Evidence, procedure, and the upside of cognitive error

Stanford Law Review

Volumn 57, Issue 2, 2004, Pages 291-365

  Sanchirico, Chris William ^a,b  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

^b UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

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[No Author keywords available]

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EID: 33645983170     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (388)

1. See generally DONALD E. BROADBENT, PERCEPTION AND COMMUNICATION (1958) (pioneering the information-processing approach to human cognition with its broad analogy to computer processing).
2. See generally ALAN D. BADDELEY, WORKING MEMORY (1986) (describing the working memory model and reviewing supporting evidence). When multiplying 63 by 96, for example, one stores "6 × 63 = 378" in working memory, while calculating 9 times 63. More generally, working memory is central to learning, id. at 41-44, memory retrieval, id. at 44-53, language comprehension, id. at 54-64, and reasoning, id. at 64-72.
3. For a sampling of ongoing research on working memory, see Lisa Feldman Barrett, Michele M. Tugade & Randall W. Engle, Individual Differences in Working Memory Capacity and Dual-Process Theories of the Mind, 130 PSCYHOL. BULL. 553 (2004) (investigating individual differences in working memory capacity);
4. David Caplan & Gloria Waters, Working Memory and Connectionist Models of Parsing: A Reply to MacDonald and Christiansen (2002), 109 PSYCHOL. REV. 66 (2002) (discussing the role of working memory in language processing);
5. Marcel Adam Just & Sashank Varma, A Hybrid Architecture for Working Memory: Reply to MacDonald and Christiansen (2002), 109 PSYCHOL. REV. 55 (2002) (same);
6. Maryellen C. MacDonald & Morten H. Christiansen, Reassessing Working Memory: Comment on Just and Carpenter (1992) and Waters and Caplan (1996), 109 PSYCHOL. REV. 35 (2002) (same).
7. See, e.g., George A. Miller, The Magical Number Seven Plus or Minus Two: Some Limits on Our Capacity for Processing Information, 63 PSYCHOL. REV. 81, 91 (1956) (reviewing findings on the number of "chunks" that working memory can hold, emphasizing that the individual determines what constitutes a "chunk");
8. see also Alan D. Baddeley, The Magical Number Seven: Still Magic After All These Years?, 101 PSYCHOL. REV. 353, 353 (1994) (discussing the lasting impact of Miller, supra).
9. See, e.g., Murray Glanzer & Anita R. Cunitz, Two Storage Mechanisms in Free Recall, 5 J. VERBAL LEARNING & VERBAL BEHAV. 351 (1966) (finding that the "recency effect" - wherein subjects who read a list better recall the last few items, which are still in working memory - dissipates with a brief, filled delay between hearing and the recall task).
10. See, e.g., Fergus I.M. Craik & Robert S. Lockhart, Levels of Processing: A Framework for Memory Research, 11 J. VERBAL LEARNING & VERBAL BEHAV. 671 (1972) (finding that the depth at which memory is "encoded," which is correlated with the amount of effort exerted, affects the durability of the memory).
11. See generally ENDEL TULVING, ELEMENTS OF EPISODIC MEMORY (1983) (finding that memory encoding is environment-specific, causing retrieval difficulties when the environment in which the subject is asked to recall the memory differs from the environment in which the memory was encoded).
12. See generally DANIEL KAHNEMAN, ATTENTION AND EFFORT (1973) (modeling attentive mental processing as a problem of scarce resource allocation);
13. HAROLD E. PASHLER, THE PSYCHOLOGY OF ATTENTION (1998) (reviewing research on attention, including recent contributions). For a sampling of ongoing research on attention, see Barrett et al., supra note 2 (investigating individual differences in the ability to control attention).
14. See, e.g., Alan Hobbs & Ann Williamson, Associations Between Errors and Contributing Factors in Aircraft Maintenance, 45 HUM. FACTORS 186 (2003) (demonstrating a correlation between fatigue and cognitive error in aircraft maintenance);
15. Dennis H. Holding, Fatigue, in STRESS AND FATIGUE IN HUMAN PERFORMANCE 145 (Robert Hockey ed., 1983) (reviewing the effects of fatigue on cognition).
16. I use the terms "evidentiary procedure" and "evidentiary process" to denote a hybrid field of law concerning the manner in which the legal system itself processes information. This field contains most of evidence and those portions of civil, criminal, and administrative procedure involving discovery, investigation, interrogation, and factfinding.
17. The following chronologically ordered list is but a small sample of this literature: PATRICK M. WALL, EYE-WITNESS IDENTIFICATION IN CRIMINAL CASES (1965) (discussing how, in identifying suspects in a police lineup, eyewitnesses are apt to have "memory source confusion," mistaking familiarity with a suspect due to prior viewing of police photos for familiarity due to sighting in relation to the crime), cited with approval in United States v. Wade, 388 U.S. 218, 229, 230, 232, 234 (1967) and Simmons v. United States, 390 U.S. 377, 383, 386, 388 (1968);
18. I. Daniel Stewart, Jr., Perception, Memory, and Hearsay: A Criticism of Present Law and the Proposed Federal Rules of Evidence, 1970 UTAH L. REV. 1 (1970) (discussing eyewitness fallibility generally);
19. Muriel D. Lezak, Some Psychological Limitations on Witness Reliability, 20 WAYNE L. REV. 117 (1973) (same);
20. Evan Brown, Kenneth Deffenbacher & William Sturgill, Memory for Faces and the Circumstances of Encounter, 62 J. APPLIED PSYCHOL. 311 (1977) (discussing memory-source confusion in relation to eyewitnesses);
21. ELIZABETH F. LOFTUS, EYEWITNESS TESTIMONY 20-109 (1st ed. 1979) (discussing eyewitness fallibility generally);
22. Gary L. Wells, R.C.L. Lindsay & Tamara Ferguson, Accuracy, Confidence, and Juror Perceptions in Eyewitness Identification, 64 J. APPLIED PSYCHOL. 440 (1979) (identifying the "confidence-accuracy correlation" problem: the weak correlation between eyewitnesses' confidence in the accuracy of their memories and the actual accuracy of those memories);
23. Stephan Landsman, Reforming Adversary Procedure: A Proposal Concerning the Psychology of Memory and the Testimony of Disinterested Witnesses, 45 U. PITT. L. REV. 547 (1984) (discussing various memory faults in relation to witness coaching);
24. John S. Applegate, Witness Preparation, 68 TEX. L. REV. 277 (1989) (same);
25. R.C.L. Lindsay, Gary L. Wells & Fergus O'Connor, Mock-Juror Belief of Accurate and Inaccurate Eyewitnesses, 13 LAW & HUM. BEHAV. 333 (1989) (presenting findings on the confidence-accuracy correlation problem);
26. Steven I. Friedland, On Common Sense and the Evaluation of Witness Credibility, 40 CASE W. RES. L. REV. 165 (1990) (arguing that jurors are poor at assessing the accuracy of testimony);
27. Russell Korobkin & Chris Guthrie, Psychological Barriers to Litigation Settlement: An Experimental Approach, 93 MICH. L. REV. 107 (1994) (arguing that cognitive limits hamper the settlement of disputes);
28. BRIAN L. CUTLER & STEVEN D. PENROD, MISTAKEN IDENTIFICATION: THE EYEWITNESS, PSYCHOLOGY, AND THE LAW (1995) (discussing the fallibility of eyewitness identification generally);
29. Jeffrey J. Rachlinski, A Positive Psychological Theory of Judging in Hindsight, 65 U. CHI. L. REV. 571 (1998) [hereinafter Rachlinski, Hindsight] (arguing that judicial factfinders are prone to "hindsight bias," defined infra note 15);
30. Jeffrey J. Rachlinski, Heuristics and Biases in the Courts: Ignorance or Adaptation?, 79 OR. L. REV. 61 (2000) [hereinafter Rachlinski, Adaptation?] (arguing that factfinders are prone to "hindsight bias" as well as errors caused by use of the "representativeness heuristic," defined infra note 17);
31. Deborah Davis & William C. Follette, Foibles of Witness Memory for Traumatic/High Profile Events, 66 J. AIR L. & COM. 1421 (2001) (surveying research on eyewitness fallibility);
32. Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, Inside the Judicial Mind, 86 CORNELL L. REV. 777 (2001) (discussing cognitive illusions in judges' decisionmaking);
33. Bennett L. Gershman, Witness Coaching by Prosecutors, 23 CARDOZO L. REV. 829, 838-44 (2002) (discussing various memory faults in relation to witness coaching);
34. D. Michael Risinger & Jeffrey L. Loop, Three Card Monte, Monty Hall, Modus Operandi, and "Offender Profiling": Some Lessons of Modern Cognitive Science for the Law of Evidence, 24 CARDOZO L. REV. 193, 194 (2002) ("[T]He last century has seen the accumulation of literally thousands of studies on the weaknesses of eyewitness testimony . . . .");
35. AMINA MEMON, ALDERT VRIJ & RAY BULL, PSYCHOLOGY AND LAW: TRUTHFULNESS, ACCURACY AND CREDIBILITY 87-167 (2d ed. 2003) (surveying research on eyewitness fallibility);
36. Erica Beecher-Monas, Heuristics, Biases, and the Importance of Gatekeeping, 2003 MICH. ST. L. REV. 987 (2003) (discussing heuristics and biases in jury decisionmaking);
37. Michael J. Saks & D. Michael Risinger, Baserates, The Presumption of Guilt, Admissibility Rulings, and Erroneous Convictions, 2003 MICH. ST. L. REV. 1051 (2003) (discussing decisionmakers' errors in revising their probabilistic assessments in light of new evidence - specifically, their failure to fully account for underlying population frequencies, or "baserates").
38. See, e.g., LOFTUS, supra note 10.
39. See, e.g., Lindsay et al., supra note 10; Wells et al., supra note 10.
40. See, e.g., Lindsay et al., supra note 10; Wells et al., supra note 10.
41. Importantly, specific cognitive illusions and biases are grounded in more general limits on cognitive capacity. Christine Jolls, Cass R. Sunstein & Richard Thaler, A Behavioral Approach to Law and Economics, 50 STAN. L. REV. 1471, 1477-78 (1998) ("We have limited computational skills and seriously flawed memories . . . . To deal with [this,] we use mental shortcuts and rules of thumb . . . [which, in turn,] lead us to erroneous conclusions.");
42. Amos Tversky & Daniel Kahneman, Judgment Under Uncertainty: Heuristics and Biases, 185 SCIENCE 1124, 1124-27 (1974) ("[P]eople rely on . . . heuristic principles which reduce . . . complex tasks . . . to simpler judgmental operations. In general, these heuristics are quite useful, but sometimes they lead to severe and systematic errors.").
43. See Baruch Fischhoff, For Those Condemned to Study the Past: Heuristics and Biases in Hindsight, in JUDGMENT UNDER UNCERTAINTY: HEURISTICS AND BIASES 335, 341 (Daniel Kahneman, Paul Slovic & Amos Tversky eds., 1982) ("In hindsight, people consistently exaggerate what [they or others] could have . . . anticipated in foresight.").
44. See, e.g., Rachlinski, Adaptation?, supra note 10.
45. But see Chris W. Sanchirico, Finding Error, 2004 MICH ST. L. REV. 1189 (2004) (identifying rational twin of across-person hindsight bias).
46. See Rachlinski, Adaptation?, supra note 10, at 82 ("The representativeness heuristic refers to the reliance on the degree of apparent similarity between the features of the events to the features of the category in judging whether an event is a member of a particular category.");
47. Amos Tversky & Daniel Kahneman, Judgments of and by Representativeness, in JUDGMENT UNDER UNCERTAINTY, supra note 15, at 84-87.
