Evidence Commons^™

Evidence -- 1963 Tennessee Survey, Lyman R. Patterson

Vanderbilt Law Review

The doctrine of judicial notice is that an indisputable proposition of fact or a proposition of law of the jurisdiction is not subject to proof. The doctrine thus serves to relieve the litigant of the burden of proving certain facts and law, and is one of immense theoretical implication for the trial lawyer. A fact which is judicially noticed has much greater probative value than a fact which is proved, no matter how strong the proof. Judicial notice thus offers the trial lawyer an extremely effective, but apparently largely unused, device in litigation. None of the cases involving judicial notice …

The Use Of Coerced Confessions In State Courts, J. A. Spanogle

Vanderbilt Law Review

It is now well settled that involuntary confessions must be excluded from evidence in all criminal trials in state courts. It has been difficult, however, to distinguish a voluntary confession from an involuntary one, because the term "involuntary" is not well defined. This lack of definition, which creates great problems for state trial and appellate courts in attempting to apply the rule to individual cases, has, in turn, stemmed from a lack of understanding of the reasons for excluding involuntary confessions. The United States Supreme Court has handed down thirty-four coerced confession cases, holding confessions admissible in some factual situations …

Procedure And Evidence -- 1962 Tennessee Survey, Edmund M. Morgan

Vanderbilt Law Review

Construction of Pleading--Where the plaintiffs bill of complaint for specific performance of a contract for the purchase of a specified parcel of realty discloses on its face that the agreement was oral, the defendant may raise the defense of the statute of frauds by demurrer.'

Burden of Proof and Presumptions--The current decisions do little to clear up the confusion caused by the use of the term presumption, though it is usually not too difficult to determine the effect intended to be given it in a particular case.

Judicial Notice--The cases in which the Tennessee courts have applied the doctrine of …

Recent Case Comments, Law Review Staff

Vanderbilt Law Review

Conflict of Laws--Workmen's Compensation--Forum's Use of Foreign State's Tort Law for Recovery Against Third Party Does Not Require Forum's Use of Foreign State's Election Provision in Workmen's Compensation Suit

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Constitutional Law--Advertising-Statute Restricting Size,Number, and Location of Gasoline Price Signs Is Unconstitutional

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Evidence-Attorney--Client Privilege--Applicability When a Corporation Is the Client

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Evidence--Attorney-Client Privilege-Doctor's Report to Attorney on Condition of Client Is Within Privilege

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Federal Jurisdiction--In Federal Question Action Federal Court Is Competent To Exercise In Personam Jurisdiction Over Corporation if It Has Sufficient Contacts With United States

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Federal Rules of Civil Procedure--Counterclaim Not Compulsory in First Suit …

Statement Of Fact Versus Statement Of Opinion -- A Spurious Dispute In Fair Comment, Herbert W. Titus

Vanderbilt Law Review

In attempting to solve problems in a variety of areas lawyers continuously make use of a distinction between statements of "fact" on the one hand and those of "opinion" on the other.' So versatile is this distinction that it has been used to solve problems raised in such diverse areas of the law as evidence and defamation. However, since the turn of the century the fact-opinion dichotomy has been severely criticized as a means of deciding what kinds of testimony should be allowed in a legal trial. Yet in the law of defamation, where this distinction has been extensively applied …

The Dilemma Of The Directed Acquittal, Richard H. Winningham

Vanderbilt Law Review

Some of the worst abuses of state criminal due process, the author believes, result from anachronistic and artificial restraints which prevent the trial judge from directing acquittals. Therefore,he advocates for all states a uniform policy and practice recognizing and authorizing directed acquittals where the evidence is legally insufficient to support a conviction.

Procedure And Evidence -- 1961 Tennessee Survey (Ii), Edmund M. Morgan, Joel F. Handler

Vanderbilt Law Review

Construction of Pleading--(a) Conclusions.- In an action by the administratrix of a decedents estate the allegations in the complaint that the intestate had a policy of insurance on his life for $1,500 and was induced by the fraud of defendant to make defendant the beneficiary by which she was able to collect the money upon his death and "that this $1500 insurance money is the property of the estate and defendant is accountable to complainant as administratrix of the estate" are sufficient as against ademurrer on the ground that the complaint fails to show any right or title in complainant …

The Basis Of Medical Testimony, Paul D. Rheingold

Vanderbilt Law Review

Like any other expert, the medical witness is brought into court to render an opinion upon technical issues involved in a case. Fundamental to the opinions or conclusions which the medical witness renders is a matrix of data learned, observed or related, both fact and opinion. These subsidiary items, taken together, are commonly referred to as the basis of expert testimony. Thus a doctor, in testifying on the cause of a patient's condition, for example, might refer to and rely upon what he has observed in examining the patient, upon what the patient has told him of his symptoms, and …

