Evidence Commons^™

Inadmissible Evidence As A Basis For Expert Opinion Testimony: A Response To Professor Carlson, Paul R. Rice

Vanderbilt Law Review

Rule 703 of the Federal Rules of Evidence permits expert witnesses to offer opinions based upon evidence that has not been offered in the proceedings. The Rule also sanctions the expert's basing her opinion on inadmissible evidence if that evidence is "of a type reasonably relied upon by experts in the particular field informing opinions or inferences upon the subject." In a recent Essay in this Review, Professor Carlson presents a helpful exposition of the confused evidentiary status of this otherwise inadmissible evidence. He correctly notes that the majority of courts refuse to allow the inadmissible evidence upon which the …

Comity And Tragedy: The Case Of Rule 407, Marcia L. Finkelstein

Vanderbilt Law Review

This Note advocates that when a Federal Rule of Evidence conflicts with a state rule, a court should examine closely the purpose of the rules in an effort to balance the competing policies of comity and procedural uniformity. Part II of this Note provides a general background on legislative and court decisions concerning federal-state conflicts. Part II also illustrates the congressional and judicial inclination to protect state substantive law. Part III dis-cusses the conflict between the Maine Rule and Federal Rule 407. Part IV suggests an approach to the general conflict between state and federal rules and applies that approach …

The Parol Evidence Rule: Promissory Estoppel's Next Conquest?, Michael B. Metzger

Vanderbilt Law Review

The parol evidence rule, at first glance, seems to be such a candidate for many reasons. The parol evidence rule has confused" and dissatisfied legal scholars for a long time; for example, Professor Wigmore condemned the rule as "the most discouraging subject in the whole field of evidence."' Bringing the rule within estoppel's domain could simplify the application of the rule,' and legal scholars should appreciate anything that could clarify and rationalize its application. Furthermore, that promissory estoppel already has made substantial incursions into the province of the Statute of Frauds may portend a similar role for promissory estoppel in …

Human Leukocyte Antigen Testing: Technology Versus Policy In Cases Of Disputed Parentage, Patricia B. Blumberg

Vanderbilt Law Review

This Note assumes that the judicial trend of using HLA test results as affirmative evidence" will continue, and accepts the proposal that these results are scientifically reliable.' The Note will focus on the policy considerations and arguments that should affect the admissibility of the HLA blood test as affirmative evidence in various disputed parentage cases.This Note first examines the use of HLA test results to determine the paternity of illegitimate children who do not have a legal father, and concludes that courts should admit the results unconditionally in these circumstances. Second, the Note analyzes the use of the HLA blood …

Burdens Of Proof: Degrees Of Belief, Quanta Of Evidence, Or Constitutional Guarantees?, C.M.A. Mccauliff

Vanderbilt Law Review

This Article analyzes the whole range of burdens of proof as well as their constitutional implications. Part H of the Article discusses the traditional burdens of proof and the use of probability theory in legal fact finding. Part HI of the Article studies the decision making processes of law enforcement officers, the judges that review their decisions, and the decision making processes in appellate and administrative review. Part IV of the Article returns to the trial process and analyzes burdens of proof, not as degrees of belief, but as reflections of constitutional due process that mandate a required degree of …

The Expert As Educator: A Proposed Approach To The Use Of Battered Woman Syndrome Expert Testimony, Meredith B. Cross

Vanderbilt Law Review

This Recent Development proposes that courts should permit the use of battered woman syndrome expert testimony, but restrict its use to informing juries of the peculiar mental and emotional state of battered women. This role of the expert as educator would serve to dispel a jury's misconceptions about battered women and, at the same time, draw the focus of the testimony away from the implication which troubled the Buhrle court--that the battered woman syndrome represents a new defense to murder.The Advisory Committee explains in a note that rule 702 of the Federal Rules of Evidence suggests the use of expert …

The Acquisition Of Evidence For Criminal Prosecution: Some Constitutional Premises And Practices In Transition, H. Richard Uviller

Vanderbilt Law Review

This Article isolates only two of the many aspects of the Court's labors affecting the acquisition of evidence for criminal prosecution. The first concerns the allocation of primacy among the values that the exclusionary response to the illegal acquisition of evidence serves: a theoretical choice that may carry some notable practical consequences. The second requires are examination of the role of the trial court in supervising the preaccusatory search for evidence in a way that suggests the possible obsolescence of the Supreme Court's ruling credo in the Stewart era.

Federal Rule Of Evidence 803(3) And The Criminal Defendant: The Limits Of The Hillmon Doctrine, Thomas A. Wiseman, Iii

Vanderbilt Law Review

This Note has examined the use of the common-law Hillmon doctrine and rule 803(3) in a limited context. Several approaches are available to a court that considers whether to admit a Hillmon statement. A court in a jurisdiction that still applies the common-law hearsay rule may adhere to the status quo. Ample authority exists to permit this approach. Nevertheless, because admission of a Hillmon statement risks certain inherent dangers, a common-law court should avoid a perfunctory application of the exception. Instead, the court must examine carefully each Hillmon statement to ensure that it does not prejudice the defendant's right to …

