DOCSLIB.ORG

MILITARY RULES of EVIDENCE SYMPOSIUM: an INTRODUCTION Robinson 0

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
MILITARY RULES of EVIDENCE SYMPOSIUM: an INTRODUCTION Robinson 0 I MILITARY RULES OF EVIDENCE SYMPOSIUM: AN INTRODUCTION Robinson 0. Everett N -1 THE MILITARY RULES OF EVIDENCE: ORIGINS AND JUDICIAL INTERPRETATION Fredric I. Lederer THE USE OF EVIDENCE OF AN ACCUSED'S UNCHARGED MISCONDUCT TO PROVE MENS REA: THE DOCTRINE THAT THREATENS TO ENGULF THE CHARACTER EVIDENCE PROHIBITION 5 Edward J. Imwinkelried 8 MILITARY RULE OF EVIDENCE 804(b) (3)'s STATEMENT AGAINST PENAL INTEREST EXCEPTION: CAN THE RULE STAND ON ITS OWN? Mark E. Sharp SCIENTIFIC EVIDENCE IN COURTS-MARTIAL: FROM THE GENERAL ACCEPTANCE r ci C STANDARD TO THE RELEVANCY APPROACH Major Michael N. Schmitt and Captain Steven A. Hatfield MILITARY RULE OF EVIDENCE 404 AND GOOD MILITARY CHARACTER Lieutenant Colonel Paul A. Capofari Volume 130 Fall 1990 Pamphlet HEADQUARTERS DEPARTMENT OF THE ARMY NO. 27-100-130 Washington, D.C., Fall 1990 MILITARY LAW REVIEW-VOL. 130 The Military Law Review has been published quarterly at The Judge Advocate General’s School, US. Army, Charlottesville, Vir- ginia, since 1958. The Review provides a forum for those interested in military law to share the products of their experience and research and is designed for use by military attorneys in connection with their official duties. Writings offered for publication should be of direct concern and import in this area of scholarship, and preference will be given to those writings having lasting value as reference material for the military lawyer. The Review encourages frank discussion of relevant legislative, administrative, and judicial developments. EDITORIAL STAFF CAFTAIN MATTHEW E. WINTER, Editor MS. EVA F. SKINNER, Editorial Assistant SUBSCRIPTIONS: Private subscriptions may be purchased from the Superintendent of Documents, United States Government Printing Office, Washington, D.C. 20402. Publication exchange subscriptions are available to law schools and other organizations that publish legal periodicals. Editors or publishers of such periodicals should address inquiries to the Editor of the Review. Inquiries concerning subscriptions for active Army legal offices, other Federal agencies, and JAGC officers in the ARNGUS not on ac- tive duty should be addressed to the Editor of the Review. The editorial staff uses address tapes furnished by the U.S. Army Reserve Personnel Center to send the Review to JAGC officers in the USAR; Reserve judge advocates should promptly inform the Reserve Per- sonnel Center of address changes. Judge advocates of other military departments should request distribution from their service’s publica- tion channels. CITATION: This issue of the Review may be cited as 130 Mil. L. Rev. (number of page) (1990). Each quarterly issue is a complete, separate- ly numbered volume. i POSTAL INFORMATION: The Military Law Review (ISSN 0026- 4040) is published quarterly at The Judge Advocate General’s School, US. Army, Charlottesville, Virginia 22903-1781. Second-class postage paid at Charlottesville, Virginia and additional mailing offices. POST- MASTER: Send address changes to Military Law Review, The Judge Advocate General’s School, U.S. Army, Charlottesville, Virginia 22903-1781. INDEXING: The primary Military Law Review indices are volume 91 (winter 1981) and volume 81 (summer 1978). Volume 81 included all writings in volumes 1 through 80, and replaced all previous Revieu! indices. Volume 91 included writings in volumes 75 through 90 (ex- cluding Volume Sl), and replaced the volume indices in volumes 82 through 90. Volume indices appear in volumes 92 through 95, and were replaced by a cumulative index in volume 96. A cumulative index for volumes 97-101 appears in volume 101, and a cumulative index for volumes 102-111 appears in volume 111. Volume 121 con- tains a cumulative index for volumes 112-121. Military Law Review articles are also indexed in A Bibliography of Contents: Political Science and Government; Legal Contents (C.C.L.J?); Index to Legal Periodicals; Monthly Catalogue of United States Government Publications; Index to US Government Periodi- cals; Legal Resources Index; three computerized data bases, the Pub- lic Affairs Information Smice, The Social Science Citation Index, and LEXIS; and other indexing services. Issues of the Military Law Review are reproduced on microfiche in Current US Government Periodicals on Microfiche, by Infordata International Inc., Suite 4602, 175 East Delaware Place, Chicago, Illinois 60611. ii MILITARY LAW REVIEW TABLE OF CONTENTS Title Page Military Rules of Evidence Symposium: An Introduction Robinson 0. Everett. ............................ 