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Articles 1 - 30 of 80
Full-Text Articles in Entire DC Network
Hear Me Now: The Admission Of Expert Testimony On Battered Women's Syndrome—An Evidentiary Approach, Matthew Fine
Hear Me Now: The Admission Of Expert Testimony On Battered Women's Syndrome—An Evidentiary Approach, Matthew Fine
William & Mary Journal of Race, Gender, and Social Justice
No abstract provided.
The Legality Of Deliberate Miranda Violations: How Two-Step National Security Interrogations Undermine Miranda And Destabilize Fifth Amendment Protections, Lee Ross Crain
Michigan Law Review
As part of the global “War on Terror,” federal agents intentionally delay issuing Miranda warnings to terrorism suspects during custodial interrogations. They delay the warnings presuming that unwarned suspects will more freely offer vital national security intelligence. After a suspect offers the information he has, agents administer Miranda warnings and attempt to elicit confessions that prosecutors can use at the suspect’s trial. No court has ruled on the constitutionality of this two-step national security interrogation process to determine whether admitting the second, warned confession is allowed under Miranda v. Arizona and its progeny. A fragmented Supreme Court examined two-step interrogations …
Promising Protection: 911 Call Records As Foundation For Family Violence Intervention, James G. Dwyer
Promising Protection: 911 Call Records As Foundation For Family Violence Intervention, James G. Dwyer
Faculty Publications
No abstract provided.
The Misbegotten Judicial Resistance To The Daubert Revolution, David E. Bernstein
The Misbegotten Judicial Resistance To The Daubert Revolution, David E. Bernstein
Notre Dame Law Review
This Article reviews the history of the evolution of the rules for the admissibility of expert testimony since the 1980s, the revolutionary nature of what ultimately emerged, and the consistent efforts by recalcitrant judges to stop or roll back the changes, even after Rule 702 was amended to explicitly incorporate a strict interpretation of those changes.
Part I reviews the law of expert testimony through the Supreme Court’s Daubert decision. Critics had charged for decades that the adversarial system was a failure with regard to expert testimony. Parties to litigation, they argued, often presented expert testimony of dubious validity because …
Ehearsay, Jeffrey Bellin
The New Rules For Admissibility Of Expert Testimony: Part Ii, Robert Sanger
The New Rules For Admissibility Of Expert Testimony: Part Ii, Robert Sanger
Robert M. Sanger
As described in the last Criminal Justice column for the Santa Barbara Lawyer magazine, the California Supreme Court’s opinion in Sargon Enterprises v. University of Southern California, 55 Cal. 4th 747, 149 Cal. Rptr. 3d 614 (2012) made it clear that California is now, (and perhaps unsuspectingly has been for some time), a Daubert jurisdiction. This requires the trial court be the “gatekeeper” and make a determination as to the admissibility of scientific or expert testimony and to determine the limits of any testimony, if it is introduced. The Court held that there are essentially three criteria: The first criterion …
Accounting For Federalism In State Courts - Exclusion Of Evidence Obtained Lawfully By Federal Agents, Robert M. Bloom, Hillary J. Massey
Accounting For Federalism In State Courts - Exclusion Of Evidence Obtained Lawfully By Federal Agents, Robert M. Bloom, Hillary J. Massey
Robert Bloom
After the terrorist attacks on September 11th, Congress greatly enhanced federal law enforcement powers through enactment of the U.S.A. Patriot Act. The Supreme Court also has provided more leeway to federal officers in the past few decades, for example by limiting the scope of the exclusionary rule. At the same time, many states have interpreted their constitutions to provide greater individual protections to their citizens than provided by the federal constitution. This phenomenon has sometimes created a wide disparity between the investigatory techniques available to federal versus state law enforcement officers. As a result, state courts sometimes must decide whether …
Jailhouse Informants, Robert M. Bloom
Supplementing The Record In The Federal Courts Of Appeals: What If The Evidence You Need Is Not In The Record?, George C. Harris, Xiang Li
Supplementing The Record In The Federal Courts Of Appeals: What If The Evidence You Need Is Not In The Record?, George C. Harris, Xiang Li
The Journal of Appellate Practice and Process
No abstract provided.
