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Articles 1 - 30 of 84
Full-Text Articles in Law
"Hired Guns": Establishing The Scope Of The Proper Cross-Examination And Argument Relating To Expert Witness' Compensation In Criminal Trials, Michael C. Kovac
"Hired Guns": Establishing The Scope Of The Proper Cross-Examination And Argument Relating To Expert Witness' Compensation In Criminal Trials, Michael C. Kovac
Georgia Criminal Law Review
The outcomes of criminal cases can turn on the credibility of the parties’ expert witnesses. The compensation such experts receive in exchange for their work on cases can undermine their credibility, as it provides the experts with a financial incentive that might bias them in favor of the parties who retain them. While concerns with such bias have existed for decades, courts have been inconsistent in the defining the permissible scope of cross-examination and argument on the issue. Some courts have unduly curtailed such cross-examination and argument. Courts have also been inconsistent in their views of whether calling such expert …
Cross-Examination Content And The "Power Of Not", Patrick C. Brayer
Cross-Examination Content And The "Power Of Not", Patrick C. Brayer
Faculty Works
One of the challenges in constructing an impactful cross-examination (cross) is creating content. Many trial attorneys can effectively identify issues in the discovery process but fail to communicate to the fact finder the power of the facts as they relate to the case. Depositions can be artfully conducted and interrogatories expertly administered, but if the presenter of the evidence is unable to translate basic facts into vivid images and stories, then once-dominant discovery revelations can often be reduced to tepid references. After years of preparing one case, many trial attorneys are so hardened to the basic facts that they fail …
The Acquisition Of Scientific Evidence Between Frye And Daubert. From Ad Hominem Arguments To Cross-Examination Among Experts, Lorenzo Zoppellari
The Acquisition Of Scientific Evidence Between Frye And Daubert. From Ad Hominem Arguments To Cross-Examination Among Experts, Lorenzo Zoppellari
OSSA Conference Archive
The Frye and Daubert rulings give us two very different ways to intend the relation between law and science. Through the contributions of Wellman and Walton, we will see how the main method to question the expert’s testimony before a judge deferent to science is to question her personal integrity by using ad hominem arguments. Otherwise, using Alvin Goldman’s novice/expert problem, we will investigate if other manners of argumentative cross-examinations are possible.
Law Symposium: Adjudicating Sexual Misconduct On Campus: Title Ix And Due Process In Uncertain Times, Roger Williams University School Of Law, Michael M. Bowden
Law Symposium: Adjudicating Sexual Misconduct On Campus: Title Ix And Due Process In Uncertain Times, Roger Williams University School Of Law, Michael M. Bowden
School of Law Conferences, Lectures & Events
No abstract provided.
"Another Day" Has Dawned: The Maine Supreme Judicial Court Holds Laboratory Evidence Subject To The Confrontation Clause In State V. Mangos, Reid Hayton-Hull
"Another Day" Has Dawned: The Maine Supreme Judicial Court Holds Laboratory Evidence Subject To The Confrontation Clause In State V. Mangos, Reid Hayton-Hull
Maine Law Review
The Sixth Amendment's Confrontation Clause guarantees criminal defendants the right to “confront witnesses against them.” Specifically, the Clause ensures a criminal defendant's right to confront witnesses who testify against him by the unique medium, or “crucible,” of cross-examination. Although federal and state rules of evidence prohibiting hearsay and the Confrontation Clause are designed to protect similar interests, whether or not admission of a piece of evidence violates a defendant's rights under the Confrontation Clause is a separate analysis than whether that same piece of evidence is admissible under a rule of evidence. In 2004, the United States Supreme Court held …
Cross-Examination, College Sexual-Assault Adjudications, And The Opportunity For Tuning Up The "Greatest Legal Engine Ever Invented", H. Hunter Bruton
Cross-Examination, College Sexual-Assault Adjudications, And The Opportunity For Tuning Up The "Greatest Legal Engine Ever Invented", H. Hunter Bruton
Cornell Journal of Law and Public Policy
With its reputation as the "greatest legal engine ever invented" cross-examination rarely receives critical evaluation. This Article seeks to narrow that academic gap and offer pragmatic advice to policymakers and judges considering the in-the-trenches issues of cross-examination. Despite a great body of empirical and interdisciplinary work on cross-examination, legal scholarship often relegates discussion of cross-examination's benefits and costs to an errant footnote or a short paragraph. But cross-examination's efficacy should not be an afterthought or aside to doctrinal exegesis. Answers to the hardest questions about the presence, scope, and format of cross-examination rely on assumptions about the benefits and costs …
Newsroom: Kuckes On Discovery Ruling 7-7-2016, Sheri Qualters, Roger Williams University School Of Law
Newsroom: Kuckes On Discovery Ruling 7-7-2016, Sheri Qualters, Roger Williams University School Of Law
Life of the Law School (1993- )
No abstract provided.
