Evidence Commons^™

Eliminating Rule 609 To Provide A Fair Opportunity To Defend Against Criminal Charges: A Proposal To The Advisory Committee On The Federal Rules Of Evidence, Jeffrey Bellin

Fordham Law Review

Federal Rule of Evidence 609 authorizes the admission of prior convictions to impeach criminal defendants who testify. And in this important and uniquely damaging application, the [r]ule’s logic fails, distorting American trials and depriving defendants of a fair opportunity to defend against the charges. The Advisory Committee [on Evidence Rules (the “Advisory Committee”)] should propose the elimination of Rule 609 and prohibit cross-examination with specific instances of a criminal defendant’s past conduct when those instances are unrelated to the defendant’s testimony and unconnected to the case.

This short essay begins by setting out the proposed rule change alongside a proposed …

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

Neglected Discovery, Jenia I. Turner, Ronald F. Wright, Michael Braun

Faculty Journal Articles and Book Chapters

In recent decades, many states have expanded discovery in criminal cases. These reforms were designed to make the criminal process fairer and more efficient. The success of these changes, however, depends on whether defense attorneys actually use the new discovery opportunities to represent their clients more effectively. Records from digital evidence platforms reveal that defense attorneys sometimes fail to carry out their professional duty to review discovery. Analyzing a novel dataset we obtained from digital evidence platforms used in Texas, we found that defense attorneys never accessed any available electronic discovery in a substantial number of felony cases between 2018 …

Correcting Federal Rule Of Evidence 404 To Clarify The Inadmissibility Of Character Evidence, Hillel J. Bavli

Faculty Journal Articles and Book Chapters

Courts misinterpret Federal Rule of Evidence 404(b)(2) as an exception to Rule 404(b)(1)’s prohibition on character evidence rather than a mere clarification that emphasizes the permissibility of other-acts evidence whose relevance does not rely on propensity reasoning. This misinterpretation turns the rule against character evidence on its head by effectively replacing Rule 404 with a Rule 403 balancing—and one that incorrectly treats character inferences as probative rather than prejudicial, thereby favoring admissibility rather than exclusion. Consequently, as currently interpreted, Rule 404(b)(2) generates substantial unpredictability and verdicts based on conduct not at issue in a case.

I therefore propose that the …

Estrella V. Janney Montgomery Scott Llc, 296 A.3d 97 (R.I. 2023)., Kayla M. Brown

Roger Williams University Law Review

No abstract provided.

Expert Malpractice, James R. Steiner-Dillon

Akron Law Faculty Publications

The provision of expert testimony in litigation has become a big business. The paradigmatic testifying expert is no longer the “amateur” expert who maintains a separate professional identity and testifies only once, or at most sporadically, in litigation to which their expertise is uniquely pertinent. Rather, they are a professional provider of litigation support services who spends a substantial part of their time, and derives a substantial part of their income from, consulting on pending or contemplated lawsuits. Legal rules concerning the provision of expert testimony continue to apply the former, obsolete paradigm of the testifying expert. This conflict of …

A Proposal To Replace The Hearsay Rules, Richard D. Friedman

University of Michigan Journal of Law Reform

This essay proposes a set of rules to replace entirely the 800 series of the Federal Rules of Evidence, the hearsay rules, with a very different, and relatively compact, set of procedural rules. (The current hearsay rules run over 3000 words; the proposed rules run under 1000.) The change will improve truth-determination, make trials more efficient, and better protect the rights of criminal defendants and other parties. There would, of course, be some adjustment period for lawyers and judges as they get accustomed to a different system, but I am confident that it would soon be easier to administer than …

Long Live The Federal Rules Of Evidence!, Daniel J. Capra, Liesa L. Richter

Faculty Scholarship

The Federal Rules of Evidence have been pronounced dead. Indeed, the Federal Rules of Evidence have recently been declared dormant, stagnant, frozen, lethargic, and yes, deceased. In The Living Rules of Evidence, 170 U. Pa. L. Rev. 937 (March 2022), Professor Alexander Nunn claims that the Rules are lifeless, incapable of any meaningful change, and littered with anachronistic and even dangerous standards and provisions. To blame for the moribund state of the Federal Rules of Evidence is the bureaucratic and complex federal rulemaking process that requires amendments to traverse multiple constituencies in a multi-year process before taking effect. As a …

The Future Scope Of The Character Evidence Prohibition: The Contextual Statutory Construction Argument That Could Finally Force The Policy Discussion, Paul F. Rothstein, Edward J. Imwinkelried

Georgetown Law Faculty Publications and Other Works

The general prohibition of character evidence is one of the most important doctrines in American Evidence law. Since the Supreme Court has held that the Eighth Amendment forbids status offenses in adult prosecutions, the doctrine has constitutional overtones. Federal Rule of Evidence 404(b) applies the prohibition to evidence of an accused’s other crimes and wrongs. Since such evidence can be inflammatory and the Rule’s limits sometimes confusing, Rule 404(b) generates more published opinions than any other provision of the Federal Rules of Evidence. Although the prohibition extends beyond other crimes, most of the controversy swirls around the Rule’s application to …

“Facet” Or “Facets” Of Executive Privilege In Oklahoma? Vandelay’S Unclear Outcome, Nick Candido

Oklahoma Law Review

No abstract provided.