1 The Military Rules of Evidence: Origins and Judicial Implementation Fredric I. Lederer ............................... 5 The Use of Evidence of an Accused’s Uncharged Misconduct to Prove Mens Rea: The Doctrine That Threatens to Engulf the Character Evidence Prohibition Edward J. Imwinkelried ......................... 41 Military Rule of Evidence 804(b) (3)’sStatement Against Penal Interest Exception: Can the Rule Stand on its Own? Mark E. Sharp .................................. 77 Scientific Evidence in Courts-Martial: From the General Acceptance Standard to the Relevancy Approach Major Michael N. Schmitt and Captain Steven A. Hatfield ....................... 135 Military Rule of Evidence 404 and Good Military Character Lieutenant Colonel Paul A. Capofari ............... 171 iii SUBMISSION OF WRITINGS: Articles, comments, recent development notes, and book reviews should be submitted typed in duplicate, double-spaced, to the Editor, Military Law Rewiao, The Judge Advocate General's School, U.S. Army, Charlottesville, Virginia 22903-1781 (hereinafter TJAGSA). Authors should also submit a 5% inch or 3% inch computer diskette containing their articles in an IBM-compatible format. Footnotes also must be typed double-spaced and should appear as a separate ap- pendix at the end of the text. Footnotes should be numbered consecutively from the beginning to end of a writing, not chapter by chapter. Citations should conform to the Uniform System of Citation (14th ed. 1986), copyrighted by the Columbia, Har- vard, and University of Pennsylvania Law Reviews and the Yale Lau>Journal, and to Military Citation (TJAGSA 4th ed. 1988) (available through the Defense Technical Information Center, ordering number AD B124193). Masculine pronouns appearing in the text will refer to both genders unless the context indicates another use. Typescripts should include biographical data concerning the author or authors. This data should consist of grade or other title, present and immediate past positions or duty assignments, all degrees, with names of granting schools and years received, bar admissions, and previous publications. If the article was a speech or was prepared in partial fulfillment of degree requirement$ the author should include date and place of delivery of the speech or the source of the degree. EDITORIAL REVIEW: The Editorial Board of the Military Law Review consists of the Deputy Commandant of The Judge Advocate General's School; the Director, Developments, Doctrine, and Literature Department; and the Editor of the Rezvh They are assisted by instructors from the teaching divisions of the School's Academic Department. The Board submits its recommendations to the Commandant, TJAGSA, who has final approval authority for writings published in the Review The Military Law Review does not purport to promulgate Department of the Army policy or to be in any sense directory. The opinions and conclusions reflected in each writing are those of the author and do not necessarily reflect the views of The Judge Advocate General or any governmental agency. The Board will evaluate all material submitted for publication. In determining whether to publish an article, note, or book review, the Board will consider the item's substantive accuracy, comprehensiveness, organization, clarity, timeliness, originali- ty, and value to the military legal community. There is no minimum or maximum length requirement. When a writing is accepted for publication, a copy of the edited manuscript will generally be provided to the author for prepublication approval. Minor alterations may be made in subsequent stages of the publication process without the approval of the author. Because of contract limitations, neither galley proofs nor page proofs are provided to authors. Reprints of published writings are not available. Authors receive complimentary copies of the issues in which their writings appear. Additional copies are usually available in limited quantities. They may be requested from the Editor of the Ree1ieu:. BACK ISSUES: Copies of recent back issues are available to Army legal offices in limited quantities from the Editor of the Review. Bound copies are not available and subscribers should make their own arrangements for binding if desired. REPRINT PERMISSION: Contact the Editor, Military Law Revieu, The Judge Ad- vocate General's School, U.S. Army, Charlottesville, Virginia 22903-1781. iv MILITARY RULES OF EVIDENCE SYMPOSIUM: AN INTRODUCTION by Robinson 0. Everett* A decade ago, after a two-year effort initiated by the Department of Defense General Counsel, the President promulgated the Military Rules of Evidence. These rules have had an enormous impact on the military justice system and on the conduct of courts-martial. It seems especially propitious, therefore, that we celebrate the tenth anniver- sary of the Military Rules of Evidence with a review of some of the significant developments in the Military Rules over the past decade. This issue of the Military Law Review contains numerous
