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NCJRS Abstract

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NCJ Number: 151713 Find in a Library
Title: Pre-trial Discovery Misconduct
Journal: Trial  Volume:30  Issue:9  Dated:(September 1994)  Pages:32-39
Author(s): E J Imwinkelried
Date Published: 1994
Page Count: 8
Type: Survey
Format: Article
Language: English
Country: United States of America
Annotation: This article argues that evidence of lawful conduct by a litigant and of an attorney's pretrial discovery misconduct should be admissible.
Abstract: In criminal cases, the courts often admit testimony regarding the defendant's pretrial misconduct, arguing that such misconduct proves the defendant's consciousness of guilt. In civil cases, however, the courts have been reluctant to invoke the admission-by-conduct doctrine against litigants. At trial, this author contends, a litigant should be allowed to treat the opposition's pretrial discovery obstructionism as an admission by conduct of their position in the litigation. In the short term, the courts will probably continue to uphold the advocate-witness prohibition. Yet support for the prohibition is eroding and there are growing doubts about the wisdom of using an evidentiary exclusionary rule to enforce it. The admission-by-conduct theory will help deter both clients and their attorneys from pretrial misconduct if that evidence becomes admissible in court. 48 notes
Main Term(s): Courts
Index Term(s): Advocate-witness rule; Lawsuits; Misconduct; Pretrial discovery; Professional conduct and ethics; Rules of evidence
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