Excited Utterance: Recent Episodes
Edward K. Cheng
Excited Utterance is a legal podcast that interviews authors of new or forthcoming legal scholarship in the areas of evidence and proof.
The Overlooked Witness Memory Risk. Sue Provenzano from Georgia State University and Sarah Brown-Schmidt from Vanderbilt University discuss the problem of “hear-witnesses,” witnesses who report about what was previously said, and how evidence law does not adequately account for their accuracy risks.
Opinion Surveys Across the Civil-Criminal Divide. Kay Levine from Emory University discusses the uses of opinion survey evidence, how its admissibility is inconsistent between civil and criminal contexts, and perhaps why the divide exists.
AI-Enhanced Evidence Law. Mary Fan from the University of Washington discusses the challenges of AI-enhanced evidence in the courtroom, how to ensure its reliability, and concerns about disparities between prosecution-offered and defense-offered AI-enhanced evidence.
Law Enforcement Privilege. Rebecca Wexler from Columbia Law School discusses the privilege governing police investigative methods, the reasons for the privilege, as well as its costs to transparency and the ability to regulate police conduct in accord with the Fourth Amendment.
Strategy for Strategy's Sake. Edith Beerdsen from Temple University asks whether strategic or "sporting" behavior has any place in a system of legal proof, and when being clever goes too far.
Antiracist Expert Evidence. Asess Bhasin from the University of Maryland and Jasmine Gonzales Rose from Boston University discuss the ways in which expert evidence can address racism and racial discrimination in our system of evidence and proof.
Children and the Making of Modern Evidence Law. Laura Savarese from Michigan State University discusses the role of children’s testimony and nineteenth-century child protection laws in the development of the law of evidence.
The Evidentiary Use and Misuse of Forensic Musicology in Copyright Litigation. Fred Yen from Boston College discusses the use of musicology experts in copyright litigation and what they should and should not be permitted to testify about.
Defending Due Process. Brandon Garrett from Duke University discusses his new book, Defending Due Process: Why Fairness Matters in a Polarized World.
Internet Technology Companies as Evidence Intermediaries. Yan Fang discusses the modern role of internet technology companies as significant repositories of evidence and how these companies fulfill their legal obligations.
Verdict Format on Trial. Avani Sood from NYU discusses the use of special verdicts in criminal cases, and why perhaps we should favor them instead of the traditional general verdict.
The Three-Verdict Problem. Jack Whiteley from the University of Minnesota discusses the Scottish tripartite system of jury verdicts, featuring verdicts of guilty, not guilty, and not proven.
Dan Medwed from Northeastern University discusses the past, present, and future of Chambers v. Mississippi and the right to present a defense.
Placebo Trials. Hayley Stillwell from the University of Oklahoma proposes the use of "placebo trials," test trials in which the alleged defendant is known to be innocent, to learn about jury dynamics and the empirical consequences of evidentiary rules.
Value Judgments and the Fact-Law Distinction. Stephen Simon from the University of Richmond offers a new perspective on the time-honored law-fact distinction.
In Defense of Factual Precedents. Tomer Kenneth from the University of Southern California discusses the evidentiary problem of general facts that are applicable across multiple cases, and whether there should be governed by doctrines akin to precedent.
The Limits and Costs of Cross-Examination. Lisa Kern Griffin from Duke University considers the costs of our excessive devotion to and dependence on cross-examination as our chief mechanism for ensuring accuracy in factfinding.
Minimal Rationality and the Law of Evidence. Ron Allen from Northwestern University argues that the goal of the law of evidence is to ensure minimal, not maximal, rationality in our adjudicative processes.
The Lawyer, the Witch, and the Witness. Trace Maddox from NYU School of Law discusses the witchcraft trials in sixteenth to eighteenth-century England, and how contrary to popular belief, they largely adhered to standard procedural and evidentiary rules at the time. His historical findings thus raise interesting questions about the nature of a fair and just adjudicatory system.
The Surprising Story of Smith v. Rapid Transit. Michael Risinger from Seton Hall University recounts his historical research into the famous case of Smith v. Rapid Transit, the case which ultimately spawned the "Blue Bus" hypothetical on statistical proof.
Judges Should Be Discerning Consensus, Not Evaluating Scientific Expertise. Dave Caudill from Villanova critiques and improves upon Ed Cheng's proposal to have courts defer to expert consensus rather than screening expert evidence through Daubert. The episode features some guest concluding remarks from Ed Cheng.
