Evidence Commons^™

Evidence: A Functional Meaning, Lyman R. Patterson

Vanderbilt Law Review

A trial always involves two basic problems-the problem of ascertaining the truth of the matter in issue, and the problem of re-solving a dispute. The former can be characterized as the probative problem, arising from the problem of proving, and the latter as the forensic problem, arising from the procedural problem of proving-in-a-trial. The probative problem is a problem of evidence in that it is the problem of using evidence to ascertain the truth by "the ratiocinative process of continuous persuasion."' The forensic problem is a problem of the admissibility of evidence, and it is the forensic problem which has …

Admissibility Of Parol Evidence In Judicial Determinations Of Arbitrability, Michigan Law Review

Michigan Law Review

Whether parol evidence of bargaining history is admissible in a court's determination of arbitrability is a problem arising out of the United States Supreme Court's 1960 decisions in the Steelworkers Trilogy. The Court there emphasized the national labor policy favoring arbitration as the best means of resolving labor disputes. Citing its earlier Lincoln Mills decision interpreting section 301(a) of the Labor Management Relations Act, the Court stated that, in enacting section 301, Congress assigned the question of the jurisdiction of an arbitrator to the courts in the absence of an agreement by the parties specifically assigning the question to …

Evidence—Evidence Illegally Obtained By Private Parties Admissible In Civil Action, Thomas M. Ward

Buffalo Law Review

Sackler v. Sackler, 15 N.Y.2d 40, 203 N.E.2d 481, 255 N.Y.S.2d 83 (1964).

Controlling The Police: The Judge's Role In Making And Reviewing Law Enforcement Decisions, Wayne R. Lafave, Frank J. Remington

Michigan Law Review

We have chosen to focus here upon judicial involvement (1) in determining whether arrest and search warrants should issue and (2) in reviewing such decisions after they have been executed (and, perhaps, made) by police officials. A comparison of some recent findings respecting the actual practice at the trial level with the "ideal" as set forth in appellate opinions may allow some conclusions to be drawn both as to the present effectiveness of appellate rulings on these subjects and as to the ultimate feasibility of further implementation of those rulings. Finally, since the exclusionary rule is, theoretically at least, one …

Compulsory Husband-Wife Testimony In Criminal Cases

Washington and Lee Law Review

No abstract provided.

Evidence Of The Absence Of Fresh Complaint Is Admissible In Sodomy Prosecution-United States V. Goodman, Michigan Law Review

Michigan Law Review

Defendant was convicted of two counts of sodomy by a general court martial. The alleged victims of the defendant had failed to complain immediately following the incidents, and evidence of such failure on the part of one of the witnesses had been admitted at trial. A Navy board of review affirmed the conviction, modifying the sentence. Defendant appealed to the United States Court of Military Appeals on the ground that it had been prejudicial error for the law officer to refuse to give a proffered instruction to the court-martial panel respecting the victim's failure to make fresh complaints. On appeal, …

Acts As Communications Under The Marital Privilege - Gutridge V. State

Maryland Law Review

No abstract provided.

The Present Extent Of The Informer Privilege - Walker V. United States, Theodore B. Cornblatt

Maryland Law Review

No abstract provided.

The Antitrust Civil Process Act: The Attorney-General's Pre-Action Key To Company Files, David D. Siegel

Villanova Law Review (1956 - )

No abstract provided.

Federal Tax Returns As Evidence In Non-Tax Cases, Laurence Glazer

Cleveland State Law Review

Many cases deal with the use of Federal tax returns in non-tax cases. The inherent danger in subjecting tax returns to discovery at pre-trial and admission at trial, is the unnecessary disclosure of confidential information. Yet, when income tax returns are material and relevant to the claims of the parties litigant, a contention of privileged communication should not be used to defeat justice.

