Law Of Evidence Research Articles

On the Supposed Jury-Dependence of Evidence Law

If there were no juries, would there be a law of evidence? And should there be? These questions are not about whether this or that rule of evidence owes its existence to the institution of the jury, and are thus not about whether particular evidence rules should be modified or eliminated when juries are not present. Nor are they about those many rules of evidence that are premised on such wildly mistaken folk wisdom about jury behavior that they are in desperate need of modification or elimination in light of what we now know from the social sciences about how people in general and juries in particular actually decide and deliberate. Rather, my question is whether the law of evidence, in the large, is so substantially a product of the institution of the jury itself that if juries did not exist, then vast swaths of evidence law would, and should, not exist as well. This question is not merely of academic or historical interest. Numerous American trial judges, echoing what scholars since Jeremy Bentham have urged, essentially discard large chunks of the law of evidence when they sit without a jury. Time and again, especially in civil litigation and more than occasionally even in criminal cases, objections to the admissibility of evidence are met with the judicial re-

“Particular Intentions”

The case of Mutual Life Insurance Company v. Hillmon is one of the most influential decisions in the law of evidence. Decided by the Supreme Court in 1892, it invented an exception to the hearsay rule for statements encompassing the intentions of the declarant. But this exception seems not to rest on any plausible theory of the categorical reliability of such statements. This article suggests that the case turned instead on the Court’s attachment to a particular narrative about the events that gave rise to the case, events that produced a corpse of disputed Identity. The author’s investigations into newspaper archives and the original case documents make the case for a different account, and propose that this important rule of evidence may have grown out of a historical error, committed by a Court too eager to narrate an attractive story.

Questions on the law of evidence in plant variety infringement proceedings

Questions on the law of evidence in plant variety infringement proceedings

Case Management, Similar Fact Evidence in Civil Cases, and a Divided Law of Evidence

It is widely assumed that, by virtue of their acquired professional skills, judges are markedly better than jurors at performing complex adjudicative tasks and that they are less susceptible to the cognitive distortions that affect lay minds when handling emotive or potentially prejudicial information. Taking its cue from the House of Lords recent decision in O'Brien concerning the admissibility of ‘similar fact evidence’ in civil proceedings, this article reviews existing experimental data which point strongly in the opposite direction. The advent of case management, in both civil and criminal cases, looks set to encourage a system in which the quantity and nature of evidence placed before the tribunal may be influenced by the tribunal's composition. This development is likely to reinforce the assumption of judicial superiority evident in existing procedural rules. Yet if judges share many, if not most, of the cognitive foibles of non-professional fact-finders, it is questionable—in the absence of further study—whether a divided law of evidence would be desirable or justified.

The Death of a Youth and of a Drunkard: A Remarkable Story of Habit and Character in New Jersey

In many ways the case was unremarkable. It involved a traffic fatality that may have involved drunken driving, a tragic but common occurrence. This unremarkable case - the criminal action of State of New Jersey v. Petro Radziwil, Indictment No. 1257-8-86 - is nevertheless noteworthy. Radziwil raises important questions about an important part of the law of evidence: the relationship between habit evidence and character evidence. But the questions that Radziwil presents reach beyond the 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 plights 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 people - criminal defendants and witnesses - that they routinely encounter while performing their assigned chores in the criminal justice system. The story of Radziwil illustrates how personal likes and dislikes, and the prejudices of actors in the criminal process, can affect the outcomes of criminal proceedings. The story of Radziwil also raises the question of whether much can be done to scrub the criminal process clean of the influence of the biases and emotions of the people who shape that process.

The Story of Rule 410 and United States v. Mezzanatto: Using Plea Statements at Trial

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. Twenty years later, in United States v. Mezzanatto, the United States Supreme Court held that a criminal defendant may waive the protection provided in these rules. This paper, to be published in Foundation Press' Evidence Stories, is the story of those rules and that case. The story behind the adoption of Rule 410 and its sister rule of criminal procedure is byzantine, but is worth telling because it exemplifies how Congress uses evidentiary rules to promote public policy, in this case a policy bolstering plea bargaining. The story of Mezzanatto is even more important because, despite its relative anonymity, it has had a major impact on criminal procedure and may soon have the same type of impact on evidence law. Using Mezzanatto as a springboard, the lower courts have put a serious dent in Rule 410, to the point where waiver of its protections is now the norm and the options of defense attorneys who go to trial after failed negotiations are severely restricted. Indeed, today an argument can be made that Mezzanatto is the most important decision on plea bargaining since Santobello v. New York explicitly authorized the practice. The opinion's potential significance for evidence rules is almost as profound, because it affects them in two different ways. First, Mezzanatto 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.

