Evidence Commons^™

Evidence - Admissibility Of Age In Hospital Record As Business Entry, Craig E. Davids

Michigan Law Review

Representing his birth date as 1866, deceased purchased from defendant insurance company in 1921 a policy on his life, which provided that in the event of any misrepresentation of age the insured's beneficiary would receive only that amount which a standard policy issued at his true age would stipulate for the premiums paid. In a suit by the beneficiary to recover on the policy, defendant attempted to prove that deceased was born at least as early as 1862. Among other evidence, defendant introduced a hospital record of deceased's visit to a particular institution in 1936 where he represented his age …

Abstracts, Mary Jane Plumer

Michigan Law Review

The abstracts consist merely of summaries of the facts and holdings of recent cases and are distinguished from the notes by the absence of discussion.

Criminal Justice In Germany: Ii, Hans Julius Wolff

Michigan Law Review

The trial (Hauptverhandlung) is the main and central part of the whole criminal proceeding. All that is brought forward in the trial and only what is brought forward there can furnish the basis for the verdict. Whatever has preceded the trial proper becomes irrelevant as soon as the trial is opened.

The principles governing the trial are publicity, orality, immediateness, and concentration.

Evidence-Police Regulation By Rules Of Evidence-Results Of The Mcnabb Case, John B. Waite

Michigan Law Review

In McNabb v. United States the Supreme Court promulgated novel judicial legislation, the gist of which is that confessions or admissions of crime made while the accused is in custody without having been brought before a magistrate as required by law are inadmissible in evidence. That judicial pronouncement assumed that the utterances were made without compulsion, and prohibited their use solely because at the time they were made the officers of justice were themselves disregarding the law-the procedural requirement that persons arrested be taken immediately before a magistrate. In Justice Frankfurter's phrase, "a conviction resting on evidence secured through such …

Evidence-Police Regulation By Rules Of Evidence, John Barker Waite

Michigan Law Review

The judicial rules of Evidence, said their great expounder, "were never meant to be an indirect process of punishment." Yet twice the Supreme Court has promulgated new rules of evidence for precisely that purpose. The rule that evidence is inadmissible, regardless of its relevance and materiality, if it was obtained by unreasonable search was first suggested by Justice Bradley, who wrote the majority opinion in Boyd v. United States in 1886. The other rule was voiced in 1943 by Justice Frankfurter, writing the majority opinion in McNabb v. United States. And each rule demonstrates the inherent evil of judicial …

Abstracts, Benjamin M. Quigg, Jr.

Michigan Law Review

The abstracts consist merely of summaries of the facts and holdings of recent cases and are distinguished from the notes by the absence of discussion.

Evidence-Judicial Notice By Appellate Courts Of Facts And Foreign Laws, Not Brought To The Attention Of The Trial Court, Hobart Taylor, Jr.

Michigan Law Review

The general problem to be discussed in this comment is the process and supporting reasons used by appellate courts in their determination of the propriety of taking official cognizance of facts not brought to the attention of the trial court. This necessarily removes that great and complex body of case and statutory law dealing with situations where a court is called upon to take judicial notice of local statutes, municipal ordinances, and other similar matters of law. Also specifically excluded from discussion are the cases where error is alleged because the trial court refused to take notice of a fact …

Abstracts, Katherine Kempfer

Michigan Law Review

The abstracts consist merely of summaries of the facts and holdings of recent cases and are distinguished from the notes by the absence of discussion.

Administrative Law - Extent To Which Hearsay Evidence May Constitute Basis For Award By Workmen's Compensation Commission, Mary Jane Morris

Michigan Law Review

Claimant suffered a coronary occlusion and as a result was totally disabled, being unable to speak coherently or to understand what was said to him. The State Industrial Board found that the claimant's total disability was the result of accidental injuries which arose out of and in the course of his employment. An award was made. The claimant was incapable of giving testimony and no witness was produced who saw the accident. The referee who heard the claim admitted hearsay testimony to the effect that claimant complained of a heartburn to fellow employees after having lifted and emptied a boiler …

Future Interests - Taxation - Evidence - Presumption As To The Possibility Of A Woman Bearing Children, Hobart Taylor, Jr.

