Evidence Commons^™

Hearsay Law: Recent Developments In Maryland And In The Supreme Court, Lynn Mclain

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Handout from an Anne Arundel County Bar Association CLE class concerning then-recent developments in Maryland hearsay rules.

On The Legal Consequences Of Sauces: Should Thomas Keller's Recipes Be Per Se Copyrightable?, Christopher J. Buccafusco

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The restaurant industry now takes in over $500 billion a year, but recent courts have been skeptical of the notion that one of its most valuable assets, original recipes, are subject to copyright protection. With more litigation looming and the contours of the debate insufficiently mapped out, this article establishes the appropriate groundwork for analyzing the copyrightability of recipes. I show that, contrary to recent appellate court opinions, recipes meet the statutory requirements for copyrightability. I argue, by analogizing to musical compositions, that written recipes work to satisfy the fixation requirement of copyright law just as musical notation does for …

Detailing Daubert, The Hon. E Richard Webber, Dana M. Malkus

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When Justice Blackmun wrote Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the assignment was to reconcile the standards governing the admissibility of expert testimony with Federal Rule of Evidence 702. As Justice Blackmun recognized, Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), had long served as the polestar for determining the admissibility of expert testimony in litigation. Although the test developed by the Frye court was ultimately rejected when the Supreme Court announced new rules regarding the admissibility of expert testimony, the Frye court’s recognition of the purpose behind admitting expert testimony remains instructional: …

Post-Crawford: Time To Liberalize The Substantive Admissibility Of A Testifying Witness's Prior Consistent Statements, Lynn Mclain

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The United States Supreme Court's 1995 decision in Tome v. United States has read Federal Rule of Evidence 801(d)(1)(B) to prevent the prosecution's offering a child abuse victim's prior consistent statements as substantive evidence. As a result of that decision, the statements will also be inadmissible even for the limited purpose of helping to evaluate the credibility of a child, if there is a serious risk that the out-of-court statements would be used on the issue of guilt or innocence.

Moreover, after the Court's March 2004 decision in Crawford v. Washington, which redesigned the landscape of Confrontation Clause analysis, other …

The Allure And Danger Of Practicing Law As Taxonomy, Marcia L. Mccormick

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In this article, I hope to contribute to the ongoing debate on how our society treats the problem of discrimination. Many scholars have criticized the types of antidiscrimination statutes we have enacted as well as the ways in which the courts have interpreted those laws. While I agree with many of these critiques, rather than tackle those very large issues at the outset, I focus on the test the courts currently use to evaluate the evidence to determine whether an inference can be made that discrimination has occurred. I argue that lawyers and courts have become so caught up in …

Expert Testimony And Scientific Evidence, Lynn Mclain

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Handout from a day-long lecture on expert and scientific testimony at the Maryland Judicial Institute.

Impeachment Of Witnesses: A Walking Tour, Lynn Mclain

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This handout from the Maryland State's Attorneys' Convention in 2003 summarizes the general methods of witness impeachment, who may be impeached, and impeachments by attacks on witnesses' character for truthfulness.

"Quick-Takes" On A Few Recent Decisions In Evidence Law ... And Rule 5-407, Lynn Mclain

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Handout from the State and Local Government Law Institute covering recent (2003) Maryland evidence cases.

An Introduction To The Rules Of Evidence Applicable To Collection Cases In Maryland Trial Courts, Lynn Mclain

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This class handout introduces students to the basic concepts of evidence using examples and language from the Maryland Rules of Evidence.

Dealing With Complex Evidence Of Domestic Violence: A Primer For The Civil Bench, Jane C. Murphy, Jane H. Aiken

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New laws and policies aimed at protecting victims of domestic violence have been adopted across the country throughout the last twenty years. The legal approaches taken to protect battered women and control family violence have brought about significant changes in family law. New laws include statutes permitting civil protection or restraining orders, and laws requiring that domestic violence be considered in custody and visitation decisions. Both of these types of statutory reforms can provide protection to adult victims of domestic violence and their children. Evaluating a parent’s fitness by considering past acts of violence to other family members results in …

Evidentiary Considerations In Civil Cases, Lynn Mclain

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Handout from a presentation at the Maryland Judicial Institute outlining character evidence and providing the text of the applicable Rules.

