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Articles 211 - 240 of 840
Full-Text Articles in Evidence
Lost Lives: Miscarriages Of Justice In Capital Cases, Samuel R. Gross
Lost Lives: Miscarriages Of Justice In Capital Cases, Samuel R. Gross
Articles
One of the longstanding complaints against the death penalty is that it "distort[s] the course of the criminal law."' Capital prosecutions are expensive and complicated; they draw sensational attention from the press; they are litigated-before, during, and after trial-at greater length and depth than other felonies; they generate more intense emotions, for and against; they last longer and live in memory. There is no dispute about these effects, only about their significance. To opponents of the death penalty, they range from minor to severe faults; to proponents, from tolerable costs to major virtues. ntil recently, however, the conviction of innocent …
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 …
Law In The Backwaters: A Comment Of Mirjan Damaška's Evidence Law Adrift, Samuel R. Gross
Law In The Backwaters: A Comment Of Mirjan Damaška's Evidence Law Adrift, Samuel R. Gross
Reviews
The most problematic part of Professor Mirjan Damaška's fine book is the title.' Professor Damaška does an excellent job of situating American evidence law in the procedural context in which American trials occur. He identifies three major procedural elements. First, juries are traditionally cited as the primary or sole explanation for our extensive set of exclusionary rules, which are said to express mistrust of lay adjudicators. Professor Damaška points out as well that lay juries permit a divided court, with a professional judge who has exclusive control over "questions of law," and that this division is necessary for the operation …
Anchors And Flotsam: Is Evidence Law 'Adrift'?, Richard D. Friedman
Anchors And Flotsam: Is Evidence Law 'Adrift'?, Richard D. Friedman
Reviews
Difference, as well as distance, yields perspective. A comparison of legal systems may search for common underlying principles, or for lessons that one system might learn from another. But it may also be aimed primarily at illuminating one system by light shed from another. This is the aim of Evidence Law Adrift, Mirjan Damagka's elegant study of the common law system of evidence, and he is ideally suited for the task. Born and schooled in Continental Europe, he has lived and taught in the United States for twenty-five years. His relation to the common law system of evidence is, I …
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 …
Of Flutes, Oboes And The As If World Of Evidence Law, Richard O. Lempert
Of Flutes, Oboes And The As If World Of Evidence Law, Richard O. Lempert
Articles
Reading Allen's article, I am reminded of a cold war parable I heard during the 1960s. It concerned a flute and an oboe who joined an orchestra one year and immediately set to quarrelling. The flute was distressed because whenever it was playing at its lyrical best the oboe would enter. drowning it out. The oboe was affronted because its deepest, most sonorous passages were invariably ruined by the high-pitched flute butting in. When the orchestra split up for the summer and these quarrelsome instruments went their separate ways, the flute, as it angrily contemplated the oboe, found itself stretching …
After The Dna Wars: Skirmishing With Nrc Ii, Richard O. Lempert
After The Dna Wars: Skirmishing With Nrc Ii, Richard O. Lempert
Articles
This article traces some of the controversies surrounding DNA evidence and argues that although many have been laid to rest by scientific developments confirmed in the National Research Council's second DNA report, there remain several problems which are likely to lead to continued questioning of standard ways prosecutors present DNA evidence. Although much about the report is to be commended, it falls short in several ways, the most important of which is in its support for presenting random match probabilities independent of plausible error rates. The article argues that although one can sympathize with the NRC committee's decision as an …
Irrelevance, Minimal Relevance, And Meta-Relevance (Response To David Crump), Richard D. Friedman
Irrelevance, Minimal Relevance, And Meta-Relevance (Response To David Crump), Richard D. Friedman
Articles
Professor Crump's analysis runs the full traverse from academic theorizing to practical observation. I will attempt to follow him over the same course, addressing three questions among the congeries that he raises. First, is it true that all evidence satisfies the minimalist definition of relevance? Second, should evidentiary codes include a tighter definition of relevance? Third, how should we assess lawyers' use of evidence that, loosely speaking, is irrelevant?
