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Articles 601 - 630 of 946
Full-Text Articles in Evidence
Proposed Amendments To Fed. R. Crim. P. 26: An Exchange: Remote Testimony, Richard D. Friedman
Proposed Amendments To Fed. R. Crim. P. 26: An Exchange: Remote Testimony, Richard D. Friedman
Articles
Recently, the Supreme Court declined to pass on to Congress a proposed change to Federal Rule of Criminal Procedure 26 submitted to it by the Judicial Conference. In this Article, Professor Friedman addresses this proposal, which would allow for more extensive use of remote, video-based testimony at criminal trials. He agrees with the majority of the Court that the proposal raised serious problems under the Confrontation Clause. He also argues that a revised proposal, in addition to better protecting the confrontation rights of defendants, should include more definite quality standards, abandon its reliance on the definition of unavailability found in …
The Conundrum Of Children, Confrontation, And Hearsay, Richard D. Friedman
The Conundrum Of Children, Confrontation, And Hearsay, Richard D. Friedman
Articles
The adjudication of child abuse claims poses an excruciatingly difficult conundrum. The crime is a terrible one, but false convictions are abhorrent. Often the evidence does not support a finding of guilt or innocence with sufficient clarity to allow a decision free of gnawing doubt. In many cases, a large part of the problem is that the prosecution's case depends critically on the statement or testimony of a young child. Even with respect to adult witnesses, the law of hearsay and confrontation is very perplexing, as anyone who has studied American evidentiary law and read Supreme Court opinions on the …
Compelled Statements From Police Officers And Garrity Immunity, Steven D. Clymer
Compelled Statements From Police Officers And Garrity Immunity, Steven D. Clymer
Cornell Law Faculty Publications
In this Article, Professor Steven Clymer describes the problem created when police departments require officers suspected of misconduct to answer internal affairs investigators' questions or face job termination. Relying on the Supreme Court's decision in Garrity v. New Jersey, courts treat such compelled statements as immunized testimony. That treatment not only renders such a statement inadmissible in a criminal prosecution of the suspect police officer, it also may require the prosecution to shoulder the daunting and sometimes insurmountable burden of demonstrating that its physical evidence, witness testimony, and strategic decisionmaking are untainted by the statement. Because police internal affairs …
When Is A Parent Not A Parent? On Doma, Civil Unions, And Presumptions Of Parenthood, Mark Strasser
When Is A Parent Not A Parent? On Doma, Civil Unions, And Presumptions Of Parenthood, Mark Strasser
Cardozo Law Review
No abstract provided.
Theories Of Uncertainty: Explaining The Possible Sources Of Error In Inferences, Vern R. Walker
Theories Of Uncertainty: Explaining The Possible Sources Of Error In Inferences, Vern R. Walker
Cardozo Law Review
No abstract provided.
Serendipity And Abduction In Proofs, Presumptions, And Emerging Laws, Pek Van Andel, Danièle Bourcier
Serendipity And Abduction In Proofs, Presumptions, And Emerging Laws, Pek Van Andel, Danièle Bourcier
Cardozo Law Review
No abstract provided.
Tales Out Of School--Spillover Confessions And Against-Interest Statements Naming Others, Christopher B. Mueller
Tales Out Of School--Spillover Confessions And Against-Interest Statements Naming Others, Christopher B. Mueller
Publications
No abstract provided.