A Critical Analysis of Rap Shield Laws. Alexa Perez from Drake University examines how rap lyrics are handled by existing evidence rules and whether they should be the subject of special "rap shield" evidentiary rules.
Parent-Child Privilege as Resistance. Nila Bala from the University of California Davis discusses why there should be greater adoption of a parent-child privilege, and how it could be an important tool for resisting injustice and government overreaching.
A Proposal to Replace the Hearsay Rules. Rich Friedman from the University of Michigan offers a proposal to radically simplify and rationalize our much-maligned hearsay rule along Confrontation lines.
The Neuroscience of the Present Sense Impression. Chris Sundby from Gelber Schachter & Greenberg, P.A. discusses his experiments probing the neuroscientific and psychological bases of the present sense impression exception to the hearsay rule.
Confession and Confrontation. Will Ortman from Wayne State University discusses how the modern Confrontation Clause might be used to help improve the reliabilty of defendant confessions.
Of Bass Notes and Base Rates. Rebecca Tushnet from Harvard Law School discusses the base rate problems that surface in the expert testimony common in music copyright litigation.
Expert Framework Evidence. Teneille Brown from the University of Utah and Emily Murphy from UC Law San Francisco discuss their amicus brief in Diaz v. United States, to be argued before the Supreme Court on March 19, 2024. The case involves (and the episode explores) the problem of framework evidence, first described by John Monahan and Laurens Walker, and how it relates to Federal Rule of Evidence 704, which abolishes the ultimate issue rule, except for cases involving mental states.
Evidence Law's Blind Spots. Jamie Macleod from Brooklyn Law School argues, among other things, that evidence law needs to worry as much about what juries do in the absence of certain evidence as in the presence of it. He discusses new empirical work showing some troubling racial disparities when mock jurors are presented with so-called sanitized evidence, such as when the fact of prior convictions is revealed without specific details.
Evidence Rules for Decarceration. Erin Collins from the University of Richmond explores how the evidentiary rules -- especially the character rules -- contribute to mass incarceration, and how evidence should reorient itself more toward substantive outcomes than away from just accuracy. This episode was recorded live at a Connecticut Public Interest Law Journal symposium at UConn School of Law.
A Theory for Evaluating Evidence Against the Standard of Proof. Kevin Clermont from Cornell Law School argues that existing probabilistic models of the proof process are incomplete and summarizes his proposal -- based on a multivalent model -- to conceptualize legal proof.
Experts and the Attorney-Client Privilege. Nicholas Hakun from Temple University and Wilson Sonsini discusses whether the attorney-client privilege should extend to experts used by attorneys and their clients.
Keith Findley from the University of Wisconsin discusses why medical examiners should not be allowed to testify about “manner of death” in court proceedings.
Expert Malpractice. James Steiner-Dillon from the University of Akron discusses what happens when clients sue their expert witnesses for malpractice, and why traditional rules of witness immunity should not apply.
Vermin of Proof. Kristen Ranges from the Mote Marine Laboratory and Aquarium discusses the scientific bases behind animal toxicology studies and whether the legal system is being overly skeptical about their use in toxic tort cases.
Originalism and Historical Fact-Finding. Joseph Blocher from Duke Law School explores how courts should determine the historical facts used for originalist interpretations of the Constitution, and whether those procedures should better mirror the ones the legal system traditionally uses at trial.
The Dignitary Confrontation Clause. Erin Sheley from California Western School of Law provides a primer on modern Confrontation Clause jurisprudence under Crawford v. Washington and then proposes recasting its conceptual foundations along dignitary lines.
Murder and Money: The Dark Side of Taylor Swift. Through lyrics of Taylor Swift's music, Fred Vars from the University of Alabama examines the burden of proof requirements for the so-called "Slayer Rule," the rule prohibiting murderers from inheriting or otherwise benefitting from their victims.
Requiring More of Rule 407. Cynara Hermes McQuillan of Touro Law Center discusses a current circuit split on how to interpret Rule 407, the prohibition against evidence of subsequent remedial measures, a controversy that touches on the fundamental tension between textualist and purposivist approaches to statutory interpretation.
The Pseudo-Theology of Penitent Privilege. Nathan Ristuccia of the Institute for Free Speech discusses how the clergy-penitent privilege has changed over time both in doctrinal substance and theory
Visual Decision Aids for Forensic Science Evidence. Gianni Ribeiro from the University of Southern Queensland reports on a psychological study showing that visual decision aids can improve juror understanding of forensic tests.