Contracts -- 1961 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

I. Offer and Acceptance--Notification of Acceptance Before Notification of Revocation--Duration of Offer with Fixed Expiration Date

II. Implied and Quasi Contract--Claim for Services Where Family Relationship Involved

III. Parol Evidence Rule--Application of Rule to Third Party Not a Party to the Written Instrument--Pre-existing Duty as Consideration

IV. Exculpatory Contracts--Contracting Against Liability for Consequences of Own Negligent Conduct

V. Agreement in Restraint of Trade-Agreement of Seller of Business Not to Compete--Enforcement of Restraint in Area Greater than Required to Protect Purchaser

Procedure And Evidence -- 1961 Tennessee Survey, Edmund M. Morgan

Vanderbilt Law Review

In this article no mention is made of the numerous reiterations of the rule that in considering a motion for a directed verdict, the trial court must deny the motion where there is any material evidence that would warrant a jury in finding against the moving party. Nor is there noted the many, many applications of the courts' settled practice to deny a petition to rehear which merely reargues matters which counsel insist were improperly decided after argument and full consideration. Again, it must be said that this survey is in most respects a mere "horizontal digest." Thus far the …

Bills And Notes -- 1961 Tennessee Survey, John A. Spanogle Jr.

Vanderbilt Law Review

The Tennessee courts decided three cases involving commercial paper this year. The Tennessee Supreme Court decided one case which, unless it is clarified in the near future, may upset principles which were heretofore well-established. Of the two cases decided by the appellate courts, one adopted a rule well-known in other jurisdictions, and the other adopted a sound minority view on a question not settled by the Uniform Negotiable Instruments Law.

The Hearsay System: Around And Through The Thicket, John M. Maguire

Vanderbilt Law Review

All these complicated rules about hearsay are very strange for us, our judges having the right to evaluate the importance of what a witness says or a paper may prove. In this regard, the position of our judges is much freer than yours; in general a German judge can refuse any means of evidence only if he thinks that the fact to be proved is without relevance to the case, or if he accepts the fact to be proved as true, or if the evidence cannot be reached or in his opinion is only designed to delay the procedure. The …

Edmund M. Morgan, Sam L. Felts

Vanderbilt Law Review

Professor Morgan's subject in this Survey is Procedure and Evidence, the field of his greatest contribution to the law. Its importance cannot be overestimated; for no laws can be better than they actually work in practice. As he emphasizes, the whole purpose of the rules is specifically to define the area of dispute, and to provide the best methods for solving it. In short, the problem, the same for both the practitioner and the judge, is that of mastering the materials of the controversy. Morgan throws a flood of light upon every phase of this problem. Under his extraordinary powers …

Morgan's Role Of Leadership In Evidence Law Reform, Charles T. Mccormick

Vanderbilt Law Review

There are two types of reformer-the meek and insinuating kind that wear down resistance like water falling on a rock, and the scrappy kind that carry the war into the enemy's country. Morgan is of the latter type.Five years active trial practice in Duluth gave him the savor of evidence rules in action.His first campaign for the betterment of evidence law was his work as chairman of a distinguished committee of lawyers, law teachers and judges set up by the Commonwealth Fund to propose reforms in the law of evidence. Under Morgan's leadership the committee "determined to develop a new …

Practical Difficulties Impeding Reform In The Law Of Evidence, Edmund M. Morgan

Vanderbilt Law Review

"The World Do Move" was the subject of an address by Judge Joseph C. Hutcheson to members of the Association of American Law Schools shortly after the decision of the Supreme Court in Funk v. United States.' He used the opinion in that case as evidence that the courts do likewise even in matters of procedure when legislatures lag. With his usual finesse and subtle sense of humor, he did not specify the rate of motion or mention the magnitude of the movement. The time lapse was a mere 144 years and the memorable advance was from the position where …

Edmund M. Morgan, Austin W. Scott, John W. Wade

Vanderbilt Law Review

Everyone who knows him well speaks of him as Eddie Morgan--or simply as Eddie. This includes his colleagues, whether they are at the same school or another one; his students, though this is privately, of course, when they are talking about him among themselves; and his former students. Especially his former students. No matter whether they have been out of school for many years or just a few years, they ask about him in the same way. The face and the voice disclose an admiration for him and a touch of awe, and yet at the same time a different …

Judicial Notice -- Excerpts Relating To The Morgan-Wignore Controversy, John T. Mcnaughton

