information relating to what can and cannot be accomplished in the way of obtaining evidence in various …

Burdens Of Proof: Degrees Of Belief, Quanta Of Evidence, Or Constitutional Guarantees?, C.M.A. Mccauliff

Vanderbilt Law Review

This Article analyzes the whole range of burdens of proof as well as their constitutional implications. Part H of the Article discusses the traditional burdens of proof and the use of probability theory in legal fact finding. Part HI of the Article studies the decision making processes of law enforcement officers, the judges that review their decisions, and the decision making processes in appellate and administrative review. Part IV of the Article returns to the trial process and analyzes burdens of proof, not as degrees of belief, but as reflections of constitutional due process that mandate a required degree of …

The Acquisition Of Evidence For Criminal Prosecution: Some Constitutional Premises And Practices In Transition, H. Richard Uviller

Vanderbilt Law Review

This Article isolates only two of the many aspects of the Court's labors affecting the acquisition of evidence for criminal prosecution. The first concerns the allocation of primacy among the values that the exclusionary response to the illegal acquisition of evidence serves: a theoretical choice that may carry some notable practical consequences. The second requires are examination of the role of the trial court in supervising the preaccusatory search for evidence in a way that suggests the possible obsolescence of the Supreme Court's ruling credo in the Stewart era.

Diminished Capacity-Recent Decisions And An Analytical Approach, Robert P. Bryant, Corbin B. Hume

Vanderbilt Law Review

The concept of diminished capacity allows a defendant in a criminal case to prove, usually by presenting psychiatrists who testify that he suffered from an abnormal mental condition, that he was unable to entertain the particular mens rea required for conviction.' Although courts historically have been reluctant to admit such testimony, in recent years a growing number of jurisdictions have recognized the concept of diminished capacity. Recent decisions in Pennsylvania, the District of Columbia, and North Carolina, as well as recently adopted statutes in ten other jurisdictions,illustrate the evidentiary, social, and constitutional issues raised by the concept of diminished capacity. …

The Types Of Evidence: An Analysis, Lyman R. Patterson

Vanderbilt Law Review

Since the purpose of this article is to analyze evidence in functional terms, it may be helpful at the outset to state the basic ideas which underlie the discussion.

1. Evidence consists of propositions of fact which are related to another proposition, a proposed conclusion. Evidence is thus to be distinguished from the fact or facts which are its basis. 2. The essential relationship of propositions which are evidence to the proposition which is the proposed conclusion is relevancy. 3. The relevancy of evidence to the proposed conclusion is determined by the inference drawn from the evidence. If the evidence …

Contracts -- 1964 Tennessee Survey, Paul I. Hartman

Vanderbilt Law Review

I. Promissory Estoppel--Application by Federal Court

II. Third Party Beneficiary--Enforcement of Labor and Material Bond

III. Statute of Frauds--Statute as Defense to Third Party

IV. Parol Evidence Rule--Application to Extrensic Subsequent Agreement

V. Illegal Bargains--Agreement Not to Compete

VI. Death of Party to Personal Service Contract as Terminating the Contract

Evidence: A Functional Meaning, Lyman R. Patterson

Vanderbilt Law Review

A trial always involves two basic problems-the problem of ascertaining the truth of the matter in issue, and the problem of re-solving a dispute. The former can be characterized as the probative problem, arising from the problem of proving, and the latter as the forensic problem, arising from the procedural problem of proving-in-a-trial. The probative problem is a problem of evidence in that it is the problem of using evidence to ascertain the truth by "the ratiocinative process of continuous persuasion."' The forensic problem is a problem of the admissibility of evidence, and it is the forensic problem which has …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust Law--Violation of Section 7 of the Clayton Act by Joint Venture

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Civil Rights--Anti-discrimination Law as a Vehicle for a Private Civil Action

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Condemnation--Landowner Cannot Recover From Federal Government for Damages Caused Before Date of Taking Where Government Did Not Previously Contemplate, Condemning Property

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Constitutional Law--Loss of Nationality--Foreign Residency Statute Held Violative of Due Process

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Constitutional Law--Reapportionment--Both Houses of a State Legislature Must Be Based as Nearly as Is Practicable on Population

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Constitutional Law--Twenty-first Amendment--Scope of State Power Over Intoxicants Moving Within Its Borders

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Evidence--Statutory Presumptions--Reasonableness Is Implicit in Test of Rational Connection

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Evidence -- 1963 Tennessee Survey, Lyman R. Patterson

Vanderbilt Law Review

The doctrine of judicial notice is that an indisputable proposition of fact or a proposition of law of the jurisdiction is not subject to proof. The doctrine thus serves to relieve the litigant of the burden of proving certain facts and law, and is one of immense theoretical implication for the trial lawyer. A fact which is judicially noticed has much greater probative value than a fact which is proved, no matter how strong the proof. Judicial notice thus offers the trial lawyer an extremely effective, but apparently largely unused, device in litigation. None of the cases involving judicial notice …

The Use Of Coerced Confessions In State Courts, J. A. Spanogle

Vanderbilt Law Review

It is now well settled that involuntary confessions must be excluded from evidence in all criminal trials in state courts. It has been difficult, however, to distinguish a voluntary confession from an involuntary one, because the term "involuntary" is not well defined. This lack of definition, which creates great problems for state trial and appellate courts in attempting to apply the rule to individual cases, has, in turn, stemmed from a lack of understanding of the reasons for excluding involuntary confessions. The United States Supreme Court has handed down thirty-four coerced confession cases, holding confessions admissible in some factual situations …

