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Lynn Mclain - One of the best experts on this subject based on the ideXlab platform.
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'I’m Going to Dinner with Frank': Admissibility of Nontestimonial Statements of Intent to Prove the Actions of Someone Other Than the Speaker – and the Role of the Due Process Clause as to Nontestimonial Hearsay
2020Co-Authors: Lynn MclainAbstract:A woman tells her roommate that she is going out to dinner with Frank that evening. The next morning her battered body is found along a country road outside of town. In Frank’s trial for her murder, is her statement to her roommate admissible to place Frank with her that night? Since the Court’s 2004 Crawford decision, the confrontation Clause is inapplicable to nontestimonial hearsay such as this. American jurisdictions are widely divided on the question of admissibility under their rules of evidence, however. Many say absolutely not. A sizeable number unequivocally say yes. A small number say yes, but condition admissibility on the proof of corroborating evidence that Frank met her. Although this third compromise approach has much to recommend it, the author argues that, as presently framed, it violates the rule adopted in the Supreme Court’s 1990 decision in Idaho v. Wright applying the confrontation Clause. The author makes several other novel arguments. First, she argues that Wright continues to apply to nontestimonial hearsay, but via the Due Process Clause. Next she suggests that jurisdictions may constitutionally achieve the same result, however, in one of two ways: (1) they could codify the corroboration requirement in their definition of the applicable evidence rule, the state of mind hearsay exception; or (2) through their case law, they could admit the hearsay statement without requiring corroborating evidence, but invoke a corroboration requirement when evaluating the sufficiency of the evidence, for Due Process reasons, at the close of the case.
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i m going to dinner with frank admissibility of nontestimonial statements of intent to prove the actions of someone other than the speaker and the role of the Due Process Clause as to nontestimonial hearsay
2010Co-Authors: Lynn MclainAbstract:A woman tells her roommate that she is going out to dinner with Frank that evening. The next morning her battered body is found along a country road outside of town. In Frank’s trial for her murder, is her statement to her roommate admissible to place Frank with her that night? Since the Court’s 2004 Crawford decision, the confrontation Clause is inapplicable to nontestimonial hearsay such as this. American jurisdictions are widely divided on the question of admissibility under their rules of evidence, however. Many say absolutely not. A sizeable number unequivocally say yes. A small number say yes, but condition admissibility on the proof of corroborating evidence that Frank met her. Although this third compromise approach has much to recommend it, the author argues that, as presently framed, it violates the rule adopted in the Supreme Court’s 1990 decision in Idaho v. Wright applying the confrontation Clause. The author makes several other novel arguments. First, she argues that Wright continues to apply to nontestimonial hearsay, but via the Due Process Clause. Next she suggests that jurisdictions may constitutionally achieve the same result, however, in one of two ways: (1) they could codify the corroboration requirement in their definition of the applicable evidence rule, the state of mind hearsay exception; or (2) through their case law, they could admit the hearsay statement without requiring corroborating evidence, but invoke a corroboration requirement when evaluating the sufficiency of the evidence, for Due Process reasons, at the close of the case.
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i m going to dinner with frank admissibility of nontestimonial statements of intent to prove the actions of someone other than the speaker and the role of the Due Process Clause
2010Co-Authors: Lynn MclainAbstract:A woman’s corpse, punctured with stab wounds, is found in the San Bernadino Valley. Her roommate tells the police that before leaving their apartment the night before, the woman had said, “I’m going to dinner with Frank.”1 A teenage boy is missing, and his parents have received ransom notes. The boy’s friends tell the police that he had said he was “going to meet Angelo in the parking lot” because Angelo was going to give him a free pound of marijuana.2 An employee reports to his supervisor that another person in the company has refused to falsify documents so as to improperly obtain Medicaid payments. The supervisor says, “I’ll call Jim and have him take care of it.”3 In Frank’s trial for murder, in Angelo’s trial for kidnapping, and in Jim’s criminal trial for Medicaid fraud, respectively, are the woman’s, the boy’s, and the supervisor’s forward-looking statements admissible to inculpate Frank, Angelo, and Jim? Because none of the statements is “testimonial,”4 the Confrontation Clause erects no barrier to their
Ryan C Williams - One of the best experts on this subject based on the ideXlab platform.