Vanderbilt Law Review

Author's Note: These two excerpts are from the author's preliminary draft of his proposed revision of the judicial notice chapter of Wigmore on Evidence. The excerpts are submitted for publication in this Edmund M. Morgan issue of the Vanderbilt Law Review for two reasons: First, because of the important role played by Professor Morgan in the recent development and articulation of the law of judicial notice and, second, because Professor Morgan and Dean Wigmore stand at opposite poles in the argument over judicial notice. At least they do with respect to one significant particular. They do not differ with respect …

Vicarious Admissions And The Uniform Rules, Judson F. Falknor

Vanderbilt Law Review

The admissibility of extra-judicial utterances as "vicarious admissions" under the Uniform Rules of Evidence would be regulated by Rule 63 (8)(a) and Rule 63 (9), quoted in the margin. Adoption of these rules would work substantial changes in existing doctrine; changes which the informed consensus may ultimately deem desirable, but which, nonetheless, appear to deserve somewhat more penetrating discussion than has so far been engendered. I hasten to make it clear that I do not necessarily oppose the proposals; merely that I have some doubts which have not as yet been resolved. One further preliminary word: the proposals of the …

Rochin And Breithaupt In Context, James R. Richardson

Vanderbilt Law Review

Modern scientific methods of fact-finding present evidentiary problems of admissibility which are grounded in reliability of the process, validity of the technique employed and desired policy objectives. In the final analysis, these three facets of the problem are all indivisibly interrelated since, in order to determine acceptable policy, scientific process and application of that process must inevitably be considered in the light of the concept of due process even though due process as such may not be posed affirmatively in any particular decision.' Moreover, it must be recognized that these factors will be present in varying degrees of intensity, dependent …

The Theory Of Criminal Discovery And The Practice Of Criminal Law, David W. Louisell

Vanderbilt Law Review

To crystallize in a few words the motif of a career as varied and comprehensive as that of Eddie Morgan would in any event be difficult, but it is doubly so for a life devoted, as his has been, to stuff as vital and dynamic as procedure and evidence. For me, his work most fundamentally is to be characterized as a quest for greater rationality in the adjudicative process. Whether one thinks of his analysis of the hearsay rule,' or his rationale of the admissions exception to it, or his treatment of the dead man's statute, or his study of …

Procedure And Evidence -- 1960 Tennessee Survey, Edmund M. Morgan

Vanderbilt Law Review

This survey is in large part merely what Professor Chafee once characterized as a horizontal digest. In the previous survey a request was made that interested members of the Bar advise the "Editor-in-Chief of this Review whether the character of the annual survey of this subject should be changed. The request is repeated herewith.

Recent Cases, Law Review Staff

Vanderbilt Law Review

Constitutional Law--Due Process--Duty of Non-Resident Vendor to Collect Use Tax

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Evidence--Criminal Law--Circumstantial Evidence Sufficient to Establish Corpus Delicti

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Evidence--Presumptions--Rebuttable Presumption Persists Until Trier of Fact Finds Nonexistence of Presumed Fact as Probable as its Existence

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Restraint of Trade--Sherman Act--Refusal to Sell as Unlawful Means of Effecting Price Maintenance

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Torts--Negligence--Vendor of Alcoholic Beverage to Intoxicated Minor Liable to Third Party

Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases:

CONTRACTS--CONFLICT OF INTERESTS--GOVERNMENT EXPERT'S PRINCIPAL EMPLOYMENT INSUFFICIENT TO VOID CONTRACT ON GROUNDS OF PUBLIC POLICY

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CRIMINAL LAW-ATTEMPT-CONVICTION OF ATTEMPT TO RECEIVE PROPERTY NOT IN FACT STOLEN

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DOMESTIC RELATIONS-UNIFORM RECIPROCAL ENFORCEMENT OF SUPPORT ACT--RELIEF FROM-EXTRADITION UPON PETITION OF THE OBLIGOR

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EVIDENCE-ADMISSIONS--GUILTY PLEA TO TRAFFIC LAW VIOLATION INADMISSIBLE IN SUBSEQUENT CIVIL SUIT

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FEDERAL JURISDICTION AND PROCEDURE--DIVERSITY JURISDICTION--ABSTENTION BY FEDERAL COURT FROM THE EXERCISE OF JURISDICTION IN DIVERSITY CASE

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LABOR LAW--LABOR--MANAGEMENT RELATIONS ACT-STATE COURT PRE-EMPTED FROM ENFORCING GRIEVANCE PROCEDURES OF COLLECTIVE BARGAINING AGREEMENT

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PROFESSION OF LAW--BAR ASSOCIATION MAY NOT DISCIPLINE AN ATTORNEY FOR CONDUCT AS …

