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Full-Text Articles in Evidence

Expert Testimony On Fingerprints: An Internet Exchange, Richard D. Friedman, David H. Kaye, Jennifer Mnookin, Dale Nance, Michael Saks Jan 2002

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.

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Proposed Amendments To Fed. R. Crim. P. 26: An Exchange: Remote Testimony, Richard D. Friedman Jan 2002

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 …

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The Conundrum Of Children, Confrontation, And Hearsay, Richard D. Friedman Jan 2002

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 …

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Evidence: 1999-2000 Survey Of New York Law, Faust Rossi Jan 2001

Evidence: 1999-2000 Survey Of New York Law, Faust Rossi

Cornell Law Faculty Publications

No abstract provided.

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A Suggestion On Suggestion, Richard D. Friedman, Stephen J. Ceci Jan 2001

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 …

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Evaluating Scientific And Forensic Evidence, Richard H. Underwood Jul 2000

Evaluating Scientific And Forensic Evidence, Richard H. Underwood

Law Faculty Scholarly Articles

Professor Underwood offers a critique of the present state of scientific and forensic evidence. In the context of discussing four challenges to the field, the author arms the practitioner with strategies and tactics for making effective use of scientific and forensic testimony.

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Toward A Level Playing Field: Challenges To Accomplice Testimony In The Wake Of United States V. Singleton, James W. Haldin Mar 2000

Toward A Level Playing Field: Challenges To Accomplice Testimony In The Wake Of United States V. Singleton, James W. Haldin

Washington and Lee Law Review

No abstract provided.

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Evidence: 1998-1999 Survey Of New York Law, Faust Rossi Jan 2000

Evidence: 1998-1999 Survey Of New York Law, Faust Rossi

Cornell Law Faculty Publications

No abstract provided.

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The Suggestibility Of Children: Scientific Research And Legal Implications, Stephen J. Ceci, Richard D. Friedman Jan 2000

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 …

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Lilly V. Virginia Glimmers Of Hope For The Confrontation Clause?, Richard D. Friedman Jan 2000

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 …

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Evidence: 1997-1998 Survey Of New York Law, Faust Rossi Jan 1999

Evidence: 1997-1998 Survey Of New York Law, Faust Rossi

Cornell Law Faculty Publications

No abstract provided.

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Confrontation Confronted, Richard D. Friedman, Margaret A. Berger, Steven R. Shapiro Jan 1999

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 …

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Lilly V. Virginia: A Chance To Reconceptualize The Confrontation Right, Richard D. Friedman Jan 1999

Lilly V. Virginia: A Chance To Reconceptualize The Confrontation Right, Richard D. Friedman

Articles

In Lilly v. Virginia, the Supreme Court once again has the opportunity to grapple with the meaning of the Confrontation Clause of the Sixth Amendmel).t. The basic facts of Lilly are simple, for they present the ageold problem of accomplice confessions. Three men, Gary Barker and Ben and Mark Lilly, went on a crime spree, during which one of them shot to death a young man they had robbed and kidnaped. Ben Lilly was charged with being the triggerman, and Barker testified to that effect at Ben's trial. Mark did not testify. But Mark had made a statement to the …

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Thoughts From Across The Water On Hearsay And Confrontation, Richard D. Friedman Jan 1998

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.

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Evidence: 1996-1997 Survey Of New York Law, Faust Rossi Jan 1998

Evidence: 1996-1997 Survey Of New York Law, Faust Rossi

Cornell Law Faculty Publications

No abstract provided.

