Constitutional evidence law

Vanderbilt Law Review

Volumn 61, Issue 1, 2008, Pages 65-123

  Stein, Alex ^a  

^a YESHIVA UNIVERSITY   (United States)

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EID: 41349121419     PISSN: 00422533     EISSN: None     Source Type: Journal    
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References (510)

1. See infra Part I.C.
2. See infra Part I.C.
3. The confession, of course, must not be a product of coercive police interrogation. If it is, the court would have to suppress it under the prophylactic exclusionary rule. See infra note 11.
4. An appellate court can only overturn such a verdict if no rational juror could deliver it. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) ("[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.").
5. See infra text accompanying notes 17-30.
6. The focal point of the Sixth Amendment's participatory requirements is the defendant's opportunity "to fight back" by adducing evidence and by cross-examining adverse witnesses. See Crawford v. Washington, 541 U.S. 36, 61 (2004) ("[The Sixth Amendment] commands not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.").
7. The confrontation doctrine, as interpreted until recently, made only one reference to evidential adequacy by requiring "indicia of reliability" for any statement made against the defendant by a person who does not testify in court and classifies as "unavailable." Ohio v. Roberts, 448 U.S. 56, 65-66 (1980),
8. overruled in part by Crawford v. Washington, 541 U.S. 36 (2004) (holding that Ohio v. Roberts only applies to non-testimonial hearsay statements). To limit the admissibility of such statements, the Supreme Court held that "adequate indicia of reliability" must be present in the statement itself. Corroborative evidence - no matter how trustworthy it is - will not do.
9. Idaho v. Wright, 497 U.S. 805, 814-23 (1990). The Court made it clear that what matters here is not the statement's probability of being true, but rather the defendant's opportunity to uncover its flaws and falsities by cross-examining the person who made it. Evidence corroborating the statement is no substitute for such cross-examination.
10. Id. at 822-23;
11. see also AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES 125-31 (1997) (observing that the confrontation doctrine promotes truth-finding via cross-examination, rather than through sorting hearsay statements by credibility). According to the most recent understanding of the doctrine, the confrontation requirement applies to inculpatory testimonial statements alone, but its application is rigid. There are no "indicia of reliability" that could substitute the defendant's right to cross-examine the maker of a testimonial hearsay statement relied upon by the prosecution. The court can admit such a statement over the defendant's objection only when the defendant is given an opportunity to cross-examine its maker at or before trial, or when he forfeits this right by committing a wrongdoing.
12. See infra notes 23 and 30.
13. The "one witness" rule, generally adopted across the United States, authorizes factfinders to determine facts on a testimony of a single witness. 7 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 2034(2), at 343 (James H. Chadbourn rev. ed. 1978) (stating as a general principle that a jury may decide a case on the uncorroborated testimony of a single witness);
14. see United States v. Ingram, 600 F.2d 260, 263 (10th Cir. 1979) (stating courts' general adherence to the "one witness" rule);
15. United States v. Levi, 405 F.2d 380, 383 (4th Cir. 1968) (same).
16. See ALEX STEIN, FOUNDATIONS OF EVIDENCE LAW 34-36 (2005) (identifying causes and pervasiveness of the risk of error in adjudicative factfinding).
17. The term "adjudicators" refers to judges and juries in their respective roles as trial managers and factfinders. "Factfinders" also refers to both judges and juries, but only in their factfinding capacity.
18. A prosecutor, for example, may use the defendant's criminal record to impeach his true testimony about duress. Alternatively, she may frame duress as an "affirmative defense," which the defendant must prove by a preponderance of the evidence, even though in reality the defense negates "malice" - an element of the crime that the prosecution must prove beyond a reasonable doubt. Cf. Davis v. United States, 160 U.S. 469, 474 (1895) (holding that when defendant's insanity negates "malice aforethought," the prosecution has the burden of disproving it beyond a reasonable doubt);
19. cf. also Dixon v. United States, 126 S. Ct. 2437, 2441 n.4 (2006) (observing that when duress negates malice or another form of mens rea, the prosecution carries the burden of disproving it beyond a reasonable doubt).
20. Trial rules are provisions that regulate processes of proof and argumentation in trials. Rules that control pre-trial matters such as arrest, bail, interrogation, and a grand jury review of criminal charges are not trial rules. The Sixth Amendment's guarantee of a speedy and public criminal trial before an impartial jury and the Seventh Amendment right to a jury trial in civil actions at common law also do not count as trial rules. Rather, these constitutional provisions are about the trial's format. They set no requirements with respect to proof and argumentation. Furthermore, trial rules do not include the Fourth Amendment's protections against searches and seizures or the exclusionary rule that remedies violations of these protections. See Mapp v. Ohio, 367 U.S. 643, 655-60 (1961) (articulating the scope and purpose of the Fourth Amendment's exclusionary rule as applicable to the states). The Supreme Court's constitutional jurisprudence explicitly separates these prophylactic protections from defendants' trial rights.
21. See Withrow v. Williams, 507 U.S. 680, 688 (1993) (explaining that the Fourth Amendment's exclusionary rule is not a trial right);
22. Kimmelman v. Morrison, 477 U.S. 365, 374 (1986) (same).
23. The constitutional rules that suppress coerced confessions, Malloy v. Hogan, 378 U.S. 1 (1964);
24. Bram v. United States, 168 U.S. 532, 542-45 (1897),
25. and confessions elicited during custodial interrogations in violation of Miranda v. Arizona, 384 U.S. 436 (1966), are different. Based on the Fifth Amendment's privilege against self-incrimination and, in the case of coerced confessions, also on the general due process requirement,
26. Withrow, 507 U.S. at 693;
27. Colorado v. Connelly, 479 U.S. 157, 163 (1986), these rules serve a dual purpose. Primarily, they deter police misconduct in interrogations.
28. See Rogers v. Richmond, 365 U.S. 534, 540-41 (1961) (explaining that suppression of coerced confessions is driven primarily by the need to prevent improper inquisitorial methods of interrogation, as opposed to a concern that "such confessions are unlikely to be true"). But they also guard against the use of unreliable confessions at trial and for that reason can be categorized as trial rules.
29. See Withrow, 507 U.S. at 691-92 ("Miranda safeguards a 'fundamental trial right.' "). This categorization would be untidy, though. The primary focus of the Fifth Amendment's exclusionary rule and its "due process" addition for coerced confessions is not confession evidence as such, but rather confessions obtained by police misconduct. This rule regulates a highly limited segment of the informational risk. I therefore do not include it in my account of constitutional trial rules. Adding it to the list would not change anything in my analysis anyway.
30. See, e.g., WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 1.4, at 28 (4th ed. 2004) (explaining that in an adversary system each party "is expected to present the facts ... in a light most favorable to its side, and ... challenge the ... presentations made by the other side").
31. Id.;
32. see also JACK H. FRIEDENTHAL ET AL., CIVIL PROCEDURE § 1.1, at 2-3 (4th ed. 2005) (indicating that in civil trials litigants "control and shape the litigation," while the court maintains a "passive role").
33. See Steven Shavell, The Fundamental Divergence Between the Private and the Social Motive to Use the Legal System, 26 J. LEGAL STUD. 575 (1997).
34. See Grogan v. Garner, 498 U.S. 279, 286 (1991) (applying the "preponderance-of-the-evidence standard" because it "results in a roughly equal allocation of the risk of error between litigants");
35. see also STEIN, supro note 8, at 219-44 (describing the equality principle for allocating risk of error and its effect on civil litigation).
36. 2 MCCORMICK ON EVIDENCE § 341, at 491 (Kenneth S. Broun ed., 6th ed. 2006);
37. see also STEIN, supra note 8, at 172-83 (offering an account of the criminal burden of proof as securing the legal system's alignment with the "equal best" standard).
38. See, e.g., In re Winship, 397 U.S. 358, 364, 369-72 (1970) (holding in a foundational ruling that proof beyond a reasonable doubt is constitutionally required in all criminal trials);
39. Speiser v. Randall, 357 U.S. 513, 525-26 (1958) (stating that avoidance of erroneous convictions has "transcending value").
40. U.S. CONST, amend. VI;
41. see also 2 MCCORMICK, supra note 16, § 252, at 155-65 (describing confrontation rights).
42. Crawford v. Washington, 541 U.S. 36, 61 (2004);
43. see also California v. Green, 399 U.S. 149, 164 (1970) (holding that admission of a witness's prior statement inconsistent with his trial testimony does not violate the Confrontation Clause when the defendant can cross-examine the witness).
44. The differentiation between "testimonial" and "event" statements originates from the disparity of power between the defendant and the government. Testimonial statements are controllable by government agents who may put pressure on a witness to induce him to testify in accordance with their wishes. Event statements have no such potential for generating injustice and therefore do not require heightened constitutional scrutiny. STEIN, supra note 8, at 189-96.
45. For foundational analysis, see Richard D. Friedman, Confrontation: The Search for Basic Principles, 86 GEO. L.J. 1011, 1014-22 (1998).
46. Crawford, 541 U.S. at 68.
47. Id.;
48. see also Davis v. Washington, 126 S. Ct. 2266, 2273 (2006) (reaffirming that Crawford does not apply to statements made outside formal proceedings).
49. See Davis, 126 S. Ct. at 2273-74 (holding that the Confrontation Clause protects defendants against statements made in interrogations aiming to collect evidence for criminal prosecutions, but not against statements to an agency attending an ongoing emergency). The defendant also may forfeit his right to confrontation by committing a wrongdoing that prevents the maker of an inculpatory testimonial statement from testifying as a witness at his trial.
50. Id. at 2280 (stating that "one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation," and explaining that "forfeiture by wrongdoing ... extinguishes confrontation claims on essentially equitable grounds"
51. (quoting Crawford, 541 U.S. at 62,
52. and citing Reynolds v. United States, 98 U.S. 145, 158-59 (1879)).
53. See STEIN, supra note 8, at 190 (defining "event statements" as "any statement that the declarant makes ... during any event outside of legal proceedings").
