Law Commons^™

Tragedies Of The Cultural Commons, Etienne C. Toussaint

Faculty Publications

In the United States, Black cultural expressions of democratic life that operate within specific historical-local contexts, yet reflect a shared set of sociocultural mores, have been historically crowded out of the law and policymaking process. Instead of democratic cultural discourse occurring within an open and neutral marketplace of ideas, the discursive production and consumption of democratic culture in American politics has been rivalrous. Such rivalry too often enables dominant White supremacist cultural beliefs, values, and practices to exercise their hegemony upon law’s production and meaning. The result has been tragedy for politically disempowered and socioeconomically excluded communities.

This Article uses …

Demystifying Mindreading For The Law, Teneille R. Brown

Utah Law Faculty Scholarship

To lawyers, mindreading conjures up flamboyant images of crystal balls or charlatans. However, it is a deeply serious endeavor for the law. The primary role of fact-finders in civil, criminal, and administrative trials in the United States is to serve as highly-regulated mind readers—to listen to the testimony and decide whether the witnesses are credible and telling the truth. Because it can be so easily biased, we must directly acknowledge how jurors and judges (in addition to voters and employers) automatically and imperfectly read minds. We must remove the “mystique of mindreading,” and see how ordinary assessments of mental states …

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.

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 …

What Will We Lose If The Trial Vanishes?, Robert P. Burns

Faculty Working Papers

The number of trials continues to decline andfederal civil trials have almost completely disappeared. This essay attempts to address the significance of this loss, to answer the obvious question, "So what?" It argues against taking a resigned or complacent attitude toward an important problem for our public culture. It presents a short description of the trial's internal structure, recounts different sorts of explanations, and offers an inventory of the kinds of wounds this development would inflict.

"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

All Faculty Scholarship

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 …

The Death Of The American Trial, Robert P. Burns

Faculty Working Papers

This short essay is a summary of my assessment of the meaning of the "vanishing trial" phenomenon. It addresses the obvious question: "So what?" It first briefly reviews the evidence of the trial's decline. It then sets out the steps necessary to understand the political and social signficance of our vastly reducing the trial's importance among our modes of social ordering. The essay serves as the Introduction to a book, The Death of the American Trial, soon to be published by the University of Chicago Press.

Truth Tales And Trial Films, Jessica Silbey

Faculty Scholarship

Investigations into law and popular culture preoccupy themselves with understanding how law and popular cultural forms work together to challenge or sustain community structures, identity and power. It is inevitable at this point in our cultural history that law and popular culture are intertwined. There are too many television shows, films, popular novels and web-based entertainment to withdraw "the law" (whatever that is) from the domain of popular culture. This article takes as a given the intermixing of law and popular culture, embracing it as a new feature of our popular legal consciousness. I suggest that one result of this …

Holmes V. South Carolina Upholds Trial By Jury, Samuel R. Gross

Articles

Bobby Lee Holmes was convicted of a brutal rape-murder and sentenced to death. The only evidence that connected him to the crime was forensic: a palm print, and blood and fiber evidence. (Biological samples taken from the victim for two rape kits were compromised and yielded no identifiable evidence.) Holmes claimed that the state's forensic evidence was planted and mishandled, and that the rape and murder were committed by another man, Jimmy McCaw White. At a pretrial hearing three witnesses testified that they saw White near the victim's house at about the time of the crime, and four others testified …

Expert Information And Expert Evidence: A Preliminary Taxonomy, Samuel R. Gross, Jennifer L. Mnookin

Articles

Federal Rule of Evidence 702 speaks in very general terms. It governs every situation in which "scientific, technical or other specialized knowledge will assist the trier of fact," and provides that, in that situation, "a witness qualified as an expert by knowledge, skill, experience, or education, may testify thereto in the form of an opinion or otherwise . . . .' In 2000, following a trio of Supreme Court cases interpreting Rule 702, the Rule was amended to include a third requirement, in addition to the helpfulness of the testimony and the qualifications of the witness: reliability. Under Rule 702 …

Some Steps Between Attitudes And Verdicts, Phoebe C. Ellsworth

Book Chapters

Most research that has attempted to predict verdict preferences on the basis of stable juror characteristics, such as attitudes and personality traits, has found that individual differences among jurors are not very useful predictors, accounting for only a small proportion of the variance in verdict choices. Some commentators have therefore concluded that verdicts are overwhelmingly accounted for by "the weight of the evidence," and that differences among jurors have negligible effects. But there is a paradox here: In most cases the weight of the evidence is insufficient to produce firstballot unanimity in the jury (Hans & Vidmar, 1986; Hastie, Penrod, …

Dial-In Testimony, Richard D. Friedman, Bridget Mary Mccormack

Articles

For several hundred years, one of the great glories of the common law system of criminal justice has been the requirement that prosecution witnesses give their testimony in the presence of the accused" face to face," in the time-honored phrase-under oath, subject to cross-examination, and, unless unfeasible, in open court. In the United States, this principle is enshrined in the Confrontation Clause of the Sixth Amendment, which provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." But now a new way is developing for witnesses for the prosecution …

Lost Lives: Miscarriages Of Justice In Capital Cases, Samuel R. Gross

Articles

In case after case, erroneous conviction for capital murder has been proven. I contend that these are not disconnected accidents, but systematic consequences of the nature of homicice prosecution in the general and capital prosecution in particular - that in this respect, as in others, death distorts and undermines the course of the law.

