Evidence Commons^™

Linguistics And Legal Epistemology: Why The Law Pays Less Attention To Linguists Than It Should, Gary S. Lawson

Faculty Scholarship

Law and linguistics ought to be natural partners. Modem statutory and constitutional interpretation increasingly focuses on the generally accepted public meaning of legal language. Even persons who do not believe (as I do) that some form of public understanding of the relevant text is the end all, if not quite the be-all, of such interpretation are likely to regard the public understanding of statutory language as at least one relevant factor in legal interpretation. And who better than linguists to inform the law about the true facts regarding public usage and understanding of legal language?

Refining Conditional Probative Value, Richard D. Friedman

Articles

The subject of conditional relevance, or what I think is better called "conditional probative value," must seem hopelessly ard to many. It continues to engage the attention of evidence scholars, however, because it forms part of the conceptual underpinnings of many parts of evidentiary law. Dale'Nance, one of the most astute evidence scholars of our time, has previously written at length on the subject' and has done so now more briefly in response to an article of mine. I offer an even briefer continuation of the discussion.

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 …

The Warren Court And Criminal Justice: A Quarter-Century Retrospective, Yale Kamisar

Articles

Many commentators have observed that when we speak of "the Warren Court," we mean the Warren Court that lasted from 1962 (when Arthur Goldberg replaced Felix Frankfurter) to 1969 (when Earl Warren retired). But when we speak of the Warren Court's "revolution" in American criminal procedure we mean the Warren Court that lasted from 1961 (when the landmark case of Mapp v. Ohio was decided) to 1966 or 1967. In its final years, the Warren Court was not the same Court that had handed down Mapp or Miranda v. Arizona.

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.

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

Publications

No abstract provided.

Self-Defense In Colorado, H. Patrick Furman

Publications

No abstract provided.

The Plain Feel Doctrine In Washington: An Opportunity To Provide Greater Protections Of Privacy To Citizens Of This State, Laura T. Bradley

Seattle University Law Review

This Comment argues that Washington should return to an independent analysis of search and seizure doctrine under article I, section 7 of the state constitution and reject the admission of contraband seized during the course of a pat-down frisk. The decisions in Hudson and Dickerson have established an unnecessary and unworkable standard, and involve an increased invasion of personal privacy without the counter-balancing need to protect the safety of others. The plain feel doctrine as announced in Dickerson and Hudson developed from two well-established concepts in search and seizure law-the Terry frisk of persons to discover weapons and the plain …

Still Photographs In The Flow Of Time, Richard D. Friedman

Reviews

Rarely is an image of the actual moment of death captured and preserved. When it is, as in the famous photographs of President John F Kennedy's assassination or of the summary execution of a Viet Cong officer by a South Vietnamese police chief,4 it is haunting. Even photographs of the moment before sudden death have great power-whether death is totally unexpected (as in a photograph of Luis Donaldo Colosio campaigning for the presidency of Mexico just before his assassination'), planned (as in a photograph of a man bound in an electric chair awaiting execution6 ), or in doubt and anticipated …

Intellectual Coherence In An Evidence Code, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The Federal Rules of Evidence (Federal Rules or Rules) were created in large part to promote uniformity and predictability in federal trials by providing a relatively instructive guide for judges and lawyers concerning the admissibility of evidence. As with any codification, success in this respect requires, among other things, that there be a considerable degree of intellectual coherence among the code's various provisions. The Federal Rules fall short of intellectual coherence in a number of areas. They contain contradictory and inconsistent mandates that do not make theoretical sense and therefore accord the trial judge almost unlimited discretion in these areas. …

Evidentiary Use (And Misuse) Of The Civil Defendant's Financial Status, Karen M. Grundy

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Evidence, Marc T. Treadwell

Mercer Law Review

Previous survey articles have discussed the need for precise objections to preserve an issue for appeal. Sometimes, however, even the most precise objection may not be sufficient. In Garner v. Victory Express, Inc., plaintiff objected to defendant's counsel's comment during closing argument on the lack of any evidence indicating that defendant was unsafe or careless. Apparently, defense counsel was referring to the absence of evidence of prior negligence on the part of defendant's driver. The trial court overruled this objection. Plaintiff argued that because he was precluded from proving defendant's negligence by his prior driving record or from proving …

