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 […]
Nathan A. Frazier, Amending for Justice's Sake: Codified Disclosure Rule Needed to Provide Guidance to Prosecutor's Duty to Disclose
63 Fla. L. Rev. 771 (2011)| | | | ABSTRACT :: “I wouldn’t wish what I am going through on anyone,” Senator Ted Stevens commented after losing his seat in the United States Senate on November 18, 2008. Senator Stevens lost the race largely because a criminal conviction damaged his reputation. After Senator Stevens endured […]
Robert A. Garda, Jr., The White Interest in School Integration
63 Fla. L. Rev. 599 (2011)| | | | ABSTRACT :: Discussions concerning desegregation, affirmative action, and voluntary integration focus primarily, if not exclusively, on whether such policies harm or benefit minorities. Scant attention is paid to the benefits whites receive in multiracial schools, despite white interests underpinning more than thirty years of Supreme Court […]
Sung Hui Kim, Naked Self-Interest? Why the Legal Profession Resists Gatekeeping
63 Fla. L. Rev. 129 (2011)| | | | ABSTRACT :: This Article asks and answers the following question: why does the legal profession resist gatekeeping? Or, put another way, why do lawyers resist duties that require them to act to avert harm to their corporate client, its own shareholders, and-possibly-the capital markets? While acknowledging […]
Benjamin J. Steinberg, Discounted Medical Bills and Conflicting Applications of Florida Statutes §768.76 as A Rule of Evidence
62 Fla. L. Rev. 1431 (2010) | | | | INTRODUCTION :: Marcie was a loving mother and a hard worker. But all of this was stripped away in an instant. Marcie lost both her daughter and her ability to work after being struck while walking home from school by a negligent driver. The resulting […]
David A. Anderson, Confidential Sources Reconsidered
61 Fla. L. Rev. 883 (2009) | | | | INTRODUCTION :: For fifty years, the courts have debated whether the First Amendment guarantee of freedom of the press requires that journalists be allowed to protect confidential sources. Many state and federal courts have answered in the affirmative, creating a First Amendment “reporter’s privilege.” The […]
Michael S. Pardo, Second-Order Proof Rules
61 Fla. L. Rev. 1083 (2009) | | | | ABSTRACT :: Proof rules in law dictate when facts have been proven. They do so by specifying a level of proof such as by a preponderance of the evidence, by clear and convincing evidence, or beyond a reasonable doubt. The goals of the rules are […]
Adam C. Losey, Clicking Away Confidentiality: Workplace Waiver of Attorney-Client Privilege
60 Fla. L. Rev. 1179 (2008) | | | | INTRODUCTION :: Barbara Hall, an administrative assistant, often arrives at work an hour and a half early solely to check her personal e-mails on her employer’s computer. Afterwards, “[i]n the grand tradition of Chekhov, or perhaps ‘Days of Our Lives,’ Barbara Hall carries on a […]
Lisa A. Mattern, Constitutional Law: Knock-And-Announce Violations and the Purposeful Enforcement of the Exclusionary Rule
59 Fla. L. Rev. 465 (2007) | | | | TEXT :: Officers obtained a warrant to search for drugs and firearms in Petitioner’s home. Although the officers announced their presence, they waited only three to five seconds before entering the unlocked residence. Once inside, they discovered large quantities of drugs and a loaded firearm. […]
Benjamin Robinson, Constitutional Law: Suppressing the Exclusionary Rule
59 Fla. L. Rev. 475 (2007) | | | | TEXT :: Police obtained a warrant to search Petitioner’s home and, after announcing their presence, waited only a short time before they entered and discovered drugs and a loaded gun. The State charged Petitioner with unlawful drug and firearm possession. Petitioner moved to suppress all […]
Anne Bowen Poulin, A Fair Subject for Expert Testimony?
59 Fla. L. Rev. 991 (2007) | | | | INTRODUCTION :: How can two leading commentators take diametrically opposed positions concerning the use of expert testimony to address witness credibility? After the adoption of the Federal Rules of Evidence, Judge Weinstein stated categorically that the Federal Rules permit experts to testify concerning a witness’s […]
Brandon Faulkner, Hacking into Data Breach Notification Laws
59 Fla. L. Rev. 1097 (2007) | | | | INTRODUCTION :: On March 23, 2007, a news agency announced that the police department in Gainesville, Florida, arrested six individuals on charges that they had stolen credit card data from a corporation’s database and purchased more than $ 8 million in gift cards and electronics […]
Daniel Ryan Koslosky, Constitutional Law: Predictability As Fairness And The Possible Return To Federal Indeterminate Sentencing
57 Fla. L. Rev. 999 (2005) | | | | TEXT :: Respondent was convicted by a jury of possession with intent to distribute at least fifty grams of crack cocaine. During postconviction sentencing, the district court judge found, by a preponderance of evidence, that Respondent possessed an additional 566 grams of crack cocaine and […]
Kendall Coffey, Inherent Judicial Authority and the Expert Disqualification Doctrine
56 Fla. L. Rev. 195 (2004) | | | | INTRODUCTION :: With its explosion across America’s litigation landscape, expert witnessing has become a foundation for decision-making in virtually all significant cases. Described by some courts as a “cottage industry,” it has also become more lucrative than the usual day job for many professionals. With […]
Janelle A. Weber, The Spending Clause: Funding a Filth-Free Internet or Filtering out the First Amendment?
56 Fla. L. Rev. 471 (2004) | | | | TEXT :: The Children’s Internet Protection Act (CIPA) sets conditions on public libraries’ receipt of federal financial assistance for Internet access. Under CIPA, libraries must install filters on all of their Internet-connected computers to help block obscene and pornographic images and prevent minors from accessing […]
Daniel J. Steinbock, National Identity Cards: Fourth and Fifth Amendment Issues
56 Fla. L. Rev. 697 (2004) | | | | INTRODUCTION :: In the frenzied days and weeks following September 11, 2001, many observers called for serious consideration of a national identity system, the centerpiece of which would be some form of national identity card. Such a system was seen mainly as a tool against […]
Justin Smith, Expert Testimony in Eminent Domain Proceedings: Oh Frye, Where Art Thou?
56 Fla. L. Rev. 831 (2004) | | | | INTRODUCTION :: Respondent, a shopping center owner in Broward County, sought damages resulting from an eminent domain taking by Petitioner, the Florida Department of Transportation. Petitioner’s partial taking resulted in a decrease in the number of available parking spaces on Respondent’s property. Respondent sought “severance […]
David E. Steinberg, The Original Understanding of Unreasonable Searches and Seizures
56 Fla. L. Rev. 1051 (2004) | | | | INTRODUCTION :: Today, the Fourth Amendment to the United States Constitution covers most government evidence-gathering activities. In search and seizure cases, after determining that the Fourth Amendment applies to an investigation, the Supreme Court then specifies the Fourth Amendment standard that governs the law enforcement […]