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the one and only substantive Due Process Clause
Yale Law Journal, 2010Co-Authors: Ryan C WilliamsAbstract:The nature and scope of the rights protected by the Due Process Clauses of the Fifth and Fourteenth Amendments is one of the most debated topics in all of constitutional law. At the core of this debate is the question of whether these Clauses should be understood to protect only “procedural” rights, such as notice and the opportunity for a hearing, or whether the Due Process guarantee should be understood to encompass certain “substantive” protections as well. An important, though little explored assumption shared by participants on both sides of this debate is that the answer to the substantive-Due-Process question must be the same for both provisions. This article questions that assumption by separately examining the historical evidence regarding the original public meaning of the Due Process Clauses of both the Fifth and Fourteenth Amendments with a single question in mind: Did the original meaning of each Clause, at the time of its enactment, encompass a recognizable form of substantive Due Process‘. At the time of the Fifth Amendment’s ratification in 1791, the phrase “Due Process of law,” and the closely related phrase “law of the land,” were widely understood to refer primarily to matters relating to judicial procedure with the second phrase having a somewhat broader connotation referring to existing positive law. Neither of these meanings was broad enough to encompass something that would today be recognized as “substantive Due Process.” Between 1791 and the Fourteenth Amendment’s enactment in 1868, Due Process concepts evolved dramatically, both through judicial decisions at the state and federal levels and through the invocation of Due-Process concepts by both pro-slavery and abolitionist forces in the course of constitutional arguments over the expansion of slavery. By 1868, a recognizable form of substantive Due Process had been embraced by courts in at least 20 of the 37 then-existing states as well as by the United States Supreme Court and by the authors of the leading treatises on constitutional law. As a result, my conclusion is that the original meaning of one, and only one, of the two Due Process Clauses – the Due Process Clause of the Fourteenth Amendment – was broad enough to encompass a recognizable form of substantive Due Process.
James M Underwood - One of the best experts on this subject based on the ideXlab platform.
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road to nowhere or jurisprudential u turn the intersection of punitive damage classactions and the Due Process Clause
Washington and Lee Law Review, 2009Co-Authors: James M UnderwoodAbstract:This Article analyzes the likely impact of recent Supreme Court jurisprudence applying substantive and procedural Due Process limits on punitive damage awards to class action punitive damage lawsuits. In BMW v. Gore and State Farm v. Campbell the Supreme Court adopted a tripartite analysis to determine whether punitive damage awards were excessive under the Due Process Clause. Just last year in Philip Morris v. Williams the Court took a step further by imposing the additional "procedural" limitation that requires trial courts to take steps to ensure that juries do not punish a tortfeasor through an award of punitive damages in one case for harm caused to anyone other than the plaintiff. There has been some recent scholarly speculation that these cases signal an end to the punitive damage class action by insisting upon an individualized focus for punitive damages that precludes class-wide determinations. In the last year, some lower federal courts have agreed with this view and denied class certification. This Article offers a very different reading of these recent Supreme Court opinions, illustrating that the Court’s primary concern in these cases has been the possibility of redundant awards of punitive damages by multiple juries in different cases. Thus viewed, increased certification of punitive damage class actions provides a more effective and efficient means of avoiding the redundant punishment problem. Further, Philip Morris creates a paradoxical command to trial courts—to permit juries to consider evidence of third-party harm in order to assess the "reprehensibility" of a tortfeasor’s misconduct but not to allow the jury to use that same evidence to set the award of punitive damages. ∗ Associate Professor, Baylor University School of Law. I want to thank my colleagues and the administration of Baylor Law School for providing me with the sabbatical time to research and write this Article. Special thanks also go to Gavin Smith and Sophia Lauricella for their helpful research assistance. 764 66 WASH. & LEE L. REV. 763 (2009) This dictate will prove impossible for lower courts to implement and actually offers defendants no benefit. Certification of class actions, however, avoids this inexorable problem by transforming the "third-parties" into litigant class members, thereby rending moot the need for the subtle distinctions embodied in Philip Morris. In essence, rather than portend the death of the punitive damage class action, the recent Supreme Court jurisprudence creates powerful new arguments in favor of the aggregate model of punitive damage adjudication that offers a route back toward the viable use of class actions in mass tort scenarios.
