Evidence Commons^™

Crawford Surprises: Mostly Unpleasant, Richard D. Friedman

Articles

Crawford v. Washington should not have been surprising. The Confrontation Clause guarantees a criminal defendant the right "to be confronted with the witnesses against him." The doctrine of Ohio v. Roberts, treating the clause as a general proscription against the admission of hearsay-except hearsay that fits within a "firmly rooted" exception or is otherwise deemed reliable-had so little to do with the constitutional text, or with the history or principle behind it, that eventually it was bound to be discarded. And the appeal of a testimonial approach to the clause seemed sufficiently strong to yield high hopes that ultimately the …

Grappling With The Meaning Of 'Testimonial', Richard D. Friedman

Articles

Crawford v. Washington, has adopted a testimonial approach to the Confrontation Clause of the Sixth Amendment. Under this approach, a statement that is deemed to be testimonial in nature may not be introduced at trial against an accused unless he has had an opportunity to cross-examine the person who made the statement and that person is unavailable to testify at trial. If a statement is not deemed to be testimonial, then the Confrontation Clause poses little if any obstacle to its admission.2 A great deal therefore now rides on the meaning of the word "testimonial."

The Character Of Discrimination Law: The Incompatibility Of Rule 404 And Employment Discrimination Suits, Lisa Marshall Manheim

Articles

This Note illustrates how violations of Rule 404 of the Federal Rules of Evidence (which prohibits litigants from relying on certain propensity proofs) occur routinely. It demonstrates that the ineffectiveness of the ban in the context of discrimination suits cannot be blamed on clever lawyers or negligent judges, but rather is a predictable consequence of the dearth of evidence available to discrimination plaintiffs. This Note concludes by arguing that this subtle but problematic incongruity justifies a reform of the Rule.

The Priest-Penitent Privilege – An Hibernocentric Exercise In Postcolonial Jurisprudence, Walter J. Walsh

Articles

Although much has been written on the history of the priest-penitent privilege, this Article will show that such writing tends toward an unconscious, but strong, anglocentric tilt. It seems that no scholar has tried to locate and interpret all the Irish and American sources that inspired this initially hibernocentric, later more generally American, postcolonial deviation from the English common law. Since the Second World War, the significance of Philips and its 1828 New York codification have gained widespread recognition, but the scholarly inquiry has never advanced in any truly historical fashion. This article is thus the first history of the …

A Rejoinder To The Rejoinder To On The Theory Class's Theories Of Asbestos Litigation, Lester Brickman

Articles

The article, authored by Lester Brickman, serves as a rebuttal to Professor Charles Silver's rejoinder, which criticized Brickman's original article on asbestos litigation. Brickman defends his assertions regarding Silver's undisclosed retention by the law firm Baron & Budd to defend the controversial Script Memo, arguing that this nondisclosure breaches academic ethics. He also clarifies his stance on the role of attorney William Skepnek and reiterates his scholarly focus on legal ethics, particularly the issues surrounding contingency fees and their potential for overcharging clients. Brickman emphasizes the importance of academic integrity and the necessity of exposing ethical abuses in the legal …

Duress Is Not A Justification, Kyron J. Huigens

Articles

No abstract provided.

Epistemology Legalized: Or, Truth, Justice, And The American Way, Susan Haack

Articles

No abstract provided.

On The Theory Class's Theories Of Asbestos Litigation: The Disconnect Between Scholarship And Reality, Lester Brickman

Articles

No abstract provided.

Protecting The Citizen Whilst He Is Quiet: Suspicionless Searches, Special Needs And General Warrants, Scott E. Sundby

Articles

No abstract provided.

Face To Face': Rediscovering The Right To Confront Prosecution Witnesses, Richard D. Friedman

Articles

The Sixth Amendment to the United States Constitution protects the right of an accused 'to confront the witnesses against him'. The United States Supreme Court has treated this Confrontation Clause as a broad but rather easily rebuttable rule against using hearsay on behalf of a criminal prosecution; with respect to most hearsay, the exclusionary rule is overcome if the court is persuaded that the statement is sufficiently reliable, and the court can reach that conclusion if the statement fits within a 'firmly rooted' hearsay exception. This article argues that this framework should be abandoned. The clause should not be regarded …

Adjusting To Crawford: High Court Decision Restores Confrontation Clause Protection, Richard D. Friedman

