Curriculum Vitae

Robert P. Mosteller

Telephone (919) 613-7092
Facsimile (919) 613-7231
Internet mosteller@law.duke.edu
Home phone (919) 942-7291

Personal Information

  • Born May 25, 1948, Vale, North Carolina
  • Married to S. Elizabeth Gibson (law professor at UNC Law School)
    Two Adult Children -- Daniel and Benjamin
  • Address: 1506 Michaux Road
    Chapel Hill, N.C. 27514

Present Position:

  • Harry R. Chadwick, Sr. Professor of Law, Duke University Law School,
    Durham, N.C.
    • Associate Professor 1983-87
    • Professor since 1987
    • Senior Associate Dean for Academic Affairs 1989-1991
  • Chair of Duke University Academic Council 1998-2000
  • Wayne Morse Chair of Law and Politics, University of Oregon, fall 2002

Previous Employment:

  • Public Defender Service, Washington, D.C.
    • Chief of Trial Division 1982-83
    • Director of Training 1980-82
    • Staff Attorney 1976-82
  • Law clerk for J. Braxton Craven, Jr., United States Court of Appeals for the Fourth Circuit 1975-76

Education:

  • B.A. (History), University of North Carolina at Chapel Hill 1970
    • President of Phi Beta Kappa
    • Frank Porter Graham Award
    • Attorney General for the Student Body
    • Order of Golden Fleece, Order of Holy Grail
  • J.D., Yale Law School 1975
  • Masters in Public Policy, Kennedy School of Government, Harvard University 1975

Articles

  • Exculpatory Evidence, Ethics, and the Road to the Disbarment of Mike Nifong: The Critical Importance of Full Open-File Discovery, 15 Geo. Mason L. Rev. 257 (2008).
  • The Duke Lacrosse Case, Innocence, and False Identifications: A Fundamental Failure to "Do Justice," 76 Fordham L. Rev. 1337 (2007).
  • Testing the Testimonial Concept and Exceptions to Confrontation: “A Little Child Shall Lead Them, ” 82 Ind. L.J. 917 (2007).
  • Softening of the Formality and Formalism of the “Testimonial” Statement Concept, 19 Regent U. L. Rev. 429 (2007).
  • Confrontation as Constitutional Criminal Procedure: Crawford’s Birth Did not Require that Roberts and Wright had to Die, 15. J. L. & Pol’y 685 (2007).
  • Police Deception Before Miranda Warnings: The Case for Per Se Exclusion of an Entirely Unjustified Practice at a Particularly Sensitive Moment, 39 Tex. Tech L. Rev. 1239 (2007).
  • Finding the Golden Mean with Daubert: An Elusive, Perhaps an Impossible, Goal, 52 Vill. L. Rev. 723 (2007).
  • Davis v. Washington and Hammon v. Indiana:Beating Expectations, 105 Mich. L. Rev. First Impressions 6 (2006), http://students.law.umich.edu/mlr/firstimpressions/vol105/mosteller.pdf.
  • Evidence History and Rumblings in the Future of Proof, 3 Ohio St. J. Crim. L. 523 (2006).
  • Crawford’s Impact on Hearsay Statements in Domestic Violence and Child Sexual Abuse Cases, 71 Brook. L. Rev. 411 (2005).
  • “Testimonial” and the Formalistic Definition—the Case for an “Accusatorial” Fix, 20 Crim. Just. 14 (Summer 2005).
  • Encouraging and Ensuring the Confrontation of Witnesses, 39 U. Richmond L. Rev. 511 (2005).
  • The Confrontation Clause Radically Redefined by Crawford v. Washington, at 6, N.C. Bar J. (Winter 2004).
  • Admissibility of Fruits of Breached Evidentiary Privileges: The Importance of Adversarial Fairness, Party Culpability, and Fear of Immunity, 81 Wash. U. L.Q. 961 (2003).
  • New Dimensions in Sentencing Reform in the Twenty-First Century, 82 Or. L. Rev. 1 (2003).
  • Victim Impact Statements: Hard to Find the Real Rules, 88 Cornell L. Rev. 543 (2003).
  • The Maturation and Disintegration of the Hearsay Exception for Statements for Medical Examination in Child Sexual Abuse Cases, 65 Law & Contemp. Probs., Winter 2002, at 47
  • Cowboy Prosecutors and Subpoenas for Incriminating Evidence: The Consequence and Correction of Excess, 58 Wash. & Lee L. Rev. 487 (2001).
  • With Disdain for the Constitutional Craft: The Proposed Victims’ Rights Amendment (co-authored with H. Jefferson Powell), 78 N.C. L. Rev. 371 (2000).
  • The Unnecessary Victims’ Rights Amendment, 1999 Utah L. Rev. 443
  • Victims’ Rights and the Constitution: Moving from Guaranteeing Participatory Rights to Benefiting the Prosecution, 29 St. Mary’s L.J. 1053 (1998).
  • Moderating Investigative Lies by Disclosure and Documentation, 76 Or. L. Rev. 833 (1997).
  • Victims’ Rights and the United States Constitution: An Effort to Recast the Battle in Criminal Litigation, 85 Geo. L.J. 1691 (1997).
  • Syndromes and Politics in Criminal Trials and Evidence Law, 46 Duke L.J. 461 (1996).
  • Popular Justice, 109 Harv. L. Rev. 487 (1995) (reviewing George P. Fletcher, With Justice for Some: Victims’ Rights in Criminal Trials (1995)).
  • Commentary, Interpretation of Federal Rule 801, Symposium on Hearsay and Implied Assertions: How Would (or Should) the Supreme Court Decide the Kearley Case?, 16 Miss. C. L. Rev. 21 (1995).
  • Remaking Confrontation Clause and Hearsay Doctrine Under the Challenge of Child Sexual Abuse Prosecutions, 1993 Ill. L. Rev. 691
  • The Effect of Victim-Impact Evidence on the Defense, 8 Criminal Justice, Spring 1993, at 24
  • Child Abuse Reporting Laws and Attorney-Client Confidences: The Reality and the Specter of Lawyer as Informant, 42 Duke L. Rev. 203 (1992).
  • Legal Doctrines Governing the Admissibility of Expert Testimony Concerning Social Framework Evidence, 52 Law & Contemp. Probs., Autumn 1989, at 85
  • Child Sexual Abuse and Statements for the Purpose of Medical Diagnosis or Treatment, 67 N.C. L. Rev. 257 (1989).
  • Simplifying Subpoena Law: Taking the Fifth Amendment Seriously, 73 Va. L. Rev. 1 (1987).
  • Discovery Against the Defense: Tilting the Adversarial Balance, 74 Calif. L. Rev. 1567 (1986).

