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Full-Text Articles in Evidence

Confrontation After Crawford, Richard D. Friedman Jan 2005

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 …

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Testimonial Or Nontestimonial? The Admissibility Of Forensic Evidence After Crawford V. Washington, John M. Spires Jan 2005

Testimonial Or Nontestimonial? The Admissibility Of Forensic Evidence After Crawford V. Washington, John M. Spires

Kentucky Law Journal

No abstract provided.

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The Rule In Hodge's Case: Rumours Of Its Death Are Greatly Exaggerated, Benjamin Berger Jan 2005

The Rule In Hodge's Case: Rumours Of Its Death Are Greatly Exaggerated, Benjamin Berger

Articles & Book Chapters

Certain academic commentators and Canadian courts have announced the death of the rule in Hodge's Case. The author challenges this proclamation of death, observing that Hodge's rule is a particular manifestation of the epistemology that informs our law of evidence. He argues not only that the rule is doctrinally intact, but that the principles and spirit that animate Hodge's rule have broad influence in our law of evidence and have utility in the appellate review of unreasonable verdicts. Hodge's rule, Hodge-like reasoning, and the associated epistemology, are alive and well in Canada.

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Juror Bias Is A Special Problem In High-Profile Trials, Valerie P. Hans Jan 2005

Juror Bias Is A Special Problem In High-Profile Trials, Valerie P. Hans

Cornell Law Faculty Publications

Scott Peterson's jury convicted him and sentenced him to death. Whether he had a fair jury is a question that the appellate courts will confront as they review Peterson's appeal of his conviction and sentence. Would the jury have reached the same decisions if the case had not been so extensively covered in the media? Or was Scott Peterson condemned by media publicity? Whatever your verdict, the Peterson trial provides yet another example of the hurdles to fair trials in high-profile cases.

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Punishment Decisions At Conviction: Recognizing The Jury As Fault-Finder, Michael T. Cahill Jan 2005

Punishment Decisions At Conviction: Recognizing The Jury As Fault-Finder, Michael T. Cahill

Faculty Scholarship

No abstract provided.

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The Sui Generis Infallible Sniffing Dog And Other Legal Fictions: Illinois V. Caballes, Jerry E. Norton Jan 2005

The Sui Generis Infallible Sniffing Dog And Other Legal Fictions: Illinois V. Caballes, Jerry E. Norton

Public Interest Law Reporter

No abstract provided.

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A Jurisprudence Of Doubt: Missouri V. Seibert, United States V. Patane, And The Supreme Court's Continued Confusion About The Constitutional Status Of Miranda, Johnathan L. Rogers Jan 2005

A Jurisprudence Of Doubt: Missouri V. Seibert, United States V. Patane, And The Supreme Court's Continued Confusion About The Constitutional Status Of Miranda, Johnathan L. Rogers

Oklahoma Law Review

No abstract provided.

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Groh V. Ramirez: Strengthening The Fourth Amendment Particularity Requirement, Weakening Qualified Immunity, C. Brandon Rash Jan 2005

Groh V. Ramirez: Strengthening The Fourth Amendment Particularity Requirement, Weakening Qualified Immunity, C. Brandon Rash

University of Richmond Law Review

No abstract provided.

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An Evidentiary Paradox: Defending The Character Evidence Prohibition By Upholding A Non-Character Theory Of Logical Relevance, The Doctrine Of Chances, Edward J. Imwinkelried Jan 2005

An Evidentiary Paradox: Defending The Character Evidence Prohibition By Upholding A Non-Character Theory Of Logical Relevance, The Doctrine Of Chances, Edward J. Imwinkelried

University of Richmond Law Review

No abstract provided.

