Law Commons^™

Recollections Refreshed And Recorded, Len Niehoff

Articles

Witnesses forget stuff. When they do, the evidence rules give us two tools to help solve the problem. Lawyers call one "refreshed recollection" and the other "past recollection recorded," labels just similar enough to guarantee confusion. Nevertheless, these principles get at very different things and are well worth the effort necessary to distinguish and understand them. So how do we get there?

Recollections Refreshed And Recorded, Leonard M. Niehoff

Articles

Witnesses forget stuff. When they do, the evidence rules give us two tools to help solve the problem. Lawyers call one "refreshed recollection" and the other "past recollection recorded," labels just similar enough to guarantee confusion. Nevertheless, these principles get at very different things and are well worth the effort necessary to distinguish and understand them.

So how do we get there?

Feigned Consensus: Usurping The Law In Shaken Baby Syndrome/Abusive Head Trauma Prosecutions, Keith A. Findley, D. Michael Risinger, Patrick D. Barnes, Julie A. Mack, David A. Moran, Barry C. Scheck, Thomas L. Bohan

Articles

Few medico-legal matters have generated as much controversy--both in the medical literature and in the courtroom--as Shaken Baby Syndrome (SBS), now known more broadly as Abusive Head Trauma (AHT). The controversies are of enormous significance in the law because child abuse pediatricians claim, on the basis of a few non-specific medical findings supported by a weak and methodologically flawed research base, to be able to “diagnose” child abuse, and thereby to provide all of the evidence necessary to satisfy all of the legal elements for criminal prosecution (or removal of children from their parents). It is a matter, therefore, in …

Incorporating Social Science Into Criminal Defense Practice, Eve Brensike Primus

Articles

In recent decades, social scientists have created a treasure trove of empirical and sociological data that defenders can and should use to help their clients. Evidence rules, criminal law, and criminal procedure are filled with concepts informed by social science. When is evidence likely to unfairly prejudice a defendant in the eyes of a jury? Do police interact differently with members of minority populations and how should that inform concepts of reasonableness? How easy or difficult is it for people to identify individuals they see during high-stress criminal episodes? How effective are police interrogation tactics at getting at the truth …

Proof At The Salem Witch Trials, Leonard M. Niehoff

Articles

As of the writing of this article, President Donald Trump's tweets have included roughly 400 references to "witch hunts." In a sense, this is unsurprising. The Salem witch trials have a special place in our national identity and vocabulary. Most Americans understand the reference, even if they know few of the historical details. And the phrase "witch hunt" serves as a useful shorthand for any frenzied chase after something that does not exist. The Salem trials also inspire a peculiar fascination: Perhaps no other site of deadly mass hysteria has become a major tourist destination.

Still, most practicing litigators probably …

New Juvenile Discovery Rules: Mandatory, Comprehensive, And Streamlined., Joshua B. Kay

Articles

The recently promulgated amendments and additions to the civil discovery rules include several changes affecting child protection and juvenile delinquency proceedings.1 The updates should make discovery in juvenile court matters more efficient by clarifying what is discoverable and requiring more timely exchange of information.

Preface To The Third Edition By The General Editor. Preface To The New Wigmore: A Treatise On Evidence: Selected Rules Of Limited Admissibility, Richard D. Friedman

Other Publications

As General Editor of this treatise, my principal job is to recruit an excellent team of authors; no one in the modern day could hope to replicate John Henry Wigmore's one-man show. David Leonard, not only a superb scholar but also an exemplary person through and through, was one of the first people I asked, and to my delight he joined the project. He tackled his assignment with great ability and broad vision--and also graciousness in dealing with a slew of editorial comments from me. With a degree of efficiency and industry that can perhaps best be described in this …

General Editor's Introduction To The Treatise, Richard D. Friedman

Other Publications

There is a story -- recalled rather wistfully by an American in 1995, shortly after the thrashing of Young America by New Zealand's Black Magic -- that in 1851 Queen Victoria came to watch the first race for what became known as the America's Cup. “Who is leading?” she asked the signal master of the royal yacht. “The America,” came the reply. “Which boat is in second place?” the Queen wanted to know. The signal master replied: “There is no second, ma'am.'DD'