Recent Reads, Jolie Zangari

Scholarly Works

No abstract provided.

Deepfakes In Court: How Judges Can Proactively Manage Alleged Ai-Generated Material In National Security Cases, Abhishek Dalal, Chongyang Gao, Paul W. Grimm, Maura R. Grossman, Daniel W. Linna Jr., Chiara Pulice, V. S. Subrahmanian, John Tunheim

Faculty Scholarship

Dall-E. ChatGPT GPT-4. Words that did not exist in the English lexicon just a few years ago are now commonplace. With the widespread availability of Artificial Intelligence (AI) tools, specifically Generative AI, whether in the context of text, audio, video, imagery, or even combinations of these, it is inevitable that trials related to national security will involve evidentiary issues raised by Generative AI. We must confront two possibilities: first, that evidence presented is AI-generated and not real and, second, that other evidence is genuine but alleged to be fabricated. Technologies designed to detect AI-generated content have proven to be unreliable, …

False Accuracy In Criminal Trials: The Limits And Costs Of Cross Examination, Lisa Kern Griffin

Faculty Scholarship

According to the popular culture of criminal trials, skillful cross-examination can reveal the whole “truth” of what happened. In a climactic scene, defense counsel will expose a lying accuser, clear up the statements of a confused eyewitness, or surface the incentives and biases in testimony. Constitutional precedents, evidence theory, and trial procedures all reflect a similar aspiration—that cross-examination performs lie detection and thereby helps to produce accurate outcomes. Although conceptualized as a protection for defendants, cross-examination imposes some unexplored costs on them. Because it focuses on the physical presence of a witness, the current law of confrontation suggests that an …

The Brady Database, Brandon L. Garrett, Adam M. Gershowitz, Jennifer Teitcher

Faculty Scholarship

The Supreme Court’s landmark ruling in Brady v. Maryland turns sixty this year. The Brady doctrine, which requires the government to disclose favorable and material evidence to the defendant, is one of the most frequently litigated criminal procedure issues. Yet, despite decades of Brady cases in federal and state courts, we still know relatively little about how Brady claims are litigated, adjudicated, and what such claims can tell us about the criminal justice system writ large. Scholars are in the dark about how often Brady violations occur, whether it is primarily the fault of prosecutors or the police, whether violations …

Judging Firearms Evidence, Brandon L. Garrett, Eric Tucker, Nicholas Scurich

Faculty Scholarship

Firearms violence results in hundreds of thousands of criminal investigations each year. To try to identify a culprit, firearms examiners seek to link fired shell casings or bullets from crime scene evidence to a particular firearm. The underlying assumption is that firearms impart unique marks on bullets and cartridge cases, and that trained examiners can identify these marks to determine which were fired by the same gun. For over a hundred years, firearms examiners have testified that they can conclusively identify the source of a bullet or cartridge case. In recent years, however, research scientists have called into question the …

Against "The Huddleston Test", Dora Klein

Faculty Articles

Many courts—mostly federal, but also some state courts—are misapplying the United States Supreme Court's decision in the 1988 case United States v. Huddleston. These courts have used a single paragraph of dicta from the Huddleston opinion to craft multipart checklist-type "tests" that displace the single requirement of Rule 404(b) of the Federal Rules of Evidence (or corresponding state rules). This displacement risks the admission of other acts evidence without determining whether the evidence is relevant for a non-character purpose by means of inferences that do not involve character. These Huddleston tests thus undermine Rule 404(b)'s prohibition that other acts evidence …

Expert Evidence: The Gatekeeper Role Of Justice, Victor E. Schwartz

Brooklyn Journal of Corporate, Financial & Commercial Law

No abstract provided.

Assessing Evidence Of Secondary Considerations, Jason Reinecke

Villanova Law Review (1956 - )

No abstract provided.

Evidence, John E. Hall Jr., W. Scott Henwood, Krysta Grymes

Mercer Law Review

In the decade following the adoption of Georgia’s new evidence code, courts throughout the state have analyzed and ruled upon complex issues involving the interpretation of the new rules, along with how to reconcile the new rules with the vast body of existing precedent. This Article discusses continuing interpretations of Georgia’s evidence rules in Title 24 of the Official Code of Georgia Annotated (O.C.G.A.), for the period of June 1, 2022 through May 31, 2023, specifically delving into: (1) the admissibility of layperson opinion evidence; (2) the admissibilityof “other acts” evidence; and (3) judicial interpretations of “unfairprejudice” in relation to …

The Gptjudge: Justice In A Generative Ai World, Maura R. Grossman, Paul W. Grimm, Daniel G. Brown, Molly (Yiming) Xu

Duke Law & Technology Review

Generative AI (“GenAI”) systems such as ChatGPT recently have developed to the point where they can produce computer-generated text and images that are difficult to differentiate from human-generated text and images. Similarly, evidentiary materials such as documents, videos, and audio recordings that are AI-generated are becoming increasingly difficult to differentiate from those that are not AI-generated. These technological advancements present significant challenges to parties, their counsel, and the courts in determining whether evidence is authentic or fake. Moreover, the explosive proliferation and use of GenAI applications raises concerns about whether litigation costs will dramatically increase as parties are forced to …