Answering The Bayesioskeptical Challenge, Richard D. Friedman
Answering The Bayesioskeptical Challenge, Richard D. Friedman
Articles
In recent years, some scholars of evidence, myself among them, have made active use of subjective probability theory - what is sometimes referred to as Bayesianism - in thinking about issues and problems related to the law of evidence. But, at the same time, this use has been challenged to various degrees and in various ways by scholars to whom I shall apply the collective, if somewhat misleading, label of Bayesioskeptics. I present this brief paper to defend this use of probability theory, and to discuss what I believe is its proper role in discourse about evidentiary issues.
Towards A (Bayesian) Convergence?, Richard D. Friedman
Towards A (Bayesian) Convergence?, Richard D. Friedman
Articles
If I understand them correctly, several leading Bayesioskeptics (Allen, Callen, Stein) acknowledge - with varying degrees of specificity and varying degrees of grudgingness - that standard probability theory can be useful as an analytical tool in considering evidentiary doctrines and the probative value of evidentiary items.
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 …
Dealing With Evidentiary Deficiency, Richard D. Friedman
Dealing With Evidentiary Deficiency, Richard D. Friedman
Articles
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. Ariel Porat and …
Crime, Politics, And Race (Symposium: Justice And The Criminal Justice Process), Samuel R. Gross
Crime, Politics, And Race (Symposium: Justice And The Criminal Justice Process), Samuel R. Gross
Articles
The biggest problem with the criminal justice system is that too many crimes are committed-too many rapes, too many murders, too many robberies; too much violence that inflicts an untold amount of suffering and destruction on too many people. If that seems obvious, what follows should be equally obvious. The most important step to take to solve the problems of the criminal justice system is to reduce the number of crimes that are committed: to prevent crimes. The best thing we can do to help the victims of crime is to keep them from becoming victims in the first place. …
Lessons For The United States: A Greek Cypriot Model For Domestic Violence Law, Joan L. Neisser
Lessons For The United States: A Greek Cypriot Model For Domestic Violence Law, Joan L. Neisser
Michigan Journal of Gender & Law
The purpose of this Article is twofold: to view the problem of domestic violence victims not wishing to testify against their abusers through the lenses of different feminist perspectives; and to use the Greek Cypriot experience as a model to test the value of these theories when developing legal policies addressing this issue.
Substance And Form In Scientific Evidence: What Daubert Didn't Do, Samuel R. Gross
Substance And Form In Scientific Evidence: What Daubert Didn't Do, Samuel R. Gross
Book Chapters
On its face, Daubert v. Merrell Dow Pharmaceuticals was about as easy a case as the Supreme Court gets. The plaintiff claimed that their birth defect were caused by the anti-nausea drug Bendectin, which their mothers had used during their gestation. In response to a motion for summary judgment by the defendant, the plaintiff presented affidavits of eight expert witnesses who offered their opinion - based on a variety of studies- that Bendectin was indeed the culprit. The federal district court that heard the motion granted summary judgment to the defendant, and the Ninth Circuit affirmed. Both lower court held …
Substance And Form In Scientific Evidence: What Daubert Didn't Do, Samuel R. Gross
Substance And Form In Scientific Evidence: What Daubert Didn't Do, Samuel R. Gross
Book Chapters
On its face, Daubert v. Merrell Dow Pharmaceuticals was about as easy a case as the Supreme Court gets. The plaintiffs claimed that their birth defects were caused by the anti-nausea drug Bendectin, which their mothers had used during their gestation. In response to a motion for summary judgment by the defendant, the plaintiffs presented affidavits of eight expert witnesses who offered their opinions - based on a variety of studies - that Bendectin was indeed the culprit. The federal district court that heard the motion granted summary judgment to the defendant, and the Ninth Circuit affirmed. Both lower courts …
The Big Chill: Third-Party Documents And The Reporter's Privilege, Bradley S. Miller
The Big Chill: Third-Party Documents And The Reporter's Privilege, Bradley S. Miller
University of Michigan Journal of Law Reform