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Is Alternative Dispute Resolution Really An Alternative For Federal Employees?: Possible Suggestions For Encouraging Federal Employees To Participate In Adr Programs, Lisa Pell Jan 2005

Is Alternative Dispute Resolution Really An Alternative For Federal Employees?: Possible Suggestions For Encouraging Federal Employees To Participate In Adr Programs, Lisa Pell

Cardozo Journal of Conflict Resolution

This Note will examine the various dispute resolution programs employed by the federal government. Part One of this Note will look at the different federal programs and determine their usefulness. Part Two will establish that ADR is not being used to its potential. Part Three will discuss the reasons for the low ADR usage. Part Four will suggest options for increasing ADR usage in federally implemented programs. Finally, Part Five will conclude that if the federal agencies took advantage of their own programs, the possibilities for change are great.

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A Rejoinder To The Rejoinder To On The Theory Class's Theories Of Asbestos Litigation, Lester Brickman Jan 2005

A Rejoinder To The Rejoinder To On The Theory Class's Theories Of Asbestos Litigation, Lester Brickman

Articles

The article, authored by Lester Brickman, serves as a rebuttal to Professor Charles Silver's rejoinder, which criticized Brickman's original article on asbestos litigation. Brickman defends his assertions regarding Silver's undisclosed retention by the law firm Baron & Budd to defend the controversial Script Memo, arguing that this nondisclosure breaches academic ethics. He also clarifies his stance on the role of attorney William Skepnek and reiterates his scholarly focus on legal ethics, particularly the issues surrounding contingency fees and their potential for overcharging clients. Brickman emphasizes the importance of academic integrity and the necessity of exposing ethical abuses in the legal …

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Crawford V. Washington: Encouraging And Ensuring The Confrontation Of Witnesses, Robert P. Mosteller Jan 2005

Crawford V. Washington: Encouraging And Ensuring The Confrontation Of Witnesses, Robert P. Mosteller

Faculty Scholarship

In Crawford v. Washington (2004), the United States Supreme Court radically altered Confrontation Clause analysis for the admission of hearsay statements. It created a very firm rule of actual confrontation for a narrowed class of covered hearsay, termed “testimonial statements,” and created only a limited number of exceptions. This new regime differed dramatically from the trustworthiness/reliability mode of analysis of Ohio v. Roberts (1980), which provided very wide but incredibly shallow protection against the admission of hearsay offered by the prosecution against the defendant. This article analyzes the basic teachings and uncertainties left in the wake of Crawford, sifting through …

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Crawford’S Impact On Hearsay Statements In Domestic Violence And Child Sexual Abuse Cases, Robert P. Mosteller Jan 2005

Crawford’S Impact On Hearsay Statements In Domestic Violence And Child Sexual Abuse Cases, Robert P. Mosteller

Faculty Scholarship

This Essay examines the important ancillary doctrines that need to be developed in the wake of Crawford v. Washington (2004) and the "testimonial statement" approach to Confrontation Clause analysis to ensure that when confrontation is provided it in fact satisfies the requirements of the Clause. More than just some opportunity to cross-examine is required. The witness must be asked to make a public accusation in his or her direct testimony rather than simply being made available for questioning by defense counsel. A public accusation in not simply an after-thought of the right; rather, both it and cross-examination are central components. …

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Purpose As A Guide To The Interpretation Of The Confrontation Clause, Roger C. Park Jan 2005

Purpose As A Guide To The Interpretation Of The Confrontation Clause, Roger C. Park

Faculty Scholarship

No abstract provided.

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Lawrence Summers' Speech On "Innate" Differences Between Men And Women-A Different Perspective, Thomas C. Fischer Jan 2005

Lawrence Summers' Speech On "Innate" Differences Between Men And Women-A Different Perspective, Thomas C. Fischer

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

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Identifying The Linguistic Boundaries Of Sex: Court Language Choice In Decisions Regarding The Availability Of Sex And Procreation, Amy Zimmerman Hodges Jan 2005

Identifying The Linguistic Boundaries Of Sex: Court Language Choice In Decisions Regarding The Availability Of Sex And Procreation, Amy Zimmerman Hodges

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

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Evolving Standards Of Evidentiary Review: Revising The Scope Of Review, William V. Dorsaneo Iii Jan 2005

Evolving Standards Of Evidentiary Review: Revising The Scope Of Review, William V. Dorsaneo Iii

Faculty Journal Articles and Book Chapters

Recently, the Texas Supreme Court has embraced an important recapitulation of the scope of evidentiary review in cases governed by the preponderance of the evidence standard of review. A similar approach has been applied by the court to cases controlled by the clear and convincing evidence standard of review. This article explores and explains these important developments.