Are the Federal Rules of Evidence Unconstitutional? Ethan Leib from Fordham University asks whether the way in which the Federal Rules of Evidence came into being and the structure by which they are amended violates constitutional separation of powers.
Domestic Homicides Since Giles v. California. Caren Morrison from George State University explores how courts have handled domestic homicide cases in the wake of Giles v. California, which narrowed the forfeiture exception to the Confrontation Clause.
The False Promise of Pena-Rodriguez. Daniel Harawa from Washington University in St. Louis discusses the problem of racial bias in jury deliberations, and how Rule 606(b), despite the Supreme Court's decision in Pena-Rodriguez, still shields much of it from redress.
The False Promise of Pena-Rodriguez. Daniel Harawa from Washington University in St. Louis discusses the problem of racial bias in jury deliberations, and how Rule 606(b), despite the Supreme Court's decision in Pena-Rodriguez, still shields much of it from redress.
Overhauling Rules of Evidence in Pro Se Courts. Andrew Budzinski from the University of the District of Columbia argues why the traditional rules of evidence are inappropriate for courts with largely pro se litigants, and discussed what rules if any should replace them.
Virtual Trials. Susan Bandes from DePaul College of Law discusses the use of virtual trials prompted by the pandemic, their future, as well as what lessons we can learn from them about in-person trials.
Virtual Trials. Susan Bandes from DePaul College of Law discusses the use of virtual trials prompted by the pandemic, their future, as well as what lessons we can learn from them about in-person trials.
Knowledge and Legal Proof. Sarah Moss from the University of Michigan discusses how the reasonable doubt standard and other burdens of proof relate to teh philosophical concept of "knowledge."
Knowledge and Legal Proof. Sarah Moss from the University of Michigan discusses how the reasonable doubt standard and other burdens of proof relate to teh philosophical concept of "knowledge."
Rethinking Evidentiary Rules in an Age of Bench Trials. Henry Wang from Indiana University and the China University of Political Science and Law discusses why the existing rules of evidence are inappropriate for bench trials, and what alternative evidentiary rules for bench trials might look like instead.
The Theoretical Foundations of Evidence Law. Tomer Kenneth from NYU School of Law discusses how legal systems should handle truth claims, and how those decisions are more about political legitimacy than mere objective accuracy.
BelieveWomen and the Presumption of Innocence. Kim Ferzan from the University of Pennsylvania discusses efforts to respect and believe complainants raising sexual assault allegations, such as #BelieveWomen, and how they interact with the presumption of innocence and proof beyond a reasonable doubt.
The Modest Impact of the Modern Confrontation Clause. Diana Bibb from William & Mary Law School discusses her paper with Jeff Bellin exploring the intersection of hearsay and the modern Confrontation Clause, and suggesting that Crawford's impact may be far more limited that commonly thought.
The Truth Machines. Jinee Lokaneeta from Drew University discusses the modern rise of truth machines -- lie detectors, brain scans, and truth serums -- in the Indian criminal justice system.
Explaining the Evidence. Dave Lagnado from University College London discusses his new book, Explaining the Evidence, which talks about how people construct and use causal models to understand the world and make decisions. He also suggests how recent scholarship in causal modelling can help us improve our decisionmaking.
The Proof. Fred Schauer from the University of Virginia discusses his new book, The Proof, which discusses how evidence law and theory can help us make better decisions in everyday life.
Should Evidence Law Exclude Apologies? Jennifer Pusateri from George Washington University argues that the rules of evidence should exclude apologies on both policy and evidentiary grounds.
Lay Identifications Based on Surveillance Video. George Bach from the University of New Mexico discusses the use of lay witnesses to make identifications on surveillance videos.
Guiding Jurors on Damage Award Decisions. Valerie Hans from Cornell Law School discusses her recent psychological research on how the legal system might provide guidance to jurors assessing pain and suffering damages.
Cognitive Bias in Forensic Pathology Decisions. Itiel Dror from University College London shows that medical examiner decisions can be influenced by the non-medical information to which the experts are exposed, and argues for restrictions on the ways in which medical examiners use such information.
Fourteenth Amendment Confrontation. Evan Bernick from Northern Illinois University challenges the originalist arguments made by the Supreme Court in Crawford v. Washington and argues that an originalist perspective on the clause must take into account understandings of Confrontation at the time of the Reconstruction amendments.
