Law Commons^™

The Persistence Of The Probabilistic Perspective, Richard D. Friedman

Articles

The publication now of an essay written by Craig Callen nearly a decade ago is cause for wistful celebration. Even while we are reminded how suddenly and prematurely Craig’s life ended, it is good to have one more academic contribution from him, especially because it is marked by the erudition, thoroughness, gentleness, and humor that characterized him.

Comment: The Doctrine Of Chances, Brides Of The Bath And A Reply To Sean Sullivan, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The ‘Doctrine of Chances’ is a doctrine of probability that purports to solve an apparent logical conundrum or contradiction in the law of Evidence.

It is the author's thesis in this article that the doctrine of chances—in any acceptable logical form including that described by Mr. Sullivan—does properly describe when this kind of ‘other wrongs’ evidence is relevant, and how probative it is, but that relevance and probative value where this kind of proof is offered does depend on propensity reasoning even under these theories even in the cases where they say it does not. He is not simply arguing …

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 …

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

All Faculty Scholarship

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 …

Rounding Up The Usual Suspects: A Logical And Legal Analysis Of Dna Trawling Cases, David H. Kaye

Journal Articles

Courts are beginning to confront a problem that has divided the scientific community - whether identifying a defendant by fishing through a database of DNA types to find a match to a crime-scene sample reduces the significance of a match. For years, the problem seemed academic. Now that the U.S. has more than five million DNA profiles from convicted offenders and suspects in a national, computer-searchable database, the question has assumed more urgency. Increasingly, individuals are being charged with crimes as a result of a match between their recorded profile and the DNA from a victim or scene of a …

Analysis Of Videotape Evidence In Police Misconduct Cases, Martin A. Schwartz, Jessica Silbey, Jack Ryan, Gail Donoghue

Faculty Scholarship

Many evidentiary issues arise with respect to the admission of videotape evidence and computer generated simulations at trial, and the authors of this Article address these issues as they arise in police misconduct cases. Professor Schwartz provides insight into and analysis of the evidentiary principles that govern the use of video and computer simulation evidence at trial in cases where police misconduct is at issue. His discussion first addresses the issues that concern the admissibility of videotape evidence, then discusses the role of a videotape on summary judgment, and lastly, analyzes evidentiary issues with respect to computer generated simulations.

Case Comment - People V. Nelson: A Tale Of Two Statistics, David H. Kaye

Journal Articles

In recent years, defendants who were identified as a result of a search through a database of DNA profiles have argued that the probability that a randomly selected person would match a crime-scene stain overstates the probative value of the match. The statistical literature is divided, with most statisticians who have written on the subject rejecting this claim. In People v. Nelson, the Supreme Court of California held that when the random-match probability is so small as to make it exceedingly unlikely that any unrelated individual has the incriminating DNA profile, this statistic is admissible in a database-search case. …

Face To Face': Rediscovering The Right To Confront Prosecution Witnesses, Richard D. Friedman

Articles

The Sixth Amendment to the United States Constitution protects the right of an accused 'to confront the witnesses against him'. The United States Supreme Court has treated this Confrontation Clause as a broad but rather easily rebuttable rule against using hearsay on behalf of a criminal prosecution; with respect to most hearsay, the exclusionary rule is overcome if the court is persuaded that the statement is sufficiently reliable, and the court can reach that conclusion if the statement fits within a 'firmly rooted' hearsay exception. This article argues that this framework should be abandoned. The clause should not be regarded …

Sometimes What Everybody Thinks They Know Is True, Richard D. Friedman, Roger C. Park

Articles

This essay responds to D. Davis and W. C. Follette (2002), who question the value of motive evidence in murder cases. They argue that the evidence that a husband had extramartial affairs, that he heavily insured his wife's life, or that he battered his wife is ordinarily of infinitesimal probative value. We disagree. To be sure, it would be foolish to predict solely on the basis of such evidence that a husband will murder his wife. However, when this kind of evidence is cobmined with other evidence in a realistic murder case, the evidence can be quite probative. We analyze …

A Suggestion On Suggestion, Richard D. Friedman, Stephen J. Ceci

Articles

Part I of the full article briefly describes the history and current slate of research into children's suggestibility. In this part, we argue that, although psychological researchers disagree considerably over the degree to which he suggestibility of young children may lead to false allegations of sexual abuse, there is an overwhelming consensus that children are suggestible to a degree that, we believe, must be regarded as significant. In presenting this argument, we respond to the contentions of revisionist scholars, particularly those recently expressed by Professor Lyon. We show that there is good reason to believe the use of highly suggestive …

Lilly V. Virginia Glimmers Of Hope For The Confrontation Clause?, Richard D. Friedman

Articles

In 1662, in The Case of Thomas Tong and Others, which involved charges of treason against several defendants, the judges of the King's Bench conferred on a crucial set of points of procedure. As reported by one of the judges, Sir John Kelyng, the judges agreed unanimously that a pretrial confession made to the authorities was evidence against the Party himself who made the Confession, and indeed, if adequately proved could support a conviction of that party without additional witnesses to the treason itself. But -- again unanimously, and quite definitively -- the judges also agreed that the confession cannot …

