20 chapters
have results for evidence
Chapter 13. The Wisdom of Dallas County (Dallas County v. Commercial Union Assurance Company; FRE 807: Residual Exception) 51 results (showing 5 best matches)
- 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.
- 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
- 4. The prohibition of hearsay evidence is not absolute; “[a]ll too often primary evidence is not available and courts and lawyers must rely on secondary evidence” (p. 392).
- In offering this evidence, defendants likely were responding to the possibility that the jurors would find the county’s claim more credible if they were given no evidence of an explanation for the charred timbers other than lightning.
- The adoption of the Federal Rules of Evidence in 1975 was a watershed event in the history of the law of evidence. The new rules were intended to liberalize the admissibility of evidence generally, and hearsay was no exception. In particular, the decision in was well known to the drafters of the new rules, if only because it was featured in a number of evidence casebooks of that era. They understood that “[i]t would be presumptuous to assume that all possible desirable exceptions to the hearsay rule have been catalogued and to pass the hearsay rule to oncoming generations as a closed system,” and that they needed to “provide for treating new and presently unanticipated situations which demonstrate a trustworthiness within the spirit of the specifically stated exceptions.”
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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) 35 results (showing 5 best matches)
- 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...
- is nevertheless noteworthy. It is noteworthy, first, because of its surprisingly pristine facts. Evidence in real-world cases is ordinarily messy and usually harbors many uncertainties. The result of such messiness and uncertainty is that in most appeals there is substantial uncertainty that the issues submitted on appeal are actually raised by the evidence in the case. was seemingly different in this respect. The evidence and the facts in Radziwil were remarkably unambiguous.
- The significant issue presented by [Radziwil’s] appeal is whether evidence that a defendant regularly became intoxicated every weekend at a particular bar is admissible as evidence of a habit to prove that defendant was intoxicated at the time of the automobile collision which resulted in his conviction for aggravated manslaughter and death by auto.
- Charles McCormick, who wrote a classic and influential hornbook on the law of evidence, saw a clear distinction between character and habit. Habit, he argued is a recurring response to a specific situation that has become semi-automatic. Courts have quoted and embraced Dean McCormick’s explanation on numerous occasions. But the drafter of the 1983 revision of the first volume of Wigmore’s monumental treatise on the law of evidence did not find the distinction so easy to make. He nonetheless argued for the admission of habit evidence even if habit is a species of character because habit, he thought, is ordinarily more probative than the kinds of propensity evidence that elicit the characterization “character.” He also argued that if the probative value of habit is the key to its admissibility, then fully volitional repetitive behavior should be admissible, if it is probative of the issues in a case.
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About the Authors 14 results (showing 5 best matches)
- 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
- The New Wigmore: A Treatise on Evidence
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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) 56 results (showing 5 best matches)
- 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
- What’s Wrong with Character Evidence?,
- Three basic points about character evidence are not addressed in case that in federal litigation other bad acts only have to be proved by a preponderance of the evidence—not by proof beyond a reasonable doubt, nor even by clear and convincing evidence (the standard many courts had adopted). the Court held that the jury decides this point, subject only to the power of the judge to reject the evidence if it is so weak that it cannot reasonably form the basis of a conclusion that the act was committed. Finally,
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Introduction 7 results (showing 5 best matches)
- A Modern Approach to Evidence
- 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...
- 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...
- 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.
- 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
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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) 34 results (showing 5 best matches)
- 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.…
- As we shall see, the Eighth Circuit rejected the appellees’ arguments and upheld the plaintiff-appellants claims of error. To better understand the contribution of the court’s decision to the developing interpretation of the Federal Rules of Evidence, it is necessary to look first at the preexisting law regarding both party and employee admissions. Prior to 1975, there was no general body of distinct, independent federal evidence law. Federal Rule of Civil Procedure 43 mandated that federal courts apply a mixture of federal statutory evidence law, federal “equity” evidence law, and the evidence law of the state in which the court was located. Missouri law was thus a significant part of what a federal district judge in Missouri would use to decide evidentiary disputes prior to 1975.
- Federal and State Evidence Law Prior to the Federal Rules of Evidence
- Brooks, Report, New Jersey Supreme Court, Committee on Evidence 165–167 (1963) (discussing Uniform Rule of Evidence 63(9)(a)).
- Model Code of Evidence rule 508 (1942) and Uniform Rule of Evidence 63(9)(a) (1953).
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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)
- 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...