Why Do We Admit Criminal Confessions into Evidence? David Crump from the University of Houston discusses the challenging issue of confessions and their place in evidence law.
Time to Abandon the Testimonial Oath. Ian Gallacher from Syracuse University takes a critical look at the familiar ritual of oathtaking and suggests that perhaps it is time to modernize the practice.
Meta-Evidence and Preliminary Injunctions. Maggie Wittlin from Fordham University discusses the applicability of the rules of evidence to preliminary injunction hearings and how the concept of "meta-evidence" might help us think about the kinds of evidence offered at pre-trial hearings more generally.
Junk Science at Sentencing. Maneka Sinha from the University of Maryland proposes extending Daubert-type reliability checks to the sentencing context.
The Limits of Legitimate Contextual Interpretation in the Age of Statutes. Ed Imwinkelried from UC Davis School of Law discusses the intersection of evidence law and interpretative methods as he argues in favor of a “moderate textualist” reading of the Federal Rules.
Autopsy of a Crime Lab. Brandon Garrett from Duke University discusses his new book, Autopsy of a Crime Lab, which reviews the problems in forensic science and attempts to carve a path forward for forensic science reform.
Confrontation in the Age of Plea Bargaining. Will Ortman from Wayne State University argues for a modern interpretation of the Confrontation Clause that would give defendants a right to criminal depositions and that would in turn promote more informed and accurate plea bargaining.
The Content of Our Characters. Teneille Brown from the University of Utah reformulates the character evidence rules in light of existing psychological and neuroscience research.
Zombie Forensics: The Polygraph in England and Wales. Kryiakos Kotsoglou from Northumbia Law School discusses the recent use of polygraph in the UK penal system outside of trial and its troubling ramifications.
Chancy Causation. Alexi Lahav from the University of Connecticut School of Law critiques the idea of but-for causation and discusses how the law should think about causation in contexts in which it can only be proven probabilistically.
99 Episodes of Excited Utterance. In celebration of the podcast's 100th episode, co-hosts Ed Cheng and Alex Nunn look back on 99 Episodes of Excited Utterance, share some funny anecdotes, and discuss trends in recent evidence scholarship.
Proof Discontinuities and Civil Settlements. Mark Spottswood from Florida State University discusses how different types of burdens of proof -- specifically discontinuous versus continuous ones -- might impact settlement behavior.
The Bite Mark Dentists and the Counterattack on Forensic Science Reform. Marvin Zalman from Wayne State University critiques a recent article defending bitemark evidence and discusses why forensic science reform proves to be so difficult.
Privacy as Privilege. Rebecca Wexler from the University of California Berkeley talks about the Stored Communications Act and how it blocks criminal defense subpoenas, effectively creating an unprecedented privilege for online communications.
Unmasking Demeanor. Julia Simon-Kerr from the University of Connecticut discusses the masking of witnesses in the courtroom during the COVID-19 pandemic and the implications masking might have on the Confrontation Clause and the way the legal system views the importance of demeanor.
Confronting Memory Loss. Paul Rothstein from Georgetown discusses the problems that a witness's memory loss presents for the Confrontation Clause, and the factors that a future Supreme Court might use to address this question.
The Evidence Rules that Convict the Innocent. Jeff Bellin from William & Mary uses the Innocent Movement that the wrongful convictions it has uncovered to re-evaluate the rules of evidence.
Psychological Assessments in Legal Contexts. Tess Neal from Arizona State University talks about the validity of psychological assessment tools and the willingness of attorneys and courts to scrutinize them.
The Incomplete Rule of Completeness. Louisa Heiny from the University of Utah talks about the tension between Federal Rule of Evidence 106 and the common law Rule of Completeness that it sought to replace.
Litigation Science After the Knowledge Crisis. Edith Beerdsen from NYU talks about the replicability crisis in science and how courts can use the lessons learned from it to improve scientific evidence.
Bad Character, Tragic Errors and Deep Ignorance. Liat Levanon from King's College London makes an ethical and aesthetic argument against the use of character evidence, suggesting that wrongful convictions of reformed defendants constitute acutely tragic errors.
Rape Accusations and the Preponderance of Evidence. Georgi Gardiner from the University of Tennessee talks about sexual misconduct allegations and discusses how the classic “he said, she said” scenario paradoxically should satisfy and SHOULD NOT satisfy the preponderance standard of proof.