54. See FED. R. EVID. 801(c) (defining as presumptively inadmissible hearsay any out-of-court statement aiming to "prove the truth of the matter asserted");
55. MCCORMICK, supra note 16, § 246, at 128-31 (explaining the definition of hearsay).
56. See FED. R. EVID. 802 (prescribing that a hearsay statement is admissible only under a recognized exception to the rule against hearsay);
57. MCCORMICK, supra note 16, § 245, at 127-28 (explaining this principle).
58. See Idaho v. Wright, 497 U.S. 805, 817 (1990) ("Admission under a firmly rooted hearsay exception satisfies the constitutional requirement of reliability ....");
59. Bourjaily v. United States, 483 U.S. 171, 183 (1987) (same);
60. MCCORMICK, supra note 16, § 252, at 160 (describing the case law that led the Court to conclude that statements admissible under "firmly rooted" hearsay exceptions have sufficient "indicia of reliability").
61. Wright, 497 U.S. at 814-15;
62. Ohio v. Roberts, 448 U.S. 56, 66 (1980),
63. overruled in part by Crawford v. Washington, 541 U.S. 36 (2004).
64. See Roberts, 448 U.S. at 74 (defining "unavailable" for purposes of the confrontation requirement);
65. Barber v. Page, 390 U.S. 719, 724-25 (1968) (holding that to establish a declarant's "unavailability," prosecution must show substantial effort to secure his attendance as a witness).
66. In Davis, 126 S. Ct. at 2274, Justice Scalia, writing for the Court, explained that testimonial hearsay defines not only the core of the Confrontation Clause protection, but also the protection's parameters.
67. In a more recent decision, Whorton v. Bockting, 127 S. Ct. 1173, 1183 (2007), Justice Alito, writing for the Court, opined: [W]hatever improvement in reliability Crawford produced must be considered together with Crawforïs elimination of Confrontation Clause protection against the admission of unreliable out-of-court nontestimonial statements.... Under Roberts, an out-of-court nontestimonial statement not subject to prior cross-examination could not be admitted without a judicial determination regarding reliability. Under Crawford, on the other hand, the Confrontation Clause has no application to such statements and therefore permits their admission even if they lack indicia of reliability.
68. For analysis of these pronouncements and their implications, see Laird C. Kirkpatrick, Nontestimonial Hearsay After Crawford, Davis and Bockting, 19 REGENT U. L. REV. 367 (2007).
69. See Washington v. Texas, 388 U.S. 14, 22-23 (1967) (holding that a statute disqualifying accomplice testimony as evidence for defendant violates the Compulsory Process Clause).
70. The defendant's right to call witnesses and produce evidence is also guaranteed under the Due Process Clause. See Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (noting that the Constitution guarantees criminal defendants "a meaningful opportunity to present a complete defense"
71. (quoting California v. Trombetta, 467 U.S. 479, 485 (1984),
72. and citing Crane v. Kentucky, 476 U.S. 683, 690 (1986))).
73. See LAFAVE ET AL., supra note 12, § 24.3, at 1127-28 (describing uses of a court's subpoena power to compel the production of evidence or witness testimony).
74. Id.
75. See id. at 1128-30 (outlining the constitutional rights of defendants to assistance in obtaining evidence).
76. 373 U.S. 83, 87 (1963).
77. Id.
78. Id. at 88-89;
79. see also Strickler v. Greene, 527 U.S. 263, 281-82 (1999) (summarizing essential components of a Brady violation).
80. See Illinois v. Fisher, 540 U.S. 544, 547 (2004) (per curiam) (finding that the defendant could not be acquitted automatically because the destroyed evidence was only "potentially useful," as opposed to "materially exculpatory").
81. See Arizona v. Youngblood, 488 U.S. 51 (1988).
82. Wheat v. United States, 486 U.S. 153 (1988) (holding that the Sixth Amendment right to counsel encompasses the right to choose one's attorney);
83. see also United States v. Gonzalez-Lopez, 126 S. Ct. 2557, 2564-66 (2006) (holding that denial of defendant's right to choose an attorney warrants reversal of conviction).
84. Gideon v. Wainwright, 372 U.S. 335, 344 (1963).
85. See, e.g., Black v. United States, 385 U.S. 26, 28-29 (1966) (per curiam) (remanding the case for a new trial as a result of a finding that government agents monitored confidential communications between defendant and his attorney);
86. Williams v. Woodford, 306 F.3d 665, 683 (9th Cir. 2002) (holding that government interference in a defendant's confidential relationship with his attorney violates the Sixth Amendment);
87. United States v. Castor, 937 F.2d 293, 297 (7th Cir. 1991) (same);
88. Clutchette v. Rushen, 770 F.2d 1469, 1472 (9th Cir. 1985) (same);
89. United States v. Rosner, 485 F.2d 1213, 1224 (2d Cir. 1973) (holding that privacy in a defendant's communications with his attorney is "the essence of the Sixth Amendment right").
90. 1 MCCORMICK, supra note 16, § 89, at 401, § 96, at 434-40.
91. See Strickland v. Washington, 466 U.S. 668, 691-92 (1984) (explaining the rule that ineffective assistance of counsel voids a defendant's conviction).
92. Coleman v. Alabama, 399 U.S. 1, 6 (1970).
93. United States v. Wade, 388 U.S. 218, 236-37 (1967).
94. See Kirby v. Illinois, 406 U.S. 682, 689 (1972) (holding that the right to counsel attaches "at or after the initiation of adversary judicial criminal proceedings-whether by way of formal charge, preliminary hearing, indictment, information, or arraignment").
95. See Wade, 388 U.S. at 239-42 (discussing the rationale for reversal based on pretrial lineup evidence having been obtained without counsel present, but also noting exceptions).
96. See Brewer v. Williams, 430 U.S. 387, 398-406 (1977) (affirming application of the exclusionary rule as a remedy for violation of the right to counsel).
97. The rights to present evidence and confront witnesses under U.S. CONST, amend. VI are given to the accused, not to the prosecution.
98. See Holmes v. South Carolina, 547 U.S. 319, 324, 331 (2006) (holding that state rule blocking admission of exculpatory hearsay violates defendant's rights to due process, compulsory process, and confrontation).
99. Id. at 326 ("While the Constitution ... prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.").
100. See United States v. Scheffer, 523 U.S. 303, 305, 309 (1998) (upholding the constitutionality of a military rule blocking the admission of polygraph evidence, and justifying this decision in part by the questionable reliability of polygraphs).
101. Id. at 308.
102. Holmes, 547 U.S. at 326;
103. see also Rock v. Arkansas, 483 U.S. 44, 61 (1987) (pronouncing unconstitutional Arkansas's rule that excluded hypnotically refreshed testimony because "wholesale inadmissibility of a defendant's testimony is an arbitrary restriction on the right to testify in the absence of clear evidence by the State repudiating the validity of all posthypnosis recollections").
104. Doyle v. Ohio, 426 U.S. 610, 617-18 (1976) (interpreting the Fifth Amendment as prohibiting adverse inferences from and prosecutorial comments on defendant's silence at custodial interrogation);
105. Griffin v. California, 380 U.S. 609, 615 (1965) (interpreting the Fifth Amendment as prohibiting adverse inferences from and prosecutorial comments on defendant's silence at trial).
106. This privilege affords special protection to innocent defendants who find themselves unable to corroborate their self-exonerating accounts by objective evidence. Without it, guilty criminals would be incentivized to pool with innocents by making false exculpatory statements (to the extent they believe that their lies are unlikely to be exposed). Aware of these criminals' incentives, factfinders would rationally discount the probative value of all uncorroborated exculpatory statements, to the detriment of the unfortunate innocents who cannot corroborate their true statements. The Fifth Amendment privilege minimizes this pooling effect and correspondingly reduces the rate of wrongful convictions. Under this regime, rational innocents still tell the truth, whereas criminals-fearful of being implicated by their lies-separate from the pool by exercising the right to silence. See Daniel Seidmann & Alex Stein, The Right to Silence Helps the Innocent: A Game-Theoretic Analysis of the Fifth Amendment Privilege, 114 HARV. L. REV. 430 (2000);
107. see also STEIN, supra note 8, at 164 n.82 (responding to critics of this anti-pooling rationalization).
108. See LAFAVE ET AL., supra note 12, § 20.3, at 938-40 (stating that prosecution generally is not entitled to the "work product" protection except for statements of opinion documenting mental impressions of its legal staff).
109. Jencks v. United States, 353 U.S. 657, 671-72 (1957).
110. See United States v. Reynolds, 345 U.S. 1, 12 (1953) ("[In criminal cases] the Government can invoke its evidentiary privileges only at the price of letting the defendant go free.");
111. United States v. Andolschek, 142 F.2d 503, 506 (2nd Cir. 1944) ("The government must choose; either it must leave the transactions in the obscurity from which a trial will draw them, or it must expose them fully."). But a private person's communication to his attorney stays privileged despite its exonerating potential for a criminal defendant even after the person's death.
112. See Swidler & Berlin v. United States, 524 U.S. 399, 410 (1998) ("It has been generally, if not universally, accepted, for well over a century, that the attorney-client privilege survives the death of the client in a case such as this.").
113. Before trial, however, the excessive investigative and prosecutorial powers make a person particularly exposed to governmental abuse.
114. U.S. CONST, amend. XIV, § 1.
115. See Tennessee v. Lane, 541 U.S. 509, 523, 532 (2004) (interpreting the Due Process Clause as requiring States, "within the limits of practicability," to "afford certain civil litigants a 'meaningful opportunity to be heard' by removing obstacles to their full participation in judicial proceedings"
116. (quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971)));
117. Connecticut v. Doehr, 501 U.S. 1, 18 (1991) (holding that due process may require an adjudicative hearing to justify deprivation of property rights). The rights enumerated in the text are included in the constitutional entitlements to hearing (under Doehr) and participation (under Boddie and Lane). These decisions make constitutional civil procedure more meaningful than it was two and a half decades ago.
118. Cf. John Leubsdorf, Constitutional Civil Procedure, 63 TEX. L. REV. 579, 582 (1984) (analyzing the then-existing constitutional jurisprudence and observing that it "does not influence civil procedure even when constitutional principles are plainly relevant").
119. See Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999) ("A plaintiff in a civil case has no constitutional right to counsel.");
120. see also Griffin v. Illinois, 351 U.S. 12, 23 (1956) (Frankfurter, J., concurring) ("[A] State need not equalize economic conditions.").
121. 424 U.S. 319 (1976). Devised originally for administrative hearings, the Mathews doctrine also applies in civil litigation.
