Law Commons^™

Bending The Rules Of Evidence, Edward K. Cheng, G. Alexander Nunn, Julia Simon-Kerr

Faculty Scholarship

The evidence rules have well-established, standard textual meanings—meanings that evidence professors teach their law students every year. Yet, despite the rules’ clarity, courts misapply them across a wide array of cases: Judges allow past acts to bypass the propensity prohibition, squeeze hearsay into facially inapplicable exceptions, and poke holes in supposedly ironclad privileges. And that’s just the beginning.

The evidence literature sees these misapplications as mistakes by inept trial judges. This Article takes a very different view. These “mistakes” are often not mistakes at all, but rather instances in which courts are intentionally bending the rules of evidence. Codified evidentiary …

Theorizing Corroboration, Maggie Wittlin

Faculty Scholarship

A child makes an out-of-court statement accusing an adult of abuse. That statement is important proof, but it also presents serious reliability concerns. When deciding whether it is sufficiently reliable to be admitted, should a court consider whether the child’s statement is corroborated—whether, for example, there is medical evidence of abuse? More broadly, should courts consider corroboration when deciding whether evidence is reliable enough to be admitted at trial? Judges, rule-makers, and scholars have taken significantly divergent approaches to this question and come to different conclusions.

This Article argues that there is a key problem with using corroboration to evaluate …

“Rule Of Inclusion" Confusion, Dora Klein

Faculty Articles

Some rules of evidence are complex. The federal rules governing the admissibility of hearsay statements,' for example, include at least forty different provisions. Numerous judges and scholars have commented on the complexity of the hearsay rules. Not all rules of evidence are complex, however. For example, the federal rules governing the admissibility of character evidence are relatively straightforward: evidence that is offered for the purpose of proving character is inadmissible, subject to a few well-defined exceptions. Despite this relative straightforwardness, many of the federal circuit courts of appeals have overlaid the rules regarding character evidence particularly Rule 404(b)--with unnecessary interpretive …

Beyond The Witness: Bringing A Process Perspective To Modern Evidence Law, Edward K. Cheng, G. Alexander Nunn

Faculty Scholarship

The focal point of the modern trial is the witness. Witnesses are the source of observations, lay and expert opinions, authentication, as well as the conduit through which documentary, physical, and scientific evidence is introduced. Evidence law therefore unsurprisingly concentrates on – or perhaps obsesses over – witnesses. In this Article, we argue that this witness-centered perspective is antiquated and counterproductive. As a historical matter, focusing on witnesses may have made sense when most evidence was the product of individual observation and action. But the modern world frequently features evidence produced through standardized, objective, and even mechanical processes that largely …

Hearsay And The Confrontation Clause (2017), Lynn Mclain

All Faculty Scholarship

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.

Using Prior Consistent Statements To Rehabilitate Credibility Or To Prove Substantive Assertions Before And After The 2014 Amendment Of Federal Rule Of Evidence 801(D)(1)(B), Floralynn Einesman

Faculty Scholarship

The Federal Rules of Evidence (FRE) expanded the non-hearsay category of admissible prior consistent statements with FRE 801(d)(1)(B)(ii) to include any statements counsel uses to rehabilitate a declarant’s credibility after that credibility has been attacked. FREV 801(d)(1)(B)(i) and (ii) require that a declarant testify and be subjected to cross-examination about the prior consistent statement. Under these rules, the time at which the declarant made the consistent statement and her reason for making it are critical.

When the declarant does not testify, however, under FRE 806 opposing counsel may still attack the declarant’s credibility. Under these circumstances, it is often challenging …

Hearsay And The Confrontation Clause, Lynn Mclain

All Faculty Scholarship

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, …

Rescued From The Grave And Then Covered With Mud: Justice Scalia And The Unfinished Restoration Of The Confrontation Right, Richard D. Friedman

Articles

Some years before his death, when asked which was his favorite among his opinions, Antonin Scalia named Crawford v. Washington. It was a good choice. Justice Scalia's opinion in Crawford reclaimed the Confrontation Clause of the Sixth Amendment to the Constitution and restored it to its rightful place as one of the central protections of our criminal justice system. He must have found it particularly satisfying that the opinion achieved this result by focusing on the historical meaning of the text, and that it gained the concurrence of all but two members of the Court, from all ideological positions.