Preferences for Criminal Justice Error Types. Yehonatan Givati discusses whether we all actually think it better for ten (or even one) guilty to go free than to convict one innocent, and why some of us might think differently.
Secret Conviction Programs. Meghan Ryan from SMU Dedman School of Law talks about convictions based on evidence analyzed or created by secret algorithms or computer programs unavailable in discovery.
Profile Evidence, Fairness and the Risks of Mistaken Convictions. Marcello DiBello from the City University of New York provides a new take on why profile evidence might be objectionable, focusing on the risk of false positives.
The Law & Politics of Cyberattack Attribution. Kristen Eichensehr from UCLA School of Law talks about the standards used to attribute cyberattacks.
Reputation vs. Opinion. Bobby Harges from Loyola University New Orleans considers Louisiana’s requirement that character evidence be presented through reputation only and not through opinion testimony.
Rape Shield Evidence and the Hierarchy of Impeachment. Rosanna Cavallaro from Suffolk University discusses how current Rape Shield jurisprudence inappropriately preferences certain types of impeachment over others.
Eyewitness Identifications and the Problematics of Blackstonian Reform of the Criminal Law. Larry Rosenthal from Chapman University challenges the idea of using prophylactic rules to prevent the admission of potentially unreliable eyewitness identification evidence.
Blind Testing: Lessons from Houston. Nicole Casarez from the University of St. Thomas describes the experience of the Houston Forensic Science Center in implementing blinding testing, and what its success might mean for the broader forensics community.
How Evidence of Subsequent Remedial Measures Matters. Bernard Chao looks into Rule 407’s bar on subsequent remedial measures (SRMs). What does evidence of SRMs do to a defendant’s case, and are jury instructions limiting the use of SRMs effective at stemming their prejudicial effects?
Brain-Based Memory Detection. Emily Murphy from the University of California, Hastings College of the Law discusses whether technologies for detecting brain activity can actually help verify witness memories and what implications these technologies might have for the law.
Naked Statistical Evidence and the Futility of Lawful Conduct. Christian Dahlman from Lund University in Sweden (with guest host Alex Nunn) offers an explanation of the so-called proof paradoxes based on incentives and causal direction.
Towards a Continuous Burden of Proof. Mark Spottswood considers replacing our traditional, dichotomous burden of proof based on thresholds with a continuous one that would award greater damages with greater factfinder certainty.
Going Ballistic. Binyamin Blum from the University of California at Hastings discusses the origins of ballistics identification under British colonialism in Egypt during the 1920s.
Experts in the Jury Room. Kristin Liska (Stanford) considers how the legal system should handle expert jurors who introduce untested specialized knowledge into the deliberation room.
Brain-Computer Interfaces and the Law. Jessica Haushalter (Vanderbilt) discusses her student note on brain scanning technology and the challenges it faces in the courtroom.
Problems with Juror Bias in Viewing Body-Camera Video Evidence. Morgan Birck (Michigan) talks about her student note arguing why police body camera footage is not living up to its potential in the courtroom.
Expanding Pena-Rodriguez to Protect Criminal Defendants from Explicit Gender Animus. Katie Hicks (University of Arkansas School of Law) joins the podcast to advocate in favor of expanding Pena-Rodriguez to combat gender-based animus.
Why Open Science Matters to Factfinding in Courts. Jason Chin from the University of Queensland (Australia) discusses how the open science movement in the scientific community could help address the expert reliability problem in law.
A Right to Prove Innocence After Pleading Guilty. Colin Miller from the University of South Carolina argues that defendants who plead guilty should retain a right to prove their innocence under certain cirumstances.
Fillers, Contextual Bias, and Forensic Comparisons. Adele Quigley-McBride from Iowa State University discusses how the use of fillers might help neutralize the biasing effect that contextual information has on forensic comparisons.
Evidentiary Fringes. John Leubsdorf from Rutgers Law School talks about evidentiary rules and concepts often neglected because they were not codified in the Federal Rules of Evidence, such as corroboration rules.
Incredible Women. Deborah Tuerkheimer from Northwestern discusses the “credibility discount” – originally formally, now in practice -- that the legal system has imposed on victims of sexual violence, why it is a problem, and what can be done about it.
The Paradoxes of Legal Proof. Michael Pardo from the University of Alabama, with guest host Alex Nunn, gives an overview of the proof paradoxes and explains why they are more than just academic constructs.
