Evidence Commons^™

The Liar’S Mark: Character And Forfeiture In Federal Rule Of Evidence 609(A)(2), Jesse Schupack

Michigan Law Review

Rule 609(a)(2) of the Federal Rules of Evidence is an outlier. The Rule mandates admission of impeaching evidence of a witness’s past convictions for crimes of dishonesty. It is the only place in the Rules where judges are denied their usual discretion to exclude evidence on the grounds that its admission would be more prejudicial than probative. This Note analyzes three assumptions underlying this unusual Rule: (1) that there is a coherently definable category of crimes of dishonesty, (2) that convictions for crimes of dishonesty are uniquely probative of a person’s character, and (3) that an assessment of moral character …

Litigation Academy Helps Lawyers Hone Skills 4-30-2018, Katie Mulvaney, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Reliability Of Expert Evidence In International Disputes, Matthew W. Swinehart

Michigan Journal of International Law

Part I of this article traces the historical trends in the use of expert evidence in international disputes, from the scattered reliance on experts in the nineteenth and early twentieth centuries to the ubiquity of experts in modern disputes. With that perspective, Part II examines how decision makers have attempted to ensure reliability of the expert evidence that is flooding the evidentiary records of international disputes, while Part III outlines the many problems that still remain. Finally, Part IV proposes a non-exhaustive and nonbinding checklist of questions for analyzing the reliability of any type of expert evidence.

Cross-Racial Identification Errors In Criminal Cases, Sheri Johnson

Sheri Lynn Johnson

No abstract provided.

Hiding The Elephant (How The Psychological Techniques Of Magicians Can Be Used To Manipulate Witnesses At Trial), Sydney A. Beckman

Sydney A. Beckman

In 1917 Harry Houdini performed a single, yet incredible, illusion; “[u]nder the bright spotlights of New York’s Theatre Hippodrome, he made a live elephant disappear.” In 1983 David Copperfield made the Statue of Liberty Disappear in front of both a live and a national television audience. To be sure, neither the elephant nor Lady Liberty actually disappeared. But from the perspective of the audience they did, indeed, disappear. So which is correct? Did they, or didn’t they?

Trial Lawyers and Magicians share many of the same talents and skills. Misdirection, misinformation, selective-attention, ambiguity, verbal manipulation, body language interpretation, and physical …

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 Jury Wants To Take The Podium -- But Even With The Authority To Do So, Can It? An Interdisciplinary Examination Of Jurors' Questioning Of Witnesses At Trial, Mitchell J. Frank

Faculty Scholarship

No abstract provided.

Some Thoughts On The Fundamentals Of An Evidence Code From The U.S. American Perspective, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

In the U.S. American trial system proof mainly consists of live witnesses presented in open court under oath before the judge, jury, and parties, subject to perjury laws. Cross-examination of the witnesses in that setting is the principal (though not the only) form of testing their reliability. It is for these reasons that we have a rule against hearsay (second-hand reporting in court of what someone has said outside of court).

A Model For Fixing Identification Evidence After Perry V. New Hampshire, Robert Couch

Michigan Law Review

Mistaken eyewitness identifications are the leading cause of wrongful convictions. In 1977, a time when the problems with eyewitness identifications had been acknowledged but were not yet completely understood, the Supreme Court announced a test designed to exclude unreliable eyewitness evidence. This standard has proven inadequate to protect against mistaken identifications. Despite voluminous scientific studies on the failings of eyewitness identification evidence and the growing number of DNA exonerations, the Supreme Court's outdated reliability test remains in place today. In 2012, in Perry v. New Hampshire, the Supreme Court commented on its standard for evaluating eyewitness evidence for the first …

Timeless Trial Strategies And Tactics: Lessons From The Classic Claus Von Bülow Case, Daniel M. Braun

Daniel M Braun

In this new Millennium -- an era of increasingly complex cases -- it is critical that lawyers keep a keen eye on trial strategy and tactics. Although scientific evidence today is more sophisticated than ever, the art of effectively engaging people and personalities remains prime. Scientific data must be contextualized and presented in absorbable ways, and attorneys need to ensure not only that they correctly understand jurors, judges, witnesses, and accused persons, but also that they find the means to make their arguments truly resonate if they are to formulate an effective case and ultimately realize justice. A decades-old case …

The Unreliability Of Testimony From A Witness With Multiple Personality Disorder (Mpd): Why Courts Must Acknowledge The Connection Between Hypnosis And Mpd And Adopt A “Per Se” Rule Of Exclusion For Mpd Testimony, Mark Anthony Miller

Pepperdine Law Review

No abstract provided.

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

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 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?

The Legality And Practicality Of Remote Witness Testimony, Fredric Lederer

Popular Media

No abstract provided.

"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 …

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. …

Does An Accused Forfeit The Confrontation Right By Murdering A Witness, Absent A Purpose To Render Her Unavailable?, Richard D. Friedman

Articles

If an accused murdered a witness, should he be deemed to have forfeited the right under the Sixth Amendment "to be confronted with" the witness, absent proof that the accused committed the murder for the purpose of rendering her unavailable as a witness?

