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Articles 91 - 120 of 238
Full-Text Articles in Evidence
Confrontation After Crawford, Richard D. Friedman
Confrontation After Crawford, Richard D. Friedman
Articles
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 …
Crawford Surprises: Mostly Unpleasant, Richard D. Friedman
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
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."
Judges As Film Critics: New Approaches To Filmic Evidence, Jessica M. Silbey
Judges As Film Critics: New Approaches To Filmic Evidence, Jessica M. Silbey
University of Michigan Journal of Law Reform
This Article exposes internal contradictions in case law concerning the use and admissibility of film as evidence. Based on a review of more than ninety state and federal cases dating from 1923 to the present, the Article explains how the source of these contradictions is the frequent miscategorization of film as "demonstrative evidence, "evidence that purports to illustrate other evidence, rather than to be directly probative of some fact at issue. The Article further demonstrates how these contradictions are based on two venerable jurisprudential anxieties. One is the concern about the growing trend toward replacing the traditional testimony of live …
Rethinking The Role Of Expert Testimony Regarding The Reliability Of Eyewitness Identifications In New York, Scott Woller
Rethinking The Role Of Expert Testimony Regarding The Reliability Of Eyewitness Identifications In New York, Scott Woller
NYLS Law Review
No abstract provided.
Face To Face': Rediscovering The Right To Confront Prosecution Witnesses, Richard D. Friedman
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
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
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
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.
Face To Face With The Right Of Confrontation, Richard D. Friedman
Face To Face With The Right Of Confrontation, Richard D. Friedman
Other Publications
This article is an edited excerpt from the amicus curiae brief filed in Crawford v. Washington, heard before the United States Supreme Court on November 10, 2003. Prof. Friedman wrote the brief for the Court.
The Admissibility Of Expert Testimony About Cognitive Science Research On Eyewitness Identification, Edward D. Stein
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.
Crawford V. Washington: Motion For Leave To File And Brief Amicus Curiae Of Law Professors Sherman J. Clark, James J. Duane, Richard D. Friedman, Norman Garland, Gary M. Maveal, Bridget Mccormack, David A. Moran, Christopher B. Mueller, And Roger C. Park, In Support Of Petitioner, Sherman J. Clark, Richard D. Friedman, David A. Moran
Crawford V. Washington: Motion For Leave To File And Brief Amicus Curiae Of Law Professors Sherman J. Clark, James J. Duane, Richard D. Friedman, Norman Garland, Gary M. Maveal, Bridget Mccormack, David A. Moran, Christopher B. Mueller, And Roger C. Park, In Support Of Petitioner, Sherman J. Clark, Richard D. Friedman, David A. Moran
Appellate Briefs
This case raises important questions about the meaning of the Confrontation Clause of the Sixth Amendment to the Constitution, which is a central aspect of our criminal justice system. In particular, the second Question Presented in the petition for certiorari suggests that the currently prevailing framework of doctrine under the Clause be reconsidered, to be replaced by one limiting the scope of the Clause to statements that are testimonial in nature but prescribing unequivocally that such statements may not be introduced against an accused unless he has had an opportunity to confront the maker of the statement. Amici are law …
Sometimes What Everybody Thinks They Know Is True, Richard D. Friedman, Roger C. Park
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
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 …
Expert Information And Expert Evidence: A Preliminary Taxonomy, Samuel R. Gross, Jennifer L. Mnookin
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 …
Confrontation As A Hot Topic: The Virtues Of Going Back To Square One, Richard D. Friedman
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.
