Supervision of the Grand Jury: Who Watches the Guardian?

The first part of this Article reviews prior Supreme Court decisions and analyzes the three recent decisions to determine the precise extent to which they limit judicial supervision of the grand jury. The second part of the Article assesses the utility of the available mechanisms for enforcing procedural protections in the grand jury. This Article identifies the remedies available as enforcement mechanisms in the grand jury and considers the effectiveness of those remedies. The Article then examines whether the grand jury\u27s shield function is still viable

Experience-Based Opinion Testimony: Strengthening the Lay Opinion Rule

Determining whether experience-based opinion should be evaluated as lay or as expert opinion has proven particularly challenging to the courts. The Federal Rules of Evidence were amended in 2000, adopting specific, more stringent requirements for expert testimony and hardening the line between lay and expert opinion. Expert opinion testimony is admissible only if based on reliable methodology, whereas lay opinion must be rationally derived using everyday reasoning. The decisions applying the rules do not strike the right balance in regard to experience-based opinion. Too often, courts either accept claims of experience-based expertise at face value or admit experience-based opinion as lay opinion without rigorously applying the governing rule. As a result, they admit unreliable and unwarranted opinion testimony. This Article explains why more experience-based opinion should be evaluated as lay opinion and also argues for increased scrutiny of such lay opinion. Only a witness who has a reliable and specialized mode of analysis and has applied it to a reliable basis should be granted the latitude accorded an expert. A witness who merely applies everyday reasoning to draw inferences based on experience and observations should be constrained by the rules that govern lay opinion. This Article suggests five guidelines for the admissibility of experience-based opinion: 1) the court should generally determine the admissibility of the opinion under the rules governing lay opinion; 2) the court should be skeptical of claims that the witness possesses expertise based on experience and training, understanding that the combination of experience and training does not necessarily signal that the witness brings reliable methodology to bear on the facts; 3) to determine the admissibility of experience-based opinion, the court should scrutinize the fit between the witness\u27 experience and the proffered opinion; 4) the court should strictly limit opinion testimony that draws inferences based on third party conduct; and 5) the court should preclude witnesses from over-generalizing based on their experience

Convictions Based on Lies: Defining Due Process Protection

The corrupting impact of false testimony on the justice system is profound and corrosive. The Supreme Court has long-since held that the due process clause protects against convictions based on testimony that the prosecutor knew or should have known was false. Despite this precedent, courts have undermined that constitutional protection by imposing demanding requirements of prosecution knowledge, narrowing the definition of false testimony, and holding defendants to an inappropriate standard of materiality. As a result, the law does not provide adequate protection from conviction based on lies. Courts must reinvigorate this area of the law. To provide appropriate protection, the requirements a defendant must meet to receive relief based on the use offalse testimony must be clarified in the following ways. First, the prosecution should be deemed to have knowledge of the falsity not only if an individual prosecutor had actual knowledge, but also if the prosecution did not meet its duty to discover that the testimony was false or if the prosecution had knowledge of contrary information possessed by other government actors and therefore imputed to the prosecution. Second, the false testimony need not rise to the level of perjury. Third, the courts should apply the more lenient standard of materiality defined for false testimony cases by asking how the revelation that the witness had testified falsely would have influenced the jury in the initial trial rather than asking what would have occurred had the witness simply given truthful testimony. In addition, the courts should revisit the law that applies when a defendant discovers that the prosecution unknowingly presented false testimony. If the falsity was material, the courts should conclude that the conviction violates due process despite the lack of prosecution knowledge. Even if the courts do not extend due process protection to the unknowing use offalse testimony, they should grant the defendant a new trial more readily than with other types of newly discovered evidence. The corrupting impact offalse testimony calls for at least this level ofprotection

The Psychotherapist-Patient Privilege After Jaffee v. Redmond: Where Do We Go from Here?

In Jaffee v. Redmond, the United States Supreme Court recognized a psychotherapist-patient privilege in federal common law. The Court, however, failed to define the parameters of the privilege and left the refinement of the common-law definition for the lower federal courts to make on a case-by-case basis. This Article addresses the issues courts will encounter as they develop the psychotherapist-patient privilege. After reviewing existing approaches, this Article suggests the course courts should follow as they construe the federal common-law privilege