Admissibility Of Evidence In Virginia: A Manual For Virginia Trial Lawyers, 2nd Edition, Ronald J. Bacigal

Law Faculty Publications

This book compiles statutory and case law dealing with the admissibility of evidence. An alphabetical format keyed into subject headings is utilized in order to facilitate quick, accurate access to cases and statutes which answer most basic evidentiary questions. We have also tried, where feasible, to use the language of the court or statute rather than our own interpretation. We believe this approach most usefully serves the purposes of providing a quick, authoritative answer. The format does not allow for extended theoretical discussion, nor does it purport to be an exhaustive survey of all relevant cases. The reader is encouraged …

Law In The Backwaters: A Comment Of Mirjan Damaška's Evidence Law Adrift, Samuel R. Gross

Reviews

The most problematic part of Professor Mirjan Damaška's fine book is the title.' Professor Damaška does an excellent job of situating American evidence law in the procedural context in which American trials occur. He identifies three major procedural elements. First, juries are traditionally cited as the primary or sole explanation for our extensive set of exclusionary rules, which are said to express mistrust of lay adjudicators. Professor Damaška points out as well that lay juries permit a divided court, with a professional judge who has exclusive control over "questions of law," and that this division is necessary for the operation …

Lost Lives: Miscarriages Of Justice In Capital Cases, Samuel R. Gross

Articles

One of the longstanding complaints against the death penalty is that it "distort[s] the course of the criminal law."' Capital prosecutions are expensive and complicated; they draw sensational attention from the press; they are litigated-before, during, and after trial-at greater length and depth than other felonies; they generate more intense emotions, for and against; they last longer and live in memory. There is no dispute about these effects, only about their significance. To opponents of the death penalty, they range from minor to severe faults; to proponents, from tolerable costs to major virtues. ntil recently, however, the conviction of innocent …

That's My Story And I'M Stickin' To It: The Jury As Fifth Business In The Trial Of O.J. Simpson And Other Matters, Marianne Wesson

Publications

No abstract provided.

The Risks Of Death: Why Erroneous Convictions Are Common In Capital Cases (Symposium: The New York Death Penalty In Context), Samuel R. Gross

Articles

As the Supreme Court has said, time and again, death is different: It is "different in kind from any other punishment imposed under our system of criminal justice;"1 it "differs more from life imprisonment than a 100-year sentence differs from one of only a year or two;"' 2 and so forth. Traditionally, this observation has justified special procedural protections for capital defendants. Justice Harlan put it nicely nearly forty years ago: "I do not concede that whatever process is 'due' an offender faced with a fine or a prison sentence necessarily satisfies the requirements of the Constitution in a capital …

Prior Statements Of A Witness: A Nettlesome Corner Of The Hearsay Thicket, Richard D. Friedman

Articles

In Tome v United States, for the fifth time in eight years, the Supreme Court decided a case presenting the problem of how a child's allegations of sexual abuse should be presented in court. Often the child who charges that an adult abused her is unable to testify at trial, or at least unable to testify effectively under standard procedures. These cases therefore raise intriguing and difficult questions related to the rule against hearsay and to an accused's right under the Sixth Amendment to confront the witnesses against him. One would hardly guess that, however, from the rather arid debate …

Challenging Public Investigative Reports: How To Fight The Hearsay Exception, Steven P. Grossman, Stephen J. Shapiro

All Faculty Scholarship

This paper discusses how attorneys can argue against having government and public reports admitted into evidence at trial that would be damaging to their client. When this paper was done, such reports were admitted via Federal Rule of Evidence 803(8)(C). The authors argue that it is possible to challenge admission of factual findings in public reports despite various court decisions which make this difficult.