48. Rachlinski, Adaptation?, supra note 10, at 81-85; Saks & Risinger, supra note 10, at 1056-57. Strikingly versatile, the representativeness heuristic also causes factfinders to "make categorical predictions that are insensitive to the reliability of the evidence supporting their predictions, misunderstand what a random sequence of events looks like, and fail to appreciate common statistical phenomena like regression to the mean."
49. Rachlinski, Adaptation?, supra note 10, at 85; see also Tversky & Kahneman, supra note 17, at 84-87, 98 (describing specific errors due to the representativeness heuristic, including a hypothetical example wherein the jury fails to understand that the event, "the defendant left the scene of the crime," must be more likely than the event, "the defendant left the scene of the crime for fear of being accused of murder").
50. See, e.g. (in chronological order), Cass R. Sunstein, Behavioral Analysis of Law, 64 U. CHI. L. REV. 1175, 1194 (1997) ("Economic analysis of law has proceeded on the basis of inaccurate understandings of decision and choice."); Jolls et al., supra note 14 (similar);
51. Jon D. Hanson & Douglas A. Kysar, Taking Behavioralism Seriously: The Problem of Market Manipulation, 74 N.Y.U. L. REV. 630, 630 (1999) ("[S]cholars have been well justified in incorporating the behavioralist account of human behavior into law and economics. Nevertheless . . . those scholars simultaneously have failed to take the findings of behavioral research to their logical conclusion.");
52. Russell B. Korobkin & Thomas S. Ulen, Law and Behavioral Science: Removing the Rationality Assumption from Law and Economics, 88 CAL. L. REV. 1051, 1053 (2000) ("As law and economics turns forty years old, its continued vitality is threatened by its unrealistic core behavioral assumption: that people subject to the law act rationally.").
53. Hanson & Kysar, supra note 19, at 727 ("[I]ndividuals['] . . . departure from models of scientific and statistical reasoning . . . creates an opportunity for manufacturers to . . . exploit consumer perceptions.").
54. See R.H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1, 4 (1960).
55. Jolls et al., supra note 14, at 1497-1501 (arguing that the "endowment effect" may prevent bargaining, though questioning the effect on efficiency if the endowment effect changes preferences).
56. See, e.g., United States v. Wade, 388 U.S. 218, 228-37 (1967) (citing WALL, supra note 10, in finding a Sixth Amendment right to the presence of counsel at postindictment lineups); RONALD P. FISHER & R. EDWARD GEISELMAN, MEMORY-ENHANCING TECHNIQUES FOR INVESTIGATIVE INTERVIEWING: THE COGNITIVE INTERVIEW (1992) (applying "cognitive interview" techniques to improve the questioning of witnesses).
57. This Article claims instrumental value only for limits on information-processing capacity, not for limits on information. Correspondingly, the literature to which the Article responds rests its negative prognosis not on a lack of information, but on misuse of what information exists.
58. The instrumental value hypothesis should be distinguished from two orthogonal hypotheses. The first is that the law has in some cases "adapted" to cognitive limitations. See, e.g., 1A JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 58.2, at 1212-34 (Peter Tillers ed., 4th ed. 1983) (justifying restrictions on character evidence as an adaptation to jury overweighing); Rachlinski, Hindsight, supra note 10, at 575 ("The law has adapted well to the fallibility of human judgment."). The difference between the adaptation hypothesis and the instrumental value hypothesis is the difference between mitigation and exploitation. One is worse off for having had to adapt; one is better off for having been able to exploit. The second hypothesis - whose difference is self-evident - is that the prevalence and impact of cognitive error have been overstated.
59. See, e.g. (in chronological order), David C. Funder, Errors and Mistakes: Evaluating the Accuracy of Social Judgment, 101 PSYCHOL. BULL. 75, 84 (1987) (critiquing findings of error in social judgment);
60. Gerd Gigerenzer, How to Make Cognitive Illusions Disappear: Beyond "Heuristics and Biases," 2 EUR. REV. SOC. PSYCHOL. 83 (1991) (finding errors overstated);
61. Gerd Gigerenzer & Peter M. Todd, Fast and Frugal Heuristics: The Adaptive Toolbox, in SIMPLE HEURISTICS THAT MAKE US SMART 3, 21-22, 29-31 (Gerd Gigerenzer & Peter M. Todd eds., 1999) (similar);
62. Ebbe B. Ebbesen, Some Thoughts About Generalizing the Role That Confidence Plays in the Accuracy of Eyewitness Memory (Nov. 3, 2000) (critiquing the experimental design of confidence-accuracy correlation studies), at http://psy.ucsd.edu/∼eebbesen/confidence.htm;
63. Gregory Mitchell, Taking Behavioralism Too Seriously? The Unwarranted Pessimism of the New Behavioral Analysis of Law, 43 WM. & MARY L. REV. 1907, 1945-95 (2002) (faulting cognitive errors literature for experimental design, statistical method, and ecological validity);
64. People v. Legrand, 747 N.Y.S.2d 733 (Sup. Ct. 2002) (holding expert testimony on eyewitness fallibility not "generally accepted" under a Frye standard); Gregory Mitchell, Mapping Evidence Law, 2003 MICH. ST. L. REV. 1065 (2003) (critiquing applications of the errors literature to evidence law).
65. See Oliver W. Holmes, The Path of the Law, 10 HARV. L. REV. 457 (1897) (proposing that the law be analyzed from the perspective of the "bad man");
66. see also Charles R. Nesson, Incentives to Spoliate Evidence in Civil Litigation: The Need for Vigorous Judicial Action, 13 CARDOZO L. REV. 793, 795, 805 (1991) (advocating Holmes's "bad man" approach in the context of evidentiary process).
67. E.g., Margo v. Weiss, 213 F.3d 55 (2d Cir. 2000) (sanctioning plaintiffs for lying in their affidavit regarding the timing of their claim); Jones v. Clinton, 36 F. Supp. 2d 1118, 1121-25 (E.D. Ark. 1999) (finding that President Clinton lied under oath).
68. See, e.g., Superseding Indictment, United States v. Stewart, 323 F. Supp. 2d 606 (S.D.N.Y. 2004) (S1 03 Cr. 717 (MGC)), available at http://news.findlaw.com/hdocs/docs/mstewart/usmspb10504sind.pdf (charging, inter alia, that domestic icon Martha Stewart altered, but then restored, phone logs and that Stewart's broker, Peter Bacanovic, altered customer worksheets);
69. Constance L. Hays & Leslie Eaton, Stewart Found Guilty of Lying in Sale of Stock, N.Y. TIMES, Mar. 6, 2004, at A1.
70. See, e.g., Indictment, United States v. Arthur Andersen, LLP, 2002 U.S. Dist. LEXIS 26870 (S.D. Tex. 2002) (No. H-02-121) (on file with author); Kurt Eichenwald, Andersen Misread Depths of the Government's Anger, N.Y. TIMES, Mar. 18, 2002, at A1 (describing Arthur Andersen's shredding of documents relating to Enron's special purpose entities).
71. See, e.g., MARY W. SHELLY, FRANKENSTEIN (1818);
72. Sir Arthur Conan Doyle, The Final Problem, in 1 THE COMPLETE SHERLOCK HOLMES 469, 470-71 (1960) (depicting Sherlock Holmes as holding the following opinion of Professor Moriarty: "[A] man of . . . excellent education, endowed by nature with a phenomenal mathematical faculty . . . . [But] a criminal strain ran in his blood, which, instead of being modified, was increased and rendered infinitely more dangerous by his extraordinary mental powers.").
73. A similar point might be made about other "bads," including coordination problems and uncertainty. Regarding the benefits of uncertainty, see Chris W. Sanchirico, Evidence Tampering, 53 DUKE L.J. 1215, 1305, 1306 (2004) ("[T]he clearer the parties' sense of . . . which [evidence] will be decisive in future litigation, the more effectively they can target their destruction and fabrication efforts."). Regarding the benefits of coordination problems, see infra Part II.B.4 (concerning witness exclusion).
74. See, e.g., Donald A. Norman, Cognitive Artifacts, in DESIGNING INTERACTION 17, 17 (John M. Carroll ed., 1991) ("A cognitive artifact is an artificial device designed to maintain, display, or operate upon information in order to serve a representational function.").
75. But see Edwin Hutchins, Cognitive Artifacts, in THE MIT ENCYCLOPEDIA OF THE COGNITIVE SCIENCES 126, 127 (Frank Keil & Robert Wilson eds., 1999) ("[There is] no widespread consensus on how to bound the category 'cognitive artifacts.'").
76. See, e.g., Chris W. Sanchirico, Character Evidence and the Object of Trial, 101 COLUM. L. REV. 1227 (2001) (arguing that character evidence rules are best explained and evaluated according to their effect on primary-activity incentives); Sanchirico, supra note 31 (arguing similarly for the law's regulation of perjury, obstruction, evidence destruction, and the like).
77. See supra note 25 (containing discussion of the adaptation hypothesis).
78. See, e.g., WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE, UNABRIDGED 2362 (1993) [hereinafter WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY] (referring the reader, in etymological references for the word "testify," to the entry for "testament," which reads in part, "L[atin] testis akin to Oscan trstus witnesses; both fr[om] a prehistoric Italic compound whose first and second constituents respectively are akin to L[atin] tres three and to L[atin] stare to stand; fr[om] the witness standing by as a third party in a litigation");
79. accord 17 OXFORD ENGLISH DICTIONARY, UNABRIDGED 829 (2d ed. 1989).
80. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY, supra note 35, at 2362.
81. See, e.g., id. ("ME, vessel in which metals were assayed . . . fr[om] L[atin] testum earthen vessel; akin to L[atin] testa piece of burned clay, earthen pot, shell.").
82. The testum appears to have been used to separate metal composites as much as to test composition.
83. This at least is what appears from the common etymological references. See, e.g., WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY, supra note 35, at 2362;
84. accord 17 OXFORD ENGLISH DICTIONARY, supra note 35, at 829. In fact, it seems doubtful that "testify" is completely unrelated to "test," but I will leave this issue aside.
85. Davis & Follette, supra note 10, at 1435 n.19 (providing an extensive up-to-date survey of research on eyewitness fallibility, citing hundreds of articles and scores of results, and yet stating in its introduction that "[t]hroughout the article, the discussion will be confined to sources of unintentional errors"); Landsman, supra note 10, at 549 n.8 ("[Disinterested] eyewitnesses have been the subject of the most extensive judicial comment and psychological study. The reason for our preoccupation with eyewitnesses is not entirely clear . . . . For whatever reason, the literature on eyewitnesses is by far the most abundant, detailed and sophisticated.").
86. See, e.g., Applegate, supra note 10 (discussing memory shortcomings in relation to witness coaching); Gershman, supra note 10, at 838-44 (same); Landsman, supra note 10 (same).
87. But see Charles Silver, Preliminary Thoughts on the Economics of Witness Preparation, 30 TEX. TECH. L. REV. 1383 (1999).
88. Cf. Roger C. Park, Adversarial Influences on the Interrogation of Trial Witnesses, in ADVERSARIAL VERSUS INQUISITORIAL JUSTICE 131, 153-58 (Peter J. van Koppen & Steven D. Penrod eds., 2003) (using the word "test" in a more literal sense).
89. To be sure, this was not the case prior to nineteenth-century reforms. George Fisher, The Jury's Rise as Lie Detector, 107 YALE L.J. 575 (1997), provides historical background for much of the analysis in this Part, including the present discussion of interested witnesses and subsequent treatments of the oath, the ordeal, and perjury.