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The Hillmon Case, The Macguffin, And The Supreme Court, Marianne Wesson Jan 2005

The Hillmon Case, The Macguffin, And The Supreme Court, Marianne Wesson

Publications

The case of Mutual Life Insurance Company v. Hillmon is one of the most influential decisions in the law of evidence. Decided by the Supreme Court in 1892, it invented an exception to the hearsay rule for statements encompassing the intentions of the declarant. But this exception seems not to rest on any plausible theory of the categorical reliability of such statements. This article suggests that the case turned instead on the Court's understanding of the facts of the underlying dispute about the identity of a corpse. The author's investigations into newspaper archives and the original case documents point to …

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Apology Within A Moral Dialectic: A Reply To Professor Robbennolt, Lee Taft Jan 2005

Apology Within A Moral Dialectic: A Reply To Professor Robbennolt, Lee Taft

Michigan Law Review

Over the last several years, much has been written about the role of apology in facilitating the resolution of legal disputes. Within this body of work a debate has developed among legal scholars, practitioners, and legislators. Under traditional rules of evidence an apology which acknowledged fault would enter evidence as an admission against interest. Now there is a movement to legislatively "protect" apologies from the effects of the traditional rule in order to facilitate apology without evidentiary encumbrance. Scholars who have argued in favor of the relaxation of the traditional rule have largely relied on anecdotal evidence to support their …

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Evaluating Brady Error Using Narrative Theory: A Proposal For Reform, John B. Mitchell Jan 2005

Evaluating Brady Error Using Narrative Theory: A Proposal For Reform, John B. Mitchell

Faculty Articles

When the United States Supreme Court granted certiorari in Old Chief v. United States, the Court examined Federal Rule of Evidence 403 in light of a defense offer to stipulate to aspects of the proffered prosecution evidence, purportedly to lessen their prejudicial impact. At the core of the opinion rests the validation of a theory born from such disparate fields as Law and Literature, Sociology, and Narrative Theory. This article argues that, though it was not on the proverbial radar screen of the Court when it decided Old Chief, narrative theory provides the most effective tool available for assessing prejudice …

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Crawford Surprises: Mostly Unpleasant, Richard D. Friedman Jan 2005

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 …

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Grappling With The Meaning Of 'Testimonial', Richard D. Friedman Jan 2005

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."

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An Exceptional Case: How Washington Should Amend Its Procedure For Imposing An Exceptional Sentence In Response To Blakely V. Washington, Jason Amala, Jason Laurine Jan 2005

An Exceptional Case: How Washington Should Amend Its Procedure For Imposing An Exceptional Sentence In Response To Blakely V. Washington, Jason Amala, Jason Laurine

Seattle University Law Review

This article reviews the Blakely decision and the Washington Legislature's response in S.B. 5477. Part II discusses the problem that Blakely created for Washington's sentencing guidelines system. Part III analyzes the judicial advisory and bifurcated trial proposals and explains why Washington wisely adopted the bifurcated trial approach. Part IV identifies key issues that are raised by using a bifurcated trial and analyzes how S.B. 5477 addresses, or fails to address, those issues. Finally, Part V concludes by suggesting that the legislature should have provided for the following in its bill responding to the Blakely decision: a provision allowing bifurcation for …

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Voice Over Internet Protocol And The Wiretap Act: Is Your Conversation Protected?, Daniel B. Garrie, Matthew J. Armstrong, Donald P. Harris Jan 2005

Voice Over Internet Protocol And The Wiretap Act: Is Your Conversation Protected?, Daniel B. Garrie, Matthew J. Armstrong, Donald P. Harris

