Evidence Commons^™

Hanging On By A Thread: The Exclusionary Rule (Or What's Left Of It) Lives For Another Day, David A. Moran

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Back when there was a Soviet Union, foreign intelligence officers would anxiously await the May Day parade in Moscow to see who would be standing next to the chairman of the Communist Party and who would be missing from the reviewing platform altogether. Since the Soviet government and the statecontrolled press published very little about what was really going on in the halls of state power, this was considered the most reliable way to determine who was in or out of favor and, by extension, how the domestic and foreign policies of the world's second most powerful country were likely …

Advocacy In The Court Of Public Opinion, Installment Two: How Far Should Corporate Attorneys Go, Michele M. Destefano

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Today, legal controversies are tried in the court of public opinion as much as in any court of law. Corporate lawyers' traditional tendency, however, has been to attempt to isolate legal activities from public relations activities. Accordingly, when providing legal advice, they have viewed media considerations as separate. Historically corporate counsels' typical media strategy often consisted of no more than, "no comment." Given today's saturated media culture, this is no longer a viable strategy. Indeed, it appears that some corporate lawyers are adapting to the new media environment and attempting to help their clients manage the public relations impact of …

Federal Philosophy Of Science: A Deconstruction- And A Reconstruction, Susan Haack

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No abstract provided.

The Majestic And The Mundane: The Two Creation Stories Of The Exclusionary Rule, Scott E. Sundby, Lucy B. Ricca

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No abstract provided.

Liar! Liar! Impeaching A Witness On Cross-Examination, Maureen A. Howard

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There are certain trial moments that can set an advocate’s heart a-flutter. One is the opportunity to show the jury that an adverse witness is not to be trusted. Even better is the chance to expose the witness to be a bald-faced liar.

Welcome to the wonderful world of impeachment. Impeachment is the art of discrediting the witness on cross-examination. There are seven impeachment techniques:

• Bias, interest, and motive

• Contradictory facts

• Prior convictions — FRE 609

• Prior bad acts — FRE 608 (b)

• Prior inconsistent statements — FRE 613

• Bad character for truthfulness — …

"I'M Dying To Tell You What Happened": The Admissibility Of Testimonial Dying Declarations Post-Crawford, Peter Nicolas

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This Article demonstrates the existence and delineates the scope of a federal constitutional definition of "dying declarations" that is distinct from the definitions set forth in the Federal Rules of Evidence and their state counterparts. This Article further demonstrates that states have state constitutional definitions of "dying declarations" (for purposes of interpreting state constitutional analogues to the Confrontation Clause of the Sixth Amendment) that may differ in important respects from the federal constitutional definition of "dying declarations."

This Article then shows that some of the definitions of "dying declarations" contained in federal and state hearsay exceptions exceed the federal and …

Irreconcilable Differences? The Troubled Marriage Of Science And Law, Susan Haack

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No abstract provided.

When The Lawyer Knows The Client Is Guilty: Client Confessions In Legal Ethics, Popular Culture, And Literature, Michael Asimow, Richard H. Weisberg

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The article explores the ethical dilemma faced by criminal defense lawyers when they know their client is factually guilty but the client insists on a vigorous defense. It examines the tension between the lawyer’s duty of zealous representation and the duty of candor toward the court, proposing a compromise that allows lawyers discretion to choose between strong or weak adversarial approaches based on the context. The analysis draws on historical cases, such as the Courvoisier case of 1840 and the modern case of Steven Feldman, as well as insights from popular culture and literary sources, to argue that the discretionary …

Giles V. California: A Personal Reflection, Richard D. Friedman

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In this Essay, Professor Friedman places Giles v. California in the context of the recent transformation of the law governing the Confrontation Clause of the Sixth Amendment. He contends that a robust doctrine of forfeiture is an integral part of a sound conception of the confrontation right. One reason this is so is that cases fitting within the traditional hearsay exception for dying declarations can be explained as instances of forfeiture. This explanation leads to a simple structure of confrontation law, qualified by the principle that the confrontation right may be waived or forfeited but not subject to genuine exceptions. …

Left Hand, Third Finger: The Wearing Of Wedding (Or Other) Rings As A Form Of Assertive Conduct Under The Hearsay Rule, Peter Nicolas

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No abstract provided.

