Criminal Procedure Commons^™

Truth And Its Rivals In The Law Of Hearsay And Confrontation (Symposium: Truth And Its Rivals: Evidence Reform And The Goals Of Evidence Law)." , Richard D. Friedman

Articles

In this paper, I will look at the problem of hearsay and confrontation through the lens offered by this symposium's theme of "truth and its rivals." I will ask: To what extent does the law of hearsay and confrontation aspire to achieve the goal of truth in litigation? To what extent does it, or should it, seek to achieve other goals, or to satisfy other constraints on the litigation system? And, given the ends that it seeks to achieve, what should the shape of the law in this area be? My principal conclusions are as follows: In most settings, the …

Confrontation: The Search For Basic Principles, Richard D. Friedman

Articles

The Sixth Amendment to the Constitution guarantees the accused in a criminal prosecution the right "to be confronted with the Witnesses against him."' The Confrontation Clause clearly applies to those witnesses who testify against the accused at trial. Moreover, it is clear enough that confrontation ordinarily includes the accused's right to have those witnesses brought "face-toface," in the time-honored phrase, when they testify.2 But confrontation is much more than this "face-to-face" right. It also comprehends the right to have witnesses give their testimony under oath and to subject them to crossexamination. 3 Indeed, the Supreme Court has treated the accused's …

Confrontation And The Definition Of Chutzpa, Richard D. Friedman

Articles

You may know the standard illustration of chutzpa - the man who kills both his parents and then begs the sentencing court to have mercy on an orphan. In this article, I discuss a case of chutzpa that is nearly as outlandish - the criminal defendant who, having rendered his victim unavailable to testify, contends that evidence of the victim's statement should not be admitted against him because to do so would violate his right to confront her. I contend that in a case like this the defendant should be deemed to have forfeited the confrontation right. On the same …

Due Process

Touro Law Review

No abstract provided.

Right To Cross-Examine

Touro Law Review

No abstract provided.

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 …

The Next Step After Daubert: Developing A Similarly Epistemological Approach To Ensuring The Reliability Of Nonscientific Expert Testimony, Edward J. Imwinkelried

Cardozo Law Review

On June 28, 1993, after much fanfare, the United States Supreme Court rendered its decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. The decision was not only preceded by intense media attention; the decision was also immediately followed by a massive-and growing-volume of commentary. As is usually true with landmark decisions, it is imperative to identify what the Court decided and what the Court left unresolved.

Right To Be Present

Touro Law Review

No abstract provided.

Search & Seizure

Touro Law Review

No abstract provided.

Right To Be Present

Touro Law Review

No abstract provided.

Self Incrimination

Touro Law Review

No abstract provided.

Telling Tales In Court: Trial Procedure And The Story Model, Richard O. Lempert

Articles

There are three ways in which stories may figure prominently at trials. First, litigants may tell stories to jurors. Not only is there some social science evidence that this happens, but trial lawyers have an instinctive sense that this is what they do. Ask a litigator to describe a current case and she is likely to reply, "Our story is ... " Second, jurors may try to make sense of the evidence they receive by fitting it to some story pattern. If so, the process is likely to feed back on itself. That is, jurors are likely to build a …

Fourth, Fifth, And Sixth Amendments, William E. Hellerstein

Touro Law Review

No abstract provided.

Confrontation Clause

Touro Law Review

No abstract provided.

Confrontation Clause

Touro Law Review

No abstract provided.

Due Process

Touro Law Review

No abstract provided.

The Fifth Amendment: If An Aid To The Guilty Defendant, An Impediment To The Innocent One, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

The fifth amendment's privilege not to answer, critics carp, insulates the guilty defendant from revealing his complicity. While this is true, ironically it also can shackle the innocent defendant from attempting to prove that another person committed the crime. If that other person asserts the fifth amendment in response to questions designed to substitute him for the defendant, the innocent defendant can neither surmount that person's assertion nor benefit therefrom.

Consider this set of facts. A murder is committed. Defendant, charged with the crime, has evidence that Witness killed the victim. The prosecution believes only one person committed the crime. …

Videotaping Children's Testimony: An Empirical View, Paula E. Hill, Samuel M. Hill

Michigan Law Review

Increases in the number of reported incidents of child abuse and sexual molestation have resulted in more and younger children becoming courtroom participants. Some courts refuse to consider the special needs of the child in this adversarial environment. Relying on questionable precedent, these courts hold that the defendant's right to directly confront the child, as well as strict compliance with evidentiary rules, overrides that child's interest in freedom from embarrassment or psychological trauma. This Note focuses on pressures felt by the testifying child and the ways in which these pressures affect her testimony; it then proposes using videotaped testimony 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 …

I Cannot Tell A Lie: The Standard For New Trial In False Testimony Cases, Daniel Wolf

Michigan Law Review

This Note examines the question of what standard should be used for granting a new trial when a defendant's conviction is alleged to have been based, at least in part, on false testimony. Part I demonstrates the failure of the existing standards to strike a satisfactory balance between defendants' rights and the efficient administration of the criminal justice system. Part II argues that motions for retrial based upon false testimony should be governed by a standard drawn not only from newly discovered evidence cases generally, but also from cases involving prosecutorial misconduct. Finally, Part III suggests that the proper test …

