Evidence

Peña-Rodriguez v. Colorado and the Racial Animus Exception to the No-Impeachment Rule: Extending an Exception to Suspect Classes That Experience Pervasive Bias in the Jury System

Taariq Lewis

Abstract During an inquiry into the validity of a verdict, Federal Rule ofEvidence 606(b) prohibits jurors from testifying about statements madeor incidents that occurred during jury deliberations, including jurors’subjective mental processes used in reaching the verdict. This rule is oftencalled the “no-impeachment” rule. The no-impeachment rule promotesthe finality of verdicts, facilitates free and vibrant discussion […]

Liesa L. Richter, Posnerian Hearsay: Slaying the Discretion Dragon

Abstract Distinguished jurist and scholar, Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit penned a concurrence in United States v. Boyce, 742 F.3d 792 (7th Cir. 2014), in which he launched a scathing attack on the scheme of categorical hearsay exceptions embodied in the Federal Rules of Evidence. After characterizing the […]

John Leubsdorf, The Surprising History of the Preponderance Standard of Civil Proof

Abstract Although much has been written on the history of the requirement of proof of crimes beyond a reasonable doubt, this is the first study to probe the history of its civil counterpart, proof by a preponderance of the evidence. It turns out that the criminal standard did not diverge from a preexisting civil standard, […]

Ben Trachtenberg, Testimonial Is As Testimonial Does

In the decade since Crawford v. Washington declared “testimony” to be the touchstone of the Confrontation Clause, courts—from the humblest criminal trial court to the Supreme Court itself—have struggled with two problems. First, defining “testimonial” has proven difficult. Second, in certain cases, the results of defining “testimonial” as Crawford would seem to require have proven […]

Richard D. Friedman, The Mold That Shapes Hearsay Law

In response to an article previously published in the Florida Law Review by Professor Ben Trachtenberg, Professor Friedman argues that the historical thesis of Crawford v. Washington is basically correct: The Confrontation Clause of the Sixth Amendment reflects a principle about how witnesses should give testimony, and it does not create any broader constraint on the use […]

Robert E. Wagner, Criminal Corporate Character

In the last few years, corporations have been accused of crimes ranging from environmental pollution on an unprecedented scale, to manslaughter, to election tampering, to large-scale antitrust violations. Many of these accused companies had previously committed similar acts or even the exact same offense. Unfortunately, the rules of evidence in the federal system and in virtually every state system prohibit […]