Argument to the Jury and the Constitutional Right of Confrontation

Dean Carlson poses the question: When a prosecutor refers to evidence outside the record in his summation, has he thereby violated the accused person\u27s constitutional right to cross-examine the witnesses against him? The prevailing view is that this is reversible error only if the defendant can prove that the reference was highly prejudicial. After a full analysis of all the leading decisions--and these are largely analogous in nature--the author proposes a new rule and a new approach to this unexplored area

Experts as Hearsay Conduits: Confrontation Abuses in Opinion Testimony

The dispute over whether litigants may use experts to run unexamined hearsay into the trial record is a microcosm of a larger debate. The larger question is whether judicial review of expert testimony should be passive, or whether the expert witness process should be marked by active judicial policing. Does the plethora of expert opinions presently being offered in modern trials merit special scrutiny by the courts? Some scholars urge that courts must accommodate experts. Proponents of this view favor few challenges to the unrestricted rendition of opinions by an expert, whether the expert is real or self-proclaimed. Under this approach, [a]s long as the expert testified that he was qualified, that the data he used was of the type reasonably relied upon by other experts in the field, and that he was reasonably certain of his conclusions, judges would present the evidence to the jury without further scrutiny. A passive judicial approach to expert testimony facilitates ready admission of the underlying data used by an expert to reach her conclusions. It means that rigorous application of hearsay doctrine, requiring that the author of the underlying hearsay document be present or at least have been cross-examined, is abandoned. A growing number of courts and commentators have criticized the passive approach to expert testimony. Some have urged strict control of runaway expert testimony. For example, the United States Court of Appeals for the Fifth Circuit has remarked: It is time to take hold of expert testimony in federal trials. To this end, Minnesota amended its evidence rules to embrace a policy prohibiting, on direct examination, the wholesale introduction of the background documents used by an expert to reach his or her conclusions. Which view is preferable? Which addresses modern pressures and current courtroom conditions? Should judges play an active role in policing expert testimony? This Article endeavors to resolve these issues, and suggests a solution to the problem of backdoor hearsay through expert opinion

Experts, Judges, and Commentators: The Underlying Debate about an Expert\u27s Underlying Data

Debate concerning the limits of judicial power over expert witnesses remains active and in its early states. Commentators charting the course of judicial opinions observe that some of the modern regulatory proposals have yet to enlist official adoption. Part of the problem may relate to recognition of questions. Courts will adjudicate critical issues only when they are made aware of them. The burden of calling attention to an expert\u27s flawed bases falls squarely on trial lawyers who must make astute and incisive objections. In this formative period of legal development important decisions will be made. The future direction of courtroom control over the burgeoning onslaught of expert opinion will be shaped in the years immediately ahead. For this reason, it is vital that the aforementioned debate continue. Positions previously advanced need to be refined and reiterated. Courts should be alerted to the issues. As judges become aware of significant questions--questions which are sometimes subtly lodged in the tangle of an appellate record--information about how to resolve them needs to be readily at hand. Into this uncertain world Professor Imwinkelried\u27s article [47 Mercer L. Rev. 447 (1996)] comes, and it makes a worthwhile contribution. Imwinkelried\u27s focus on Federal Rule of Evidence 703 is rightly directed. That rule, like no other, will control most of the future development of expert witness law. Rule 703 is at the core of significant inquiries which confront our courts. Can the expert\u27s proponent formally introduce the hearsay reports upon which an expert relies to supply his courtroom opinion? Is a trial judge precluded from testing the credibility of the underlying data the expert used to reach her conclusions? Imwinkelried raises these questions, and they will be the targets of this commentary as well

Dramatic Moments in the Pursuit of Justice

Callaway Chair of Law Emeritus Ronald L. Carlson talks about significant turning points in several high profile cases at the University of Georgia\u27s annual Founders\u27 Day Lecture

False or Suppressed Evidence: Why a Need for the Prosecutorial Tie?