Conspiracy Of Silence, Richard M. Markus

Cleveland State Law Review

The requirement that independent expert medical testimony establish the proper standard of care and the defendant's failure to meet that standard imposes an almost insurmountable obstacle in many cases. The so-called conspiracy of silence has been recognized, as a matter of judicial notice, by courts in New Jersey, California, and elsewhere. The use of that phrase to describe the unavailability of medical witnesses has particularly dramatic force which impresses a court and jury. However, no apt phrase could detract from the reality of this practical problem which faces an attorney representing a client seeking damages from a physician for professional …

Is It Error To Discuss Conspiracy Of Silence In A Malpractice Trial, Robert L. Starks

Cleveland State Law Review

There is a need in most malpractice suits to impress the jury with the operation and effect of the conspiracy of silence,and in most jurisdictions, to do so would apparently not, and certainly should not, result in reversible error if done in a reasonable and temperate manner.

Special Law For Medical Specialists, Bernard R. Koehne, James G. Young

Cleveland State Law Review

We do not question the need for, or the benefits of specialization, but rather point to some of the confusion which results, in legal cases involving the medical specialist. The apparent contradiction that appears in proceedings involving specialists is illustrated by two cases where the patient's heart stopped beating while on the operating table.

Law And Policy: Emphasis On Exclusionary Rules Of Evidence, J. R. Richardson

Kentucky Law Journal

No abstract provided.

Blood Grouping Tests And The New Kentucky Solution, Paul Hieronymus

Kentucky Law Journal

No abstract provided.

Recent Cases

University of Richmond Law Review

This is a summary of the case law from 1965.

Positive Handling Of The Negative X-Ray, Lawrence V. Hastings

Cleveland State Law Review

Defense counsel usually pounce on "negative" x-rays, i.e., ones which show little or no change from before to after the accident. They triumphantly parade admissions from medical witnesses that "the x-rays in the case are totally negative," before a jury which is enormously impressed through abysmal ignorance of what x-rays can and do show. Thus, the problem facing counsel for the injured party is how most persuasively to acquaint the jury with means of properly evaluating x-rays in view of their significant attributes and their deficiencies. Plaintiff's counsel must somehow explain the purpose of x-rays, augment their limited information, and/or …

Grand Jury Secrecy, Richard M. Calkins

Michigan Law Review

When a leading state such as Illinois enacts "reform" legislation, an impact on the legislatures of other jurisdictions may be anticipated. Accordingly, a need exists for an examination of this legislation in the light of the common-law background of grand jury secrecy and for a further analysis of it in the face of the growing trend toward more liberalized discovery of grand jury minutes in other jurisdictions. It is the contention of the author that such an empirical study will demonstrate that this legislation adopted by Illinois is contrary to all modern judicial thinking and is, in fact, a retrogressive …

Conflicting Presumptions: An Evaluation Of The Solution Proposed By Uniform Rule 15, Edward C. Mengel Jr.

Villanova Law Review (1956 - )

No abstract provided.

Criminal Law--Admissibility On Criminal Courts Of Evidence Derived From Inadmissible Juvenile Confessions, Lester Clay Hess Jr.

West Virginia Law Review

No abstract provided.

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust Law--Violation of Section 7 of the Clayton Act by Joint Venture

==============================

Civil Rights--Anti-discrimination Law as a Vehicle for a Private Civil Action

==============================

Condemnation--Landowner Cannot Recover From Federal Government for Damages Caused Before Date of Taking Where Government Did Not Previously Contemplate, Condemning Property

==============================

Constitutional Law--Loss of Nationality--Foreign Residency Statute Held Violative of Due Process

==============================

Constitutional Law--Reapportionment--Both Houses of a State Legislature Must Be Based as Nearly as Is Practicable on Population

==============================

Constitutional Law--Twenty-first Amendment--Scope of State Power Over Intoxicants Moving Within Its Borders

==============================

Evidence--Statutory Presumptions--Reasonableness Is Implicit in Test of Rational Connection

============================== …

Ril Vs. The Expert Witness In Malpractice Cases

Washington and Lee Law Review

No abstract provided.