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Truth And Its Rivals In The Law Of Hearsay And Confrontation (Symposium: Truth And Its Rivals: Evidence Reform And The Goals Of Evidence Law)." , Richard D. Friedman Jan 1998

Truth And Its Rivals In The Law Of Hearsay And Confrontation (Symposium: Truth And Its Rivals: Evidence Reform And The Goals Of Evidence Law)." , Richard D. Friedman

Articles

In this paper, I will look at the problem of hearsay and confrontation through the lens offered by this symposium's theme of "truth and its rivals." I will ask: To what extent does the law of hearsay and confrontation aspire to achieve the goal of truth in litigation? To what extent does it, or should it, seek to achieve other goals, or to satisfy other constraints on the litigation system? And, given the ends that it seeks to achieve, what should the shape of the law in this area be? My principal conclusions are as follows: In most settings, the …

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Confrontation: The Search For Basic Principles, Richard D. Friedman Jan 1998

Confrontation: The Search For Basic Principles, Richard D. Friedman

Articles

The Sixth Amendment to the Constitution guarantees the accused in a criminal prosecution the right "to be confronted with the Witnesses against him."' The Confrontation Clause clearly applies to those witnesses who testify against the accused at trial. Moreover, it is clear enough that confrontation ordinarily includes the accused's right to have those witnesses brought "face-toface," in the time-honored phrase, when they testify.2 But confrontation is much more than this "face-to-face" right. It also comprehends the right to have witnesses give their testimony under oath and to subject them to crossexamination. 3 Indeed, the Supreme Court has treated the accused's …

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Confrontation And The Definition Of Chutzpa, Richard D. Friedman Jan 1997

Confrontation And The Definition Of Chutzpa, Richard D. Friedman

Articles

You may know the standard illustration of chutzpa - the man who kills both his parents and then begs the sentencing court to have mercy on an orphan. In this article, I discuss a case of chutzpa that is nearly as outlandish - the criminal defendant who, having rendered his victim unavailable to testify, contends that evidence of the victim's statement should not be admitted against him because to do so would violate his right to confront her. I contend that in a case like this the defendant should be deemed to have forfeited the confrontation right. On the same …

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Rule 412: Sex Offense Cases; Relevance Of Alleged Victim's Past Sexual Behavior Or Alleged Sexual Disposition Jan 1996

Rule 412: Sex Offense Cases; Relevance Of Alleged Victim's Past Sexual Behavior Or Alleged Sexual Disposition

Touro Law Review

No abstract provided.

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"X-Spurt" Witnesses, Richard H. Underwood Oct 1995

"X-Spurt" Witnesses, Richard H. Underwood

Law Faculty Scholarly Articles

In this article the author pulls together a history of expert witnesses in common law systems. Various issues are explored regarding expert witness testimony, including: the historical underpinnings of the practice, how Daubert controls that issue in modern times, rules of evidence, psychological science, and professional ethics.

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The Ethics Of Witness Coaching, Richard C. Wydick Sep 1995

The Ethics Of Witness Coaching, Richard C. Wydick

Cardozo Law Review

This Article focuses on the ethics of coaching cooperative lay witnesses (not adversary witnesses or expert witnesses). It discusses mostly United States law, but the problems it discusses exist also in England and other nations that use the common law adversary system. As used here, "witness coaching" means conduct by a lawyer that alters a witness's story about the events in question. Usually witness coaching occurs when a lawyer is interviewing a witness in the course of investigating the facts of the case or when a lawyer is preparing a witness to testify at a deposition or trial. Interviewing a …

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Probability And Proof In State V. Skipper: An Internet Exchange, Ronald J. Allen, David J. Balding, Peter Donnelly, Richard D. Friedman, David H. Kaye, Lewis Henry Larue, Roger C. Park, Bernard Robertson, Alexander Stein Jan 1995

Probability And Proof In State V. Skipper: An Internet Exchange, Ronald J. Allen, David J. Balding, Peter Donnelly, Richard D. Friedman, David H. Kaye, Lewis Henry Larue, Roger C. Park, Bernard Robertson, Alexander Stein

Articles

This is not a conventional article. It is an edited version of messages sent to an Internet discussion list. The listings begin with the mention of a recent opinion of the Connecticut Supreme Court, parts of which are reproduced below. The listings soon move to broader issues concerning probability and other formal systems, their limitations, and their uses either in court or as devices for understanding legal proof.