90. U.S. CONST. amend. V; United States v. Echeles, 352 F.2d 892, 897 (7th Cir. 1965).
91. HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN JURY 143-45 (1966), presents survey evidence - albeit dated - indicating that "the defendant testifies in 82 per cent of all cases." Id. at 144. More recent systematic empirical evidence on the related issue of how often suspects waive their Miranda rights - including the right not to provide the state with evidence of a testimonial nature during custodial interrogation - points in the same direction.
92. See, e.g., Paul G. Cassell & Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, 43 U.C.L.A. L. REV. 839 (1996).
93. In re Raiford, 695 F.2d 521, 523 (11th Cir. 1983) ("The use of a criminal conviction as conclusive of an issue in subsequent civil litigation, though not universally accepted, is well established today.").
94. See, e.g., 140 CONG. REC. H8991-92 (daily ed. Aug. 21, 1994) (statement of Rep. Molinari) (depicting sexual assault cases as "unresolvable swearing matches");
95. David Karp, Evidence of Propensity and Probability in Sex Offense Cases and Other Cases, 70 CHI.-KENT L. REV. 15, 20 (1994) (pointing to "the typically secretive nature of [sex offense] crimes, and resulting lack of neutral witnesses in most cases").
96. See, e.g., 140 CONG. REC. H8990-92 (daily ed. Aug. 21, 1994) (statement of Rep. Molinari) (providing principal House sponsor's justification for enactment of Federal Rules of Evidence 413-415, which allow evidence of similar crimes in sexual assault and child molestation cases).
97. See, e.g., Murphy v. Bonano, 663 A.2d 505, 506-08 (D.C. 1995) (similar facts).
98. See, e.g., Banker's Trust Co. v. Publicker Indus., Inc., 641 F.2d 1361, 1363 (2d Cir. 1981) (similar facts).
99. See, e.g., Steffan v. Cheney, 920 F.2d 74 (D.C. Cir. 1990) (similar facts); Capellupo v. FMC Corp., 126 F.R.D. 545, 546 (D. Minn. 1989) (similar facts).
100. See, e.g., JOEL BRINKLEY & STEVE LOHR, U.S. v. MICROSOFT 4-5 (2001) (similar facts).
101. See, e.g., United States v. Henry, 325 F.3d 93, 104 (2d Cir. 2001) (similar facts).
102. See, e.g., Davis & Follette, supra note 10, at 1441-42 ("[It is] uncontested among psychological researchers that . . . memory is a function of the amount of attention . . . . [A]nything about the event . . . or the state of those witnessing it that reduces either the amount or the quality of attention . . . will also impair memory.").
103. KAHNEMAN, supra note 7.
104. See, e.g., Davis & Follette, supra note 10, at 1449 ("Attention is naturally drawn to things relevant to one's own personal interests, goals, or current concerns . . . .").
105. See, e.g., Degelos v. Fid. & Cas. Co., 313 F.2d 809 (5th Cir. 1963) (similar facts).
106. See generally BRINKLEY & LOHR, supra note 52.
107. See, e.g., United States v. Sheffield, 55 F.3d 341, 342 (8th Cir. 1995) (similar facts).
108. See, e.g., United States v. Rinke, 778 F.2d 581 (10th Cir. 1985) (similar facts).
109. See, e.g., Davis & Follette, supra note 10, at 1447-48, 1451; Landsman, supra note 10, at 549 n.8.
110. Elizabeth F. Loftus, Eyewitness Testimony: Psychological Research and Legal Thought, 3 CRIME & JUST. 105, 128-32 (1981).
111. Davis & Follette, supra note 10, at 1430 ("Jurors tend to believe that witness testimony (particularly that of uninterested witnesses) is accurate."); Landsman, supra note 10, at 549 ("[Testimony of disinterested witnesses is one of the most persuasive sources of evidence in any lawsuit. Such testimony, most frequently eyewitness statements, is decisive in a large percentage of the cases in which it is offered.").
112. 7 Car. & Payne's Rep. 350 (Carmarthen Assizes 1836).
113. Id. at 350-51. The opinion focuses on the question whether opposing counsel could offer an additional witness to contradict the witness's denial of the relationship. The answer was yes.
114. 469 U.S. 45 (1984).
115. Id. at 47.
116. Id. at 47, 54-56.
117. U.S. CONST. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ."); Olden v. Kentucky, 488 U.S. 227, 231 (1988) ("[E]xposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected [Sixth Amendment] right of cross-examination."); Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986) (similar); Davis v. Alaska, 415 U.S. 308, 316-17 (1974) (similar).
118. I mean to define the preposition "before" broadly to include other statements by the individual that may be admissible for some purpose. See infra Parts II.B.2-3.
119. The analysis will draw on the notion of "costly signaling" as introduced into economics by A. MICHAEL SPENCE, MARKET SIGNALING: INFORMATIONAL TRANSFER IN HIRING AND RELATED SCREENING PROCESSES (1974),
120. and as extended to "endogenous cost signaling" and used to model evidence production in Chris W. Sanchirico, Games, Information, and Evidence Production: With Application to English Legal History, 2 AM. L. & ECON. REV. 342, 348 (2000) [hereinafter Sanchirico, Games];
121. Chris W. Sanchirico, Relying on the Information of Interested - and Potentially Dishonest - Parties, 3 AM. L. & ECON. REV. 320, 329 (2001) [hereinafter Sanchirico, Relying]; Sanchirico, supra note 31;
122. and Chris W. Sanchirico, Enforcement by Hearing: How the Civil Law Sets Incentives (1995) (Colum. Econ. Dept. Discussion Paper No. 95-9603, and first circulated version of Sanchirico, Relying and Sanchirico, Games) (on file with author) [hereinafter Sanchirico, Enforcement by Hearing].
123. FED. R. EVID. 603.
124. Two technical notes are in order here: (1) we measure the cost incrementally, relative to the cost of other possible answers, and (2) the reward here is measured in terms of upticks in the favorability of the "litigation lottery." The "litigation lottery" is the list of possible litigation outcomes, each paired with its probability.
125. This discussion implicates to some extent the game theory concept of "cheap talk." See, e.g., Joseph Farrell & Matthew Rabin, Cheap Talk, 10 J. ECON. PERSP. 103 (1996). A signal choice is said to be cheap talk when it "does not directly affect payoffs." Id. at 104. But this commonly stated definition is unhelpfully terse. For example, it does not account for the fact that there are two dimensions to contend with: (1) the underlying truth (or "type"), and (2) the signal. Referencing the discussion in the text, if "yes" were more expensive than "no" for truthful witnesses and equally so for untruthful witnesses, this would presumably not be "cheap talk." Yet the two types of witnesses would make the same choices and receive the same payoffs. Conversely, if answering "yes" cost the same as "no" for the truth-teller, and the same equality held for the liar, this would presumably satisfy the definition of "cheap talk." Yet such a signal would separate the types by payoffs, and so be helpful in setting primary-activity incentives, if the equal cost across signals for the truth teller were significantly lower than the equal cost across signals for the liar. Given this and other sources of imprecision, the current discussion eschews the term "cheap talk."
126. SPENCE, supra note 71.
127. The same holds when the witness and the proponent are not one and the same to the extent that the proponent bears some portion of the signal costs of the witness, as where the proponent and the witness interact in anything other than a one-shot relationship.
128. Sanchirico, Relying, supra note 71, at 344-45 (Proposition 1).
129. Notice here that primary-activity incentive setting does not require truth finding. The differential cost of lying acts like a tax on primary-activity choices that must be lied about to avoid punishment. See id. at 345 (Proposition 2).
130. I will be caricaturizing this process to make a more general point about testimony. For a more nuanced view, see, for example, Mirjan R. Damaska, Rational and Irrational Proof Revisited, 5 CARDOZO J. INT'L & COMP. L. 25 (1997); and Fisher, supra note 43.
131. "Formula Liturgicae" in Use at Ordeals (n.d.), in ERNEST F. HENDERSON, SELECT HISTORICAL DOCUMENTS OF THE MIDDLE AGES 314, 315 (1912).
132. Id.
133. See, e.g., ALDERT VRIJ, DETECTING LIES AND DECEIT: THE PSYCHOLOGY OF LYING AND THE IMPLICATIONS FOR PROFESSIONAL PRACTICE xiii (2000) (using the term "non-verbal behavior" as I use "demeanor").
134. Bella M. DePaulo, James J. Lindsay, Brian E. Malone, Laura Muhlenbruck, Kelly Charlton & Harris Cooper, Cues to Deception, 129 PSYCH. BULL. 74 app. A at 115-17 (2003) (listing, inter alia, over one hundred experimentally studied demeanor cues); see also VRIJ, supra note 82, at 32-33.
135. See the sources cited in Olin Guy Wellborn III, Demeanor, 76 CORNELL L. REV. 1075, 1076-78 (1991).
136. See Demeanor, 76 1075, 1076-78 (1991). id. (reviewing experimental results on the inefficacy of demeanor);
137. see also Roger C. Park, Empirical Evaluation of the Hearsay Rule, in ESSAYS FOR COLIN TAPPER 91, 91-93 (Peter Mirfield & Roger Smith eds., 2003).
138. But see James P. Timony, Demeanor Credibility, 49 CATH. U. L. REV. 903, 916-22 (2000) (defending demeanor evidence).
139. See, e.g., M. Zuckerman, B.M. DePaulo & R. Rosenthal, Verbal and Nonverbal Communication of Deception, 14 ADVANCES IN EXPERIMENTAL SOC. PSYCHOL. 1, 9-10 (1981) (discussing this hypothesis in the literature).
140. See sources on costly signaling cited supra note 71. The lie detection literature is starting to embrace the logic of costly signaling. See, e.g., VRIJ, supra note 82, at 38 ("[B]ehaviours which are easy to control can never be reliable indicators of deception.").
141. DePaulo et al., supra note 83, at 93 ("The 32 independent estimates of eye contact produced a combined effect that was almost exactly zero.").
142. A meta-analysis quantitatively combines the results of prior studies that meet express criteria. See R. Rosenthal & M.R. DiMatteo, Meta-analysis: Recent Developments in Quantitative Methods for Literature Reviews, 52 ANN. REV. PSYCHOL. 59 (2001) (providing a primer on meta-analysis).
143. DePaulo et al., supra note 83, app. A at 115-17.
144. Id. (listing the cues considered).
145. Id. pt. VI.A (listing criteria for inclusion); id. at 85 tbl.1 (listing the prior studies included).
146. DePaulo et al., supra note 83, measure "effect size" with Cohen's d. See JACOB COHEN, STATISTICAL POWER ANALYSIS FOR THE BEHAVIORAL SCIENCES 20-24 (2d ed. 1988). Roughly, d is the proportion of deviation from the mean explained by the difference between lying versus truth telling, as opposed to "noise" factors such as individual and circumstantial differences. In fact, d is of questionable utility. The size of d says little about the size of a cue's likelihood ratio, the true measure of the cue's informativeness. The cue's likelihood ratio is the ratio of the probability that a liar exhibits the cue to the probability that a truth teller exhibits the cue. According to Bayes's rule, on seeing the cue, one multiplies the prior odds that the subject is lying (the ratio of the chance that she's lying to the chance that she's not, prior to revelation of whether the cue is present) by the likelihood ratio in order to obtain the posterior odds that the subject is lying. Thus, the extent to which a cue should affect our assessment of sincerity is precisely measured by the likelihood ratio, and not d.
147. Cohen, upon whom DePaulo et al., supra note 83, rely, see supra note 93, proposes that a d between -.20 and +.20 is a "small effect size." COHEN, supra note 93, at 25. To intuitively calibrate "small effect size," Cohen points out that in judging whether a human female is fifteen or sixteen years old, height has a small effect size. But see the discussion of d's limitations at note 93 supra.