122. See Doehr, 501 U.S. at 10-11 (applying the Mathews analysis to the burden created by a prejudgment remedy statute that "ordinarily applpes] to disputes between private parties rather than between an individual and the government").
123. Mathews, 424 U.S. at 335.
124. Id. at 344.
125. Id.
126. See, e.g., Coppedge v. United States, 369 U.S. 438, 446-47 (1962) (underscoring courts' "duty to assure to the greatest degree possible ... equal treatment for every litigant before the bar");
127. see also Jerry L. Mashaw, The Supreme Court's Due Process Calculus for Administrative Adjudication in Matthews v. Eldridge: Three Factors in Search of a Theory of Value, 44 U. CHI. L. REV. 28, 52 (1976) ("[I]nsofar as adjudicatory procedure is perceived to be adversarial and dispute resolving, the degree to which procedures facilitate equal opportunities for the adversaries to influence the decision may be the most important criterion by which fairness is evaluated.").
128. In re Winship, 397 U.S. 358, 364 (1970).
129. Id.
130. Victor v. Nebraska, 511 U.S. 1, 5 (1994).
131. See id. at 6 (stating that, when assessing the constitutionality of a judge's instructions regarding the reasonable doubt standard, the key question is "whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the ... standard").
132. E.g., Herrera v. Collins, 506 U.S. 390, 401 (1993) (stating that, in a habeas corpus petition, the appellate court must not reverse the conviction unless it finds that the evidence at petitioner's trial was not sufficient to convince any rational trier of fact of guilt beyond a reasonable doubt).
133. See STEIN, supra note 8, at 172-73 (describing a formula capturing the utility-based criminal proof standard and observing that the "conventional doctrine ... vigorously resists the explicit introduction of numbers into the ... formula").
134. See 2 MCCORMICK, supra note 16, § 341, at 490-91 ("[In applying the stringent 'beyond a reasonable doubt' standard,] courts may have increased the total number of mistaken decisions in criminal cases, but with the worthy goal of decreasing the number of one kind of mistake - conviction of the innocent.").
135. See Patterson v. New York, 432 U.S. 197, 208 (1977) (upholding the constitutionality of a statute requiring defendants to prove an affirmative defense by a preponderance of the evidence).
136. As in Patterson. Id.;
137. see also Dixon v. United States, 126 S. Ct. 2437, 2447-48 (2006) (requiring defendants relying on duress as an affirmative defense to prove it by a preponderance of the evidence).
138. See Clark v. Arizona, 126 S. Ct. 2709, 2717, 2732 (2006) (recognizing that a state may require defendants to prove insanity by clear and convincing evidence).
139. As in Leland v. Oregon, 343 U.S. 790, 798 (1952), in which the court upheld the constitutionality of an Oregon statute requiring defendants to prove the insanity defense beyond a reasonable doubt.
140. See CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, EVIDENCE 137 (3d ed. 2003) ("If the factor ... is an element in the offense, the prosecutor must bear the burden of persuasion beyond a reasonable doubt. If it is a 'new matter' affirmative defense that can coexist with all the elements of the offense ... then the burden of persuasion can be put on the defendant.").
141. For analysis of the nature and objectives of the special proof requirements that attach to affirmative defenses, see Richard A. Bierschbach & Alex Stein, Mediating Rules in Criminal Law, 93 VA. L. REV. 1197, 1241-52 (2007).
142. Grogan v. Gartner, 498 U.S. 279, 286 (1991).
143. Addington v. Texas, 441 U.S. 418, 423 (1979).
144. See MUELLER & KIRKPATRICK, supra note 81, at 109 (stating that the preponderance standard applies across the board in civil cases, but listing a wide variety of situations in which a higher "clear and convincing evidence" standard may be used).
145. See Lavine v. Milne, 424 U.S. 577, 587 (1976).
146. See Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 280 (1990) (holding that due process does not forbid states from requiring clear and convincing evidence as a proof of patient's wish for the withdrawal of life-sustaining treatment).
147. As in Lavine, 424 U.S. at 578-79.
148. Id. at 587;
149. see also Nguyen v. INS, 533 U.S. 53, 63-64 (2001) (holding that "[t]he Constitution ... does not require that Congress elect one particular mechanism from among many possible methods of establishing paternity" for citizenship purposes).
150. Addington v. Texas, 441 U.S. 418, 431-33 (1979).
151. See Cruzan, 497 U.S. at 282-83 (recognizing the need for an intermediate standard of proof);
152. Addington, 441 U.S. at 424-25 (discussing the relationship between "clear and convincing" and other standards of proof).
153. Woodby v. INS, 385 U.S. 276 (1966).
154. Schneiderman v. United States, 320 U.S. 118, 125, 159 (1943).
155. Addington, 441 U.S. at 425-27.
156. Santosky v. Kramer, 455 U.S. 745, 768-70 (1982).
157. Id. at 747-48.
158. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991) (holding that a publisher's right to due process, which attaches to its constitutional entitlement to free speech, means that maliciousness of its libelous publication must be proven by clear and convincing evidence);
159. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-56 (1986) (same).
160. See supra notes 65-69 and accompanying text.
161. Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
162. For critical analysis of this doctrine, see Mashaw, supra note 69, at 46-52, in which the court criticized the Mathews formula for dwarfing "soft variables" that include a person's dignity and autonomy).
163. This rationalization carries the "clear and convincing" standard into many new domains. For example, an action for revoking a doctor's license to practice medicine might necessitate the imposition of the "clear and convincing" requirement on due process grounds. See Nguyen v. Wash. Dept. of Health Med. Quality Assurance Comm., 29 P.3d 689, 697 (Wash. 2001) (imposing on due process grounds the "clear and convincing" requirement on a proceeding for removal of a doctor's license);
164. see also Roy G. Spece, Jr. & John J. Marchalonis, Sound Constitutional Analysis, Moral Principle, and Wise Policy Judgment Require a Clear and Convincing Evidence Standard of Proof in Physician Disciplinary Proceedings, 3 IND. HEALTH L. REV. 107 (2006) (arguing that the "clear and convincing" standard is constitutionally required in disciplinary actions against doctors).
165. See RONALD DWORKIN, A MATTER OF PRINCIPLE 79-89 (1986) (explicating this vision).
166. Id. at 81-84.
167. Id. at 84-88.
168. Id.
169. See STEIN, supra note 8, at 172-78 (articulating the "equal best" standard as an organizing principle for existing protections against erroneous conviction).
170. Id. at 173-74;
171. see also PAUL ROBERTS & ADRIAN A.S. ZUCKERMAN, CRIMINAL EVIDENCE 360-66 (2004) (articulating the meaning of "beyond a reasonable doubt").
172. See supra notes 31-39 and accompanying text.
173. See, e.g., RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 618 n.2 (6th ed. 2003) (observing that "trading off Type I and Type II errors is a pervasive feature of evidence law");
174. STEIN, supra note 8, at 172-78 ("The legal system can ... reduce the incidence of wrongful acquittals ('false negatives') by increasing the number of wrongful convictions ('false positives'), and vice versa.").
175. See STEIN, supra note 8, at 219-25 ("The equality principle demands that risk of error be allocated equally between the claimant and the defendant... [as the] losses that the claimant and the defendant might undeservedly suffer are equally regrettable.").
176. Id.
177. See Grogan v. Gartner, 498 U.S. 279, 286 (1991) ("[T]he preponderance-of-the-evidence standard results in a roughly equal allocation of the risk of error between litigants ....").
178. See supra text accompanying notes 84-96.
179. See Addington v. Texas, 441 U.S. 418, 423-24 (1979) (recognizing the need to interpose heightened proof requirements to "protect particularly important individual interests in various civil cases").
180. Id. at 431-33.
181. See, e.g., Johnson v. Solomon, 484 F. Supp. 278, 292 (D. Md. 1979) ("Today there can be 'little doubt that a person detained on grounds of mental illness has a right to counsel, and to appointed counsel if the individual is indigent.'"
182. (quoting Lessard v. Schmidt, 349 F. Supp. 1078, 1097 (E.D. Wis. 1972),
183. vacated and remanded on other grounds, 414 U.S. 473 (1974))).
184. See generally AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 385-91 (2005);
185. RODNEY L. MOTT, DUE PROCESS OF LAW: A HISTORICAL AND ANALYTICAL TREATISE OF THE PRINCIPLES AND METHODS FOLLOWED BY THE COURTS IN THE APPLICATION OF THE CONCEPT OF THE "LAW OF THE LAND" 241-55 (1926);
186. Sanford H. Kadish, Methodology and Criteria in Due Process Adjudication - A Survey and Criticism, 66 YALE L.J. 319 (1957).
187. Davidson v. New Orleans, 96 U.S. 97, 104 (1877).
188. Palko v. Connecticut, 302 U.S. 319, 326 (1937).
189. Hurtado v. California, 110 U.S. 516, 532 (1884).
190. Palko, 302 U.S. at 325.
191. Snyder v. Massachusetts, 291 U.S. 97, 105 (1934);
192. see also Brown v. Mississippi, 297 U.S. 278, 285 (1936) (confirming the Snyder formulation).
193. As explained in one of the Supreme Court's foundational decisions, Hurtado, 110 U.S. at 521:
194. [T]he phrase "due process of law" is equivalent to "law of the land," as found in the twenty-ninth chapter of Magna Charta; ... that it refers to and includes, not only the general principles of public liberty and private right, which lie at the foundation of all free government, but the very institutions which, venerable by time and custom, have been tried by experience and found fit and necessary for the preservation of those principles, and which, having been the birthright and inheritance of every English subject, crossed the Atlantic with the colonists and were transplanted and established in the fundamental laws of the state; that, having been originally introduced into the constitution of the United States as a limitation upon the powers of the government, brought into being by that instrument, it has now been added as an additional security to the individual against oppression by the states themselves .... Jones v. Robbins, 74 Mass. (8 Gray) 329, 342-43 (1857) (Shaw, C.J.) (interpreting "the law of the land" and "process of law" standards as referring to England's Magna Carta);
195. Bank of Columbia v. Okely, 17 U.S. 235, 244 (1819) (interpreting "due process" as referring to the principles of Magna Carta, "private rights," and "distributive justice");
196. see alsoTwining v. New Jersey, 211 U.S. 78, 100-02, 105-06 (1908) (confirming all of the above).
197. Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272, 277 (1855);
198. see also Montana v. Egelhoff, 518 U.S. 37, 43 (1996) (explaining that "historical practice" is the primary guide as to whether a principle is "fundamental" under the Due Process Clause).
199. Consider, for example, Justice Scalia's interpretive modernization of the old confrontation right, articulated in Crawford v. Washington, 541 U.S. 36 (2004). His holding that the right entitles the defendant to cross-examine providers of inculpating testimonial evidence is not an application that the Constitution's framers originally envisioned. Today's "testimonial evidence" is a concept that captures many previously unknown forms of testimony. Justice Scalia's interpretation, however, is still faithful to the broad principle underlying the Sixth Amendment's text.
200. See Jeffrey L. Fisher, Categorical Requirements in Constitutional Criminal Procedure, 94 GEO. L.J. 1493, 1518 (2006) (explaining Crawford's "originalism" as a blend of new trial practices and the framers' understandings that resulted in a "contemporary judgment concerning how a common law right can best be implemented in the modern criminal justice system");
201. see also Jack M. Balkin, Abortion and Original Meaning, 24 CONST. COMMENT, (forthcoming 2007), available at http://papers.ssrn.com/abstract=925558 (advancing the idea that constitutional interpretation requires fidelity to the principles underlying the Constitution's text, but not to the text's original expected application).
202. 294 U.S. 103 (1935) (per curiam) (finding conviction sought through deliberate use of perjured testimony to be "as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation").
203. Id. at 111-12.
204. Id. at 112.
205. Id. at 110-11.
206. Id. at 111-12.
207. Id. at 112.
208. Because the defendant had not exhausted his recourse to courts below, his habeas corpus petition was denied without prejudice. Id. at 115.
209. Id. at 112-13;
210. see also Napue v. Illinois, 360 U.S. 264, 269, 272 (1959) (holding that the prosecution's failure to correct testimony known to be false violates due process);
211. Pyle v. Kansas, 317 U.S. 213, 215-16 (1942) (same).
212. See United States v. Agurs, 427 U.S. 97, 103-04 (1976) (stating that "fundamental unfairness" could attach to cases in which the prosecution should have known about the perjury, but underscoring that, under the prevalent understanding of Mooney, a merely constructive awareness is not enough).
213. See Albright v. Oliver, 510 U.S. 266, 298-99 (1994) (Stevens J., dissenting) (noting that Mooney rejected as unduly " formalistic" the interpretation of Due Process as requiring proof beyond a reasonable doubt, probable cause, and process rights);
214. Donnelly v. DeChristoforo, 416 U.S. 637, 646-48 (1974) (reaffirming Mooney);
215. Giglio v. United States, 405 U.S. 150, 153-54 (1972) (same);
216. Miller v. Pate, 386 U.S. 1, 7 (1967) (same);
217. Napue, 360 U.S. at 269 (same);
218. Alcorta v. Texas, 355 U.S. 28, 31 (1957) (same);
219. Pyle, 317 U.S. at 215-16 (same).
220. See Brinegar v. United States, 338 U.S. 160, 174 (1949) ("Guilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property.");
221. see also Dutton v. Evans, 400 U.S. 74, 96-97 & n.4 (1970) (Harlan J., concurring) ("The task [of examining the constitutionality of evidence rules] is far more appropriately performed under the aegis of the Fifth and Fourteenth Amendments' commands that federal and state trials, respectively, must be conducted in accordance with due process of law. It is by this standard that I would test federal and state rules of evidence.... Reliance on the Due Process Clauses would also have the virtue of subjecting rules of evidence to constitutional scrutiny in civil and criminal trials alike.").
222. See, e.g., Manson v. Brathwaite, 432 U.S. 98, 105-06 (1977) (using the "substantial likelihood of misidentification" criterion for suppressing suggestive identification procedures on due process grounds);
223. Neil v. Biggers, 409 U.S. 188, 196-99 (1972) (same);
224. Foster v. California, 394 U.S. 440, 442-43 (1969) (holding that an unnecessarily suggestive lineup violates due process if admitted into evidence);
225. Stovall v. Denno, 388 U.S. 293, 301-02 (1967) (same).
226. 493 U.S. 342, 352 (1990)
227. (quoting United States v. Lovasco, 431 U.S. 783, 790 (1977)).
228. Id.
229. Mooney v. Holohan, 294 U.S. 103, 110, 112-13 (1935).
230. Foster, 394 U.S. at 442-43.
231. Id.
232. See Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991) (calling proof of drugdealing by evidence that defendant drove a car with $ 135,000 in the trunk "a problem," but holding that this problem did not make defendant's trial fundamentally unfair because "there is a rational inference the jury could draw from the challenged evidence," while fundamental unfairness can only occur "if there are no permissible inferences the jury may draw from the evidence").
233. See Dowling, 493 U.S. at 352 (holding that an evidence rule should only be voided if it violates our "fundamental conceptions of justice which lie at the base of our civil and political institutions");
234. Spencer v. Texas, 385 U.S. 554, 563-64 (1967) (upholding the constitutionality of Texas law rendering prior-crime evidence admissible to prove recidivism in a single criminal proceeding, after establishing that the law is not fundamentally unfair, and explaining that the "fundamental unfairness" doctrine does not allow the Supreme Court to tell states how to define their evidence rules).
235. In Dowling, 493 U.S. at 352-53, the Supreme Court held that admission of criminal disposition evidence was not "fundamentally unfair" because trial judges' limiting instruction adequately guarded against prejudice. On analogous grounds, the Eighth, Ninth, and Tenth Circuits upheld the constitutionality of Federal Rules of Evidence 413 and 414, under which a defendant's prior sexual misconduct is admissible to prove the crime at issue in the instant trial.
236. See United States v. LeMay, 260 F.3d 1018, 1031 (9th Cir. 2001) (holding that Rule 414 does not violate Due Process, Equal Protection, or the Eighth Amendment's ban on cruel and unusual punishment);
237. United States v. Mound, 149 F.3d 799, 801 (8th Cir. 1998) (holding that Rule 413 does not violate Due Process and that neither Rule 413 nor 414 violates Equal Protection because trial judges' discretion under FED. R. EVID. 403 to exclude excessively prejudicial evidence adequately protects defendants against prejudice);
238. United States v. Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998) (holding on similar grounds that Rule 413 does not violate Due Process);
239. see also Aviva Orenstein, Deviance, Due Process, and the False Promise of Federal Rule of Evidence 403, 90 CORNELL L. REV. 1487, 1517 (2005) (supporting the proposition that Federal Rules of Evidence 413 and 414 and their state equivalents violate due process, but observing that "it would be foolish for those who are concerned about the reach of these rules ... to count on a successful due process challenge").
240. Cf. State v. Polly, 657 N.W.2d 462, 466 (Iowa 2003) (holding that "a confession standing alone will not warrant a criminal conviction unless other proof shows the defendant committed the crime");
241. Opper v. United States, 348 U.S. 84, 89 (1954) (noting that confession made by the accused needs corroborating evidence to serve as the basis for a conviction);
242. N.Y. CRIM. PROC LAW § 60.50 (McKinney 2006) ("A person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed.").
243. Cf. 3 CHARLES E. TORCIA, WHARTON'S CRIMINAL LAW § 38, at 239 & n.12 (15th ed. 1993 & Supp. 2007) (attesting that "it is now commonly required that the accomplice's testimony be corroborated," and citing statutes and case law from two dozen states).
244. Cf. FED. R. EVID. 404(a) (providing that prior misconduct is generally inadmissible to prove an action in conformity).
245. Compare with the opposite holdings in cases cited infra note 284.
246. See, e.g., MIRJAN R. DAMAŠKA, EVIDENCE LAW ADRIFT 149 (1997) (describing and predicting dissipation of evidence rules);
247. Eleanor Swift, One Hundred Years of Evidence Law Reform: Thayer's Triumph, 88 CAL. L. REV. 2437 (2000) (describing, explaining, and criticizing the marginalization of evidence rules);
248. see also WILLIAM TWINING, RETHINKING EVIDENCE: EXPLORATORY ESSAYS 211-12 (2d ed. 2006) ("In one of our classics of literature, Alice in Wonderland, one of the characters is the Cheshire Cat who keeps appearing and disappearing and fading away, so that sometimes one could see the whole body, sometimes only a head, sometimes only a vague outline and sometimes nothing at all, so that Alice was never sure whether or not he was there or, indeed, whether he existed at all. In practice, our rules of evidence appear to be rather like that." (footnote omitted)).
249. See William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593, 605 (1992) (articulating "quasi-constitutionalism" as explaining federal courts' diversity jurisdiction);
250. Cass R. Sunstein, Chevron Step Zero, 92 VA. L. REV. 187, 206 (2006) (categorizing the Erie doctrine as quasi-constitutional);
251. see also John Hart Ely, The Irrepressible Myth of Erie, 87 HARV. L. REV. 693, 700-06 (1974) (discussing the constitutional foundations of Erie).
252. Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).
253. See infra notes 174-182 and accompanying text.
254. U.S. CONST, art. I, § 9, cl. 3 ("No . . . ex post facto Law shall be passed.").
255. See Carmell v. Texas, 529 U.S. 513 (2000).
256. U.S. CONST, art. I, § 8, cl. 3 (authorizing Congress to regulate interstate commerce).
257. See Pierce County v. Guillen, 537 U.S. 129, 146-47 (2003) (upholding constitutionality of federal statute, 23 U.S.C. § 409, making privileged, and protecting from disclosure and admission into evidence in state courts, any "reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites . . . [pursuant to the above statute] or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds");
258. see also Felder v. Casey, 487 U.S. 131, 138-42 (1988) (holding that state courts entertaining a federal cause of action ought to adjust their procedures so that the underlying federal goal is achieved and the federal right is protected);
259. Brown v. Western Ry. Co. of Ala., 338 U.S. 294, 296 (1949) (holding in relation to state procedures that a "federal right cannot be defeated by the forms of local practice").
260. See Guillen, 537 U.S. at 146-47.
261. As in Guillen, this is what evidentiary privileges typically do. See 1 MCCORMICK, supra note 16, § 72 (explaining that while rules of privilege inhibit the factfinding process, they are warranted because they "protect the interests and relationships which . . . are regarded as of sufficient social importance to justify some sacrifice of availability of evidence").
