Digital Commons Network^™

The Distortionary Effect Of Evidence On Primary Behavior, Alex Stein, Gideon Parchomovsky

Faculty Scholarship

No abstract provided.

Limits Of The Inevitable Discovery Doctrine In United States V. Young: The Intersection Of Private Security Guards, Hotel Guests, And The Fourth Amendment, Lauren Young Epstein

Golden Gate University Law Review

This Note analyzes the Young court’s opinion and the potential consequences of the majority’s cursory rejection of the government’s inevitable discovery argument. This Note also reconciles the differing applications of the inevitable discovery doctrine by the Young majority and dissent and highlights the speculative nature of employing the inevitable discovery doctrine based on the facts of Young. Part I of this Note presents the background of the case and the historical development of Fourth Amendment jurisprudence, focusing on the inevitable discovery doctrine as articulated by the Supreme Court in Nix v. Williams. Part II outlines the Young decision and analyzes …

When Facts Are Thin On The Ground, Julia Romasevych, Paul Antiss, Nancy Amoury Combs

Popular Media

Fact-finding at the international tribunals is not as precise as we think. Nancy Combs, Professor of Law at William and Mary Law School, explores this in her new book 'Fact-finding without facts: the uncertain evidentiary foundations of international criminal convictions'.

Evidence, Marc T. Treadwell

Mercer Law Review

I. INTRODUCTION

During the survey year from January 1, 2009 to December 31, 2009, the United States Court of Appeals for the Eleventh Circuit continued its recent trend of limiting the number of its published opinions, a trend discussed in more detail in a previous survey. This Survey will address several unpublished-yet noteworthy-decisions. However, readers should bear in mind Eleventh Circuit Rule 36-2, which provides that "[u~npublished opinions are not considered binding precedent, but they may be cited as persuasive authority." Also note that the court's internal operating procedures suggest an even more limited role for unpublished opinions:

The court …

The Unblinking Eye Turns To Appellate Law: Cameras In Trial Courtrooms And Their Effect On Appellate Law, Mary E. Adkins

UF Law Faculty Publications

Over the past twenty years, most American courthouses have been wired with audio and video recording equipment to enhance security and economize on court reporting costs. These in-house alterations have an overlooked consequence for appeals. The mere existence of these recordings of all courtroom occurrences will unavoidably change the way appeals are handled and reviewed.

Appellate courts will need to make new types of decisions on whether to accept the audio-video recordings as appellate records or continue the reliance on transcripts and items entered into evidence. If the appellate courts do not accept audio-video recordings as appellate records, or if …

Allshouse V. Pennsylvania, Brief Of The National Association Of Criminal Defense Lawyers, The Pennsylvania Association Of Criminal Defense Lawyers, The Public Defender Association Of Pennsylvania, And The Defender Association Of Philadelphia, As Amici Curiae On Behalf Of Petitioner, Jules Epstein

Jules Epstein

No abstract provided.

Development Of A Dna Database In Ireland — Assessing The Proposed Legislation, Liz Campbell

Liz Campbell

The collection and retention of DNA samples are seen universally as crucial for purposes of criminal investigation and prosecution, as a means of excluding innocent suspects, and of exonerating the wrongfully convicted. However, there is less consistency across jurisdictions regarding whose DNA should be obtained by the state and for how long it should be stored. The need for a measured approach in this context is underlined by the “exceptionalism” of genetic material, given the depth and sensitivity of the information contained within, and the potential for “function creep”, whereby state powers insidiously increase and data gathered for one purpose …

Appealing To The Legislature: A Comparative Analysis Of The Georgia Statutes Regarding Evidence Preservation And Access To Post-Conviction Dna Testing, Joy D. Aceves-Amaya

University of the District of Columbia Law Review

DNA evidence testing is the leading cause of exonerations in criminal cases throughout the United States.2 Yet, without the preservation of evidence in these cases and the ability to subject this evidence to advancing technology in DNA testing, many claims of innocence go unheard and defendants remain incarcerated while the real perpetrators of crime go unpunished. As of September 2009, seven Georgia men have been exonerated by post-conviction DNA testing.3 Such exonerations should be considered "victories for our criminal justice system: they free the innocent, correct miscarriages of justice that undermine public confidence in our criminal justice system, and allow …

No Witness? No Admission: The Tale Of Testimonial Statements And Melendez-Diaz V. Massachusetts, Jody L. Sellers

Mercer Law Review

In Melendez-Diaz v. Massachusetts, the United States Supreme Court held that the Massachusetts trial court's admission into evidence of forensic "certificates of analysis" violated the Confrontation Clause of the Sixth Amendment. Following Crawford v. Washington, the Supreme Court held that the accused has a right to be confronted with the forensic analysts at trial unless "the analysts [are] unavailable to testify at trial" and the accused "had a prior opportunity to cross-examine" the analysts. Melendez-Diaz will have an important impact on criminal evidence procedure, specifically in regard to the potential growth of notice-and-demand statutes.