Books

  • McCormick on Evidence (6th ed. 2006) (with Broun et al.).
  • Cases and Materials on Evidence (7th ed. 2007) (with Broun & Giannelli).
  • North Carolina Evidentiary Foundations (2d ed. 2006) (with Imwinkelried, Beskind, Eagles & Ross) (w/2008 Supplement).
  • Problems in Evidence (4th ed. 2001) (with Broun and Bilionis).

Book Segments

  • The U.S. Perspective on the Judicial Role in Sentencing: A Story of Small Victories and a Call for Partial Solutions in a Difficult Environment, in The Judicial Role in Criminal Proceedings (S. Doran & J. Jackson eds. 2000).
  • The Uses and Abuses of Syndrome and “Group Character” Evidence in American Criminal Trials, in Proceedings of the First World Conference on New Trends in Criminal Investigation and Evidence 193 (J.F. Nijboer & Reijntjes eds. 1997).

Encyclopedia Entries

  • “Victims’ Rights,” Encyclopedia of American Civil Liberties (forthcoming 2006).
  • “Discovery in Criminal Cases,” Encyclopedia of Crime and Justice (2002).
  • “Victims’ Rights,” Encyclopedia of Crime and Justice (2002).
  • “Double Jeopardy,” Encyclopedia of American Constitutional Law (Supplement 1991).
  • “Speedy Trial,” Encyclopedia of American Constitutional Law (Supplement 1991).

Reporter

  • Mandatory Justice: Eighteen Reforms to the Death Penalty, The Constitution Project, Death Penalty Initiative (2001) (co-reporters with Susan Bandes and Stephen Saltzburg).

Courses Taught

  • Evidence
  • Criminal Procedure-Police
  • Death Penalty Clinic
  • Advanced Evidence Issues in Criminal Cases with Children as Victims and Witnesses
  • Criminal Law
  • Criminal Litigation Clinic
  • Trial Practice