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Road to Nowhere or Jurisprudential U-Turn?The Intersection of Punitive Damage ClassActions and the Due Process Clause
Washington and Lee Law Review, 2009Co-Authors: James M UnderwoodAbstract:This Article analyzes the likely impact of recent Supreme Court jurisprudence applying substantive and procedural Due Process limits on punitive damage awards to class action punitive damage lawsuits. In BMW v. Gore and State Farm v. Campbell the Supreme Court adopted a tripartite analysis to determine whether punitive damage awards were excessive under the Due Process Clause. Just last year in Philip Morris v. Williams the Court took a step further by imposing the additional "procedural" limitation that requires trial courts to take steps to ensure that juries do not punish a tortfeasor through an award of punitive damages in one case for harm caused to anyone other than the plaintiff. There has been some recent scholarly speculation that these cases signal an end to the punitive damage class action by insisting upon an individualized focus for punitive damages that precludes class-wide determinations. In the last year, some lower federal courts have agreed with this view and denied class certification. This Article offers a very different reading of these recent Supreme Court opinions, illustrating that the Court’s primary concern in these cases has been the possibility of redundant awards of punitive damages by multiple juries in different cases. Thus viewed, increased certification of punitive damage class actions provides a more effective and efficient means of avoiding the redundant punishment problem. Further, Philip Morris creates a paradoxical command to trial courts—to permit juries to consider evidence of third-party harm in order to assess the "reprehensibility" of a tortfeasor’s misconduct but not to allow the jury to use that same evidence to set the award of punitive damages. ∗ Associate Professor, Baylor University School of Law. I want to thank my colleagues and the administration of Baylor Law School for providing me with the sabbatical time to research and write this Article. Special thanks also go to Gavin Smith and Sophia Lauricella for their helpful research assistance. 764 66 WASH. & LEE L. REV. 763 (2009) This dictate will prove impossible for lower courts to implement and actually offers defendants no benefit. Certification of class actions, however, avoids this inexorable problem by transforming the "third-parties" into litigant class members, thereby rending moot the need for the subtle distinctions embodied in Philip Morris. In essence, rather than portend the death of the punitive damage class action, the recent Supreme Court jurisprudence creates powerful new arguments in favor of the aggregate model of punitive damage adjudication that offers a route back toward the viable use of class actions in mass tort scenarios.
Martin H Redish - One of the best experts on this subject based on the ideXlab platform.
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discovery cost allocation Due Process and the constitution s role in civil litigation
Vanderbilt Law Review, 2018Co-Authors: Martin H RedishAbstract:In recent years, both scholars and rule makers have begun to reconsider the long established practice of the producer-pays model of discovery cost allocation. There are many arguments, on both sides of the issue, as to whether this practice represents wise social policy. In this article, however, Professor Redish challenges the constitutionality of the producer-pays model when applied to defendants, under both the Equal Protection and Due Process Clauses. Professor Redish initially characterizes the cost of a litigant’s discovery as the requesting party’s cost, even though the initial outlay for those costs is made by the producing party. In doing so he reasons by analogy to the doctrine of quantum meruit. On the basis of this premise that the costs of discovery are appropriately seen as the costs of the requesting party, he characterizes the requirement that the producer of the discovery bear the costs incurred in making production as simply a forced subsidy of what are properly deemed the requesting party’s costs. Such forced subsidization, he argues, constitutes a deprivation of a defendant’s property, which can be justified under equal protection only if it is at least rational. He argues that absent a finding that plaintiff’s injury was in fact caused by defendant’s violation of plaintiff’s legal rights, it is irrational to distinguish a defendant from any other member of society as a potential subsidizer of plaintiff’s discovery costs. Under the Due Process Clause, unless the plaintiff has factually established the truth of his allegation of defendant’s fault before a neutral adjudicator, imposition of plaintiff’s discovery costs on defendant is unconstitutional because it is impossible to distinguish the defendant from any other potential subsidizer. Because discovery takes place at a point in the litigation Process before any evidentiary showing has been made or any factual determinations have been made by a neutral adjudicator, Professor Redish argues, the deprivation of defendant’s property to subsidize plaintiff’s costs constitutes an unconstitutional deprivation of defendant’s property. According to Professor Redish, then, the issue of discovery cost allocation is not one of social or legal policy, but rather one purely of constitutional law.