Proving Causation: The Holism Of Warrant And The Atomism Of Daubert, Susan Haack

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What's Wrong With Litigation-Driven Science? An Essay In Legal Epistemology, Susan Haack

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Of Truth, In Science And In Law, Susan Haack

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No abstract provided.

Is A Forensic Laboratory Report Identifying A Substance As A Narcotic 'Testimonial'?, Richard D. Friedman

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Is a state forensic analyst's laboratory report, prepared for use in a criminal proceeding and identifying a substance as cocaine, "testimonial" evidence and so subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004)?

Does An Accused Forfeit The Confrontation Right By Murdering A Witness, Absent A Purpose To Render Her Unavailable?, Richard D. Friedman

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If an accused murdered a witness, should he be deemed to have forfeited the right under the Sixth Amendment "to be confronted with" the witness, absent proof that the accused committed the murder for the purpose of rendering her unavailable as a witness?

Waiting For The Other Shoe: Hudson And The Precarious State Of Mapp, David A. Moran

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I have no idea whether my death will be noted in the New York Times. But if it is, I fear the headline of my obituary will look something like: "Professor Dies; Lost Hudson v. Michigan' in Supreme Court, Leading to Abolition of Exclusionary Rule." The very existence of this Symposium panel shows, I think, that my fear is well-grounded. On the other hand, I am not quite as fearful that Hudson foreshadows the complete overruling of Mapp v. Ohio2 and Weeks v. United States3 as I was when I published an article just three months after the Hudson decision …

Deterrence, Retributivism, And The Law Of Evidence, Richard A. Bierschbach, Alex Stein

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Legal scholarship has long treated substantive criminal law and evidence as two separate and distinct fields. The former largely concerns itself with evaluating substantive criminal law rules by reference to various animating theories-most prominently, those of deterrence and retributivism.' Scholars, students, and policymakers laud or condemn doctrines based on notions of "just deserts" or ideas about the incentives they create for those disposed to commit a crime. When it comes to the numerous evidentiary and other rules that determine the course of prosecutions and proof, however, the conversation is different. Here, questions of reliability, evidential worth, and accuracy in fact-finding …

Mediating Rules In Criminal Law, Richard A. Bierschbach, Alex Stein

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This Article challenges the conventional divide between substantive criminal law theory, on the one hand, and evidence law, on the other, by exposing an important and unrecognized function of evidence rules in criminal law. Throughout the criminal law, special rules of evidence work to mediate conflicts between criminal law's deterrence and retributivist goals. They do this by skewing errors in the actual application of the substantive criminal law to favor whichever theory has been disfavored by the substantive rule itself The mediating potential of evidentiary rules is particularly strong in criminal law because the substantive law's dominant animating theories-deterrence and …

Peer Review And Publication: Lessons For Lawyers, Susan Haack

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No abstract provided.

Crawford And Davis: A Personal Reflection, Richard D. Friedman

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I have to say that when I stood up to argue Hammon I felt the wind at my back. I was basically a lawyer with an easy case, and there wasn't anything particularly unpredictable at the argument of Hammon. Now it got a little bit interesting, as I will explain later, because to a certain extent I was trying to argue the other case as well. But Hammon itself was sort of ordinary, normal law.

Holmes V. South Carolina Upholds Trial By Jury, Samuel R. Gross

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Bobby Lee Holmes was convicted of a brutal rape-murder and sentenced to death. The only evidence that connected him to the crime was forensic: a palm print, and blood and fiber evidence. (Biological samples taken from the victim for two rape kits were compromised and yielded no identifiable evidence.) Holmes claimed that the state's forensic evidence was planted and mishandled, and that the rape and murder were committed by another man, Jimmy McCaw White. At a pretrial hearing three witnesses testified that they saw White near the victim's house at about the time of the crime, and four others testified …

Forfeiture Of The Confrontation Right After Crawford And Davis, Richard D. Friedman

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So my topic this morning is on forfeiture of the confrontation right, which I think plays a central role in confrontation doctrine. And to try to present that, let me state the entirety of confrontation doctrine as briefly as I can. This is, at least, what I think the doctrine is and what it can be: A testimonial statement should not be admissible against an accused to prove the truth of what it asserts unless the accused either has had or will have an opportunity to confront the witness-which should occur at trial unless the witness is then unavailable-or has …

Crawford, Davis, And Way Beyond, Richard D. Friedman

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Until 1965, the Confrontation Clause of the Sixth Amendment to the United States Constitution hardly mattered. It was not applicable against the states, and therefore had no role whatsoever in the vast majority of prosecutions. Moreover, if a federal court was inclined to exclude evidence of an out-of-court statement, it made little practical difference whether the court termed the statement hearsay or held that the evidence did not comply with the Confrontation Clause.