Seattle University Law Review

10101101: Is this sequence of digits voice or data? To a computer, voice is a sequence of digits and data is a sequence of digits. The law has defined 10101101 to be data, and 10101001 to be voice communications. Courts have constructed a distinction between data, 10101101, and voice, 10101001. However, that distinction is blurred when voice and data are simultaneously transmitted through the same medium. The courts forbid third parties to tap or monitor voice communications, yet permit data packets to be tracked, stored, and sold by third parties with the implied consent of either party engaged in the …

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The Character Of Discrimination Law: The Incompatibility Of Rule 404 And Employment Discrimination Suits, Lisa Marshall Manheim Jan 2005

The Character Of Discrimination Law: The Incompatibility Of Rule 404 And Employment Discrimination Suits, Lisa Marshall Manheim

Articles

This Note illustrates how violations of Rule 404 of the Federal Rules of Evidence (which prohibits litigants from relying on certain propensity proofs) occur routinely. It demonstrates that the ineffectiveness of the ban in the context of discrimination suits cannot be blamed on clever lawyers or negligent judges, but rather is a predictable consequence of the dearth of evidence available to discrimination plaintiffs. This Note concludes by arguing that this subtle but problematic incongruity justifies a reform of the Rule.

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The Priest-Penitent Privilege – An Hibernocentric Exercise In Postcolonial Jurisprudence, Walter J. Walsh Jan 2005

The Priest-Penitent Privilege – An Hibernocentric Exercise In Postcolonial Jurisprudence, Walter J. Walsh

Articles

Although much has been written on the history of the priest-penitent privilege, this Article will show that such writing tends toward an unconscious, but strong, anglocentric tilt. It seems that no scholar has tried to locate and interpret all the Irish and American sources that inspired this initially hibernocentric, later more generally American, postcolonial deviation from the English common law. Since the Second World War, the significance of Philips and its 1828 New York codification have gained widespread recognition, but the scholarly inquiry has never advanced in any truly historical fashion. This article is thus the first history of the …

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Like Migratory Birds- Latin American Claimants In U.S. Courts And The Ford-Firestone Rollover Litigation, Manuel A. Gómez Jan 2005

Like Migratory Birds- Latin American Claimants In U.S. Courts And The Ford-Firestone Rollover Litigation, Manuel A. Gómez

Faculty Publications

No abstract provided.

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Deviance, Due Process, And The False Promise Of Federal Rule Of Evidence 403, Aviva A. Orenstein Jan 2005

Deviance, Due Process, And The False Promise Of Federal Rule Of Evidence 403, Aviva A. Orenstein

Articles by Maurer Faculty

In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413 and 414 (concerning rape and child abuse, respectively) allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity. Courts have rejected due process challenges to the new rules, holding that Federal Rule of Evidence 403 serves as a check on any fairness concerns. However, courts' application of Rule 403 in cases involving these sexual propensity rules is troubling. Relying on the legislative history of the new rules and announcing a presumption of admissibility, courts have forsaken the traditional operation of …

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Summary Of Jezdik V. State, 121 Nev. Adv. Op. 15, Brian Reeve Jan 2005

Summary Of Jezdik V. State, 121 Nev. Adv. Op. 15, Brian Reeve

Nevada Supreme Court Summaries

This case involves allegations regarding fraudulent use of a credit card and identity theft. Appellant Michael Jezdik (“Jezdik”) and the victim in this case, Anna Behran (“Behran”), met in Las Vegas in early 1997. They enjoyed a brief romantic relationship but soon parted ways. Approximately three years later, however, Jezdik and Behran rekindled their friendship. Behran told Jezdik that she wanted to purchase a home but did not know how to do so. Jezdik offered to help Behran complete an online mortgage application at his residence. Behran agreed. Throughout the mortgage applicatiosn process, Jezdik acquired access to Behran’s social security …

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Summary Of Banks V. Sunrise Hospital, 120 Nev. Adv. Op. No. 89, Beth Rosenblum Dec 2004

Summary Of Banks V. Sunrise Hospital, 120 Nev. Adv. Op. No. 89, Beth Rosenblum

Nevada Supreme Court Summaries

No abstract provided.

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