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Introduction 8 results (showing 5 best matches)
- This does not mean that there are no evidence stories worth recounting. The essays in this volume show how interesting evidence stories can be. Rather it means that evidence stories are not only highly varied, but also that the central actors in an evidence story may have played no role in the dispute giving rise to the case. Thus, the most interesting actor in George Fisher’s story of , the classic case involving probability evidence, is neither Janet nor Malcolm Collins, the defendants in the case, about whom little is known, nor the prosecutor who sought to bolster a weak but probably winnable case with statistical evidence, nor the professor who, answering a phone message, found himself that afternoon in court giving expert testimony. Rather it ...response to an article by Michael Finkelstein and William Fairley that advocated more sophisticated modes of presenting probabilistic evidence, placed the issue of probabilistic proof and the application of Bayes’ Theorem in...
- Despite the special nature of some evidence stories, this volume does not depart substantially from the spirit of the “Stories” series. Having as one’s protagonist a law professor or judge does not, as the reader will see, preclude a good story, and even when actors like these are the main protagonists, we learn about the characters and incidents that figured most prominently in the litigation, often with the benefit of story facts that have not heretofore been known. Moreover, not every evidence story is special in the way I have just described. Indeed, most of the essays in this volume did not bring the dentist’s dam to mind, for in most the case story is front and center, and key to other analysis. Thus, Peter Tillers uses . And Marianne Wesson takes one of evidence law’s classic stories—the story of
- I have found that the more deeply I am engaged in a scholarly project, the more the details of my life become relevant to what I am working on. Thus, it was that sitting in a dentist’s chair for reconstructive work following a root canal, I saw a metaphor for what had been troubling me about some of the evidence stories essays I was in the midst of editing. The dentist had covered my mouth and part of my face with a rubber dam, pierced so that only the tooth she was working on was visible. It was as if the rest of the mouth, in which the tooth was set, did not exist or, since it did exist, was irrelevant to the task at hand. The dentist knew what she was doing, the rest of the mouth irrelevant. So it often is with great evidence cases. Evidence is procedure. There need be no special story—no great dispute or fight for justice—behind a great evidence case. Nor will deeper knowledge of case facts necessarily reveal reasons for a rule or suggest the concerns that motivated a court’s...
- Most of this volume’s essayists do more than tell a story. They go on to discuss how their case shaped the law of evidence and, often not content to stop there, they critique the doctrine the case shaped. Indeed in a few essays, most notably Paul Giannelli’s treatment of the so-called rules regarding the admissibility of scientific evidence—is the heart of the story line.
- legal writing goes, usually between 25 and 30 pages or less. Stories intended as adjunct reading can’t be too lengthy. Some original submissions were shortened by as much as 50% to achieve this goal. Often eliminated were detailed explanations of the evidence rules involved, for these essays are not meant to teach students what the law provides. That will be done by the teacher working from a problem text or casebook. The stories in this volume are intended to add to basic instruction, not to substitute for it.
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Chapter 4. Of Misshapen Stones and Compromises: Michelson and the Modern Law of Character Evidence (Michelson v. United States; FRE 405: Cross-Examination of Character Witnesses) 58 results (showing 5 best matches)
- involves not one but three evidence stories, which are progressively more interesting and important. First is the story of Solomon Michelson, the defendant in the case, and the crime that he apparently committed. Not much is known about him, but it seems that his crime was small potatoes, and but for the case that bears his name, he would long since have been forgotten. Second is the story of Justice Robert Jackson, the last person appointed to the Court without a law degree and a jurist of extraordinary ability and influence. Among other things, he wrote with remarkable clarity and an unrivaled ability to turn a phrase. Third is the story of the law of character evidence, which Jackson’s opinion in captures and summarizes and which continues to be controversial. This essay follows all three stories, beginning with the case and its protagonist.
- Neither the man Solomon Michelson, nor his crime nor his story, is highly significant. But the story of the American law of character evidence, as it unfolded in the case and was recounted in the decision, is central in the American law of evidence. In assessing the law of character evidence, we must turn to psychology, social science more generally, politics and even philosophy. The debate over these rules involves precedent, logic, formal models, psychological experiments and theories, criminal justice statistics, legislative and judicial politics, our beliefs and understandings about the ways that police and prosecutors and defendants and juries behave, and a heavy dose of pragmatism. Ultimately the debate forces us as humans to confront what it means to be human.
- the law of evidence as it relates to proving character “developed almost entirely at the hands of state courts,” and the Supreme Court itself “has contributed little to this or to any phase” of evidence law. The same comment applies across the board to the whole of the law of evidence. Thus first significant evidence case that the Court decided while Jackson was on the Court, and it fell to him to write the opinion.
- Finally, an ambitious modern defense of roughly the existing law of character evidence argues that it resembles tort and criminal law in aiming through the creation of incentives to affect behavior outside of court. Professor Sanchirico distinguishes between “trace evidence,” (not only physical clues, but eyewitness accounts) and “predictive evidence” (prior acts and character traits), and argues that admitting trace evidence and barring predictive evidence—both features of our law—enhance the incentive functions of criminal law. The argument for barring predictive evidence (including proof of character) is that a person thinking about committing a crime is more deterred if he knows that what he has already done won’t count against him if he is mistakenly arrested than if he thinks that it will. In the latter instance, a decision to “go straight” is less attractive, and crime becomes more attractive. Surprisingly, Professor Sanchirico concludes that letting defendants prove good...
