Excited Utterance

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.

Neuroscience Evidence in Criminal Cases. Debby Denno from Fordham Law School draws on a long-term empirical project and investigates what types of neuroscience evidence really drive criminal cases.

Past-Acts Evidence in Excessive Force Litigation. James Stone from Stanford University discusses some proposed reforms to the way that courts handle past-acts evidence, both with respect to plaintiffs and police-defendants, in excessive police force cases.

Snitching. Sasha Natapoff from Harvard Law School discusses the problems of criminal informant testimony.

Provisional Assumptions. Heidi Liu from George Washington University Law School discusses the problems of asking jurors to ignore inadmissible evidence and proposes an alternative mechanism – the “provisional assumption.”

The Law and Science of Eyewitness Evidence. Brandon Garrett from Duke University and Thomas Albright from the Salk Institute discuss the latest research on the reliability of eyewitness testimony and related reforms that have surfaced from courts and legislatures.

Expertise in Crisis. Dave Caudill from Villanova University discusses the current crisis expertise and how a more modest and sociological view of scientific inquiry might encourage greater acceptance of consensus science.

Neuroscience, Neutrality, and the Rules of Evidence. Steven Friedland and Amy Overman from Elon University discuss how neuroscience findings about our cognitive biases should inform the way we think about the rules of evidence, and whether those rules can ever truly be neutral.

The Neglected Origins of the Hearsay Rule in American Slavery. David Sklansky of Stanford Law School discusses the Supreme Court case of Queen v. Hepburn, a freedom suit in the early Republic which proved to be a turning point in the development of the hearsay rule in American evidence law.

Digital Habit Evidence. Andrew Ferguson from American University discusses the habit rule under Rule 406, and how the Internet of Things and digital habit evidence might change its importance in the future.