In the wake of Philip Morris' multi-billion dollar libel suit against ABC, a Virginia court has sanctioned a new method of discovery that promises to have an unsettling impact on the reporter's privilege to protect confidential sources. In Philip Morris Cos. v. American Broadcasting Cos., the tobacco giant moved to compel disclosure of the identity of a former R.J. Reynolds manager who suggested on ABC's Day One news program that tobacco companies add nicotine to the cigarettes they manufacture. At the same time, Philip Morris issued subpoenas for the expense records of two ABC employees who wrote and produced …
The Risks Of Death: Why Erroneous Convictions Are Common In Capital Cases (Symposium: The New York Death Penalty In Context), Samuel R. Gross
The Risks Of Death: Why Erroneous Convictions Are Common In Capital Cases (Symposium: The New York Death Penalty In Context), Samuel R. Gross
Articles
As the Supreme Court has said, time and again, death is different: It is "different in kind from any other punishment imposed under our system of criminal justice;"1 it "differs more from life imprisonment than a 100-year sentence differs from one of only a year or two;"' 2 and so forth. Traditionally, this observation has justified special procedural protections for capital defendants. Justice Harlan put it nicely nearly forty years ago: "I do not concede that whatever process is 'due' an offender faced with a fine or a prison sentence necessarily satisfies the requirements of the Constitution in a capital …
Assessing Evidence, Richard D. Friedman
Assessing Evidence, Richard D. Friedman
Reviews
David A. Schum's Evidential Foundations of Probabilistic Reasoning, 2 C.G.G. Aitken's Statistics and the Evaluation of Evidence for Forensic Scientists,3 and Bernard Robertson and G.A. Vignaux's Interpreting Evidence: Evaluating Forensic Science in the Courtroom4 all have something to tell us about how to use and evaluate evidence. Although the books are addressed to different primary audiences5 and their authors come from a variety of disciplines and from distant points of the English-speaking world,6 all three help draw the connection between underlying theory and presentation in the courtroom. Though Schum uses numerous examples from litigation and discusses the legal literature of …
Third-Party Modification Of Protective Orders Under Rule 26©, Patrick S. Kim
Third-Party Modification Of Protective Orders Under Rule 26©, Patrick S. Kim
Michigan Law Review
This Note argues that similarly situated litigants always should be given access to protected discovered materials, while nonlitigants should gain access to protected materials only in exceptional circumstances. This approach effectively balances the privacy and property interests of the original parties and the intervening parties with the interests of adjudicative efficiency. Part I establishes that there is no general public right of access to civil discovery and that courts should disregard such purported rights when considering whether to modify a protective order. Part II identifies three interests that courts should weigh when considering whether to modify a protective order: the …
Conditional Probative Value And The Reconstruction Of The Federal Rules Of Evidence, Dale A. Nance
Conditional Probative Value And The Reconstruction Of The Federal Rules Of Evidence, Dale A. Nance
Michigan Law Review
In a recent article, Richard Friedman articulates a modified and generalized version of the doctrine of conditional relevance, which he calls "conditional probative value." This version comes in response to a substantial body of academic criticism of the traditional doctrine. As one of the critics to whom Professor Friedman responds, I offer this reply with two purposes in mind: (1) to clarify the relationship between Friedman's analysis and my earlier reinterpretation of the conditional relevance doctrine; and (2) to address Friedman's specific proposals with regard to the Federal Rules of Evidence. I conclude that Friedman's articulation helps clarify the logic …
The Honest Scientist's Guide To Dna Evidence, Richard O. Lempert
The Honest Scientist's Guide To Dna Evidence, Richard O. Lempert
Book Chapters
Thank you for your invitation to participate in the DNA symposium. As you know DNA has never been a prime research focus of mine, and I have been so preoccupied with my own work on ITPT (intertemporal personal transportation) that I thought I must decline. Happily, however, the two projects came together, for I recently had an amazing breakthrough during which by coincidence I stumbled across a book entitled A Century of DNA Testing and holocopied (a fancy form of Xeroxing) the following few pages for you.
