Is Evidence Law Race ‘Neutral?’

We live in a time where every action we take, every premise we rely on, warrants scrutiny through the prisms of race and implicit bias.  This reckoning, long overdue for too many individuals and institutions, was brought about by the murder by police of George Floyd and the consequent outpouring of grief, rage and commitment. 

COPS, CRIMES, AND THE KILLING OF GEORGE FLOYD

Judging the immorality of the four police officers charged with the death of George Floyd is easy.  Mr. Floyd was handcuffed and on the ground, with four armed officers over him.  All the police had to do was listen and stop – he would still be handcuffed, he would still be unable to harm them;

CONFRONTATION LAW CONFUSION AND CONVENTIONS

The landmark holding Crawford v. Washington, now sixteen years old, changed the framework for challenging hearsay offered against the accused in a criminal case – if the hearsay was “testimonial” in nature it is admissible only under one of two conditions: The declarant will ultimately appear at trial and thus be subject to cross-examination regarding

Admitting and Using Exhibits in a “Remote” Trial

[This article is a chapter in the newly-published Remote Advocacy: A Guide to Survive and Thrive, NITA 2020.  The entire book can be found at https://www.nita.org/publications/books-dvds/Remote-Advocacy:-A-Guide-to-Survive-and-Thrive ]   Whether in a live or virtual proceeding, at trial or deposition we need exhibits. Sometimes they are the better or best proof. Sometimes they are the only

Narrative or Story – Know The Difference

I suspect that many if not most lawyers are unaware of “narratology,” defined as “the study of structure in narratives” (https://www.merriam-webster.com/dictionary/narratology, last visited April 5, 2020) or “a humanities discipline dedicated to the study of the logic, principles, and practices of narrative representation…” (https://www.lhn.uni-hamburg.de/node/48.html, last visited April 5, 2020).  Yet a definition that itself uses

CROSS NEED NOT BE CROSS [ANGRY]

In his famous [infamous] TEN COMMANDMENTS OF CROSS-EXAMINATION lecture, the late Irving Younger suggested that the cross-examiner need be “tactful” in cross-examination.  He gives the following example: For example, if a witness for the other side was the defendant’s mother testifying in support of his insanity defense…what are you going to say to the jury

THE MEMORY DISCONNECT

Anyone who thinks about the Law of Evidence knows that there are gaps between cognitive psychology and the rules we try cases by.  Excitement may distort or inhibit perception, but we permit and rely upon excited utterances as statements valued for their sincerity and truth.  The dangers of limiting instructions are clear – they sometimes

DUE PROCESS – OR DO IT OVER

Science in the courtroom must be reliable, and to ensure that we want and expect judges to serve as gatekeepers, examining both reliability and relevance; but we also want and need to protect the right to present a defense.  Two cases illustrate the apparent collision of these demands and the result – two new trials.

SLEEPING JUDGES and TRUTH-TWISTING LAWYERS

Two recent decisions reflect remarkably different values in how trials are conducted – one addressing whether we need judges who are awake and alert, the second whether it is permissible to attack defense counsel in a criminal case as a truth-twisting purveyor of information. Let’s start with the judges.  On November 27, 2019, a unanimous