Evidence Commons^™

A Pragmatic Critique Of Modern Evidence Scholarship, Michael L. Seigel

UF Law Faculty Publications

This Article contends that strict adherence to optimistic rationalism has blinded evidence scholars to the reality that the law of evidence is as indeterminate as all other areas of the law. At its core is not a single goal -- the attainment of truth -- but a number of important, complex, and, alas, competing considerations. Answers to questions concerning the appropriate configuration of evidence doctrine cannot be deduced from a unitary principle; indeed, they cannot be deduced at all. Rather, arguments about evidence doctrine must be conducted in the realm of "practical reason." Practical reason is the process through which …

Faith In Reason: The Process Tradition In American Jurisprudence, Neil Duxbury

Cardozo Law Review

Even the most cursory survey of the history of jurisprudence reveals a remarkable tendency on the part of legal philosophers to develop concepts, for want of a better word, which are purportedly foundational to the existence of a legal system. Positivists and natural lawyers alike have long been committed to the search for that special concept which stands as the fons et origo of law. Legal philosophers typically frame this search in terms of a quest to discover something singular; and when they do try to conceive of a legal system as founded on a plurality of concepts, their assertions, …

False Witness: A Lawyer's History Of The Law Of Perjury, Richard H. Underwood

Law Faculty Scholarly Articles

From Cain to Potiphar's Wife to the pig and chicken laws of the Lex Salica of Clovis I, Professor Underwood examines the role of the false witness throughout history. Take a voyage extraordinaire and encounter some of history's most notorious perjurers.

Intellectual History, Probability, And The Law Of Evidence, Peter Tillers

Michigan Law Review

A Review of "Beyond Reasonable Doubt" ad "Probable Cause": Historical Perspectives on the Anglo-American Law of Evidence by Barbara J. Shapiro

Milton's Contract, Peter Lindenbaum

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Post-Modern Hearsay Reform: The Importance Of Complexity, Christopher B. Mueller

Publications

No abstract provided.

Proof In Law And Science, David H. Kaye

Faculty Scholarship

This article addresses proof in both science and law. Both disciplines utilize proof of facts and proof of theories, but for different purposes and, consequently, in different ways. Some similarities exist, however, in how both disciplines use a series of premises followed by a conclusion to form an argument, and thus constitute a logic. This article analyzes the ways in which legal logic and scientific logic differ. Finding facts in law involves the same logic but quite different procedures than scientific fact-finding. Finding, or rather constructing, the law is also very different from scientific theorizing. But such differences do not …

Bracton, The Year Books, And The "Transformation Of Elementary Legal Ideas" In The Early Common Law, David J. Seipp

Faculty Scholarship

The language of the common law has a life and a logic of its own, resilient through eight centuries of unceasing talk. Basic terms of the lawyer's specialized vocabulary, elementary conceptual distinctions, and modes of argument, which all go to make “thinking like a lawyer” possible, have proved remarkably durable in the literature of the common law. Two fundamental distinctions—between “real” and “personal” actions and between “possessory” and “proprietary” remedies—can be traced back to their early use in treatises of the first generations of professional common law judges and in reports of courtroom dialogue from the first generations of professional …

The Federal Coconspirator Exception: Action, Assertion, And Hearsay, Christopher B. Mueller

Publications

No abstract provided.

Confessions, Yale Kamisar

Book Chapters

The entry for 'Confessions' in the Encyclopedia of Crime and Justice, 1983

An Essay On The Determination Of Relevancy Under The Federal Rules Of Evidence, Arthur H. Travers Jr.

Publications

The scope of the general definition of "relevant evidence" in the Federal Rules of Evidence is ambiguous. It is unclear whether Congress, for instance, intended that certain issues be considered legislatively determined or that those issues rest within the discretion of the courts. There is also some uncertainty over the definition's applicability to several types of evidence--particularly undisputed facts such as those that provide background information or are judicially admitted.