262. See Ely, supra note 148, at 724-27 (attesting that privileges are substantive rules);
263. Timothy P. Glynn, Federalizing Privilege, 52 AM. U. L. REV. 59, 133 (2002) (same);
264. Jack B. Weinstein, The Uniformity-Conformity Dilemma Facing Draftsmen of Federal Rules of Evidence, 69 COLUM. L. REV. 353, 373 (1969) (same).
265. See Raleigh v. Ill. Dept. of Revenue, 530 U.S. 15, 20-21 (2000) ("Given its importance to the outcome of cases, we have long held the burden of proof to be a "substantive" aspect of a claim."
266. (citing Dir., Office of Workers' Comp. Programs v. Greenwich Collieries, 512 U.S. 267, 271 (1994);
267. Dick v. New York Life Ins. Co., 359 U.S. 437, 446 (1959);
268. Garrett v. Moore-McCormack Co., 317 U.S. 239, 249 (1942))). For a general theoretical account of proof burdens' substantive nature
269. see Ronald J. Allen, Structuring Jury Decisionmaking in Criminal Cases: A Unified Constitutional Approach to Evidentiary Devices, 94 HARV. L. REV. 321 (1980).
270. See sources cited supra note 147.
271. For recent statements of this view, see Michael S. Pardo, The Field of Evidence and the Field of Knowledge, 24 LAW & PHIL. 321, 321 (2005) (calling the trial a "fundamentally epistemological event");
272. Mike Redmayne, The Structure of Evidence Law, 26 OXFORD J. LEGAL STUD. 805, 805-07 (2006)
273. (reviewing STEIN, supra note 8) (describing adjudicative factfinding as determination of probabilities on factual grounds).
274. JAMES B. THAYER, A PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON LAW 314 n. 1 (1898).
275. See STEIN, supra note 8, at 64-140 (demonstrating that allocation of the risk of error by evidence rules is pervasive);
276. see also Ronald J. Allen, Laudan, Stein, and the Limits of Theorizing About Juridical Proof, 27 LAW & PHIL. (forthcoming 2008) (on file with Vanderbilt Law Review) (critiquing the present author's evidence theory and its "top-down" methodology while accepting its key point about the pervasiveness of risk-allocation).
277. This example is adapted from Charles R. Nesson, Reasonable Doubt and Permissive Inferences: The Value of Complexity, 92 HARV. L. REV. 1187, 1192-93 (1979).
278. See, e.g., Alexander Volokh, n Guilty Men, 146 U. PA. L. REV. 173, 173 (1997) (examining probability requirements for convictions under which a 0.999 probability of guilt is sufficient).
279. See STEIN, supra note 8, at 40-49, 80-91 (demonstrating how the quality of the evidence that factfinders use affects allocation of the risk of error).
280. Id. at 80-91 (conceptualizing informational risk as probabilities' "weight").
281. Id.
282. For such cases, probability theory offers the "indifference principle" - a technical assumption that the information unavailable to factfinders is not slanted in either direction. See L. JONATHAN COHEN, AN INTRODUCTION TO THE PHILOSOPHY OF INDUCTION AND PROBABILITY 43-47 (1989);
283. JOHN MAYNARD KEYNES, A TREATISE ON PROBABILITY 41-64 (1921). This principle relies on the mutually offsetting effect of unknown possibilities that unfold in a long sequence of identical trials. For a single case, in which the event in question either occurred or did not, this randomizing strategy is inappropriate.
284. See STEIN, supra note 8, at 40-49.
285. For a recent, but still unsustainable, layout of this theory, see Redmayne, supra note 160, at 807-15.
286. See STEIN, supra note 8, at 107-40 (arguing that "[l]egal regulation of adjudicative factfinding needs to be tightened" in order to control the apportionment of the risk of error).
287. Id. at 118-22.
288. Id.
289. Id. at 133-40;
290. see also Allen, supra note 162 (manuscript at 44) (accepting the view that "rules of evidence do not just do what they purport to do; they also allocate error, like it or not").
291. Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).
292. Ascertainment of that law relies on the choice-of-law principles. See FRIEDENTHAL ET AL., supra note 13, § 4.5.
293. See Guaranty Trust Co. v. York, 326 U.S. 99, 109 (1945) (rejecting the substantive-procedural divide as a criterion for identifying the applicable law under Erie).
294. Id. As explained by FRIEDENTHAL ET AL., supra note 13, §4.3, at 212, Guaranty Trust Co. viewed Erie as "an attempt to achieve vertical uniformity, that is, the consistent application of local substantive law in both state and federal courts within the same state," as well as to "eliminate a major incentive for litigants of diverse citizenship to forum shop."
295. See Hanna v. Plumer, 380 U.S. 460, 468 (1965) (applying the "outcome-determination" test, but not "without reference to the twin aims of the Erie rule: discouragement of forumshopping and avoidance of inequitable administration of the laws");
296. see also Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427-28 (1996) (stating and applying the "outcome-determination" test in relation to the "twin aims" of Erie articulated in Hanna);
297. Chambers v. NASCO, Inc., 501 U.S. 32, 52 (1991) (same).
298. This rule is well-settled. See Dick v. New York Life Ins. Co., 359 U.S. 437, 446-47 (1959) (holding that, under Erie, state law controls the allocation of the burden of proof);
299. Palmer v. Hoffman, 318 U.S. 109, 116-17 (1943) (same);
300. Cities Serv. Oil Co. v. Dunlap, 308 U.S. 208, 212 (1939) (same); Monger v. Cessna Aircraft Co., 812 F.2d 402, 404-05 (8th Cir. 1987) (same);
301. see also FED. R. EVID. 302 (providing that state law controls presumptions whenever it supplies a rule of decision for the case).
302. See FED. R. EVID. 501 (providing that state law controls all privileges whenever it supplies the rule of decision for the case);
303. see also GRAHAM C. LILLY, PRINCIPLES OF EVIDENCE § 10.2, at 324-25 (4th ed. 2006) (explaining that, in diversity cases, evidentiary privileges track the substantive law of the state).
304. See Flaminio v. Honda Motor Co., 733 F.2d 463, 470-72 (7th Cir. 1984) (classifying FED. R. EVID. 407, which excludes evidence of subsequent remedial measures, as procedural, and consequently applicable in diversity cases, despite having "substantive consequences by virtue of affecting incentives to take safety measures after an accident occurs");
305. In re Air Crash Disaster near Chicago, 701 F.2d 1189, 1193 (7th Cir. 1982) ("[T]he Federal Rules of Evidence govern the admissibility of evidence in diversity cases.");
306. Rabon v. Automatic Fasteners, Inc., 672 F.2d 1231, 1238 n.14 (5th Cir. 1982) ("[F]ederal law governs procedural matters. . . including the admissibility of evidence." (internal citations omitted));
307. cf. Morton v. Brockman, 184 F.R.D. 211, 215 (D. Me. 1999) (holding that a Maine statute suppressing evidence of nonuse of seatbelts in product liability actions against car manufacturers derives from a substantive policy and consequently trumps federal evidence rules).
308. See, e.g., Ronan E. Degnan, The Law of Federal Evidence Reform, 76 HARV. L. REV. 275, 293-95 (1962) (categorizing hearsay, opinion, and other admissibility rules as not outcome determinative, and as consequently belonging to the domain of federal law, under Erie);
309. Mason Ladd, Uniform Evidence Rules in the Federal Courts, 49 VA. L. REV. 692, 709 (1963) (identifying exceptions to the hearsay rule as not outcome determinative because there is "no assurance that the trier of fact. . . will believe the evidence" admitted under those exceptions).
310. Cf. Swift, supra note 147, at 2471-76 (arguing that many admissibility rules are outcome determinative).
311. U.S. CONST, art. I, § 9.
312. See Calder v. Bull, 3 U.S. 386, 391 (1798) ("[I] do not consider any law ex post facto, within the prohibition, that mollifies the rigor of the criminal law; but only those that create, or aggravate, the crime; or encrease [sic] the punishment, or change the rules of evidence, for the purpose of conviction.");
313. see also Carmell v. Texas, 529 U.S. 513, 530 (2000)
314. (citing Calder v. Bull to support the proposition that the Ex Post Facto Clause prohibits retroactive changes of evidential sufficiency requirements).
315. 529 U.S. at 530.
316. The Supreme Court examined the constitutionality of a Texas statute modifying a corroboration arrangement for cases of rape and sexual assault. Under the old arrangement, a defendant could not be convicted on his complainant's testimony if it were not corroborated by the complainant's prompt outcry or by evidence extraneous to her testimony. The old statute exempted from this arrangement complainants below fourteen years of age. The new statute, TEX. CODE CRIM. PROC. ANN. art. 38.07 (Vernon 2000), as it was then, raised the exempted complainants' age to under eighteen. The statute effectively provided that, from then on, a jury could convict the defendant on the uncorroborated testimony of a fourteen- to seventeen-year-old complainant if it found the testimony credible beyond all reasonable doubt. Carmell, 529 U.S. at 518-19.
317. Carmell, 529 U.S. at 530 ("Under the law in effect at the time the acts were committed, the prosecution's case was legally insufficient and petitioner was entitled to a judgment of acquittal, unless the State could produce both the victim's testimony and corroborative evidence.").
318. Id. at 539-47.
319. Id.
320. Id. at 553 (Ginsburg J., dissenting).
321. Id.
322. Id. at 560-61 ("Under both the old and new versions of the statute, the applicable standard is proof beyond a reasonable doubt.").
323. I do not discuss here the merits of this rule. See generally Michelle J. Anderson, The Legacy of the Prompt Complaint Requirement, Corroboration Requirement, and Cautionary Instructions on Campus Sexual Assault, 84 B.U. L. REV. 945, 977-86 (2004) (explaining persuasively the corroboration requirement for rape accusations as driven by societal bias against complainants).
324. See supra notes 178 and accompanying text.
325. Classifying evidentiary rules, along with the standards and burdens of proof, as outcome determinative is still a far cry from protecting them against retroactive changes. Evidential entitlements attach to a person only at a trial in which they can be activated. Before that time, a person holds no evidential entitlements whatsoever. At his trial, moreover, he captures only those evidential entitlements that exist at that time. Changes in the law of evidence that preceded a person's trial therefore ought not to be invalidated on retroactivity grounds. They simply are not retroactive to begin with. For full explanation of this point, see STEIN, supra note 8, at 17-25.