Michigan Law Review

Testatrix, a resident of Massachusetts, set up a trust of her residuary estate for her two daughters, the principal to be paid to their issue, but if either should die without issue, her share to be paid to certain named charities. On probate, the remainder to charity was held to be void. The income tax law of Massachusetts imposed a three per cent levy on income accumulated for contingent future interests, but exempted from taxation certain interests of nonresidents, including vested remainders not subject to being divested. The daughters, nonresidents, contended that their interests should not be taxed as contingent …

Administrative Law-Right Of Persons Aggrieved By Orders To Review By Appellate Courts, Hobart Taylor, Jr.

Michigan Law Review

The Milk Control Board issued an order providing in part that where milk or cream was sold in single service paper containers a nonrefundable container charge of one cent be added to the applicable wholesale or retail price. Petitioner, engaged solely in the manufacture of paper containers for the packaging of milk, sought review of the proceedings of the board upon which the order was based. A demurrer based on the ground that petitioner was not a "person aggrieved" was sustained by the superior court and petitioner appealed. Held, a person "interested" or "aggrieved" need not be within the …

Scientific Proof And Relations Of Law And Medicine, John E. Tracy

Michigan Law Review

Ever since lawyers first began the practice of employing expert witnesses in cases where there were questions of fact to be determined, involving the existence and extent and the causes of bodily ailments, these experts-physicians, surgeons, anatomists, chemists, pathologists, and roentgenologists-have been generous in their proffering of advice to the practicing attorney as to the matters to which his preparation for trial should be directed, the proper theories to be adopted by him as to recovery or damages and his methods of examining and cross-examining witnesses of this character. The shelves of any large law library will be found to …

Medical Facts That Can And Cannot Be Proved By X-Ray: Historical Review And Present Possibilities, Samuel W. Donaldson

Michigan Law Review

As the science of the practice of medicine has progressed, new discoveries have brought out newer methods of diagnosis and treatment. With the discovery of x-rays by Professor Wilhelm Roentgen in 1895, an entirely new field was opened. The growth of this new field of medical radiology has been unusually rapid and of great importance. Radiology embraces the use of x-rays, radium, and other radioactive substances. Roentgenology is a division of radiology in that it is limited to the use of the Roentgen rays or x-rays, and medical roentgenology may be termed as the use of x-rays for the diagnosis …

Administrative Law - Subpoena Power In Administrative Agencies, Arthur B. Lathrop

Michigan Law Review

The Secretary of Labor, acting under the authority vested in her by the Walsh-Healey Act, instituted an administrative proceeding against the petitioner charging violations of the minimum and overtime payment provisions of a government contract. Upon the petitioner's refusal to furnish certain records believed to be essential in determining jurisdiction, the secretary issued a subpoena duces tecum for their production. Shortly thereafter, this suit was begun in the district court to obtain an enforcement order directing the petitioner to obey the subpoena. The petitioner, contending that the secretary was without jurisdiction to investigate the plants and employees involved, successfully resisted …

What Constitutes A Fair Procedure Before The National Labor Relations Board, Clyde W. Summers

Michigan Law Review

No administrative body in recent times has received as much criticism, both favorable and unfavorable, as has the National Labor Relations Board in its administration of the National Labor Relations Act. Such a vast amount of material has been written on the procedure before the board that any further discussion would seem superfluous. However, the discussion of the board's procedure has been related more to the wisdom of choice which the board has made in setting up its procedure than to a determination of the line that separates legality from illegality in its determination of cases.