The Use And Misuse Of High-Tech Evidence By Prosecutors: Ethical And Evidentiary Issues, Robert Aronson, Jacqueline Mcmurtrie

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This essay first addresses the ethical and evidentiary standards for the emerging use of high-tech computer-generated animations and computer-assisted closing arguments. Next, this essay considers the same questions within the context of forensic DNA evidence. Third, this essay considers the ethics of prosecutors' use of such evidence and the consequences for the misuse of this evidence. Finally, this essay suggests remedies to ethical problems facing prosecutors in their use of this kind of evidence.

Looking At The Overlooked: Portraits Of Law School Deans, Peter Goodrich

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The article examines the role of portraits in law schools, arguing that these images are not merely decorative but serve as powerful symbols that shape institutional identity and the legal profession. Despite their ubiquity, these portraits are often overlooked, yet they function as megalographs, inscribing and disseminating the values, history, and authority of the institution. The author contends that these visual elements play a crucial role in the formation of legal identity and the symbolic order of law schools.

Videotaping Investigative Interviews Of Children In Cases Of Child Sexual Abuse: One Community's Approach, Frank E. Vandervort

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Legal scholars have long debated the efficacy and necessity of videotaping investigative interviews with children when allegations of child sexual abuse have surfaced. This debate has been advanced from the perspectives of adversaries in the criminal justice system, prosecutors and defense advocates. Absent from this debate has been the perspective of the broader community. This debate has failed to consider how other investigative tools might be used in conjunction with videotaping to advance the interests of the community. Moreover, the debate about videotaping has taken place with little actual data. This Article seeks to accomplish two goals. First, it seeks …

Improving Criminal Jury Decision Making After The Blakely Revolution, J. J. Prescott, Sonja B. Starr

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The shift in sentencing fact-finding responsibility triggered in many states by Blakely v. Washington may dramatically change the complexity and type of questions that juries will be required to answer. Among the most important challenges confronting legislatures now debating the future of their sentencing regimes is whether juries are prepared to handle this new responsibility effectively - and, if not, what can be done about it. Yet neither scholars addressing the impact of Blakely nor advocates of jury reform have seriously explored these questions. Nonetheless, a number of limitations on juror decision making seriously threaten the accuracy of verdicts in …

We Really (For The Most Part) Mean It!, Richard D. Friedman

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I closed my petition for certiorari in Hammon v. Indiana by declaring, “ ‘We really mean it!’ is the message that lower courts need to hear, and that decision of this case can send.” The prior year, Crawford v. Washington had transformed the law of the Confrontation Clause, holding that an out-ofcourt statement that is testimonial in nature may be admitted against an accused only if the maker of the statement is unavailable and the accused has had an opportunity to cross-examine her. But Crawford deliberately left undetermined what the term “testimonial” meant. Many lower courts gave it a grudging …

Miranda's Reprieve: How Rehnquist Spared The Landmark Confession Case, But Weakened Its Impact, Yale Kamisar

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June marks the 40th anniversary of one of the most praised, most maligned-and probably one of the most misunderstood-U.S. Supreme Court cases in American history, Miranda v. Arizona. The opinion by Chief Justice Earl Warren conditions police questioning of people in custody on the giving of warnings about the right to remain silent, the right to counsel and the waiver of those rights. 384 U.S. 436. This ruling represents a compromise of sorts between the former elusive, ambiguous and subjective voluntariness/totality-of-the-circumstances test and extreme proposals that would have eliminated police interrogation altogether. But William H. Rehnquist didn't see Miranda that …

Confrontation After Crawford, Richard D. Friedman

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The following edit excerpt, drawn from "The Confrontation Clause Re-Rooted and Transformed," 2003-04 Cato Supreme Court Review 439 (2004), by Law School Professor Richard D. Friedman, discusses the impact, effects, and questions generated by the U.S. Supreme Court's ruling in Crawford v. Washington last year that a defendant is entitled to confront and cross-examine any testimonial statement presented against him. In Crawford, the defendant, charged with attacking another man with a knife, contested the trial court's admission of a tape-recorded statement his wife made to police without giving him the opportunity to cross-examine. The tiral court admitted the statement, and …