Response: Exaggerated And Misleading Reports Of The Death Of Conditional Relevance, Peter Tillers

Michigan Law Review

In 1980 the late Professor Vaughn C. Ball of the University of Georgia published an article called The Myth of Conditional Relevancy. Ball's article is widely admired. One well-known evidence scholar, Ronald J. Allen, liked Ball's article so much that he borrowed its title word for word. Although the extent of Allen's enthusiasm for Ball's analysis may be unmatched, a good number of students of evidence - including this writer - have said that Ball's analysis of conditional relevance is both original and important. Richard Friedman, by contrast, cannot be counted as one of Ball's more ardent admirers. Although Friedman …

Conditional Probative Value: Neoclassicism Without Myth, Richard D. Friedman

Articles

The concept of conditional relevance is an essential aspect of the classical model of evidentiary law. Some of the great scholars of evidence have endorsed and shaped it.1 Under Federal Rule of Evidence 104(b) it plays a crucial role in the division of responsibility between judge and jury,2 as well as in the application of the personal knowledge3 and authentication 4 requirements. And the Supreme Court has applied it with great force.5 In recent years, though, the concept has come under attack from several notable scholars. The late Vaughn Ball led the assault, calling the concept a "myth."'6 Peter Tillers, …

Evidence—New Federal Standard For Admission Of Scientific Evidence. Daubert V. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993)., Ed Koon

University of Arkansas at Little Rock Law Review

No abstract provided.

Maryland's Adoption Of A Code Of Evidence, Lynn Mclain

All Faculty Scholarship

This short paper written just after the adoption of the Maryland Rules of Evidence explains the rules and the process it took to adapt the Federal Rules of Evidence for use in Maryland.

Factors For Reasonable Suspicion: When Black And Poor Means Stopped And Frisked, David A. Harris

Indiana Law Journal

No abstract provided.

Technology Comes To The Courtroom, And . . ., Fredric I. Lederer

Faculty Publications

No abstract provided.

Cart V. Marcum: The Discovery Rule As An Exception To The Statute Of Limitations In West Virginia, James R. Leach

West Virginia Law Review

No abstract provided.

Comment: Theory And Practice In Dna Fingerprinting, Richard O. Lempert

Articles

Throughout her useful paper on DNA identification, Professor Roeder properly attends to both theory and practice. Thus she acknowledges the theoretical soundness of certain criticisms that have been made of the standard paradigm used to evaluate DNA random match probabilities but argues that in practice these criticisms matter little. I am thinking here of the arguments that those cautioning against overweighing DNA evidence have made regarding the undeniable existence of population substructure and its potential implications for independence assumptions supporting the application of the product rule and for the use of convenience samples, such as data garnered from no more …

Out Of The Twilight Zone: The Implications Of Daubert V. Merrill Dow Pharmaceuticals, Inc., Diana K. Sheiness

Washington Law Review

In Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court held that the Federal Rules of Evidence had not implicitly incorporated the general acceptance, or Frye, test for scientific evidence. Instead, the Court interpreted Rule 702 to mean that judges should admit challenged scientific testimony only after determining that its underlying method or theory is scientifically valid. This Note argues that the essence of the Daubert decision is that judges must ascertain whether or not the studies underlying proffered testimony have been performed in accordance with sound scientific principles. The Note analyzes several cases to illustrate appropriate and …

Experts, Liars, And Guns For Hire: A Different Perspective On The Qualification Of Technical Expert Witnesses, Christopher P. Murphy

Indiana Law Journal

No abstract provided.

On The Relevance Of The Admissibility Of Scientific Evidence: Tort System Outcomes Are Principally Determined By Lawyers’ Rates Of Return, Lester Brickman

Cardozo Law Review

The attention generated by Daubert v. Merrell Dow Pharmaceuticals, Inc. reflects the perceived importance of the issue of the admissibility of scientific evidence in tort litigation. In products liability litigation, whether claimants prevail often depends upon expert testimony presented on the issue of causation. Unless a claimant is able to have the expert's testimony admitted, there will be little or no chance of prevailing. Thus, though it is disputed whether Daubert will extend or contract tort liability, it is undisputed that its importance lies in its impact on the scope of tort liability.

