Evidence Commons^™

Evidence, Marc T. Treadwell

Mercer Law Review

The survey period saw a number of cases raising significant evidentiary issues. For example, lawyers engaged in civil litigation should be aware of decisions addressing the admissibility of collateral source payments and offers to pay medical bills in tort actions. Also, the court of appeals struggled with the question of whether the forfeiture of a bond posted in response to a traffic citation is admissible in a subsequent civil action as an admission of liability. With regard to criminal law, decisions rendered during the survey period suggest that at least some members of the supreme court will be taking a …

1996 Oregon Evidence: Trial Techniques, Developments, And Ethics, Oregon Law Institute, Linda K. Eyerman, Gayle L. Troutwine, Michael R. Shinn, Ancer L. Haggerty, Chris Kitchel, Jan K. Kitchel, Jeffrey S. Jones, Leslie S. Johnson, Barrie J. Herbold, John R. Faust Jr.

Oregon Law Institute, 1996

Course Materials from the November 22, 1996 Program in Portland

Condemned By Substance And Process: A Comment On “Doubly Condemned”: Adjustments To The Crime And Punishment Regime In The Late Slavery Period In The British Caribbean Colonies And “Under The Present Mode Of Trial, Improper Verdicts Are Very Often Given”: Criminal Procedure In The Trials Of Slaves In Antebellum Louisiana, Raymond T. Diamond

Cardozo Law Review

The substance of modem criminal law and the procedures through which that law is enforced are a subject of current debate. On the one hand, some call into question the use of criminal sanctions as a means of enforcing schemes of regulation meant to guarantee public welfare. By the same token, violent crime and crime that is otherwise malum in se has caused increasing levels of fear and concomitant calls for more vigorous enforcement of the criminal law. As a result, the rights that protect the accused from intrusions by a potentially tyrannical state and from arbitrary decision making by …

Preventing The Discovery Of Plaintiff Genetic Profiles By Defendants Seeking To Limit Damages In Personal Injury Litigation, Mark A. Rothstein

Indiana Law Journal

No abstract provided.

Perjury: An Anthology, Richard H. Underwood

Law Faculty Scholarly Articles

Professor Underwood takes an in-depth look at the occurrence of perjury from ancient Rome to the O.J. Simpson trial. This journey through time provides insight into the motives of perjurers, the difficulties involved in catching them; and the alarming frequency with which they succeed, unchastised.

Novel Scientific Evidence After Reese V. Stroh: The Washington Supreme Court's Love Affair With Frye, Robert D. Leinbach

Washington Law Review

In Reese v. Stroh, the Washington Supreme Court upheld the use of the Frye test as a threshold inquiry in civil cases involving novel scientific evidence. By affirming the decision of the court of appeals, but not its reasoning, the Washington Supreme Court side-stepped the court of appeals's argument for adoption of the Daubert standard in civil cases analyzing ER 702. This Note examines the decision in Reese v. Stroh and concludes that the Washington Supreme Court failed to determine clearly the proper analysis of ER 702 in cases involving novel scientific evidence. It further agrees with Justice Johnson's …

Testilying: Police Perjury And What To Do About It, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Police, like people generally, lie in all sorts of contexts for all sorts of reasons. This article has focused on police lying designed to convict individuals the police think are guilty. Strong measures are needed to reduce the powerful incentives to practice such testilying and the reluctance of prosecutors and judges to do anything about it. Among them might be the adoption of rewards for truth telling, the redefinition of probable cause, and the elimination of the exclusionary rule and its insidious effect on the resolve of legal actors to implement the commands of the Constitution. Ultimately, however, the various …

Pragmatism And Realism, Hilary Putnam

Cardozo Law Review

Let me begin by asking what will undoubtedly seem to many, if not all of you, a most peculiar question: How did it happen that the first philosopher to present a completely worked out version of direct realism in the entire history of modem philosophy was none other than the American pragmatist, William James?

Should "Clean Hands" Protect The Government Against § 2515 Suppression Under Title Iii Of The Omnibus Crime Control And Safe Streets Act Of 1968?, Francis Marion Hamilton, Iii

Washington and Lee Law Review

No abstract provided.

