Excited Utterance

Rethinking Evidentiary Rules in an Age of Bench Trials. Henry Wang from Indiana University and the China University of Political Science and Law discusses why the existing rules of evidence are inappropriate for bench trials, and what alternative evidentiary rules for bench trials might look like instead.

The Theoretical Foundations of Evidence Law. Tomer Kenneth from NYU School of Law discusses how legal systems should handle truth claims, and how those decisions are more about political legitimacy than mere objective accuracy.

#BelieveWomen and the Presumption of Innocence. Kim Ferzan from the University of Pennsylvania discusses efforts to respect and believe complainants raising sexual assault allegations, such as #BelieveWomen, and how they interact with the presumption of innocence and proof beyond a reasonable doubt.

The Modest Impact of the Modern Confrontation Clause. Diana Bibb from William & Mary Law School discusses her paper with Jeff Bellin exploring the intersection of hearsay and the modern Confrontation Clause, and suggesting that Crawford's impact may be far more limited that commonly thought.

The Truth Machines. Jinee Lokaneeta from Drew University discusses the modern rise of truth machines -- lie detectors, brain scans, and truth serums -- in the Indian criminal justice system.

Explaining the Evidence. Dave Lagnado from University College London discusses his new book, Explaining the Evidence, which talks about how people construct and use causal models to understand the world and make decisions. He also suggests how recent scholarship in causal modelling can help us improve our decisionmaking.

The Proof. Fred Schauer from the University of Virginia discusses his new book, The Proof, which discusses how evidence law and theory can help us make better decisions in everyday life.

Should Evidence Law Exclude Apologies? Jennifer Pusateri from George Washington University argues that the rules of evidence should exclude apologies on both policy and evidentiary grounds.

Lay Identifications Based on Surveillance Video. George Bach from the University of New Mexico discusses the use of lay witnesses to make identifications on surveillance videos.

Guiding Jurors on Damage Award Decisions. Valerie Hans from Cornell Law School discusses her recent psychological research on how the legal system might provide guidance to jurors assessing pain and suffering damages.

Cognitive Bias in Forensic Pathology Decisions. Itiel Dror from University College London shows that medical examiner decisions can be influenced by the non-medical information to which the experts are exposed, and argues for restrictions on the ways in which medical examiners use such information.

Fourteenth Amendment Confrontation. Evan Bernick from Northern Illinois University challenges the originalist arguments made by the Supreme Court in Crawford v. Washington and argues that an originalist perspective on the clause must take into account understandings of Confrontation at the time of the Reconstruction amendments.

Why Do We Admit Criminal Confessions into Evidence? David Crump from the University of Houston discusses the challenging issue of confessions and their place in evidence law.

Time to Abandon the Testimonial Oath. Ian Gallacher from Syracuse University takes a critical look at the familiar ritual of oathtaking and suggests that perhaps it is time to modernize the practice.

Meta-Evidence and Preliminary Injunctions. Maggie Wittlin from Fordham University discusses the applicability of the rules of evidence to preliminary injunction hearings and how the concept of "meta-evidence" might help us think about the kinds of evidence offered at pre-trial hearings more generally.

The Limits of Legitimate Contextual Interpretation in the Age of Statutes. Ed Imwinkelried from UC Davis School of Law  discusses the intersection of evidence law and interpretative methods as he argues in favor of a “moderate textualist” reading of the Federal Rules.

Autopsy of a Crime Lab. Brandon Garrett from Duke University discusses his new book, Autopsy of a Crime Lab, which reviews the problems in forensic science and attempts to carve a path forward for forensic science reform.

Confrontation in the Age of Plea Bargaining. Will Ortman from Wayne State University argues for a modern interpretation of the Confrontation Clause that would give defendants a right to criminal depositions and that would in turn promote more informed and accurate plea bargaining.

The Content of Our Characters. Teneille Brown from the University of Utah reformulates the character evidence rules in light of existing psychological and neuroscience research.

Zombie Forensics: The Polygraph in England and Wales. Kryiakos Kotsoglou from Northumbia Law School discusses the recent use of polygraph in the UK penal system outside of trial and its troubling ramifications.

Chancy Causation. Alexi Lahav from the University of Connecticut School of Law critiques the idea of but-for causation and discusses how the law should think about causation in contexts in which it can only be proven probabilistically.

99 Episodes of Excited Utterance. In celebration of the podcast's 100th episode, co-hosts Ed Cheng and Alex Nunn look back on 99 Episodes of Excited Utterance, share some funny anecdotes, and discuss trends in recent evidence scholarship.

Proof Discontinuities and Civil Settlements. Mark Spottswood from Florida State University discusses how different types of burdens of proof -- specifically discontinuous versus continuous ones -- might impact settlement behavior.

The Bite Mark Dentists and the Counterattack on Forensic Science Reform. Marvin Zalman from Wayne State University critiques a recent article defending bitemark evidence and discusses why forensic science reform proves to be so difficult.