Proposed Amendments To Fed. R. Crim. P. 26: An Exchange: Remote Testimony - A Prosecutor's Perspective, Lynn Helland
Proposed Amendments To Fed. R. Crim. P. 26: An Exchange: Remote Testimony - A Prosecutor's Perspective, Lynn Helland
University of Michigan Journal of Law Reform
Although the Supreme Court has declined, for now, to endorse the Judicial Conference proposal to add a Rule 26(b) of the Federal Rules of Criminal Procedure to permit live video testimony under limited circumstances, I agree with Professor Friedman that the matter is far from over. This is both because the potential benefits to be realized from the use of remote video testimony are too large to ignore and because, on closer inspection, any Confrontation Clause concerns that might underlie the Court's hesitation to adopt the proposal are not warranted. My purpose in writing is to summarize some of the …
No Link: The Jury And The Origins Of The Confrontation Right And The Hearsay Rule, Richard D. Friedman
No Link: The Jury And The Origins Of The Confrontation Right And The Hearsay Rule, Richard D. Friedman
Book Chapters
The rule against hearsay has long been one of the most distinctive elements of the common law of evidence, and indeed— except for recent changes on the civil side in many jurisdictions— of the common law system of trial. Observers have long believed that the rule, like most of the other exclusionary rules of the common law of evidence, is "the child of the jury system". Though Edmund Morgan argued vigorously to the contrary, the received understanding is that the jury's inability to account satisfactorily for the defects of hearsay explains the rule. A famous, and perhaps seminal, expression of …
Dial-In Testimony, Richard D. Friedman, Bridget Mary Mccormack
Dial-In Testimony, Richard D. Friedman, Bridget Mary Mccormack
Articles
For several hundred years, one of the great glories of the common law system of criminal justice has been the requirement that prosecution witnesses give their testimony in the presence of the accused" face to face," in the time-honored phrase-under oath, subject to cross-examination, and, unless unfeasible, in open court. In the United States, this principle is enshrined in the Confrontation Clause of the Sixth Amendment, which provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." But now a new way is developing for witnesses for the prosecution …
Expert Testimony On Fingerprints: An Internet Exchange, Richard D. Friedman, David H. Kaye, Jennifer Mnookin, Dale Nance, Michael Saks
Expert Testimony On Fingerprints: An Internet Exchange, Richard D. Friedman, David H. Kaye, Jennifer Mnookin, Dale Nance, Michael Saks
Articles
In United States v. Llera Plaza, 188 F. Supp. 2d 549 (E.D. Pa. 2002), a federal district initially limited expert opinion testimony on fingerprint identifications because the government was unable to show that such identifications were sufficiently valid and reliable under Federal Rule of Evidence 702. Then, the court withdrew the opinion. This article reproduces an exchange of notes on the initial opinion submitted by five law professors.
Proposed Amendments To Fed. R. Crim. P. 26: An Exchange: Remote Testimony, Richard D. Friedman
Proposed Amendments To Fed. R. Crim. P. 26: An Exchange: Remote Testimony, Richard D. Friedman
Articles
Recently, the Supreme Court declined to pass on to Congress a proposed change to Federal Rule of Criminal Procedure 26 submitted to it by the Judicial Conference. In this Article, Professor Friedman addresses this proposal, which would allow for more extensive use of remote, video-based testimony at criminal trials. He agrees with the majority of the Court that the proposal raised serious problems under the Confrontation Clause. He also argues that a revised proposal, in addition to better protecting the confrontation rights of defendants, should include more definite quality standards, abandon its reliance on the definition of unavailability found in …
Cross-Examining Expertise In The Wto Dispute Settlement Process, Christopher T. Timura
Cross-Examining Expertise In The Wto Dispute Settlement Process, Christopher T. Timura
Michigan Journal of International Law
Part I of this Note surveys some of the recent contributions that social theorists and social scientists have made to our understanding of the role of experts in society, and also the structure of expert communities. Experts are everywhere in modern life, and individuals are with increasing frequency asked to extend their trust to experts and bodies of knowledge that they have little or no opportunity to question. Part II highlights how the WTO Agreement deals with experts, using recent WTO panel reports to illustrate the ways in which the DSB has operationalized its various provisions. Part III suggests two …
The Conundrum Of Children, Confrontation, And Hearsay, Richard D. Friedman
The Conundrum Of Children, Confrontation, And Hearsay, Richard D. Friedman
Articles