Recent Development: Peterson V. State: Limitations On Defense Cross-Examination Are Permitted When The Testimony Lacks A Factual Foundation, Is Overly Prejudicial, Or Has Not Been Adequately Preserved, Meghan E. Ellis
University of Baltimore Law Forum
The Court of Appeals of Maryland held that the defendant’s right to confrontation was not violated when the defense was precluded from cross-examining a witness about hallucinations and his potential sentence prior to entering into a plea agreement. Peterson v. State, 444 Md. 105, 153-54, 118 A.3d 925, 952-53 (2015). The court found that the defendant failed to preserve the issue of a witness’s expectation of benefit with respect to pending charges, and failed to show sufficient factual foundation for a cross-examination regarding the expectation. Id. at 138-39, 118 A.3d at 944. In addition, the court found that, although not …
The Ethical Limits Of Discrediting The Truthful Witness: How Modern Ethics Rules Fail To Prevent Truthful Witnesses From Being Discredited Through Unethical Means, Todd A. Berger
Marquette Law Review
Whether the criminal defense attorney may ethically discredit the truthful witness on cross-examination and later during closing argument has long been an area of controversy in legal ethics. The vast majority of scholarly discussion on this important ethical dilemma has examined it in the abstract, focusing on the defense attorney’s dual roles in a criminal justice system that is dedicated to searching for the truth while simultaneously requiring zealous advocacy even for the guiltiest of defendants. Unlike these previous works, this particular Article explores this dilemma from the perspective of the techniques that criminal defense attorney’s use on cross-examination and …
Surrogate Testimony After Williams: A New Answer To The Question Of Who May Testify Regarding The Contents Of A Laboratory Report, Jennifer Alberts
Surrogate Testimony After Williams: A New Answer To The Question Of Who May Testify Regarding The Contents Of A Laboratory Report, Jennifer Alberts
Indiana Law Journal
No abstract provided.
Jack Weinstein And The Missing Pieces Of The Hearsay Puzzle, Richard D. Friedman
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 …
Supreme Court, New York County, People V. Vasquez, Jessica Goodwin
Supreme Court, New York County, People V. Vasquez, Jessica Goodwin
Touro Law Review
No abstract provided.
Court Of Appeals Of New York - People V. Nieves-Andino, Jason Gines
Court Of Appeals Of New York - People V. Nieves-Andino, Jason Gines
Touro Law Review
No abstract provided.
Making The Right Call For Confrontation At Felony Sentencing, Shaakirrah R. Sanders
Making The Right Call For Confrontation At Felony Sentencing, Shaakirrah R. Sanders
University of Michigan Journal of Law Reform
Felony sentencing courts have discretion to increase punishment based on un-cross-examined testimonial statements about several categories of uncharged, dismissed, or otherwise unproven criminal conduct. Denying defendants an opportunity to cross-examine these categories of sentencing evidence undermines a core principle of natural law as adopted in the Sixth Amendment: those accused of felony crimes have the right to confront adversarial witnesses. This Article contributes to the scholarship surrounding confrontation rights at felony sentencing by cautioning against continued adherence to the most historic Supreme Court case on this issue, Williams v. New York. This Article does so for reasons beyond the unacknowledged …
Unconstitutionality And The Rule Of Wide-Open Cross-Examination: Encroaching On The Fifth Amendment When Examining The Accused, Ronald L. Carlson, Michael S. Carlson
Unconstitutionality And The Rule Of Wide-Open Cross-Examination: Encroaching On The Fifth Amendment When Examining The Accused, Ronald L. Carlson, Michael S. Carlson
Scholarly Works
When Georgia adopted a new evidence code on January 1, 2013, it embraced the rule on scope of cross-examination which local courts have traditionally followed. This is the wide-open rule which permits the cross-examiner to range across the entire case, no matter how limited the direct exam. Subjects foreign to the direct can be freely explored, limited only by the rule of relevancy.
Commentators have associated the majority, more limited cross-examination methodology with American jurisprudence and the wide-ranging approach with English courts. Reflecting this divide, the Supreme Court of South Dakota recognized "two principal schools of thought" when it comes …
Sweet Caroline: The Backslide From Federal Rule Of Evidence 613(B) To The Rule In Queen Caroline's Case, Katharine T. Schaffzin
Sweet Caroline: The Backslide From Federal Rule Of Evidence 613(B) To The Rule In Queen Caroline's Case, Katharine T. Schaffzin
University of Michigan Journal of Law Reform
Since 1975, Rule 613(b) of the Federal Rules of Evidence has governed the admission of extrinsic evidence of a prior inconsistent statement in federal court. Rule 613(b) requires the proponent of the prior inconsistent statement to provide the declarant an opportunity to explain or deny it. There is no requirement that the proponent provide that opportunity at any particular time or in any particular sequence. Rule 613 reflected a change from the common law that had fallen out of fashion in the federal courts. That common law rule, known as the Rule in Queen Caroline’s Case, required the proponent of …
The Mold That Shapes Hearsay Law, Richard D. Friedman
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 …
The Right To Cross-Examine Physicians In Social Security Disability Cases, Victor G. Rosenblum
The Right To Cross-Examine Physicians In Social Security Disability Cases, Victor G. Rosenblum
Journal of the National Association of Administrative Law Judiciary
This Article examines the alternative readings and rationales of Richardson v. Perales regarding the cross-examination of reporting physicians in social security disability claim hearings. First, Part II compares the Sixth and Second Circuit's interpretation of the Perales rule, which supports the SSA's regulation and interpretation, to the Fifth Circuit's interpretation, which explicitly proclaims cross-examination, once duly requested, to be an absolute right. Part III questions whether the Perales Court's declaration that the SSA is “an [impartial] adjudicator and not . . . an advocate or adversary” remains empirically valid. Part IV discusses the SSA's recent assertions of management prerogatives that …
Someone Call 911, Crawford Is Dying - People V. Duhs, Caroline Knoepffler
Someone Call 911, Crawford Is Dying - People V. Duhs, Caroline Knoepffler
Touro Law Review
No abstract provided.