Oral Testimony in Chinese Criminal Trials. Zhuhao Wang from China University of Political Science and Law discusses China’s attempt to introduce live testimony in Chinese criminal proceedings and the obstacles it faces.
Goldilocks and the Rule 803 Hearsay Exceptions. Liesa Richter from the University of Oklahoma discusses hearsay rule reform, proposing that we extend the trustworthiness exception in the business record exception to other Rule 803 exceptions.
Incentives, Lies, and Disclosure. Christopher Robertson from the University of Arizona questions our tradition of offering inducements to prosecution witnesses and discusses some recent informative psychological studies.
A Theory of Facts and Circumstances. Andrew Hayashi from the University of Virginia School of Law discusses how the law should provide guidance on the kinds of facts and circumstances that factfinders should use to make inferences.
Rethinking Rule 408. Richard Reuben from the University of Missouri School of Law proposes revising Rule 408 to address the needs of modern settlement discussions.
Examples and Exceptions Under the Federal Rules of Evidence. Dora Klein from St. Mary's University School of Law explores the confusion created the examples offered in the text of the Federal Rules of Evidence.
The Unrealized Promise of Forensic Science. James Anderson explores why the legal system does not produce as much forensic evidence as it perhaps should.
The Cost of Character. Jennifer Hunt from the University of Kentucky Department of Gender and Women’s Studies discusses the double-edged nature of Rule 404(a)(2)(A), the exception permitting criminal defendants to offer good character about themselves.
Evidence on Fire. Valena Beety from West Virginia University College of Law discusses the potential problems of fire scene evidence, and how such evidence is often treated differently in the civil versus criminal context.
Precedent and Preclusion. Alan Trammell from the University of Arkansas School of Law discusses the deep tension between doctrines governing issue preclusion and binding precedent, the reasons for it, and how it might be resolved.
Examining the Admissibility of Living-Victim Photographs in Murder Trials. Susanna Rychlak Allen, a graduate of Vanderbilt Law School, takes an evidentiary look at legislation requiring the admissibility of photographs of murder victims at trial.
The People, Rules, and Processes Governing Online Speech. Kate Klonick from Yale Law School talks about how online providers make decisions distinguishing appropriate from inappropriate content.
Will the Jury System Survive the Peña-Rodriguez Exception to Rule 606(b)? Taurus Myhand from the University of Alabama asks that very question in this episode of Excited Utterance.
The Res Gestae Exceptions to the Rule Against Hearsay. Alex Nunn interviews Mara Afzali of Albany Law School and Bond, Schoeneck & King as she presents her work about the Res Gestae exceptions to the hearsay rule.
The Proficiency of Experts. Brandon Garrett from the UVA School of Law argues that expert qualification should depend on expert performance and proficiency testing, rather than the traditional markers of credentials and experience.
Disgust Reactions to Gruesome Photographs. Jessica Salerno from ASU investigates the prejudicial effect of gory photographs and whether color photographs (as opposed to black and white) make a difference.
The Impact of Melendez-Diaz v. Massachusetts. Catherine Bonventre from Guilford College discusses the impact that the Supreme Court’s decision in Melendez-Diaz had on the efficiency and operation of crime laboratories.
Evaluating Negative Forensic Evidence. Bill Thompson from University of California Irvine discusses how jurors evaluate the absence of forensic evidence.
Forensic Linguistics. Robert Leonard from Hofstra University discusses the use of linguistics for forensic purposes.
Law and the Epistemology of Disagreement. Alex Stein from Brooklyn Law School talks about the epistemological problems created when individual jurors disagree about the reasons underlying their verdict.
The Reliability of Present Sense Impression Hearsay Evidence. Timothy Lau discusses the empirical basis of the present sense impression exception to the hearsay rule.
Bias, Pretrial Publicity, and Deliberation. Christine Ruva from the University of South Florida Sarasota-Manatee Department of Psychology explores how deliberations affect the biasing effects of pre-trial publicity on jurors.
Evaluating Credibility Using Prior Convictions. Ric Simmons from Ohio State University reports on a new empirical study of how prior convictions under Rule 609 are treated by judges and potential jurors.
Popularizing Hearsay. Justin Sevier from Florida State University College of Law argues for a hearsay rule based not on accuracy, but on procedural dignity and legitimacy interests, and offers new empirical evidence supporting his view.
Recantations and the Perjury Sword. Russell Covey from Georgia State University tackles the double-edged nature of perjury, and how it can be better used to promote accurate results.