Herring V. United States: The Continued Erosion Of The Exclusionary Rule, Robert W. Smith

Mercer Law Review

At its inception, the exclusionary rule was relatively straightforward: The use at trial of evidence obtained from a search or seizure that violated a defendant's Fourth Amendment rights was itself a violation of the defendant's constitutional rights. But throughout the exclusionary rule's history, its source, scope, purpose, and applicability have all seen changes, ultimately limiting the situations in which evidence obtained through a Fourth Amendment violation would be suppressed. The key to the limitation of the exclusionary rule was the United States Supreme Court's eventual conclusion that the use at trial of illegally seized evidence does not always violate the …

No Longer The Right To Remain Silent: Cross-Examining Forensic Analyst Testimony, Casey Unwin

BYU Law Review

No abstract provided.

Juror Testimony Of Racial Bias In Jury Deliberations: United States V. Benally And The Obstacle Of Federal Rule Of Evidence 606(B) , Brandon C. Pond

BYU Law Review

No abstract provided.

21. Children’S Reasoning About Disclosing Adult Transgressions: Effects Of Maltreatment, Child Age, And Adult Identity., Thomas D. Lyon, Elizabeth C. Ahern, Lindsay A. Malloy, Jodi A. Quas

Thomas D. Lyon

Wired: What We've Learned About Courtroom Technology, Fredric I. Lederer

Popular Media

No abstract provided.

Retribution And The Experience Of Punishment, Christopher J. Buccafusco, J. Bronsteen, J. Masur

All Faculty Scholarship

In a prior article, we argued that punishment theorists need to take into account the counterintuitive findings from hedonic psychology about how offenders typically experience punishment. Punishment generally involves the imposition of negative experience. The reason that greater fines and prison sentences constitute more severe punishments than lesser ones is, in large part, that they are assumed to impose greater negative experience. Hedonic adaptation reduces that difference in negative experience, thereby undermining efforts to achieve proportionality in punishment. Anyone who values punishing more serious crimes more severely than less serious crimes by an appropriate amount - as virtually everyone does …

Welfare As Happiness (With J. Bronsteen & J. Masur), Christopher J. Buccafusco

All Faculty Scholarship

Perhaps the most important goal of law and policy is improving people’s lives. But what constitutes improvement? What is quality of life, and how can it be measured? In previous articles, we have used insights from the new field of hedonic psychology to analyze central questions in civil and criminal justice, and we now apply those insights to a broader inquiry: how can the law make life better? The leading accounts of human welfare in law, economics, and philosophy are preference-satisfaction - getting what one wants - and objective list approaches - possessing an enumerated set of capabilities. This Article …

Welfare As Happiness (With J. Bronsteen & J. Masur), Christopher J. Buccafusco

Christopher J. Buccafusco

Perhaps the most important goal of law and policy is improving people’s lives. But what constitutes improvement? What is quality of life, and how can it be measured? In previous articles, we have used insights from the new field of hedonic psychology to analyze central questions in civil and criminal justice, and we now apply those insights to a broader inquiry: how can the law make life better? The leading accounts of human welfare in law, economics, and philosophy are preference-satisfaction - getting what one wants - and objective list approaches - possessing an enumerated set of capabilities. This Article …

Retribution And The Experience Of Punishment, Christopher J. Buccafusco, J. Bronsteen, J. Masur

Christopher J. Buccafusco

In a prior article, we argued that punishment theorists need to take into account the counterintuitive findings from hedonic psychology about how offenders typically experience punishment. Punishment generally involves the imposition of negative experience. The reason that greater fines and prison sentences constitute more severe punishments than lesser ones is, in large part, that they are assumed to impose greater negative experience. Hedonic adaptation reduces that difference in negative experience, thereby undermining efforts to achieve proportionality in punishment. Anyone who values punishing more serious crimes more severely than less serious crimes by an appropriate amount - as virtually everyone does …

Can Criminal Law Be Controlled?, Darryl K. Brown

Darryl K. Brown

This review of Douglas Husak's 2008 book, Overcriminalization: The Limits of the Criminal Law, summarizes and largely endorses Husak's normative argument about the indefensible expansiveness of much contemporary criminal liability. It then offers a skeptical (or pessimistic) argument about the possibilities for a normative theory such as Husak's to have much effect on criminal justice policy in light of the political barriers to reform.