148. DePaulo et al., supra note 83, at 95 tbl.8. Over the last decade, several relatively obscure demeanor cues have been found to exhibit larger effect sizes. Paul Ekman's work has focused on "microfacial expressions," small movements of the facial muscles detectable only for a fraction of a second. PAUL EKMAN, TELLING LIES: CLUES TO DECEIT IN THE MARKETPLACE, POLITICS, AND MARRIAGE 123-61 (2001). Such cues are specifically not detectable by lay observers, although lay observers, it is asserted, can be trained to notice them. Additionally, Zuckerman et al., supra note 86, ask whether the masking of demeanor cues might itself be detectable, as when liars appear unnaturally "stiff." Game theoretic reasoning suggests that findings of modest success for these obscure cues ought to be regarded with skepticism, precisely because they are obscure. A large effect size says little if experimental subjects did not realize that the cue was being watched.
149. DePaulo et al., supra note 83, at 100.
150. One could always claim that, even though every witness will experience stress at trial, the guilty or insincere will be even more stressed and, consequently, stress cues will still have utility. Id. at 96, 100, 102. Whether or not this proposition holds, existing findings provide no support for it.
151. VRIJ, supra note 82, at 170. Sometimes brain electrical behavior is monitored as well. Id.
152. This is clearest in relation to the Control Question Test, one variant of polygraph testing. Explanations of the logic behind the Control Question Test are not entirely coherent. EKMAN, supra note 95, at 200. The following note contains the author's own attempt to make sense of the test mechanic. The Control Question Test pairs "relevant questions" with "control questions." If the issue is whether the subject assaulted the victim, a relevant question might be, "Did you assault the victim?," and the control question might be, "Have you ever struck anyone in anger?" A control question is designed to be one that the subject believes is nearly as pertinent to her interests in the present suit as the corresponding relevant question - as if similar past transgressions will be used against her in this case. Moreover, the control question should be one that nearly all subjects, innocent or guilty, would answer insincerely. Consider how this plays out - first for the innocent subject, then for the guilty. In falsely answering the control question, the innocent subject experiences two sources of stress: from the pertinence of the question and from lying. In truthfully answering the relevant question, on the other hand, the innocent subject experiences only "pertinence stress." Plausibly, pertinence stress from the relevant question is greater than for the control question. Lying stress, on the other hand, is greater for the control question, on which the innocent subject lies, than for the relevant question, on which she tells the truth. The assumption is that the difference in lying stress dominates so that the innocent subject exhibits more total stress in response to control questions. The guilty subject, on the other hand, lies on both questions. For the guilty subject, therefore, the greater pertinence stress of the relevant question is decisive, and total stress is greater for the relevant question than for the control question. Thus, guilty subjects will exhibit more stress on the relevant question, while innocent subjects will exhibit more stress on the control question. Id. Obviously, this truth-finding mechanic is a bit fragile, as has been pointed out repeatedly in the literature. To take a somewhat novel critical angle, consider that it must simultaneously obtain that: (1) the past transgression forming the subject of the control question is so common that the examiner can be fairly certain that any innocent subject has committed it, despite her denial; and (2) the subject believes that this past transgression - in fact so common that any innocent subject who walked into the room would have committed it - is now going to be regarded by the examiner as informative of whether the subject committed the particular crime in question. The difficulty of finding this sort of "magic bullet" question produces a serious correlation problem. Perhaps the transgression is so commonplace that the innocent subject doubts its pertinence to the present case. Or, perhaps the transgression is not common enough, and when the innocent witness answers "no," she is not really lying. The shared result of both of these complementary sources of error - i.e., that innocent subjects are insufficiently stressed by the control question relative to the relevant question - is consistent with the data. Both laboratory studies, VRIJ, supra note 82, at 197, and field studies, id. at 199, show that the Control Question Test has a roughly twenty percent chance of finding the innocent guilty.
153. Similarly, for the Control Question Test, described in note 99, supra, the guilty subject can learn to identify control questions and produce artificial stress in answering them.
154. VRIJ, supra note 82, at 203 (listing studies showing that thirty minutes of training in countermeasures can be effective and that such measures can be difficult to detect). If few individuals have been taught thus far, this may merely reflect the test's relative lack of employment.
155. See, e.g., 18 U.S.C. §§ 1621-1623 (2000) (federal perjury); 18 U.S.C. §§ 1503, 1512(c) (2000) (federal obstruction of justice); U.S. SENTENCING COMMISSION GUIDELINES MANUAL §§ 2J1.2 ("offense level" for federal obstruction of justice for purposes of sentencing), 2J1.3 ("offense level" for federal perjury for purposes of sentencing), 5E1.2 (2004) (fines for individuals based on "offense level" and other factors), ch. 5, pt. A (months of imprisonment based on "offense level" and criminal history). For a review of these laws, see Sanchirico, supra note 31, pt. II.
156. Sanchirico, Relying, supra note 71, at 330-31.
157. There may be other reasons to exclude these forms of evidence, including lack of scientific reliability, the risk that the jury will overweigh the evidence, and the fact that such evidence "invades the province of the jury." See, e.g., JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S FEDERAL EVIDENCE § 702.06[1][b] (reviewing reasons why polygraph evidence may be excluded).
158. See, e.g., FED. R. EVID. 401 (defining relevance in this way).
159. VRIJ, supra note 82, at 109.
160. Id. at 210, 212, 215; Sanchirico, Games, supra note 71, at 348;
161. Sanchirico, Relying, supra note 71, at 329;
162. Sanchirico, Enforcement by Hearing, supra note 71.
163. DePaulo et al., supra note 83, at 91.
164. Id. at 96.
165. Id. at 92.
166. In certain circumstances, the prior statement may also be used to prove the truth of the matter asserted. See infra note 171.
167. The general rule, however, is that "extrinsic evidence" may not be used to contradict the witness if the matter being contradicted is "collateral." GRAHAM C. LILLY, AN INTRODUCTION TO THE LAW OF EVIDENCE § 8.5, at 415 (3d ed. 1996). As noted, "extrinsic" evidence is evidence outside the four corners of the witness's own testimony (including cross-examination), such as the testimony of other witnesses or documents and things. A matter is "collateral" if it could not be offered for any purpose other than impeachment or, alternatively, if it is not material to a claim or defense. Id. § 8.6, at 424.
168. See supra note 112 (defining "extrinsic evidence").
169. Compare, for instance, Federal Rule of Evidence 608 (which allows extrinsic evidence of untruthful character in the form of opinion and reputation witnesses, but not in the form of specific instances) and 609 (which allows extrinsic evidence of untruthful character in the form of evidence of a criminal conviction) with Federal Rule of Evidence 613 (which allows extrinsic evidence of a prior inconsistent statement under special procedural conditions) and the traditional rule, still followed in many circuits despite Federal Rule of Evidence 613, which disallows extrinsic evidence of a prior inconsistent statement if the matter stated is "collateral" (as defined in note 112, supra). WEINSTEIN & BERGER, supra note 104, § 607.06.
170. See Sanchirico, supra note 33, at 1264-77.
171. H. Richard Uviller, Credence, Character, and the Rules of Evidence: Seeing Through the Liar's Tale, 42 DUKE L. J. 776, 816-17, 827 (1993).
172. See, e.g., CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, EVIDENCE UNDER THE RULES 663 (4th ed. 2000) (stating that impeachment by contradiction "goes on every day"); WEINSTEIN & BERGER, supra note 104, § 607.06[1] (stating that impeachment by contradiction is "a well-recognized technique").
173. JEROME FRANK, COURTS ON TRIAL: MYTH AND REALITY IN AMERICAN JUSTICE 86 (1950) ("[The witness] often detects what the lawyer hopes to prove at the trial. If the witness desires to have the lawyer's client win the case, he will often, unconsciously, mold his story accordingly. Telling and re-telling it to the lawyer, he will honestly believe that his story, as he narrates it in court, is true, although it importantly deviates from what he originally believed.") (emphasis added).
174. Landsman, supra note 10, at 549 n.8.
175. Id. at 555 ("The lawyer's influence will frequently be amplified because she is perceived by the witness as a person of high status . . . .").
176. Gershman, supra note 10, at 829-30.
177. Id.
178. Applegate, supra note 10, at 279. But see Silver, supra note 41, at 1387 (arguing that witness preparation is infrequent).
179. See ALFRED N. WHITEHEAD & BERTRAND RUSSELL, PRINCIPIA MATHEMATICA (1927) (providing axiomatic system from which much of mathematics may be derived),
180. summarized in JAMES DUGUNDJI, TOPOLOGY 17-21 (1970).
181. But see Kurt Gödel, Über Formal Unentscheidbare Sätze der Principia Mathematica und Verwandter Systeme I, in 38 MONATSHEFTE FÜR MATH. U. PHYSIK 173 (1931) (proving that within a large class of axiomatic systems, any system that is "consistent," in the sense that no proposition is simultaneously true and false, is "incomplete," in the sense that the truth or falsity of some propositions that may be stated within the system cannot be determined).
182. The liar's tale is always in a sense "externally inconsistent." This is what makes it a lie. The issue here is whether the contradicted facts are ascertainable by the opposition and, ultimately, the factfinder. Note also that the distinction between internal and external inconsistency is not always sharp: the suspect whose alibi places her simultaneously in Seattle and Los Angeles contradicts both herself and the external fact that Seattle and Los Angeles have no geographical intersection.
183. See supra pp. 317-18.
184. Perjury, obstruction, contempt, and the subpoena power probably do little to inspire witnesses to be forthcoming with contradictable detail. The classic "I don't recall" or "I don't know" are practical safe havens under these strictures.
185. BRINKLEY & LOHR, supra note 52, at 14.
186. See generally George Mandler, Hypermnesia, Incubation, and Mind Popping: On Remembering Without Really Trying, in 15 ATTENTION & PERFORMANCE 1 (1994) (reviewing literature on hypermnesia and related phenomena).
187. Fanelli v. United States Gypsum Co., 141 F.2d 216, 217 (2d Cir. 1944) (Frank, J.) ("Common experience, the work of Proust and other keenly observant literary men, and recondite psychological research, all teach us that memory of things long past can be accurately restored in all sorts of ways."); Baker v. State, 371 A.2d 699, 705 n.11 (Md. Ct. Spec. App. 1977) ("Marcel Proust, in his monumental epic In Remembrance of Things Past, sat, as a middle-aged man, sipping a cup of lime-flavored tea and eating a madeleine, a small French pastry. Through both media, two long-forgotten tastes from childhood were reawakened. By association, long forgotten memories from the same period of childhood came welling and surging back. Once those floodgates of recall were opened, seven volumes followed.").
188. See, e.g., 1 MCCORMICK ON EVIDENCE § 9, at 28 (John William Strong ed., 4th ed. 1992) ("It is abundantly clear from everyday observation that the latent memory of an experience may be revived by an image seen, or a statement read or heard . . . . The recall of any part of a past experience tends to bring with it the other parts that were in the same field of awareness . . . . The effect of a reminder, encountered in reading a newspaper or in the conversation of a friend, which gives us the sensation of recognizing as familiar some happening which we had forgotten, and prompts our memory to bring back associated experience, is a frequently encountered process.").
189. See generally Mandler, supra note 129 (reviewing literature on hypermnesia, incubation, and mind popping); id. at 3-4 ("In all of these cases, access to some mental content is increased with little deliberative effort, such as a delay or the mere request for another recall; the individual is not actually trying to improve on the performance.").