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)?

Crawford And Davis: A Personal Reflection, Richard D. Friedman

Articles

I have to say that when I stood up to argue Hammon I felt the wind at my back. I was basically a lawyer with an easy case, and there wasn't anything particularly unpredictable at the argument of Hammon. Now it got a little bit interesting, as I will explain later, because to a certain extent I was trying to argue the other case as well. But Hammon itself was sort of ordinary, normal law.

Crawford, Davis, And Way Beyond, Richard D. Friedman

Articles

Until 1965, the Confrontation Clause of the Sixth Amendment to the United States Constitution hardly mattered. It was not applicable against the states, and therefore had no role whatsoever in the vast majority of prosecutions. Moreover, if a federal court was inclined to exclude evidence of an out-of-court statement, it made little practical difference whether the court termed the statement hearsay or held that the evidence did not comply with the Confrontation Clause.

Forfeiture Of The Confrontation Right After Crawford And Davis, Richard D. Friedman

Articles

So my topic this morning is on forfeiture of the confrontation right, which I think plays a central role in confrontation doctrine. And to try to present that, let me state the entirety of confrontation doctrine as briefly as I can. This is, at least, what I think the doctrine is and what it can be: A testimonial statement should not be admissible against an accused to prove the truth of what it asserts unless the accused either has had or will have an opportunity to confront the witness-which should occur at trial unless the witness is then unavailable-or has …

We Really (For The Most Part) Mean It!, Richard D. Friedman

Articles

I closed my petition for certiorari in Hammon v. Indiana by declaring, “ ‘We really mean it!’ is the message that lower courts need to hear, and that decision of this case can send.” The prior year, Crawford v. Washington had transformed the law of the Confrontation Clause, holding that an out-ofcourt statement that is testimonial in nature may be admitted against an accused only if the maker of the statement is unavailable and the accused has had an opportunity to cross-examine her. But Crawford deliberately left undetermined what the term “testimonial” meant. Many lower courts gave it a grudging …

Grappling With The Meaning Of 'Testimonial', Richard D. Friedman

Articles

Crawford v. Washington, has adopted a testimonial approach to the Confrontation Clause of the Sixth Amendment. Under this approach, a statement that is deemed to be testimonial in nature may not be introduced at trial against an accused unless he has had an opportunity to cross-examine the person who made the statement and that person is unavailable to testify at trial. If a statement is not deemed to be testimonial, then the Confrontation Clause poses little if any obstacle to its admission.2 A great deal therefore now rides on the meaning of the word "testimonial."

Face To Face With The Right Of Confrontation, Richard D. Friedman

Other Publications

This article is an edited excerpt from the amicus curiae brief filed in Crawford v. Washington, heard before the United States Supreme Court on November 10, 2003. Prof. Friedman wrote the brief for the Court.

Crawford V. Washington, Richard D. Friedman

Articles

On June 9, by granting certiorari in Crawford v. Washington, 02-9410, the Supreme Court signaled its intention to enter once again into the realm of the Confrontation Clause, in which it has found itself deeply perplexed. This time there was a difference, however, because the grant indicated that the Court might be willing to rethink its jurisprudence in this area. Crawford, like Lee v. Illinois, 476 U.S. 530 (1986), and Lilly v. Virginia, 527 U.S. 116 (1999), presents a classic case of what might be called station-house testimony. Michael Crawford was accused of stabbing another man. His wife, Sylvia, was …

Confrontation As A Hot Topic: The Virtues Of Going Back To Square One, Richard D. Friedman

Articles

I have been working so obsessively on the accused's right to confront the witnesses against him 1 that I am gratified that the organizers of this conference have designated confrontation as one of the "hot topics" of Evidence law. I am not so egotistical as to think that my work has made confrontation into a hot topic; I am just glad to know that I am working where a good deal of action is, and that other scholars recognize that confrontation is an important area in which dramatic changes may be occurring.

Proposed Amendments To Fed. R. Crim. P. 26: An Exchange: Remote Testimony - A Prosecutor's Perspective, Lynn Helland

University of Michigan Journal of Law Reform

Although the Supreme Court has declined, for now, to endorse the Judicial Conference proposal to add a Rule 26(b) of the Federal Rules of Criminal Procedure to permit live video testimony under limited circumstances, I agree with Professor Friedman that the matter is far from over. This is both because the potential benefits to be realized from the use of remote video testimony are too large to ignore and because, on closer inspection, any Confrontation Clause concerns that might underlie the Court's hesitation to adopt the proposal are not warranted. My purpose in writing is to summarize some of the …

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 …

Expert Testimony On Fingerprints: An Internet Exchange, Richard D. Friedman, David H. Kaye, Jennifer Mnookin, Dale Nance, Michael Saks

Articles

In United States v. Llera Plaza, 188 F. Supp. 2d 549 (E.D. Pa. 2002), a federal district initially limited expert opinion testimony on fingerprint identifications because the government was unable to show that such identifications were sufficiently valid and reliable under Federal Rule of Evidence 702. Then, the court withdrew the opinion. This article reproduces an exchange of notes on the initial opinion submitted by five law professors.