- relates to trials for sexual assault or child molestation. In the federal system and some states, concerns over these crimes have given rise to rules of character evidence that apply only in prosecutions for such crimes. These rules, unknown at common law and not originally codified in the Federal Rules or in state counterparts, let prosecutors prove a defendant’s prior sexual assaults or molestations in order to show that he committed the charged crime, even when the evidence supports this conclusion only through the propensity inference—he did it before, so he probably did it this time. The only check on such evidence is that trial judges retain authority to exclude such evidence when its probative value is substantially out-weighed by its prejudicial effect
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Chapter 13. The Wisdom of Dallas County (Dallas County v. Commercial Union Assurance Company; FRE 807: Residual Exception) 51 results (showing 5 best matches)
- is almost an “in your face” decision. One cannot avoid confronting the clear break with existing doctrine. Perhaps because of this, the case was more celebrated than precedential. But the power of Judge Wisdom’s approach remained, and with the drafting of the Federal Rules of Evidence, it emerged from the legislative debates with the qualified endorsement of Congress. So this evidence story is not so much the story of a building hit or not hit by lightning as it is the story of an intellectual tradition, and of a judge, and how ideas come to be enacted into law, interpreted and developed. The same kind of story can be told of a number of changes in the law of evidence, but few are as important as this one.
- This has not been the usual evidence story, for although there is an interesting tale to the case, there is not much human drama to it. The real story has been one of the development of a rule that has dramatically changed the law of evidence. This is a story that has roots in the 19th Century, at a time when evidence law was a common law of trial procedure that varied considerably across jurisdictions. The need to make sense of these various rules and the principles behind them gave rise to a series of great treatises; in the 19th Century, by Greenleaf and Thayer, and at the turn of the century, the greatest and most influential of them all, by John Henry Wigmore. Other academics were also major figures, one of the stars being Edmund Morgan, a pioneer in the movement for codification and, like Wigmore, a critic of the many strictures of the common-law rule barring hearsay. John Minor Wisdom grew up as a lawyer at a time when the authority of Wigmore and Morgan and a few others...
- excluded when it is not the most probative evidence a party can produce on the point, the party will have an incentive to present the factfinder with the more probative evidence, whether that be testimony by an available declarant or some other evidence. The alternative of relying on the opposing party to produce the better evidence may be inferior, either because the opponent is unable to acquire the better evidence, or because the time lag between the presentation of the hearsay and its rebuttal by better evidence may be so great that the hearsay will have become embedded in a coherent story that later evidence cannot shake, at least not without unnecessary inconvenience for the trier of fact. Conversely, when the hearsay is the best the proponent can offer on the point, the very rationale of exclusion is muted.
- case. In this essay, I shall tell the story of the case and its much-cited opinion, highlight its contributions to thinking about the reasons and criteria for excluding hearsay, and comment on the case’s legacy for the law of evidence.
- Indeed, another more demanding interpretation has been suggested. It has been argued that the “any other evidence” language in the “more probative” clause of the federal rule means just what it says, that the hearsay must be more probative than any other evidence on the point, even that which has been introduced in court, so that hearsay may not be admitted under the residual exception when it corroborates (or perhaps contradicts) evidence of greater probative value, such as direct testimony. But this construction of the rule is neither necessary nor desirable, and the courts have been right to avoid it. In , the acknowledged model for the residual exception, defendants presented considerable non-hearsay evidence that the charred timbers pre-existed any lightning strike in July of 1957, but this did not bar the hearsay. Judge Wisdom’s concern focused on the possibility of obtaining more probative evidence that was not before the court. He gave no attention at all to the corroborating
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Chapter 3. United States v. Woods: A Story of The Triumph of Tradition (FRE: 404(b): Character Evidence Exceptions: Similar Circumstances) 35 results (showing 5 best matches)
- In sum, the story of the case is a story about the tradition of judicial reasoning. The chapter is part of a larger story about the third branch of our government. The larger story portrays a judiciary committed to pursuing the public interest and sufficiently open-minded to realize that it does not always possess all the answers to questions about the public interest. For that matter, it may not always be the government institution that should resolve a particular public policy matter. But when it comes to evidence law and justice in specific cases, no branch of government is better positioned to decide wisely than our courts. is thus a tale about doing justice in an individual case. During Mrs. Woods’ lengthy, six-month trial, a theory new to American law, which has come to be called the doctrine of chances, was used to admit evidence that was unique in the way it shed light on what probably had happened. The trial jury found that evidence persuasive. In the words of her...
- The remainder of his opinion developed two broader grounds. One was that the list of exceptions “is not complete.” Unlike Judge Widener, Judge Winter balked at treating the uncharged misconduct doctrine as a closed system. More importantly, however, Judge Winter questioned whether the “exception” terminology was apt for at least some of the noncharacter theories of logical relevance. The very use of that terminology was potentially misleading. The judicial task is “not merely one of pigeonholing.…” “Simply fitting evidence of this nature into an exception heretofore recognized is, to our minds, too mechanistic an approach.” Judge Winter then prescribed an approach for trial judges. Initially, the judge must ensure that the uncharged misconduct possesses genuine relevance on a noncharacter theory; the evidence must be “be relevant for any purpose other than to show a mere propensity or disposition on the part of the defendant to commit the crime.…” If the evidence is so relevant,...