Articles

In Crawford v. Washington, 124 S. Ct. 1354 (2004), the U.S. Supreme Court radically transformed its doctrine governing the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. Craitiord is a very positive development, restoring to its central position one of the basic protections of the common law system of criminal justice. But the decision leaves many open questions, and all lawyers involved in the criminal justice process will have to adjust to the new regime that it creates. This article outlines and summarizes the problems with the law as it stood before Crait/brd. It then explains the theoretical …

The Confrontation Clause Re-Rooted And Transformed, Richard D. Friedman

Articles

For several centuries, prosecution witnesses in criminal cases have given their testimony under oath, face to face with the accused, and subject to cross-examination at trial. The Confrontation Clause of the Sixth Amendment to the U.S. Constitution guarantees the procedure, providing that ‘‘[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witness against him.’’ In recent decades, however, judicial protection of the right has been lax, because the U.S. Supreme Court has tolerated admission of outof- court statements against the accused, without cross-examination, if the statements are deemed ‘‘reliable’’ or ‘‘trustworthy.’’ …

The Crawford Transformation, Richard D. Friedman

Articles

Crawford v. Washington, 124 S. Ct. 1354 (2004), is one of the most dramatic Evidence cases in recent history, radically transforming the doctrine governing the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. Crawford is a very positive development, but leaves many open questions - and forces Evidence teachers to rethink how they teach hearsay and confrontation.

De Novo Review In Deferential Robes?: A Deconstruction Of The Standard Of Review Of Evidentiary Errors In The Federal System, Peter Nicolas

Articles

Although the labels have changed, the name of the appellate game is still the same. For any given type of error in admitting or excluding evidence, one needs to determine whether review is discretionary or deferential. The purpose of this Article is to parse each of the rules of evidence to determine which types of claimed errors are entitled to de novo review, which are entitled to clear error review, and which are entitled to traditional abuse of discretion review. By "type" of error, this Article does not mean to refer to such large categories as "hearsay," "best evidence," "relevance," …

The Admissibility Of Expert Testimony About Cognitive Science Research On Eyewitness Identification, Edward D. Stein

Articles

Eyewitness identifications are important to jurors, especially in criminal trials. Psychological research has shown, however, that eyewitness testimony is systematically fallible in ways that undermine the goals of the rules of evidence. This article assesses the arguments for and against admitting expert testimony concerning cognitive science research about eyewitness identification. The article concludes that experts should in many instances be allowed to testify about the problems with eyewitness identification testimony.

The Capital Jury And Empathy: The Problem Of Worthy And Unworthy Victims, Scott E. Sundby

Articles

No abstract provided.

Trials And Tribulations: Science In The Law, Susan Haack

Articles

No abstract provided.

Sometimes What Everybody Thinks They Know Is True, Richard D. Friedman, Roger C. Park

Articles

This essay responds to D. Davis and W. C. Follette (2002), who question the value of motive evidence in murder cases. They argue that the evidence that a husband had extramartial affairs, that he heavily insured his wife's life, or that he battered his wife is ordinarily of infinitesimal probative value. We disagree. To be sure, it would be foolish to predict solely on the basis of such evidence that a husband will murder his wife. However, when this kind of evidence is cobmined with other evidence in a realistic murder case, the evidence can be quite probative. We analyze …

Crawford V. Washington, Richard D. Friedman

Articles

On June 9, by granting certiorari in Crawford v. Washington, 02-9410, the Supreme Court signaled its intention to enter once again into the realm of the Confrontation Clause, in which it has found itself deeply perplexed. This time there was a difference, however, because the grant indicated that the Court might be willing to rethink its jurisprudence in this area. Crawford, like Lee v. Illinois, 476 U.S. 530 (1986), and Lilly v. Virginia, 527 U.S. 116 (1999), presents a classic case of what might be called station-house testimony. Michael Crawford was accused of stabbing another man. His wife, Sylvia, was …

Minimizing The Jury Over-Valuation Concern (Visions Of Rationality In Evidence Law Symposium), Richard D. Friedman

Articles

A great deal of the rhetoric of evidence discourse concerns the supposed cognitive inadequacies of the jury. In various contexts we are told that although an item of evidence is probative, it must be excluded because the jury will give it too much weight. I believe this approach has played far too great a role in evidentiary law, and that it is an interesting project to see whether we can construct a satisfactory body of law without relying at all on the cognitive inadequacy argument. I think that, at least to a large extent, we can. In some settings, where …

Can Fingerprints Lie?: Re-Weighing Fingerprint Evidence In Criminal Jury Trials, Tamara F. Lawson