326. These are enumerated above in Part I.
327. See Felder v. Casey, 487 U.S. 131, 138 (1988) ("No one disputes the general and unassailable proposition . . . that States may establish the rules of procedure governing litigation in their own courts.");
328. Patterson v. New York, 432 U.S. 197, 201 (1977) (stating the principle that "it is normally 'within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion.' " (quoting Speiser v. Randall, 357 U.S. 513, 523 (1958)));
329. Spencer v. Texas, 385 U.S. 554, 563-64 (1967) (stating that the Supreme Court has no constitutional warrant to dictate evidence rules to states).
330. See supra note 154.
331. U.S. CONST, art. I, § 8.
332. See, e.g., Getchell v. Lodge, 65 P.3d 50, 55-58 (Alaska 2003) (holding that police officers' accident reports are generally admissible under Alaska evidence rules).
333. See Pierce County v. Guillen, 537 U.S. 129, 133-34 (2003) (taking notice of the report to Congress by the Secretary of Transportation, according to which "the States feared that diligent efforts to identify [hazardous] roads . . . would increase the risk of liability for accidents that took place at hazardous locations before improvements could be made").
334. See id. at 147 (finding that legislation that would result in "greater safety on our Nation's roads" could be interpreted as "[aiming] at improving safety in the channels of commerce and increasing protection for the instrumentalities of interstate commerce," and therefore "[falling] within Congress' Commerce Clause power").
335. 23 U.S.C. § 409 (2000) (amended 2004).
336. Guillen, 537 U.S. at 146-48.
337. Id. at 147.
338. Id. at 146-47.
339. Id. at 144-45.
340. Id. at 146-48.
341. This accusation is still not without merit. See Lynn A. Baker, Lochner's Legacy for Modern Federalism: Pierce County v. Guillen as a Case Study, 85 B.U. L. REV. 727, 734-35 (2005) ("Because the statute at issue regulated apparently non-commercial activity-the discovery and introduction of evidence in civil litigation-and interfered with a traditional area of state sovereignty-state judicial processes, one might reasonably have expected the States' Rights Five [the late Chief Justice Rehnquist and Justices Kennedy, O'Connor, Scalia, and Thomas] to hold the statute unconstitutional. . . ." (footnotes omitted)).
342. As explained in United States v. Lopez, 514 U.S. 549, 564 (1995).
343. See also Baker, supra note 210, at 762 (underscoring the pervasive role of tradition in the Supreme Court's interpretation of the Commerce Clause).
344. See Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 YALE L.J. 950, 950 (1979) (coining the "shadow of the law" metaphor).
345. See infra Part III.C.
346. See supra text accompanying notes 143-146.
347. The manufacturers' constitutional complaint would also face a threshold objection: the "fundamental unfairness" criterion, as presently defined, applies in criminal cases alone. See supra notes 121-142 and accompanying text.
348. This discussion is inspired by a real-life example: Blankenship v. General Motors Corporation, 406 S.E.2d 781 (W. Va. 1991), a case in which the West Virginia Supreme Court adopted the "crashworthiness" doctrine for product liability actions against car manufacturers. In formulating the proof requirements, the court ruled that the plaintiffs evidence only needed to show "a defect that was a factor in causing some aspect of the plaintiffs harm."
349. Id. at 786. Based on this evidence, a jury now can award the plaintiff full compensation. The court reasoned that it adopts this rule on the basis of "the same actuarial considerations that have prompted us finally to adopt the doctrine of crashworthiness-namely, that we [West Virginians] are already paying for full coverage."
350. Id. The Court supplemented this reasoning by a candid remark that "[i]n any adversarial system where residents are pitted against non-residents, there will inevitably be a temptation to redistribute wealth in the direction of residents," and that "[by] far the best tax is one imposed on a stranger who can't vote or otherwise retaliate."
351. Id. at 787 n.11. For further discussion of this decision
352. see infra notes 268-278 and accompanying text.
353. These understandings may also involve state legislators. Courts, however, are always the dominant players because no evidence rule can bypass them. Courts do not merely interpret and apply evidence rules; they also can void those rules on constitutional grounds.
354. Cf. CAL. CONST, art. I, § 28(d) (establishing people's "right to truth-in-evidence" by a constitutional demand that, generally, "relevant evidence shall not be excluded in any criminal proceeding" except under statute enacted by a super-majority in each house of the Legislature).
355. See infra Section III.A.
356. See, e.g., J. Anthony Kline, Comment, The Politicalization of Crime, 46 HASTINGS L.J. 1087, 1093 (1995) (a senior California judge describing the "right to truth-in-evidence" provision of CAL. CONST, art. I, §28(d) as threatening "the quality of American justice").
357. Cf. Mitu Gulati & C.M.A. McCauliff, On Not Making Law, 61 LAW & CONTEMP. PROBS. 157, 165, 204 (1998) (observing that judges generally care about their reputation, esteem, and legacy).
358. William J. Stuntz, The Political Constitution of Criminal Justice, 119 HARV. L. REV. 780, 781 (2006), describes this account of the Supreme Court's constitutional jurisprudence as a view according to which "politics is to constitutional law as a disease is to the medicine that cures it."
359. I focus here on the Supreme Court's revealed preferences as exhibited by its decisions.
360. See William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331, 390-97 (1991) (predicting this impact).
361. See, e.g., Dickerson v. United States, 530 U.S. 428, 442-43 (2000) (declaring unconstitutional 18 U.S.C. § 3501, an attempt by Congress to repeal the exclusionary rule set forth in Miranda v. Arizona, 384 U.S. 436 (1966)).
362. Richard A. Posner, Judicial Behavior and Performance: An Economic Approach, 32 FLA. ST. U. L. REV. 1259, 1277 (2005);
363. see also Eugenia Froedge Toma, Congressional Influence and the Supreme Court: The Budget as a Signaling Device, 20 J. LEGAL STUD. 131, 134-35 (1991) (arguing that congressional budgetary generosity toward the Supreme Court correlates with whether Congress likes the Court's decisions).
364. The political attitudes towards the Supreme Court are not uniform and change from Congress to Congress. This factor dilutes the threat of budgetary retaliation. John M. De Figueiredo & Emerson H. Tiller, Congressional Control of the Courts: A Theoretical and Empirical Analysis of Expansion of the Federal Judiciary, 39 J.L. & ECON. 435, 451 n.40 (1996).
365. See also Nancy C. Staudt et al., Judicial Decisions as Tax Legislation: Congressional Oversight of Supreme Court Tax Cases, 1954-2005, 82 N.Y.U. L. REV. 1340, 1352-55 (2007) (carrying out a comprehensive empirical study establishing that, although Congress occasionally responds in a negative way to the Court's decisions, the number of positive Congressional responses, including codification of the Court's jurisprudence, is at least as high). With the federal judiciary as a whole, things are different.
366. See Judith Resnik, Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III, 113 HARV. L. REV. 924, 1011-12 (2000) (observing that the federal judiciary is heavily dependent on Congress for resources).
367. Posner, supra note 226.
368. Any new appointment also goes through a partisan confirmation proceeding in the Senate. See generally Stephen Carter, The Confirmation Mess, 101 HARV. L. REV. 1185 (1988). The sitting Justices can strengthen the opposition to a rival nominee by issuing decisions that portray her agenda as a radical departure from the constitutional mainline.
369. Federal judges have no systemic incentives to do so and are also controllable by the Supreme Court's appellate power.
370. See, e.g., John H. Culver & John T. Wold, Rose Bird and the Politics of Judicial Accountability in California, 70 JUDICATURE 81, 87-89 (1986) (describing how conservative opponents waged a multimillion-dollar campaign that unseated three California Supreme Court Justices for being soft on crime).
371. See ERIC A. HELLAND & ALEXANDER TABARROK, JUDGE AND JURY: AMERICAN TORT LAW ON TRIAL 67-94 (2006) (demonstrating empirically that partisan-elected judges tend to increase in-state plaintiffs' awards in tort actions against out-of-state corporate defendants).
372. See McNollgast, Politics and the Courts: A Positive Theory of Judicial Doctrine and the Rule of Law, 68 S. CAL. L. REV. 1631, 1649-51 (1995) (analyzing this dynamic). Collective action does not seem to be a big problem for state courts.
373. See, e.g., Victoria A. Saker, Federalism, The Great Writ, and Extrajudicial Politics: The Conference of Chief Justices, 1949-1966, in FEDERALISM AND THE JUDICIAL MIND: ESSAYS ON AMERICAN CONSTITUTIONAL LAW AND POLITICS 131, 131 (Harry N. Scheiber ed., 1992) (discussing an organization of state chief judges formed in 1949 to wage "a 15-year crusade to trim the habeas jurisdiction of the federal courts").
374. See POSNER, supra note 107, at 543 (noting that judges are prestige maximizers and are sensitive to being reversed by a higher court);
375. Posner, supra note 226, at 1271 (mentioning reversal rate among indicators of judicial promotion, which affects performance);
376. see also Emery G. Lee III, Horizontal Stare Decisis on the U.S. Court of Appeals for the Sixth Circuit, 92 KY. L.J. 767, 771 (2004) ("Lower federal court judges may fear reversal by a higher court and may harbor ambitions for higher office . . . .").
377. See Suzanna Sherry, Judges of Character, 38 WAKE FOREST L. REV. 793, 800 (2003) ("The common law method, which encourages a simultaneously respectful but open-minded attitude toward precedent, tends to rein in the most radically arrogant.").
378. Cf. Elkins v. United States, 364 U.S. 206, 221 (1960) ("[A] healthy federalism depends upon the avoidance of needless conflict between state and federal courts.").
379. See generally Edward A. Purcell, Jr., Evolving Understandings of American Federalism: Some Shifting Parameters, 50 N.Y.L. SCH. L. REV. 635 (2006).
380. See, e.g., Frederick Schauer, Foreword: The Court's Agenda-And the Nation's, 120 HARV. L. REV. 4, 57 (2006) (observing that the Supreme Court fosters appearance of "neutrality and political disinterest").
381. See Peter H. Schuck, Citizenship in Federal Systems, 48 AM. J. COMP. L. 195, 198 (2000) ("All genuine federal systems are highly complex, contingent products of unique historical, social, and political forces.").