The Narrative Fallacy

This article uses narrative theory to apply a critical analysis to holistic evidence theory. As an alternative to evidentiary holism, we present traditional atomism as a system geared to the protection of defendants against the adverse influence of prevalent hegemonic narratives, which contributes to and strengthens educational symbolic values (such as the commitment to judging the actions of the accused rather than the accused herself, or the presumption of innocence) as well as protecting marginalized groups in society (including accused people generally). We do not challenge the argument regarding the importance of and perhaps even the need for narrative, as a method of granting meaning to human experience. We do challenge the normative implications commonly drawn from these theories. In this context we present and critique Professor Allen's theory of Relative Plausibility, and Professor Burns' endorsement of freedom of proof. We emphasize the importance of general principles of evidence law (such as Rule 403, in the Federal Rules of Evidence) and the admissibility rules (such as the inadmissibility of hearsay and opinion) as brakes that impede narrative freedom, requiring reference to questions of the credibility of information used by adjudicators, and the personal credibility of their sources. We also analyze the rule regarding character evidence and evidence of disposition as brakes on inferences based on generalizations which are constructed in the dominant stories of communities. We define the Narrative Fallacy as an erroneous heuristic, through which fact finders, attempting to use narratives in order to make sense of insufficient information, mistakenly choose the wrong narrative and so end up distorting the evidence presented. The paper situates the Narrative Fallacy alongside, but independent of, the intuitive statistical judgment fallacies defined and demonstrated in the research of Kahneman, Tversky, and other scholars.

Rules of Evidence for the Use of Force in International Law’s New Era

International law is ready for a period of renewal in this post-post-modern era. I predict this renewal will come from reviving classical doctrines, such as the positive-law doctrine of sources, and from revisiting formalism, (1) Such renewal will not be possible for the international law of evidence because there is no classical doctrine. Perhaps, as Charles Brower suggests, this is because of the differing civil and common law attitudes toward the rules of evidence, especially with respect to the burden of proof. (2) It seems to me, however, that we need a law of evidence in international law, especially for the international law on the use of force. Rules regulating force need to be as clear as possible and so do the roles that support the substantive principles, such as the law of state responsibility and the law on evidence--the clearer the rules, the less discretion available to states, and the greater the chance of actually restraining the use of force in international law. Plainly international law does not currently have a well-developed body of evidentiary rules on the use of force. According to Lobel: Questions involving the standards and mechanisms for assessing complicated factual inquiries are generally not accorded the same treatment given by the legal academy to the more abstract issues involved in defining relevant international law standards. Unfortunately, international incidents generally involve disputed issues of fact, and in the absence of an international judicial or other centralized fact-finding mechanism, the ad hoc manner in which nations evaluate factual claims is often decisive. (3) The International Court of Justice has made statements regarding what is credible evidence, evidence to be given weight in international cases. It has not, to date, made any straightforward, express statement of the standard of proof expected. We generally know which party carries the burden, but we do not know with certainty what the burden is. Still, there are indications in international law that the standard should be something like the clear and convincing standard found in the United States. In the United States, the burdens are generally characterized as (1) preponderance of evidence; (2) clear and convincing evidence; or (3) evidence beyond a reasonable doubt. Several judicial decisions, scholarly comments, and examples of State practice support the clear and convincing standard for evidence. For example, several self-defense cases, including the Oil Platforms case (2003) and the Nicaragua case (1986), indicate that the ICJ wanted more than a mere preponderance of the evidence to support claims of the United States that it acted in self-defense. On the other hand, there is no indication that the United States had to provide proof beyond a reasonable doubt. The closest category is clear and convincing. I do not think this can be said of the Corfu Channel case (1949) where the Court drew inferences from indirect evidence of Albanian officials' knowledge. This seems less than clear and convincing. The Democratic Republic of Congo case (2005) gives indications of both preponderance and the clear and convincing standard: 71. The Court thus concludes that, on the basis of the evidence before it, it has not been established to its satisfaction that Uganda participated in the attack on Kitona on 4 August. ... 91. The Court makes no findings as to the responsibility of each of the Parties for any violations of the Lusaka Agreement. It confines itself to stating that it has not received convincing evidence that Ugandan forces were present at Mobenzene, Bururu, Bomongo and Moboza in the period under consideration by the Court for purposes of responding to the final submissions of the D. …

Lies, damn lies and statistics

The problems associated with the presentation of scientific evidence in court have always been challenging. Indeed, all one has to do is look back an uncomfortably few number of years for illustrations of gross misinterpretations of scientific evidence either by scientists themselves from the witness box, by the legal experts during examination or in summation of such evidence to the jury. The difficulties in presenting and communicating often complex scientific information to a lay audience are not new. Neither are the rules by which we must operate within a legal or judicial framework, after all legal systems of one form or another were in existence long before forensic science was applied to criminal or civil investigations. Yet, even with rules, laws of evidence and hard lessons of the past learned through the appeal courts, there are persistent and recurring difficulties in communication between the scientific expert and the court.

