Evidence Commons^™

An Outsider's View Of Common Law Evidence, Roger C. Park

Michigan Law Review

same line by a Newton. There have been improvements since Bentham's jeremiad. But Anglo-American evidence law is still puzzling. It rejects the common-sense principle of free proof in favor of a grotesque jumble of technicalities. It has the breathtaking aspiration of regulating inference by rule, causing it to exalt the foresight of remote rulemakers over the wisdom of on-the-spot adjudicators. It departs from tried-and-true practices of rational inquiry, as when it prohibits courts from using categories of evidence that are freely used both in everyday life and in the highest affairs of state. Sometimes it seems to fear dim light …

A Feminist Approach To Social Scientific Evidence: Foundations, Andrew E. Taslitz

Michigan Journal of Gender & Law

This Article addresses several aspects of a feminist approach to social scientific evidence, specifically, the interpretive nature of mental states, the feminist attitude toward juries, and the political nature of evidence law.

Thoughts From Across The Water On Hearsay And Confrontation, Richard D. Friedman

Articles

This article draws on the history of the hearsay rule, and on recent decisions of the European Court of Human Rights, to argue that the right to confrontation should be recognised as a basic principle of the law of evidence, and that aspects of the Law Commission's proposals for reform of the hearsay rule, and of the Home Office's proposals for restrictions on the right of cross-examination, are therefore unsatisfactory.

Make-Believe: The Rules Excluding Evidence Of Character And Liability Insurance (Symposium: Truth And Its Rivals: Evidence Reform And The Goals Of Evidence Law), Samuel R. Gross

Articles

Article IV of the Federal Rules of Evidence includes several rules that prohibit the use of specified types of information as evidence of particular propositions. Subsequent remedial measures are inadmissible to prove negligence (but admissible to show ownership, control, et cetera),' settlement offers are inadmissible to prove liability (but admissible to show bias or prejudice, or for other purposes),2 and so forth. Any exclusion of relevant evidence involves some distortion of reality in the sense that the picture presented to the trier of fact includes less information than the available total. That will be true whether the evidence is kept …

Law In The Backwaters: A Comment Of Mirjan Damaška's Evidence Law Adrift, Samuel R. Gross

Reviews

The most problematic part of Professor Mirjan Damaška's fine book is the title.' Professor Damaška does an excellent job of situating American evidence law in the procedural context in which American trials occur. He identifies three major procedural elements. First, juries are traditionally cited as the primary or sole explanation for our extensive set of exclusionary rules, which are said to express mistrust of lay adjudicators. Professor Damaška points out as well that lay juries permit a divided court, with a professional judge who has exclusive control over "questions of law," and that this division is necessary for the operation …

Anchors And Flotsam: Is Evidence Law 'Adrift'?, Richard D. Friedman

Reviews

Difference, as well as distance, yields perspective. A comparison of legal systems may search for common underlying principles, or for lessons that one system might learn from another. But it may also be aimed primarily at illuminating one system by light shed from another. This is the aim of Evidence Law Adrift, Mirjan Damagka's elegant study of the common law system of evidence, and he is ideally suited for the task. Born and schooled in Continental Europe, he has lived and taught in the United States for twenty-five years. His relation to the common law system of evidence is, I …

That's My Story And I'M Stickin' To It: The Jury As Fifth Business In The Trial Of O.J. Simpson And Other Matters, Marianne Wesson

Publications

No abstract provided.

Incoming Drug Calls And Performative Words: They're Not Just Talking About It, Baron Parke!, Christopher B. Mueller

Publications

No abstract provided.

The Death And Transfiguration Of Frye, Richard D. Friedman

Articles

The rule of Frye v. United States was seventy years old, and had long dominated American law on the question of how well established a scientific principle must be for it to provide the basis for expert testimony. Even after the passage of the Federal Rules of Evidence, several of the federal circuits, as well as various states, purported to adhere to Frye's "general acceptance" standard. But now, unanimously, briefly, and with no apparent angst, the United States Supreme Court has held in Daubert v. Merrell Dow Pharmaceuticals, Inc. that the Frye rule is incompatible with the Federal Rules.