Load more

Recommended publications
  • A History of Evidence in Medical Decisions: from the Diagnostic Sign to Bayesian Inference
    BRIEF REPORTS A History of Evidence in Medical Decisions: From the Diagnostic Sign to Bayesian Inference Dennis J. Mazur, MD, PhD Bayesian inference in medical decision making is a concept through the development of probability theory based on con- that has a long history with 3 essential developments: 1) the siderations of games of chance, and ending with the work of recognition of the need for data (demonstrable scientific Jakob Bernoulli, Laplace, and others, we will examine how evidence), 2) the development of probability, and 3) the Bayesian inference developed. Key words: evidence; games development of inverse probability. Beginning with the of chance; history of evidence; inference; probability. (Med demonstrative evidence of the physician’s sign, continuing Decis Making 2012;32:227–231) here are many senses of the term evidence in the Hacking argues that when humans began to examine Thistory of medicine other than scientifically things pointing beyond themselves to other things, gathered (collected) evidence. Historically, evidence we are examining a new type of evidence to support was first based on testimony and opinion by those the truth or falsehood of a scientific proposition respected for medical expertise. independent of testimony or opinion. This form of evidence can also be used to challenge the data themselves in supporting the truth or falsehood of SIGN AS EVIDENCE IN MEDICINE a proposition. In this treatment of the evidence contained in the Ian Hacking singles out the physician’s sign as the 1 physician’s diagnostic sign, Hacking is examining first example of demonstrable scientific evidence. evidence as a phenomenon of the ‘‘low sciences’’ Once the physician’s sign was recognized as of the Renaissance, which included alchemy, astrol- a form of evidence, numbers could be attached to ogy, geology, and medicine.1 The low sciences were these signs.
    [Show full text]
  • Teaching Evidence
    Saint Louis University Law Journal Volume 50 Number 4 (Summer 2006) Article 4 2006 Teaching Evidence Paul Rothstein Follow this and additional works at: https://scholarship.law.slu.edu/lj Part of the Law Commons Recommended Citation Paul Rothstein, Teaching Evidence, 50 St. Louis U. L.J. (2006). Available at: https://scholarship.law.slu.edu/lj/vol50/iss4/4 This Article is brought to you for free and open access by Scholarship Commons. It has been accepted for inclusion in Saint Louis University Law Journal by an authorized editor of Scholarship Commons. For more information, please contact Susie Lee. SAINT LOUIS UNIVERSITY SCHOOL OF LAW TEACHING EVIDENCE PAUL ROTHSTEIN* I teach Evidence in a four-hour course over one semester. It meets twice a week for fourteen weeks, two hours each session, which includes a ten-minute break in the middle of the session. I. COURSE OBJECTIVES I strive to instill knowledge of the law of evidence, proficiency in applying it, and a thoughtful and critical attitude toward it. I seek to equip students not only to function in the present, but also to anticipate and deal with the future. They should be able to handle change and understand the potential directions of change. They should be exposed to legal, factual, and cultural trends and developments that might affect the law we learn today. And they must be prepared to perform ethically. Even if many students will never actually try a case, I believe knowledge of evidence will help them in almost any function they may perform as lawyers, since so much depends, in shaping any legal transaction, upon what * Professor of Law at Georgetown University Law Center, specializing in Evidence, Torts, and other subjects related to civil and criminal litigation and the judicial process from the Supreme Court on down.