Instruments Of Discovery Under Federal Rules Of Civil Procedure, Alexander Holtzoff

Michigan Law Review

The elimination of the "sporting theory" of justice, the simplification of procedure, and the prompt disposition of controversies on their merits are the great objectives of the new federal civil practice. One of the principal means for the attainment of these purposes is discovery, by which a disclosure may be obtained in respect to all pertinent information in the possession of any party to a litigation. An exception is, of course, made for privileged matter. It is one of the basic theories of the new procedure that every party to a law suit is under a duty to reveal to …

Evidence - Constitutional Problems In Compelling The Attendance Of Witnesses Outside The State, Paul J. Keller, Jr.

Michigan Law Review

Cooper, a citizen of New Jersey, was sought as a witness by a defendant in a criminal prosecution in a New York court in accordance with a New Jersey statute, which allowed such a procedure upon certain conditions. The conditions included a hearing in New Jersey on the summons and provisions for compensation and immunity from service of process while acting on the writ outside the state. At the New Jersey hearing on the summons Cooper objected on the ground that the statute was an unconstitutional deprivation of his liberty. Held, that the statute is constitutional. In re Cooper …

Evidence - Admissibility Of Evidence Gained By Use Of Detectaphone, Michigan Law Review

Michigan Law Review

Appellant was indicted for conspiracy to violate the Bankruptcy Act. An agent of the Federal Bureau of Investigation was permitted by the custodian of the building to enter appellant's office without his knowledge, and to install a dictaphone connecting with an adjoining room. However, the dictaphone failed to operate, and the only evidence which the agents were able to get was by means of a detectaphone which was in the same room with the agents, and which was not connected with the dictaphone. Held, the detectaphone recordings were admissible in evidence because no trespass was committed in getting the …

Evidence - Admissibility Of Hospital Records As Business Entries, Robert C. Lovejoy

Michigan Law Review

As a defense to a suit on an insurance policy, the defendant insurer claimed that the plaintiff was intoxicated at the time of the fatal accident. Defendant offered in evidence a portion of the case record of the hospital to which plaintiff was taken after the accident, the record stating that he was "apparently well under influence of alcohol." Although it was duly authenticated under the federal statute permitting business entries to be used as evidence, this evidence was excluded by the trial court as being an observation rather than a diagnosis. Held, reversed. There was no basis for …

Evidence - Admissibility Of Defendants Refusal To Submit To A Blood Test For Intoxication, David Davidoff

Michigan Law Review

Defendant was convicted of operating a motor vehicle while intoxicated. This appeal was based on the contention that the testimony by a deputy sheriff of defendant's refusal to submit to a blood test to determine whether or not he was intoxicated violated his privilege against self-incrimination and was inadmissible. Held, the evidence was properly admitted. State v. Benson, (Iowa, 1941) 300 N. W. 275.

Witnesses - Privilege Of Communications Between Physician And Patient Applicable To Nonjudicial Proceedings, Alfred I. Rothman

Michigan Law Review

Pursuant to section 43 of the city charter, the City Council of New York appointed a special committee to investigate charges of negligence and maladministration in the treatment of patients at Lincoln Hospital. Subpoenas duces tecum were served upon the commissioner of hospitals and upon the medical superintendent of Lincoln Hospital requiring the production of hospital records, including case records relating to certain named patients. The commissioner refused to produce any of the case cards or records, justifying his position on the ground that the physician-patient privilege was applicable to legislative investigations. The New York Civil Practice Act, section 354, …

Federal Courts - Federal Rules Of Civil Procedure - Rule 12(E) - Motion For Bill Of Particulars, Oliver B. Crager

Michigan Law Review

The United States brought an action against defendants, movie distributors and producers, for alleged conspiracies and monopolies in violation of the Sherman Anti-Trust Act. Defendants moved for a more definite statement or a bill of particulars under federal rule 12 (e). Held, bill of particulars allowed as to demands seeking ultimate facts, denied as to demands seeking evidentiary matter. United States v. Schine Chain Theatres, (D. C. N. Y. 1940) 1 F. R. D. 205.