- Given that concession, if DiMaio’s testimony had been the prosecution’s only evidence, Martha Woods might never have stood trial. Even if his testimony alone had been enough to persuade the federal grand jury to file charges, in all probability the defense would have won a dismissal at the conclusion of the prosecution case-in-chief; as a matter of law, it would have been clear that no rational jury could find Martha guilty beyond a reasonable doubt. The prosecution desperately needed other evidence to corroborate DiMaio’s opinion. The defendant’s background seemed to furnish compelling evidence.
- Before 1840 the American cases dealing with the admission of uncharged misconduct evidence followed the English inclusionary approach. The American courts, for example, routinely received uncharged misconduct when it was logically relevant on a noncharacter theory to prove the accused’s guilty knowledge. The rule was “inclusionary” in the sense that evidence suggesting bad character was automatically inadmissible only when it was offered for the forbidden character (or propensity) inference; any noncharacter theory was presumptively acceptable. However, in the United States, by the middle of the 19th century, this approach to character evidence began to break down. The American courts started describing the character evidence doctrine as if it were a general exclusionary rule with a limited number of exceptions.
- decision is significant for several reasons. The most obvious is that the majority helped change American law governing the admissibility of uncharged misconduct evidence and, although not using the phrase, identified a new basis for admissibility, “the doctrine of objective chances.” Other act evidence is relevant and admissible when it tends to establish the objective improbability that an untoward event had an innocent cause or that an accused’s association with an event is coincidental. No formal statistical evidence is required to show this, at least in the usual case. Rather, the law allows jurors to draw on their knowledge of the common course of events to assess the objective probability of the litigants’ competing claims about the disputed events. (Indeed, in many jurisdictions, the judge’s pattern instructions direct the jury to employ that very type of reasoning. ...evidence is admissible because the doctrine of chances does not require the jury to infer either that the...
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Chapter 12. The Hillmon Case, The Supreme Court, and The McGuffin (FRE 803(3): Statements of Existing Mental Conditions/Intent) 47 results (showing 5 best matches)
- And yet these converging antagonists to Sallie Hillmon’s lawsuit, whose apparent motives were no more nefarious than professional exhaustion or ordinary ambition, cannot altogether account for the invention of the state of mind exception. There is something more powerful at work: the urge to complete a just and intelligible narrative. It is impossible to come away from an encounter with the Supreme Court’s opinion without the impression that the trial judge’s exclusion of the evidence concerning Walters’ letter—the story’s McGuffin—disserved the cause of truth. Once a reader of the Court’s opinion knows of the letter, it seems offensive to the idea of justice that the law would countenance a retrial in which the verdict could once again rest on the jurors’ ignorance of evidence that seemed to prove, with near certainty, that the corpse belonged to Frederick Adolph Walters. The story, the true story, has to be the one that Brown told in his affidavit: Hillmon persuaded the credulous...
- Putting aside the partisan arguments of the various newspapers, their more particular reports of the testimony and evidence tell a rather clear story.
- Concerning Brown’s two accounts, this juror said that they “had considerable influence, although it was hard to tell which of his stories was true,” and also that “it will be hard to make me believe but what Buchan worked him pretty hard, to get his evidence for the companies.”
- Of course, I cannot claim to be immune myself from the seductions of narrative. I have here only told another story, albeit one that I believe to be better justified by the evidence than the understood version. I have tried in telling my version to lash myself to the mast of truth, but I confess I’ve enjoyed telling what I believe to be an excellent tale, and possibly its siren call has deceived me as well.
- , Mar. 16, 1888, at 4. The same story says that the jury is unaware of her remarriage because “the attorneys on each side fear to introduce” evidence of it.
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Chapter 9. People v. Castro: Challenging the Forensic Use of DNA Evidence (FRE 702; 703: Scientific Evidence) 56 results (showing 5 best matches)
- is an interesting story, and it is with the story of the case that we shall begin. After laying out the background facts, I will present an abbreviated history of DNA evidence and its legal use prior to
- Toward the end of the conference, Peter Neufeld approached Eric Lander and asked him to take a look at the DNA evidence in the case. As Neufeld told the story to the press after the
- A teenage girl had been raped and murdered in rural England in 1983, and then in 1986, another girl was found dead nearby. A kitchen worker with a low IQ was fingered as a possible suspect. The DNA evidence from both murders was tested against the suspect’s, and it turned out that the two criminal samples matched each other, strongly suggesting that the same person committed both crimes. But much to the disappointment of police investigators, neither sample matched the original suspect. The kitchen porter was freed, the first criminal suspect in history to be exonerated by his own DNA. Frustrated and desperate for new leads, police eventually decided to take on a genetic manhunt: every man in the appropriate age range in the vicinity was asked voluntarily to submit blood for testing. Although thousands of samples were tested, none matched the DNA evidence extracted from the semen found at the murder sites. An enormous and controversial effort seemed to have produced nothing useful....
- All of this was suggestive: it provided the outlines for a story that fingered Castro as a possible suspect and gave tantalizing hints of both motive and opportunity. But the police still might not have had a persuasive case had they not, when they questioned Castro, seized a watch he was wearing, stained with what looked like dried blood. If it blood and if it could be persuasively linked to Vilma or Natasha, that would transform a circumstantial case into a slam-dunk story of Castro’s guilt.