Experts, Stories, And Information, Richard O. Lempert

Articles

In the infancy of the jury trial, there were no witnesses. The jury was self-informing. Members of the jury were drawn from the community. It was expected that they would know, either firsthand or on the basis of what they had heard, the true facts of any disputed incident, and they were gathered together to say what those facts were. Ronald Allen and Joseph Miller, in their insightful paper, see the ideal of the self-informing jury as very much alive today. Allen and Miller tell us that jurors ideally should experience firsthand the factual information needed to arrive at rational …

Some Steps Between Attitudes And Verdicts, Phoebe C. Ellsworth

Book Chapters

Most research that has attempted to predict verdict preferences on the basis of stable juror characteristics, such as attitudes and personality traits, has found that individual differences among jurors are not very useful predictors, accounting for only a small proportion of the variance in verdict choices. Some commentators have therefore concluded that verdicts are overwhelmingly accounted for by "the weight of the evidence," and that differences among jurors have negligible effects. But there is a paradox here: In most cases the weight of the evidence is insufficient to produce firstballot unanimity in the jury (Hans & Vidmar, 1986; Hastie, Penrod, …

Telling Tales In Court: Trial Procedure And The Story Model, Richard O. Lempert

Articles

There are three ways in which stories may figure prominently at trials. First, litigants may tell stories to jurors. Not only is there some social science evidence that this happens, but trial lawyers have an instinctive sense that this is what they do. Ask a litigator to describe a current case and she is likely to reply, "Our story is ... " Second, jurors may try to make sense of the evidence they receive by fitting it to some story pattern. If so, the process is likely to feed back on itself. That is, jurors are likely to build a …

Expert Evidence, Samuel R. Gross

Articles

It seems that the use of expert witnesses in common law courts has always been troublesome. In his Treatise on the Law of Evidence, first published in 1848, Judge John Pitt Taylor describes several classes of witnesses whose testimony should be viewed with caution, including: enslaved people (which accounts for "the lamentable neglect of truth, which is evinced by most of the nations of India, by the subjects of the Czar, and by many of the peasantry in Ireland"); women (because they are more susceptible to "an innate vain love of the marvelous"); and "foreigners and others ... living out …

Loss Of Innocence: Eyewitness Identification And Proof Of Guilt, Samuel R. Gross

Articles

It is no news that eyewitness identification in criminal cases is a problem; it is an old and famous problem. Judges and lawyers have long known that the identification of strangers is a chancy matter, and nearly a century of psychological research has confirmed this skeptical view. In 1967 the Supreme Court attempted to mitigate the problem by regulating the use of eyewitness identification evidence in criminal trials; since then it has retreated part way from that effort. Legal scholars have written a small library of books and articles on this problem, the courts' response to it, and various proposed …

Judicial Notice: An Essay Concerning Human Misunderstanding, E. F. Roberts

Cornell Law Faculty Publications

Articles limning the law pertaining to judicial notice are legion, and the footnotes which have been cite checked by generations of law review editors must number in the thousands. These articles assume that reason, properly employed, produces correct answers. They assume that disagreements can be resolved by reason, because it is self-evident that any problem, once identified, can be solved. Reflected here are the presuppositions of lawyers brought up in the Western legal tradition.

What if one were to doubt that reason necessarily governed the behavior of lawyers? What if one doubted as well that all problems were susceptible to …

Statistics In The Courtroom: Building On Rubinfeld, Richard O. Lempert

Articles

As the use of statistics in litigation has burgeoned and as more complicated statistical techniques have entered the courtroom, concern for the way courts use statistics has mounted and efforts to instruct lawyers and judges on the wise use of statistics have begun. Professor Rubinfeld's paper is a contribution toward this end. Two ideas at the core of this paper are particularly important if we are to develop a more satisfactory approach to the use of statistics in the courtroom. The first is Professor Rubinfeld's caution against the talismanic use of the .05 level of significances as a test of …

Judge Versus Jury: Who Should Decide Questions Of Preliminary Facts Conditioning The Admissibility Of Scientific Evidence?, Edward J. Imwinkelried

William & Mary Law Review

No abstract provided.

Scientific Evidence And The Question Of Judicial Capacity, John W. Wesley

William & Mary Law Review

No abstract provided.

Legal Psychology: Eyewitness Testimony--Jury Behavior, Michigan Law Review

Michigan Law Review

A Review of Legal Psychology: Eyewitness Testimony--Jury Behavior by L. Craig Parker

Civil Juries And Complex Cases: Let's Not Rush To Judgment, Richard O. Lempert

Michigan Law Review

When a fundamental constitutional right is at issue, it is admittedly difficult for the Court to treat the lower courts as laboratories. But if the constitutional right turns on empirical questions, it is better to wait for knowledge than to rush toward a judgment that may later be shown to have vitiated an important right across all circuits. If the Court feels compelled to resolve the conflict, the better decision - if empirical issues are seen as central - is to sustain the right to jury trial regardless of complexity. Sustaining that right will allow courts and researchers to collect …

