DOCSLIB.ORG

Clients, Lawyers and the Fifth Amendment: the Need for a Projected Privilege

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Clients, Lawyers and the Fifth Amendment: the Need for a Projected Privilege CLIENTS, LAWYERS AND THE FIFTH AMENDMENT: THE NEED FOR A PROJECTED PRIVILEGE KEviN R. REiTz* INTRODUCTION ............................................... 573 I. THE SUSPECT'S RIGHTS OF TESTIMONIAL PASsIvITY ...... 576 A. The Rights of Passivity Under Existing Law ........... 576 B. Bases of the Rights ................................... 580 II. COUNSEL'S OBLIGATIONS TO COME FORWARD WITH INCRIMINATING EVIDENCE IN THE ABSENCE OF A SPECIFIC LEGAL COMMAND ............................... 584 A. The Olwell Line of Cases ............................. 584 1. State v. Olwell .................................... 585 2. M orrell v. State ................................... 587 3. People v. Meredith ............................... 592 4. Summary ......................................... 594 B. Legal Bases of the Olwell Rule ........................ 594 1. Obstruction Laws ................................. 597 2. ContrabandLaws ................................. 598 C. Policies and Emotions of the Olwell Rule .............. 600 1. Anti-Hindrance Policies ........................... 600 2. Em otions ......................................... 603 D. Must the Olwell Rule be Extended to Incriminating Documents in White-Collar Cases? .................... 605 E. The Reach of the Olwell Rule ......................... 608 1. Standardof Knowledge ............................ 608 2. Retrospective Application .......................... 611 F. Transition ............................................ 612 III. COUNSEL'S OBLIGATION TO COME FORWARD WITH INCRIMINATING EVIDENCE WHEN PLACED UNDER SPECIFIC LEGAL COMMAND ............................... 613 A. The Fifth Amendment Under Fisher v. United States .. 615 1. The "'Simulated"Privilege ......................... 616 * Associate Professor, University of Colorado School of Law. I owe thanks to my colleagues who reviewed earlier drafts of this Article: Michael Bender, Richard Delgado, Pat Furman, Dennis Hall, Lynne Henderson, Hiroshi Motomura, Charles Pengilly, Bill Pizzi, and Steve Smith. My best and most valued editor through many drafts was my father. Vol. 41:572] PROJECTED PRIVILEGE 2. The Client's "Act of Production" Privilege .......... 618 3. United States v. Doe (Doe I) and the Immunity Loophole ......................................... 623 B. Can Fisher and Olwell Coexist? ...... 627 1. Relitigating Qlwell ................................ 628 2. Is the Simulated Privilege Based in the Constitution?...................................... 636 C. Legal Commands Not Subject to the Fifth Amendment Under Fisher ......................................... 638 1. The Limitations of the Attorney-Client Privilege..... 639 D. Summary of Parts II and III ......................... 648 IV. THE NEED FOR A PROJECTED FIFTH AMENDMENT PRIVILEGE ................................................ 650 A. Statement of the Projected Privilege ................... 651 B. The Solution to the Depository Problem The "Hybrid Order"............. .................................. 654 1. M echanics ........................................ 654 2. Constitutional Objections .......................... 658 V. CONCLUSION ............................................. 659 INTRODUCTION Under current law, it could be a serious mistake for a suspect in a criminal case to obtain counsel. For years, the courts have recognized specific instances where defense lawyers must behave as government agents or informants, providing client-incriminating evidence and infor- mation to prosecutors. In recent times, this once-narrow category of cases has shown dramatic growth as prosecutors have increasingly turned to defense lawyers as sources of evidence, and have increasingly met with success. It is time to reevaluate across-the-board how the law should respond to such developments. The early cases, starting with State v. Olwell,1 concerned physical evidence of violent crime (such as alleged murder weapons) but broadly held that defense lawyers had an affirmative duty to come forward on their own initiative with relevant client-incriminating evidence in their possession. 