- Why then, should we tell the story of
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Chapter 5. The Story of Rule 410 and United States v. Mezzanatto: Using Plea Statements at Trial (FRE 410: Waiver of Protection) 34 results (showing 5 best matches)
- One wonders why Chier did not mention this admission of Moreland’s during closing argument. It was the only external support for Mezzanatto’s seemingly outlandish explosives story, at least the only support that got into evidence.
- The story behind is also of interest, because its holding that the prosecutor may condition plea negotiations on a waiver of the exclusionary rule embodied in Rule 410 and Rule 11 turns out to be extremely important to the practice of plea bargaining and to the rules of evidence. Admittedly, at the time it was handed down and for several years thereafter, was a relatively “quiet” case. The decision is not heavily referenced in the annals of evidence law, if only because it appears to be more about plea bargaining than the rules of evidence. And even for criminal procedure buffs, it has not occupied a conspicuous place in the legal firmament; only a few authors, most of them students, have focused their attention on it.
- Mezzanatto’s slip seems a slim reason for ending a meeting that might have produced bigger game. Indeed, McKee was upset with Harrigan because he thought Mezzanatto might have had some useful information about suppliers. But Harrigan’s decision to end the negotiation was based on a number of considerations. To begin with, he had Mezzanatto dead to rights. The evidence against him was strong, and a guilty plea wasn’t needed to convict him. More importantly, he was leery of Mezzanatto, for a number of reasons. First, the defense had come forward to negotiate at the “11th hour” just a few days before trial was to start, often a sign of desperation likely to produce concocted stories in an effort to avoid a jury conviction and a longer sentence. Second, Mezzanatto’s vacillations about various incriminating details did not bode well for getting accurate information from him; he seemed willing to admit to his lies only after his story became obviously inconsistent or was contradicted....
- In 1975 Congress simultaneously adopted Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11(e)(6), both of which prohibited, in virtually identical language, evidentiary use of withdrawn guilty pleas and statements made during failed plea negotiations. Court held that a criminal defendant may waive the protection provided in these rules. This is the story of those rules and that case.
- In hindsight, Mezzanatto says he still would have talked to the prosecutor—even though he now knows that Shuster led the police to him and that he had nothing to offer but his own story about being a small-time dealer, which the prosecutor was not about to buy. When asked if he now understands what a waiver of Rule 410 permits, he responded that it allows the government to use plea statements of someone like him if “they can already prove what I’m saying”—if, in other words, it has other evidence corroborating the defendant’s negotiation statements. When his misimpression about Rule 410 waiver is corrected, it dawns on him: “Then I guess my getting on the stand opened the door.” Finally, fifteen years later, he gets it.
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Chapter 10. The Story of Mahlandt v. Wild Canid Survival & Research Center, Inc.: Ecounters of Three Different Kinds (FRE 801(d)(2): Admissions) 40 results (showing 5 best matches)
- story thus exemplifies a fourth encounter, this one between law students and the law of evidence. It illustrates what values are at stake in the ever-present tension between the doctrinal mandates set by the Federal Rules and the dynamic role of trial court discretion in the administration of those Rules.
- What makes this legally rather ordinary case extraordinarily interesting is, of course, Sophie. What was a wolf doing in the Pooses’ yard in the middle of a neighborhood full of children? Did Sophie attack Danny after he got into the back yard on his own? Or, as was argued later, did she pull him under the fence by the foot, lacerating his face and legs on the sharp barbs at the bottom of the chain links? Or, did she do nothing to injure the child? How Danny was injured was the focus of most of the evidence at the trial. Sophie’s story was also told at trial, but at this point she needs her own separate introduction as a member of the cast of characters.
- litigation masks the human drama behind this traumatic incident and ensuing trial. Drawing on the trial transcript and the companion court papers, Part One of this essay tells the story of the injured child, Danny Mahlandt, and his encounter with the wolf, Sophie. Part Two explains why U.S. District Court Judge H. Kenneth Wangelin, in his encounter with the then recently enacted Federal Rules of Evidence, decided to exclude the crucial hearsay statements. It suggests that Judge Wangelin perceived a conflict between the literal application of the Rules in this case and the search for truth. It further suggests that Judge Wangelin assumed that he had the authority to decide how the value of truth would best be served. The Eighth Circuit opinion stands for the proposition that the trial judge does not have this authority, at least not under the categorical language of the hearsay exemptions for party and vicarious admissions. Part Three of this essay examines the justifications for...
- Two neighbors of the Poos and Mahlandt families on Pershing played supporting roles in this story. John Gillis, an attorney who lived in St. Louis, was ill and home in bed on the day of the incident. Hearing a child screaming, Gillis looked out of his second story bedroom window and saw a small child lying prone in the Poos yard, straddled by Sophie the wolf. The wolf’s face was near the child’s, but Gillis was sufficiently far away that he “could not see what the wolf was doing with its jaws.”