Probability Theory Meets Res Ipsa Loquitur, David Kaye

Michigan Law Review

This Article uses probability theory normatively in an effort to clarify one aspect of the famous tort doctrine known as res ipsa loquitur. It does not urge that jurors be instructed in probability theory or be equipped with microprocessors. Rather, it seeks an accurate statement of the res ipsa doctrine in ordinary language. In particular, this Article will show that the conventional formulation of the doctrine is misleading at best, and should be replaced with a more careful statement of the conditions warranting the res ipsa inference. To this end, Section I briefly surveys the legal doctrine, or, more precisely, …

Opinions And Expert Testimony, John W. Reed

Book Chapters

Article VI of the Michigan Rules of Evidence contains the rules dealing with witnesses. Trials bring to mind testimonial evidence. There surely are other kinds of evidence, such as docmnents, guns, automobile tires, chemical substances, and the like. But most evidence comes from the mouths of witnesses, and even demonstrative evidence usually is admitted only after a witness has taken the stand and testified to foundation facts. So it is important and appropriate that we turn to the provisions of the rules that deal with qualifications and credibility of witnesses. I would like to direct your attention to MRE 601 …

Modeling Relevance, Richard O. Lempert

Michigan Law Review

During the past decade, particularly during the years immediately following the California Supreme Court's decision in People v. Collins, a number of articles have appeared suggesting ways in which jurors might use certain mathematical techniques of decision theory as aids in the rational evaluation of circumstantial evidence. Professor Tribe, in an important response to the post-Collins articles, argues against introducing these techniques into the factfinding process. Problems that Tribe foresees include the necessary imprecision of the probabilistic estimates that these techniques require, the dwarfing of soft variables by those that are more readily quantified, and the potential dehumanization …

The Future Of Evidence Law: Or, Some Prophecies About Proof, John W. Reed

Other Publications

I am honored to participate in this seminar that is part of the celebration surrounding the dedication of Colorado's new State Judicial Building. But that feeling of honor is tempered by an awareness of the responsibility and perils of the role I have been asked to play. With the assignment, "The Future of Evidence Law," I have been asked to play the prophet, to be a seer of sorts, and to suggest what rules and principles will govern proof at trials at some date in the future. Exactly what date was not specified in the invitation-a decade, perhaps? A generation? …

Evidence: The Taking Of Documents And Articles To The Jury Room, Anne F. Noyes

Kentucky Law Journal

No abstract provided.

Evidence--Demonstrations Before The Jury, Viley O. Blackburn

Kentucky Law Journal

No abstract provided.

Medical Facts That Can And Cannot Be Proved By X-Ray: Historical Review And Present Possibilities, Samuel W. Donaldson

Michigan Law Review

As the science of the practice of medicine has progressed, new discoveries have brought out newer methods of diagnosis and treatment. With the discovery of x-rays by Professor Wilhelm Roentgen in 1895, an entirely new field was opened. The growth of this new field of medical radiology has been unusually rapid and of great importance. Radiology embraces the use of x-rays, radium, and other radioactive substances. Roentgenology is a division of radiology in that it is limited to the use of the Roentgen rays or x-rays, and medical roentgenology may be termed as the use of x-rays for the diagnosis …

Trial - Directed Verdict Where Testimony Is Conflicting, Edward S. Biggar

Michigan Law Review

Defendants engaged the plaintiff to repair a barn roof. In his suit to recover damages for injuries sustained while on the defendants' premises, the plaintiff testified that he had been struck by a truck which one of the defendants had been driving. The defendants testified that they had discovered the plaintiff lying injured at the side of the barn, near a ladder which had been placed against it. Defendants moved for a directed verdict, which was denied, and after a verdict for the plaintiff, defendants appealed from the denial of their motion for judgment notwithstanding the verdict. Held, that …

Practice And Procedure - Reservation Of Decision On Motion For Directed Verdict As Means Of Avoiding Unnecessary New Trials

Michigan Law Review

What may be done to remedy the situation if a jury brings in a verdict in favor of a party against whom a verdict should have been directed? This question becomes pertinent in view of the fact that judges, while hard pressed by counsel in the heat of trial, frequently wrongfully deny a motion for directed verdict and submit the case to the jury. One obvious remedy is the granting of a new trial by the trial judge, or by an appellate court after reversal. But this practice has proved eminently unsatisfactory, for it submits the aggrieved party to the …

Quotient Verdicts--Admissible Evidence To Prove Same, H. C. H.

West Virginia Law Review

No abstract provided.