The adjudication of child abuse claims poses an excruciatingly difficult conundrum. The crime is a terrible one, but false convictions are abhorrent. Often the evidence does not support a finding of guilt or innocence with sufficient clarity to allow a decision free of gnawing doubt. In many cases, a large part of the problem is that the prosecution's case depends critically on the statement or testimony of a young child. Even with respect to adult witnesses, the law of hearsay and confrontation is very perplexing, as anyone who has studied American evidentiary law and read Supreme Court opinions on the …
A Suggestion On Suggestion, Richard D. Friedman, Stephen J. Ceci
A Suggestion On Suggestion, Richard D. Friedman, Stephen J. Ceci
Articles
Part I of the full article briefly describes the history and current slate of research into children's suggestibility. In this part, we argue that, although psychological researchers disagree considerably over the degree to which he suggestibility of young children may lead to false allegations of sexual abuse, there is an overwhelming consensus that children are suggestible to a degree that, we believe, must be regarded as significant. In presenting this argument, we respond to the contentions of revisionist scholars, particularly those recently expressed by Professor Lyon. We show that there is good reason to believe the use of highly suggestive …
The Suggestibility Of Children: Scientific Research And Legal Implications, Stephen J. Ceci, Richard D. Friedman
The Suggestibility Of Children: Scientific Research And Legal Implications, Stephen J. Ceci, Richard D. Friedman
Articles
In this Article, Professors Ceci and Friedman analyze psychological studies on children's suggestibility and find a broad consensus that young children are suggestible to a significant degree. Studies confirm that interviewers commonly use suggestive interviewing techniques that exacerbate this suggestibility, creating a significant risk in some forensic contexts-notably but not exclusively those of suspected child abuse-that children will make false assertions of fact. Professors Ceci and Friedman address the implications of this difficulty for the legal system and respond to Professor Lyon's criticism of this view recently articulated in the Cornell Law Review. Using Bayesian probability theory, Professors Ceci and …
Lilly V. Virginia Glimmers Of Hope For The Confrontation Clause?, Richard D. Friedman
Lilly V. Virginia Glimmers Of Hope For The Confrontation Clause?, Richard D. Friedman
Articles
In 1662, in The Case of Thomas Tong and Others, which involved charges of treason against several defendants, the judges of the King's Bench conferred on a crucial set of points of procedure. As reported by one of the judges, Sir John Kelyng, the judges agreed unanimously that a pretrial confession made to the authorities was evidence against the Party himself who made the Confession, and indeed, if adequately proved could support a conviction of that party without additional witnesses to the treason itself. But -- again unanimously, and quite definitively -- the judges also agreed that the confession cannot …
Kumho Tire Co. V. Carmichael: The Supreme Court Follows Up On The Daubert Test, Martin A. Schwartz
Kumho Tire Co. V. Carmichael: The Supreme Court Follows Up On The Daubert Test, Martin A. Schwartz
Scholarly Works
No abstract provided.
Reconceiving The Right To Present Witnesses, Richard A. Nagareda
Reconceiving The Right To Present Witnesses, Richard A. Nagareda
Michigan Law Review
Modem American law is, in a sense, a system of compartments. For understandable curricular reasons, legal education sharply distinguishes the law of evidence from both constitutional law and criminal procedure. In fact, the lines of demarcation between these three subjects extend well beyond law school to the organization of the leading treatises and case headnotes to which practicing lawyers routinely refer in their trade. Many of the most interesting questions in the law, however, do not rest squarely within a single compartment; instead, they concern the content and legitimacy of the lines of demarcation themselves. This article explores a significant, …
Impeachment: Evidence Amendments, Paul C. Giannelli
Impeachment: Evidence Amendments, Paul C. Giannelli
Faculty Publications
No abstract provided.
Confrontation Confronted, Richard D. Friedman, Margaret A. Berger, Steven R. Shapiro
Confrontation Confronted, Richard D. Friedman, Margaret A. Berger, Steven R. Shapiro
Articles
The following article is an edited version of the amicus curiae brief filed with the Supreme Court of the United States in the October Term, 1998, in the case of Benjamin Lee Lilly v. Commonwealth of Virginia (No. 98-5881). "This case raises important questions about the meaning of the confrontation clause, which has been a vital ingredient of the fair trial right for hundreds of years," Professor Richard Friedman and his co-authors say. "In particular, this case presents the Court with an opportunity to reconsider the relationship between the confrontation clause and the law of hearsay." On June 10 the …