Many United States Supreme Court decisions have overturned criminal convictions for the reason that the government employed false evidence to obtain the conviction or failed to disclose relevant evidence important to the defense. In reversing federal or state judgments, the Court often has located direct proof of wrongdoing by the prosecutor. The notorious “bloody shorts” case is an example in point. There, the state introduced as evidence a pair of men’s “blood-stained” undershorts to achieve conviction of the accused. When the blood turned out to be red paint, the Supreme Court granted habeas corpus relief to the defendant because “[ilt was further established that counsel for the prosecution had known at the time of the trial that the shorts were stained with paint ... The prosecution deliberately misrepresented the truth.” Judicial opinions in this area of the law have frequently emphasized the prosecutor’s historic duty not to convict but rather to do justice. Violations of this duty by the state’s prosecuting officer can create constitutional problems of verdict-rupturing magnitude: “It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” That deliberate evidence-suppressing conduct by the prosecutor voids a conviction is clear. But the problem becomes more difficult when the hiding of documents or witnesses is accomplished not by the prosecutor but by a lower-ranking minion of the state. What if a police officer discovers important evidence which is helpful to the defendant and fails to call it to the attention of either the prosecutor or the defense? Consider a 1967 United States Court of Appeals proclamation on the subject: So far as we have been able to ascertain, all the Supreme Court cases setting aside convictions for want of due process by reason of the reception of false testimony are based upon knowledge of the prosecutor that the testimony received is false or knowledge that material evidence has been suppressed. Such would appear to be a proper limitation of the rule. Absent knowledge by the prosecutor himself, a police officer\u27s misconduct in suppressing relevant evidence would be insufficient to invalidate the conviction. Other courts have displayed a decided reticence to overturn convictions without proof of complicity by the prosecutor in the wrongdoing. Such proof is frequently hard to come by, leaving open major issues in these cases: Does the conduct of a police officer in suppressing evidence constitute state action which deprives a conviction of its due process base, assuming such suppression is eventually discovered? In the false evidence cases, can a defendant who was condemned by perjured testimony successfully attack his conviction even though he lacks proof of governmental connivance in the perjury? In dealing with these issues this article explores the question of whether the Due Process Clause is addressed to the prosecutor alone, or applies as well to police and others who may traffic in suppressed or false evidence

Competency and Professionalism in Modern Litigation: The Role of Law Schools

This Article opens with an historical analysis of the forces that stimulated the growth of trial practice training. It then shifts the focus to the current concern of the bar with raising the level of professionalism among lawyers. Part III discusses the role of law schools in helping their students meet both competency and professionalism challenges. To this end, Part III addresses (1) the need of any trial practice course to incorporate litigation ethics in a meaningful way, perhaps within the context of creative and challenging problems materials; and (2) the need for instructors in the field to add quality writings to the literature of trial jurisprudence. The thesis of this Article is that the targeting of litigation ethics and the continuing development of qualitative literature form companion needs. In addition to the components identified by Imwinkelried in his call for a unifying philosophy, these are components that will ensure continued curriculum acceptance of courses in litigative skills

Policing the Bases of Modern Expert Testimony

Technical witnesses have revolutionized the American lawsuit. Advertisements in litigation periodicals bear witness to the broad range of courtroom expert testimony available to the trial bar. A specialist in airplane pilot error places an advertisement on the same page with an advertiser who is eminently qualified to provide expert testimony in churning securities litigation. \u27 Also included are obscenity experts for criminal cases as well as a timber products specialist with global experience in accidents and related cases, who claims, more than 30 years experience with wood utility poles. \u27 Within the category of timber and woods there are other experts as well. A national directory exists for locating experts whose specialties are accidents and injuries caused by trees. The offerings of available technical services of course include traditional specialties. Experts in document and handwriting analyses may be found along with a plethora of physicians. Some doctors have entered the courtroom expert market with enthusiasm.One recent advertisement promoting Heavyweight Malpractice Experts. Any type physician, surgeon or medical expert available features a photograph of a fighting doctor clad in white coat and boxing gloves. The expanding array of scientific (as well as some not-so-scientific) specialties available as sources for testimony raises hard questions. Will courts require that the witness\u27 opinions be reasonably based upon trustworthy data? How far must judges inquire into the practice of other experts in the same field prior to allowing the trial witness to proffer an expert opinion? How much of the expert\u27s supporting data will be received in evidence? This essay addresses these and other important questions affecting the scope of modern expert testimony

The Curious Case of Differing Literary Emphases: The Contrast Between the Use of Scientific Publications at Pretrial Daubert Hearings and at Trial

An expert\u27s testimony at a pretrial Daubert hearing isfrequently supported by professional writings. Technicalliterature is employed by litigants to buttress controversialscientific theories and research. By way of example, aplaintiff\u27s attorney may urge that an alleged toxicsubstance caused his or her client\u27s cancer. The objectivein providing the court with learned texts and articles is toconvince the trial judge to admit expert opinions thatsupport causation. This Article reports appellate opinionsthat strongly encourage production of professionalwritings in the pretrial context. Indeed, in several casesthe absence of published research resulted in defeat of aparty\u27s case. The Article then turns to the trial stage of theprocess. Scientific literature that was of centralimportance in the pretrial stages takes on a diminishedrole. The Article identifies factors that may account forthis phenomenon. It concludes by positing the observationthat pretrial practice is the center of gravity of modernlitigation. Summoning corroborative scientific literaturecan be the key to success in the vital arena of pretrialadvocacy

Mason Ladd--In Memoriam

Mason Ladd\u27s life in the law of evidence will never be stilled. The contributions are too thoughtful, too productive, too filled with impact for that ever to happen. In the galaxy of great figures that includes Wigmore, Clearly, Morgan, Maguire, Weinstein, McCormick, Louisell, and others, Dean Ladd\u27s star shone brightly. The mix of insight, humor, and good will that he brought to teaching and scholarly writing is unmatched. The influence of Mason Ladd is perhaps best summarized by this tribute: You can lose a man like Dean Ladd by your own death, but not by his