    [Show full text]
  • Route Analysis of Credibility and Hearsay*
    The Yale Law Journal Volume 96, Number 4, March 1987 Articles Route Analysis of Credibility and Hearsay* Richard D. Friedmant This Article applies a simple graphic technique, which I call route analysis,' to problems of credibility and hearsay. Route analysis facilitates the examination of the role that a given piece of evidence plays in the proof of an uncertain factual proposition. The focus of this Article is on a particularly important type of evidence-a person's declaration or other conduct that tends to prove the truth of a proposition because the person asserts the proposition or his conduct otherwise indicates he believes it to be true. This Article assumes, as a working premise, that such declara- tions or other conduct, whether in court or out of court, can be analyzed by the same technique used for other types of evidence. I hope to demon- strate that this premise is correct by reaching intuitively appealing yet nontrivial results; some of these results are quite general, while others concern specific recurrent issues of evidence law, such as the Hillmon doctrine. * C Copyright 1987, Richard D. Friedman. All rights reserved. t Associate Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University. In writ- ing this Article, I have benefited from the comments, suggestions, criticisms, and encouragement of many people, especially Ronald Allen, David Kaye, Richard Lempert, Peter Lushing, Paul Shupack, Stewart Sterk, Peter Tillers, Jack Weinstein, and Susan Wolf. 1. I presented the technique in a previous article, Friedman, A Diagrammatic Approach to Evi- dence, 66 B.U.L. REv.
    [Show full text]
  • I. Introduction
    COMMITTEE ON RULES OF PRACTICE AND PROCEDURE OF THE JUDICIAL CONFERENCE OF THE UNITED STATES WASHINGTON, D.C. 20544 DAVID G. CAMPBELL CHAIRS OF ADVISORY COMMITTEES CHAIR MICHAEL A. CHAGARES REBECCA A. WOMELDORF APPELLATE RULES SECRETARY SANDRA SEGAL IKUTA BANKRUPTCY RULES JOHN D. BATES CIVIL RULES DONALD W. MOLLOY CRIMINAL RULES DEBRA ANN LIVINGSTON EVIDENCE RULES MEMORANDUM TO: Hon. David G. Campbell, Chair Committee on Rules of Practice and Procedure FROM: Hon. Debra Ann Livingston, Chair Advisory Committee on Evidence Rules RE: Report of the Advisory Committee on Evidence Rules DATE: May 14, 2018 ______________________________________________________________________________ I. Introduction The Advisory Committee on Evidence Rules (the “Committee”) met on April 26-27, 2018 in Washington, D.C. At the meeting the Committee discussed ongoing projects involving matters such as possible amendments to Rules 404(b), 606(b), 702, 801(d)(1)(A) and 807. It also considered proposals submitted to the Committee suggesting changes to Rules 106 and 609(a)(1), as well as a proposal to adopt a rule governing illustrative aids. The Committee made the following determinations at the meeting: ● It unanimously approved the proposed amendment to Rule 807, and is submitting it to the Standing Committee for final approval. ● It unanimously approved a proposed amendment to Rule 404(b), and is submitting it to the Standing Committee with the recommendation that it be released for public comment; Committee on Rules of Practice & Procedure | June 12, 2018 Page 397 of 502 Report to the Standing Committee Advisory Committee on Evidence Rules May 14, 2018 Page 2 ● It agreed to consider a possible amendment to Rule 106.
    [Show full text]
  • EVIDENCE LAW UPDATE September 2018 Introduction General Principles State V
    EVIDENCE LAW UPDATE September 2018 Introduction General Principles State v. Soto “Looks like a jury . Let me tell you how this ends.” Can you say guilty? Rule 606—Juror Competency During an inquiry into the validity of a verdict or indictment, a juror may not testify about: O Statements or incidents during deliberation; O Effect of anything on a juror’s vote; or O Any juror’s mental processes. Rule 606--Exceptions O Extraneous prejudicial information improperly brought to the juror’s attention O Outside influence improperly brought to bear on any juror. Purpose of Evidence Law O Concession to the shortness of life. O Serve policy goals. O Produce just verdicts Professor George Fisher “Much of our task ahead is to plot the crooked line that separates evidence we think the jury can evaluate reasonably (and therefore is admissible) from evidence we think will distract the jury from its search for truth (and therefore is not admissible). Examine this line critically. After all, the notion that we can get more truth from less evidence must have strict limits.” Article I General Provisions Curative Instructions The Rule of Completion Rule 105. Limiting Instructions O “If the court admits evidence that is admissible against a party or for a purpose— but not against another party or for another purpose—the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.” State v. Padilla 2018 UT App 108 But where did those other two gang members go? Rule 106. Rule of Completion O If a party produce all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time.