- Our law is concerned that people get fair trials, that nobody be required to pay any money damages unless the plaintiff has proved by the greater weight of the believable evidence the charges that are made … the Court will tell you … the plaintiffs have to prove to you by a preponderance, not just some evidence, not just any evidence, not just a little evidence, but by the preponderance … of the believable evidence the charges they’ve made in this case … if the evidence is evenly balanced and you say, well, it could have been this or it could have been that, they’re evenly balanced, the plaintiffs cannot recover in this case.… I think you’ll find that that burden of proof has not been met, that we have in this case nothing other than guesswork, nothing other than speculation, and if … it’s just as reasonable to believe … that that child sustained those wounds climbing over the fence [as being dragged under it], then your verdict must be for the defendants.…
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Table of Contents 10 results (showing 5 best matches)
- Green Felt Jungle: The Story of People v. Collins (FRE 403: Probabilistic Evidence)
- United States v. Woods: A Story of The Triumph of Tradition (FRE: 404(b): Character Evidence Exceptions: Similar Circumstances)
- The Death of a Youth and of a Drunkard: A Remarkable Story of Habit and Character in New Jersey (State of New Jersey v. Radziwil; FREs: 404 & 406 Character and Habit)
- The Story of Rule 410 and United States v. Mezzanatto: Using Plea Statements at Trial (FRE 410: Waiver of Protection)
- The Story of Swidler & Berlin v. United States: Death and the Privilege (FRE 501: Attorney Client Privilege: Survival After the Client’s Death)
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Chapter 1. Green Felt Jungle: The Story of People v. Collins (FRE 403: Probabilistic Evidence) 28 results (showing 5 best matches)
- under the headline “Justice Invokes Science: Law of Probability Helps Convict Couple.” Within a month, the story went national. magazine wrote of a daring application of “The Laws of Probability,” which it trumpeted as “a totally new test of circumstantial evidence.” Legal scholars began writing of the case even before the California Supreme Court’s ruling. Because every good story needs a hero, the press lionized Sinetar. The
- This fact, if true, would have spoiled a good story. So it died in Schmidt’s first account of the trial. The world took note instead of the rest of his story, which appeared on November 29, 1964, four days after the
- What made the prosecutor’s errors worse was that the Collinses’ trial counsel (and presumably the jurors) plainly lacked the mathematical training to spot them. Tribe refrained from noting that even the Court of Appeal was baffled by the probability evidence. In rejecting Malcolm Collins’s claim that the evidence was irrelevant and unfairly prejudicial, the Court of Appeal committed an error even more blatant than the defense lawyer’s fallacy. The court looked through a looking glass at Sinetar’s probability demonstration and deemed the robbers’ distinctiveness to be evidence of the Collinses’
- Courtroom math has come far since Sinetar’s hand-drawn chart with its secretarial survey results. Still, the story of
- Yet one aspect of trial stays closed to all appeals to probability, however well credentialed. The beyond-reasonable-doubt standard remains rigorously, resolutely unquantified. Probability evidence may help jurors mount that hurdle. But never may a judge advise jurors that if probabilistic evidence has pushed their certitude past a numerical sign-post, they may convict without first confronting their certainty
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Chapter 2. The Death of a Youth and of a Drunkard: A Remarkable Story of Habit and Character in New Jersey (State of New Jersey v. Radziwil; FREs: 404 & 406 Character and Habit) 39 results (showing 5 best matches)
- is also noteworthy because it raises important questions about an important part of the law of evidence: the relationship between habit evidence and character evidence. But the questions that ...law of evidence. The criminal justice system is disproportionately populated with unsavory people, unpleasant people, stubborn people, and strong-willed people. Criminal defendants are frequently both unsavory and unpleasant, and many witnesses—including prosecution witnesses—share these traits. Prosecutors and criminal defense counsel, although not as a rule unsavory, can be unusually strong-willed and stubborn, and judges who preside in criminal cases may become hardened not just to the suffering of victims but also to the plight of those who cause harm. This combination of character traits has the making of a toxic brew. There is reason to worry about the capacity of strong-willed actors, such as police officers and trial judges, to make sound judgments about the unpleasant and unsavory...
- The story of the Radziwil case tests this proposition.
- A second judge, who ruled against Radziwil in the New Jersey Supreme Court, had his own story:
- Guilt or innocence is supposed to depend on what a person does, and not on what a person is. This precept permeates the criminal law, which defines misdeeds in terms of intent and action. It also plays a role in the law of evidence, especially in a doctrine known, variously, as the character evidence rule, the character rule, the propensity rule, and—more elaborately—the prohibition against the circumstantial use of character evidence.
- If habit evidence, is (as the reviser of Wigmore’s treatise seemed to think) a species of character evidence, it is not the only kind of evidence the law admits to show action in accord with character. Criminal defendants can offer evidence of pertinent traits of their character to show they did not commit a crime; the bad character of witnesses for truth and veracity can be admitted to suggest they have lied on the stand, and certain kinds of bad acts may be admitted to show a propensity to commit certain sexual crimes. This paper will not, however, ...the distinction between habit and character, and I ask whether courts, though professing to honor the distinction, disguise character as habit by allowing behavior that is not semi-automatic to show conduct on a specific occasion and by allowing circumstantial use of predominantly volitional behavior even when that behavior reveals unattractive character traits. I also ask whether in a specific case where character evidence has...
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Chapter 14. The Story of Crawford (Crawford v. Washington: Confrontation) 11 results (showing 5 best matches)
- All three questions would be answered in the affirmative over the next year. And so the story of is much more than the story of Mike and Sylvia Crawford and the knife fight with another man that landed Mike in prison. It is also the story of how the accused’s right to be confronted with witnesses developed over the centuries and then atrophied, and of how a young lawyer with talent, gumption, and guts was able to persuade the Supreme Court to restore the right to its proper place at the center of our system of criminal justice. From my point of view as a scholar, it is a story that is enjoyable to tell in part because it is so gratifying.