Evidence - Photographs - Admission To Show Physical Condition Of Person, Michigan Law Review

Michigan Law Review

Plaintiff's daughter was killed by the wrongful act of defendant. In a suit to recover for pecuniary injury through loss of financial aid, a photograph of decedent (a pretty girl) was introduced and admitted over objections of defendant that the photograph could serve no purpose relative to the issues, but would excite the sympathy of the jury to the prejudice of the defendant. Held, that no error was committed in admitting the photograph since the decedent's probable contributions for the benefit of her parents depended largely upon "the kind of a girl she was" and the photograph was some …

Administrative Law - Scope Of Judicial Review - Doctrine Of The Ben Avon Case- Independent Determination By Court Of Both Law And Facts Where Confiscation Question Involved, Alfred I. Rothman

Michigan Law Review

A recent decision by the United States Supreme Court renders desirable a reexamination of the scope of judicial review of orders and decisions made by administrative bodies, and more specifically a reexamination of the doctrine of the Ben Avon case. There are several possibilities as to the finality that may be accorded to administrative fact determinations: first, findings may be conclusive and binding upon the reviewing court; second, they may be conclusive if supported by substantial evidence; third, they may be subject to independent determination by the court. To what extent, if any, the scope of review should take the …

Federal Courts - Rules Of Federal Procedure - Production Of Designated Documents And Things Under Rule 34, William C. Wetherbee Jr.

Michigan Law Review

Plaintiff sued for damages and loss of profits caused by the unlawful acts of the defendant beginning in January, 1937. Under rule 34 of the new federal rules the defendant moved that the court order the plaintiff to produce its books showing the company's commercial results for the period prior to January 1, 1936; its duplicate federal income tax returns for the years 1934 to 1938; and all copies of statements furnished to any bank or credit company over a period of some five years. Held, motion granted in regard to books of account and duplicate income tax returns …

Constitutional Law - Due Process - Use Of Involuntary Confessions In Criminal Cases, Reed T. Phalan

Michigan Law Review

The practice of wringing confessions from the lips of persons accused of crime forms a substantial blot on the history of the medieval administration of criminal law. Never legalized in England, the practice early earned the condemnation of writers and criticism of courts. From a recognition of human rights and a perception of the unreliability of statements extorted by violence, evolved the general rule, now long recognized in England and the United States, that the accused's involuntary confession is inadmissible in evidence against him. Recently this rule of evidence has been implemented by the recognition of the United States Supreme …

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 …

Wigmore On Evidence-A Review, John E. Tracy

Michigan Law Review

In 1887 John Henry Wigmore graduated from Harvard Law School. Only four years later, in 1891, there came from his pen an article in the Harvard Law Review entitled "Nemo Tenetur Seipsum Prodere," which showed to the profession that there had arrived at the bar a writer who was not only a deep student of legal history and knew his law of evidence, but who had no hesitation in smashing images, regardless of how sacredly they had theretofore been worshiped.

Federal Courts - Deposition-Discovery Practice - Rule 26 And Hearsay Evidence, Jamille G. Jamra

Michigan Law Review

In an action for personal injuries suffered in defendant's store, plaintiff moved for an order requiring one Jackson to answer certain questions propounded to him at the taking of his deposition. Jackson, an investigator for defendant's insurer, had ascertained certain facts from witnesses to the accident. The questions, to which Jackson objected on the ground of privilege, sought to elicit the number and names of persons who he learned were present at the accident. Held, the motion should be denied on the ground that the evidence sought was hearsay. Poppino v. Jones Store Co., (D. C. Mo. 1940) …

Searches And Seizures - Constitutionality Of Statute Providing For Issuance Of Search Warrant On Affidavit On Information And Belief, William C. Wetherbee

Michigan Law Review

Plaintiff demanded a writ of prohibition against the defendant, a justice of the peace, to prevent his proceeding to determine ownership of trademarked milk bottles seized from plaintiff's milk truck under a search warrant. A statute required the issuance of a search warrant when any person made affidavit that he had reason to believe and did believe that trademarked receptacles were being wrongfully held. Held, writ of prohibition granted since the statute was unconstitutional in requiring the issuance of a search warrant without a showing of facts constituting probable cause, and in allowing the affiant instead of the judicial …