Recent Case Comments, Law Review Staff

Vanderbilt Law Review

Conflict of Laws--Workmen's Compensation--Forum's Use of Foreign State's Tort Law for Recovery Against Third Party Does Not Require Forum's Use of Foreign State's Election Provision in Workmen's Compensation Suit

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Constitutional Law--Advertising-Statute Restricting Size,Number, and Location of Gasoline Price Signs Is Unconstitutional

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Evidence-Attorney--Client Privilege--Applicability When a Corporation Is the Client

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Evidence--Attorney-Client Privilege-Doctor's Report to Attorney on Condition of Client Is Within Privilege

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Federal Jurisdiction--In Federal Question Action Federal Court Is Competent To Exercise In Personam Jurisdiction Over Corporation if It Has Sufficient Contacts With United States

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Federal Rules of Civil Procedure--Counterclaim Not Compulsory in First Suit …

Statement Of Fact Versus Statement Of Opinion -- A Spurious Dispute In Fair Comment, Herbert W. Titus

Vanderbilt Law Review

In attempting to solve problems in a variety of areas lawyers continuously make use of a distinction between statements of "fact" on the one hand and those of "opinion" on the other.' So versatile is this distinction that it has been used to solve problems raised in such diverse areas of the law as evidence and defamation. However, since the turn of the century the fact-opinion dichotomy has been severely criticized as a means of deciding what kinds of testimony should be allowed in a legal trial. Yet in the law of defamation, where this distinction has been extensively applied …

The Dilemma Of The Directed Acquittal, Richard H. Winningham

Vanderbilt Law Review

Some of the worst abuses of state criminal due process, the author believes, result from anachronistic and artificial restraints which prevent the trial judge from directing acquittals. Therefore,he advocates for all states a uniform policy and practice recognizing and authorizing directed acquittals where the evidence is legally insufficient to support a conviction.

Procedure And Evidence -- 1961 Tennessee Survey (Ii), Edmund M. Morgan, Joel F. Handler

Vanderbilt Law Review

Construction of Pleading--(a) Conclusions.- In an action by the administratrix of a decedents estate the allegations in the complaint that the intestate had a policy of insurance on his life for $1,500 and was induced by the fraud of defendant to make defendant the beneficiary by which she was able to collect the money upon his death and "that this $1500 insurance money is the property of the estate and defendant is accountable to complainant as administratrix of the estate" are sufficient as against ademurrer on the ground that the complaint fails to show any right or title in complainant …

Contracts -- 1961 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

I. Offer and Acceptance--Notification of Acceptance Before Notification of Revocation--Duration of Offer with Fixed Expiration Date

II. Implied and Quasi Contract--Claim for Services Where Family Relationship Involved

III. Parol Evidence Rule--Application of Rule to Third Party Not a Party to the Written Instrument--Pre-existing Duty as Consideration

IV. Exculpatory Contracts--Contracting Against Liability for Consequences of Own Negligent Conduct

V. Agreement in Restraint of Trade-Agreement of Seller of Business Not to Compete--Enforcement of Restraint in Area Greater than Required to Protect Purchaser

Bills And Notes -- 1961 Tennessee Survey, John A. Spanogle Jr.

Vanderbilt Law Review

The Tennessee courts decided three cases involving commercial paper this year. The Tennessee Supreme Court decided one case which, unless it is clarified in the near future, may upset principles which were heretofore well-established. Of the two cases decided by the appellate courts, one adopted a rule well-known in other jurisdictions, and the other adopted a sound minority view on a question not settled by the Uniform Negotiable Instruments Law.

The Theory Of Criminal Discovery And The Practice Of Criminal Law, David W. Louisell

Vanderbilt Law Review

To crystallize in a few words the motif of a career as varied and comprehensive as that of Eddie Morgan would in any event be difficult, but it is doubly so for a life devoted, as his has been, to stuff as vital and dynamic as procedure and evidence. For me, his work most fundamentally is to be characterized as a quest for greater rationality in the adjudicative process. Whether one thinks of his analysis of the hearsay rule,' or his rationale of the admissions exception to it, or his treatment of the dead man's statute, or his study of …

Rochin And Breithaupt In Context, James R. Richardson

Vanderbilt Law Review

Modern scientific methods of fact-finding present evidentiary problems of admissibility which are grounded in reliability of the process, validity of the technique employed and desired policy objectives. In the final analysis, these three facets of the problem are all indivisibly interrelated since, in order to determine acceptable policy, scientific process and application of that process must inevitably be considered in the light of the concept of due process even though due process as such may not be posed affirmatively in any particular decision.' Moreover, it must be recognized that these factors will be present in varying degrees of intensity, dependent …

Edmund M. Morgan, Austin W. Scott, John W. Wade

Vanderbilt Law Review

Everyone who knows him well speaks of him as Eddie Morgan--or simply as Eddie. This includes his colleagues, whether they are at the same school or another one; his students, though this is privately, of course, when they are talking about him among themselves; and his former students. Especially his former students. No matter whether they have been out of school for many years or just a few years, they ask about him in the same way. The face and the voice disclose an admiration for him and a touch of awe, and yet at the same time a different …