Confrontation And The Utility Of Rules, Richard D. Friedman, Ronald J. Allen, Alex Stein, Roger C. Park, Margaret A. Berger, Nancy J. King, John Jackson, Eleanor Swift, Craig R. Callen, Eileen A. Scallen
Confrontation And The Utility Of Rules, Richard D. Friedman, Ronald J. Allen, Alex Stein, Roger C. Park, Margaret A. Berger, Nancy J. King, John Jackson, Eleanor Swift, Craig R. Callen, Eileen A. Scallen
Articles
There is a good reason why evidence scholars continue to be fascinated and perplexed, and some courts continue at least to be perplexed, by the types of evidence that tend to be lumped together misleadingly under the headings nonassertive conduct or implied assertions. Evidence of this sort highlights a paradox of the prevailing law of hearsay. I believe that this paradox cannot be resolved without fundamentally transforming the structure of that law. Thus, while I agree - within the current framework - with many of the insights so ably stated in this Symposium, I think evidence scholars must devote their …
Probability And Proof In State V. Skipper: An Internet Exchange, Ronald J. Allen, David J. Balding, Peter Donnelly, Richard D. Friedman, David H. Kaye, Lewis Henry Larue, Roger C. Park, Bernard Robertson, Alexander Stein
Probability And Proof In State V. Skipper: An Internet Exchange, Ronald J. Allen, David J. Balding, Peter Donnelly, Richard D. Friedman, David H. Kaye, Lewis Henry Larue, Roger C. Park, Bernard Robertson, Alexander Stein
Articles
This is not a conventional article. It is an edited version of messages sent to an Internet discussion list. The listings begin with the mention of a recent opinion of the Connecticut Supreme Court, parts of which are reproduced below. The listings soon move to broader issues concerning probability and other formal systems, their limitations, and their uses either in court or as devices for understanding legal proof.
Refining Conditional Probative Value, Richard D. Friedman
Refining Conditional Probative Value, Richard D. Friedman
Articles
The subject of conditional relevance, or what I think is better called "conditional probative value," must seem hopelessly ard to many. It continues to engage the attention of evidence scholars, however, because it forms part of the conceptual underpinnings of many parts of evidentiary law. Dale'Nance, one of the most astute evidence scholars of our time, has previously written at length on the subject' and has done so now more briefly in response to an article of mine. I offer an even briefer continuation of the discussion.
Prior Statements Of A Witness: A Nettlesome Corner Of The Hearsay Thicket, Richard D. Friedman
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 Honest Scientist's Guide To Dna Evidence, Richard O. Lempert
The Honest Scientist's Guide To Dna Evidence, Richard O. Lempert
Articles
The honest scientist recognizes that she herself is a test instrument, and a fallible one at that. Subjectivity inescapably enters into any human endeavor, and should not be denied. DNA testing is rife with subjective elements, no place more so than at the crucial stage of deciding whether a match exists. On the one hand, non-matching extraneous bands may sometimes be properly disregarded and patterns that do not quite meet objective matching criteria may be appropriately regarded as incriminatory matches. On the other hand, band patterns that do meet objective matching criteria may be treated as exonerative depending on how …
Still Photographs In The Flow Of Time, Richard D. Friedman
Still Photographs In The Flow Of Time, Richard D. Friedman
Reviews
Rarely is an image of the actual moment of death captured and preserved. When it is, as in the famous photographs of President John F Kennedy's assassination or of the summary execution of a Viet Cong officer by a South Vietnamese police chief,4 it is haunting. Even photographs of the moment before sudden death have great power-whether death is totally unexpected (as in a photograph of Luis Donaldo Colosio campaigning for the presidency of Mexico just before his assassination'), planned (as in a photograph of a man bound in an electric chair awaiting execution6 ), or in doubt and anticipated …
The Warren Court And Criminal Justice: A Quarter-Century Retrospective, Yale Kamisar
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.