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Hearsay And The Confrontation Clause (2017), Lynn Mclain

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This material is a part of a lecture delivered at the Maryland Judicial Center on May 11, 2017. It is an update of previous versions available at the following locations:

2016: http://scholarworks.law.ubalt.edu/all_fac/955/

2012: http://scholarworks.law.ubalt.edu/all_fac/924/

The material is a series of flowcharts that explain the nuances of hearsay law and the confrontation clause under Maryland law.

Hearsay And The Confrontation Clause, Lynn Mclain

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This speech was delivered to the Wicomico Co. Bar Association on October 28th, 2016. It is an updated version of the 2012 speech, available at http://scholarworks.law.ubalt.edu/all_fac/924/ .

Overview: Only an out-of-court statement ("OCS") offered for the truth of the matter that was being asserted by the out-of-court declarant ("declarant") at the time when s/he made the OCS ("TOMA") = hearsay ("HS"). If evidence is not HS, the HS rule cannot exclude it. The Confrontation Clause also applies only to HS, but even then, only to its subcategory comprising "testimonial hearsay." Cross-references to "MD-EV" are to section numbers of L. MCLAIN, …

Dna By The Entirety, Natalie Ram

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The law fails to accommodate the inconvenient fact that an individual’s identifiable genetic information is involuntarily and immutably shared with her close genetic relatives. Legal institutions have established that individuals have a cognizable interest in controlling genetic information that is identifying to them. The Supreme Court recognized in Maryland v. King that the Fourth Amendment is implicated when arrestees’ DNA is analyzed, and the Genetic Information Nondiscrimination Act protects individuals from genetic discrimination in the employment and health-insurance markets. But genetic information is not like other forms of private or personal information because it is shared — immutably and involuntarily …

Using The Dna Testing Of Arrestees To Reevaluate Fourth Amendment Doctrine, Steven P. Grossman

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With the advent of DNA testing, numerous issues have arisen with regard to obtaining and using evidence developed from such testing. As courts have come to regard DNA testing as a reliable method for linking some people to crimes and for exonerating others, these issues are especially significant. The federal government and most states have enacted statutes that permit or direct the testing of those convicted of at least certain crimes. Courts have almost universally approved such testing, rejecting arguments that obtaining and using such evidence violates the Fourth Amendment.

More recently governments have enacted laws permitting or directing the …

Dna Helps Clear Man's Name From Rape Charge After 24 Years, Colin Starger

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No abstract provided.

Comments On Maryland V. King In 'U.S. Supreme Court To Hear Arguments Over Md. Dna Case: Justices' Decision Will Have National Implications On Future Crime-Fighting Procedures', Colin Starger

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No abstract provided.

Flow Chart For Hearsay And The Confrontation Clause 'Crawford Through Bernadyn' (April 18, 2012). University Of Baltimore School Of Law Legal Studies Research Paper, Lynn Mclain

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A series of flowcharts outline the nuances of hearsay law and the Confrontation Clause.

Making Sense Of Intellectual Property Law, Christopher J. Buccafusco

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Intellectual property (IP) scholars have long struggled to explain the boundaries of and differences between copyright and patent law. This Article proposes a novel explanation: copyright and patent can be fruitfully understood as establishing a dichotomy between the different human senses. Copyright has bracketed works addressed to the senses of sight and hearing, and it treats products appealing to touch, taste, and smell as functional and, thus, uncopyrightable. To the extent the latter receive IP protection, it is through the utility patent regime. The Article begins by establishing this descriptive proposition, and it shows how some of the most contested …

Do Bad Things Happen When Works Enter The Public Domain?: Empirical Tests Of Copyright Term Extension (With P. Heald), Christopher J. Buccafusco

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The international debate over copyright term extension for existing works turns on the validity of three empirical assertions about what happens to works when they fall into the public domain. Our study of the market for audio books and a related human subjects experiment suggest that all three assertions are suspect. We demonstrate that audio books made from public domain bestsellers (1913-22) are significantly more available than those made from copyrighted bestsellers (1923-32). We also demonstrate that recordings of public domain and copyrighted books are of equal quality. While a low quality recording seems to lower a listener's valuation of …

Valuing Attribution And Publication In Intellectual Property (With C. Sprigman And Z. Burns), Christopher J. Buccafusco

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This is the third in a series of articles focusing on the experimental economics of intellectual property. In earlier work, we have experimentally studied the ways in which creators assign monetary value to the things that they create. That research has suggested that creators are subject to a systematic bias that leads them to overvalue their work. This bias, which we have called the 'creativity effect,' potentially results in inefficient markets in IP, because creators may be unwilling to license their works for rational amounts.