- , but also that the English precedents reached a sensible result. On the one hand, they respected the policy underlying the character evidence prohibition by forbidding the prosecution from treating the accused’s uncharged misconduct simply as proof of the accused’s bad character. On the other hand, they permitted the introduction of evidence that was highly probative on the key issue of whether the death in question was accidental or the result of an trial judge had “properly allowed” the evidence of the other cyanotic episodes.
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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”) 61 results (showing 5 best matches)
- , or some other reliability test, but the quality of the information before the court. This, in turn, requires confronting a larger policy issue: Who should be responsible for producing that information? Typically, the proponent of evidence has the burden of persuasion, but another well-recognized principle allocates the burden to the party with the greatest access to the evidence. The latter principle is generally ignored in determining whether scientific evidence should be admitted and when summary judgment should be granted.
- Moreover, an evidentiary standard cannot be viewed without context, without understanding the substantive and procedural rules that frame the issue. In short, many of the most important questions surrounding the admissibility of scientific evidence in courts and other fora involve neither science nor evidence issues. They are policy issues, pure and simple.
- was decided, admitting DNA evidence under the Second Circuit wrote that “by loosening the strictures on scientific evidence set by reinforces the idea that there should be a presumption of admissibility of evidence.” Several polygraph cases also underscored this view. In the Fifth Circuit stated that “the rationale underlying this circuit’s per se rule against admitting polygraph evidence did not survive
- was abuse-of-discretion, a standard adopted without even considering the principal alternative standard: de novo review. The Court’s position suggested that admissibility decisions would not be second guessed on appeal and thus trial courts gained more leeway in admitting evidence. In contrast, a de novo review standard would have given appellate courts more authority to control junk science. But was a case in which the trial court had excluded evidence offered by the plaintiff and then, finding the plaintiff had offered insufficient admissible evidence to make out a , approved the exclusion of scientific evidence.
- “requires a district court to admit opinion evidence that is connected to existing data only by the of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.” Finally, the Court commented that, “while the Federal Rules of Evidence allow district courts to admit a somewhat broader range of scientific testimony than would have been admissible under , they leave in place the ‘gatekeeper’ role of the trial judge in screening such evidence.” The term “somewhat” is riveting. The language had presaged that a great deal more evidence would be admissible under
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Chapter 15. Chambers v. Mississippi: A New Justice Meets An Old Style Southern Verdict (Compulsory Process, Due Process) 26 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...
- 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.”
- citations more than 2,600 employ the doctrines set forth in the case in their ruling. Roughly speaking, there have been three points that are stressed. First, the case is viewed as standing for the proposition that the rules of evidence and procedure cannot be mechanistically applied to defeat the ends of justice (the thrust of approximately 29 percent of the cases). Second, the case is seen as urging that evidence bearing substantial indicia of reliability should be admitted even if it violates an established rule of evidence (the point in about 20 percent of the cases).
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Chapter 9. People v. Castro: Challenging the Forensic Use of DNA Evidence (FRE 702; 703: Scientific Evidence) 54 results (showing 5 best matches)
- arguably inaugurated a radical, though perhaps in the end, temporary, shift in the evaluation of DNA evidence. Prior to , no court had even come close to rejecting DNA evidence. But made it clear that DNA evidence was vulnerable, and enterprising defense attorneys poked and prodded those vulnerabilities in numerous subsequent cases across the country over the next several years, leading a number of courts to reject DNA evidence altogether, something that would have been nearly unthinkable prior to
- Given this state of affairs, it is not all that surprising that the early judicial opinions about DNA evidence not only deemed the technique admissible, but sometimes engaged in rhetoric that borders on the reverential. For example, in , the first trial judge in New York State to consider the admissibility of DNA evidence wrote:
- was an example of a growing trend by the courts to engage in the substantive assessment of the reliability of expert evidence, a trend that has only grown over the years since that the Federal Rules of Evidence did not incorporate the test of general acceptance, but that trial courts nonetheless had an obligation to serve as gatekeepers with respect to expert evidence to ensure that it was sufficiently valid and reliable. test, there has been an undeniable, though uneven, trend to examine expert evidence with increased scrutiny. Whether courts should be in the business of assessing the substance of scientific evidence—whether they have the know-how or the institutional competence—are certainly fair questions. But is of a piece with this more general trend over the last several decades to examine scientific evidence proffered in court with increasing detail and care.
- may perhaps be a beacon. There are significant debates going on right now about many other kinds of forensic evidence, and precisely what and how much evidence of reliability the courts ought to require from them. The substance of the preliminary hearing in —an idea that, if taken to its logical extreme, could make many kinds of commonly-used forensic evidence, from fingerprint identifications to expert document examination to ballistics analysis inadmissible in court until additional research is done to establish the validity of the claims to which forensic experts routinely testify.
