Evidence Commons^™

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, …

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 …

Narrative Relevance, Imagined Juries, And A Supreme Court Inspired Agenda For Jury Research, Richard O. Lempert

Articles

This paper has its roots in Old Chief v. United States, a case the Supreme Court of the United States decided in 1997. I will begin by describing this case; then comment on its implications for the Supreme Court's conception of the jury, and conclude by examining the agenda one may draw from it for empirical jury research. Old Chief arose when Johnny Lynn Old Chief was charged not only with assault with a dangerous weapon and using a firearm in the commission of a crime of violence, but also with violating a law that precludes convicted felons from possessing …

Confessions, Search And Seizure And The Rehnquist Court, Yale Kamisar

Articles

About the time William Rehnquist ascended to the Chief Justiceship of the United States, two events occurred that increased the likelihood that Miranda would enjoy a long life. In Moran v. Burbine,' a 6-3 majority held that a confession preceded by an otherwise valid waiver of a suspect's Miranda rights should not be excluded either (a) because the police misled an inquiring attorney when they told her they were not going to question the suspect she called about or (b) because the police failed to inform the suspect of the attorney's efforts to reach him.

Dna Database Searches And The Legal Consumption Of Scientific Evidence, Peter Donnelly, Richard D. Friedman

Articles

DNA evidence has transformed the proof of identity in criminal litigation, but it has also introduced daunting problems of statistical analysis into the process. In this Article, we analyze a problem related to DNA evidence that is likely to be of great and increasing significance in the near future. This is the problem of whether, and how, to present evidence that the suspect has been identified through a DNA database search. In our view, the two well-known reports on DNA evidence issued by the National Research Council ("NRC"), each of which has carried great authority with the American courts on …

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 …

The Federal Psychotherapist-Patient Privilege After Jaffee: Truth And Other Values In A Therapeutic Age, Christopher B. Mueller

Publications

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

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 …

On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit, Brief Of Law Professors Paul F. Rothstein, Et. Al., Office Of The President V. Office Of Independent Counsel, Paul F. Rothstein, Ronald J. Allen, Margaret A. Berger, William J. Bridge, Paul C. Giannelli, Stephen Gillers, Laird C. Kirkpatrick, David P. Leonard, Miguel A. Mendez, Roger C. Park, Myrna S. Raeder, John W. Reed, Mark Reutlinger, Leo M. Romero, Stephen A. Saltzburg, Peter Tillers

U.S. Supreme Court Briefs

This Court should grant review not only because this is a case of national importance and prominence, but also because the decision below is a conspicuous departure from settled principles of evidence law. The panel majority concluded that communications between government lawyers and government officials are not protected by the attorney-client privilege, at least when those communications are sought by a federal grand jury. That conclusion conflicts with the predominant common-law understanding that the attorney-client privilege applies to government entities and that where the privilege applies, it is absolute (i.e., it protects against disclosure in all types of legal and …

Text, Texts, Or Ad Hoc Determinations: Interpretation Of The Federal Rules Of Evidence, Randolph N. Jonakait

Articles & Chapters

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 Warren Court And Criminal Justice: A Quarter-Century Retrospective, Yale Kamisar

Articles

Many commentators have observed that when we speak of "the Warren Court," we mean the Warren Court that lasted from 1962 (when Arthur Goldberg replaced Felix Frankfurter) to 1969 (when Earl Warren retired). But when we speak of the Warren Court's "revolution" in American criminal procedure we mean the Warren Court that lasted from 1961 (when the landmark case of Mapp v. Ohio was decided) to 1966 or 1967. In its final years, the Warren Court was not the same Court that had handed down Mapp or Miranda v. Arizona.

The Dangers Of "General Observations" On Expert Scientific Testimony: A Comment On Daubert V. Merrell Dow Pharmaceuticals, Inc., Robert F. Blomquist

Kentucky Law Journal

No abstract provided.