190. Id. at 5, 8.
191. Id. at 8.
192. See generally Daniel L. Schacter, Kenneth A. Norman & Wilma Koutstaal, The Cognitive Neuroscience of Constructive Memory, 49 ANN. REV. PSCYHOL. 289 (1998) (reviewing recent research on constructive processes that
193. Part III.A.1 infra discusses the extent to which current law fosters surprise.
194. 6 = 729 potential sequences of questions and answers to consider and 3 + 27 + 243 = 273 potential questions to which answers must be devised.
195. See Fernand Gobet, Chess, Psychology of, in MIT ENCYCLOPEDIA, supra note 32, at 113.
196. In the federal system, Federal Rule of Evidence 612 implicitly allows a witness to consult written records to refresh memory while testifying. Case law clarifies that such a writing may be consulted only for the purpose of refreshing an exhausted memory and that refreshed memory, and not the medium, must be the true source of further testimony. United States v. Weller, 238 F.3d 1215, 1221 (10th Cir. 2001) (noting that the "court has the discretion to withhold any writing from a witness where the judge believes that the document will be a source of direct testimony rather than the key to refreshing the witness' independent recollection"); Thompson v. United States, 342 F.2d 137, 139 (5th Cir. 1965) (noting requirements that witness's memory be exhausted and that writing refresh it); NLRB v. Fed. Dairy Co., 297 F.2d 487, 488-89 (1st Cir. 1962) ("The witness should first testify . . . that the paper does in fact have that effect [of refreshing memory and] . . . . that his recollection is exhausted. Prerequisites i[n] prompting a witness, such as exhaustion of memory, are so axiomatic that they are rarely referred to except in passing."). See also the discussion of present recollection refreshed at notes 130, 131, and 148. Federal Rule of Evidence 611(c) stipulates that leading questions - questions that suggest their answer - "should not be used on the direct examination of a witness" (though there are exceptions). Direct examination is consequently an exercise in recall, not merely recognition. Thus, instead of asking the passenger witness, "And then you saw the defendant's car weave into oncoming traffic, is that right?," the plaintiffs lawyers must ask something on the order of, "And then what happened?"
197. Fed. Dairy Co., 297 F.2d at 488 n.3 ("'Since the Narrative . . . should represent actual Recollection . . . , it becomes necessary to forbid the use of various artificial written aids capable of misuse so as to put into the witness's mouth a story which is in effect fictitious and corresponds to no actual Recollection.'") (quoting 3 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 758, at 125 (3d ed. 1940)).
198. This explanation is compelling in certain settings - such as where a child is being interviewed for the first time about a possible incident of molestation. Despite the fact that findings from the special setting of child witnesses are not readily transferable to most of the evidentiary process, these results tend to get broad play in the literature on cognition and evidentiary process. See, e.g., VRIJ, supra note 82, at 113-15 (discussing the truth-finding technique of "Statement Validity Assessment," initially designed for child witnesses).
199. See supra pp. 317-18.
200. BADDELEY, supra note 2, at 64-72.
201. Murray Glanzer & Anita R. Cunitz, Two Storage Mechanisms in Free Recall, 5 J. VERBAL LEARNING & VERBAL BEHAV. 351, 351 (1966).
202. See, e.g., Craik & Lockhart, supra note 5, at 671 (noting that depth of analysis determines durability).
203. See, e.g., Glanzer & Cunitz, supra note 144, at 357-60 (noting that "recency" effect dissipates with a brief filled delay between hearing and recalling).
204. See supra note 139.
205. FED. R. EVID. 612 ("Writing Used to Refresh Memory . . . . [I]f a witness uses a writing to refresh memory for the purpose of testifying . . . while testifying . . . an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.").
206. Note that Federal Rule of Evidence 612 is specifically made subject to the Jencks Act, 18 U.S.C. § 3500 (2000), as codified in part and extended in part in Federal Rule of Criminal Procedure 26.2.
207. See 1 MCCORMICK ON EVIDENCE § 97, at 392-96 (John W. Strong ed., 5th ed. 1999)
208. [hereinafter MCCORMICK ON EVIDENCE (5TH ED.)].
209. Present recollection refreshed has received little scholarly attention. For an exception, see Thomas M. Tomlinson, Note, Pattern-Based Memory and the Writing Used to Refresh, 73 TEX. L. REV. 1461, 1478 (1995) ("[There are] two ways that a writing used to refresh skews testimony: It makes a witness appear more confident, and it suggests testimony to the witness.").
210. See supra Part II.A.3.
211. FED. R. EVID. 612 advisory committee's note.
212. FED. R. EVID. 612.
213. The "interests of justice" proviso, however vague, was added by Congress and did not appear in the advisory committee's proposed rule. WEINSTEIN & BERGER, supra note 104, § 612 App.01..
214. 93 F.R.D. 138 (D. Del. 1982).
215. Id. at 144. Federal Rule of Evidence 612, like most Federal Rules of Evidence, applies to depositions taken under the Federal Rules of Civil Procedure.
216. FED. R. CIV. P. 30(c); WEINSTEIN & BERGER, supra note 104, § 612.02[5].
217. Julian, 93 F.R.D. at 145.
218. Id. at 144-45; see also Berkey Photo, Inc. v. Eastman Kodak Co., 74 F.R.D. 613 (S.D.N.Y. 1977) (holding generally that if an attorney shows work product to a lay or expert witness prior to a deposition, then the work product becomes discoverable).
219. Julian, 93 F.R.D. at 144. Not all courts have taken this "strict waiver" approach. See WEINSTEIN & BERGER, supra note 104, § 612.05, for a discussion of alternative approaches, including the "balancing approach" adopted by some courts.
220. WEINSTEIN & BERGER, supra note 104, § 612.06[2] ("When a witness has refreshed his or her recollection with privileged materials before testifying, most courts . . . appear to hold that use of the material constitutes waiver of the privilege. Likewise, when a witness consults a writing embodying his or her own communication to counsel, and the testimony discloses a significant part of the communication, most courts find that the attorney-client privilege has been waived.").
221. See generally id. § 612.04[2][b][ii] (discussing other avenues for obtaining preparation materials when the witness is an expert).
222. FED. R. EVID. 705.
223. FED. R. CIV. P. 26(a)(2)(B).
224. See, e.g., Banker's Trust Co. v. Publicker Indus., Inc., 641 F.2d 1361 (2d Cir. 1981) (concerning action by investment bank to recover fee, wherein vice president of bank testified using a chronology of events, which the other side inspected, asked her about, but then declined to introduce into evidence).
225. WEINSTEIN & BERGER, supra note 104, § 612.02[3].
226. Ford v. Philips Elecs. Instruments Co., 82 F.R.D. 359, 361 (E.D. Pa. 1979) (establishing guidelines for the questioning of a nonexpert deponent regarding preparatory conversations with counsel: inter alia, that "[s]uch inquiry may not . . . include questions that tend to elicit the specific questions posed to the witness . . . , the general line of inquiry pursued . . . , the facts to which . . . counsel appeared to attach significance, or any other matter that reveals . . . counsel's mental impressions"). If the deponent is counsel's client, such conversations will also be protected by attorney-client privilege. However, courts have held that conversations between counsel and an expert witness are not protected. See, e.g., Intermedics, Inc. v. Ventritex, Inc., 139 F.R.D. 384, 387 (N.D. Cal. 1991) ("[A]bsent an extraordinary showing of unfairness that goes well beyond the interests generally protected by the work product doctrine, written and oral communications from a lawyer to an expert that are related to matters about which the expert will offer testimony are discoverable, even when those communications otherwise would be deemed opinion work product.") (emphasis added).
227. Jos. Schlitz Brewing Co. v. Muller & Phipps (Haw.), Ltd., 85 F.R.D. 118, 120 n.2 (W.D. Mo. 1980) ("Adoption of a waiver theory seems dubious as a matter of policy, moreover, in that it would encourage the sophisticated prospective witness to avoid refreshing recollections prior to testifying, or to use a 'coach' who has examined the documents, rather than the documents themselves."); Applegate, supra note 10, at 345.
228. Applegate, supra note 10, at 345 ("Oral description of documents is the worst possible type of witness preparation for the legal system to encourage."); see also Schlitz Brewing Co., 85 F.R.D. at 120 n.2 ("It seems likely that truthful and accurate testimony by a prospective witness will be assisted by reviewing files, and the Court believes the useful discipline of such examination probably outweighs the danger of fabrication and mistake caused by reliance on undisclosed writings.").
229. Steve Lohr, Antitrust Case Is Highlighting Role of Email, N.Y. TIMES, Nov. 2, 1998, at C1.
230. Steve Lohr, Antitrust Case Is Highlighting Role of Email, 1998, Id.
231. The impact may differ as a matter of degree, however. For example, in the case of prior inconsistent statements, the "other" witness is the same as the current witness and, therefore, the contradiction is less likely to be accidental or excusable.
232. Indeed, in some cases a prior statement may itself be admitted for the truth of the matter asserted, as when, for example, a party's own statements are offered against her or a witness's prior inconsistent statement was made under oath in a judicial proceeding or deposition and the witness may now be cross-examined concerning the statement. See, e.g., FED. R. EVID. 801(d)(1)-(2).
233. The general point here, that preparation may extend beyond that undertaken on the eve of trial, also holds for contradiction by purely external facts, which are also, but to a much lesser extent, subject to manipulation before the definite prospect of litigation arises.
234. Sanchirico, supra note 31, pt. IV (emphasizing the importance for the regulation of evidence tampering of uncertainty about what evidence will be decisive in litigation).
235. But see infra note 175 (discussing other difficulties that would befall even the perfectly rational witness).
236. See supra Part I.D. Cognitive limitations are not the only source of difficulty here. Difficulties are also caused by uncertainty per se, which plagues the perfectly rational as well as the ordinarily irrational. There is only some chance that one's current statement will be decisively damaging in later litigation. And sometimes the risk is rationally taken. Sanchirico, supra note 31, pt. V. Similarly, some part of the prevalence of contradictable prior statements is due to unavoidable trade-offs between effectively proceeding in the primary-activity task and avoiding the generation of an evidentiary trail - again a difficulty plaguing all degrees of rationality. To proceed effectively, for example, one may need to coordinate with others. Coordinating necessitates communicating, and communicating effectively may require sending e-mails that are later damaging in litigation. See also supra note 31; infra note 183.
237. See, e.g., FED. R. EVID. 613 (laying out procedures for impeaching witnesses by their prior inconsistent statements); Harris v. New York, 401 U.S. 222 (1971) (allowing impeachment of accused by prior inconsistent statements that were barred from substantive use by Miranda v. Arizona, 384 U.S. 436 (1966)).
238. 513 U.S. 150 (1995).
239. Bolstering - or supporting the witness's credibility before it has been attacked - is generally disallowed. CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, EVIDENCE § 6.49 (3d ed. 2003). Rehabilitation - supporting the witness's credibility after it has been attacked - is allowed, but several special restrictions have emerged regarding rehabilitation, specifically rehabilitation by prior consistent statement. In Tome, the Court held inadmissible a child's prior statements, consistent with current testimony, that her father had sexually abused her. The Court laid down the general rule that such prior consistent statements would be admissible only when they were made before the motive to fabricate had arisen. Tome concerned the substantive, rather than rehabilitative, use of prior consistent statements - the statements were offered to prove the truth of the matter asserted, rather than to rebut a charge that the child was fabricating on the stand, no such charge having been leveled by the defendant. (The precise issue was whether the statements were exempted from the definition of hearsay under Federal Rule of Evidence 801(d)(1)(B).) But the pre-motive requirement may well be applied to prior consistent statements when used solely for a rehabilitation purpose. WEINSTEIN & BERGER, supra note 104, § 607.09[2][b] ("[The prior] trend towards flexibility [in rehabilitating witnesses by means of their prior consistent statements] was dealt a mortal blow in Tome v. United States . . . .").