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habeas corpus Due Process and the suspension Clause a study in the foundations of american constitutionalism
Virginia Law Review, 2010Co-Authors: Martin H Redish, Colleen McnamaraAbstract:Ever since the attacks of September 11, 2001, constitutional scholars have been exploring the controversial issues surrounding the so-called “Emergency Constitution.” One of the very few provisions of the Constitution that explicitly contemplates such emergency situations is Article I, section 9, concerning the writ of habeas corpus. That provision prohibits suspension of the “Great Writ,” except “when in cases of rebellion or invasion the public safety may require it.” The writ of habeas corpus has long stood as the primary weapon against the development of tyranny. It enables a court to demand that the executive produce individuals it is detaining and explain the lawful basis for that detention, and to order the detainees’ release if it finds the confinement to be unlawful. Absent the availability of habeas corpus, there would exist no legal means of preventing those in power from arresting any individual they want, for as long as they want, regardless of the legitimacy of the arrest. Yet pursuant to the so-called Suspension Clause, in times of rebellion or invasion the government is authorized to suspend the writ. Highly respected scholars have recently engaged in an intense debate over the meaning and implications of the Suspension Clause. All of them, however, have seriously missed the mark, because all have assumed the continuing validity of that Clause. In this Article, we argue that the Due Process Clause of the Fifth Amendment effectively repeals the Suspension Clause. We reach this conclusion for two reasons: first, the Suspension Clause indisputably authorizes summary detention without the availability of any form of hearing before a neutral adjudicator. Whatever “Due Process” means at its outer fringes, there is no doubt that such a practice deprives an individual of liberty without Due Process of law. Yet the Due Process Clause, on its face, is unlimited in its application; it contemplates no exceptions, when an individual is to be deprived of life, liberty or property. Thus, purely as a matter of textual construction, the Due Process Clause, contained in an amendment, supersedes the Suspension Clause, which appears in the body of the Constitution. Moreover, it is important to recognize that the Suspension Clause authorizes tyrannical practices wholly inconsistent with and undermining of foundational precepts of American Constitutionalism. This concept dictates a governmental commitment to the rule of law and to limited governmental authority over its citizens. The Due Process Clause should be deemed to protect these core values. After establishing the supremacy of the Due Process Clause, the Article carefully explores the manner in which the Due Process Clause should be found to limit coercive governmental authority in times of national crisis.
Christopher R Green - One of the best experts on this subject based on the ideXlab platform.
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our bipartisan Due Process Clause
2018Co-Authors: Christopher R GreenAbstract:What it meant to “deprive any person of life, liberty, or property without Due Process of law” was very well-known to the men who proposed the Fourteenth Amendment: to take away life, liberty, or property without traditional judicial proceedings, except where public safety required it. Congressmen made this very clear, and at great length — but in 1862, rather than 1866.
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Duly Convicted: The Thirteenth Amendment as Procedural Due Process
2016Co-Authors: Christopher R GreenAbstract:This paper argues for four implications of the Thirteenth Amendment’s crime exception — “except as a punishment for crime, whereof the party shall have been duly convicted” — for assessing the influence of abolitionists’ radical understandings of the Fifth Amendment on the meaning originally expressed by the text of the Fourteenth Amendment’s Due Process Clause. First, Charles Sumner presented radical-abolitionist substantive Due Process to the Senate in his condemnation of the crime exception in 1864, but his views were quite clearly rejected in favor of a Northwest-Ordinance-style prohibition. Second, “duly convicted” was seen as equivalent to “by Due Process of law,” but was taken not to require even that sentences be proportional. Third, mainstream-Republican fans of the Northwest Ordinance held that both slavery and fugitive re-enslavement could be simultaneously wrongful but “lawful.” Fourth, because “duly convicted” banned retroactive impositions of slavery, “Due Process of law” likewise requires prospectivity more generally in deprivations of life, liberty, or property. A procedurally- and rule-of-law-focused reading of the Due Process Clause thus receives support not just from the meaning of “Process,” but from forms of “Due” and “law” as well.