Privacy as Privilege. Rebecca Wexler from the University of California Berkeley talks about the Stored Communications Act and how it blocks criminal defense subpoenas, effectively creating an unprecedented privilege for online communications.

Unmasking Demeanor. Julia Simon-Kerr from the University of Connecticut discusses the masking of witnesses in the courtroom during the COVID-19 pandemic and the implications masking might have on the Confrontation Clause and the way the legal system views the importance of demeanor.

Confronting Memory Loss. Paul Rothstein from Georgetown discusses the problems that a witness's memory loss presents for the Confrontation Clause, and the factors that a future Supreme Court might use to address this question.

The Evidence Rules that Convict the Innocent. Jeff Bellin from William & Mary uses the Innocent Movement that the wrongful convictions it has uncovered to re-evaluate the rules of evidence.

Psychological Assessments in Legal Contexts. Tess Neal from Arizona State University talks about the validity of psychological assessment tools and the willingness of attorneys and courts to scrutinize them.

The Incomplete Rule of Completeness. Louisa Heiny from the University of Utah talks about the tension between Federal Rule of Evidence 106 and the common law Rule of Completeness that it sought to replace.

Litigation Science After the Knowledge Crisis. Edith Beerdsen from NYU talks about the replicability crisis in science and how courts can use the lessons learned from it to improve scientific evidence.

Bad Character, Tragic Errors and Deep Ignorance. Liat Levanon from King's College London makes an ethical and aesthetic argument against the use of character evidence, suggesting that wrongful convictions of reformed defendants constitute acutely tragic errors.

Rape Accusations and the Preponderance of Evidence. Georgia Gardiner from the University of Tennessee talks about sexual misconduct allegations and discusses how the classic “he said, she said” scenario paradoxically should satisfy and SHOULD NOT satisfy the preponderance standard of proof.

Preferences for Criminal Justice Error Types. Yehonatan Givati discusses whether we all actually think it better for ten (or even one) guilty to go free than to convict one innocent, and why some of us might think differently.

Secret Conviction Programs. Meghan Ryan from SMU Dedman School of Law talks about convictions based on evidence analyzed or created by secret algorithms or computer programs unavailable in discovery.

Profile Evidence, Fairness and the Risks of Mistaken Convictions. Marcello DiBello from the City University of New York provides a new take on why profile evidence might be objectionable, focusing on the risk of false positives.

The Law & Politics of Cyberattack Attribution. Kristen Eichensehr from UCLA School of Law talks about the standards used to attribute cyberattacks.

Reputation vs. Opinion. Bobby Harges from Loyola University New Orleans considers Louisiana’s requirement that character evidence be presented through reputation only and not through opinion testimony.

Rape Shield Evidence and the Hierarchy of Impeachment. Rosanna Cavallaro from Suffolk University discusses how current Rape Shield jurisprudence inappropriately preferences certain types of impeachment over others.

Eyewitness Identifications and the Problematics of Blackstonian Reform of the Criminal Law. Larry Rosenthal from Chapman University challenges the idea of using prophylactic rules to prevent the admission of potentially unreliable eyewitness identification evidence.

Blind Testing: Lessons from Houston. Nicole Casarez from the University of St. Thomas describes the experience of the Houston Forensic Science Center in implementing blinding testing, and what its success might mean for the broader forensics community.

How Evidence of Subsequent Remedial Measures Matters. Bernard Chao looks into Rule 407’s bar on subsequent remedial measures (SRMs). What does evidence of SRMs do to a defendant’s case, and are jury instructions limiting the use of SRMs effective at stemming their prejudicial effects?

Brain-Based Memory Detection. Emily Murphy from the University of California, Hastings College of the Law discusses whether technologies for detecting brain activity can actually help verify witness memories and what implications these technologies might have for the law.

Naked Statistical Evidence and the Futility of Lawful Conduct. Christian Dahlman from Lund University in Sweden (with guest host Alex Nunn) offers an explanation of the so-called proof paradoxes based on incentives and causal direction.

Towards a Continuous Burden of Proof. Mark Spottswood considers replacing our traditional, dichotomous burden of proof based on thresholds with a continuous one that would award greater damages with greater factfinder certainty.

Going Ballistic. Binyamin Blum from the University of California at Hastings discusses the origins of ballistics identification under British colonialism in Egypt during the 1920s.

Experts in the Jury Room. Kristin Liska (Stanford) considers how the legal system should handle expert jurors who introduce untested specialized knowledge into the deliberation room.

Brain-Computer Interfaces and the Law. Jessica Haushalter (Vanderbilt) discusses her student note on brain scanning technology and the challenges it faces in the courtroom.

Problems with Juror Bias in Viewing Body-Camera Video Evidence. Morgan Birck (Michigan) talks about her student note arguing why police body camera footage is not living up to its potential in the courtroom.

Expanding Pena-Rodriguez to Protect Criminal Defendants from Explicit Gender Animus. Katie Hicks (University of Arkansas School of Law) joins the podcast to advocate in favor of expanding Pena-Rodriguez to combat gender-based animus.