Copyright (c) 2009 Berkeley Electronic Press All rights reserved. http://www.bepress.com/ice Recent documents in International Commentary on Evidence en-us Wed, 16 Sep 2009 23:29:25 PDT 3600 http://www.bepress.com/ice/vol7/iss2/art2 http://www.bepress.com/ice/vol7/iss2/art2 Tue, 15 Sep 2009 10:43:32 PDT Section I explicates the building blocks of Ho's legal epistemology: the distinction between the internal and the external point of view, the belief account of legal fact-finding, and the claim that considerations of truth and justice are intertwined in evidence rules. Section II examines the applications of Ho's normative framework to the analysis of the standard of proof, the hearsay rule, and similar facts evidence. Part III subjects Ho's distinction between the internal and external point of view to close analysis in light of contemporary debates over the nature of epistemic justification. Part IV suggests that a turn towards virtue epistemology may provide a good way for extending Ho's approach to evidence law. Part V sheds doubts upon whether Ho's epistemology provides a justification of current evidentiary arrangements and argues that carrying out Ho's internal analysis would, in fact, lead to a substantial revision of those arrangements. The normative arguments of this book lend support to a conception of the law of evidence built around the notion of moral agency which constitutes a valuable normative ideal against which current rules of evidence may be assessed. Amalia Amaya Reviews http://www.bepress.com/ice/vol7/iss2/art1 http://www.bepress.com/ice/vol7/iss2/art1 Tue, 15 Sep 2009 09:38:48 PDT For more than a half-century, evidence scholars have been exploring whether the criminal standard of proof can be grounded in decision theory. Such grounding would require the emergence of a social consensus about the utilities to be assigned to the four outcomes at trial. Significant disagreement remains, even among legal scholars, about the relative desirability of those outcomes and even about the formalisms for manipulating their respective utilities. We attempt to diagnose the principal reasons for this dissensus and to suggest ways in which a broadly shared evaluation might be forged. Along the way, we note: (1) The disproportionate role that the Blackstone ratio of errors continues to play in utility appraisals (despite its unintelligibility in the context of utilities); and (2) The persisting belief--for which there is no theoretical basis--that any plausible assignment of utilities will inevitably result in a very high standard of proof. Larry Laudan Essays on Bayesianism http://www.bepress.com/ice/vol7/iss1/art8 http://www.bepress.com/ice/vol7/iss1/art8 Thu, 13 Aug 2009 11:08:18 PDT This is a brief comment about Professor Cheng's response to my presentation at the 2009 AALS meeting on knowingly presenting inadmissible evidence. Professor Cheng proposes a broader discussion of the alleged wrongfulness of introducing inadmissible evidence. The purpose of this comment is to emphasize the importance of the narrow topic discussed in the original article. Edward J. Imwinkelried http://www.bepress.com/ice/vol7/iss1/art7 http://www.bepress.com/ice/vol7/iss1/art7 Mon, 15 Jun 2009 13:27:48 PDT This response explores the moral underpinnings of Professor Imwinkelried's article and asks whether attempts to introduce inadmissible evidence are wrongful as a general matter. It argues that the answer is “no." The current practice and structure of the evidentiary rules is a discretionary one, which not only makes any notion of “clear inadmissibility" difficult to parse, but also means that attempts to introduce technically inadmissible evidence do not necessarily hinder the truth seeking purpose of trial. Edward K. Cheng http://www.bepress.com/ice/vol7/iss1/art6 http://www.bepress.com/ice/vol7/iss1/art6 Wed, 06 May 2009 10:12:47 PDT The civil procedure rules have been amended to curb pretrial discovery misconduct. The amendments may have deterred some such misconduct. However, the downside has been that the amendments have prompted expensive, time-consuming pretrial hearings which can make it more difficult for a litigant with a meritorious claim to reach trial. In some respects evidentiary misconduct at trial is an even more serious problem than pretrial discovery misconduct. The question is whether we can deter such misconduct without creating an impediment to a fair trial on the merits. To that end, this article proposes that in extreme cases, a litigant should be able to treat an opponent's knowing proffer of inadmissible evidence at trial as proof of the opposition's consciousness of the weakness of their position in the litigation. Edward J. Imwinkelried Evidentiary Foul Play: Deception, Destruction, and Just Deserts http://www.bepress.com/ice/vol7/iss1/art5 http://www.bepress.com/ice/vol7/iss1/art5 Wed, 06 May 2009 10:12:44 PDT For at least two centuries, Anglo-American courts have responded to a party's evidence tampering by allowing the opponent to argue to jurors that they should draw an adverse inference against the offending party in deciding the merits of the case. This essay argues that it is time that the use of such inferences be radically curtailed, not only because of the ambiguities and risks of prejudice that such inferences entail, but more importantly because they involve a confusion of roles in which the jury is enlisted to participate in the management of the pre-trial conduct of litigants. This management is properly the job of the judiciary, and there are more than adequate tools for this purpose in the form of discovery sanctions, such as issue preclusion, monetary awards, and dismissals or defaults. Dale A. Nance Evidentiary Foul Play: Deception, Destruction, and Just Deserts http://www.bepress.com/ice/vol7/iss1/art4 http://www.bepress.com/ice/vol7/iss1/art4 Wed, 06 May 2009 10:12:42 PDT Defensive dishonesty in criminal investigations has increasingly been prosecuted without standards for identifying harmful deception or other meaningful checks on prosecutorial discretion. Although they are often grouped together statistically and evaluated as comparable crimes, there is a clear distinction between investigative lies and in-court perjury. The differences between the offenses--including the standards for prosecution, the perceived victim, and the purposes of bringing charges--suggest reasons to reconsider the current approach to investigative lies such as false statements. More truth is produced, and arguably more cooperation results, when the government focuses on the quality of the information flow. The structural protections in place with regard to institutional perjury can be explained in part as truth-seeking tools, and I propose translating warning requirements and distinctions between active and passive lies into the context of investigative deception. Efforts to get accurate information could more effectively curtail evidentiary foul play than strategies designed just to get defendants. And being attentive to whether a false statement actually causes harm--a mitigating principle seemingly at work in the perjury context--might further optimize deterrence. Lisa Kern Griffin Evidentiary Foul Play: Deception, Destruction, and Just Deserts http://www.bepress.com/ice/vol7/iss1/art3 http://www.bepress.com/ice/vol7/iss1/art3 Wed, 06 May 2009 10:12:40 PDT This is the tribute to Professor Margaret Berger that was delivered at the Association of American Law School's (AALS) Evidence Section Luncheon in San Diego, in January, 2009. Professor Berger received the Evidence Section's Wigmore Lifetime Achievement Award, and the remarks summarize her contributions to the evidence community, particularly focusing on her influence in the fields of scientific evidence, expert testimony, and confrontation clause analysis. Myrna S. Raeder The 2009 Wigmore Lifetime Achievement Award: Margaret Berger http://www.bepress.com/ice/vol7/iss1/art2 http://www.bepress.com/ice/vol7/iss1/art2 Wed, 06 May 2009 10:12:38 PDT This piece is a letter to honor Professor Margaret Berger on her receipt of the Wigmore Lifetime Achievement Award from the Evidence Section of the Association of American Law Schools. Jack B. Weinstein The 2009 Wigmore Lifetime Achievement Award: Margaret Berger http://www.bepress.com/ice/vol7/iss1/art1 http://www.bepress.com/ice/vol7/iss1/art1 Wed, 06 May 2009 10:12:36 PDT Introduction to the proceedings and papers from the 2009 meeting of the Association of American Law Schools' Evidence Section. Chris William Sanchirico