    [Show full text]
  • Character Evidence and Self- Defense in Homicide and Assault Cases
    CHRISTOPHER W. BEHAN∗ When Turnabout Is Fair Play: Character Evidence and Self- Defense in Homicide and Assault Cases Introduction ................................................................................. 735 I. Self-Defense and Character Evidence.............................. 739 A. Raising Self-Defense .................................................... 739 B. Character Evidence and Self-Defense........................ 743 1. Logical Structure..................................................... 743 2. Character Evidence in the Courtroom................. 744 3. Character Evidence and Self-Defense Under the Common Law................................................... 746 a. The Decision to Introduce Character Evidence............................................................ 746 b. Victim Character Evidence.............................. 748 4. Self-Defense and Character Evidence Under the Federal Rules ................................................... 751 a. Methods of Proof .............................................. 751 b. Character Evidence Rules Prior to 2000........ 757 c. Post-2000 Character Evidence Rules.............. 760 ∗ Assistant Professor of Law, Southern Illinois University School of Law, Carbondale, Illinois. L.L.M., Commandant’s List, 2003, The Judge Advocate General’s School, United States Army; J.D., magna cum laude, 1995, J. Reuben Clark Law School, Brigham Young University. The author wishes to thank Valery Behan, Dan DiPaola, Mark Lee, Bill Schroeder, and Michelle Slack for their helpful comments
    [Show full text]
  • Wisconsin's Uncharged Misconduct Evidence Rule: an Analysis of Section 904.04(2)
    COMMENT WISCONSIN'S UNCHARGED MISCONDUCT EVIDENCE RULE: AN ANALYSIS OF SECTION 904.04(2) I. INTRODUCTION Wisconsin courts have uniformly held that evidence of uncharged mis- conduct1 is inadmissible to establish the defendant's general character, dis- position or criminal propensity.2 Following the lead of the federal jurisdiction,3 the Wisconsin legislature adopted this fundamental principle and codified it in Wisconsin Statute Section 904.04(2). Section 904.04(2) states: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conform- ity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, in- tent, preparation, plan, knowledge, identity, or absence of mistake or accident. 4 1. The phrase "uncharged misconduct" denotes acts that are not charged in the indictment or information for which the defendant is currently on trial. Comment, Admission of Evidence of Other Misconduct in Washington to Prove Intent or Absence of Mistake or Accident: The Logical Inconsistencies of Evidence Rule 404(b), 61 WASH. L. REv. 1213, 1213 n.4 (1986). "Uncharged misconduct" is more commonly known as "other crimes, wrongs, or acts." Since the phrase uncharged misconduct characterizes this evidence more accurately, this Comment will substitute the phrase "uncharged misconduct" for the phrase "other crimes, wrongs, or acts." Although this evidence is also admissible in civil cases, this Comment will focus on the admissibility of this evidence in criminal cases. 2. See Fossdahl v. State, 89 Wis. 482, 485, 62 N.W.
    [Show full text]
  • Amicus Curiae Brief
    Received 7/25/2019 11:53:34 PM Superior Court Eastern District Filed 7/25/2019 11:53:00 PM Superior Court Eastern District 3314 EDA 2018 IN THE SUPERIOR COURT OF PENNSYLVANIA FOR THE EASTERN DISTRICT COMMONWEALTH OF No. 3932-16 PENNSYLVANIA 3314 EDA 2018 v. WILLIAM H. COSBY, JR. BRIEF OF THE RAPE, ABUSE & INCEST NATIONAL NETWORK AS AMICI CURIAE IN SUPPORT OF THE COMMONWEALTH OF PENNSYLVANIA'S BRIEF FOR APPELLEE TABLE OF CONTENTS I. SUMMARY OF THE ARGUMENT 3 II. BACKGROUND 4 A. Victim and Prior Bad Acts Witness Testimonies Presented at Trial 5 III. ARGUMENT 9 A. The Testimony of the Five Prior Bad Acts Witnesses Is Admissible Under Rule 404 10 B. The Testimony of the Five Prior Bad Acts Witnesses is Admissible Under the Doctrine of Chances 15 C. The Doctrine of Chances is an Established Legal Doctrine 19 D. The Testimony of the Five Additional Witnesses Is Important as a Matter of Public Policy to Counter Pervasively Held Misconceptions About Sexual Violence 21 E. Prior Bad Acts Evidence is Sound Public Policy and Improves Victim's Access to Justice 26 IV. CONCLUSION 29 TABLE OF AUTHORITIES Page(s) Cases Commonwealth v. Aikens, 990 A.2d 1181 (Pa. Super. Ct. 2010) 15 Commonwealth. v. Clay, 64 A.3d 1049 (Pa. Super. Ct. 2013) 9 Commonwealth v. Hicks, 156 A.3d 1114 (Pa. Super. Ct. 2017) 4, 16, 18 Commonwealth v. Ivy, 146 A.3d 241 (Pa. Super. Ct. 2016) 10 Commonwealth v. Judd, 897 A.2d 1224 (Pa. Super. Ct. 2006) 10 Commonwealth v.