2 Failure to do so, in fact, could be a criminal offense.3 If we 1. 394 P.2d 681 (Wash. 1964). 2. See id. at 684. In some cases, the attorney may ultimately be required to testify against her client (now probably a former client) regarding the history of the evidence produced, where it was found, who originally had possession, and other knowledge the attorney may have about the evi- dence. See, eg., Morrell v. State, 575 P.2d 1200 (Alaska 1978); People v. Meredith, 631 P.2d 46 (Cal. 1981). Morrell and Meredith are discussed at length infra in Part II(A)(2) and Part II(A)(3), respectively. DUKE LAW JOURNAL [Vol. 41:572 are to take the Clwell line of decisions seriously-and they are still on the books-their import is far-reaching. Notably, defense lawyers in white- collar criminal cases would be required to supply to a prosecutor all rele- 4 vant documents that are potentially incriminating to their clients. Meanwhile, an analogous set of problems has been quickly develop- ing on a different front. Beginning in the early 1980s, the government has steadily increased its use of grand jury subpoenas and other legal commands directed to defense counsel in pursuit of client-incriminating evidence and testimony.5 Although the courts evinced an early hesita- tion to enforce such legal commands, the tide has turned in recent appel- late decisions. Where exceptions to the traditional safeguards of the attorney-client privilege and work product doctrine can be found, the files and memories of defense lawyers have proven remarkably accessible to prosecutors. These developments are sometimes perceived as part of a so-called governmental "war" upon defense counsel and the unpopular constitutional liberties of their clients. Whether or not this appellation is correct, it is undeniable that a significant volume of litigation is now oc- curring, and that the list of materials and testimony accessible to the 6 government is lengthening. The Supreme Court has spoken only to a small subset of the issues arising under Ciwell and the legal command cases, but the time for a major decision may be nearing. Privileges are seldom created in the ab- stract; the need for them must first appear. We have reached such a juncture now, where investigative techniques are outdistancing old safe- guards. The Court may soon step in, as it did in the venerable decision of Hickman v. Taylor,7 which created the work product doctrine or, more 3. See, eg., Morrell, 575 P.2d at 1211 (stating that lawyer might have violated Alaska's con- cealment of evidence statute if he had failed to produce client-incriminating evidence to police); In re Ryder, 263 F. Supp. 360, 370 (E.D. Va.) (holding that lawyer's failure to produce evidence violated state law concerning receipt of stolen property and federal law concerning receipt and possession of a firearm), aff'd, 381 F.2d 713 (4th Cir. 1967). 4. There is no principled reason to distinguish a lawyer's duties with respect to a smoking-gun document from those regarding a smoking gun. See infra Part 11(D). 5. See United States v. Perry, 857 F.2d 1346, 1347 (9th Cir. 1988) (discussing the govern- ment's apparently increasing use of grand jury subpoenas on a target's counsel); Max Stern & David Hoffman, Privileged Informers: The Attorney Subpoena Problem and a Proposalfor Reform, 136 U. PA. L. REv. 1783, 1787-89 (1988) (reporting an "explosion of subpoenas to lawyers" since the early 1980s); Breckinridge L. Willcox, Martin Marietta and the Erosion of the Attorney-Client Privilege and Work Product Protection, 49 MD. L. REV. 917, 940 (1990); Dan LeDuc, Lawyer Jailedfor Contempt, NAT'L L.J., Feb. 4, 1991, at 3. 6. Thus, for example, defense lawyers have been compelled to betray confidences concerning the undisclosed identities of their clients, fee arrangements with clients, and fee-payer relationships that demonstrate the client's involvement with others suspected in a criminal conspiracy. See gener- ally infra Part III(C). 7. 