Three New Articles of Interest: Importance of 911 Call Evidence; Atomism and Holism in the Evidence Rules; and a Call for More Inquisitorialism

“Promising Protection: 911 Call Records as Foundationfor Family Violence Intervention” 

JAMES G. DWYER (William & Mary)

Kentucky Law Journal, Forthcoming

“Atomism, Holism, and the Judicial Assessment ofEvidence” 

JENNIFER MNOOKIN (UCLA)

60 UCLA Law Review 1524 (2013)

“Lessons from Inquisitorialism” 

CHRISTOPHER SLOBOGIN (Vanderbilt)

Southern California Law Review, Forthcoming

Abstracts Below theFold

“Promising Protection: 911 Call Records as Foundationfor Family Violence Intervention” 

The usefulness of 911 call records in domestic violencesituations is under-appreciated. This Article documents an extraordinaryincrease in prosecutorial success in routine misdemeanor DV cases when 911 callrecords are available and used in some fashion. It also explains how otherparties could effectively use 911 event chronologies and sound recordings tostop domestic violence and protect children from being exposed to it, includingchild protection agencies, victims themselves, and children’s other familymembers.

“Atomism, Holism, and the Judicial Assessment ofEvidence” 

How should judges go about assessing the admissibility ofevidence? In this Article, I explore a key and underexamined issue withinevidence law: the interpretive tension between atomism and holism. Shouldjudges assess the admissibility of an item of evidence atomistically — piece bypiece, and by itself? Or should they engage in a more holistic, synthetic, andrelational inquiry? I argue that there is not, and cannot be, any simple answerto this question, because judicial atomism versus holism turns out to implicatetwo further important tensions within our bifurcated trial system: the balanceof power between the judge and the attorney, on the one hand, and between thejudge and the jury, on the other. Moreover, the relation between these multipleissues turns out to depend significantly on whether the evidentiary assessmentat issue is what I term a low-threshold evidentiary determination, tilted infavor of admissibility (like relevance, or Rule 403), or, instead, ahigh-threshold determination (like the assessment of expert evidence). ThisArticle explores both an array of evidence doctrines and the extent to whichthey provide guidance to judges vis-à-vis atomism versus holism, and then looksin detail at how atomism versus holism operates in both low-threshold andhigh-threshold circumstances.

 “Lessons fromInquisitorialism” 

The adversarial system as it is implemented in the UnitedStates is a significant cause of wrongful convictions, wrongful acquittals and“wrongful” sentences. Empirical evidence suggests that a hybrid inquisitorialregime would be better than the American-style adversarial system at reducingthese erroneous results. This paper proposes the integration of threeinquisitorial mechanisms into the American trial process — judicial controlover the adjudication process, non-adversarial treatment of experts, andrequired unsworn testimony by the defendant — and defends the proposals againstconstitutional and practical challenges. While other scholars have suggestedborrowing from overseas, these three proposals have yet to be presented as apackage. Together they could measurably enhance the accuracy of the Americancriminal justice system.

– JB