382. This account is inspired by Schelling's theory of strategic communications. See THOMAS C. SCHELLING, THE STRATEGY OF CONFLICT 119-39 (1960) (identifying equilibrium-attaining dynamics between adversaries communicating implicitly by threats and commitments).
383. See supra notes 130-139 and accompanying text.
384. See supra note 140 and accompanying text.
385. The Court also maintains a threat to lay down "watershed rules" of constitutional criminal procedure. A single watershed rule can invalidate a large number of criminal convictions retroactively - a consequence that undermines the power and authority of state courts. But the Court has held that it will use its power to announce a watershed rule only in extreme circumstances that "implicate the fundamental fairness of the trial." See Teague v. Lane, 489 U.S. 288, 312 (1989). Specifically, a watershed rule will apply retroactively on collateral review of convictions when it "alter[s] our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction" and is necessary to prevent an "impermissibly large risk" of erroneous conviction.
386. Id. at 311-13 (quoting Mackey v. United States, 401 U.S. 667, 693-94 (1971)
387. and Desist v. United States, 394 U.S. 244, 262 (1969));
388. see also Whorton v. Bockting, 127 S. Ct. 1173, 1182-84 (2007)
389. (applying Teaguës two-prong standard and denying the watershed status to Crawford v. Washington, 541 U.S. 36 (2004));
390. Schriro v. Summerlin, 542 U.S. 348, 356 (2004) (reaffirming Teague's two-prong standard for watershed rules). The watershed weapon thus can be perceived as a residual component of the strategic balance between the Supreme Court and state courts.
391. This understanding of the "fundamental unfairness" doctrine complements the theory of constitutional interpretation set forth in JED RUBENFELD, REVOLUTION BY JUDICIARY: THE STRUCTURE OF AMERICAN CONSTITUTIONAL LAW 13-15, 114-24 (2005)
392. and articulated in Jed Rubenfeld, The Paradigm-Case Method, 115 YALE L.J. 1977 (2006). Rubenfeld's theory distinguishes between "application understandings" - the framers' and the Supreme Court's commitments to particular meanings of what constitutional rights prohibit-and "no - application understandings" that are merely intentions not to expand the scope of existing constitutional rights. Because intentions, unlike commitments, are not binding, the Supreme Court is free to reexamine the no-application understandings and develop new rights and new meanings of unconstitutionality. The Court, however, is not free to deviate from the application understandings by making constitutional what, in fact, is not. The "fundamental unfairness" doctrine and its floating constitutional threat fall into a separate in-between category of "strategic understandings" that features no commitments or intentions in either direction.
393. A good example of such a rule is the Frye doctrine, which conditions the admissibility of expert evidence on the "standing and scientific recognition" of its methodology. Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923);
394. see also David E. Bernstein & Jeffrey D. Jackson, The Daubert Trilogy in the States, 44 JURIMETRICS J. 351, 355 n.25 (2004) (reporting that a substantial number of states still follow Frye in one form or another). Another example is a Virginia statute prescribing that an interested party's testimony against a person incapable of testifying requires corroboration.
395. See VA. CODE ANN. § 8.01-397 (2006)
396. construed in Williams v. Condit, 574 S.E.2d 241, 244 (Va. 2003).
397. See infra text accompanying notes 259-276.
398. See, e.g., TENN. CODE ANN. § 29-26-115(b) (2000) (providing that, subject to a necessity-based exception, only Tennessee physicians or those from a "contiguous bordering state" can testify as experts in medical malpractice actions before Tennessee courts);
399. see also Legg v. Chopra, 286 F.3d 286, 291 (6th Cir. 2002) (categorizing Tennessee's restriction for medical experts' testimony as a "substantive" rule applicable in diversity cases);
400. Hartsell ex rel. Upton v. Fort Sanders Reg'l Med. Ctr., 905 S.W.2d 944, 950 (Tenn. Ct. App. 1995) (upholding exclusion of the American Medical Association rules pertaining to disputed treatment because under Tennessee law, doctors' standard of care must be proven by local experts). This rule protects Tennessee doctors against malpractice lawsuits and possibly reduces the cost of medical care for the people of Tennessee.
401. State courts cannot deviate from this agenda invisibly by redesigning their procedures. Any such change in the law would be general and, consequently, conspicuous. Modification of the proof burdens would be conspicuous, as well, because these rules expressly identify the bearers of the risk of error. See 2 MCCORMICK, supra note 16, §§ 336-37 (explaining burdens of proof).
402. Michelson v. United States, 335 U.S. 469, 475-76 (1948).
403. See STEIN, supra note 8, at 183-85 (explaining that propensity evidence cannot integrate with case-specific information and thus only can increase the statistical chances of guilt);
404. see also John Kaplan, Decision Theory and the Factfinding Process, 20 STAN. L. REV. 1065, 1073-77 (1968) (observing that evidence of a defendant's bad character dilutes the regret associated with the jurors' prospect of convicting him erroneously and motivates jurors to be lax in applying the "beyond a reasonable doubt" standard).
405. STEIN, supra note 8, at 183-85.
406. The trial judge may still exclude this evidence as unduly prejudicial to the defendant, using her general discretion under FED. R. EVID. 403.
407. But see Orenstein, supra note 142, at 1518-40 (expressing well-founded skepticism about the performance of this gatekeeping role by trial judges in rape and child molestation cases).
408. The similarity condition is implied in the "relevancy" requirement expressly imposed by Federal Rules of Evidence 413 and 414. See Orenstein, supra note 142, at 1527-30 (discussing the effect that similarity has on admissibility and probative value of sexual misconduct evidence).
409. Congress enacted those rules as part of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 320935(a), 108 Stat. 1796, 2135-37. 23 CHARLES ALAN WRIGHT & KENNETH W. GRAHAM, JR., FEDERAL PRACTICE AND PROCEDURE § 5411, at 360-61 (Supp. 2007).
410. The Judicial Conference of the United States urged Congress not to adopt these rules. JUDICIAL CONFERENCE OF THE UNITED STATES, REPORT OF THE JUDICIAL CONFERENCE ON ADMISSION OF CHARACTER EVIDENCE IN CERTAIN SEXUAL MISCONDUCT CASES (1995)
411. reprinted in 56 Crim. L. Rep. (BNA) 2139, 2140 (Feb. 15, 1995);
412. see also Eileen A. Scallen, Analyzing "The Politics of [Evidence] Rulemaking," 53 HASTINGS L.J. 843, 856 (2002) (recounting the opposition of the Judicial Conference to FED. R. EVID. 413-415).
413. Because rape and other sexual offenses are predominantly state crimes, Rules 413-414 apply almost exclusively in military federal cases and in Indian Country. Orenstein, supra note 142, at 1490.
414. See infra note 301 and accompanying text.
415. The Court can do so by imposing strict interpretation on the admissibility conditions set by those rules, as well as by encouraging federal courts to exclude prior misconduct evidence under FED. R. EVID. 403.
416. See Thomas J. Reed, Reading Gaol Revisited: Admission of Uncharged Misconduct Evidence in Sex Offender Cases, 21 AM. J. CRIM. L. 127, 188 (1993) (attesting that many states admit "lustful disposition" evidence).
417. See, e.g., Mikell v. State, 637 S.E.2d 142, 146-47 (Ga. Ct. App. 2006) (affirming admission of evidence of defendant's uncharged sexual activities with a minor during 1994-97 to prove child molestation in 2003).
418. See, e.g., Cook v. State, 625 S.E.2d 83, 89 (Ga. Ct. App. 2005) (affirming admission of evidence of defendant's unwelcome fondling of a sixteen-year old girl to prove molestation of a six-year-old girl);
419. Brown v. State, 620 S.E.2d 394, 398 (Ga. Ct. App. 2005) (affirming admission of evidence of defendant's uninvited homosexual fondling of a twenty-nine-year-old man to prove his lustful disposition towards young boys);
420. Beck v. State, 587 S.E.2d 316, 319-20 (Ga. Ct. App. 2003) (affirming admission of evidence of defendant's "deviant" sexual act with his wife to prove his lustful disposition towards performance of similar acts with his young stepdaughters);
421. Hall v. State, 419 S.E.2d 503, 504-05 (Ga. Ct. App. 1992) (affirming admission of evidence of defendant's intercourse with his younger sister to prove his lustful disposition towards sexually fondling and rubbing his daughter fifteen years later).
422. See Simpson v. State, 523 S.E.2d 320, 321-22 (Ga. 1999) (holding that sexual paraphernalia are admissible to establish "lustful disposition" only in exceptional cases).
423. For an unsuccessful attempt by a Missouri defendant, see State v. Lachterman, 812 S.W.2d 759, 768-69 (Mo. Ct. App. 1991), cert, denied, 503 U.S. 983 (1992), in which the court upheld the admission of prior sodomies with young boys and possession of child pornography as evidencing defendant's "depraved sexual instinct" in a new sodomy trial.
424. See Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991).
425. See Garland v. State, 325 S.E.2d 131, 133 (Ga. 1985) (reaffirming the requirement that guilt be established beyond a reasonable doubt).
426. Richard v. State, 637 S.E.2d 406, 409 (Ga. 2006).
427. See Tom Lininger, Prosecuting Batterers After Crawford, 91 VA. L. REV. 747, 771-73 (2005) (demonstrating that expansion of the confrontation right makes prosecutors more likely to drop charges when a vulnerable victim of the crime recants or refuses to cooperate).
428. See, e.g., Blankenship v. Gen. Motors Corp., 406 S.E.2d 781, 787 n.11 (W. Va. 1991) (acknowledging the presence of this incentive).
429. See, e.g., BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 563-65 (1996) (documenting an Alabama court's award of punitive damages in the amount of $4,000,000 to a doctor from Birmingham who purchased a new BMW sports sedan without being told that it was repainted following acid rain).
430. For analysis of these statutes and their implications, see Catherine M. Sharkey, Punitive Damages as Societal Damages, 113 YALE L.J. 347, 375-80, 414-22 (2003).
431. See Gore, 517 U.S. at 574-86 (voiding a punitive damage award for being excessive and determining guideposts for assessing punitive damages under the Due Process Clause).
432. See id.;
433. see also State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416-18 (2003).
