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Publications

  • Evidentiary Irony and the Rule of Completeness: A Proposal to Amend Federal Rule of Evidence 106, 105 Minnesota Law Review 901 (2020) (with Richter).
  • Poetry in Motion: The Federal Rules of Evidence and Forward Progress as an Imperative, 99 Boston University Law Review 1873 (2019).
  • Character Assassination: Amending Federal Rule of Evidence 404(B) to Protect Criminal Defendants, 118 Columbia Law Review 768 (2018) (with Liesa L. Richter).
  • Rulemaking Possibilities: Efforts of the United States Judicial Conference Advisory Committee on Evidence Rules to Address the Challenges to Forensic Expert Testimony, 13 Frontiers of Law in China 1 (2018).
  • Foreword, Symposium on Forensic Expert Testimony, Daubert, and Rule 702, 86 Fordham Law Review 1459 (2018).
  • Expanding (or Just Fixing) the Residual Exception to the Hearsay Rule, 85 Fordham Law Review 1577 (2017).
  • Authenticating Digital Evidence, 69 Baylor L.Rev. 1 (2017).
  • Prior Statements of Testifying Witnesses: Drafting Choices to Eliminate or Loosen the Strictures of the Hearsay Rule, 84 Fordham Law Review 1429 (2016).
  • Autopsy Reports and the Confrontation Clause: A Presumption of Admissibility, 2 Virginia Journal of Criminal Law 62 (2014) (with Tartakovsky). (Modified version published in 99 Judicature 61 (2016).
  • Autopsy Reports and the Confrontation Clause: A Presumption of Admissibility, 99 Judicature 61 (2015) (with Tartakovsky).
  • Amicus Brief for Evidence Scholars, submitted to the Supreme Court in Arkansas Teachers v. Goldman Sachs (2021).
  • The Ancient Documents Exception and Electronically Stored Information: Fix it Before Someone Finds Out About It, 17 Yale J. Law & Tech. 1 (2015).
  • Symposium on the Challenges of Electronic Evidence, 83 Fordham L.Rev. 1163 (2014).
  • Hearsay Exception for Electronic Communications of Recent Perception, 83 Fordham Law Review 1337 (2014).
  • Why Strickland is the Wrong Test for Violations of the Right to Testify, 70 Washington & Lee L. Rev. 95 (2013) (with Tartakovsky).
  • Symposium on Reinvigorating the Federal Rules of Evidence, 81 Fordham L. Rev. 1533 (2013).
  • Symposium on Restyled Rule of Evidence, 53 William and Mary L. Rev. 1435, 1528-43 (2012).
  • The Restyled Federal Rules of Evidence, 2011 LexisNexis Emerging Issues 5875.
  • Expert Testimony and Confrontation: Bullcoming v. New Mexico, 2011 Lexis Emerging Issues 5495 (with Saltzburg).
  • Professional Responsibility: An Interactive Approach (1st ed. 2010) (Thomson West) (with Pearce and Green) (2nd ed. 2014).
  • Published many opinions as Special Master in In re Refco, including 2010 WL 1375946 and 2010 WL 1375712 (S.D.N.Y.).
  • Cases and Commentary on American Criminal Procedure (11th ed. 2014).
  • Cases and Materials on Electronic Discovery and Digital Evidence (3rd ed. West 2015) (with Scheindlin and the Sedona Conference) (first casebook in the field).
  • The Unrecognized Right of Criminal Defendants to Admit Their Own Pretrial Statements, 49 Wm. & Mary L. Rev. 1991 2008)(with Stephen A. Saltzburg).
  • "The Great Fourth Amendment Cases" (2009) (published by the Ford Foundation for Chinese judges, lawyers and scholars).
  • "Principles of Evidence" (8th ed. 2019) (with Graham Lilly and Stephen Saltzburg).
  • Published two opinions as Special Master on privilege and work product claims in In re New York Renu With Moistureloc Product Liability Litigation: 2009 WL 2842745, and  2008 WL 2338552.
  • Federal Rules of Evidence Manual (12th ed. 2019) with S. Saltzburg & M. Martin.
  • "Amending the Hearsay Exceptions for Declarations Against Penal Interest in the Wake of Crawford" 105 Columbia L. Rev. 2409 (2005).
  • "Melendez-Diaz and Admissibility of Records in Federal Court", published on lexis.com (2009).
  • "Electronic Discovery and Digital Evidence in a Nutshell" (2009) (with Scheindlin and the Sedona Conference).
  • "Trying Cases Relating to Terrorism: Judges' Roundtable," 77 Fordham L. Rev. 1 (2008) (with Judges Cooke, Sand, Rosen and Scheindlin).
  • “Federal Sentencing Under Advisory Guidelines: Observations By District Judges,” 75 Fordham L. Rev. 1 (2006)(with Lynn S. Adelman, Nancy Gertner, Richard G. Kopf, Gerard E. Lynch and Gregory A. Presnell).
  • "Getting Control of Waiver in the Federal Courts: A Proposal for a Federal Rule of Evidence 502" 58 South Carolina L. Rev. 211 (2006)(with Ken Broun).
  • Commentary to Third Circuit Judicial Conference Model Jury Instructions in Civil Cases (2006) (with Cathie Struve).
  • Case Law Divergence from the Federal Rules of Evidence, 197 F.R.D. 531 (2001).
  • "Keeping the Reformist Spirit Alive in Evidence Law," 149 U. Penn. L. Rev. 1277 (2001).
  • "Third Circuit Task Force Report on Selection of Counsel in Class Actions," 74 Temple L. Rev. 685 (2002).
  • "A Recipe for Confusion: Congress and the Federal Rules of Evidence," 55 U. Miami L. Rev. 691 (2001).
  • "Admissibility of Plea Agreements on Direct Examination: The Limits Vanish," 55 U. Miami L. Rev. 751 (2001).
  • "Out of Court Accusations Offered For 'Background': A Measured Response From the Federal Courts," 55 U. Miami L. Rev. 803 (2001).
  • "An Accident and a Dream": Problems With the Latest Attack on the Civil Justice System, 20 Pace L. Rev. 339 (2000). (Winner of ABOTA award as the year's best article on the civil justice system).
  • "The Daubert Puzzle," 32 Georgia Law Review 699 (1998).
  • Commentaries on Federal Rules of Evidence, United States Code Service (Two Volumes) (Lexis, 1999).
  • Basic Criminal Procedure (8th ed. 2017).
  • New York Evidence Handbook (3rd ed. 2017) with M. Martin.
  • West's Federal Rules of Evidence, 2011-2017.
  • Evidence: The Objection Method (6th ed. 2020).
  • Expert and Lay Witnesses (Aspen 2003).
  • Hearsay and Confrontation (Aspen 2002).
  • Columns on Evidence, New York Law Journal.
  • "Advisory Committee Notes to the Federal Rules of Evidence That May Require Clarification," 182 F.R.D. 268 (1998).