Selected Activities

  • Presenter at Citizen Ignorance, Police Deception, and the Constitution, Texas Tech Law School, Lubbock, Texas, April 6, 2007
  • Presenter at the Section on Evidence Program, “Children and Evidence Law: Special Rules of Competence, Hearsay and Confrontation, Association of American Law Schools Annual Meeting, Washington D.C., January 4, 2007.
  • Presenter at Expertise in the Courtroom: Scientists and Wizards, Villanova Law School, Villanova, Pennsylvania, October 21, 2006.
  • Presenter at Crawford, Davis and The Right of Confrontation: Where do We Go from Here, Regent Law School, Virginia Beach, Virginia, October 14, 2006.
  • Presenter at Crawford and Beyond, Brooklyn Law School, Brooklyn, New York, September 29, 2006.
  • Keynote Speaker on the Future of Evidence Law and Crawford at Ohio Judicial Conference, Columbus Ohio, Sept. 15, 2005.
  • Commentator at Symposium: “Crawford and Beyond,” Brooklyn Law School, Brooklyn, N.Y., Feb. 18, 2005.
  • Presentation on “The Confrontation Clause Radically, but Incompletely, Redefined by Crawford v. Washington at North Carolina Criminal Evidence Seminar, UNC-Chapel Hill, May 21, 2004.
  • Public Lecture: “New Dimensions of Sentencing Reform in the Twenty-first Century,” University of Oregon Law School, Eugene, Oregon, October 29, 2002.
  • Presentation on Hot Topics in the Law of Evidence: Privileges, AALS Conference on Evidence, June 4, 2002, Alexandria, Virginia.
  • Presentation on Use of Information by Experts at Festival of Legal Learning, UNC Law School, Chapel Hill, N.C., February 8, 2002.
  • Presentation to Faculty Workshop on recommendations for, and the status of, death penalty reform, UNC Law School, Chapel Hill, N.C., September 14, 2001.
  • News Conference participant announcing recommendations to help avoid unjust executions, proposed by the Death Penalty Initiative of The Constitution Project, Dirksen Building, Washington, D.C., June 27, 2001.
  • Moderator and Organizer of Joint Program of Evidence and Criminal Justice Sections, “What Have We Learned About Children as Victims and Witnesses in Criminal Trials?,” Association of American Law Schools Annual Meeting, January 4, 2001, San Francisco, CA.
  • Testimony before the Subcommittee on the Constitution, House Judiciary Committee in Opposition to House Joint Resolution 64 Proposing a Victims’ Rights Amendment to the United States Constitution, Rayburn Building, Washington, D.C., February 10, 2000.
  • Dynamic Trial Practice Program with Professor Ed Imwinkelried, North Carolina Bar Association, Cary, N.C., October 15, 1999.
  • Presentation on Hearsay and Opinion Evidence at North Carolina Conference of Superior Court Judges, Greensboro, N.C., November 13, 1998.
  • Presentation on North Carolina Evidentiary Foundations at North Carolina Association of Public Defenders, Boone, N.C., October 29, 1998; North Carolina Academy of Trial Lawyers Program on Practical Evidence, Raleigh, N.C., September 25, 1998.
  • Presentation to the Faculty of the Washington and Lee College of Law on the proposed Victims’ Rights Amendment, Lexington, Virginia, October 12, 1998.
  • Team Leader and Presenter on DEBATES/DEBATES, a program aired on PBS during October 1998. The topic of the debate was “Should we have a Victim’s Rights Amendment?” New York, N.Y., October 6, 1998.
  • Presentation on the Unnecessary Victims’ Rights Amendment at Symposium on Crime Victims’ Rights, University of Utah Law School, Salt Lake City, Utah, September 17, 1998.
  • Presentation on “Syndrome and ‘Group Character’ Evidence in Criminal Trials” at 1998 Judging Science Program, Private Adjudication Center, Duke Law School, Durham, N.C., May 29, 1998.
  • Presentation on “Syndromes and Politics in Criminal Trials and Evidence Law” at 1998 Judicial Conference of the United States Court of Appeals for the Armed Forces, Marvin Center, George Washington University Law School, Washington, D.C., May 7, 1998.
  • Testimony before the Senate Judiciary Committee in Opposition to Senate Joint Resolution 44, Proposing a Victims’ Rights Amendment to the United States Constitution, Dirksen Building, Washington, D.C., April 28, 1998.
  • Speaker on “The American Perspective on the Judicial Role in Sentencing” at The Judicial Role in Criminal Proceedings: An International Conference, Belfast, Northern Ireland, April 18, 1998.
  • Speaker on “Movement of Victim’s Rights from Participatory Rights to Benefiting the Prosecution” at Symposium on The Death Penalty: 25 Years After Furman v. Georgia, St. Mary’s Law School, San Antonio, Texas, March 6, 1998.
  • Presentation on “The Proposed Victims’ Rights Amendment -- The New Goliath” at 18 Annual Capital Punishment Training Conference, Airlie Conference Center, Warrenton, Va., August 2, 1997.
  • Presentation to Faculty Workshop, Proposed Victims’ Rights Amendment, UNC Law School, Chapel Hill, N.C., March 17, 1997.
  • Presentation on “Syndromes and Politics in Evidence Law and Criminal Litigation” at AALS Workshop on Evidence: New Perspectives on Scientific and Character Evidence, Washington, D.C., October 26, 1996.
  • Presentations on “Syndrome and ‘Group Character’ Evidence in Criminal Trials” at Texas Criminal Justice Conference, Dallas, Texas, May 16, 1996.
  • Presentation on “Uses of Syndrome and Group Character Evidence in American Criminal Trials” at First World Conference on New Trends in Criminal Investigation and Evidence, The Hague, Netherlands, December 3, 1995.
  • Discussant, “Pre-Trial Publicity in the Information Age,” Dedication Celebration, Duke Law School, Durham, N.C., April, 7, 1995.
  • Presentation on “Preparation and Presentation of an Expert Witness” at North Carolina Academy of Trial Lawyers Conference on Death Penalty Litigation, Greensboro, N.C., September 23, 1994.
  • Presentation on “Ethical Requirements of Child Abuse Report and Representation of Child Victims” to North Carolina Guardian Ad Litem Training Seminar, Administrative Office of the North Carolina Courts, Chapel Hill, N.C. on October 8, 1993 and Raleigh, N.C. on December 3, 1993.
  • Presentation on “Child Hearsay” at Sixth Annual North Carolina Criminal Evidence Seminar, UNC-Chapel Hill, April 16, 1993.
  • Presentation on “The American Experience in Child Sexual Abuse Litigation: Major Innovations that Pose Fundamental Challenges to Hearsay and Constitutional Doctrine” at Conference on Reform of Evidence, Society for the Reform of Criminal Law, Vancouver, British Columbia, August 6, 1992.
  • Presentation on “Victim Impact/Victim Worth Evidence” at North Carolina Academy of Trial Lawyer Conference on Death Penalty Litigation, Greensboro, N.C., September 11, 1992.
  • Presentation on “Psychiatric Evidence in Criminal Cases: The New (and not-New) Syndromes” at District of Columbia Judicial Conference, Washington, D.C., June 13, 1991.
  • Presentation on “Statements Made for Diagnosis or Treatment: Two Theories of Trustworthiness” at Second Annual Criminal Evidence Seminar, UNC-Chapel Hill, April 22, 1989.
  • Presentation on “Statements for the Purpose of Medical Diagnosis or Treatment” at North Carolina Academy of Trial Lawyers Practical Evidence Conference, Greensboro, N.C., November 18, 1988.