- As a result of the Supreme Court’s reversal of his conviction, Michael Crawford was able to negotiate a plea yielding a reduced sentence of ten years. But of course that did not end the story of ; that story is just beginning. By transforming the jurisprudence of the Confrontation Clause, the case opened up an array of issues. Although some of the most egregious violations of the confrontation right that recurred before the decision—such as the use against defendants of statements made, without cross-examination, in grand jury testimony or in plea hearings—have pretty much ended, many courts have given the decision a grudging interpretation. Some courts have treated
- Soon, though, the distinction became less apparent. Around the time of the adoption of the sixth amendment, and for several decades thereafter, the hearsay rule developed rapidly. The increasing role of criminal defense counsel seems to have been largely responsible for the change. Defense lawyers recognized the potential value of cross-examination whenever the probative value of adverse evidence depended in part on the capacities of an observer to perceive, remember, and describe an event or condition and on her inclination to communicate accurately. By the early years of the nineteenth century, then, something like the modern definition of hearsay—an out-of-court statement offered to prove the truth of a matter that it asserted—had emerged. And indeed, in 1838, the rule against hearsay reached its high-water mark, when the House of Lords held in effect, in the famous case of ..., the rule described a vast category of evidence, including but reaching far beyond the relatively...
- ...her, the police pressed Sylvia and Mike further. They each agreed to give another statement, again audiotaped and under considerable formality. Now their stories were more congruent with each other, and put them in a far more aggressive light: The sexual assault had occurred several weeks earlier, during the period of estrangement, and Mike had been nowhere near the scene. But mention of it during the afternoon’s bout of drinking had prompted Mike to say that Kenny “deserve[d] a ass-whoopin’.” And so they set off to find Kenny. He came to the door of his apartment, and there the fight occurred. On one crucial issue, however, Mike and Sylvia’s accounts were subtly different. Mike indicated that before the stabbing he thought Kenny had reached inside his pocket for something, though he admitted he could not be sure. Sylvia seemed not to believe that Kenny had reached for anything before Mike stabbed him. But Syliva acknowledged some difficulty in giving a detailed rendition...
- But Jeff did not rest there. As I mentioned at the beginning of this story, his petition included a second part that asked the Court to discard the entire
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About the Authors 14 results (showing 5 best matches)
- Evidence: Text, Problems and Cases
- is the Edward L. Barrett, Jr. Professor of Law at the University of California, Davis. He is the author or coauthor of over 80 law review articles. His writings include six multi-volume evidence treatises as well as several other texts. One treatise,
- is a professor at the UCLA School of Law. She received an A.B. from Harvard College, a J.D. from Yale Law School, and a Ph.D. in the History and Social Study of Science and Technology from M.I.T. She teaches evidence, torts, and a variety of seminars. Mnookin’s scholarship focuses on expert evidence, evidence theory, and the intersections between law, science and culture. She has published articles on fingerprint evidence, photographic evidence, handwriting identification
- is the Henry S. Lindsley Professor of Procedure and Trial Advocacy at the University of Colorado Law School, where he has taught since 1985. Professor Mueller writes extensively in the area of Evidence law. His books, written with his friend and collaborator Laird C. Kirkpatrick, include
- is Professor of Law at Georgetown University Law Center, specializing in evidence, torts, and other subjects related to civil and criminal litigation and the judicial process from the Supreme Court on down. A former Washington, D.C. practitioner, Oxford University Fulbright Scholar, and law review editor-in-chief, his publications as author or co-author (with Myrna Raeder, David Crump, and/or Susan Crump) include the books
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Chapter 8. The Daubert Trilogy and the Law of Expert Testimony (Daubert v. Merrell Dow Pharm., Inc.; General Elec. Co. v. Joiner; Kumho Tire Co. v. Carmichael; FRE 702: The Judge’s Role as “Gatekeeper”) 62 results (showing 5 best matches)
- The story of how we arrived at our current treatment of scientific evidence does not begin with Bendectin but rather with a precursor of the modern polygraph and a 1923 decision, one of the rare lower court decisions with influence like that of a Supreme Court holding. In that case, the D.C. Court faced the problem of defining the point at which a “scientific principle or discovery crosses the line between the experimental [or inadmissible] and demonstrable [or admissible] stages.” The court held that, when a scientific technique attains “general acceptance in the particular field in which it belongs,” trial courts may admit heretofore novel scientific evidence. The court went on to hold that the polygraph had “not yet gained such standing and scientific recognition among physiological and psychological authorities,” and so refused to admit the evidence.
- Jason Daubert and Eric Schuller were born with serious limb reduction defects. During pregnancy, their mothers had taken Bendectin, a prescription antinausea drug that they would later claim was the cause of the defect. Because birth defects result even when Bendectin is not prescribed, the causal relationship between Bendectin and the boys’ limb reductions would become the critical issue. From these tragic facts, the journey to one of the most important evidence cases ever decided, trilogy. This is a story of the clash of science and law, or at least some views of science, and of the advent of scientific terms such as “falsifiability” in the legal lexicon. It is also the story of the triumph of the conservative political movement’s tort “reform” efforts. This victory, however, left that movement in an embarrassing position—supporting higher admissibility standards in money-damage cases than in death penalty prosecutions.