Our prior research, however, like American IP law itself, focused exclusively on the monetary value …

Well-Being Analysis Vs. Cost-Benefit Analysis (With J. Bronsteen & J. Masur) (Symposium), Christopher J. Buccafusco

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Cost-benefit analysis is the primary tool used by policymakers to inform administrative decisionmaking. Yet its methodology of converting preferences (often hypothetical ones) into dollar figures, then using those dollar figures as proxies for quality of life, creates systemic errors so large as to deprive the tool of value. These problems have been lamented by many scholars, and recent calls have gone out from world leaders and prominent economists to find an alternative analytical device that would measure quality of life more directly. This Article proposes well-being analysis (WBA) as that alternative. Relying on data from the field of hedonic psychology …

Fortuity And Forensic Familial Identification, Natalie Ram

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On July 7, 2010, Los Angeles police announced the arrest of a suspect in the Grim Sleeper murders, so called because of a decade-long hiatus in killings. The break in the case came when California searched its state DNA database for a genetic profile similar, but not identical, to the killer’s. DNA is inherited in specific and predictable ways, so a source-excluding partial match might indicate that a close genetic relative of the matching offender was the Grim Sleeper. California’s apparent success in this case has intensified interest in policymaking for source-excluding partial matching. To date, however, little information about …

"Sweet Childish Days": Using Developmental Psychology Research In Evaluating The Admissibility Of Out-Of-Court Statements By Young Children, Lynn Mclain

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A three-year-old child, while being bathed by her babysitter, innocently mentions that her “pee-pee” hurts. When the babysitter asks the child how she hurt it, she says, “Uncle Ernie (her mother’s boyfriend) told me not to tell.” A subsequent medical examination reveals that the child has gonorrhea, a sexually transmitted disease.

By the time of trial, the child is four and-a-half-years old. When questioned by the trial judge, she cannot explain to the judge’s satisfaction, “the difference between the truth and a lie.” Moreover, she has no long term memory of the incident. The judge rules the child incompetent to …

"I'M Going To Dinner With Frank": Admissibility Of Nontestimonial Statements Of Intent To Prove The Actions Of Someone Other Than The Speaker—And The Role Of The Due Process Clause, Lynn Mclain

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A woman tells her roommate that she is going out to dinner with Frank that evening. The next morning her battered body is found along a country road outside of town. In Frank’s trial for her murder, is her statement to her roommate admissible to place Frank with her that night? Since the Court’s 2004 Crawford decision, the confrontation clause is inapplicable to nontestimonial hearsay such as this.

American jurisdictions are widely divided on the question of admissibility under their rules of evidence, however. Many say absolutely not. A sizeable number unequivocally say yes. A small number say yes, but …

Criminal Practice Developments In Maryland Evidence Law And Confrontation Clause Jurisprudence, Lynn Mclain

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This paper was prepared as a handout for a presentation given on July 9th., 2010 to staff at the Harford County Public Defender’s Office, Bel Air, MD. The specific sections of the paper are: Discovery of Witnesses’ Identities: Protective Orders; Jury Selection; Communications from Jurors; Preservation of the Record: Rules 4-323, 5-103, and 5-702; Judicial Notice: Rule 5-201; Balancing Risk of Unfair Prejudice and Confusion against Probative Value: Rule 5-403; Character Evidence; Fifth Amendment Privilege: Miranda; Competency of Witnesses: Rule 5-601; Impeachment by Prior Convictions: Rule 5-609; Questioning by Court: Rule 5-614; Expert Testimony: Rules 5-702 – 5-706; Hearsay; The …

Reasonable Grounds Evidence Involving Sexual Violence In Darfur (With J. Hagan & R. Brooks), Todd Haugh

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No abstract provided.

Retribution And The Experience Of Punishment, Christopher J. Buccafusco, J. Bronsteen, J. Masur

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In a prior article, we argued that punishment theorists need to take into account the counterintuitive findings from hedonic psychology about how offenders typically experience punishment. Punishment generally involves the imposition of negative experience. The reason that greater fines and prison sentences constitute more severe punishments than lesser ones is, in large part, that they are assumed to impose greater negative experience. Hedonic adaptation reduces that difference in negative experience, thereby undermining efforts to achieve proportionality in punishment. Anyone who values punishing more serious crimes more severely than less serious crimes by an appropriate amount - as virtually everyone does …

Welfare As Happiness (With J. Bronsteen & J. Masur), Christopher J. Buccafusco

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Perhaps the most important goal of law and policy is improving people’s lives. But what constitutes improvement? What is quality of life, and how can it be measured? In previous articles, we have used insights from the new field of hedonic psychology to analyze central questions in civil and criminal justice, and we now apply those insights to a broader inquiry: how can the law make life better? The leading accounts of human welfare in law, economics, and philosophy are preference-satisfaction - getting what one wants - and objective list approaches - possessing an enumerated set of capabilities. This Article …

Valuing Intellectual Property: An Experiment, Christopher J. Buccafusco, C. Sprigman

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In this article we report on the results of an experiment we performed to determine whether transactions in intellectual property (IP) are subject to the valuation anomalies commonly referred to as “endowment effects”. Traditional conceptions of the value of IP rely on assumptions about human rationality derived from classical economics. The law assumes that when people make decisions about buying, selling, and licensing IP they do so with fixed, context-independent preferences. Over the past several decades, this rational actor model of classical economics has come under attack by behavioral data showing that people do not always make strictly rational decisions. …

Admissibility Of Scientific Evidence And Expert Testimony: One Potato, Two Potato, Daubert, Frye, Lynn Mclain

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This handout from a Maryland Judicial Institute presentation covers the Maryland Rules concerning expert testimony and the ways they differ from the Federal Rules of Evidence.