The Suggestibility Of Children: Scientific Research And Legal Implications, Stephen J. Ceci, Richard D. Friedman

Articles

In this Article, Professors Ceci and Friedman analyze psychological studies on children's suggestibility and find a broad consensus that young children are suggestible to a significant degree. Studies confirm that interviewers commonly use suggestive interviewing techniques that exacerbate this suggestibility, creating a significant risk in some forensic contexts-notably but not exclusively those of suspected child abuse-that children will make false assertions of fact. Professors Ceci and Friedman address the implications of this difficulty for the legal system and respond to Professor Lyon's criticism of this view recently articulated in the Cornell Law Review. Using Bayesian probability theory, Professors Ceci and …

Irrelevance, Minimal Relevance, And Meta-Relevance (Response To David Crump), Richard D. Friedman

Articles

Professor Crump's analysis runs the full traverse from academic theorizing to practical observation. I will attempt to follow him over the same course, addressing three questions among the congeries that he raises. First, is it true that all evidence satisfies the minimalist definition of relevance? Second, should evidentiary codes include a tighter definition of relevance? Third, how should we assess lawyers' use of evidence that, loosely speaking, is irrelevant?

Refining Conditional Probative Value, Richard D. Friedman

Articles

The subject of conditional relevance, or what I think is better called "conditional probative value," must seem hopelessly ard to many. It continues to engage the attention of evidence scholars, however, because it forms part of the conceptual underpinnings of many parts of evidentiary law. Dale'Nance, one of the most astute evidence scholars of our time, has previously written at length on the subject' and has done so now more briefly in response to an article of mine. I offer an even briefer continuation of the discussion.

Conditional Probative Value: Neoclassicism Without Myth, Richard D. Friedman

Articles

The concept of conditional relevance is an essential aspect of the classical model of evidentiary law. Some of the great scholars of evidence have endorsed and shaped it.1 Under Federal Rule of Evidence 104(b) it plays a crucial role in the division of responsibility between judge and jury,2 as well as in the application of the personal knowledge3 and authentication 4 requirements. And the Supreme Court has applied it with great force.5 In recent years, though, the concept has come under attack from several notable scholars. The late Vaughn Ball led the assault, calling the concept a "myth."'6 Peter Tillers, …

Character Impeachment Evidence: The Asymmetrical Interaction Between Personality And Situation, Richard D. Friedman

Articles

In Part I of this Comment, I present a short version of my argument against the admissibility of character impeachment evidence of criminal defendants, showing how the key elements ofthis argument are present in Professor Uviller's own Article. In Part II, I suggest that, notwithstanding Professor Uviller's comments to the contrary, an asymmetrical result-never admitting character evidence to impeach criminal defendants but admitting such evidence in some circumstances to impeach other witnesses- is perfectly reasonable. Finally, in Part III, I contend that Professor Uviller's interesting judicial surveys support the solution I have proposed for the problem of character impeachment evidence.

Toward A Partial Economic, Game-Theoretic Analysis Of Hearsay, Richard D. Friedman

Articles

In this Article, I offer a fundamentally different and nondoctrinaire way of approaching hearsay questions. In brief, I take the view that the resolution of a hearsay dispute, when the declarant is not on the stand, is essentially a matter of deciding who should bear the burden of producing the declarant, or more precisely, how courts should allocate that burden. Adopting a simple procedural improvement, concerning the examination of the declarant if she is produced as a witness, allows the court to allocate the burden optimally. If live testimony by the declarant would be more probative than prejudicial, then most …

Character Impeachment Evidence: Psycho-Bayesian (!?) Analysis And A Proposed Overhaul, Richard D. Friedman

Articles

Typically, arguments for restricting character impeachment evidence are based in part on the premise that prior crimes, at least violent crimes, generally indicate little about a person's veracity. The argument advanced here against character impeachment of criminal defendants does not rely on that premise; in fact, it accepts the premise that prior antisocial behavior, even not involving dishonesty, often does indicate a good deal about a person's general truthtelling inclination. A careful analysis of the situation of the accused on the witness stand-rather than an easy assumption about irrelevance-leads to this Article's broad conclusion that character impeachment evidence of criminal …

An Essay On The Determination Of Relevancy Under The Federal Rules Of Evidence, Arthur H. Travers Jr.

Publications

The scope of the general definition of "relevant evidence" in the Federal Rules of Evidence is ambiguous. It is unclear whether Congress, for instance, intended that certain issues be considered legislatively determined or that those issues rest within the discretion of the courts. There is also some uncertainty over the definition's applicability to several types of evidence--particularly undisputed facts such as those that provide background information or are judicially admitted.

Evidence - Disputable Presumptions; Can They Be Weighed?, Victor H. Lane

Articles

The evidential force of presumptions under the California Civil Code, I96I, was considered and the statute construed in Everett v. Stazdard Accident Insurance Co., - Cal. - , 187 Pac. 996. The defense to an action on an insurance policy, by one claiming to be the wife of the insured, was that she did not have that relationship because the marriage ceremony under which she claimed occurred while the insured had another wife then living. The question arose as to the effect upon the determination of this question of fact of the presumption that the deceased did not commit a …