Washington's Expansion Of The "Plan" Exception After State V. Lough, Jeannie Mayre Mar

Washington Law Review

In State v. Lough, the Washington Supreme Court ignored strong case law limiting the admission of an accused's prior misconduct under the plan exception to evidence rule 404(b) and upheld the admission of unproved wrongs against the accused. The plan exception to Washington Rule of Evidence 404(b) prohibits using misconduct evidence to show propensity, but admits such evidence if used to establish a defendant's overall design or plan to commit the charged offense. This Note analyzes the Washington Supreme Court decision to uphold admission of a defendant's uncharged misconduct under the plan exception. Moreover, this Note argues that the …

Text, Texts, Or Ad Hoc Determinations: Interpretation Of The Federal Rules Of Evidence, Randolph N. Jonakait

Indiana Law Journal

No abstract provided.

Lex, Lies & Videotape, Greg Jones

University of Arkansas at Little Rock Law Review

No abstract provided.

"Lies, Damned Lies, And Statistics"? Psychological Syndrome Evidence In The Courtroom After Daubert, Krista L. Duncan

Indiana Law Journal

No abstract provided.

Arizona V. Evans: Carving Out Another Good-Faith Exception To The Exclusionary Rule, Sara Gilbert

Mercer Law Review

In Arizona v. Evans, the United States Supreme Court considered whether the exclusionary rule requires suppression of evidence seized incident to an arrest, when the arrest resulted from inaccurate computer data created by court personnel. In January 1991, police arrested Isaac Evans during a routine traffic stop because the patrol car's computer indicated he was the subject of an outstanding misdemeanor warrant. While being handcuffed, Evans dropped a marijuana cigarette. A subsequent search of the vehicle revealed a bag of marijuana hidden under the passenger seat, and Evans was charged with possession. Upon notifying the justice court of the …

The Proposed Amendment To Federal Rule Of Evidence 407: A Subsequent Remedial Measure That Does Not Fix The Problem , Thais L. Richardson

American University Law Review

No abstract provided.

Accomplices' Confessions And The Confrontation Clause, Welsh S. White

William & Mary Bill of Rights Journal

The admissibility of an accomplice's confession against a criminal defendant has long been a subject of concern in Anglo-American law. The Supreme Court has held that accomplices' confessions to the police are presumptively unreliable under the Confrontation Clause, without clearly expressing what facts would lend to the reliability of such statements. However, Professor White argues that in Williamson v. United States, the Court adopted an empirical framework that will make such confessions more likely to be admissible against an accused.

In this Article, Professor White first explores the traditional skepticism towards accomplices' confessions and explains the nature of the current …

Evidence, Marc T. Treadwell

Mercer Law Review

The publication of this, article marks the tenth time the Mercer Law Review has honored the author by asking him to survey Eleventh Circuit evidence decisions. While some may argue the Review has returned to the same well entirely too many times, ten years of analyzing Eleventh Circuit evidence decisions cannot help but to give some perspective and, perhaps, even some insight into the court's decisions. In this regard, there can be no doubt that the Eleventh Circuit has dramatically reduced its level of scrutiny of evidentiary issues. In the late 1980s, it could be fairly said that the court …

The Repressed Memory Phenomenon: Are Recovered Memories Scientifically Valid Evidence Under Daubert, Cynthia V. Mcalister

North Carolina Central Law Review

No abstract provided.

A Bludgeon By Any Other Name: The Misuse Of Ethical Rules Against Prosecutors To Control The Law Of The State, Frank O. Bowman Iii

Faculty Publications

My objective here is threefold: (1) to explain these ethical rules and demonstrate how each is in conflict with longstanding principles of federal criminal law; (2) to explain why these rules are illegitimate, both as rules of ethics and as rules of positive law; and (3) to offer some observations on how the dispute over these rules can sharpen our thinking about the nature and proper limits of ethical rules governing lawyers.