This story -- which, though perhaps apocryphal, has gained a life of its own -- captures perfectly the …

Introduction, Shari S. Diamond, Richard O. Lempert

Articles

Experts bedeviled the legal system long before seventeenth-century Salem, when the town's good citizens relied on youthful accusers and witchcraft experts to identify the devil's servants in their midst. As in Salem, claims of expertise have often been questioned and objections raised about the bases of expert knowledge. Expertise, then and now, did not have to be based on science; but the importance of science and the testimony of scientific experts has since medieval times been woven into the fabric of the English jurisprudence that Americans inherited. In cases as long ago as 1299 we find examples of courts seeking …

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.

Controlling The Jury-Teaching Function, Richard D. Friedman

Articles

When evidence with a scientific basis is offered, two fundamental questions arise. First, should it be admitted? Second, if so, how should it be assessed? There are numerous participants who might play a role in deciding these questions—the jury (on the second question only), the parties (through counsel), expert witnesses on each side, the trial court, the forces controlling the judicial system (which include, but are not limited to, the appellate courts), and the scientific establishment. In this Article, I will suggest that together, the last two—the forces controlling the judicial system and the scientific establishment—have a large role to …

The Miranda Case Fifty Years Later, Yale Kamisar

Articles

A decade after the Supreme Court decided Miranda v. Arizona, Geoffrey Stone took a close look at the eleven decisions the Court had handed down “concerning the scope and application of Miranda.” As Stone observed, “[i]n ten of these cases, the Court interpreted Miranda so as not to exclude the challenged evidence.” In the eleventh case, the Court excluded the evidence on other grounds. Thus, Stone noted, ten years after the Court decided the case, “the Court ha[d] not held a single item of evidence inadmissible on the authority of Miranda.” Not a single item. To use …

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 …

Law And Local Activism: Uncovering The Civil Rights History Of Chambers V. Mississippi, Emily Prifogle

Articles

Countless academics have examined and discussed the importance of Chambers v. Mississippi in a multitude of areas including compulsory due process, admission of hearsay, third party guilt evidence, false confessions, racial evaluations of hearsay and witnesses, and morally reasonable verdicts. In contrast, this article attempts to excavate the account of a rural Mississippi community’s struggle for rights that underlies the U.S. Supreme Court decision in Chambers. On its face, the case has no link or reference to the civil rights movement. However, this paper reveals that local civil rights activists took armed, direct economic action for equal rights Woodville, Mississippi, …

The Rise, Decline And Fall(?) Of Miranda, Yale Kamisar

Articles

There has been a good deal of talk lately to the effect that Miranda1 is dead or dying-or might as well be dead.2 Even liberals have indicated that the death of Miranda might not be a bad thing. This brings to mind a saying by G.K. Chesterton: "Don't ever take a fence down until you know the reason why it was put up."4

King Arthur Confronts Twiqy Pleading, Edward H. Cooper

Articles

Rule 25 of the 1912 Equity Rules stated that "it shall be sufficient that a bill in equity shall contain ... a short and simple statement of the ultimate facts upon which the plaintiff asks relief, omitting any mere statement of evidence." Not mere conclusions, not evidence, but "ultimate facts." And, at that, not facts "constituting the cause of action." The bare words of Rule 25 could mean something quite different to a twenty-first-century audience than they meant to a twentieth-century audience. But they may serve as a foil to the challenge framed by the Supreme Court in Bell Atlantic …

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 …

Shaken Baby Syndrome, Abusive Head Trauma, And Actual Innocence: Getting It Right, Keith A. Findley, Patrick D. Barnes, David A. Moran, Waney Squier