Membership on Boards and Commissions

  • President of the of Board of Center for Death Penalty Litigation, 1995-1998, 2002-2007 Member of Board, 1999-2000, 2001-02
  • Co-Report for Death Penalty Initiative, The Constitution Project, 2000-01
  • Member of North Carolina Judicial Education Study Committee, 2000-02
  • Chair, Evidence Section of the Association of American Law Schools, 2000, Chair-Elect, 1999; Secretary, 1998; Member of Executive Committee, 1996-2001
  • Reporter for Criminal Justice Committee of Commission for the Future of Justice and the Courts in North Carolina, 1995-96
  • Member of the Executive Committee of the Duke University Academic Council, 1996 to 1998; Vice Chair, 1997-98; Chair, 1998-2000
  • Member of Duke University’s President’s Advisory Committee on Resources (PACOR), Duke University, 1996-98; Ex Officio, 1998-2000; 2001 to present
  • Member of Planning Committee, AALS Evidence Workshop, Spring 1996
  • Member of Board of Directors of North Carolina Legal Assistance Foundation, 1992-98
  • Member of Board of Duke Private Adjudication Center, 1994-2000
  • Chair of Faculty Hearing Committee, Duke University, 1992-94; 2001 to present
  • Member of North Carolina General Statutes Commission, 1988-90

Pro Bono Litigation

  • Counsel of record in State v. Oliver, death penalty case in which a new sentencing hearing was ordered on defendant’s Motion for Appropriate Relief, April 4, 1994 and sentences of life imprisonment imposed on November 8, 2001.

Amicus Briefs

  • Howerton v. Arai Helmet, Ltd. et al, No. 383PA03 (N.C. Supreme Court 2003) (with Beskind, Twiggs & Trehy).
  • State v. Forrest, No. 270A04 (N.C. Supreme Court 2005) & on remand from the United States Supreme Court (N.C. Supreme Court 2006).

Bar Memberships

  • North Carolina
  • District of Columbia
  • United States Supreme Court
  • United States Court of Appeals for the Fourth Circuit
  • United States Court of Appeals for the D.C. Circuit
  • United States District Court for the District of Columbia