Witness For The Defense: A Right To Immunity, Robin D. Mass

Vanderbilt Law Review

This Note has outlined various constitutional arguments that the criminal defendant can invoke in support of an application for witness immunity.First, the Note relies on the Supreme Court's decision in United States v. Nixon for its argument that courts should use a flexible separation of powers approach in the context of witness immunity grants. While the Nixon Court accepted the notion that separation of powers protects the decision making authority of the individual branches of government from infringement by the other branches, it observed that the doctrine does not enforce an absolute executive privilege. Thus, the separation of powers doctrine …

Diminished Capacity-Recent Decisions And An Analytical Approach, Robert P. Bryant, Corbin B. Hume

Vanderbilt Law Review

The concept of diminished capacity allows a defendant in a criminal case to prove, usually by presenting psychiatrists who testify that he suffered from an abnormal mental condition, that he was unable to entertain the particular mens rea required for conviction.' Although courts historically have been reluctant to admit such testimony, in recent years a growing number of jurisdictions have recognized the concept of diminished capacity. Recent decisions in Pennsylvania, the District of Columbia, and North Carolina, as well as recently adopted statutes in ten other jurisdictions,illustrate the evidentiary, social, and constitutional issues raised by the concept of diminished capacity. …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Civil Procedure--Class Actions--Order Dismissing Class Action that Leaves Plaintiff To Litigate a Small Monetary Claim Is Not a Final Appealable Order Under 28 U.S.C. § 1291

Plaintiff consumer, claiming to represent one and one-half million purchasers of defendants" products, filed a class action under section 4 of the Clayton Act, seeking treble damages, costs, and attorney's fees from defendants for alleged antitrust violations. Defendants successfully moved for a stay of proceedings pending the district court's determination of whether the case could be maintained as a class action.The court found the class unmanageable and, in accordance with Rule 23(c)(1) of the …

Burden Of Proof And Choice Of Forum In Tax Litigation, George L. Whitfield, Charles E. Mccallum

Vanderbilt Law Review

Since the burden of proof may be a decisive factor in tax litigation, it is important that the taxpayer be aware of the different rules in the various forums to which he may take a tax controversy, and it is essential that those rules operate fairly and consistently to enable the taxpayer to choose his forum intelligently. It is the purpose of this article to examine the burden of proof in tax litigation as it affects the choice of forum problem.

The Types Of Evidence: An Analysis, Lyman R. Patterson

Vanderbilt Law Review

Since the purpose of this article is to analyze evidence in functional terms, it may be helpful at the outset to state the basic ideas which underlie the discussion.

1. Evidence consists of propositions of fact which are related to another proposition, a proposed conclusion. Evidence is thus to be distinguished from the fact or facts which are its basis. 2. The essential relationship of propositions which are evidence to the proposition which is the proposed conclusion is relevancy. 3. The relevancy of evidence to the proposed conclusion is determined by the inference drawn from the evidence. If the evidence …

Evidence -- 1964 Tennessee Survey, Lyman R. Patterson

Vanderbilt Law Review

The difficulty in dealing with presumptions arises in part from the fact that the term embraces a host of different meanings, varying with the purposes underlying the presumption in a given situation. Unfortunately, the courts seldom articulate the meaning which they are attributing to the term and consequently do little to clear up the confusion... In Arnett v. Fuston, a negligence action, plaintiff argued that a verdict of not guilty against one of the two co-defendants was not supported by any evidence, and that a presumption should apply against him "for his election to stand on his motion for directed …

Contracts -- 1964 Tennessee Survey, Paul I. Hartman

Vanderbilt Law Review

I. Promissory Estoppel--Application by Federal Court

II. Third Party Beneficiary--Enforcement of Labor and Material Bond

III. Statute of Frauds--Statute as Defense to Third Party

IV. Parol Evidence Rule--Application to Extrensic Subsequent Agreement

V. Illegal Bargains--Agreement Not to Compete

VI. Death of Party to Personal Service Contract as Terminating the Contract

Evidence: A Functional Meaning, Lyman R. Patterson

Vanderbilt Law Review

A trial always involves two basic problems-the problem of ascertaining the truth of the matter in issue, and the problem of re-solving a dispute. The former can be characterized as the probative problem, arising from the problem of proving, and the latter as the forensic problem, arising from the procedural problem of proving-in-a-trial. The probative problem is a problem of evidence in that it is the problem of using evidence to ascertain the truth by "the ratiocinative process of continuous persuasion."' The forensic problem is a problem of the admissibility of evidence, and it is the forensic problem which has …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust Law--Violation of Section 7 of the Clayton Act by Joint Venture

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Civil Rights--Anti-discrimination Law as a Vehicle for a Private Civil Action

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Condemnation--Landowner Cannot Recover From Federal Government for Damages Caused Before Date of Taking Where Government Did Not Previously Contemplate, Condemning Property

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Constitutional Law--Loss of Nationality--Foreign Residency Statute Held Violative of Due Process

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Constitutional Law--Reapportionment--Both Houses of a State Legislature Must Be Based as Nearly as Is Practicable on Population

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Constitutional Law--Twenty-first Amendment--Scope of State Power Over Intoxicants Moving Within Its Borders

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Evidence--Statutory Presumptions--Reasonableness Is Implicit in Test of Rational Connection

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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 …