Leveraging Surprise. Michael Risinger from Seton Hall proposes using surprise as a device to explain the burden of proof and looks back on his career in evidence.
When Self-Report Trumps Science. Sara Appleby from Mercer University investigates the surprising behavior of some factfinders when confronted with a (recanted) confession and exculpatory DNA.
Expertise on Trial. James Dillon from Columbia Law School tackles the age-old question of how the legal system can make decisions involving specialized knowledge when legal actors lack expertise.
The Judicial Presumption of Police Expertise. Anna Lvovsky from Harvard Law School discusses how police expertise came to be accepted by courts, and how this change, which started in evidence law, ultimately influenced the course of criminal procedure.
Invisible Error. Cassandra Burke Robertson from Case Western Reserve University School of Law explores how judges check the jury’s application of the burden of proof, specifically through grants of new trial.
Experiencing Other Minds in the Courtroom. Neal Feigenson from Quinnipiac University explores the use of simulations in the courtroom to aid the factfinder in understanding a party’s subjective experience.
Exorcising the Clergy Privilege. Christine Bartholomew from SUNY Buffalo Law School talks about the clergy privilege and how its coverage and protection have declined in practice due to the actions of courts and clergy members themselves.
Discovering Forensic Fraud. Jennifer Oliva discusses the “Daubert gap” between criminal and civil trials, and how pre-trial disclosure might be the way to address faulty forensic science.
The Silence Penalty. Jeffrey Bellin from William & Mary Law School discusses his new mock juror study on the empirical penalty criminal defendants receive for either remaining silent or having prior convictions.
Bringing Demonstrative Evidence in From the Cold. Maureen Howard from the University of Washington discusses the problem of demonstrative evidence and the confusion and controversy over how to best regulate it.
The Vaccine Court. Anna Kirkland from the University of Michigan looks at the Vaccine Court and how it handles evidence and makes decisions at the intersection of law and science.
Rape, Truth, and Hearsay. Bennett Capers from Brooklyn Law School discusses the problems of applying the Rape Shield rule in today’s world, and offers a new reinterpretation of the rule focused on statements used for the truth of the matter asserted.
The Psychological Foundations of Evidence Law. Bobbie Spellman from the University of Virginia discusses her new book with Michael Saks reviewing the psychological literature relevant to our evidentiary rules.
Computer Source Code. Ed Imwinkelried from UC Davis discusses the need for access to automated forensic tools, either for validation testing or for inquiries into the underlying source code.
Questioning Child Witnesses. Tom Lyon from USC Gould School of Law discusses some new techniques for talking to child witnesses, including one technique that seems to increase sensitivity without creating additional false positives.
New Evidence About Circumstantial Evidence. Eyal Zamir from the Hebrew University of Jerusalem discusses some new psychological studies about the anti-inference bias, which causes us to prefer direct evidence over circumstantial evidence in the proof process.
Reclaiming the Importance of the Defendant's Testimony. Anna Roberts from Seattle University discusses the use of a defendant's prior convictions to establish his character for untruthfulness under Rule 609.
The Burdens of Proof. Dale Nance from Case Western Reserve University School of Law disentangles the burden of proof. He argues that while we commonly view the weight of evidence as a holistic concept, it really consists of two parts: discriminatory power and Keynesian weight.
Communicating the Results of Forensic Science Examinations. David Kaye from Penn State Law discusses a new technical report focusing on how best to present forensic results to factfinders.
The Value of Confrontation as a Felony Sentencing Right. Shaakirrah Sanders from the University of Idaho advocates for extending the Confrontation Clause beyond the trial context to felony sentencing hearings.
Informant Witnesses and the Risk of Wrongful Convictions. Jessica Roth from Cardozo Law School takes on the issue of informant witness testimony, arguing that informant testimony is unreliable, often creates serious risks for wrongful conviction, and requires additional safeguards.
John Henry Wigmore and the Rules of Evidence. Andrew Porwancher from the University of Oklahoma talks about his new biography of Wigmore and discusses Wigmore's place in the battle between legal formalism and legal realism.
Machine Testimony. Andrea Roth from Berkeley tackles the problem of evidence generated by machines.
Eying the Body to Find Truth. Daphne O'Regan from Michigan State uses ideas from classical rhetoric to contextualize the norms of courtroom behavior and to explain the assumption that we can assess a witness's credibility by observing demeanor.