Evidence Commons^™

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.’’ …

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 …

Out With The Old And In With The New: The Second Circuit Shows It's Time For The Supreme Court To Finally Overrule Mcdonnell Douglas, Kerry S. Acocella

Cardozo Journal of Equal Rights & Social Justice

The note argues that the Desert Palace, Inc. v. Costa case represents a significant shift in employment discrimination law under Title VII, as it simplifies the process for plaintiffs to prove discrimination by allowing the use of circumstantial evidence in mixed-motive claims. The decision aligns with the 1991 Civil Rights Act and highlights the need to reassess the stricter standards of the McDonnell Douglas framework, which the author critiques as overly burdensome. The analysis also examines the implications of this shift through the lens of the Sanders v. NYC HRA case, advocating for the explicit overruling of McDonnell Douglas in …

Justice Still Fails: A Review Of Recent Efforts To Compensate Individuals Who Have Been Unjustly Convicted And Later Exonerated, Adele Bernhard

Articles & Chapters

With this Article, I hope to motivate state legislators to enact responsible, practical compensation statutes and encourage courts to entertain state law and civil rights claims brought by those who have been unjustly convicted and later exonerated. I begin by looking at the reasons for enacting compensation statutes: uniformity, practicality, popular support, and fairness. Next, I dissect the arguments raised by opponents. Finally, I turn to recent judicial decisions hinting that courts may be stepping in where legislatures fear to tread.

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

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.

De Novo Review In Deferential Robes?: A Deconstruction Of The Standard Of Review Of Evidentiary Errors In The Federal System, Peter Nicolas

Articles

Although the labels have changed, the name of the appellate game is still the same. For any given type of error in admitting or excluding evidence, one needs to determine whether review is discretionary or deferential. The purpose of this Article is to parse each of the rules of evidence to determine which types of claimed errors are entitled to de novo review, which are entitled to clear error review, and which are entitled to traditional abuse of discretion review. By "type" of error, this Article does not mean to refer to such large categories as "hearsay," "best evidence," "relevance," …

What Happens When Dirty Harry Becomes An [Expert] Witness For The Prosecution?, Joelle A. Moreno

Faculty Publications

No abstract provided.

Judges As Film Critics: New Approaches To Filmic Evidence, Jessica Silbey

Faculty Scholarship

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 …

Wild Dreamers: Meditation On The Admissibility Of Dream Talk, Louise Harmon

Scholarly Works

No abstract provided.

Summary Of Barry V. Lindner, 119 Nev. Adv. Op. No. 45, Matt Wagner

Nevada Supreme Court Summaries

No abstract provided.

Evidence, Marc T. Treadwell

Mercer Law Review

This survey period saw no dramatic developments. The necessity exception to the hearsay rule continued to catch within its net statements that, a generation ago, would never have seen the light of a courtroom day. However, there were hints that some appellate justices and judges are becoming increasingly uncomfortable with the broad scope of the necessity exception. With regard to expert testimony, Georgia courts continued their refusal to adopt Daubert v. Merrell Dow Pharmaceuticals, Inc., perhaps because of a reluctance to impose on trial court judges the tremendous burden of microscopic analysis of proffered expert testimony.

Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman

Rutgers Law School (Newark) Faculty Papers

In this Article, Professor Sharfman addresses the problem of "discretionary valuation": that courts resolve valuation disputes arbitrarily and unpredictably, thus harming litigants and society. As a solution, he proposes the enactment of "valuation averaging," a new procedure for resolving valuation disputes modeled on the algorithmic valuation processes often agreed to by sophisticated private firms in advance of any dispute. He argues that by replacing the discretion of judges and juries with a mechanical valuation process, valuation averaging would cause litigants to introduce more plausible and conciliatory valuations into evidence and thereby reduce the cost of valuation litigation and increase the …

Apologies And Legal Settlement: An Empirical Examination, Jennifer K. Robbennolt

Michigan Law Review

It is often said that U.S. legal culture discourages apologies. Defendants, defense counsel, and insurers worry that statements of apology will be admissible at trial and will be interpreted by jurors and judges as admissions of responsibility. In recent years, however, several legal commentators have suggested that disputants in civil lawsuits should be encouraged to apologize to opposing parties. They claim that apologies will avert lawsuits and promote settlement. Consistent with this view, legislatures in several states have enacted statutes that are intended to encourage and protect apologies by making them inadmissible. In addition, some commentators argue that defendants might …

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.

Changing Scientific Evidence, Edward K. Cheng

Vanderbilt Law School Faculty Publications

A number of high-profile toxic tort cases, such as silicone breast implants, have followed a familiar and disturbing path: Early studies suggest a link between a suspected substance and a particular illness. Based on these initial studies, lawsuits are brought and juries award large judgments to various plaintiffs. Then later, more comprehensive studies find no evidence of a causal link. How should the legal system cope with this problem in which new scientific evidence calls into question previous findings of liability? These erroneous judgments seriously harm social welfare and legitimacy. Beneficial products are needlessly discontinued or are made more expensive, …

Expert Testimony And Scientific Evidence, Lynn Mclain

All Faculty Scholarship

Handout from a day-long lecture on expert and scientific testimony at the Maryland Judicial Institute.