Articles

This article discusses fingerprint evidence and its use in criminal jury trials. It is commonly thought that fingerprints "never lie"; however, this article reveals the little known fact that the "science" of fingerprint identification has never been empirically tested or proven to be reliable. It further exposes the seldom-discussed issue of fingerprint misidentification and latent print examiner error. The article explains the importance of fingerprint evidence and its extensive use in all phases of the criminal justice system. Specifically, the article plays out the dramatic courtroom scenario of incriminating fingerprints being found at a crime scene and matching the accused …

Inquiry And Advocacy, Fallibilism And Finality: Culture And Inference In Science And The Law, Susan Haack

Articles

No abstract provided.

Expert Information And Expert Evidence: A Preliminary Taxonomy, Samuel R. Gross, Jennifer L. Mnookin

Articles

Federal Rule of Evidence 702 speaks in very general terms. It governs every situation in which "scientific, technical or other specialized knowledge will assist the trier of fact," and provides that, in that situation, "a witness qualified as an expert by knowledge, skill, experience, or education, may testify thereto in the form of an opinion or otherwise . . . .' In 2000, following a trio of Supreme Court cases interpreting Rule 702, the Rule was amended to include a third requirement, in addition to the helpfulness of the testimony and the qualifications of the witness: reliability. Under Rule 702 …

Weighing Poison Fruit, Yale Kamisar

Articles

In the simplest cases involving the exclusion of illegally obtained evidence, the items the defense is trying to suppress, such as drugs found during the search of a suspect's pocket, are direct, or primary, in their relationship to the police action. Thus, if the police have acted unlawfully, the evidence must be excluded from trial.

Many times, however, evidence is derivative, or secondary, in character. For example, an illegal search may turn up a key to an airport locker where the proceeds of a bank robbery are being kept. Or a coerced confession may reveal the place where a suspect …

Confrontation As A Hot Topic: The Virtues Of Going Back To Square One, Richard D. Friedman

Articles

I have been working so obsessively on the accused's right to confront the witnesses against him 1 that I am gratified that the organizers of this conference have designated confrontation as one of the "hot topics" of Evidence law. I am not so egotistical as to think that my work has made confrontation into a hot topic; I am just glad to know that I am working where a good deal of action is, and that other scholars recognize that confrontation is an important area in which dramatic changes may be occurring.

A Resident Of Evidenceland Defends His Turf, Richard D. Friedman

Articles

A few years ago, I wrote an essay welcoming Judge Richard Posner down from a star to Evidenceland, the sometimes obscure province occupied by evidence scholars.1 Although I criticized one of the points of his article on the economics of evidence law, I expressed the hope that he would remain in Evidenceland for an extended stay.2 I should have known that if he did so he would tell us long-term inhabitants what we have been doing wrong.

Squeezing Daubert Out Of The Picture, Richard D. Friedman

Articles

In this essay, I will offer some thoughts on how we might reframe the issues governing the admissibility of expert evidence. My principal focus is not on any particular type of expert evidence but on broader questions: the extent to which we ought to rely on rulings of admissibility, the standards that should govern admissibility rulings, and the role of the trial and appellate courts in making those rulings. To some extent, I will concentrate on the context of criminal cases, but for the most part my conclusions apply in both civil and criminal litigation. Here are my conclusions: First, …

In Defense Of The Search And Seizure Exclusionary Rule (Law And Truth - The Twenty-First Annual National Student Federalist Society Symposium On Law And Public Policy - 2002), Yale Kamisar

Articles

think Dean Pye's advice about casebook writing was sound,6 and what he had to say also applies to discussions and debates about such issues as the search and seizure exclusionary rule. We cannot (at least we should not) begin with Mapp v. Ohio. We need a prelude.

"They Say He's Gay": The Admissibility Of Evidence Of Sexual Orientation, Peter Nicolas

Articles

This Article seeks to fill an existing gap. Part II of this Article discusses the ways in which the sexual orientation of a victim, party, or witness is relevant within the meaning of Federal Rule of Evidence 401 and its state-law analogues, as well as when such evidence, although relevant, is nonetheless excluded due to its potential prejudicial impact.

Part III of this Article examines the hearsay rule and its exceptions to determine when, if ever, a person's assertion that he is gay can be admitted into evidence. Part IV of this Article discusses the applicability of the spousal privileges …

Government Officials As Attorneys And Clients: Why Privilege The Privileged?, Melanie B. Leslie

Articles

No abstract provided.