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 …

The Mold That Shapes Hearsay Law, Richard D. Friedman

Articles

In response to an article previously published in the Florida Law Review by Professor Ben Trachtenberg, I argue that the historical thesis of Crawford v. Washington is basically correct: The Confrontation Clause of the Sixth Amendment reflects a principle about how witnesses should give testimony, and it does not create any broader constraint on the use of hearsay. I argue that this is an appropriate limit on the Clause, and that in fact for the most part there is no good reason to exclude nontestimonial hearsay if live testimony by the declarant to the same proposition would be admissible. I …

Some Thoughts On The Fundamentals Of An Evidence Code From The U.S. American Perspective, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

In the U.S. American trial system proof mainly consists of live witnesses presented in open court under oath before the judge, jury, and parties, subject to perjury laws. Cross-examination of the witnesses in that setting is the principal (though not the only) form of testing their reliability. It is for these reasons that we have a rule against hearsay (second-hand reporting in court of what someone has said outside of court).

"Santa Baby, Just Slip A Sable Under The Tree For Me:" Or At Least A Catchall Exception To The Hearsay Rule?, Cynthia Ford

Faculty Journal Articles & Other Writings

This article examines Montana's two rule-based "catchall" or "residual" hearsay exceptions, and a statutory exception that applies only to child declarants in criminal cases.

"As I Lay Dying:" A Halloween Meditation On The Use Of Dying Declarations In Montana, Cynthia Ford

Faculty Journal Articles & Other Writings

This article discusses the Montana hearsay exception for "dying declarations."

In-Court Identifications Not Hearsay, Are Admissible, Cynthia Ford

Faculty Journal Articles & Other Writings

This article examines M.R.E. 801(d)(1)(C) and begins by looking at Montana case law before the rule was adopted and after it was adopted. The article follows with a look at the plethora of federal cases interpreting 801(d)(1)(C). The article points out that although Montana's version of 801(d)(1)(C) mirrors the same rule in the F.R.E, it doesn't seem that the Montana rule is used very often in reported cases. The author concludes that the rule is a good tool to escape from a hearsay objection and thereby avoid a protracted excursion into the numerous hearsay exceptions. Further, the rule applies in …

Prior Statements In Montana: Part I, Cynthia Ford

Faculty Journal Articles & Other Writings

This article is part one of a two-part series on prior statements in Montana. In part one, the article explores Montana's approach to prior inconsistent statements under M.R.E. 801. The article states that prior inconsistent statements are clearly admissible in Montana state court trials. Once a witness has testified on the stand, anything else said on the same subject, anywhere, any time, to anyone, which outright contradicts trial testimony, or serves to fill a memory lapse on the stand, is admissible -- not just for impeachment, but also to prove the fact earlier asserted.

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

All Faculty Scholarship

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

Friends, Gangbangers, Custody Disputants, Lend Me Your Passwords, Aviva Orenstein

Articles by Maurer Faculty

Whenever parties seek to introduce out-of-court statements, evidentiary issues of hearsay and authentication will arise. As methods of communication expand, the Rules of Evidence must necessarily keep pace. The rules remain essentially the same, but their application vary with new modes of communication. Evidence law has been very adaptable in some ways, and notoriously conservative, even stodgy, in others. Although statements on Facebook and other social media raise some interesting questions concerning the hearsay rule and its exceptions, there has been little concern about applying the hearsay doctrine to such forms of communication. By contrast, such new media have triggered …

Taking Confrontation Seriously Does Crawford Mean That Confessions Must Be Crossexamined, Mark A. Summers

Faculty Scholarship

No abstract provided.