    [Show full text]
  • Nebraska Criminal Defense Attorneys Association (NCDAA) Seminar Mangrum on Evidence: Criminal
    Nebraska Criminal Defense Attorneys Association (NCDAA) Seminar Mangrum on Evidence: Criminal Law Professor R. Collin Mangrum, JD Creighton University School of Law Wednesday, October 17, 2018 Embassy Suites Hotel – La Vista Conference Center This page intentionally left blank. MANGRUM ON HEARSAY, CHARACTER EVIDENCE AND CLOSING ARGUMENTS Wednesday, October 17, 2018 Article 8: Hearsay and Confrontation: Breaking Down Hearsay Problems 8:30- 9:15: The Concept of Hearsay and Nonhearsay Categories Step 1: Does the evidence include an out of court statement? • Oral • Written • Assertive conduct Step 2: By a person? • Dogs excepted • Equipment readouts excepted Step 3: Does the “statement” assert a fact? (Is it assertive?) • Questions are seldom assertive • Commands are seldom assertive • Implied assertions or nonassertive conduct may not be assertive Step 4: Is the statement offered for truth of the fact asserted? State v. McCave, 282 Neb. 500 (2011)(Verbal acts are nonhearsay) In re Hla H., 25 Neb. App. 118 (2017): A letter offered to show that Hla and his family had been referred by the County to community-based resiource) Calmat v. U.S. Dept. of Labor, 364 F.3d (9th Cir. 2004)(Effect on hearer) Bridges v. State, 247 Wis. 350 (1945)(Independently established facts) State v. Peeler, 126 Ariz. 254 (Ct. App. 1980)(Independent rational significance) State v. Rodriguez, 272 Neb. 930 (2007)(Impeachment) State v. Robinson, 271 Neb. 698 (2006)(Falsity) Step 5: Is there an 801 statutory nonhearsay category? Statements for In-Court Declarants of Prior Statements: (Available for cross examination, even though may not recall prior statement) 801(4)(a)(1) Prior Inconsistent Statements: Beware of the “no-artifice” rule Nebraska 29-1917: State v.
    [Show full text]
  • Spreigl Evidence: Still Searching for a Principled Rule Ted Sampsell-Jones Mitchell Hamline School of Law, [email protected]
    Mitchell Hamline School of Law Mitchell Hamline Open Access Faculty Scholarship 2009 Spreigl Evidence: Still Searching for a Principled Rule Ted Sampsell-Jones Mitchell Hamline School of Law, [email protected] Publication Information 35 William Mitchell Law Review 1372 (2009) Repository Citation Sampsell-Jones, Ted, "Spreigl Evidence: Still Searching for a Principled Rule" (2009). Faculty Scholarship. Paper 23. http://open.mitchellhamline.edu/facsch/23 This Article is brought to you for free and open access by Mitchell Hamline Open Access. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. Spreigl Evidence: Still Searching for a Principled Rule Abstract This article first examines how Minnesota’s character evidence doctrine developed, with a particular focus on the historical confusion regarding the propriety of the propensity inference. It then examines current case law and argues that Minnesota’s current Spreigl doctrine routinely allows propensity evidence. It finally proposes a choice between abandoning the current Spreigl doctrine and repealing the character rule itself. The uthora takes no position on which alternative should be chosen, but either is better than the status quo. The current doctrine in Minnesota is a Potemkin village. Keywords Evidence law, criminal procedure, character evidence, Minnesota law, criminal law, propensity evidence Disciplines Evidence This article is available at Mitchell Hamline Open Access: http://open.mitchellhamline.edu/facsch/23 SPREIGL EVIDENCE: STILL SEARCHING FOR A PRINCIPLED RULE † Ted Sampsell-Jones I. THE PAST: THE DEVELOPMENT OF THE SPREIGL DOCTRINE IN MINNESOTA ..................................................................... 1372 A.
