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The past year's developments in the law of evidence have been characterized by a hardening attitude toward criminal defendants. The United States Supreme Court's evidentiary rulings during the term covered by the Second Circuit Review (1971-72) manifested this trend (although not uniformly). For example, police stop-and-frisk authority was broadened (and with it the use of evidence obtained therefrom); the scope of the immunity from criminal prosecution required to be granted by a governmental body before self-incriminatory statements can be compelled from a witness was narrowed; the right to have counsel at line-ups was limited to postindictment or post-charge line-ups (with a consequent broadening of the use of counselless identification evidence); the preliminary burden of proof on the government to initially prove the voluntariness of confessions was fixed at "preponderance of the evidence" rather than "beyond a reasonable doubt"; and the "harmlessness" of evidentiary constitutional error was made easier to find. Taken together with the possibility of the implementation of non-unanimous verdicts in criminal cases, also approved as constitutional by the Supreme Court during the term, these developments will have far-reaching effects.

Publication Citation

39 Brook. L. Rev. 1121-1127 (1973)