329 U.S. 495 (1947). Vol. 41:572] PROJECTEDPRIVILEGE recently, in Fisher v. United States8 and Upjohn Co. v. United States,9 which gave new force to the attorney-client privilege. If the Court does not move to occupy the field, however, the same issues will be left for resolution by legislatures, state courts, and drafters of codes of profes- sional conduct. I propose a unified solution to the range of problems outlined above through the adoption of a new "projected" Fifth Amendment privilege that would permit lawyers to assert their clients' self-incrimination privi- lege with respect to incriminating evidence and information lawfully ac- quired during the representation. The projected privilege would be available to counsel in all circumstances in which the client could claim a lawful ability under the Fifth Amendment to resist disclosure of the same evidence or information. Its driving principle is the preservation of a constitutional status quo defined by the client's self-incrimination rights in the absence of representation by an attorney. In conjunction with the projected privilege, I address the problem of how law enforcement agencies may be expected to reach physical evi- dence once in counsel's possession. Here I suggest that a new investiga- tive tool be created, with shared characteristics of a search warrant and subpoena. Based upon a showing of probable cause and the satisfaction of other Fourth Amendment requirements, this "hybrid order" could command defense
Load more

Recommended publications
  • Evidence in Criminal Proceedings Hearsay and Related Topics
    Criminal Law EVIDENCE IN CRIMINAL PROCEEDINGS: HEARSAY AND RELATED TOPICS A Consultation Paper LAW COMMISSION CONSULTATION PAPER No 138 The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Honourable Mr Justice Brooke, Chairman Professor Andrew Burrows Miss Diana Faber Mr Charles Harpum Mr Stephen Silber, QC The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WClN 2BQ. This Consultation Paper, completed for publication on 11 May 1995, is circulated for comment and criticism only. It does not represent the final views of the Law Commission. The Law Commission would be grateful for comments on this Consultation Paper before 31 October 1995. All correspondence should be addressed to: Ms C Hughes Law Commission Conquest House 37-38 John Street Theobalds Road London WClN 2BQ (Tel: 0171- 453 1232) (Fax: 0171- 453 1297) It may be helpful for the Law Commission, either in discussion with others concerned or in any subsequent recommendations, to be able to refer to and attribute comments submitted in response to this Consultation Paper. Any request to treat all, or part, of a response in confidence will, of course, be respected, but if no such request is made the Law Commission will assume that the response is not intended to be confidential. The Law Commission Consultation Paper No 138 Criminal Law EVIDENCE IN CRIMINAL PROCEEDINGS: HEARSAY AND RELATED TOPICS
    [Show full text]
  • Assertion and Hearsay
    Volume 125 Issue 2 Winter 2021 Assertion and Hearsay Richard Lloret Follow this and additional works at: https://ideas.dickinsonlaw.psu.edu/dlr Part of the Civil Law Commons, Civil Procedure Commons, Common Law Commons, Courts Commons, Criminal Law Commons, Criminal Procedure Commons, Evidence Commons, Judges Commons, Jurisprudence Commons, Legal Education Commons, Legal Ethics and Professional Responsibility Commons, Legal Profession Commons, Legal Writing and Research Commons, Litigation Commons, State and Local Government Law Commons, and the Supreme Court of the United States Commons Recommended Citation Richard Lloret, Assertion and Hearsay, 125 DICK. L. REV. 347 (2021). Available at: https://ideas.dickinsonlaw.psu.edu/dlr/vol125/iss2/3 This Article is brought to you for free and open access by the Law Reviews at Dickinson Law IDEAS. It has been accepted for inclusion in Dickinson Law Review by an authorized editor of Dickinson Law IDEAS. For more information, please contact [email protected]. \\jciprod01\productn\D\DIK\125-2\DIK202.txt unknown Seq: 1 10-FEB-21 13:14 Assertion and Hearsay Richard A. Lloret* ABSTRACT This article explores the characteristics and functions of as- sertion and considers how the term influences the definition of hearsay under Federal Rule of Evidence 801. Rule 801(a) de- fines hearsay by limiting it to words and conduct intended as an assertion, but the rule does not define the term assertion. Courts and legal scholars have focused relatively little attention on the nature and definition of assertion. That is unfortunate, because assertion is a robust concept that has been the subject of intense philosophic study over recent decades.