The Allure Of The Illogic: A Coherent Solution For Rule 703 Requires More Than Redefining "Facts Or Data", Paul R. Rice

Mercer Law Review

In his article entitled Developing A Coherent Theory of the Structure of Federal Rule of Evidence 703, Professor Imwinkelried proposes a theory for the interpretation of Rule 703. He argues that a restrictive interpretation of the terms "facts or data" in Rule 703 would resolve the conflicts that have plagued that Rule. Professor Imwinkelried's proposal would exclude research data and other background facts from the definition of "facts or data." By his interpretation, when an expert is testifying to an opinion based on facts that have not been proven at the trial the expert witness may only rely on …

Experts, Judges, And Commentators: The Underlying Debate About An Expert's Underlying Data, Ronald L. Carlson

Mercer Law Review

Debate concerning the limits of judicial power over expert witnesses remains active and in its early stages. Commentators charting the course of judicial opinions observe that some of the modem regulatory proposals have yet to enlist official adoption. Part of the problem may relate to recognition of questions. Courts will adjudicate critical issues only when they are made aware of them. The burden of calling attention to an expert's flawed bases falls squarely on trial lawyers who must make astute and incisive objections.

In this formative period of legal development important decisions will be made. The future direction of courtroom …

Developing A Coherent Theory Of The Structure Of Federal Rule Of Evidence 703, Edward J. Imwinkelried

Mercer Law Review

Some commentators have suggested that the American judicial hearing is becoming trial by expert. As recently as 1974, the Jury Verdict Reporter for Cook County, Illinois, listed only 188 regularly testifying experts? Today, there are more than 3,100-a 1,540 percent increase. In the late 1980s, the Cook County state courts averaged one expert per trial. In some areas, the trend is even more pronounced. In the early 1990s, the Rand Corporation released a study of the use of experts in trials in California courts of general jurisdiction. Expert witnesses appeared in eighty-six percent of the trials studied, an average of …

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

All Faculty Scholarship

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 …

The Clipper Chip Proposal: Deciphering The Unfounded Fears That Are Wrongfully Derailing Its Implementation, 29 J. Marshall L. Rev. 475 (1996), Howard S. Dakoff

UIC Law Review

No abstract provided.

Chain Of Custody, Paul C. Giannelli

Faculty Publications

No abstract provided.

Lessons For The United States: A Greek Cypriot Model For Domestic Violence Law, Joan L. Neisser

Michigan Journal of Gender & Law

The purpose of this Article is twofold: to view the problem of domestic violence victims not wishing to testify against their abusers through the lenses of different feminist perspectives; and to use the Greek Cypriot experience as a model to test the value of these theories when developing legal policies addressing this issue.

When The Constable Blunders: A Comparison Of The Law Of Police Interrogation In Canada And The United States, Robert Harvie, Hamar Foster

Seattle University Law Review

This Article explores the Supreme Court of Canada's use of the Charter of Rights and Freedoms in limiting police interrogations and compares its case decisions with cases from the Supreme Court of the United States. Part II of this Article examines the purposes and policies underlying sections 10(b), 7, and 24(2) of the Charter. Part III then examines the application of sections 10(b) and 7 in situations where (1) suspects are interrogated by uniformed police officers or other persons known to be in authority, and (2) suspects are interrogated surreptitiously by persons not known to be in authority. In both …

Arizona V. Evans: Narrowing The Scope Of The Exclusionary Rule, Laura A. Giantris

Maryland Law Review

No abstract provided.

Substance And Form In Scientific Evidence: What Daubert Didn't Do, Samuel R. Gross

Book Chapters

On its face, Daubert v. Merrell Dow Pharmaceuticals was about as easy a case as the Supreme Court gets. The plaintiff claimed that their birth defect were caused by the anti-nausea drug Bendectin, which their mothers had used during their gestation. In response to a motion for summary judgment by the defendant, the plaintiff presented affidavits of eight expert witnesses who offered their opinion - based on a variety of studies- that Bendectin was indeed the culprit. The federal district court that heard the motion granted summary judgment to the defendant, and the Ninth Circuit affirmed. Both lower court held …

The After-Acquired Evidence Rule: The Best Of All Possible Worlds?, Sharona Hoffman

Faculty Publications

No abstract provided.