Evidence & Evidentiary Procedure eJournal最新文献

{"title":"Confessing in the Human Voice: A Defense of the Privilege against Self-Incrimination","authors":"Andrew E. Taslitz","doi":"10.2139/SSRN.1005758","DOIUrl":"https://doi.org/10.2139/SSRN.1005758","url":null,"abstract":"The privilege against self-incrimination has been widely attacked as lacking any sound theoretical basis. This article seeks to craft a new one, a variant on the supposedly discredited mental privacy rationale. Drawing on cognitive psychology and linguistics, this piece argues that the privilege is best understood as designed to prevent the compelled disclosure of words or their equivalent. The piece takes oral speech as the paradigm case but expands the argument to written and internet communications. Compelled revelation of words actually changes the speaker's thoughts, feelings, and character while exposing him to unfair judgments about his fundamental nature based upon incomplete information - judgments that his audience will make based upon his words and paralingustic cues alone. The privilege seeks to protect the speaker against this re-definition of his identity in ways that he has not chosen. The privilege is thus more about privacy of words than of thoughts, more about voice (in a very literal sense) than simply about silence.","PeriodicalId":228651,"journal":{"name":"Evidence & Evidentiary Procedure eJournal","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128462647","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Sixth-Amendment Originalism's Collision Course with the Right to Counsel: What's Titanic, What's Iceberg?","authors":"Donald A. Dripps","doi":"10.2139/SSRN.952508","DOIUrl":"https://doi.org/10.2139/SSRN.952508","url":null,"abstract":"The Supreme Court's recent landmark decisions interpreting the Sixth Amendment confrontation clause have taken an originalist turn, by treating common-law procedure contemporaneous with the founding as illustrations of the constitutional text. The Crawford trilogy holds that trial courts should classify prosecution hearsay as either testimonial or nontestimonial. Testimonial statements may be admitted over confrontation clause objection only when the declarant is unavailable at trial and the defendant had an opportunity to cross-examine the declarant before the trial. By contrast, nontestimonial statements are subjected to no confrontation clause scrutiny. In majority opinions authored by Justice Scalia, the Court based this new confrontation clause framework on founding era practice and understanding. My thesis holds that Crawford's version of originalism charts a collision course with long-standing precedents interpreting the Sixth Amendment's right-to-counsel clause. What the Crawford trilogy means by cross examination is cross-examination by counsel, an understanding foreign to the founders. Indeed, consistent application of the Crawford trilogy's interpretative method would deny a Sixth Amendment right to publicly-paid defense counsel even at trial. The recent cases making new law have arisen under the Sixth Amendment, yet the originalist methodology in these cases calls into question Gideon v. Wainwright, one of the few criminal procedure landmarks to enjoy practically unanimous judicial and academic approval. Sixth Amendment jurisprudence therefore has become a house divided against itself. This article asks how that house can stand. The Court might now (1) honestly apply Crawford's methodlogy and overrule Gideon (but this would endanger the innocent and mock the ideal of equal justice); (2) announce an originalist justification for Gideon (but compelling historical evidence points the other way); (3) simply ignore the inconvenient conflict between the felt legitimacy of originalism and the felt desirability of Gideon's result (the most likely outcome, but an illegitimate and hypocritical one); or (4) retain Gideon's holding on due process, not Sixth Amendment grounds, an alternative that would legitimately ground the right-to-counsel cases and enable the rationalization of criminal procedure doctrine more generally. Even a robust reading of due process cannot undo the damage Crawford has done to the public interest in domestic-violence and organized-crime cases. The article therefore concludes with some statutory and administrative responses to the Crawford trilogy, responses that might ameliorate the serious costs those decisions have exacted from the public interest.","PeriodicalId":228651,"journal":{"name":"Evidence & Evidentiary Procedure eJournal","volume":"64 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-12-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115147430","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Recreating Diversity in Employment Law by Debunking the Myth of the Mcdonnell-Douglas Monolith","authors":"Sandra F. Sperino","doi":"10.2139/ssrn.899099","DOIUrl":"https://doi.org/10.2139/ssrn.899099","url":null,"abstract":"The McDonnell-Douglas framework is one of the primary methods used by courts to evaluate discrimination claims based on circumstantial evidence. Although McDonnell-Douglas often is referred