Book Reviews, Laurence H. Eldredge, Henry N. Williams

Vanderbilt Law Review

Evidence of Guilt: Restrictions Upon its Discovery or Compulsory Disclosure

By John MacArthur Maguire

Boston: Little, Brown &Co. 1959. Pp. xi, 295. $12.50

reviewer: Edmund M. Morgan

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Government and Public Administration

By John D. Millett

New York. McGraw-Hill Book Co. 1959. Pp. x, 477. $7.95

reviewer: Henry N. Williams

Procedure And Evidence--1959 Tennessee Survey, Edmund M. Morgan

Vanderbilt Law Review

This survey of Procedure and Evidence is in most respects merely a horizontal digest of the cases which have been published between June 1, 1958, and June 1, 1959. Only a few decisions are of the character and importance that would call for comment in regular course in a law review like the Vanderbilt Law Review. Many of them are mere illustrations of inexcusable disregard by counsel of our applicable statutes and rules and previous decisions of our appellate courts interpreting them. Whether this sort of treatment of the subject is justifiable is open to serious question. The answer depends …

Recent Cases, Law Review Staff

Vanderbilt Law Review

CONFLICT OF LAWS--JURISDICTION--RESIDENCE AS A JURISDICTIONAL BASIS FOR DIVORCE

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CORPORATIONS-SECURITIES ACTS--DISTINCTION BETWEEN "CLASS" AND "SERIES" UNDER SECTION 16(b) OF SECURITIES EXCHANGE ACT

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CORPORATIONS-STOCK DIVIDENDS-INCONSISTENCY BETWEEN TRADITIONAL AND MODERN CONCEPTS OF STOCK DIVIDENDS

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CRIMINAL PROCEDURE-EVIDENCE-STATUTORY LIMITATION OF JENCKS DECISION

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EVIDENCE--SEARCHES AND SEIZURES--INADMISSIBILITY IN FEDERAL COURT OF EVIDENCE OBTAINED THROUGH AN UNREASONABLE SEARCH BY STATE OFFICERS

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EVIDENCE--WITNESSES-ABILITY OF ONE SPOUSE TO TESTIFY AGAINST THE OTHER IN FEDERAL CRIMINAL PROCEEDINGS

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HABEAS CORPUS--FEDERAL COURT REMAND OF PETITIONER TO STATE COURT FOR NEW TRIAL

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MUNICIPAL CORPORATIONS--TORT LIABILITY--DUTY TOPROVIDE POLICE PROTECTION TO INFORMERS

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TAXATION--ESTATE TREASURY REGULATIONS ON GOVERNMENT …

Annual Survey Of Tennessee Law, Harold Seligman

Vanderbilt Law Review

Of particular significance in this field during the survey year has been the decision of the Supreme Court of Tennessee in Southern Bell Tel. and Tel. Co. v. Tennessee Pub. Serv. Comm'n. Several aspects of administrative law are involved in this holding, including scope of review, evidence to be considered by the court on review, and the rate-making function...

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In Flowers v. Benton County Beer Board, the license of a beer permit holder was revoked by a county beer board due to the holder's plea of guilty to driving an automobile while under the influence of an intoxicant in …

Criminal Law And Procedure -- 1958 Tennessee Survey, Charles H. Miller

Vanderbilt Law Review

In surveying the field of criminal law and procedure the cases presented to the supreme court during the year were little more than normal or typical. Several of the criminal cases are not presented in detail in this article, as they are dealt with in other survey sections.

Procedure And Evidence -- 1958 Tennessee Survey, Edmund M. Morgan

Vanderbilt Law Review

Construction and Sufficiency on Demurrer: A pleading must be construed in the light of matters judicially noticed; an allegation of facts from which the inference of the existence of an essential fact is no more reasonable or is less reasonable than an inference of its non-existence is not the equivalent of an allegation of that essential fact. ...

Thus in an action against a Pension Board for money due, a demurrer to the bill of complaint specifying only the failure to allege a ground of recovery does not raise the question whether the decision of the Pension Board is made …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases

Conflict of Laws--Jurisdiction--Assumption of Personal Jurisdiction over Non-Resident Insurer on the basis of a Single Insurance Contract

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Constitutional Law--Taxation--Tax Immunity of Federal Government not Infringed by Local Taxes upon Possession of Government Property

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Evidence--Hearsay--Utterance of Employee under Emotional Stress Admissible to Establish Scope of Employment and Render Employer Vicariously Liable

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Insurance--Automobile--Duplicating Recoveries allowed under Liability and Medical Payment Clauses of Automobile Liability Insurance Policy

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Insurance--Business Indemnity--Radiation Decontamination Expenses not Recoverable under a Business Interruption Clause

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Insurance--Life--Variable Annuity Contracts not Subject to Regulation by Securities and Exchange Commission

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Physicians--Unprofessional Conduct--Willful Evasion of Federal …