Out-Of-Court Statements: The Concentric Hoops Of The Hearsay Rule And The Confrontation Clause, Lynn Mclain

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This 44 page booklet created for the Maryland Judicial Institute outlines hearsay evidence, how hearsay overlaps with the Confrontation Clause, and the exceptions to hearsay under Maryland law.

The Dna Of An Argument: A Case Study In Legal Logos, Colin Starger

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This Article develops a framework for analyzing legal argument through an in-depth case study of the debate over federal actions for post-conviction DNA access. Building on the Aristotelian concept of logos, this Article maintains that the persuasive power of legal logic depends in part on the rhetorical characteristics of premises, inferences, and conclusions in legal proofs. After sketching a taxonomy that distinguishes between prototypical argument logo (formal, empirical, narrative, and categorical), the Article applies its framework to parse the rhetorical dynamics at play in litigation over post-conviction access to DNA evidence under 42 U.S.C. § 1983, focusing in particular on …

Sealed Documents To Prevent “Perfectly Legitimate” Review And Dissemination Of Privileged Confidential Information, Bridget Hoy, Dana M. Malkus

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A recent federal district court case serves as a reminder that when filing documents through an electronic filing system, the information contained in the documents is immediately available to anyone “through perfectly legitimate means: by reading a public filing.” The January 6, 2009 opinion in E-Smart Technologies, Inc., et al. v. Wayne Drizin, et al., 2009 U.S. Dist. LEXIS 272 (N.D. Ca Jan. 6, 2009), demonstrates that when caution is not taken at the onset to seal documents that contain privileged or confidential information, there might be little recourse for immediate distribution of information that one might later determine …

Happiness And Punishment (With J. Bronsteen & J. Masur), Christopher J. Buccafusco

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This article continues our project to apply groundbreaking new literature on the behavioral psychology of human happiness to some of the most deeply analyzed questions in law. Here we explain that the new psychological understandings of happiness interact in startling ways with the leading theories of criminal punishment. Punishment theorists, both retributivist and utilitarian, have failed to account for human beings' ability to adapt to changed circumstances, including fines and (surprisingly) imprisonment. At the same time, these theorists have largely ignored the severe hedonic losses brought about by the post-prison social and economic deprivations (unemployment, divorce, and disease) caused by …

The 'Double Feature' Of Hearsay And The Confrontation Clause, Plus Coming Attractions, Lynn Mclain

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Class handout outlining the interaction between the evidence rule of hearsay and the Confrontation Clause of the Constitution.

Hedonic Adaptation And The Settlement Of Civil Lawsuits (With J. Bronsteen & J. Masur), Christopher J. Buccafusco

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This paper examines the burgeoning psychological literature on happiness and hedonic adaptation (a person's capacity to preserve or recapture her level of happiness by adjusting to changed circumstances), bringing this literature to bear on a previously overlooked aspect of the civil litigation process: the probability of pre-trial settlement. The glacial pace of civil litigation is commonly thought of as a regrettable source of costs to the relevant parties. Even relatively straightforward personal injury lawsuits can last for as long as two years, delaying the arrival of necessary redress to the tort victim and forcing the litigants to expend ever greater …

Fact, Fiction And Proof In The 21st Century: Evidence And Credibility For Fact Finding By Administrative Law Judges, Lynn Mclain

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Handout from a panel at the NAALJ Annual Conference covering credibility.

Hearsay Law: Recent Developments In Maryland And In The Supreme Court, Lynn Mclain

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Handout from an Anne Arundel County Bar Association CLE class concerning then-recent developments in Maryland hearsay rules.

On The Legal Consequences Of Sauces: Should Thomas Keller's Recipes Be Per Se Copyrightable?, Christopher J. Buccafusco

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The restaurant industry now takes in over $500 billion a year, but recent courts have been skeptical of the notion that one of its most valuable assets, original recipes, are subject to copyright protection. With more litigation looming and the contours of the debate insufficiently mapped out, this article establishes the appropriate groundwork for analyzing the copyrightability of recipes. I show that, contrary to recent appellate court opinions, recipes meet the statutory requirements for copyrightability. I argue, by analogizing to musical compositions, that written recipes work to satisfy the fixation requirement of copyright law just as musical notation does for …

Detailing Daubert, The Hon. E Richard Webber, Dana M. Malkus

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When Justice Blackmun wrote Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the assignment was to reconcile the standards governing the admissibility of expert testimony with Federal Rule of Evidence 702. As Justice Blackmun recognized, Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), had long served as the polestar for determining the admissibility of expert testimony in litigation. Although the test developed by the Frye court was ultimately rejected when the Supreme Court announced new rules regarding the admissibility of expert testimony, the Frye court’s recognition of the purpose behind admitting expert testimony remains instructional: …