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 …

Jailing The Innocent: The Plight Of The Material Witness, Ronald L. Carlson

Scholarly Works

Unknown to many lawyers, American legal history is marred with numerous recorded episodes of extended imprisonment of innocent American citizens. Frequently guiltless of any offense, these citizens are held because they happen to be witnesses to a crime and are financially unable to post a bond to insure their appearance to testify at the trial of the person accused of committing it. Not simply a feature of law from a bygone era, these incidents of imprisonment continue to arise today. Occasionally, a situation occurs wherein the man accused of the crime is released on bail and spends his time before …

Comments And Casenotes: To Kill A Mockingbird - Star Decisis And M'Naghten In Maryland, Kenneth Lasson

All Faculty Scholarship

There are certain pillars of jurisprudence which, despite the erosive elements of time and progress, remain sacred. After more than a century of judicial dialogue the venerable M'Naghten Rule survives as the prevailing test to determine criminal responsibility. The rule states: "To establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know …

Proof By Confession, O. John Rogge

Villanova Law Review (1956 - )

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 …

Book Review, Julius Cohen, Edgar Bodenheimer, Alfred Hill, Judson F. Falknor, Max Rheinstein, Richard F. Scott, Dexter Delony, W. Paul Gormley, Maurice H. Merrill, Norman Bursler, Neil N. Bernstein

Journal of Legal Education

No abstract provided.

Full Faith And Credit To Judgments And Public Acts, Kurt H. Nadelmann

Michigan Law Review

Interest here is concentrated on full faith and credit for public acts. But what led to insertion of the command respecting public acts cannot be divorced historically from the study of the command of full faith for judgments. The whole field, therefore, has been included in the reexamination. Clarifications obtainable on the "judgments" side, it will be seen, help also on the "public acts" side. On both sides there are historical facts which deserve greater attention than has been hitherto given, and if, as a result, some of the myths surrounding the' Lawyers Clause are exploded, the rethinking may have …

Compelling The Testimony Of Political Deviants, O. John Rogge

Michigan Law Review

Besides the two specific problems which the new federal act presents, namely, whether it imposes nonjudicial functions on federal courts, and whether it should, does and can protect against the substantial danger of state prosecution, there is a general objection that one can raise against it, and to other acts of the same type: they relate to the area of belief and opinion, the very area which was involved when the English people, spearheaded by the Puritans, engaged in the struggle with the Crown that finally resulted in the establishment of a right of silence. At least if we are …

Compelling The Testimony Of Political Deviants, O. John Rogge

Michigan Law Review

At the last term the United States Supreme Court in Ullmann v. United States upheld the constitutionality of paragraph (c) of a federal act of August 1954 which seeks to compel the testimony of communists and other political deviants. Paragraph (c) relates to witnesses before federal courts and grand juries. The Court specifically left open the question of the validity of paragraphs (a) and (b) relating to congressional witnesses. Justice Frankfurter delivered the Court's opinion. Justice Douglas, with the concurrence of Justice Black, wrote a dissent.

It is our purpose to consider the background, history and terms of this compulsory …

Morgan: Some Problems Of Proof Under The Anglo-American System Of Litigation, Roy R. Ray

Michigan Law Review

A Review of Some Problems of Proof Under the Anglo-American System of Litigation. By Edmund Morris Morgan.

The Third Degree--Its Historical Background, The Present Law And Recommendations, Charles Richard Doyle

Kentucky Law Journal

No abstract provided.

Origin And Development Of The Directed Verdict, William Wirt Blume

Michigan Law Review

Recent decisions of the Supreme Court of the United States have aroused a new interest in the familiar motion for a directed verdict. In this discussion the writer will undertake a brief examination of the antecedents of the motion, and then will trace its short but significant history.

The Premises Of The Judgment As Res Judicata In Continental And Anglo-American Law, Robert Wyness Millar

Michigan Law Review

The newly reconstituted Supreme Court of the United States has become the center of an earnest controversy with respect to the true role of the Court in constitutional interpretation. The general controversy is, of course, far from new. What makes it of more than ordinary significance is that the Court itself is revealing a tendency substantially to alter the extent, if not the nature, of judicial review. This tendency has not yet become clearly dominant, but it is apparent enough to shake the implicit faith in the Court of many of those to whom, before 1937, any criticism of the …

The Supreme Court's Construction Of The Self-Incrimination Clause, Edward S. Corwin

Michigan Law Review

The Fourth Amendment of the Constitution reads as follows: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized." The so-called "self-incrimination clause" of Amendment V reads as follows: "No person * * * shall be compelled in any criminal case to be a witness against himself."

Book Reviews

Michigan Law Review

A collection of book reviews by multiple authors.

Book Reviews

Michigan Law Review

A collection of book reviews by multiple authors.