to as a singular test, it is actually a collection of different tests gathered rather deceptively under one name. Over the years, federal courts considering state law claims have increasingly applied the McDonnell-Douglas framework to these state claims, without considering whether the same result would occur under state law. The federal courts' rather monolithic view of McDonnell-Douglas is choking debate on important issues of employment law and denying states the ability to weigh in on significant policy issues. In addition to ignoring the potential policy choices of states, some federal courts have chosen to trump state employment law by declaring that application of McDonnell-Douglas to state claims is mandated by vertical choice of law. This use of vertical choice of law is disingenuous and contrary to the Supreme Court's pronouncements of vertical choice of law. Additionally, it improperly limits the ability of states to create diversity in employment law by creating substantive standards that are different from those created under federal law.","PeriodicalId":228651,"journal":{"name":"Evidence & Evidentiary Procedure eJournal","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129072900","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Liability Rules Under Evidentiary Uncertainty","authors":"Claude Fluet","doi":"10.2139/ssrn.893604","DOIUrl":"https://doi.org/10.2139/ssrn.893604","url":null,"abstract":"I consider the efficiency of liability rules when courts obtain imperfect information about precautionary behavior. I ask what tort rules are consistent with socially efficient precautions, what informational requirements the evidence about the parties' behavior must satisfy, what decision rules courts should apply when faced with imperfectly informative evidence, whether these decision rules can be formulated in terms of the legal concept of standard of proof, and whether some general characterization of the efficient standard can be given. I show that court judgments provide appropriate incentives to exert care if they signal that the party prevailing at trial most likely exerted due care, neither more nor less.","PeriodicalId":228651,"journal":{"name":"Evidence & Evidentiary Procedure eJournal","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115771938","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Primary Activity Approach to Proof Burdens","authors":"C. Sanchirico","doi":"10.2139/ssrn.878551","DOIUrl":"https://doi.org/10.2139/ssrn.878551","url":null,"abstract":"The question of which party should bear the burden of proof on a given factual issue remains one of the most important and problematic in evidence and procedure. This paper approaches the question from a relatively unstudied perspective, viewing litigation as a device for influencing primary-activity behavior rather than as a stand-alone search for truth. Its main finding is as follows: when a given evidentiary contest concerns the primary-activity behavior of one of the parties, placing the burden of proof on the other party maximizes the incentive impact of that contest. Although counterintuitive, the finding accords with a striking regularity in existing law. The adversary of the incentive target typically does bear the burden of proof with regard to the target's primary-activity behavior. (c) 2008 by The University of Chicago. All rights reserved.","PeriodicalId":228651,"journal":{"name":"Evidence & Evidentiary Procedure eJournal","volume":"53 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132907258","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Value of Judicial Independence: Evidence from 18th Century England","authors":"Daniel Klerman, P. Mahoney","doi":"10.2139/ssrn.495642","DOIUrl":"https://doi.org/10.2139/ssrn.495642","url":null,"abstract":"This paper assesses the impact of changes in judicial independence on equity markets. North and Weingast (1989) argue that judicial independence and other institutional changes inaugurated by the Glorious Revolution of 1688-89 improved public and private finance in England by putting restraints on the government. We calculate abnormal equity returns at critical points in the passage of statutes giving judges greater security of tenure and higher salaries. Early eighteenth-century legislation granting tenure during good behavior is associated with large and statistically significant positive abnormal returns. Other statutes had positive but generally insignificant effects.","PeriodicalId":228651,"journal":{"name":"Evidence & Evidentiary Procedure eJournal","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122087232","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Demise of Circumstantial Proof in Employment Discrimination Litigation: St. Mary's Honor Center v. Hicks, Pretext, and the 'Personality' Excuse","authors":"M. Brodin","doi":"10.15779/Z386P9D","DOIUrl":"https://doi.org/10.15779/Z386P9D","url":null,"abstract":"Since the enactment of Title VII of the Civil Rights Act of 1964 the courts have struggled to define the burdens of proof surrounding the central issue of an employer's alleged discriminatory intent. What evolved