Proving The Defendant's Bad Character, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The classic study of the American jury shows that when a defendant's criminal record is known and the prosecution's case has weaknesses, the defendant's chances of acquittal are thirty-eight percent, compared to sixty-five percent otherwise. Because of the danger that jurors will assume that the defendant is guilty based on proof that his bad character predisposes him to an act of crime, the courts and legislatures have attempted to circumscribe the use of such evidence. Some prosecutors, however, although well aware of the insidious effect such prejudicial evidence can have on jurors, violate the rules of evidence, as well as …

Loss Of Innocence: Eyewitness Identification And Proof Of Guilt, Samuel R. Gross

Articles

It is no news that eyewitness identification in criminal cases is a problem; it is an old and famous problem. Judges and lawyers have long known that the identification of strangers is a chancy matter, and nearly a century of psychological research has confirmed this skeptical view. In 1967 the Supreme Court attempted to mitigate the problem by regulating the use of eyewitness identification evidence in criminal trials; since then it has retreated part way from that effort. Legal scholars have written a small library of books and articles on this problem, the courts' response to it, and various proposed …

The Hearsay Exception For Public Records In Federal Criminal Trials, Vincent C. Alexander

Faculty Publications

The hearsay exception for "public records" was recognized at common law and has been further developed in most jurisdictions by statute. The reliability of public records is said to derive from the presumption of regularity and accuracy that attends the recording of events by public officials. As with the hearsay exception for recordsmade in the regular course of a private business, the reliability of many public records is enhanced by the routine and repetitive circumstancesunder which such records are made. An additional justificationfor the admission of public records is public convenience: If government employees are continually required to testify in …

Rules Pertaining To Witnesses, John W. Reed

Book Chapters

Article VI of the Michigan Rules of Evidence contains the rules dealing with witnesses. Trials bring to mind testimonial evidence. There surely are other kinds of evidence, such as docmnents, guns, automobile tires, chemical substances, and the like. But most evidence comes from the mouths of witnesses, and even demonstrative evidence usually is admitted only after a witness has taken the stand and testified to foundation facts. So it is important and appropriate that we turn to the provisions of the rules that deal with qualifications and credibility of witnesses. I would like to direct your attention to MRE 601 …

Opinions And Expert Testimony, John W. Reed

Book Chapters

Article VI of the Michigan Rules of Evidence contains the rules dealing with witnesses. Trials bring to mind testimonial evidence. There surely are other kinds of evidence, such as docmnents, guns, automobile tires, chemical substances, and the like. But most evidence comes from the mouths of witnesses, and even demonstrative evidence usually is admitted only after a witness has taken the stand and testified to foundation facts. So it is important and appropriate that we turn to the provisions of the rules that deal with qualifications and credibility of witnesses. I would like to direct your attention to MRE 601 …

Evidence Problems In Criminal Cases, John W. Reed

Book Chapters

The Federal Rules of Evidence, enacted by Congress, became effective on July 1, 1975. Ten states have adopted state versions of the Federal Rules to govern trials in their courts, and about half the remaining states are considering whether to follow suit. Michigan is one of these latter states. Early in 1977 a committee appointed by the Supreme Court of Michigan proposed rules of evidence for Michigan closely patterned on the Federal Rules, and, if all goes well, the Court will promulgate rules for the Michigan courts to become effective in 1977 or soon thereafter. Michigan lawyers should be aware …

Foreword: Brewer V. Williams--A Hard Look At A Discomfiting Record, Yale Kamisar

Articles

In recent decades, few matters have split the Supreme Court, troubled the legal profession, and agitated the public as much as the police interrogation-confession cases. The recent case of Brewer v. Williams3 is as provocative as any, because the Supreme Court there revdrsed the defendant's conviction for the "savage murder of a small child" even though no Justice denied his guilt,4 he was warned of his rights no fewer than five times, 5 and any "interrogation" that might have occurred seemed quite mild.6

Witness--Competency Of An Allopathic Expert In The Field Of Homeopathy--Opinion On Very Fact The Jury Must Determine, Victor H. Lane

Articles

Van Sickle v. Doolittle, (Ia., 1918), 169 N. W. 141, was an action for malpractice against a physician of the homeopathic school of medicine. Upon the trial, a physician of the allopathic school was called, and after testifying that he was unskilled in the science of homeopathy, was allowed to testify that the treatment shown to have been given to the patient by defendant, would produce no physiological effect, and that proper treatment required the giving of such medicines as would produce such effect. This was held error upon the ground that the defendant was called to treat the patient …

The Investigation Of Corporate Monopolies, Edson R. Sunderland

Articles

The Supreme Court of the United States has recently given a clear and brief statement of its views respecting the right of a corporation officer to refuse to testify on the ground that his testimony may subject the corporation to a criminal prosecution. Hale v. Henkel, 26 Sup. Ct. Rep. 370. Hale was summoned before a grand jury in a proceeding under the Sherman anti-trust act, and upon being interrogated respecting certain transactions of the MacAndrews & Forbes Co., of which he was Secretary and Treasurer, refused to answer, on the ground that the Federal immunity law was not broad …

Compensation Of Experts, Henry W. Rogers

Articles

The law relating to the compensation of experts is somewhat unsettled, and the cases are not numerous in which the subject has been considered. This very fact, however, lends additional interest to the subject, and the question is one of great importance. In some of the States the law expressly provides that when a witness is summoned to testify as an expert he shall be entitled to extra compensation. Such a provision may be found in the laws of Iowa, of North Carolina, and of Rhode Island.