Evidence
Nesson's Evidence 2010 UNDER CONSTRUCTION
Evidence January , 2010 M,T,W,Th,F 9:00 AM - 12:00 PM
Professor Charles R. Nesson
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Contents
The American Jury: Bulwark of Liberty
- Breyer, Active Liberty pp. 15-34
- Scalia, A Matter of Interpretation pp. 3-48
- "jury" - a noun derived from juris - law
- Protection of Liberty Built into Process and Privilege
- the problem of pockets of resistance to the common good
- peers of the viscinage, peers of the district
- trial by jury in the Massachusetts Declaration of Rights
- trial by jury in the Constitution of the United States of America
- trial by jury in the early courts of the Massachusetts and the Nation
- the problem of pockets of resistance to the common good
VERDICT
The General Verdict: Jury Role as Check to Legislative and Executive Power
- Guilt of What?
- factual guilt of violation of statutory law
- moral guilt: judge of the whole case, fact and "law" in its original meaning
- Trial by Jury Constrained by Judges: The Jury's role with respect to Law, Fact and Justice
- Judicial transformation of the meaning of "law"
- Response of judicial conception of law and structure of process to Slave-Holding Textile_Manufacturing Capital
- Corporate Fear of Civil Juries in the Rise of Negligence and Unions
- Racism
- Robert Morris, Lemuel Shaw and Fugitive Slaves
- Emmett Till
- Swain v. Alabama
- White v. Crook
- Privileges of Citizens and Their Lawyers
- the privilege of privacy
- fifth amendment privilege
- the responsibility of lawyers
It was not at the time of our founding but has since become law that lawyers may not argue the injustice or stupidity of a law to an American jury nor inform jurors of their power to acquit notwithstanding their conclusion that the defendant has violated the letter of the law as given them by the judge. Judges prevent lawyers from doing so by holding them in contempt of court. This threat to their physical liberty constrains the freedom of lawyers to speak on behalf of the defendant to the jury.
- assume the role of advocate for a client asserting a liberty interest which is fundamental to him. What constrains you in carrying out your role?
- ethics, the domain between what you know to be true and what can be proved against you, personal code, inner sense of constraint on how to act and be true
- contempt of court, the judge's weapons for enforcement against a lawyer who acts against the judge's order
- what are the contemnor's rights when held in contempt by a judge?
- assume the role of advocate for a client asserting a liberty interest which is fundamental to him. What constrains you in carrying out your role?
Factual GUILT Beyond Reasonable Doubt
The Ambiguity of Truth
- riddle of three hats
- the inference of self and perception of self by other
- Daniel Gilbert, He Who Cast the First Stone Probably Didnât
- truth as correspondence asserted from coherence
- Nesson, "The Evidence or the Event? On Judicial Proof and the Acceptability of Verdicts"
- lawyer's rules
- what moves are you allowed to make, and when
- what rules can you break, and when
- what are your powers of enforcement
- lawyer's rules
- My Cousin Vinny: Probable Cause
SPOLIATION -- Cheating
Deception and Cheating in Law and Poker
Cheating in Prosecution
- criminal
- outright framing
- prosecutorial abuse of discretion
- civil
- Anne Anderson v. Beatrice Foods
Cheating in Defense
- the case of the energetic investigator
- D.C.Bar on Ethics of Evidence Destruction
- Smoking Gun
- Nesson, Incentives to Spoliate Evidence in Civil Litigation, 13 Cardozo L. Rev. 793 (1991)
It was long a practice in our courts to permit lawyers to vet jurors peremptorily, to a certain number without need to have or state a reason.
- What is the lawyer's responsibility to constitution, client and self with respect to race and gender in jury selection.
- private v. public
the Point - Credibility and Confrontation
How do you introduce evidence to prove or refute a charge
How do you Object! How does the Judge Decide
- The Rim
- Commonwealth v. Edelin
- The Wire
Prejudical to the Point
- How may evidence of character be used?
- as direct affirmative proof of an issue in contest
- as inferential affirmative proof
- as attack on credibility
Credibility:
- What and why do we believe
- Direct Examination
- leading questions
- scope of examination
- strategy
- Cross-Examination
- the testimonial capacities
- limitations
- strategy
- Witness Preparation
- Dr. Carol Leicher
Confronting Ones Accusers
- From the Trial of Sir Walter Raleigh to Where WE are now</b>
- U.S. Constitution
- hearsay
- The Treason Trial of Walter Raleigh
- Washington v. Swan
- Mattox v. United States (1895)
- Crawford v. Washington (2004)
- Davis and Hammon
Scientific Truth in Court
- Wells v. Ortho
- Agent Orange
- Daubert v. Merrell Dow 113 S. Ct. 2786 (1993)
- General Electric Co. v. Joiner,522 U.S. 136 (1997)
- Kumho Tire Company v. Carmichael, 119 S.Ct. 1167 (1999)
- Daubert v. Merrell Dow (on remand),43 F.3d 1311 (9th Cir. 1995)
Attorney Client Privilege
Presumed Guilty