    [Show full text]
  • The Meanings of Hearsay
    Saint Louis University Law Journal Volume 50 Number 4 (Summer 2006) Article 9 2006 The Meanings of Hearsay John C. O'Brien Saint Louis University School of Law, [email protected] Follow this and additional works at: https://scholarship.law.slu.edu/lj Part of the Law Commons Recommended Citation John C. O'Brien, The Meanings of Hearsay, 50 St. Louis U. L.J. (2006). Available at: https://scholarship.law.slu.edu/lj/vol50/iss4/9 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 THE MEANINGS OF HEARSAY JOHN C. O’BRIEN* “When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” Lewis Carroll, Through the Looking-Glass For me, hearsay is one of the more elusive concepts in teaching the law of evidence. What does the concept of hearsay encompass? Should a particular item of evidence be classified as hearsay or not hearsay? A definition of hearsay is contained in the Federal Rules of Evidence, but this definition differs in significant ways from the traditional common-law concept. Moreover, any legal definition of hearsay—whether in the Federal Rules or the common law—bears only slight resemblance to the ordinary, generic meaning of that term, which law students presumably bring to their study of Evidence as part of their general fund of knowledge.
    [Show full text]
  • Reconstructing the Definition of Hearsay
    Reconstructing the Definition of Hearsay GLEN WEISSENBERGER* I. INTRODUCTION Evidence professors seem to have a pathological compulsion to scrutinize and reorder the hearsay system.1 Like the compulsive behavior of a person who * Judge Joseph P. Kinneary Professor of Law, University of Cincinnati. 1 See Michael H. Graham, "Stickperson Hearsay": A Simplified Approach to Understanding the Rule Against Hearsay, 1982 U. IhL. L. REv. 887 (employing a heuristic device to present a change in the form of the definition of hearsay and offering a simplified method of understanding the hearsay rule); Edward J. linwinkelried, The Constitutionalization of Hearsay: The Etent to Which the Fifth and Sisth Amendments Permit or Require the Liberalizationof the Hearsay Rules, 76 MINN. L. REv. 521 (1992) (discussing the degree to which the Constitution permits and requires liberalization of the hearsay rules); John M. Maguire, The Hearsay System: Around and Through the Thicket, 14 VAND. L. REv. 741 (1961) (describing "characteristic defects" of hearsay in the evidentiary system and proposing a "functioning definition of hearsay"); Christopher B. Mueller, Post-Modem Hearsay Reform: The Importance of Complexity, 76 MrNN. L. REv. 367 (1992) (discussing modem and post-modem criticisms of, and proposals for, reform and suggesting an approach designed to lead to better understanding of hearsay); Roger C. Park, A Subject Matter Approach to Hearsay Reform, 86 MIcH. L. REv. 51 (1987) [hereinafter Park I] (arguing that the Federal Rules of Evidence should be modified to address issues that arise in criminal, but not civil, cases); Roger C. Park, "I Didn't Tell Them Anything About You": Implied Assertions as Hearsay Under the FederalRules of Evidence, 74 MINN.
    [Show full text]
  • Recurring Nightmares? Evidence Issues That Keep Coming Back in Employment Cases Lynn Mclain University of Baltimore, [email protected]
    University of Baltimore Law ScholarWorks@University of Baltimore School of Law All Faculty Scholarship Faculty Scholarship 7-23-2010 Recurring Nightmares? Evidence Issues that Keep Coming Back in Employment Cases Lynn McLain University of Baltimore, [email protected] Follow this and additional works at: http://scholarworks.law.ubalt.edu/all_fac Part of the Law Commons Recommended Citation Lynn McLain, Recurring Nightmares? Evidence Issues that Keep Coming Back in Employment Cases, (2010). Available at: http://scholarworks.law.ubalt.edu/all_fac/899 This Article is brought to you for free and open access by the Faculty Scholarship at ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in All Faculty Scholarship by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. Recurring Nightmares? Evidence Issues that Keep Coming Back in Employment Cases ALI-ABA Santa Fe, NM July 23, 2010 The Hon. Paul W. Grimm, Moderator Panel: The Hon. Bernice B. Donald, The Hon. Rebecca R. Pallmeyer, Edward T. Ellis, Esq., and Prof. Lynn McLain1 Table of Contents Page I. The Intersection (Multi-Car Collision?) of Relevance, Character Evidence, Hearsay, and Authentication in the “Social Networking” Era ................. 