- But the implications of legal policies are, as the story of “We wanted,” she said, “to go to court—have our day in court.” They won in the Supreme Court but did not win the policy that they and others thought they had gained that day: the freer admissibility of expert evidence and trial by jury. The decision on remand made that clear. Whether justice won is a different question. Given the number of epidemiological studies that had been done and the fact they pointed in one direction, it is easy to argue that justice prevailed in both the Supreme Court and the Ninth Circuit on remand, but other plaintiffs have lost in situations where the justice of exclusions has not been as clear. Also, as we have seen, on the criminal side, the failure of judges to scrutinize forensic science evidence with the rigor
- Here, we need to pause our story and consider how this “oversight,” so vibrant in hindsight, came to be. The answer is rather straightforward. For most of the period between 1923 and 1970, the scientific techniques confronting the courts did not raise significant scientific evidence. A 1966 amendment to Federal Criminal Rule 16, which governs the pretrial disclosure of scientific reports in criminal litigation, provides some insight into the types of expert testimony used during this period. The accompanying committee note mentioned reports of “fingerprint and handwriting comparisons.” Ballistics, blood, paint, fiber, and autopsy reports could be added to this list. None of these techniques presented
- attack on fingerprint evidence came in to support the defense challenge. The Third Circuit felt compelled to comment: “We are deeply discomforted by Mitchell’s contention—supported by Dr. Rau’s account of events, though contradicted by other witnesses—that a conspiracy within the Department of Justice intentionally delayed the release of the solicitation until after Mitchell’s jury reached a verdict. Dr. Rau’s story, if true, would be a damning indictment of the ethics of those involved.”
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Chapter 11. Mutual Life Insurance Company v. Hillmon, 145 U.S. 285 (1892) 6 results (showing 5 best matches)
- 145 U.S. 285 (1892), considered an appeal from a trial court’s judgment in favor of the plaintiff, a young woman who had sued three life insurance companies for payment of the proceeds of policies they had issued against the life of her husband, John Hillmon. The Supreme Court’s decision is one of the most famous texts in the law of evidence. The portion of the case in which Mr. Gray presents the Supreme Court’s version of the story is reproduced here.
- The defendants put in evidence the envelope with the postmark and address, and thereupon offered to read the letter in evidence. The plaintiff objected to the reading of the letter. The court sustained the objection, and the defendants excepted.
- At the trial plaintiff introduced evidence tending to show that on or about March 5, 1879, Hillmon and Brown left Wichita, in the state of Kansas, and traveled together through southern Kansas in search of a site for a cattle ranch; that on the night of March 18th, while they were in camp at a place called “Crooked Creek,” Hillmon was killed by the accidental discharge of a gun; that Brown at once notified persons living in the neighborhood, and that the body was thereupon taken to a neighboring town, where, after an inquest, it was buried. The defendants introduced evidence tending to show that the body found in the camp at Crooked creek on the night of March 18th was not the body of Hillmon, but was the body of one Frederick Adolph Walters. Upon the question whose body this was there was much conflicting evidence, including photographs and descriptions of the corpse, and of the marks and scars upon it, and testimony to its likeness to Hillmon and to Walters.
- The defendants introduced testimony that Walters left his home at Ft. Madison, in the state of Iowa, in March, 1878, and was afterwards in Kansas in 1878, and in January and February, 1879; that during that time his family frequently received letters from him, the last of which was written from Wichita; and that he had not been heard from since March, 1879. The defendants also offered the following evidence:
- The court, after recapitulating some of the testimony introduced, instructed the jury as follows: “You have perceived from the very beginning of the trial that the conclusion to be reached must practically turn upon one question of fact, and all the large volume of evidence, with its graphic and varied details, has no actual significance, save as the facts established thereby may throw light upon and aid you in answering the question, whose body was it that on the evening of March 18, 1879, lay dead by the camp fire on Crooked Creek? The decision of that question decides the verdict you should render.”
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Chapter 6. The Story of Swidler & Berlin v. United States: Death and the Privilege (FRE 501: Attorney Client Privilege: Survival After the Client’s Death) 18 results (showing 5 best matches)
- The term “Whitewater” is used in this story to include the entire investigation into the activities of the President and Mrs. Clinton in connection with various matters including Whitewater Development Corporation, Madison Guaranty Savings & Loan Association and Capital Management Services. There are several full accounts of this matter, including the S
- 524 U.S. 399 (1998). Mr. Foster’s death was involved in a second United States Supreme Court case not concerning the attorney-client privilege and not the subject of this story. In National Archives and Records Admin. v. Favish, 541 U.S. 157 (2004), the Court declared that, under the Freedom of Information Act, Vincent Foster’s surviving family members had a right to personal privacy with respect to Mr. Foster’s death-scene images that outweighed any public interest in disclosure.
- The petition pointed to the conflict between the Court of Appeals decision and the prevailing state cases, citing numerous criminal and civil cases in which the evidence of communications between a deceased person and that person’s attorney was excluded. The petition noted that the only contrary authority was from a mid-level state appellate court.
- Justice O’Connor raised the issue of the disclosure of information where evidence is sought to show that a third person is not guilty of a crime. Hamilton answered that there may be constitutional considerations in that instance, giving rise to Justice Scalia’s interjection, “there goes your absolute rule.”
- The opinion found the potential for loss of evidence more apparent than real. It noted that, in this case, Vincent Foster, “perhaps already contemplating suicide may not have sought legal advice from Hamilton if he had not been assured the conversation was privileged.”
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Chapter 7. The Story of Upjohn v. United States: One Man’s Journey to Extend Lawyer-Client Confidentiality, and the Social Forces That Affected It (FRE 501: Attorney-Client Privilege: Applicability to Corporations) 14 results (showing 5 best matches)
- But many of the stories he heard undoubtedly involved more significant payments, to people as low on the chain as purchasing agents, or as high as the head of a major governmental department, or even higher, in more questionable circumstances. Thomas does not feel free to talk about those. But he says he told the employees that the questionable payments must stop.