Controversial Science In The Courtroom: Daubert And The Law's Hubris, Paul S. Milich

Faculty Publications By Year

No abstract provided.

The Death And Transfiguration Of Frye, Richard D. Friedman

Articles

The rule of Frye v. United States was seventy years old, and had long dominated American law on the question of how well established a scientific principle must be for it to provide the basis for expert testimony. Even after the passage of the Federal Rules of Evidence, several of the federal circuits, as well as various states, purported to adhere to Frye's "general acceptance" standard. But now, unanimously, briefly, and with no apparent angst, the United States Supreme Court has held in Daubert v. Merrell Dow Pharmaceuticals, Inc. that the Frye rule is incompatible with the Federal Rules.

Introduction Of Scientific Evidence In Criminal Cases, H. Patrick Furman

Publications

No abstract provided.

Constitutional Posture Of Canine Sniffs, Lina Shahin

Touro Law Review

No abstract provided.

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

Touro Law Review

No abstract provided.

Jurisdiction Of The County Court

Touro Law Review

No abstract provided.

Search And Seizure

Touro Law Review

No abstract provided.

Search And Seizure

Touro Law Review

No abstract provided.

Due Process

Touro Law Review

No abstract provided.

The Conflict Concerning Expert Witness And Legal Conclusions, Charles W. Ehrhardt

Scholarly Publications

No abstract provided.

The Admission Of Government Fact Findings Under Federal Rule Of Evidence 803(8)(C): Limiting The Dangers Of Unreliable Hearsay, Steven P. Grossman, Stephen J. Shapiro

All Faculty Scholarship

Federal Rule of Evidence 803(8)(C), an exception to the rule against admission of hearsay, permits introduction of public records or reports containing the fact findings of the reporter without requiring the reporter to appear at trial. These fact findings can be based upon the reporter's own observations and calculations or information imparted to the reporter from sources having no connection to any public agency whatsoever. Rule 803(8)(C) has also been used as the vehicle for presenting juries with fact findings from hearings conducted by public officials. The rule would seem to allow these fact findings even though the opponent had …

Where To Draw The Guideline: Factoring The Fruits Of Illegal Searches Into Sentencing Guidelines Calculations, Cheryl G. Bader, David S. Douglas

Touro Law Review

No abstract provided.

Remembering The 'Old World' Of Criminal Procedure: A Reply To Professor Grano, Yale Kamisar

Articles

When I graduated from high school in 1961, the "old world" of criminal procedure still existed, albeit in its waning days; when I graduated from law school in 1968, circa the time most of today's first-year law students were arriving on the scene, the "new world" had fully dislodged the old. Indeed, the force of the new world's revolutionary impetus already had crested. Some of the change that the criminal procedure revolution effected was for the better, but much of it, at least as some of us see it, was decidedly for the worse. My students, however, cannot make the …

Supreme Court, Plain Meaning, And The Changed Rules Of Evidence, Randolph N. Jonakait

Articles & Chapters

No abstract provided.

The Search And Seizure Exclusionary Rule, Department Of Justice Office Of Legal Policy

University of Michigan Journal of Law Reform

The fourth amendment guarantees the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." This guaranty is not self-executing, however, and the courts and criminal justice systems in this country have long been bedeviled by questions concerning appropriate methods of ensuring its observance. As a result of the Supreme Court's decisions in Weeks v. United States and Mapp v. Ohio, the method principally relied upon today is a judicially created rule excluding from criminal trials evidence obtained in violation of the defendant's fourth amendment rights.

The search and seizure …

The Admission Of Criminal Histories At Trial, Department Of Justice Office Of Legal Policy

University of Michigan Journal of Law Reform

As part of a continuing series of studies on impediments to the search for truth in criminal investigation and adjudication, the Office of Legal Policy has carried out a review of the law governing the admission of the criminal records of defendants and other persons at trial. The results of this review are set out in this Report.