1 A. Hypothetical Fact Patterns ............................................................................ 1 B. Evidence Questions Raised by the Hypotheticals ......................................... 2 II. General Relevance
    [Show full text]
  • Flow Chart for Hearsay and the Confrontation Clause 'Crawford Through Bernadyn' (April 18, 2012)
    University of Baltimore Law ScholarWorks@University of Baltimore School of Law All Faculty Scholarship Faculty Scholarship 4-18-2012 Flow Chart for Hearsay and the Confrontation Clause 'Crawford Through Bernadyn' (April 18, 2012). University of Baltimore School of Law Legal Studies Research Paper Lynn McLain University of Baltimore, [email protected] Follow this and additional works at: http://scholarworks.law.ubalt.edu/all_fac Part of the Evidence Commons Recommended Citation Lynn McLain, Flow Chart for Hearsay and the Confrontation Clause 'Crawford Through Bernadyn' (April 18, 2012). University of Baltimore School of Law Legal Studies Research Paper, (2012). Available at: http://scholarworks.law.ubalt.edu/all_fac/924 This Article is brought to you for free and open access by the Faculty Scholarship at ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in All Faculty Scholarship by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. Hearsay and the Confrontation Clause © 2012 Prof. Lynn McLain University of Baltimore School of Law (may be reproduced with attribution) Overview: Only an out-of-court statement (OCS) offered for TOMA = hearsay (HS). The Confrontation Clause applies only to “testimonial” HS. Table of Contents Chart 1 FLOW CHART FOR HEARSAY AND CONFRONTATION CLAUSE ANALYSIS…………………………………………………………..3 I. ADMISSIBILITY OR EXCLUSION UNDER THE RULES OF EVIDENCE…………………………………………………………………..3 II. THE EVIDENCE IS ADMISSIBLE UNDER THE EVIDENCE RULES! BUT DOES THE CONSTITUTION EXCLUDE IT? ……………4 A. Confrontation Clause Overview……………………………………………4 B. If the Confrontation Clause Does Not Exclude the Evidence because the Hearsay is Nontestimonial, the Only Remaining Constitutional Safeguard Is the Due Process Clause……………………………………….5 Chart 2 IS THE EVIDENCE AN “OUT OF COURT STATEMENT” (“OCS”) OF A PERSON?...................................................................................................6 A.
    [Show full text]
  • Case Law Divergence from the Federal Rules of Evidence (2000)
    Case Law Divergence from the Federal Rules of Evidence daniel j. capra Reed Professor of Law Fordham University School of Law federal judicial center This publication was undertaken in furtherance of the Federal Judicial Center’s statutory mission to conduct and stimulate research and development for the improvement of judi- cial administration. The views expressed are those of the author and not necessarily those of the Federal Judicial Center. This page is blank in the printed version of the report. Contents Introduction, 1 Examples of Case Law In Conflict with the Text of the Rule, the Committee Note, or Both, 3 1. Rule 106, 3 2. Rule 403, 4 3. Rule 404(a), 4 4. Rule 407, 5 5. Rule 601, 6 6. Rule 607, 6 7. Rule 608(b), 7 8. Rule 613(b), 7 9. Rule 704(b), 8 10. Rule 801(c) (Implied Assertions), 9 11. Rule 801 Committee Note on Confrontation, 9 12. Rule 803(4), 10 13. Rule 803(5), 11 14. Rule 803(6), 11 15. Rule 803(8)(B), 12 16. Rule 803(8)(B) and (C), 12 17. Rule 804(b)(1), 13 18. Rule 804(b)(3), 14 19. Rule 805, 14 20. Rule 806, 15 21. Rule 807, 15 Examples of Case Law Development Where the Rule and Committee Note Are Silent, 17 1. Rule 103, 17 2. Rule 104(a), 18 3. Rule 301, 19 4. Rule 404(b), 20 5. Rule 410, 21 6. Article VI, 22 7. Rule 615, 23 8. Rule 801(d)(1)(B), 23 9.