240. WEINSTEIN & BERGER, supra note 104, § 607.07[3][c].
241. 1 MCCORMICK. ON EVIDENCE (5TH ED.), supra note 148, § 34, at 74-75.
242. FED. R. EVID. 615. Witnesses who have a statutory right to be present - for example, victims in certain cases - also cannot be excluded. Id.
243. 615. Witnesses who have a statutory right to be present - for example, victims in certain cases - also cannot be excluded. Id.
244. Thus, another "bad" - the problem of coordination among individuals - becomes a "good" when applied to evidentiary process. See supra notes 31, 175.
245. In addition to this general practice, specific rules requiring or more heavily weighing multiple witnesses do exist. See, e.g., U.S. CONST. art. III, § 3, cl. 1 ("No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."); 18 U.S.C. § 1621 (2000) (perjury statute that has been interpreted to require two witnesses to prove offense).
246. On the survival of the common law two-witness rule in § 1621, see Rebecca Kislak & John J. Donoghue, Perjury, 36 AM. CRIM. L. REV. 957, 972-73 (1999) and sources cited therein.
247. This phrase is most often used in connection with justifying the general prohibition against hearsay, see, e.g., FED. R. EVID. 801, and in giving content to the Confrontation Clause of the U.S. Constitution, see, e.g., White v. Illinois, 502 U.S. 346, 356 (1992).
248. See supra Part I.B.3.
249. 5 WIGMORE, supra note 25, § 1367, at 32 (quoted, for example, in White v. Illinois, 502 U.S. at 356).
250. Others have also been dissatisfied with Wigmore's assertion, though for somewhat different reasons. Several scholars focus on cross-examination's potential for "false positives," wherein truthful witnesses are discredited. Professors John Langbein and Mirjan Damaska, for example, both warn of the possibility that cross-examination will make the truthful witness look like a liar. Mirjan Damaska, Presentation of Evidence and Factfinding Precision, 123 U. PA. L. REV. 1083, 1094 (1975) ("Even with the best of intentions on the cross-examiner's part, reliable testimony may easily be made to look debatable, and clear information may become obfuscated.");
251. John H. Langbein, The German Advantage in Civil Procedure, 52 U. CHI. L. REV. 823, 833-34 (1985) ("[B]ecause cross-examination allows so much latitude for bullying and other truth-defeating stratagems, it is frequently the source of fresh distortion when brought to bear against truthful testimony.").
252. Wigmore himself also suggested this possibility but viewed the problem as soluble. 5 WIGMORE, supra note 25, § 1367, at 32 ("[Cross-examination] may make the truth appear like falsehood. But this abuse of its power is able to be remedied by proper control."). It may be worth emphasizing that the bare fact that cross-examination exhibits false positives is in and of itself no indictment. Only perfect evidence is free from error, and perfect evidence does not exist. Furthermore, in judging the efficacy of cross-examination, one must consider not only false positives, but also true positives: the extent to which liars are discredited. The fact that one must consider both false positives and true positives in judging cross-examination is another way of pointing out the importance of focusing on the differential, rather than either of its components in isolation. (Note that false negatives are the complement of true positives.)
253. Another recent position on cross-examination emphasizes the lack of empirical evidence. This position is well represented in the writings of Professor Roger C. Park. Park, supra note 42; Roger C. Park, Visions of Applying the Scientific Method to the Hearsay Rule, 2003 MICH. ST. L. REV. 1149 (2003). Park recognizes that the discrepancy between Wigmore's optimism and modern skepticism is an empirical matter. And he maintains neutrality given the dearth of empirical evidence for either side. Park, supra note 42, at 162 (reviewing a famous practice guide on cross-examination, as well as systematic empirical work, and concluding that "no one has come close to doing a definitive study [of cross-examination], and one could argue that no one has even made a good start"); see also Applegate, supra note 10, at 311 ("While the adversary system touts the effectiveness of cross-examination for revealing the truth, there is little empirical support for this conclusion."). Empirical evidence is certainly lacking and ultimately necessary. But what must first be supplied is a precise account of the hypotheses to be tested.
254. 2 JOHN HENRY WIGMORE, A TREATISE ON THE SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW § 1367, at 1697 (1904).
255. 2 JOHN HENRY WIGMORE, A TREATISE ON THE SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW (1904). Id.
256. Steam engines had already been in use for several decades. But the engine was likely still at the edge of the technological consciousness, much like computer processing or nuclear power are today, despite the fact that they have similarly been around for several decades.
257. See 5 WIGMORE, supra note 25, § 1368, at 36 ("What is the theory of [cross-examination's] efficiency? . . . Upon this we commonly reflect but little."). Wigmore then goes on in section 1368 to reflect just a little more. Id. § 1368, at 36-38. He emphasizes that cross-examination "extracts] . . . the remaining qualifying circumstances, if any, known to the witness, but hitherto [on direct] undisclosed by him," id. at 37, as well as "facts which diminish the personal trustworthiness or credit of the witness [that also] have remained undisclosed on the direct examination," id., all this with the drama of immediately succeeding direct examination and forcing the witness to supply his own refutation, id. at 38. Wigmore does not explain, however, how these extractions occur or why a witness's cross-examination should be believed any more than her direct. Wigmore also provides a series of examples of cross-examination in litigation, as well as extensive excerpts from writings of earlier evidence scholars.
258. Park, supra note 42, at 162. Perhaps the closest that experimental research has come is Peter Miene, Roger C. Park & Eugene Borgida, Juror Decision Making and the Evaluation of Hearsay Evidence, 76 MINN. L. REV. 683 (1992) (reporting on one of the few hearsay experiments with real eyewitnesses to a staged incident and actual cross-examination by participating attorneys).
259. Like the efficacy of semantic content as a deception cue generally, see supra note 106, the proposition that unanticipated questions are likely to reveal more semantic cues than anticipated questions is oddly neglected in empirical and experimental research. VRIJ, supra note 82, at 111 ("[I]t might be that spontaneous lies contain more verbal indicators of deception than planned lies. I am not aware of research investigating this issue to date.").
260. Clark v. Pa. R.R. Co., 328 F.2d 591, 594 (2d Cir. 1964); see also United States v. Agurs, 427 U.S. 97, 108 (1976) (describing express rejection of "sporting theory of justice" as rationale for Brady rule that prosecutor must upon request turn over exonerating evidence to accused, as provided in Brady v. Maryland, 373 U.S. 83, 87 (1963)); United States v. Filani, 74 F.3d 378, 384-85 (2d Cir. 1996) ("Our court has never embraced the so-called sporting theory of the common law."); cf. 6 WIGMORE, supra note 25, § 1845, at 488-90 (describing "sportsmanlike instincts" and the "game of litigation" in describing the old common law's aversion to discovery).
261. Tentative Recommendations and a Study Relating to the Uniform Rules of Evidence - Article VI. Extrinsic Policies Affecting Admissibility, 6 CAL. L. REVISION COMM'N REPS. RECOMMENDATIONS & STUD. 601, 612 (1964) ("[S]urprise frequently is the essential tool for recognizing the truth.").
262. FED. R. EVID. 403. Other rules of evidence do require pretrial disclosure.
263. See, e.g., FED. R. EVID. 404(b), 413, 609 (requiring disclosure of intent to use prior act evidence for various purposes, including proving state of mind, proving propensity to commit sex offenses, and impeaching a witness). Continuances may mitigate surprise, but only partially. In the first place, continuances are unlikely to be granted when surprise is part of a strategy to catch the witness in a contradiction. See, for example, the discussion immediately below of the common law and Federal Rules procedures for impeaching a witness by her prior inconsistent statement, neither of which involve the granting of continuances. Second, continuances are not as a matter of course granted during depositions. Third, even when granted, a continuance allows the surprised party a relatively small amount of time to counterprepare.
264. The exception is KAN. STAT. ANN. § 60-445 (2004).
265. See, e.g., N.Y. TRIAL LAWYERS COMM. ON THE PROPOSED FED. RULES OF EVIDENCE, RECOMMENDATION AND STUDY RELATING TO THE ADVISORY COMMITTEE'S PRELIMINARY DRAFT OF THE PROPOSED FEDERAL RULES OF EVIDENCE 25 (1970).
266. FED. R. EVID. 403 advisory committee's note.
267. See, e.g., Green Constr. Co. v. Kan. Power & Light Co., 759 F. Supp. 740, 745 (D. Kan. 1991) ("KPL next contends that it was unfairly prejudiced by the surprise introduction of two exhibits . . . [that were] not produced to KPL until the Friday of the week preceding the commencement of trial . . . . The court finds that KPL's contentions in this regard are without merit. [Among other reasons,] surprise is not generally a recognized ground for excluding evidence under the Federal Rules of Evidence.").
268. FED. R. EVID. 613 advisory committee's note to subdivision (a).
269. WEINSTEIN & BERGER, supra note 104, § 613.02[2][b] ("Rule 613 gives greater weight to surprise than to warning as a technique for ferreting out the truth.").
270. The Queen's Case, 129 Eng. Rep. 976 (K.B. 1820).
271. See, e.g., WEINSTEIN & BERGER, supra note 104, § 403.02[4][b] ("The development of discovery practice and pretrial procedure has reduced the possibility of surprise in many civil cases."); see also Park, supra note 42, at 165-66 (discussing the impact of depositions on cross-examination).
272. The extent of discovery is sensitive to the size of the stakes of the case. Most cases are apparently too small to warrant extensive discovery. James S. Kakalik, Deborah R. Hensler, Daniel McCaffrey, Marian Oshiro, Nicholas M. Pace & Mary E. Vaiana, Discovery Management: Further Analysis of the Civil Justice Reform Act Evaluation Data, 39 B.C. L. REV. 613, 637-38, 643 (1998);
273. Thomas E. Willging, Donna Stienstra, John Shapard & Dean Miletich, An Empirical Study of Discovery and Disclosure Practice Under the 1993 Federal Rule Amendments, 39 B.C. L. REV. 525, 527, 532 (1998);
274. see also JAMES S. KAKALIK, TERENCE DUNWORTH, LAURAL A. HILL, DANIEL MCCAFFREY, MARIAN OSHIRO, NICHOLAS M. PACE & MARY E. VAIANA, AN EVALUATION OF JUDICIAL CASE MANAGEMENT UNDER THE CIVIL JUSTICE REFORM ACT (1996).
275. See, e.g., FED. R. CIV. P. 26(b)(3) (stating that documents and tangible things prepared in anticipation of litigation are discoverable only on showing of substantial need and practical inability to obtain materials by other means; even when discovery of these materials is allowed, mental impressions, conclusions, opinions, and legal theories are still protected); Hickman v. Taylor, 329 U.S. 495, 511-13 (1947) (explicitly protecting against disclosure of mental impressions, etc., even if not in connection with discovery of documents and tangible things; codified in part in Federal Rule of Civil Procedure 26(b)(3)).
276. Contrary to this conditional, the leading treatise on evidentiary tactics suggests that discovery can itself be a tool in creating trial surprise. Surprise, after all, is a matter of upsetting expectations. And formal discovery is the perfect setting in which to create expectations that can later be dashed at trial. EDWARD J. IMWINKELRIED & DAVID A. SCHLUETER, FEDERAL EVIDENCE TACTICS § 5.01 (2004).
277. This would be the case, for example, if they were inadmissible hearsay. See, e.g., FED. R. EVID. 801-807 (defining hearsay and exceptions). This, of course, assumes that the distinction between substantive and impeachment use is clear and operable to the factfinder.