- case. But we are getting ahead of the story.)
- In the District Court in cases of this kind, a Magistrate—an assistant to the District Judge—normally hears the case first. The Magistrate listens to witnesses, examines documentary evidence, and considers points of law raised by both sides, and then makes a recommendation to the District Judge, supported by detailed reasoning, concerning whether or not to enforce the summons. The District Judge can adopt, reject, or modify the recommendation. Sometimes the Judge takes additional evidence, or sends the case back to the Magistrate to hear more evidence or make additional findings or clarifications. After the District Judge finally rules, a dissatisfied party can appeal to the Court of Appeals, and thereafter to the Supreme Court, if the Supreme Court thinks the issue is important enough.
- [By Nowak]: Well, I feel that those files may contain evidence that would indicate that there is in fact a tax implication involved in payments which the company has alleged have no U.S. tax implication. These files may contain leads or other evidence that would have a relationship to those payments that the company does admit have a U.S. tax implication. I believe that it would—if it served no other purpose—it would help me corroborate the company’s position that there is no tax impact, if that is what the facts would show upon my investigation of the files.
- The attorney-client privilege provides that, with certain exceptions, confidential communications between an attorney and her client are not to be received as evidence in judicial and similar proceedings. Originally based on a notion of the lawyer’s honor (a gentleman would not reveal the confidences of another), today the privilege is supported on other grounds. Combined with the roughly parallel ethical obligation of attorneys not to disclose client information in venues outside of those covered by privilege, the privilege is believed to encourage clients to truthfully reveal to the attorney everything the client knows that might bear on the legal advice sought by the client, regardless of whether the advice is sought to prepare for litigation or for other legal purposes. The lawyer’s ability to provide sound legal advice is thought to provide a number of social benefits that more than compensate for any loss of evidence—not the least of which is that the lawyer may be able to...
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Chapter 15. Chambers v. Mississippi: A New Justice Meets An Old Style Southern Verdict (Compulsory Process, Due Process) 30 results (showing 5 best matches)
- Westen was not willing to concede quite that much, stressing instead a theory of the presumptive right of a defendant to offer exculpatory evidence and the obligation of the state to overcome that presumption. Justice Powell’s question seemed to signal that certain members of the court were groping for a solution that could free Chambers without upsetting a vast body of criminal evidence law.
- has created a powerful, if ill-defined, constitutional principle. Its reliance on the Due Process Clause of the Fourteenth Amendment to address an apparent unfairness worked by a well-established evidence rule opens the way to review of the rule-based exclusion of almost any sort of proof important to a criminal defendant’s case. It has, as already noted, been used to overturn a ban on the introduction of hypnotically enhanced testimony despite the acknowledged risk that hypnosis may render evidence unreliable. and its progeny seem to be grounded in Compulsory Process Clause notions about providing each criminal defendant a fair opportunity to assemble evidence and present witnesses in his or her defense. These cases have, however, steered clear of the potentially sweeping implications of compulsory process—a basis for decision that might be held to invalidate denial of access to or exclusion from evidence of all forms of exculpatory material. Instead the Court has emphasized the...
- case. By a vote of 7 to 2 the Court reversed the Mississippi Supreme Court’s decision. Justice Powell delivered the opinion of the Court. Powell began by reciting the now familiar story of attempted arrest, melee, gunfire and death. Powell signaled his skepticism of the State’s case throughout this early part of the opinion. Powell next turned to Gable McDonald, concentrating attention on McDonald’s suspicious behavior and multiple confessions. Rejecting the State’s argument that the jury had gotten a clear picture of the defendant’s claim, Powell concluded:
- posed a significant challenge to the defendant’s position. In that case the Court had decided that, in federal trials, statements against penal interest, including those exculpating a criminal defendant on trial for the same crime, could be excluded as hearsay. It had stood for 60 years and allowed just the sort of evidentiary ruling Chambers claimed was unconstitutional. The way around this problem was far from clear. If the Court held that the Constitution required unfettered admission of exculpatory evidence then not only and the hearsay rule but all the rules of evidence could be overthrown whenever a defendant sought to introduce exculpatory evidence. This was a radical notion and not one likely to appeal to the Supreme Court. The key for Chambers lay in arguing that the particular combination of restrictions imposed by Mississippi posed a unique and irrational hardship.
- Westen told the Court that the case arose out of a “racial disturbance” and that the evidence against Chambers was “practically non-existent.” The Justices followed Westen’s lead asking friendly questions about the “other man” (McDonald). The most difficult trial testimony facing Chambers was Officer Geter’s claim to have seen the accused shoot Liberty. Westen attacked it vigorously, belittling Geter’s claim and emphasizing evidence that this alleged eyewitness was seen the next day “asking members of the black community if they knew who shot Liberty.”
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- Publication Date: July 12th, 2007
- ISBN: 9781599410067
- Subject: Evidence
- Series: Law Stories
- Type: Overviews
- Description: This publication contains essays by leading evidence scholars discussing the stories behind landmark cases and illuminating principles and materials across the evidence curriculum. The seldom-told stories behind cases in which evidence plays a significant role are told with important illustrations of the development, application, and importance of the rules of evidence.
