Thursday, September 19, 2013
Three New Articles of Interest: Importance of 911 Call Evidence; Atomism and Holism in the Evidence Rules; and a Call for More Inquisitorialism
JAMES G. DWYER (William & Mary)
Kentucky Law Journal, Forthcoming
JENNIFER MNOOKIN (UCLA)
60 UCLA Law Review 1524 (2013)
CHRISTOPHER SLOBOGIN (Vanderbilt)
Southern California Law Review, Forthcoming
Abstracts Below the Fold
The usefulness of 911 call records in domestic violence situations is under-appreciated. This Article documents an extraordinary increase in prosecutorial success in routine misdemeanor DV cases when 911 call records are available and used in some fashion. It also explains how other parties could effectively use 911 event chronologies and sound recordings to stop domestic violence and protect children from being exposed to it, including child protection agencies, victims themselves, and children's other family members.
How should judges go about assessing the admissibility of evidence? In this Article, I explore a key and underexamined issue within evidence law: the interpretive tension between atomism and holism. Should judges assess the admissibility of an item of evidence atomistically — piece by piece, and by itself? Or should they engage in a more holistic, synthetic, and relational inquiry? I argue that there is not, and cannot be, any simple answer to this question, because judicial atomism versus holism turns out to implicate two further important tensions within our bifurcated trial system: the balance of power between the judge and the attorney, on the one hand, and between the judge and the jury, on the other. Moreover, the relation between these multiple issues turns out to depend significantly on whether the evidentiary assessment at issue is what I term a low-threshold evidentiary determination, tilted in favor of admissibility (like relevance, or Rule 403), or, instead, a high-threshold determination (like the assessment of expert evidence). This Article explores both an array of evidence doctrines and the extent to which they provide guidance to judges vis-à-vis atomism versus holism, and then looks in detail at how atomism versus holism operates in both low-threshold and high-threshold circumstances.
The adversarial system as it is implemented in the United States is a significant cause of wrongful convictions, wrongful acquittals and “wrongful” sentences. Empirical evidence suggests that a hybrid inquisitorial regime would be better than the American-style adversarial system at reducing these erroneous results. This paper proposes the integration of three inquisitorial mechanisms into the American trial process — judicial control over the adjudication process, non-adversarial treatment of experts, and required unsworn testimony by the defendant — and defends the proposals against constitutional and practical challenges. While other scholars have suggested borrowing from overseas, these three proposals have yet to be presented as a package. Together they could measurably enhance the accuracy of the American criminal justice system.