Modern Means of Proof: Legal Basis for its Accommodation in Islamic Law

Modern means of proof in the form of forensic evidence and electronic data has become an integral part of the law of evidence in the western legal system. For instance, medical evidence is considered conclusive in determining, inter alia, that a witness does not suffer from any abnormality of mind. It is also regarded as sufficient evidence to establish a causal connection between the taking of a drug and THE resulting damage to the complainant's health.1 Other forensic sciences, such as laboratorial testing of a blood specimen, constitute a prima facie evidence of proving paternity. The DNA (deoxyribonucleic acid) test2 of semen stains3 found in the bed of a hotel room that was occupied by two persons is consid ered sufficient to sustain their conviction for fornication. Cinderella evi dence to match the soles of shoes found at the crime scene with that of

The Structure of Evidence Law

Here is a fairly straightforward sketch of the theoretical structure of evidence law. Fact-finding involves decision-making under uncertainty,' that is, in situations where we cannot be absolutely sure of where the truth lies. The best that fact-finders can do, then, is assess the probability of liability. Fact-finding should be conducted rationally, therefore we can think of it as governed by the rules of probability theory.2 These rules provide a framework within which fact-finders should draw on their general experience to assess the probability of the evidence presented and, ultimately, of the facts in issue. Because fact-finders make decisions under uncertainty, evidence law needs to provide rules specifying the degree of certainty required for a verdict. Such rules are termed standards of proof. Standards of proof can only be set by considering what is at stake in a finding of liability, so at this point accounts of the rules governing civil and criminal trials diverge. In civil trials, the basic presumption is one of equality between claimant and defendant: a mistake affecting one side is as serious as a mistake affecting the other. Decision theory can then be used to show that the civil standard of proof should be set at a probability of 0.5, the 'balance of probabilities', a rule which has the additional merit of minimizing the number of expected factfinding errors. The presumption of equality does not apply to criminal trials, where the censure involved in a finding of liability, as well as the 'hard treatment' which frequently follows such a finding, point to a higher standard of proof.3 Overlying this basic decisional structure are rules excluding evidence and instructing fact-finders on how to reason about evidence. Evidence may be

Justice in the Pursuit of Truth: A Moral Defence of the Similar Facts Rule

The law of evidence serves an important function in ensuring the legitimacy of trial deliberation. One way of discharging this function is through ‘regulation’, effected in the form of rules forbidding reliance on particular lines of evidential reasoning. An example of such a rule is that on similar facts. The rationale for regulation will be explored by engaging in two kinds of analysis. Traditionally, an ‘external’ approach is taken. There are, so it is hoped to show, deficiencies in this approach. A different method of analysis, one conducted from an ‘internal’ perspective, will be proposed to meet these deficiencies. In many cases, values other than truth have to be pursued, not simply as subsidiary considerations, but as values which are integral to the nature and purpose of fact-finding. A party has not merely a right that the substantive law be correctly applied to objectively true findings of fact, and a right to procedure that is rationally structured to determine the truth; he has, more broadly, a right to a just verdict, where justice must be understood to incorporate an ethical evaluation of the process (of evidential reasoning) which led to the outcome (in the form of conclusions of fact). Truth and justice, so it will be argued, are not opposing considerations; rather, principles of one kind reinforce demands of the other. This article seeks to instantiate these general themes in a discussion of the similar facts rule.

Evidence before the International Criminal Court — Basic principles

This very brief overview of some of the basic issues the ICC will face when interpreting its law of evidence has, I hope, given an impression of the manifold difficulties international courts must overcome if they want to live up to their claim of being instruments of achieving peace through justice. It is not enough to stress over and over again the advances made in fighting impunity and thus painting justice merely with her face of Nemesis, but it is just as imperative that the accused are treated fairly and that the immense pressure of public opinion does not influence the process of determining guilt or innocence. The law of evidence is one of the core areas where this pressure can have the direst consequences. Judges must resist any attempts to put the defence at a disadvantage, and should strive as much as possible to obtain a true balance between the prosecution and the accused.

EXPERT EVIDENCE AFTERDAUBERT

▪ Abstract Daubert stands for a trilogy of Supreme Court cases as well as revisions of the Federal Rules of Evidence. Together they represent American law's most recent effort to filter expert evidence offered at trial. This review begins by placing the Daubert trilogy in the context of earlier judicial efforts to solve the screening problem, which began well before the twentieth century, and then provides a brief explication of evidence law under Daubert. Next, we discuss several aspects of the jurisprudence of expert evidence: its connection to debates in the philosophy of science, the practical legal problems courts are trying to solve, and procedural implications. Then we review and discuss varied impacts of Daubert: changes in law, marked increases in cases and scholarship relating to expert evidence, and research examining judicial gatekeeping under Daubert (civil defendants appear to benefit greatly and criminal defendants hardly at all). We conclude by offering several predictions and prescriptions for the future of expert evidence.