- DNA comparison rather than recognizing problems with forensic DNA analysis more generally. Given the many embarrassing revelations that had emerged at trial, and considering the consensus view by the end of the hearing of nearly all of both sides’ experts, that this particular DNA test could not be validly interpreted, an opinion that rejected the DNA evidence in this case without formally casting any doubt on the forensic use of DNA more generally was about the best outcome that the prosecution could have reasonably hoped for. In fact, in their final brief, the prosecution acknowledged that the DNA evidence in this case was insufficiently reliable: “Here, the People believe that we have not met our burden of demonstrating by a preponderance of the evidence that the accepted scientific techniques were utilized in this case. The scientific evidence generated in this case, as a whole, is too ambiguous to be admissible in a criminal case.”
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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) 28 results (showing 5 best matches)
- The opinion’s significance for evidence rules is almost as profound, because it affects them in two different ways. First, helped establish new ground rules for interpreting the federal evidence provisions, by making clear that their plain meaning does not always govern. Second, it was the first case in which the Court explicitly recognized that evidence rules, including those meant to further societal goals, could be waived by individual litigants, a precedent that has far-ranging implications for criminal and civil law practice.
- teaches an important lesson for interpretations of the Rules of Evidence.… convincingly demonstrates, if it had not been clear before, that the Federal Rules of Evidence cannot simply be treated as a self-contained code in which the text alone embraces the answer to all evidence questions. Sometimes we must look beyond the words of the Rules to understand evidentiary doctrine.
- 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.
- Perhaps the justices were not worried about the latter scenario because they assumed that parties will not engage in such waivers unless the evidence is relatively harmless to both sides. But obviously allows a waiver that permits introduction of evidence clearly harmful to one side. Given might permit a prosecutor to make plea negotiations conditional on a relinquishment of Rule 404’s protection against proof of prior crimes to prove character. Or perhaps the prosecutor could impose a waiver of the limitations on impeachment evidence found in Rules 608, 609 and 610. One might argue that the protections behind these rules are not waivable because they are “
- Chier correctly objected, without citing Rule 410, that “[d]iscussions as part of a case settlement are by policy excluded from evidence,” Mezzanatto transcript, settlement negotiations) and “Kastigar” (the latter objection referring to the rule that government must show an independent source for evidence that appears to be derived from immunized or inadmissible evidence). Id. at 236. After ...and stated “You keep thinking, don’t pay attention to what we are doing.” Id. Chier’s confusion about how to handle evidence about the negotiation meeting was also apparent when, during Moreland’s cross-examination, Chier himself started asking questions about the plea meeting! He was only stopped in this effort when Harrigan suggested, at a sidebar, “I don’t want to try your case, but it is not going to help you.” Id. at 99. And toward the end of the trial Chier seemed to admit he was at sea on the issue. Id. at 303 (“I just discovered the … I don’t know how this happened. My life has...
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Table of Contents 4 results
- People v. Castro: Challenging the Forensic Use of DNA Evidence (FRE 702; 703: Scientific Evidence)
- 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)
- Of Misshapen Stones and Compromises: Michelson and the Modern Law of Character Evidence (Michelson v. United States; FRE 405: Cross-Examination of Character Witnesses)
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Chapter 11. Mutual Life Insurance Company v. Hillmon, 145 U.S. 285 (1892) 6 results (showing 5 best matches)
- 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.”
- 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
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Chapter 1. Green Felt Jungle: The Story of People v. Collins (FRE 403: Probabilistic Evidence) 26 results (showing 5 best matches)
- 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’
- 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
- These suggestive details of the Collinses’ lives have faded in the forty years since their trial, leaving only the mixed-race couple in the partly yellow car. They survive as a classroom hypothetical—an evidence-law cliché. They are not the Collinses but the
- It appears that the evidence would be more favorable to defendant than to [the prosecution], since the probability of the hypothetical factors occurring would be so remote (1 in 12,000,000) as to render the testimony of the prosecution witnesses (with reference to identifying the persons who perpetrated the robbery) highly improbable.
- rob Mrs. Brooks. No evidence suggested that Mrs. Brooks and Mr. Bass lied or even that they were (badly) mistaken. Contrary to the court’s conclusion, therefore, the more “improbable” the guilty couple’s characteristics, the worse things looked for the Collinses, who happened to share those characteristics.
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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) 11 results (showing 5 best matches)
- 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...