The Admissibility Of Prior Silence To Impeach The Testimony Of Criminal Defendants, Rex A. Sharp

University of Michigan Journal of Law Reform

This Note focuses on whether a defendant who was called as a witness at the prior, severed trial of a codefendant and refused to testify by invoking the fifth amendment can subsequently be impeached by this silence at his own trial. In addition to the obvious implications this issue has for severed criminal trials, the factors considered when deciding whether impeachment by silence should be allowed generally are in sharpest focus in this factual setting. Thus, the analysis of the constitutional and evidentiary questions this Note enlists to argue that impeachment by silence in this context is permissible applies as …

Griffin V. California: Still Viable After All These Years, Craig M. Bradley

Michigan Law Review

In a recent article in the Michigan Law Review, Donald Ayer levels a series of attacks on the Griffin decision. Specifically, he maintains that the decision is at once too broad, because it requires "almost automatic reversal where there are any remarks explicitly focused on the defendant's silence and the inference of guilt to be drawn from it" regardless of the strength of the prosecution's case, and too narrow, because it fails to prevent the natural prejudice against the nontestifying defendant that may arise in the minds of the jurors without any encouragement from prosecutor or judge. Ayer also …

A Right To Every Woman's Evidence, Richard O. Lempert

Articles

I am indeed honored to be here with you today, honored to be joining you next year as Iowa's first Mason Ladd Visiting Distinguished Professor of Law, and honored to be giving the first Mason Ladd Lecture. The honor lies not just in the recognition you accord me, but also in the linkage to the man in whose name this recognition is given.

Reflections On Alfred Hill's "Testimonial Privilege And Fair Trial", Peter Westen

University of Michigan Journal of Law Reform

I have learned a great deal from "Testimonial Privilege and Fair Trial"-as I always do from Professor Hill's work. Indeed, he has changed my way of thinking in this area in several important respects. At the same time, I come to rather different conclusions than he regarding each of his three major topics. Part I of this article examines the problem of finding a "remedy" for testimonial privileges that violate a defendant's right to a fair trial. Part II discusses the problem of determining when a defendant is entitled to assert that the "right" has been violated. Finally, Part III …

The Future Of Confrontation, Peter K. Westen

Michigan Law Review

The Supreme Court seems to be setting the stage for a long-awaited examination of the confrontation clause. It has been ten years since the Court endeavored in Dutton v. Evans to reconcile the evidentiary rules of hearsay with the constitutional commands of confrontation. Dutton came at the tail end of a string of confrontation cases that the Court had resolved without apparent difficulty. Not surprisingly, the Court approached Dutton in the evident belief that it could resolve the constitutional problems of hearsay once and for all. Instead, after oral argument in 1969 and a rehearing in 1970, the Court found …

Compulsory Process Ii, Peter Westen

Michigan Law Review

This Article examines the validity of the conventional wisdom. It draws support for its analysis from the constitutional principles of compulsory process, and, in their absence, from related doctrine in the areas of a defendant's right to confront witnesses against him and his right to a fair trial. Part I of the article defines the constitutional standard that governs the simple case of a nonindigent defendant who makes a timely application to produce a witness from within the territory of the jurisdiction. Parts II through IV, in turn, examine that standard in the light of complicating factors such as the …

The Compulsory Process Clause, Peter Westen

Michigan Law Review

Part I of this article traces the history of compulsory process, from its origin in the English transition from an inquisitional to an adversary system of procedure to its eventual adoption in the American Bill of Rights. Part II examines the Supreme Court's seminal decision in Washington v. Texas, which recognized after a century and a half of silence that the compulsory process clause was designed to enable the defendant not only to produce witnesses, but to put them on the stand and have them heard. Part III studies the implications of compulsory process for the defendant's case, from the …

The Psychiatrist As An Expert Witness: Some Ruminations And Speculations, Bernard L. Diamond, David W. Louisell

Michigan Law Review

Consider the difference between the expert testimony of an orthopedic surgeon in a personal injury suit and the testimony of a psychiatrist in a murder trial in which some elements of the mens rea are at issue. In both instances an expert opinion is received in evidence, providing the trier of fact with technical, specialized information which must, or should, be available in order to permit a rational decision-making process. Well-established rules govern the nature of expert evidence and its mode of presentation. In legal theory, the orthopedic surgeon and the psychiatrist are both experts-physicians-who perform comparable functions in the …

Compulsory Husband-Wife Testimony In Criminal Cases

Washington and Lee Law Review

No abstract provided.

Grand Jury Secrecy, Richard M. Calkins

Michigan Law Review

When a leading state such as Illinois enacts "reform" legislation, an impact on the legislatures of other jurisdictions may be anticipated. Accordingly, a need exists for an examination of this legislation in the light of the common-law background of grand jury secrecy and for a further analysis of it in the face of the growing trend toward more liberalized discovery of grand jury minutes in other jurisdictions. It is the contention of the author that such an empirical study will demonstrate that this legislation adopted by Illinois is contrary to all modern judicial thinking and is, in fact, a retrogressive …