Daubert: Interpreting The Federal Rules Of Evidence, Paul C. Giannelli

Cardozo Law Review

In 1992 Judge Becker and Professor Orenstein referred to the Frye issue - the admissibility of novel scientific evidence-as the "most controversial and important unresolved question" in the Federal Rules of Evidence. Indeed, during the prior decade the federal courts had battled over the issue, as had their state counterparts. Similarly, text writers and law review commentators vigorously disagreed about the proper standard for admitting scientific evidence. While one ABA report on the Federal Rules explored the Frye issue and concluded that it "is not clear that any standard would produce agreement at the moment," another report cited it as …

The Meaning Of Daubert And What That Means For Forensic Science, Randolph N. Jonakait

Cardozo Law Review

Daubert's effect on forensic science is unclear because the opinion is unclear. The Daubert Court did start blazing a useful path by stating that before scientific testimony is admitted, the trial court must be convinced that "the reasoning or methodology underlying the testimony is scientifically valid and ... that [the] reasoning or methodology properly can be applied to the facts in issue." But the Court's trailblazing was incomplete and often misleading.

Some Implications Of Daubert And Its Potential For Misuse: Misapplication To Environmental Tort Cases And Abuse Of Rule 706(A) Court-Appointed Experts, Ellen Relkin

Cardozo Law Review

This Commentary will address an array of issues underlying and emerging from the disputes in Daubert v. Merrell Dow Pharmaceuticals, Inc., and its inevitable progeny, from a practitioner's perspective representing plaintiffs in toxic tort litigation. It is intended to provide real examples that debunk the quaint but unrealistic notion that science is pure and insulated from economics and politics, the propagandized suggestion that it is the plaintiff's expert who promotes "fringe" or "junk" science, and the belief that epidemiology is the sine qua non of proving causation of a disease. It will also address the potential perils of the …

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 …

Should Federal Evidence Rules Trump State Tort Policy? The Federalism Values Daubert Ignored, Michael H. Gottesman

Cardozo Law Review

I want to explore issues that the Supreme Court should have addressed in Daubert but did not. The Court decided that Rule 702 of the Federal Rules of Evidence ("FRE") assigns a "gatekeeping" function to federal trial judges, who are to exclude expert scientific opinions that do not meet a standard of "reliability" vaguely sketched out in the Court's opinion.

The Daubert case involved exclusively state substantive law issues and was in federal court only because the defendant removed it from state court on the basis of diversity of citizenship. The Court held the gatekeeping function applicable in diversity actions, …

The Supreme Court’S View Of Science: Has Daubert Exorcised The Certainty Demon?, Bert Black

Cardozo Law Review

The Supreme Court's mandate in Daubert that experts who give testimony based on science must confine themselves to valid scientific knowledge seems tautologically obvious, and hardly an issue requiring the attention of the nation's nine highest judges. The debate that led to Daubert was generated, however, by opponents of judicial screening who argued that holding experts to scientific standards somehow imposes an undue burden of proof on plaintiffs, especially in toxic tort cases - and the Supreme Court's decision has not put the issue completely to rest. Science, according to this "relaxed standards" argument, demands certainty far beyond the law's …

Daubert V. Merrell Dow Pharmaceuticals, Inc.: Epistemiology And Legal Process, Margaret G. Farrell

Cardozo Law Review

Justice Blackmun's majority opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc. acknowledges that law and science have different goals, but it fails to recognize the implications of those differences for legal process. Recent increases in the scientifically-based claims brought in the federal courts, and in the size and complexity of the litigation in which such claims are made, have raised the stakes in the debate. At the same time, scientific concepts of relativity, uncertainty, and multiple causation are at odds with simple, legal notions about fact-finding and cause and effect. This disparity between legal and scientific understandings over the admission …