    [Show full text]
  • Implied Assertions As Hearsay Under the Federal Rules of Evidence Roger C
    University of California, Hastings College of the Law UC Hastings Scholarship Repository Faculty Scholarship 1990 "I Didn't Tell Them Anything About You": Implied Assertions as Hearsay under the Federal Rules of Evidence Roger C. Park UC Hastings College of the Law, [email protected] Follow this and additional works at: http://repository.uchastings.edu/faculty_scholarship Part of the Evidence Commons Recommended Citation Roger C. Park, "I Didn't Tell Them Anything About You": Implied Assertions as Hearsay under the Federal Rules of Evidence, 74 Minn. L. Rev. 783 (1990). Available at: http://repository.uchastings.edu/faculty_scholarship/602 This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Faculty Publications UC Hastings College of the Law Library Park Roger Author: Roger C. Park Source: Minnesota Law Review Citation: 74 Minn. L. Rev. 783 (1990). Title: “I Didn't Tell Them Anything About You”: Implied Assertions as Hearsay under the Federal Rules of Evidence Originally published in MINNESOTA LAW REVIEW. This article is reprinted with permission from MINNESOTA LAW REVIEW and University of Minnesota Law School. "I Didn't Tell Them Anything About You": Implied Assertions as Hearsay Under the Federal Rules of Evidence Roger C. Park* INTRODUCTION Definitions of hearsay are either assertion-centered or dec- larant-centered. Under an assertion definition, an out-of-court statement is hearsay when offered in evidence to prove the truth of the matter asserted.' Under a declarant definition, an out-of-court statement is hearsay when it depends for value on 2 the credibility of the declarant.
    [Show full text]
  • Advisory Committee on Evidence Rules
    ADVISORY COMMITTEE ON EVIDENCE RULES Williamsburg, VA October 28, 2011 ADVISORY COMMITTEE ON EVIDENCE RULES AGENDA FOR COMMITTEE MEETING William and Mary Law School, Williamsburg Virginia October 28, 2011 I. Opening Business Opening business includes approval of the minutes of the Spring, 2011 meeting; a report on the June 2011 meeting of the Standing Committee; a report on awards garnered by the Restyled Evidence Rules project; welcome to new members; and tributes to departing members. II. Proposed Amendment to Rule 803(10) The Committee’s proposed amendment to Rule 803(10) has been released for public comment. At this writing, no public comments have been posted. III. Possible Amendment to Rule 801(d)(1)(B) The agenda book contains a memorandum from the Reporter analyzing the possibility of amending Rule 801(d)(1)(B) to provide that a prior consistent statement is exempt from the hearsay rule whenever it is admissible to rehabilitate the credibility of the declarant-witness. The memorandum includes input from the DOJ, the Public Defender, and state courts — input that was sought by the Committee after its initial consideration of the proposed amendment at the last meeting. IV. Privilege Project A number of years ago the Evidence Rules Committee agreed to undertake a project to draft rules of privilege that would describe the current state of privilege law in the federal courts. The privilege project was delayed during the restyling effort. At the Committee’s request, Professor Broun has now revived the project. The agenda book contains a memo from Professor Broun setting forth survey rules and commentary for the attorney-client privilege and the marital privileges.
    [Show full text]
  • The Forgetful Witness David Greenwaldt
    The Forgetful Witness David Greenwaldt If witnesses always told the truth and never forgot what they once knew, trials would be simpler affairs. But witnesses do, on occasion, lie, and they often forget. The technique of impeachment and the hearsay rule' combat these weaknesses of testimony, the first permitting exposure of falsehood or faulty memory, the sec- ond barring introduction of evidence that may be based on them. Both reflect the strong reliance the adversary system places upon cross-examination.2 Impeachment is generally accomplished through cross-examination, and the policy of the hearsay rule would be much less persuasive if cross-examination's ability to dis- tinguish accurate from inaccurate testimony were doubted.' But while cross-examination may indeed be a powerful device, it pre- supposes a witness who offers testimony that can be crossed. Per- haps the greatest challenge to the cross-examiner is not the witness who purports to know what he has never known or has forgotten, but rather the witness who purports to forget what in fact he knows. When a witness says he forgets, prior statements made or adopted by him when he made no such claim offer a backup. The examiner may seek to refresh the witness's recollection with such prior statements, and if the witness finds them useful at jogging his t B.A. 1990, Harvard University; J.D. candidate 1993, University of Chicago. I Hearsay, as defined in the Federal Rules of Evidence ("FRE"), is a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." FRE 801(c).