Criminal Law, Marla Graff Decker, Stephen R. Mccullough

University of Richmond Law Review

No abstract provided.

Daubert & Danger: The "Fit" Of Expert Predictions In Civil Commitments, Alex Scherr

Scholarly Works

The opinions of experts in prediction in civil commitment hearings should help the courts, but over thirty years of commentary, judicial opinion, and scientific review argue that predictions of danger lack scientific rigor. The United States Supreme Court has commented regularly on the uncertainty of predictive science. The American Psychiatric Association has argued to the Court that "[t]he professional literature uniformly establishes that such predictions are fundamentally of very low reliability." Scientific studies indicate that some predictions do little better than chance or lay speculation, and even the best predictions leave substantial room for error about individual cases. The sharpest …

Life Sciences, Technology, And The Law - Symosium Transcript - March 7, 2003, Philip R. Reilly, David H. Kaye, Jonathan J. Koehler, Richard O. Lempert

Michigan Telecommunications & Technology Law Review

Life sciences, Technology, and the Law Symposium held at the University of Michigan Law School Friday, March 7, 2003

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 …

Racial Imagery And Native Americans: A First Look At The Empirical Evidence Behind The Indian Mascot Controversy, Gavin Clarkson

Cardozo Journal of International and Comparative Law

The article presents a nuanced approach to the controversy surrounding Native American mascots, advocating for a balance between eliminating offensive mascots and respecting tribal sovereignty. The author proposes that instead of a blanket ban, Native American tribes should have the authority to license their identities to schools, ensuring respectful and educational usage under tribal supervision. This approach leverages trademark law to allow tribes to control their representations, promoting accurate cultural portrayal and education.

Impeachment Of Witnesses: A Walking Tour, Lynn Mclain

All Faculty Scholarship

This handout from the Maryland State's Attorneys' Convention in 2003 summarizes the general methods of witness impeachment, who may be impeached, and impeachments by attacks on witnesses' character for truthfulness.

Daubert & Danger: The "Fit" Of Expert Predictions In Civil Commitments, Alexander W. Scherr

Popular Media

Never make predictions, especially about the future. But in civil commitments, courts predict future behavior all the time. Judicial action here has severe results for the individual: deprivation of liberty, potentially unwanted and intrusive treatment, and the stigma of mental illness. Judicial inaction can also do harm: erroneous release can lead to injury of the person or others. Resolving these risks requires courts to find the person poses a danger to him/herself or others because of a mental illness.

"Quick-Takes" On A Few Recent Decisions In Evidence Law ... And Rule 5-407, Lynn Mclain

All Faculty Scholarship

Handout from the State and Local Government Law Institute covering recent (2003) Maryland evidence cases.

Reporter's Privilege In Utah, Edward L. Carter

Brigham Young University Journal of Public Law

No abstract provided.

Justice Under Attack: The Federal Government's Assault On The Attorneyclient Privilege, Robert J. Anello

Cardozo Public Law, Policy & Ethics Journal

The article argues that the federal government, particularly through the Department of Justice, has launched a multi-faceted assault on the attorney-client privilege, undermining its protections. Recent laws, rules, and policies, such as the Attorney General's monitoring rules for inmate communications and the Department of Justice's guidelines pressuring corporations to waive privilege, threaten the confidentiality essential to the attorney-client relationship. These actions, often justified under the guise of national security and combating corporate fraud, erode constitutional rights and the adversarial system of justice.

Danger At The Edge Of Chaos: Predicting Violent Behavior In A Post-Daubert World, Erica Beecher-Monas, Edgar Garcia-Rill

Cardozo Law Review

No abstract provided.

Brady Behind Bars: The Prosecutor's Disclosure Obligations Regarding Dna In The Post-Conviction Arena, Brian T. Kohn

Cardozo Public Law, Policy & Ethics Journal

The article argues that the constitutional obligation of prosecutors to disclose exculpatory evidence, as established by Brady v. Maryland and its progeny, extends beyond a defendant's conviction and applies to postconviction DNA testing requests. It asserts that denying access to such testing violates both constitutional rights and the ethical duties of prosecutors, who are tasked with seeking justice rather than merely securing convictions. The analysis highlights the conflict in federal courts regarding the applicability of Brady to postconviction DNA testing and advocates for a broader interpretation of the doctrine to ensure innocence is not wrongly imprisoned.

Life After Death Row: Preventing Wrongful Capital Convictions And Restoring Innocence After Exoneration, Jean C. Blackerby

Vanderbilt Law Review

In Gregg v. Georgia, the Supreme Court overturned its ruling in Furman v. Georgia and held that the death penalty, as administered by the states, was not per se "cruel and unusual punishment" in violation of the Eighth Amendment.' Yet errors continue to occur at an alarming rate in the capital punishment system-over one hundred death row inmates have been released pursuant to evidence of actual innocence since 1973. Indeed, the number of death row exonerations has been steadily increasing in recent years.

Of those exonerations, DNA testing played a substantial role in twelve. Many more have benefited from the …