Miranda And Some Puzzles Of 'Prophylactic' Rules, Evan H. Caminker
Miranda And Some Puzzles Of 'Prophylactic' Rules, Evan H. Caminker
Articles
Constitutional law scholars have long observed that many doctrinal rules established by courts to protect constitutional rights seem to "overprotect" those rights, in the sense that they give greater protection to individuals than those rights, as abstractly understood, seem to require.' Such doctrinal rules are typically called "prophylactic" rules.2 Perhaps the most famous, or infamous, example of such a rule is Miranda v. Arizona,' in which the Supreme Court implemented the Fifth Amendment's privilege against self-incrimination4 with a detailed set of directions for law enforcement officers conducting custodial interrogations, colloquially called the Miranda warnings. 5
Establishing Inevitability Without Active Pursuit: Defining The Inevitable Discovery Exception To The Fourth Amendment Exclusionary Rule, Stephen E. Hessler
Establishing Inevitability Without Active Pursuit: Defining The Inevitable Discovery Exception To The Fourth Amendment Exclusionary Rule, Stephen E. Hessler
Michigan Law Review
Few doctrines of constitutional criminal procedure generate as much controversy as the Fourth Amendment exclusionary rule. Beyond the basic mandate of the rule - that evidence obtained in violation of an individual's right to be secure against unreasonable search and seizure is inadmissible in a criminal proceeding - little else is agreed upon. The precise date of the exclusionary rule's inception is uncertain, but it has been applied by the judiciary for over eight decades. While the Supreme Court has emphasized that the rule is a "judicially created remedy," and not a "personal constitutional right," this characterization provokes argument as …
The Confrontation Clause: Statements Against Penal Interest As A Firmly Rooted Hearsay Exception, Amy N. Loth
The Confrontation Clause: Statements Against Penal Interest As A Firmly Rooted Hearsay Exception, Amy N. Loth
Cleveland State Law Review
This Article will explore why these types of confessions, called self-inculpatory statements, should be admissible under the Confrontation Clause of the Sixth Amendment. Part IIA of this Article will discuss the two-part test set forth in Ohio v. Roberts. Part IIB will address Lilly v. Virginia, the Supreme Court's first attempt to resolve whether statements against penal interest are sufficiently reliable to be admissible under the Confrontation Clause. Part IIB will also explore the distinction between self-inculpatory and non-self-inculpatory statements, what constitutes a "firmnly rooted" hearsay exception, and also the policy concerns behind creating a "firmly rooted" hearsay exception. Part …
Lilly V. Virginia Glimmers Of Hope For The Confrontation Clause?, Richard D. Friedman
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 …
Congress' Arrogance, Yale Kamisar
Congress' Arrogance, Yale Kamisar
Articles
Does Dickerson v. U.S., reaffirming Miranda and striking down §3501 (the federal statute purporting to "overrule" Miranda), demonstrate judicial arrogance? Or does the legislative history of §3501 demonstrate the arrogance of Congress? Shortly after Dickerson v. U.S. reaffirmed Miranda and invalidated §3501, a number of Supreme Court watchers criticized the Court for its "judicial arrogance" in peremptorily rejecting Congress' test for the admissibility of confessions. The test, pointed out the critics, had been adopted by extensive hearings and debate about Miranda's adverse impact on law enforcement. The Dickerson Court did not discuss the legislative history of §3501 at all. However, …
Kumho Tire Co. V. Carmichael: The Supreme Court Follows Up On The Daubert Test, Martin A. Schwartz
Kumho Tire Co. V. Carmichael: The Supreme Court Follows Up On The Daubert Test, Martin A. Schwartz
Scholarly Works
No abstract provided.
Reconceiving The Right To Present Witnesses, Richard A. Nagareda
Reconceiving The Right To Present Witnesses, Richard A. Nagareda
Michigan Law Review
Modem American law is, in a sense, a system of compartments. For understandable curricular reasons, legal education sharply distinguishes the law of evidence from both constitutional law and criminal procedure. In fact, the lines of demarcation between these three subjects extend well beyond law school to the organization of the leading treatises and case headnotes to which practicing lawyers routinely refer in their trade. Many of the most interesting questions in the law, however, do not rest squarely within a single compartment; instead, they concern the content and legitimacy of the lines of demarcation themselves. This article explores a significant, …
When To Hear The Hearsay: A Proposal For A New Rule Of Evidence Designed To Protect The Constitutional Right Of The Criminally Accused To Confront The Witnesses Against Her, 32 J. Marshall L. Rev. 1287 (1999), Scott A. Smith
UIC Law Review
No abstract provided.
Right To Inspect And Test Breath Alcohol Machines: Suspicion Ain't Proof, 33 J. Marshall L. Rev. 1 (1999), Gil Sapir, Mark Giangrande
Right To Inspect And Test Breath Alcohol Machines: Suspicion Ain't Proof, 33 J. Marshall L. Rev. 1 (1999), Gil Sapir, Mark Giangrande
UIC Law Review
No abstract provided.
Confrontation Confronted, Richard D. Friedman, Margaret A. Berger, Steven R. Shapiro
Confrontation Confronted, Richard D. Friedman, Margaret A. Berger, Steven R. Shapiro
Articles
The following article is an edited version of the amicus curiae brief filed with the Supreme Court of the United States in the October Term, 1998, in the case of Benjamin Lee Lilly v. Commonwealth of Virginia (No. 98-5881). "This case raises important questions about the meaning of the confrontation clause, which has been a vital ingredient of the fair trial right for hundreds of years," Professor Richard Friedman and his co-authors say. "In particular, this case presents the Court with an opportunity to reconsider the relationship between the confrontation clause and the law of hearsay." On June 10 the …
The Three Threats To Miranda, Yale Kamisar
The Three Threats To Miranda, Yale Kamisar
Articles
Miranda v. Arizona (1966) was the centerpiece of the Warren Court's "revolution" in American criminal procedure. Moreover, as Professor Stephen Schulhofer of the University of Chicago Law School has recently noted, a numbir of the Miranda safeguards "have now become entrenched in the interrogation procedures of many countries around the world." But Miranda is in serious trouble at home.