Confrontation And Forensic Laboratory Reports, Round Four, Richard D. Friedman

Articles

Crawford v. Washington radically transformed the doctrine governing the Confrontation Clause of the Sixth Amendment to the Constitution. Before Crawford, a prosecutor could introduce against an accused evidence of a hearsay statement, even one made in contemplation that it would be used in prosecution, so long as the statement fit within a "firmly rooted" hearsay exception or the court otherwise determined that the statement was sufficiently reliable to warrant admissibility. Crawford recognized that the Clause is a procedural guarantee, governing the manner in which prosecution witnesses give their testimony. Therefore, a prosecutor may not introduce a statement that is testimonial …

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 …

Ninth Circuit Strikes Out On Hearsay, Peter Keane

Publications

The recent Ninth Circuit U.S. Court of Appeals opinion, United States v. Barry Bonds , is a murky distortion of an important Federal Rule of Evidence. Quite apart from any celebrity status about a decision regarding the upcoming perjury trial of the former Giants' slugger, the ruling significantly affects the admissibility of evidence in the federal courts in an unfortunate and erroneous way.

Narrative Implications Of Evidentiary Rules, Bruce Ching

Journal Articles

Advocates are increasingly conscious of courtroom disputes as forms of story-battles, in which the parties present competing narratives. But the rules of evidence -- determining which facts can be incorporated into the presentation of the parties' stories -- can also often best be understood from a narrative point of view. This paper examines narrative features underlying evidentiary rules dealing with leading questions, "speaking objections," and hearsay.

Rule 801(D)'S Oxymoronic 'Not Hearsay' Classification: The Untold Backstory And A Suggested Amendment, Sam Stonefield

Faculty Scholarship

This Article examines Rule 801(d)’s oxymoronic treatment of admissions and prior statements as “not hearsay.” This “not hearsay” label is inaccurate – the evidence is hearsay, as defined in Rule 801(c) – and is inconsistent with the analytically important and well-established use of the term not hearsay to describe evidence that is actually not hearsay.

The Article tells the story of how the drafters of the Federal Rules of Evidence ended up with such a confused and confusing label and proposes an amendment that would classify admissions and prior statements as hearsay exceptions and place each in a new, separate, …

Coconspirators, “Coventurers,” And The Exception Swallowing The Hearsay Rule, Ben L. Trachtenberg

Faculty Publications

In recent years, prosecutors - sometimes with the blessing of courts - have argued that when proving the existence of a “conspiracy” to justify admission of evidence under the Coconspirator Exception to the Hearsay Rule, they need show only that the declarant and the defendant were “coventurers” with a common purpose, not coconspirators with an illegal purpose. Indeed, government briefs and court decisions specifically disclaim the need to show any wrongful goal whatsoever. This Article contends that such a reading of the Exception is mistaken and undesirable. Conducted for this article, a survey of thousands of court decisions, including the …

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

All Faculty Scholarship

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

All Faculty Scholarship

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

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

All Faculty Scholarship

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

The (Futile) Search For A Common Law Right Of Confrontation: Beyond Brasier's Irrelevance To (Perhaps) Relevant American Cases, Randolph N. Jonakait

Articles & Chapters

After Crawford v. Washington asserted that the Confrontation Clause constitutionalized the common law right of confrontation, cases have been suggested that illustrate that right. This short essay considers whether the 1779 English case Rex v. Brasier is such a decision, as some contend. The essay concludes that Brasier says nothing about the right of confrontation and points to a comparable framing-era, American case that indicates that general rules about hearsay and confrontation were not at issue. The essay maintains that if the historical understandings of the right of confrontation and hearsay are to control the Confrontation Clause, then framing-era, American …

Cross-Examination Earlier Or Later: When Is It Enough To Satisfy Crawford?, Christopher B. Mueller

Publications

No abstract provided.

"Remarkable Stratagems And Conspiracies": How Unscrupulous Lawyers And Credulous Judges Created An Exception To The Hearsay Rule, Marianne Wesson

Publications

This paper, a companion piece to the author's earlier exploration of the case of Mutual Life Insurance Company v. Hillmon, describes the remarkable record of unethical conduct compiled by the eminent and respectable attorneys for the insurance companies in the course of that litigation. When married with the Supreme Court Justices' uncritical willingness to accept the false narrative thus contrived, these attorneys' misconduct led to the creation of an important rule of evidence - a rule of questionable merit. This article aims to remind us that lawyers who are willing to distort the process of litigation have the power …