was the McDonnell Douglas framework, premised upon established concepts of circumstantial proof and inference. The approach permits plaintiffs lacking direct proof to nonetheless establish a violation of the Act by proving that the employer's explanation of the challenged decision was pretextual.In St. Mary's Honor Center v. Hicks, a closely-divided Supreme Court substantially altered the McDonnell Douglas framework. Discrediting the reasons offered by the employer for its decision no longer suffices to establish a violation of Title VII. Rather, plaintiffs must somehow prove that the pretext was offered to hide discrimination, and not for some other motivation. Moreover, the trier of fact is permitted to construct its own explanation of the events even though that scenario was not offered by either party at trial. As a result, plaintiffs must be prepared to discredit stated and unstated non-discriminatory reasons for the employer's action.Professor Brodin criticizes the sharp move away from McDonnell Douglas and argues that it will distort the fact-finding process and deprive victims of bias of a meaningful opportunity to enforce their rights to equal employment opportunity.","PeriodicalId":228651,"journal":{"name":"Evidence & Evidentiary Procedure eJournal","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1997-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134016303","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Accuracy, Complexity, and the Income Tax","authors":"L. Kaplow","doi":"10.3386/W4631","DOIUrl":"https://doi.org/10.3386/W4631","url":null,"abstract":"The complexity of the income tax is an unending source of complaint. Compliance costs have received increasing attention and are estimated to be large. Yet most recognize that some degree of complexity is necessary if ability to pay is to be measured accurately. This article presents a framework for analyzing the value of greater accuracy in income taxation. Formulations for both distributive and incentive benefits of accuracy are offered. The question whether taxpayers have excessive or inadequate incentives to acquire information about taxable income and to challenge tax assessments is also examined.","PeriodicalId":228651,"journal":{"name":"Evidence & Evidentiary Procedure eJournal","volume":"131 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1994-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132309972","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Standing Room Only: Why Fourth Amendment Exclusion and Standing Can No Longer Logically Coexist","authors":"S. F. Colb","doi":"10.31228/osf.io/k3xja","DOIUrl":"https://doi.org/10.31228/osf.io/k3xja","url":null,"abstract":"Standing Room Only: Why Fourth Amendment Exclusion and Standing Can No Longer Logically Coexist argues that the Fourth Amendment standing doctrine is fundamentally incompatible with the existing Fourth Amendment exclusionary rule. Fourth Amendment standing provides that only a person who has suffered an invasion of her own normatively reasonable expectations of privacy, given the facts about her situation that police may not even know (including whether she owns the property searched), may suppress evidence that police turned up through a violation of the Fourth Amendment. Meanwhile, the existing exclusionary rule doctrine maintains that the sole objective of Fourth Amendment suppression is to motivate police officers, given facts available to them (such as whether they have probable cause), to conform their conduct to the law prohibiting unreasonable searches and seizures. This Article proposes that by taking into account the actual facts about the defendant’s situation in assessing her standing to bring a suppression motion, it is arbitrary to consider the fact that she did (or did not) have an ownership right in the property where the search occurred, while simultaneously ignoring the fact that she was engaged in criminal activity within that property. This Article accordingly concludes that the ex ante perspective involved in determining whether the police have misbehaved (and thus need to be deterred through exclusion), is logically at odds with the ex post perspective involved in assessing whether the person seeking suppression was in fact entitled to remain free of the search that uncovered evidence against her. The Article takes a close look at the case of Minnesota v. Carter as a perfect illustration of this doctrinal incoherence.","PeriodicalId":228651,"journal":{"name":"Evidence & Evidentiary Procedure eJournal","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123140299","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Death of a Youth and of a Drunkard: A Remarkable Story of Habit and Character in New Jersey","authors":"P. Tillers","doi":"10.2139/SSRN.862428","DOIUrl":"https://doi.org/10.2139/SSRN.862428","url":null,"abstract":"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.","PeriodicalId":228651,"journal":{"name":"Evidence & Evidentiary Procedure eJournal","volume":"89 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126777275","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}