Articles

In the past decade, the existence of shaken baby syndrome (SBS) has been called into serious question by biomechanical studies, the medical and legal literature, and the media. As a result of these questions, SBS has been renamed abusive head trauma (AHT). This is, however, primarily a terminological shift: like SBS, AHT refers to the two-part hypothesis that one can reliably diagnose shaking or abuse from three internal findings (subdural hemorrhage, retinal hemorrhage, and encephalopathy) and that one can identify the perpetrator based on the onset of symptoms. Over the past decade, we have learned that this hypothesis fits poorly …

Symposium: Examining Shaken Baby Syndrome Convictions In Light Of New Medical And Scientific Research, David A. Moran

Articles

I've been asked to react to Professor Findley's talk, and I just wanted to try to put this in a concrete format that we can understand. In the summer of 2001, when my oldest daughter was about six months old, I put her in a backpack (the kind that you strap to your back) to go for a hike. In trying to get her out of that backpack after the walk, I dropped her, and she landed on her head, and she very briefly lost consciousness. So I rushed her to the University of Michigan Medical Center in Ann Arbor, …

False Convictions, Phoebe C. Ellsworth, Samuel R. Gross

Book Chapters

False convictions have received a lot of attention in recent years. Two-hundred and forty-one prisoners have been released after DNA testing has proved their innocence, and hundreds of others have been released without DNA evidence. We now know quite a bit more about false convictions than we did thirty years ago - but there is much more that we do not know, and may never know.

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 …

Potential Responses To The Melendez-Diaz Line Of Cases, Richard D. Friedman

Articles

Criminal prosecution is increasingly dependent on proof of the results of forensic laboratory tests. They are used, for example, to prove that a given substance contains cocaine; the prove what a driver’s blood alcohol content was; and to demonstrate that the DNA profile of some substance found at the crime scene matches that of the accused.

In Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), the United States Supreme Court resolved a question that had divided the lower courts in the wake of Crawford v. Washington, 541 U.S. 36 (2004). The Melendez-Diaz Court held by a 5-4 vote that forensic laboratory …

Who Must Testify To The Results Of A Forensic Laboratory Test? Bullcoming V. New Mexico, Richard D. Friedman

Articles

Does the Confrontation Clause permit the prosecution to introduce a forensic laboratory report through the in-court testimony of a supervisor or other person who did not perform or observe the reported test?

Hanging On By A Thread: The Exclusionary Rule (Or What's Left Of It) Lives For Another Day, David A. Moran

Articles

Back when there was a Soviet Union, foreign intelligence officers would anxiously await the May Day parade in Moscow to see who would be standing next to the chairman of the Communist Party and who would be missing from the reviewing platform altogether. Since the Soviet government and the statecontrolled press published very little about what was really going on in the halls of state power, this was considered the most reliable way to determine who was in or out of favor and, by extension, how the domestic and foreign policies of the world's second most powerful country were likely …

John Henry Wigmore, Richard D. Friedman

Book Chapters

Wigmore, John Henry (1863-1943). Law professor and dean. Wigmore was born and reared in San Francisco. His parents were both immigrants, his mother from England and his father, of English heritage, from Ireland. Harry, as he was known familiarly, was the oldest and most favored of his extraordinarily doting mother's seven children. The family was prosperous - his father had an importing business - and Harry was educated principally in private schools. He then attended Harvard College, prompting the mother to move the family to Massachusetts to be close to him. After graduating in 1883, he spent a brief interlude …

Giles V. California: A Personal Reflection, Richard D. Friedman

Articles

In this Essay, Professor Friedman places Giles v. California in the context of the recent transformation of the law governing the Confrontation Clause of the Sixth Amendment. He contends that a robust doctrine of forfeiture is an integral part of a sound conception of the confrontation right. One reason this is so is that cases fitting within the traditional hearsay exception for dying declarations can be explained as instances of forfeiture. This explanation leads to a simple structure of confrontation law, qualified by the principle that the confrontation right may be waived or forfeited but not subject to genuine exceptions. …

Is A Forensic Laboratory Report Identifying A Substance As A Narcotic 'Testimonial'?, Richard D. Friedman

Articles

Is a state forensic analyst's laboratory report, prepared for use in a criminal proceeding and identifying a substance as cocaine, "testimonial" evidence and so subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004)?