278. Limiting instructions may be somewhat helpful in this regard. See, e.g., FED. R. EVID. 105. Furthermore, the distinction may have real effect in determining whether there is sufficient substantive evidence to send the case to the jury.
279. Cf. Park, supra note 42, at 165.
280. See, e.g., FED. R. EVID. 801(d)(1) ("Prior statement by witness").
281. See, e.g., FED. R. EVID. 801(d)(2) ("Admission by party-opponent").
282. FED. R. CIV. P. 56(e) (stating that deposition transcripts may supplement supporting or opposing affidavits). But note that in ruling on summary judgment, the court will consider only such deposition testimony as would be admissible at trial were it there recited. Visser v. Packer Eng'g Assocs., Inc., 924 F.2d 655, 659 (7th Cir. 1991) (holding that proffered affidavits are not to be considered in ruling on summary judgment because the statements therein do not comport with the personal knowledge requirements for lay witnesses under Federal Rule of Evidence 602).
283. See, e.g., Symposium, The Vanishing Trial, 1 J. EMPIRICAL LEG. STUD. 459 (2004).
284. One might counter-counterrespond here that required initial disclosures, see FED. R. CIV. P. 26(a),
285. and requests to produce documents and things, see FED. R. CIV. P. 34, 45, may give the deponent (via her proponent) important clues about the content of her deposition. But, in fact, this is not so clear. First, such devices also provide the other side with fodder for surprising the witness. Thus, the deponent William H. Gates was, in a sense, surprised by e-mails that Microsoft's own lawyers had turned over to the Justice Department. Second, with respect to required initial disclosures, the federal rules treat information used solely for impeachment differently. Federal Rule of Civil Procedure 26(a)(1)(A) exempts from required "initial disclosures" the contact information of individuals likely to have discoverable information if that information is to be used solely for impeachment. Federal Rule of Civil Procedure 26(a)(1)(B) treats initial disclosures of documents and tangible things similarly. And Federal Rule of Civil Procedure 26(a)(3) extends the same treatment to "pretrial disclosures" required to be made a month before trial. (That said, much information useful for impeachment might have a substantive use as well, and is thereby not protected from required disclosure by these provisions.) Third, the judge often has great discretion under rules like Federal Rule of Civil Procedure 16 regarding how to schedule discovery. And she will often take her cues from the parties. This affords some leeway in structuring discovery so as to maximize deponent surprise when that is helpful in separating truthful from untruthful testimony.
286. Miranda v. Arizona, 384 U.S. 436 (1966) (requiring procedural safeguards during in-custody interrogation to render effective suspect's privilege against self-incrimination, establishing right to counsel prior to questioning and during interrogation, and allowing for waiver of these rights), qualified by, e.g., Illinois v. Perkins, 496 U.S. 292 (1990) (finding Miranda not applicable where suspect makes voluntary statement to someone that he does not realize is a law enforcement officer), and New York v. Quarles, 467 U.S. 649 (1984) (discussing "public safety" exception).
287. See, e.g., FED. R. EVID. 801(d)(2) ("Admission by party-opponent").
288. See, e.g., FED. R. EVID. 613 (implicitly allowing impeachment by prior inconsistent statement);
289. FED. R. EVID. 801(c) (limiting hearsay prohibition to statements "offered . . . to prove the truth of the matter asserted"); Harris v. New York, 401 U.S. 222 (1971) (holding exclusionary rule not applicable to impeachment use of custodial statement, even if statement goes to historical merits of the case and is not "collateral"). With regard to the impeachment use of silence, see Jenkins v. Andersen, 447 U.S. 231, 240-41 (1980) ("[U]se of prearrest silence to impeach a defendant's credibility does not violate the Constitution.") (emphasis added). But see Doyle v. Ohio, 426 U.S. 610 (1976) (holding that post-Miranda warning silence may not be used to impeach the accused).
290. For example, although post-Miranda warning silence may not be used to impeach the accused, Doyle, 426 U.S. 610, this protection is inapplicable to nonparty witnesses.
291. Brady v. Maryland, 373 U.S. 83, 87 (1963); see also Seth F. Kreimer & David Rudovsky, Double Helix, Double Bind: Factual Innocence and Postconviction DNA Testing, 151 U. PENN. L. REV. 547, 577-87 (2002) (discussing Brady and its progeny in arguing for a right to postconviction DNA evidence).
292. See, e.g., FED. R. CRIM. P. 12.1, 16, 26.2 (provisions touching on discovery).
293. This topic is further discussed infra at Part IV.B.2.
294. See, e.g., FED. R. CIV. P. 31.
295. ROBERT N. BATESON, INTRODUCTION TO CONTROL SYSTEM TECHNOLOGY ch. 2 (7th ed. 2002).
296. See, e.g., FED. R. CIV. P. 26-37.
297. See, e.g., FED. R. CRIM. P. 16.
298. See, e.g., FED. R. CIV. P. 34 (concerning requests from parties in civil cases);
299. FED. R. CIV. P. 45(a)(1)(C) (concerning requests from any person in a civil case).
300. See, e.g., FED. R. CIV. P. 16(c)(6).
301. See, e.g., FED. R. CIV. P. 16(c)(3) (stating that obtaining admissions of fact is one objective of the pretrial conference);
302. FED. R. CIV. P. 36 (concerning requests for admissions).
303. See, e.g., FED. R. CIV. P. 30.
304. See supra note 227.
305. Under the current federal rules for civil cases, this would require stipulation by the parties or special authorization by the court. FED. R. CIV. P. 30(a)(2)(B), 33(a).
306. Naturally, the desire to exploit cognitive limitations must be balanced against the desire to limit the expense of litigation, inclusive of the desire to induce settlement.
307. For more on this comparison, see infra Part IV.B.4.
308. The questioner may indeed repeat earlier questions: there is no "asked and answered" objection on deposition. FED. R. CIV. P. 26(b).
309. Holding, supra note 8, at 152 ("It appears that the visual and auditory tasks showing declines in sensitivity are those which present a high event rate, with stimuli occurring every 2 or 3 seconds, and which demand an ability to make rapid perceptual comparisons involving memory."); id. (reviewing "Cambridge Cockpit" studies and noting that "[a]ttention began to be reserved for items of central importance, like the course heading and speed indicators, while peripheral items like the fuel gauge were neglected"); id. at 159-60 (reviewing COPE tests, noting that "[w]e can be virtually certain that, other things being equal, fatigued subjects will choose to exert less effort" and that this implies "a tendency toward carelessness or 'cutting corners'").
310. FED. R. CIV. P. 30(d)(2), for example, was amended in 2000 to limit a deposition upon oral questions to one seven-hour day, unless the court otherwise orders or the parties otherwise stipulate.
311. See generally CHARLES ALAN WRIGHT, ARTHUR R. MILLER & RICHARD L. MARCUS, FEDERAL PRACTICE AND PROCEDURE § 2104.1 (Supp. 2004) (describing deposition time limits in more detail).
312. Another important aspect of the performance of testimony - one with less connection to either the positive role of cognitive limits or the concept of "liveness"-is the fact that witnesses are generally forced to answer. In ordinary social interaction, those who face questions with damaging answers can often avoid the dilemma of either sustaining the damage or floating a lie by pretending to misunderstand the question or feigning a good reason to avoid it. In all this, they may perhaps count on the questioner's feeling constrained from following up by norms of social interaction. VRIJ, supra note 82, at 222-23. Such tactics are largely infeasible at trial or on deposition, where the social norm is adversarial, where it is not up to the witness whether she will answer the question, where the questioner almost always has both the motivation and the opportunity to follow up, and where, generally, the subpoena and contempt power of the court imply that a witness who simply refuses to take the test of testimony may find herself in jail or subject to a substantial fine. See, e.g., 18 U.S.C. § 401 (2000 & Supp. II 2002) (criminal contempt); FED. R. CIV. P. 45 (subpoena in civil cases);
313. FED. R. CRIM. P. 17 (subpoena in criminal cases).
314. See sources cited supra note 10.
315. Conventional wisdom and game theoretic analysis tend to emphasize a "first-mover advantage": one that derives from the ability to commit to an action before one's opponent makes her choice. For a lucid discussion of this issue, see Kyle Bagwell & Asher Wolinsky, Game Theory and Industrial Organization, in 3 HANDBOOK OF GAME THEORY WITH ECONOMIC APPLICATIONS § 2 (Robert J. Aumann & Sergiu Hart eds., 2002).
316. To be precise, I refer here to rational actors who are cognizant of the full state space. If the state space is not fully known, open-loop and closed-loop decisionmaking are not equivalent, even for a rational actor: the actor could not, in fact, plan ex ante for all contingencies when he cannot conceive of all contingencies. For an analysis of rational decisionmaking when the state space is not fully known, see Itzhak Gilboa & David Schmeidler, Case-Based Decision Theory, 110 Q.J. ECON. 605 (1995).
317. Cf. JOHN VON NEUMANN & OSKAR MORGENSTERN, THEORY OF GAMES AND ECONOMIC BEHAVIOR 79-84 (3rd ed. 1953) (defining "strategy" in extensive-form games).
318. The comparison here drawn should be contrasted with the separate issue of whether using work product to refresh a witness's memory waives the protection. See, e.g., Alfreda Robinson, Duet or Duel: Federal Rule of Evidence 612 and the Work Product Doctrine Codified in Civil Procedure Rule 26(b)(3), 69 U. CIN. L. REV. 197 (2000).
319. Federal Rule of Evidence 612 applies only to witnesses. This discussion assumes there is no waiver and that the notes are not used by the opposing side's own witnesses.
320. FED. R. CIV. P. 26(b)(3); Hickman v. Taylor, 329 U.S. 495, 511-13 (1947).
321. FED. R. CIV. P. 26(b)(3) (stating that even when ordering discovery of materials prepared in anticipation of litigation, "[the] court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney"); Hickman, 329 U.S. at 511-13.
322. Michael E. Tigar, Habeas Corpus and the Penalty of Death, 90 COLUM. L. REV. 255, 256 (1990) (book review).
323. See Summation Legal Techs., Inc., Summation Legal Technologies, Inc.: America's #1 Litigation Support Software, at http://www.summation.com (last visited Nov. 10, 2004).
324. See inData Corp., Welcome to inData Corporation, at http://www.trialdirector.com (last visited Nov. 10, 2004).
325. Summation Legal Techs., Inc., Globally Searching Your Case: Summation Core Simplicity, at http://info.summation.com/demo/search_case.htm (last visited Nov. 10, 2004).
326. Globally Searching Your Case: Summation Core Simplicity, http://info.summation.com/demo/search_case.htm. Id. (describing "Case Organizer").
327. The aforementioned Julian case would seem to imply that work product protection would not bar disclosure. Much of the content of the binders in Julian was available to the other side. It was the particular choice and organization of these materials in the binders that endowed the binders with work product protection. Nevertheless, the court ordered disclosure under Federal Rule of Evidence 612. James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 144 (D. Del. 1982). It would be difficult to argue that a software program that organizes and presents electronic data should be treated differently.
328. To be sure, there may be some question as to whether computer data is a "writing" for purposes of Federal Rule of Evidence 612. But even if it is deemed not to be, similar disclosure procedures would probably apply. Note in this regard that Rule 612 applies only to "writings" also with respect to materials used while testifying. And yet it is well established that procedures similar to those laid out in Rule 612 apply to any material used to refresh recollection on the stand. See, e.g., Baker v. State, 371 A.2d 699, 703 (Md. Ct. Spec. App. 1977) ("The opposing party, of course, has the right to inspect the memory aid, be it a writing or otherwise, and even to show it to the jury.") (emphasis added).
