scholarly journals The Liar’s Mark: Character and Forfeiture in Federal Rule of Evidence 609(a)(2)

2021 ◽  
pp. 1031
Author(s):  
Jesse Schupack
Keyword(s):  
Moral Character ◽  
Final Part ◽  
Normative Judgment ◽  
Probative Value ◽  
Rules Of Evidence ◽  
Federal Rules Of Evidence ◽  
Federal Rule

Rule 609(a)(2) of the Federal Rules of Evidence is an outlier. The Rule mandates admission of impeaching evidence of a witness’s past convictions for crimes of dishonesty. It is the only place in the Rules where judges are denied their usual discretion to exclude evidence on the grounds that its admission would be more prejudicial than probative. This Note analyzes three assumptions underlying this unusual Rule: (1) that there is a coherently definable category of crimes of dishonesty, (2) that convictions for crimes of dishonesty are uniquely probative of a person’s character, and (3) that an assessment of moral character based on past convictions will be suitably predictive of a person’s reliability as a witness. These assumptions are false and so do not justify the mandatory admission of convictions under the Rule. The final Part of this Note argues that Rule 609(a)(2) is better understood as operating on an implicit principle of forfeiture. Recognizing this and modifying the structure of the Rule accordingly cures some of its current defects. But these revisions still leave something deeply concerning about Rule 609(a)(2). The logic of forfeiture substitutes a normative judgment about a particular class of people in place of an evidentiary judgment about the probative value of a certain kind of information. This Note concludes that this substitution is unprincipled and unjust, and that therefore Rule 609(a)(2) should be eliminated.

scholarly journals Whats Wrong With Expert Testimony? What Should Be Done About It?

1992 ◽  
Vol 9 (2) ◽  
Author(s):  
Stephen E. Draper
Keyword(s):  
Expert System ◽  
Expert Testimony ◽  
Critical Examination ◽  
Present System ◽  
Rules Of Evidence ◽  
Federal Rules Of Evidence

The use of expert testimony in American litigation has always been controversial. This paper first presents a synopsis of the complaints against expert testimony. Then the rules for expert testimony established by the Federal Rules of Evidence are presented to provide the foundation for a critical examination of the existing expert system. The paper reviews and scrutinizes a number of proposals to modify the present system as they relate to the Federal Rules. The paper concludes with a recommendation that integrates elements of these proposals with techniques used in European courts of law.

scholarly journals Making Rule 23 Ideal: Using a Multifactor Test to Evaluate the Admissibility of Evidence at Class Certification

2019 ◽  
pp. 149-171
Author(s):  
Cinan Lesley
Keyword(s):  
Certification Process ◽  
Admissible State ◽  
Daubert Standard ◽  
Rules Of Evidence ◽  
Federal Rules Of Evidence ◽  
Circuit Courts

Circuit courts are split on whether and to what extent the Daubert standard should apply at class certification. Potential plaintiffs believe that application of Daubert would make it nearly impossible to obtain class certification. For potential defendants, the application of the standard is an important way to ensure that the certification process is fair. This Note examines the incentives underlying the push to apply the Daubert standard at class certification and the benefits and drawbacks associated with that proposal. It proposes a solution that balances the concerns of both plaintiffs and defendants by focusing on three factors: the obstacles to admissibility, the centrality of the evidence to certification, and the likelihood that evidence could evolve to an admissible state after full discovery. This standard could also be applied when admissibility concerns grounded in other provisions of the Federal Rules of Evidence are raised.

Balancing Acts

2016 ◽  
Author(s):  
Michael J. Saks ◽  
Barbara A. Spellman
Keyword(s):  
Hindsight Bias ◽  
Trial Judge ◽  
Probative Value ◽  
Emotional Processes ◽  
Ex Ante ◽  
Rules Of Evidence ◽  
Psychological Sense ◽  
Desirable Behavior

Many rules of evidence employ balancing tests. The best known is Rule 403, requiring a judge to compare the probative value of evidence against (for example) its prejudicial effect. The problem of metacognition arises when a trial judge is making a decision in a specific case. The required balancing involves more than knowing a rule and the import of the evidence: it engages the judge’s beliefs about how jurors’ cognitive and emotional processes work, predicting how they will respond to the evidence, and comparing that to how the judge thinks the evidence ought best to be responded to. For some categories of evidence, the rulemakers have performed the metacognitive balancing for the judge, deciding that because jurors likely will over-value the evidence, it is best to prevent the jury from hearing those types of evidence. Sometimes the rules aim to encourage socially desirable behavior. For example, to promote repairs of dangerous situations, the rules bar using the fact that repairs were made to prove negligence. A well-established body of research on the “hindsight bias” supports the law’s suspicion that jurors will use evidence of the accident and the repair to answer the question of whether the risk should have been recognized ex ante, and conclude that the failure to correct the situation earlier was negligent. Balancing tests make good psychological sense in theory. Much remains to be learned, however, about whether they “work” (that is, are efficient, lead to good results, encourage socially-desirable behavior) in practice.

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