Illinois Courts And The Law Of Miranda Waivers: A Policy Worth Preserving, 30 N. Ill. U. L. Rev. 429 (2010), Timothy P. O'Neill

UIC Law Open Access Faculty Scholarship

No abstract provided.

The Process Is The Problem: Lessons Learned From United States Drug Sentencing Reform, Erik S. Siebert

University of Richmond Law Review

No abstract provided.

Truth Or Consequences: Self-Incriminating Statements And Informant Veracity, Mary Nicol Bowman

Faculty Articles

Courts treat self-incriminating statements by criminal informants as a significant factor favoring the reliability of the informant’s information when making probable cause determinations for the issuance of search warrants. Courts do so even though admissions of criminal activity usually undercut, rather than support, credibility. In using self-incriminating statements to support the informant’s reliability, courts tend to rely on a theory with significant theoretical flaws. Furthermore, recent United States Supreme Court jurisprudence in other contexts undercuts the reliability of using self-incriminating statements to support the veracity of other information. If courts adequately scrutinize the informant’s self-incriminating statements and the circumstances surrounding …

Coconspirators, “Coventurers,” And The Exception Swallowing The Hearsay Rule, Ben L. Trachtenberg

Faculty Publications

In recent years, prosecutors - sometimes with the blessing of courts - have argued that when proving the existence of a “conspiracy” to justify admission of evidence under the Coconspirator Exception to the Hearsay Rule, they need show only that the declarant and the defendant were “coventurers” with a common purpose, not coconspirators with an illegal purpose. Indeed, government briefs and court decisions specifically disclaim the need to show any wrongful goal whatsoever. This Article contends that such a reading of the Exception is mistaken and undesirable. Conducted for this article, a survey of thousands of court decisions, including the …

Keeping It Real: Reforming The “Untried Conviction” Impeachment Rule, Montré D. Carodine

Maryland Law Review

No abstract provided.

District Attorney’S Office For The Third Judicial District V. Osborne: Leaving Prisoners’ Access To Dna Evidence In Limbo, Alexandra Millard

Maryland Law Review

No abstract provided.

Evaluating Children's Competency To Testify: Developing A Rational Method To Assess A Young Child's Capacity To Offer Reliable Testimony In Cases Alleging Child Sex Abuse , Laurie Shanks

Cleveland State Law Review

This Article discusses the testimony of young children, the inadequacy of the traditional hearing used to determine the competency of such children to testify, and the ways in which the hearing might be changed to make it a meaningful process for determining the ability of a child to give reliable testimony.

The Exclusionary Rule Applied To Coerced Statements From Nondefendants, 43 J. Marshall L. Rev. 795 (2010), Victoria D. Noel

UIC Law Review

No abstract provided.

Herring V. United States: Mapp's "Artless" Overruling?, Michael Vitiello

Nevada Law Journal

The central thesis of this essay is that, consistent with the “art of overruling,” the Court could have limited Mapp, for example, by extending the good-faith reasonable mistake rationale that animates cases like United States v. Leon. As developed below, the facts of Herring are quite similar to the facts of other cases where the Court upheld police conduct that, although erroneous, seemed reasonable; accordingly, excluding the illegally obtained evidence had no value as a deterrent of future conduct in light of the reasonableness of the police officer's mistake. However, Herring goes much further and points towards a much greater …

Forensic Science: Why No Research?, Paul C. Giannelli

Faculty Publications

The National Academy of Sciences ground-breaking report on forensic science – Strengthening Forensic Science in the United States: A Path Forward – raised numerous issues. One dominant theme that runs throughout the Report is the failure of some forensic science disciplines to comport with fundamental scientific principles – in particular, to support claims with empirical research. The Report observed that “some forensic science disciplines are supported by little rigorous systematic research to validate the discipline’s basic premises and techniques. There is no evident reason why such research cannot be conducted.”

The Report went on to identify fingerprint examinations, firearms (ballistics) …

Scientific Evidence In Criminal Prosecutions - A Retrospective, Paul C. Giannelli

Faculty Publications

No abstract provided.