There But For The Grace Of God Go I: The Right Of Cross-Examination In Social Security Disability Hearings , Bradley S. Dixon
There But For The Grace Of God Go I: The Right Of Cross-Examination In Social Security Disability Hearings , Bradley S. Dixon
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Impeachment Methods Illustrated: Movies, Novels, And High Profile Cases, Martin A. Schwartz, John Nicodemo
Impeachment Methods Illustrated: Movies, Novels, And High Profile Cases, Martin A. Schwartz, John Nicodemo
Martin A. Schwartz
No abstract provided.
Turn-Coat Disclosure: The Importance Of Following Procedure - Turturro V. City Of New York, Brittany A. Fiorenza
Turn-Coat Disclosure: The Importance Of Following Procedure - Turturro V. City Of New York, Brittany A. Fiorenza
Touro Law Review
No abstract provided.
Accomplice Confessions And The Confrontation Clause: Crawford V. Washington Confronts Past Issues With A New Rule, Kjirstin Graham
Accomplice Confessions And The Confrontation Clause: Crawford V. Washington Confronts Past Issues With A New Rule, Kjirstin Graham
Pepperdine Law Review
No abstract provided.
Impeachment Methods Illustrated: Movies, Novels, And High Profile Cases, Martin A. Schwartz, John Nicodemo
Impeachment Methods Illustrated: Movies, Novels, And High Profile Cases, Martin A. Schwartz, John Nicodemo
Touro Law Review
No abstract provided.
The Sky Is Still Not Falling, Richard D. Friedman
The Sky Is Still Not Falling, Richard D. Friedman
Articles
Cases since Crawford have mainly fallen into two categories. One involves accusations of crime, made by the apparent victim shortly after the incident. In Michigan v. Bryant, a majority of the Court adopted an unfortunately constricted view of the word "testimonial" in this context. That decision was a consequence of the Court having failed to adopt a robust view of when an accused forfeits the confrontation right. How the Court will deal with this situation-one mistake made in an attempt to compensate for another-is a perplexing and important question. This Essay, though, concentrates on the other principal category of post-Crawford …
Confrontation And Forensic Laboratory Reports, Round Four, Richard D. Friedman
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
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 …
Confrontation And Domestic Violence Post-Davis: Is There And Should There Be A Doctrinal Exception, Eleanor Simon
Confrontation And Domestic Violence Post-Davis: Is There And Should There Be A Doctrinal Exception, Eleanor Simon
Michigan Journal of Gender & Law
Close to five million intimate partner rapes and physical assaults are perpetrated against women in the United States annually. Domestic violence accounts for twenty percent of all non-fatal crime experienced by women in this county. Despite these statistics, many have argued that in the past six years the Supreme Court has "put a target on [the] back" of the domestic violence victim, has "significantly eroded offender accountability in domestic violence prosecutions," and has directly instigated a substantial decline in domestic violence prosecutions. The asserted cause is the Court's complete and groundbreaking re-conceptualization of the Sixth Amendment right of a criminal …
Melendez-Diaz And The Right To Confrontation, Craig M. Bradley
Melendez-Diaz And The Right To Confrontation, Craig M. Bradley
Chicago-Kent Law Review
In Crawford v. Washington, the Supreme Court overruled Ohio v. Roberts and adopted new law concerning the use of hearsay testimony at criminal trials. This was based on the Sixth Amendment's command that "In all criminal prosecutions the accused shall enjoy the right . . . to be confronted with the witnesses against him .. " On its face this provision seems to say that the accused has the right to cross-examine anybody who testifies for the prosecution at trial, whether as a live witness or through hearsay. The Supreme Court acknowledged much of this in Crawford, but …
"An Opportunity For Effective Cross-Examination": Limits On The Confrontation Right Of The Pro Se Defendant, Alanna Clair
"An Opportunity For Effective Cross-Examination": Limits On The Confrontation Right Of The Pro Se Defendant, Alanna Clair
University of Michigan Journal of Law Reform
The rights of a defendant to confront his accusers and conduct his defense without the assistance of counsel are sacrosanct in the American judicial system. The rights of the defendant are even sometimes exalted at the expense of the rights of the public or of victims of crime. This Note examines the problem of a pro se defendant using his confrontation right to intimidate or harass his alleged victims testifying against him. It is well-established that the confrontation right is not unconditional. The problem comes in determining whether the courts can place limits on the confrontation right of a pro …