Clarifying the Curative Admissibility Doctrine: Using the Principles of Forfeiture and Deterrence to Shape the Relief for an Opponent's Evidentiary Misconduct
22 Pages Posted: 14 Feb 2007
The purpose of this article is to redefine the scope of the curative admissibility doctrine. To do so, the article relies on two basic principles: forfeiture drawn from criminal procedure jurisprudence and deterrence borrowed from legal ethics. The first part of the article presents the policy proposal for invoking those two principles to reshape curative admissibility. The second part of the article demonstrates that this proposal can be implemented without amending the Federal Rules of Evidence. At first blush, some might question the propriety of using an evidentiary doctrine to deter legal ethics violations; but on closer scrutiny, in this narrow context pressing evidentiary doctrine into the service of legal ethics is perfectly legitimate. This use of evidentiary doctrine to enforce legal ethical norms might appear to be at odds with Federal Rule 402's general mandate that all logically relevant evidence be admitted. However, Rule 402 must be construed in light of Rule 102. The courts have rarely interpreted Rule 102, but this article argues that Rule 102 ought to be construed as authorizing the proposed version of the curative admissibility doctrine.
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