The Rationalist Tradition At Trial

Analysis of Evidence: How to Do Things With Facts Based On Wigmore\u27s Science of Judicial Proof, By Terrence Anderson and William Twining (with an Appendix on Probablity and Proof by Philip Dawid). Little, Brown and Company, and London: George Weidenfeld and Nicolson, Ltd., 1991. Pp. 457. $22.00. (Teacher\u27s Manual. Pp. 181

Historical Framework for Reviving Constitutional Protection for Property and Contract Rights

Post-New Deal constitutionalism is in search of a theory that justifies judicial intervention on behalf of individual rights while simultaneously avoiding the charge of Lochnerism. \u27 The dominant historical view dismisses post-bellum substantive due process as an anomalous development in the American constitutional tradition. Under this approach, Lochner represents unbounded protection for economic rights that permitted the judiciary to read laissez faire, pro-business policy preferences into the constitutional text. Today\u27s revisionists have mounted a substantial challenge to the dismissive views of traditionalists. Indeed, some claim Lochner reached the right result, but for the wrong reason. The revisionists characterize substantive due process as a genuine, albeit unsuccessful, attempt to apply constitutional protections for property and contract in light of the economic, social and political situation in the late nineteenth century. The revisionist account of Lochnerism is likely to replace the dominant historical view and to transform a central understanding of the American constitutional tradition. In particular, this view of Lochnerism will likely influence the analysis of constitutional protection of economic rights. This Article will demonstrate that both sides have overlooked a key element in the progression of economic rights protection from the early nineteenth century through the Lochner era to the present day: the changing conception of the principle of non-retroactivity. This oversight may not be surprising in one sense, for the modem view-traceable to the Lochner era itself-is that the principle of nonretroactivity is simply a mask for substantive review. But it was not always so. The principle of non-retroactivity, heavily dependent upon the notion of vested rights, was the primary organizing idea in the constitutional economic rights protection that preceded the Lochner era of substantive due process

Shields, Swords, and Fulfilling the Exclusionary Rule\u27s Deterrent Function

When the exclusionary rule prevents the prosecution from using evidence necessary to bring a case to trial, the rule deters illegality while raising no issue about how it might interfere with usual factfinding processes. However, when a case proceeds to trial although a court has suppressed some prosecution evidence, courts need to decide the extent to which the defendant may benefit from the absence of the proof without opening the door to its admission. The exclusion of any relevant evidence raises similar questions, and courts often say the exclusionary rule is a shield from suppressed evidence, but not a sword with which the defendant can inflict damage on the prosecution’s remaining case. Nonetheless, this Article argues courts err when they analyze whether the defendant “opened the door” to suppressed evidence with a metaphor appropriate for rules excluding evidence for different—and less weighty—reasons than encouraging respect for individual constitutional rights. Employing usual evidentiary tests for opening the door unduly diminishes the effectiveness of exclusion as a deterrent of police misconduct when investigators expect the potential evidentiary payoff will not be necessary to bring the case to trial, but will nonetheless be useful to obtain a conviction

Impeachment Exception to the Exclusionary Rules: Policies, Principles, and Politics, The

The exclusionary evidence rules derived from the Fourth, Fifth, and Sixth Amendments continue to play an important role in constitutional criminal procedure, despite the intense controversy that surrounds them. The primary justification for these rules has shifted from an imperative of judicial integrity to the deterrence of police conduct that violates... [constitutional] rights. Regardless of the justification it uses for the rules\u27 existence, the Supreme Court continues to limit their breadth at the margin, when the acknowledged costs to other values vital to a rational system of criminal justice outweigh the deterrent effects of exclusion. The most notable limitation on the exclusionary rules is the impeachment exception, which permits the use of illegally obtained evidence at trial to impeach the defendant\u27s testimony. The shift from a judicial integrity rationale to a deterrence rationale for the rules, however, does not explain the origins of this exception. The Court created the impeachment exception in 1954 in Walder v. United States before rejecting the judicial integrity approach. Walder suggests that the Court has supported the exception based on principle, as well as on policy considerations. This article argues that attempts to justify the impeachment exception as a matter of policy or as a matter of principle are equally misguided. Both methods wrongly consider the integrity of factfinding at a criminal trial a value that can meaningfully be balanced against the constitutional values protected by the exclusionary rules.Instead, a coherent approach to the scope of the exclusionary rules must approach that question entirely as a matter of constitutional criminal procedure. Constitutional guarantees do not supply independent values to balance against the integrity of factfinding-they define that integrity. Consequently, the impeachment exception should be eliminated because it improperly compromises constitutional rules of criminal procedure in the name of furthering what the Court claims to be other values vital to a rational system of criminal justice