    [Show full text]
  • IN the SUPREME COURT of the STATE of OREGON STATE of OREGON, Plaintiff-Respondent, Respondent on Review, V
    August 24, 2018 08:41 PM IN THE SUPREME COURT OF THE STATE OF OREGON __________________ STATE OF OREGON, Multnomah County Circuit Court No. 14CR10194 Plaintiff-Respondent, Respondent on Review, CA A159562 v. MICHAEL GEORGE SPEROU, SC S065471 Defendant-Appellant, Petitioner on Review. PETITIONER’S BRIEF ON THE MERITS ______________ Review of the Decision of the Court of Appeals On Appeal from a Judgment Of the Circuit Court for Multnomah County Honorable CHERYL A. ALBRECHT, Judge ___________________ Affirmed without opinion: September 27, 2017 Judges on Panel: LAGESEN, E., DEVORE, J., JAMES, B. ________________ STEVEN J. SHERLAG, OSB# 931034 ELLEN F. ROSENBLUM #753239 SHERLAG | DE MUNIZ LLP Attorney General 1000 SW Broadway, Suite 1500 MICHAEL A. CASPER #062000 Portland, Oregon 97205 Senior Assistant Attorney General (503) 227-5200 1162 Court St. NE [email protected] Salem, Oregon 97301 Attorney for Petitioner on Review Telephone: 503-378-4402 [email protected] Attorneys for Respondent on Review 08/18 i TABLE OF CONTENTS STATEMENT OF THE CASE ..........................................................................1 Questions Presented and Proposed Rules of Law ............................................. 4 Statement of Procedural and Historical Facts ................................................... 5 Summary of Argument ....................................................................................13 ARGUMENT ...................................................................................................15
    [Show full text]
  • The Evidentiary Issue Crystalized by the Cosby and Weinstein Scandals: the Propriety of Admitting Testimony About an Accused's
    THE EVIDENTIARY ISSUE CRYSTALIZED BY THE COSBY AND WEINSTEIN SCANDALS: THE PROPRIETY OF ADMITTING TESTIMONY ABOUT AN ACCUSED’S UNCHARGED MISCONDUCT UNDER THE DOCTRINE OF OBJECTIVE CHANCES TO PROVE IDENTITY Edward J. Imwinkelried* The numbers in the scandals are staggering. By one count, eighty-seven different women have accused former movie mogul Harvey Weinstein of sexual misconduct.1 In the case of Bill Cosby, the number stands at more than fifty.2 The accusations against Mr. Cosby have already led to criminal charges in Pennsylvania.3 Although the charge against Mr. Cosby names only one victim, Ms. Andrea Constad, the prosecution sought to introduce testimony about uncharged incidents involving nineteen other accusers.4 The prosecution’s effort in the Cosby case is not an isolated incident. The Federal Rules of Evidence contain a provision governing the admissibility of uncharged misconduct. In pertinent part, Rule 404(b) reads: * Edward L. Barrett, Jr. Professor of Law Emeritus, University of California Davis; author, Uncharged Misconduct Evidence (rev. 2017) (2 vols.); former chair, Evidence Section, American Association of Law Schools. 1. Sara M. MoniuszKo & Cara Kelly, Harvey Weinstein Scandal: A Complete List of the 87 Accusers, USA TODAY (Oct. 27, 2017, 11:27 AM), https://www.usatoday.com/story/life/people/ 2017/10/27/weinstein-scandal-complete-list-accusers/804663001/. 2. Chris Francescani & Linsey Davis, Bill Cosby’s Fate Could Turn on a Pivotal Court Decision Expected Next Week, ABC NEWS (Mar. 2, 2018, 1:08 AM), https://abcnews.go.com/US/bill-cosbys-fate-turn-pivotal-court-decision-expected/story?id=53450 806 [hereinafter Francescani]; see also Lizzy McLellan, Second Time Around: As Bill Cosby’s Retrial Looms, Lawyers Consider Whether He Can Get a Fair Trial Amidst the Growing #MeToo Movement, NAT’L L.J., Feb.
    [Show full text]