    [Show full text]
  • Sexual Character Evidence in Civil Actions: Refining the Propensity Rule
    Georgetown University Law Center Scholarship @ GEORGETOWN LAW 1997 Sexual Character Evidence in Civil Actions: Refining the Propensity Rule Jane H. Aiken Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/1403 1997 Wis. L. Rev. 1221-1273 (1997) This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Civil Law Commons, Civil Procedure Commons, and the Sexuality and the Law Commons ARTICLE SEXUAL CHARACTER EVIDENCE IN CIVIL ACTIONS: REFINING THE PROPENSITY RULE JANE HARRIS AIKEN* Who will believe thee, Isabel? My unsoiled name, th' austereness of my life, My vouch against you, and my place i' th' state, Will so your accusation overweigh That you shall stifle in your own report And smell of calumny. Say what you can, my false o 'erweighs your true. 1 "With only one accuser . and everyone else saying something contrary, the public is doubtful. But with two accusers, no matter what the second's credibility, the public really listens. '11 • Professor of Law, Washington University School of Law. I thank the University of South Carolina for summer research support and Washington University for research support and a reduced teaching load during the writing of this article. I also want to thank Katherine Goldwasser and Richard Kuhns, evidence experts, who guided me in the production and refinement of the ideas, the Washington University faculty for their intellectual support through the brown bag series and particularly, Neil Bernstein, Kathleen Clark, Clark Cunningham, Barbara Flagg, Brad Joondeph, Daniel Keating, Pauline Kim, Ronald Levin, Karen Tokarz and Peter Wiedenbeck.
    [Show full text]
  • Evidence Benchbook– Revised Edition Cover and Acknowledgments Title Page
    Evidence Benchbook– Revised Edition Cover and Acknowledgments Title Page By The Honorable J. Richardson Johnson Circuit Court Judge Ninth Judicial Circuit Kalamazoo, Michigan Revised by Ms. Danielle Stackpole, J.D. Research Attorney Michigan Judicial Institute MICHIGAN JUDICIAL INSTITUTE © 2021 Michigan Supreme Court • The Honorable Bridget Mary McCormack, Chief Justice • The Honorable Elizabeth T. Clement, MJI Supervising Justice • The Honorable Brian K. Zahra, the Honorable David F. Viviano, the Honorable Richard H. Bernstein, the Honorable Megan K. Cavanagh, and the Honorable Elizabeth M. Welch, Justices • The Honorable Thomas P. Boyd, State Court Administrator • The Honorable Milton L. Mack, Jr., State Court Administrator Emeritus • Ms. Cami M. Pendell, Supreme Court General Counsel • Mr. Larry S. Royster, Supreme Court Clerk and Chief of Staff Michigan Judicial Institute Staff • Dawn F. McCarty, Director • Alessa Boes, Research Attorney Specialist • Amanda Clark, Judicial Education Analyst • Anne M. DeMarco, Program Assistant • Craig Dillon, Instructional Design and Content Developer • Rachael Drenovsky, Learning Center Coordinator • Amy Feinauer, Program Assistant • Phoenix Hummel, Research Attorney •Heather Leidi, Administrative Specialist • Sarah Roth, Publications Manager • Danielle Stackpole, Research Attorney • Peter C. Stathakis, Program Manager • Cathy Weitzel, Training & Development Specialist This original edition was initially published in 2010, and the text has been revised, reordered, and updated through August 18, 2021. This benchbook is not intended to be an authoritative statement by the Justices of the Michigan Supreme Court regarding any of the substantive issues discussed. ii Note on Precedential Value “A panel of the Court of Appeals must follow the rule of law established by a prior published decision of the Court of Appeals issued on or after November 1, 1990, that has not been reversed or modified by the Supreme Court, or by a special panel of the Court of Appeals as provided in this court rule.” MCR 7.215(J)(1).
    [Show full text]