Derivative Evidence Under Mcnabb-Mallory

Washington and Lee Law Review

No abstract provided.

Kariti V. Attorney General, Zvi Berinson, Eliyahu Manny, Binyamin Halevy

Translated Opinions

The appellant was charged on five counts of incorrect capital and income returns over some three years. One count was struck out by mutual consent. He was convicted by the Magistrate's Court on two counts and acquitted of the remaining two. On appeal to the District Court he was acquitted of a further count. Affirmation of his conviction on the remaining count was vaguely attributed to one of two years or both of them and the charge was amended accordingly and in the result the struck out count was revived. The appellant pleaded on appeal that in convicting him the …

Evidence -- 1963 Tennessee Survey, Lyman R. Patterson

Vanderbilt Law Review

The doctrine of judicial notice is that an indisputable proposition of fact or a proposition of law of the jurisdiction is not subject to proof. The doctrine thus serves to relieve the litigant of the burden of proving certain facts and law, and is one of immense theoretical implication for the trial lawyer. A fact which is judicially noticed has much greater probative value than a fact which is proved, no matter how strong the proof. Judicial notice thus offers the trial lawyer an extremely effective, but apparently largely unused, device in litigation. None of the cases involving judicial notice …

Berenblat V. Attorney General, Haim Herman Cohn, Moshe Landau, Yitzhak Olshan

Translated Opinions

The appellant was convicted on five counts under the Nazi and Nazi Collaborators (Punishment) Law. 1950. On two of these counts he was convicted on the strength of the evidence of a single witness, found to be credible by the lower court. He appealed against conviction.

Held, granting the appeal, that in criminal matters, a court can convict on the evidence of a single witness without corroboration, after duly "cautioning" itself as to its credibility per se and considering its weight and relevance in the whole complex of evidence tendered by the prosecution with regard to the circumstances of the …

Evidence-Admissibility And Weight Of Photographs, James W. Collier

Michigan Law Review

In a prosecution for fellatio, the people's only witness was a woman who testified that she had participated in the alleged activity with the defendant. Her testimony also verified for introduction a motion picture purporting to show the alleged violations. Defendant was convicted on the basis of this evidence. On appeal, held, reversed. A conviction cannot be sustained on the basis of an accomplice's uncorroborated testimony; and the film, although properly admitted, could not supply the necessary corroboration, since a determination of its accuracy must rely upon the accomplice's foundation testimony. People v. Bowley, 59 Cal. 2d …

Criminal Law-Aiding And Abeiting-Criminal Liablity For Knowingly Furnishing Racing Results To Bookmakers, John H. Blish

Michigan Law Review

Appellant, who received a weekly salary for distributing horse-racing results by telephone to some twenty bookmakers, was convicted of aiding and abetting bookmaking activities in violation of section 986 of the New York Penal Law. He admitted knowing that the information would be used by his employer's customers in violation of section 986, but no actual evidence of bookmaking was presented to the court. On appeal, held, reversed, one judge dissenting. Knowingly transmitting racing results to bookmaking establishments by telephone does not, without proof of acceptance of bets on a professional basis, constitute aiding and abetting bookmaking in violation …

Government Contracts-Judicial Review Under Disputes Clause, Amos J. Coffman Jr.

Michigan Law Review

In a factual dispute arising under a standard government construction contract, the contractor followed the procedures required by the disputes clause. The contractor, after its claim was denied by the contracting officer, appealed to the Board of Claims and Appeals of the Corps of Engineers. The Board rejected the claim, and the contractor brought suit in the Court of Claims, alleging, in the words of the Wunderlich Act, that the Board's decision was "capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or was not supported by substantial evidence." Over the Government's objection, a commissioner of …

Reliable Informers And Corroboration

Washington and Lee Law Review

No abstract provided.