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Prior Statements Of A Witness: A Nettlesome Corner Of The Hearsay Thicket, Richard D. Friedman Jan 1995

Prior Statements Of A Witness: A Nettlesome Corner Of The Hearsay Thicket, Richard D. Friedman

Articles

In Tome v United States, for the fifth time in eight years, the Supreme Court decided a case presenting the problem of how a child's allegations of sexual abuse should be presented in court. Often the child who charges that an adult abused her is unable to testify at trial, or at least unable to testify effectively under standard procedures. These cases therefore raise intriguing and difficult questions related to the rule against hearsay and to an accused's right under the Sixth Amendment to confront the witnesses against him. One would hardly guess that, however, from the rather arid debate …

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Taking Daubert’S “Focus” Seriously: The Methodology/Conclusion Distinction, Kenneth J. Chesebro Apr 1994

Taking Daubert’S “Focus” Seriously: The Methodology/Conclusion Distinction, Kenneth J. Chesebro

Cardozo Law Review

Last June's United States Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., rejected the Frye "general acceptance" test for scientific evidence, and went on to make "some general observations" about proper admissibility analysis under Federal Rule of Evidence 702. Daubert was the Court's first decision squarely addressing the expert testimony provisions of the Federal Rules of Evidence, and United States Law Week called Daubert "probably the most important procedural case of the term."

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Check Your Crystal Ball At The Courthouse Door, Please: Exploring The Past, Understanding The Present, And Worrying About The Future Of Scientific Evidence, David L. Faigman, Elise Porter, Michael J. Saks Apr 1994

Check Your Crystal Ball At The Courthouse Door, Please: Exploring The Past, Understanding The Present, And Worrying About The Future Of Scientific Evidence, David L. Faigman, Elise Porter, Michael J. Saks

Cardozo Law Review

Since the earliest days of the use of expert witnesses, judges (and more recently legislatures) have struggled to design the juridical intersection where law and science cross paths. The effort has not met with notable success. This situation could be changing, however. Last term, in Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court adopted a novel approach to the age-old problem of scientific evidence. The -Court determined that the Federal Rules of Evidence require scientific evidence to be scientifically valid before it enters the courtroom. The Court has served notice that experts should trade in their crystal balls …

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The Supreme Court Rules On Statements Against Interest, Michael M. Martin Jan 1994

The Supreme Court Rules On Statements Against Interest, Michael M. Martin

Touro Law Review

No abstract provided.

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The Death And Transfiguration Of Frye, Richard D. Friedman Jan 1994

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.

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Taking Fact Analysis Seriously, Bernard Robertson, G. A. Vignaux May 1993

Taking Fact Analysis Seriously, Bernard Robertson, G. A. Vignaux

Michigan Law Review

A Review of Analysis of Evidence: How To Do Things with Facts Based on Wigmore's Science of Judicial Proof by Terence Anderson and William Twining

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Infinite Strands, Infinitesimally Thin: Storytelling, Bayesianism, Hearsay And Other Evidence, Richard D. Friedman Jan 1992

Infinite Strands, Infinitesimally Thin: Storytelling, Bayesianism, Hearsay And Other Evidence, Richard D. Friedman

Articles

David Schum has long been one of our keenest commentators on questions of inference and proof. He has been particularly interested in, and illuminating on, the subject of "cascaded," or multi-step, inference.' This is a subject of importance to lawyers, because most evidence at trial can be analyzed in terms of cascaded inference. Usually, the proposition that the fact finder2 might immediately infer from the evidence is not itself an element of a crime, claim, or defense. Most often, an extra inference would be required to jump from that proposition to a proposition that the law deems material. Thus, inference …

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Toward A Partial Economic, Game-Theoretic Analysis Of Hearsay, Richard D. Friedman Jan 1992

Toward A Partial Economic, Game-Theoretic Analysis Of Hearsay, Richard D. Friedman

Articles

In this Article, I offer a fundamentally different and nondoctrinaire way of approaching hearsay questions. In brief, I take the view that the resolution of a hearsay dispute, when the declarant is not on the stand, is essentially a matter of deciding who should bear the burden of producing the declarant, or more precisely, how courts should allocate that burden. Adopting a simple procedural improvement, concerning the examination of the declarant if she is produced as a witness, allows the court to allocate the burden optimally. If live testimony by the declarant would be more probative than prejudicial, then most …

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