- Further fueling the modern trends that increase the risk of the crime-fraud exception applying, is a progressive erosion of the quantum of proof required to show that the exception applies. Few courts require that it be proved by even a preponderance of evidence. Most require only a “prima facie case”—often defined in this area as a showing that would justify a reasonable person in thinking that a crime or fraud may be involved, without receiving counter-evidence or hearing, cross examination or impeachment of the witnesses who make out the prima facie case or any other appraisal of their credibility. Furthermore, the Supreme Court has held that a judge may hear or inspect
- A dwindling number of state courts still apply a control group test. The Uniform Rules of Evidence, recommended to the states by the National Conference of Commissioners on Uniform State Laws and by the American Bar Association, incorporated the subject-matter test into its attorney-client privilege provision, after 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) 41 results (showing 5 best matches)
- Professor Maguire’s account does give us some information about the circumstances in which the Hillmon case was heard by the Supreme Court. He relates that Justice Horace Gray, who was assigned to write the opinion of the Court, had at the time a remarkably competent secretary (today we would say law clerk): Ezra Ripley Thayer, later to become Dean of the Harvard Law School and a noted evidence teacher and scholar. Maguire relates that Thayer’s “rough working notes on evidence” (to which Maguire apparently had access) reveal that the Court in conference voted to overturn the trial court’s evidentiary ruling ...those might be. Thayer’s notes also claim that Justice Gray was in “dense darkness” about how to undo the ruling excluding the letter until Thayer “fed him with matter obtained with J.B.T.”—that is, from James Bradley Thayer, the young secretary’s father, himself a Harvard law professor and Wigmore’s predecessor as the nation’s preeminent treatise writer on the law of evidence...
- 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...
- enforce a negative answer to the latter questions while admitting the statement to prove the speaker’s own intentions. How exactly is a jury to make use of an instruction that it may consider the statement “I intend to go traveling with John pursuant to our agreement” as evidence of the speaker’s intentions, but not as evidence of either John’s intentions, or that the speaker and John had discussed the plan?
- The rule applicable to this case has been thus stated by this court: “Wherever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings are original and competent evidence. Those expressions are the natural reflexes of what it might be impossible to show by other testimony. If there be such other testimony, this may be necessary to set the facts thus developed in their true light, and to give them their proper effect. As independent, explanatory, or corroborative evidence it is often indispensable to the due administration of justice. Such declarations are
- With this reasoning, the Court reversed the trial judge and sent the case back to be tried anew, directing that the evidence about the letters be allowed.
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Chapter 14. The Story of Crawford (Crawford v. Washington: Confrontation) 6 results (showing 5 best matches)
- 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...
- This procedure was not uniformly followed. In some politically charged cases in the sixteenth and early seventeenth century, particularly treason cases, the Crown presented evidence that had been taken out of the presence of the petitioner. The case of Sir Walter Raleigh was the most notorious of these, but not the only one. Statutes passed under Queen Mary in the middle of the sixteenth century required justices of
- ruled in 1696 that, even if a witness were unavailable at trial, his prior testimony could not be introduced against the accused if the defendant had not had an opportunity for cross-examination. And most of the courts following the Continental model, including the Star Chamber, did not survive the political upheavals of the era. Equity courts continued to take evidence in the Continental style, but they did not have criminal jurisdiction. If a witness was unavailable at trial in a common law court, depositions taken in equity could be admitted, but only if the adverse party had had an adequate opportunity to pose questions in writing.
- With so much intellectual energy focused on the rule against hearsay, the independent role of the confrontation right—as a categorical prohibition of testimonial evidence offered against the accused without offering him an opportunity to be face-to-face with the witness and cross-examine her—became obscured. I believe many decision-makers still had a rough intuitive sense of where the right applied, and this sense almost unconsciously helped shape the rule against hearsay and helped prevent results from being altogether intolerable.
- a court could not rely on evidence corroborating the challenged statement but instead had to limit itself to circumstances “that surround the making of the statement and that render the declarant particularly worthy of belief.”
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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) 16 results (showing 5 best matches)
- 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.”
- The Chief Justice conceded that Federal Rule of Evidence 501’s dictate to look to “the principles of the common law … in the light of reason and experience” does not mean that a rule should endure for all time. Here, however, the Independent Counsel has “simply not made a sufficient showing to overturn the common-law rule embodied in the prevailing case law.”
- Where exoneration of an innocent criminal defendant or a compelling law enforcement interest is at stake, the harm of precluding critical evidence that is unavailable by any other means outweighs the potential disincentive to forthright communication. In my view, the cost of silence warrants a narrow exception to the rule that the attorney-client privilege survives the death of the client
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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.