Judge Merritt cited my discussions in Section 7.1 and 15 of Wigmore on Evidence (P. Tillers rev. 1983). See id. pp. 731-751 (curative admissibility) and note 64 at p. 505 (due process). Judge Merritt said my discussion of curative admissibility was "long." I cannot quarrel with him about that. However, I note that he apparently took the trouble to read my lengthy discussion.
Sunday, July 18, 2010
For an interesting example of a situation in which the doctrine of curative admissibility (or a doctrine like it) should apply even though an opposing party did not introduce inadmissible evidence, see the opinion of Judge Merritt, concurring in part and dissenting in part, in United States v. Geisen, 08-3655, 612 F.3d 471 at 497-498 (6th Cir. July 15, 2010). (For a summary of his opinion go to this node in Spindle Law and sign in [for free].) Judge Merritt even suggests (quite correctly, I think) that the refusal of a trial court to allow a criminal defendant to introduce otherwise inadmissible evidence to rebut improper inferences that the jury is likely to make may constitute a denial of a criminal defendant's due process right to challenge adverse evidence.