329. Steve Hamm, A Database to Die For, Bus. WK., Mar. 15, 1999, at 40 (emphasis added).
330. THOMAS A. MAUET, TRIAL TECHNIQUES 13-29 (5th ed. 2000).
331. Id. at 23.
332. Id. at 24.
333. Id.; see also id. at 25 (suggesting the use of "memorable words and phrases that encapsulate the essence of your case" and "tags you put on people, events, and things . . . [to] convey images"); id. at 26 (advising readers to emphasize the "human element," e.g., motivations); id. at 26 (advising the use of "gripping visual aids"); id. at 26-27 (advising tapping into the instinct of storytelling to "organize, humanize, and dramatize"); id. at 28 (stating that "an advocate grabs and holds the jurors' attention").
334. Id. at 406-07.
335. Id. at 409-10.
336. Id. at 407.
337. See generally Christopher N. May, "What Do We Do Now?": Helping Juries Apply the Instructions, 28 LOY. L.A. L. REV. 869 (1995) (reviewing commentary and law on the judge's ability to summarize evidence for the jury).
338. Quercia v. United States, 289 U.S. 466, 469 (1933) ("In charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important; and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination."); United States v. Filani, 74 F.3d 378, 385 (2d Cir. 1996) ("[The] trial court may actively participate and give its own impressions of the evidence or question witnesses, as an aid to the jury, so long as it does not step across the line and become an advocate for one side.").
339. WEINSTEIN & BERGER, supra note 104, § 107.03[2].
340. The chief case offered in support of this proposition in Weinstein's Federal Evidence, Geders v. United States, 425 U.S. 80 (1976), seems of questionable relevance. Weinstein's Federal Evidence also cites Quercia, 289 U.S. 466. But Quercia talks about these powers of the judge "[i]n charging the jury." And when the court in that case says that it is "within [the judge's] province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence," it is unclear whether "whenever" means "whenever during the trial of a particular case" or "in whichever case, at the end thereof." See Quercia, 289 U.S. at 469 (emphasis added).
341. WEINSTEIN & BERGER, supra note 104, § 107.13[1].
342. United States v. Maclean, 578 F.2d 64, 64-65 (3d Cir. 1978) ("[The] unanimous view of federal appellate courts that have decided the issue . . . [w]hether or not to allow note-taking by jurors is [that it is] a matter committed to the sound discretion of trial judges . . . . At least one state has a rule prohibiting note-taking. Most states, however, leave the question to the discretion of the trial judge.").
343. In the Eastern District of Pennsylvania, for example, of the thirteen judges who indicate either way in their "Judge's Procedures" whether they permit jury note-taking, nine say they do, three decide on a case-by-case basis, and one says she generally does not. (This tally does not include senior judges.) See links compiled at U.S. District Court, Eastern District of Pennsylvania, Clerk's Office, Judges' Procedures, at http://www.paed.uscourts.gov/us08001.asp (last visited Nov. 11, 2004).
344. Judge Stewart Dalzell - Policies and Procedures (Part 1), at http://www.paed.uscourts.gov/documents/procedures/dalpoll.pdf (last visited Nov. 11, 2004) ("[J]urors have availed themselves of that opportunity [to take notes] in every case.").
345. Maclean, 578 F.2d at 66.
346. See, e.g., FED. R. EVID. 803(6).
347. See, e.g., FED. R. EVID. 803(8).
348. See, e.g., FED. R. EVID. 803(9).
349. See, e.g., FED. R. EVID. 803(17).
350. See, e.g., FED. R. EVID. 803(18).
351. See, e.g., FED. R. EVID. 801(d)(2).
352. See, e.g., FED. R. EVID. 801(d)(1).
353. See, e.g., Chief Judge James T. Giles, Policies and Procedures, at http://www.paed.uscourts.gov/documents/procedures/gilpol.pdf (last visited Nov. 18, 2004) ("[In civil cases, i]f the jurors are specific in their request to have testimony read back, Judge Giles will arrange to have it read. He will allow the replaying of tape recordings and videotapes if requested by the jury.").
354. See, e.g., United States v. Silverstein, 732 F.2d 1338, 1347 (7th Cir. 1984) ("The indictment . . . [had been] given to the jury with the usual instruction that it was not evidence . . . .").
355. Before being apprehended, Gugasian was known as the "Friday Night Bank Robber" for his proclivity to strike at closing time on Friday. Joseph A. Slobodzian, The Mask Comes Off, PHILA. INQUIRER, Jan. 4, 2004, at M1.
356. Id. ("[Gugasian is] without doubt the most prolific, successful bank robber in U.S. history: [he committed] scores of heists, all on Fridays, going back three decades, netting him about $2 million."); see Bob Laylo, Thief Who Rivals Dillinger for Most Bank Heists Is Jailed, ALLENTOWN MORNING CALL (Allentown, Pa.), Dec. 10, 2003, at A1 ('"Gugasian may well be the most prolific bank robber this nation has ever known,' said Assistant U.S. Attorney Linwood C. Wright Jr."). Of course, there is always the possibility that another bank robber, yet to be apprehended, is more successful. Furthermore, the bare number of unsolved robberies says nothing about the average take.
357. Slobodzian, supra note 279.
358. Id.
359. Laylo, supra note 280 (quoting retired Pennsylvania state trooper John Mauro, who stated that Gugasian was "one of the most clever criminals I investigated" and that he was "one of your true professionals").
360. Id. (attributing this assessment to FBI agent Raymond J. Carr).
361. Id. (map reading); Slobodzian, supra note 279 (weapons, survival, self-defense).
362. Laylo, supra note 280 (stating that Gugasian frequently jogged in street clothes wearing a backpack); Slobodzian, supra note 279 ("Health-food fanatic, devotee of yoga and meditation, third-degree black belt in karate, Gugasian is a lean, muscular 5-foot-9 in superb condition.").
363. Slobodzian, supra note 279.
364. Id.
365. Id.
366. Laylo, supra note 280.
367. Id.; Slobodzian, supra note 279.
368. Martha Stewart and Peter Bacanovic were convicted on March 5, 2004. Sentencing was scheduled for June 17, 2004. Hays & Eaton, supra note 28; see also Superseding Indictment, United States v. Stewart, 323 F. Supp. 2d 606 (S.D.N.Y. 2004) (S1 03 Cr. 717 (MGC)), available at http://news.findlaw.com/hdocs/docs/mstewart/usmspb10504sind.pdf (charging, inter alia, violations of 18 U.S.C. § 1621 (2000) (false declarations before grand jury or court, including ancillary proceedings) and 18 U.S.C. § 1505 (2000) (obstruction of proceedings before departments, agencies, and committees)). Although Stewart has started serving her sentence, her appeal is still pending.
369. Constance Hays, Martha Stewart Wants to Start Sentence Early, N.Y. TIMES, Sept. 16, 2004, at A1;
370. Barry Meier, Martha Stewart Assigned to Prison in West Virginia, N.Y. TIMES, Sept. 30, 2004, at C1. Notwithstanding Stewart's appeal, I will assume for purposes of argument that the government's account of events is accurate. There is also a separate civil action against Stewart and Bacanovic. Complaint, SEC v. Stewart, No. 03 CV 4070 (NRB) (S.D.N.Y. filed June 4, 2003) (suing for civil fines and injunctive relief under § 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q(a) (2000); § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (2000); and Rule 10b-5, 17 C.F.R. § 240.10b-5 (2002), thereunder), available at http://news.findlaw.com/hdocs/docs/mstewart/secmspb60403cmp.html.
371. His daughter also did the same. Complaint, SEC v. Stewart, at 1.
372. Id. at 1, 2.
373. Superseding Indictment, United States v. Stewart, at 7 ("On December 27, 2001, at approximately 10:04 a.m. (EST), within minutes after being informed of the sale and attempted sale of the Waksal Shares, PETER BACANOVIC called MARTHA STEWART. After being told that STEWART was in transit and unavailable, BACANOVIC left a message, memorialized by STEWART's assistant, that 'Peter Bacanovic thinks ImClone is going to start trading downward.'").
374. In addition, the ImClone CEO's phone log for later that same day reads, "Martha Stewart something is going on with ImClone and she wants to know what . . . ." Samuel Waksal's December 27, 2001 Message Log, http://news.findlaw.com/hdocs/docs/mstewart/swms122701msglog.html.
375. Superseding Indictment, United States v. Stewart, at 7.
376. Id. at 16.
377. Id. ("[One week before the phone message, Bacanovic] printed a 'worksheet' that listed each of the stocks held by Martha Stewart at Merrill Lynch, including ImClone . . . . Bacanovic made handwritten notes in blue ballpoint ink on the Worksheet concerning transactions and planned transactions in Stewart's account . . . . Bacanovic made no notes on the Worksheet regarding any purported decision to sell Stewart's ImClone shares at $60 per share."); see also infra note 304 (discussing the allegation that Bacanovic later penned in "@60").
378. This is again related to the problem of coordination. See supra notes 31, 175, and 183.
379. Slobodzian, supra note 279 (noting this point, and also showing a photograph of readily intelligible notes listing bank names and their hours).
380. Under the "best evidence rule," as codified, for example, in the Federal Rules of Evidence, "[t]o prove the content of a writing, recording, or photograph, the original . . . is required . . . ." FED. R. EVID. 1002.
381. However, the general rule contains an exception for, inter alia, a "duplicate," which is "admissible to the same extent as an original unless a genuine question is raised as to the authenticity of the original or in the circumstances it would be unfair to admit the duplicate in lieu of the original." FED. R. EVID. 1003. "Duplicate" is defined in Federal Rule of Evidence 1001 to include the products of the forms of reproduction mentioned in the text.
382. Superseding Indictment, United States v. Stewart, at 11-12 ("On or about January 31, 2002, after learning that the FBI and the U.S. Attorney's Office had requested an interview with her, and immediately following a lengthy conversation with her attorney, MARTHA STEWART accessed the phone message log maintained on computer by her assistant and reviewed the phone message that PETER BACANOVIC had left for her on December 27, 2001. In furtherance of the conspiracy, and knowing that BACANOVIC's message for STEWART was based on information regarding the sale and attempted sale of the Waksal Shares that BACANOVIC subsequently caused to be conveyed to her, STEWART deleted the substance of BACANOVIC's phone message, changing the message from 'Peter Bacanovic thinks ImClone is going to start trading downward,' to 'Peter Bacanovic re imclone.'").
383. Id. at 17 ("BACANOVIC added the notation '@ 60' near the entry for ImClone."). To be sure, Bacanovic was acquitted of the charge of making and using false documents. Moreover, the government's expert on ink analysis has been indicted for perjury in connection with his testimony regarding the worksheet. However, the defense's ink expert agreed that "@ 60" was in a different ink from the rest of the worksheet. (There remains some issue, however, as to whether the rest of the worksheet was in the same ink.) Letter from David N. Kelly, United States Attorney, Southern District of New York, to the Honorable Miriam Goldman Cederbaum, Federal District Judge, Southern District of New York 2 (May 21, 2004), available at http://news.findlaw.com/cnn/docs/mstewart/uslstewart521041tr.pdf.
384. Superseding Indictment, United States v. Stewart, at 12 ("After altering the message, STEWART directed her assistant to return the message to its original wording.").
385. Id. at 17 ("BACANOVIC altered the Worksheet, using ink that was blue ballpoint, but was scientifically distinguishable from the ink used elsewhere on the Worksheet.").
386. Many corporations have "document retention policies" to similar effect. See Sanchirico, supra note 31, at 1273.
387. Id. at 1271.
388. Indeed, a similar story applies to evidentiary emissions in the form of eyewitness memory.