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.By Excited Utterance

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.By Excited Utterance

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.By Excited Utterance

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.By Excited Utterance

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 Wal…

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 ev…

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 Interes…

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.By Excited Utterance

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.By Excited Utterance

Keith Findley from the University of Wisconsin discusses why medical examiners should not be allowed to testify about “manner of death” in court proceedings.By Excited Utterance

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.By Excited Utterance

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.By Excited Utterance

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.By Excited Utterance

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.By Excited Utterance

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.By Excited Utterance

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 theoryBy Excited Utterance

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.By Excited Utterance

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.By Excited Utterance

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.By Excited Utterance

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

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.”By Excited Utterance

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.By Excited Utterance

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.By Excited Utterance

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.By Excited Utterance

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.By Excited Utterance

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.By Excited Utterance

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.By Excited Utterance

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.By Excited Utterance

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.By Excited Utterance

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.By Excited Utterance

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.By Excited Utterance

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."By Excited Utterance

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.By Excited Utterance

#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.By Excited Utterance

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.By Excited Utterance

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.By Excited Utterance

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.By Excited Utterance

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.By Excited Utterance

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.By Excited Utterance

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.By Excited Utterance

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.By Excited Utterance

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.By Excited Utterance

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.By Excited Utterance

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.…

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.By Excited Utterance

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.By Excited Utterance