State of Mind: The Hillmon Case, the McGuffin, and the Supreme Court

The case of Mutual Life Insurance Company v. Hillmon is one of the most influential decisions in the law of evidence. Decided by the Supreme Court in 1892, it invented an exception to the hearsay rule for statements encompassing the intentions of the declarant. But this exception seems not to rest on any plausible theory of the categorical reliability of such statements. This article suggests that the case turned instead on the Court's understanding of the facts of the underlying dispute about the identity of a corpse. The author's investigations into newspaper archives and the original case documents point to a different understanding, and proposes that this important rule of evidence may have grown out of an historical mistake.

Evidence and faith: philosophy and religion since the seventeenth century

1. The sovereignty of the good in seventeenth-century philosophy of religion 2. Cartesian philosophy of religion 3. The ascendancy of laws of evidence in early modern philosophy of religion 4. Humean philosophy of religion 5. Kantian philosophy of religion 6. Religion and the philosophical gods and giants 7. Continental and feminist philosophy of religion 8. Five major moves 9. Religions, evidence and legitimacy.

Interdisciplinary Trends in Evidence Scholarship

In recent decades, evidence law has taken on what appears to be a permanent interdisciplinary aspect. Doctrinal on evidence is in steep decline, having been replaced by inquiries of other kinds. In pondering the wisdom and purpose of evidence doctrine, and in formulating rules, jurists and scholars have, no doubt, always thought about background facts and theories which today, certainly, can be recognized as falling within the domains of fields outside of law. In recent times the links to those other fields have become more explicit and more numerous. We discuss where these connections have come from and suggest where they might be headed. In this article we review five of those interdisciplinary junctions. Three of them seem to be established, enduring intersections of evidence and other fields: psychology (Part I), forensic science (and perhaps science more generally) (Part II), and the new evidence scholarship (the application of formal understandings of probability and proof) (Part III). And we look at two important newcomers to the world of interdisciplinary evidence scholarship: feminist studies (Part IV) and economics (Part V).

Delgamuukw: A Legal Straightjacket for Oral Histories?

RésuméC'est avec désolation qu'on constate l'ethnocentrisme continu des cours dans leur traitement des histoires orales autochtones comme artefacts culturels, en dépit des recommandations de tenir compte des perspectives des peuples autochtones et d'y adapter les règles de la preuve. Dans cet article, je décris comment le Juge en chef McEachern de la Cour suprême de la Colombie Britannique répondait à un témoin gitksan, Gwaans, lorsqu'elle présentait sonadaawkcomme preuve de l'organisation sociale Gitksan et de leur propriété sur les terres. La cour fut incapable d'entendre ni d'accepter l'adaawktel que présenté—une institution juridique et politique plutôt qu'un simple artefact culturel ou le rapport d'une histoire chronologique. Les formes d'expression, le symbolisme et les liens entre les mondes des esprits, des humains et des animaux dépassaient la compréhension du juge. Est-ce que lors de litiges futures leadaawksera traité différemment? L'article aborde un ensemble de questions inquiétantes, notamment le fait que le pouvoir judiciaire (1) adopte une approche réductionniste face auadaawket (2) évalue l'adaawkselon les règles de la cour plutôt que celles propres auadaawk.

The Field of Evidence and the Field of Knowledge

The trial is fundamentally an epistemological event. We want jurors and judges to know. And we want to know that they know. And we also want to know the conditions when they know, and when, if at all, these conditions obtain. In this article I explore the relationship between epistemological theory and evidence law. Despite recent denials of the relevance of such theory, I show its relevance and importance by demonstrating how current conceptual issues in epistemology intersect with, explain, and clarify conceptual issues in the law of evidence. Part I provides general background on the field of knowledge. Next, Part II discusses in depth recent philosophical work of Laurence BonJour, Alvin Goldman, and Robert Brandom. Finally, Part III applies insights from the first two parts to illuminate the law's epistemology with regard to factual decisionmaking, the nature of probative value, and a puzzle regarding the review of First Amendment facts.

La preuve devant les tribunaux administratifs et quasi judiciaires

Procedure before quasi-judicial boards and tribunals has recently attracted abundant comment as well as some criticism. In administrative law, rules of evidence form an important part of procedure. In this paper, the author first tries to define what are the sources of the law of evidence before quasi-judicial agencies in Québec : the common law, the two Codes, statutes and regulations. Then follows in two parts an overview of the principal rules that govern the manner in which claims and arguments are brought before tribunals and the extent to which specific provisions or general principles of administrative law allow tribunals themselves to gather evidence required for the purposes of a decision. The paper suggests that administrative justice requires that the tribunal really be « master of the procedure », within the framework of natural justice.