Lilly V. Virginia: A Chance To Reconceptualize The Confrontation Right, Richard D. Friedman
Lilly V. Virginia: A Chance To Reconceptualize The Confrontation Right, Richard D. Friedman
Articles
In Lilly v. Virginia, the Supreme Court once again has the opportunity to grapple with the meaning of the Confrontation Clause of the Sixth Amendmel).t. The basic facts of Lilly are simple, for they present the ageold problem of accomplice confessions. Three men, Gary Barker and Ben and Mark Lilly, went on a crime spree, during which one of them shot to death a young man they had robbed and kidnaped. Ben Lilly was charged with being the triggerman, and Barker testified to that effect at Ben's trial. Mark did not testify. But Mark had made a statement to the …
Lie Detection: The Supreme Court's Polygraph Decision, Bennett L. Gershman
Lie Detection: The Supreme Court's Polygraph Decision, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
In United States v. Scheffer, decided this past Term, the Supreme Court considered for the first time the admissibility of polygraph evidence. The Court held that exclusion of such evidence on behalf of a criminal defendant was supported by valid justifications and offended no constitutional right to present a defense.
Extradition Law At The Crossroads: The Trend Toward Extending Greater Constitutional Procedural Protections To Fugitives Fighting Extradition From The United States, Lis Wiehl
Michigan Journal of International Law
Part I of this article will describe the historical evolution of U.S. extradition law as a field parallel to, but separate from, domestic criminal procedure. Part II of this article describes the Parretti case and the Ninth Circuit's holding that the federal extradition statutory scheme of Title 18, United States Code, Section 3184, violates the Fourth Amendment to the extent that it authorizes the issuance of a provisional arrest warrant by a court without a prior evidentiary showing of probable cause to believe that the fugitive committed the crime charged abroad. Part III explores some of the implications and effects …
Taking The Cop Out Of Copping A Plea: Eradicating Police Prosecution Of Criminal Cases, Andrew Horwitz
Taking The Cop Out Of Copping A Plea: Eradicating Police Prosecution Of Criminal Cases, Andrew Horwitz
Law Faculty Scholarship
No abstract provided.
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
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 …
Focus On Faculty, Richard D. Friedman
Focus On Faculty, Richard D. Friedman
Other Publications
Professor Richard Friedman talks about his scholarship and work.
Confrontation: The Search For Basic Principles, Richard D. Friedman
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 …
Beating The Prisoner At Prisoner's Dilemma: The Evidentiary Value Of A Witness's Refusal To Testify , Russell Dean Covey
Beating The Prisoner At Prisoner's Dilemma: The Evidentiary Value Of A Witness's Refusal To Testify , Russell Dean Covey
American University Law Review
No abstract provided.
Allocating The Burden Of Proof, Bruce L. Hay
Allocating The Burden Of Proof, Bruce L. Hay
Indiana Law Journal
No abstract provided.
Dealing With Evidentiary Deficiency, Richard D. Friedman
Dealing With Evidentiary Deficiency, Richard D. Friedman
Cardozo Law Review
Lack of information distorts litigation. Claims or defenses that a party might prove easily, or that might even be undisputed, in a world of perfect information can be difficult or impossible to prove in the real world of imperfect information. Some information deficiencies are inevitable, at least in the sense that we could not eliminate them without incurring undue social costs. In some cases, however, a person's conduct may have caused the deficiency. More generally, the person may have had available a reasonable alternative course of conduct that would have eliminated, or at least mitigated, the deficiency.
Confrontation And The Definition Of Chutzpa, Richard D. Friedman
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 …
Condemned By Substance And Process: A Comment On “Doubly Condemned”: Adjustments To The Crime And Punishment Regime In The Late Slavery Period In The British Caribbean Colonies And “Under The Present Mode Of Trial, Improper Verdicts Are Very Often Given”: Criminal Procedure In The Trials Of Slaves In Antebellum Louisiana, Raymond T. Diamond
Cardozo Law Review
The substance of modem criminal law and the procedures through which that law is enforced are a subject of current debate. On the one hand, some call into question the use of criminal sanctions as a means of enforcing schemes of regulation meant to guarantee public welfare. By the same token, violent crime and crime that is otherwise malum in se has caused increasing levels of fear and concomitant calls for more vigorous enforcement of the criminal law. As a result, the rights that protect the accused from intrusions by a potentially tyrannical state and from arbitrary decision making by …