Evidence Issues In Domestic Violence Civil Cases, Jane C. Murphy, Jane H. Aiken

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New laws and policies aimed at protecting victims of domestic violence have been adopted across the country over the last twenty years.The legal approaches taken to protect battered women and control family violence have resulted in significant changes in family law. New laws include statutes permitting civil protection or restraining orders, and laws requiring that domestic violence be considered in custody and/or visitation decisions. Both of these types of statutory reforms can provide protection to adult victims of domestic violence and their children. Evaluating a parent's fitness by considering past acts of violence to other family members results in decisions …

Text, Context And The Problem With Rape, Katharine K. Baker

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No abstract provided.

The Use And Effectiveness Of Various Learning Materials In An Evidence Class, Stephen J. Shapiro

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Like many law teachers, I take reasonable care in selecting the outside materials I require my students to use (or recommend to them) in preparing for class and studying for the exam. I base my choice on my own notions of what would be most helpful to them in learning the material, preparing for class, succeeding on the exam, and preparing to be lawyers. I carefully weigh such matters as length of assignment, interest to the students, and active versus passive learning.

My assessment, however, is based almost entirely on my own notions of what the students will find most …

New Federal Rules In Sex Offense Cases, Lynn Mclain

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This article from the November/December 1995 issue of the Maryland Bar Journal details the changes made to the Federal Rules of Evidence following the enactment of the 1994 Comprehensive Crime Bill. Questions raised by the new rules and the response of the Judicial Conference are also discussed.

No Magic Formula: A New Approach For Calculating The Ten Year Time Period For Admission Of Prior Conviction Evidence, Amy E. Sloan

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Federal Rule of Evidence (FRE) 609 governs admission of prior conviction evidence. Under this rule, it is easier to admit evidence of a prior conviction that is less than ten years old than to admit evidence of older convictions. The ten year period is measured from the later of either the date of conviction or the date of release from confinement.

Calculating the ten year period is fairly straightforward in most cases but becomes confusing when the witness has been confined for violating the terms of probation, parole, or some other period of conditional release. Does the confinement for violation …

Maryland's Adoption Of A Code Of Evidence, Lynn Mclain

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This short paper written just after the adoption of the Maryland Rules of Evidence explains the rules and the process it took to adapt the Federal Rules of Evidence for use in Maryland.

Maryland's First Evidence Code, Lynn Mclain

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This outline from a talk given by Professor McLain outlines the history of the rules of evidence Maryland has used and provides a quick summary of the then-new Title 5, the Maryland Rules of Evidence.

Challenging Public Investigative Reports: How To Fight The Hearsay Exception, Steven P. Grossman, Stephen J. Shapiro

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This paper discusses how attorneys can argue against having government and public reports admitted into evidence at trial that would be damaging to their client. When this paper was done, such reports were admitted via Federal Rule of Evidence 803(8)(C). The authors argue that it is possible to challenge admission of factual findings in public reports despite various court decisions which make this difficult.

Obscured Visions: Policy, Power, And Discretion In Transnational Discovery, David J. Gerber

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This Essay addresses issues involving the discovery of information located outside the United States. Specifically, it deals with some of the problems created by the lack of appropriate limits on United States discovery procedures. Professor Gerber first analyzes the extent of judicial discretion in the United States in matters concerning extraterritorial discovery. The analysis encompasses the underlying legal bases for the exercise of discretion as well as the political and institutional factors that influence the uses of discretion.

Next, the Essay focuses on the international consequences of the virtually unlimited discretion courts in the United States exercise in discovery matter. …

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

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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 …

International Discovery After Aerospatiale: The Quest For An Analytical Framework, David J. Gerber

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No abstract provided.

The Doctrine Of Inevitable Discovery: A Plea For Reasonable Limitations, Steven P. Grossman

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In reinstating the Iowa murder conviction of Robert Williams, the Supreme Court accepted explicitly for the first time the doctrine of inevitable discovery. Applied for some time by state and federal courts, the doctrine of inevitable discovery is a means by which evidence obtained illegally can still be admitted against defendants in criminal cases. Unfortunately, the Court chose to adopt the doctrine without any of the safeguards necessary to insure that the deterrent impact of the exclusionary rule would be preserved, and in a form that is subject to and almost invites abuse.

This article warns of the danger to …

Extraterritorial Discovery And The Conflict Of Procedural Systems: Germany And The United States, David J. Gerber

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No abstract provided.

Evidence: Making The Record, Margaret G. Stewart

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No abstract provided.

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

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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 …