434. Gore, 517 U.S. at 575-86.
435. Id. at 581 (holding that few awards exceeding a single-digit ratio between punitive and compensatory damages satisfy due process).
436. Blankenship v. Gen. Motors Corp., 406 S.E.2d 781, 786-87 (W. Va. 1991).
437. Id. at 786.
438. Presently, this rule only applies in criminal cases. See supra notes 121-142 and accompanying text.
439. See ARIEL PORAT & ALEX STEIN, TORT LIABILITY UNDER UNCERTAINTY 81-83 (2001) (observing that such inferences may be justified, but preferring the partial-compensation approach).
440. See Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991).
441. The West Virginia Supreme Court signaled that it would make a different rule if "responsible leadership in a federal structure" could secure an "explicit and binding coordination" between states. Blankenship, 406 S.E.2d at 786 n.10. This signaling is far from accidental.
442. I thank Bruce Ackerman for drawing my attention to this phenomenon.
443. See Bruce Ackerman, The Living Constitution, 120 HARV. L. REV. 1737, 1805 (2007) (rationalizing courts' applications of constitutional principles as organizing a dialogue between generations and setting a system of sustained deliberation that protects society's achievements from transient desires for change and populist temptations);
444. see also Barry Friedman, Dialogue and Judicial Review, 91 MICH. L. REV. 577, 653-58 (1993) (developing a constitutional dialogue model for multiple political actors).
445. Such rules also may be enacted, but courts ultimately would interpret them and determine their constitutionality.
446. See, e.g., State v. Skipper, 637 A.2d 1101, 1108 (Conn. 1994) (holding that an inculpating genetic pattern that only one out of 3,497 people could have cannot establish alone the defendant's guilt beyond all reasonable doubt);
447. Commonwealth v. Rocha, 784 N.E.2d 651, 658 n.13 (Mass. Ct. App. 2003) (holding DNA evidence sufficient for defendant's conviction because case-specific evidence unequivocally identified him as one of two possible perpetrators of the crime);
448. Griffith v. State, 976 S.W.2d 241, 249 (Tex. App. 1998) (holding DNA evidence sufficient for defendant's conviction because case-specific evidence singled him out as a prime suspect).
449. See, e.g., Skipper, 637 A.2d at 1103-04 & n.9.
450. See STEIN, supra note 8, at 86-88, 204 (arguing that statistical evidence alone is insufficient to convict a defendant, no matter how statistically probable the accusations may be). A DNA match becomes case specific only when it practically eliminates all suspects other than the defendant.
451. See David H. Kaye & Michael E. Smith, DNA Identification Databases: Legality, Legitimacy, and the Case for Population-Wide Coverage, 2003 WIS. L. REV. 413, 438 (calling for a population-wide amassment of DNA samples as a means for easy apprehension of repeat offenders and minimization of the risk of erroneous conviction).
452. Cf. Boaz Sangero, Miranda is Not Enough: A New Justification for Demanding "Strong Corroboration" to a Confession, 28 CARDOZO L. REV. 2791 (2007) (advocating heightening of corroboration requirements for confessions).
453. State v. Di Frisco, 571 A.2d 914, 928 (N.J. 1990). For a recent application of this requirement
454. see State v. Reddish, 859 A.2d 1173, 1211-15 (N.J. 2004).
455. Di Frisco, 571 A.2d at 924.
456. Id. at 926-27 (invoking the principles of due process);
457. see also id. at 936 (Handler, J., concurring in part and dissenting in part) (stating that finding a defendant eligible for capital punishment on his uncorroborated confession "insults the values inherent in fundamental fairness and the constitutional protections that assure due process").
458. Id. at 928 (majority opinion).
459. See, e.g., Littlejohn v. State, 989 P.2d 901, 911 (Okla. Crim. App. 1998) (holding in a murder case that a defendant's confession had no corroboration and that its admission therefore violated due process).
460. See State v. Housler, 193 S.W.3d 476, 490 (Tenn. 2006) ("Due Process is violated when the jury convicts on the basis of the defendant's confession absent corroborating evidence of the corpus delicti."
461. (citing State v. Smith, 24 S.W.3d 274, 281 (Tenn. 2000))).
462. Wong Sun v. United States, 371 U.S. 471, 488-90 (1963);
463. Smith v. United States, 348 U.S. 147, 152-53 (1954);
464. Opper v. United States, 348 U.S. 84, 89-90 (1954);
465. United States v. Deville, 278 F.3d 500, 506-07 (5th Cir. 2002).
466. See United States v. Bukowski, 435 F.2d 1094, 1106 n.7 (7th Cir. 1970) ("[I]t is not clear whether [the corroboration requirement for confessions] need be treated as a feature of 'Due Process.' ").
467. See TORCIA, supro note 144.
468. In re Mitchell P., 587 P.2d 1144, 1146 (Cal. 1978);
469. see also People v. Felton, 18 Cal. Rptr. 3d 626, 637 (Cal. Ct. App. 2004) ("[T]he corroboration requirement [for accomplice testimony] is a matter of state law, not due process.").
470. See Watson v. Howard, 123 F. App'x 910, 917 (10th Cir. 2005) ("Federal law does not require independent corroboration of accomplice testimony ....");
471. DuBois v. Lockhart, 859 F.2d 1314, 1317 (8th Cir. 1988) (holding that a rational factfinder can find a defendant guilty beyond a reasonable doubt without additional evidence to corroborate an accomplice's testimony).
472. See United States v. Augenblick, 393 U.S. 348, 352 (1969) (holding that corroboration requirements for accomplice testimony "do not customarily involve constitutional questions").
473. E.g., State v. Pecor, 972 P.2d 737, 745 (Idaho Ct. App. 1998).
474. See McNabb v. United States, 318 U.S. 332, 340-47 (1943) (holding that a prolonged detention constitutes pressure rendering the defendant's confession involuntary and, consequently, inadmissible, and asserting that the Supreme Court's supervisory power under U.S. CONST, art. III, § 1 makes it mandatory for federal courts to follow this holding);
475. Johnson v. United States, 318 U.S. 189, 198-99 (1943) (holding that, independent of the Fifth Amendment, a prosecutor cannot comment on the defendant's failure to testify, and asserting that the Supreme Court's supervisory power under U.S. CONST, art. III, § 1 makes it mandatory for federal courts to follow this holding).
476. But see Amy Coney Barrett, The Supervisory Power of the Supreme Court, 106 COLUM. L. REV. 324 (2006) (carrying out a comprehensive study of the constitutional history of U.S. CONST, art. III, § 1, demonstrating that the Supreme Court over-interpreted its "supremacy" functions).
477. 28 U.S.C. §§ 2071-77 (2000).
478. Id. § 2072(a).
479. See Edward W. Cleary, Preliminary Notes on Reading the Rules of Evidence, 57 NEB. L. REV. 908, 913 (1978) (outlining the promulgation of the Federal Rules of Evidence by the Supreme Court as delegate of the congressional rulemaking authority). Professor Cleary served as Reporter to the Advisory Committee for the Federal Rules of Evidence.
480. 28 U.S.C. § 2074. Before the enactment of the Judicial Improvements and Access to Justice Act of 1988, Pub. L. No. 100-702, 102 Stat. 4642, Congress's power to modify federal rules of evidence existed in a different format in 28 U.S.C. § 2072.
481. Act of Jan. 2, 1975, Pub. L. No. 93-595, 88 Stat. 1926.
482. The most significant of those amendments is the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 320935(a), 108 Stat. 1796, 2135-37, that enacted FED. R. EVID. 413-15.
483. 126 S. Ct. 2709, 2729-37 (2006).
484. State v. Mott, 931 P.2d 1046, 1051, 1054 (Ariz. 1997) (en banc).
485. Clark, 126 S. Ct. at 2724-26.
486. Id. at 2743-49 (Kennedy J., dissenting)
487. Id. at 2746.
488. See STEIN, supra note 8, at 197 (arguing on moral grounds in favor of broad admissibility of defense expert evidence).
489. Clark, 126 S. Ct. at 2725 n.30.
490. FED. R. EVID. 704(b).
491. Federal Rules of Evidence have had a tremendous success in that role. They have been adopted by all states except California, Georgia, Illinois, Massachusetts, Missouri, New York, Kansas, and Virginia. In addition to the District of Columbia, forty-two jurisdictions follow these rules. See 21 WRIGHT & GRAHAM, supra note 254, § 5009.
492. See Daniel J. Capra, Amending the Hearsay Exception for Declarations Against Penal Interest in the Wake of Crawford, 105 COLUM. L. REV. 2409, 2431-34 (2005) (attestation by the Committee's Reporter).
493. Id. at 2433.
494. CAL. EVID. CODE § 1108(a) (West 2003) (providing that, subject to a court's general discretion to exclude preponderantly prejudicial evidence, "in a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible" by the general rule against propensity evidence).
495. 986 P.2d 182, 187-93 (Cal. 1999).
496. Id.
497. See FED. R. EVID. 414(a) (requiring similarity between categories of victims).
498. FED. R. EVID. 413(a) and 414(a) allow past sexual misconduct to be "considered for its bearing on any matter to which it is relevant."
499. The court reasoned that past sexual misconduct is "at least circumstantially relevant" in every trial involving a sex crime. Falsetta, 986 P.2d at 188-89.
500. See People v. Brandon, 785 N.Y.S.2d 286, 287-88 (N.Y. Crim. Ct. 2004).
501. Id. at 289.
502. Id. at 291.
503. Id. at 288-89.
504. FED. R. EVID. 606(b).
505. Brandon, 785 N.Y.S.2d at 288.
506. Tanner v. United States, 483 U.S. 107, 125 (1987).
507. See People v. Brown, 399 N.E.2d 51, 53 (N.Y. 1979) (reaffirming a broad "improper influence" standard for vacating the jury verdict in a criminal case).
508. See id. at 52-54 (holding that a juror's contrived experimentation in front of other jurors in a robbery trial to affirm that a police witness could see the face of the driver of the getaway car qualified as "improper influence").
509. See Tanner, 483 U.S. at 117-26 (affirming the fairness and practicality of the rule that recognizes only an external, as opposed to an internal, influence on the jury as a reason for vacating verdicts);
510. see also id. at 127 (justifying this differentiation by "long-recognized and very substantial concerns" that "support the protection of jury deliberations from intrusive inquiry").