The Future Of The Similar Fact Rule In An Indian Evidence Act Jurisdiction: Singapore, Siyuan Chen
The Future Of The Similar Fact Rule In An Indian Evidence Act Jurisdiction: Singapore, Siyuan Chen
Research Collection Yong Pung How School Of Law
In yet another attempt to bridge the gap between the rules of an antiquated statute and the modern realities of practice, Singapore’s Evidence Act was amended in 2012. Certain relevancy provisions were amended to allow greater admissibility of evidence. While new provisions were introduced to act as a check against abuse, oddly some similar fact provisions were left intact. This paper explains why the 2012 amendments have rendered the future of these enactments very uncertain. This paper also suggests a number of tentative recommendations as regards future legislative change or judicial interpretation. To the extent that Singapore’s Evidence Act was …
Testifying Minors: Pre-Trial Strategies To Reduce Anxiety In Child Witnesses, Dawn Hathaway Thoman
Testifying Minors: Pre-Trial Strategies To Reduce Anxiety In Child Witnesses, Dawn Hathaway Thoman
Nevada Law Journal
No abstract provided.
Altering Attention In Adjudication, Jeffrey J. Rachlinski, Andrew J. Wistrich, Chris Guthrie
Altering Attention In Adjudication, Jeffrey J. Rachlinski, Andrew J. Wistrich, Chris Guthrie
Cornell Law Faculty Publications
Judges decide complex cases in rapid succession but are limited by cognitive constraints. Consequently judges cannot allocate equal attention to every aspect of a case. Case outcomes might thus depend on which aspects of a case are particularly salient to the judge. Put simply, a judge focusing on one aspect of a case might reach a different outcome than a judge focusing on another. In this Article, we report the results of a series of studies exploring various ways in which directing judicial attention can shape judicial outcomes. In the first study, we show that judges impose shorter sentences when …
29. Young Children’S Understanding That Promising Guarantees Performance: The Effects Of Age And Maltreatment., Thomas D. Lyon, Angela D. Evans
29. Young Children’S Understanding That Promising Guarantees Performance: The Effects Of Age And Maltreatment., Thomas D. Lyon, Angela D. Evans
Thomas D. Lyon
16. Child Witnesses And Imagination: Lying, Hypothetical Reasoning, And Referential Ambiguity., Thomas D. Lyon
16. Child Witnesses And Imagination: Lying, Hypothetical Reasoning, And Referential Ambiguity., Thomas D. Lyon
Thomas D. Lyon
Lawyers Judging Experts: Oversimplifying Science And Undervaluing Advocacy To Construct An Ethical Duty?, David S. Caudill
Lawyers Judging Experts: Oversimplifying Science And Undervaluing Advocacy To Construct An Ethical Duty?, David S. Caudill
David S Caudill
My focus is on an apparent trend at the intersection of the fields of evidentiary standards for expert admissibility and professional responsibility, namely the eagerness to place more ethical responsibilities on lawyers to vet their proffered expertise to ensure its reliability. My reservations about this trend are not only based on its troubling implications for the lawyer’s duty as a zealous advocate, which already has obvious limitations (because of lawyers’ conflicting duties to the court), but are also based on the problematic aspects of many reliability determinations. To expect attorneys - and this is what the proponents of a duty …
The Duties Of Non-Judicial Actors In Ensuring Competent Negotiation, Stephanos Bibas
The Duties Of Non-Judicial Actors In Ensuring Competent Negotiation, Stephanos Bibas
All Faculty Scholarship
This essay, written for a symposium at Duquesne Law School entitled Plea Bargaining After Lafler and Frye, offers thoughts on how lawyers could learn from doctors’ experience in catching and preventing medical errors and aviation experts’ learning from airplane crashes and near misses. It also expresses skepticism about the efficacy of judges’ ex post review of ineffective assistance of counsel, but holds out more hope that public-defender organizations, bar associations, probation officers, sentencing judges, sentencing commissions, and line and supervisory prosecutors can do much more to prevent misunderstanding and remedy ineffective bargaining advice in the first place.
Ringers Revisited, Richard H. Underwood
Ringers Revisited, Richard H. Underwood
Law Faculty Scholarly Articles
In this short essay, Professor Underwood addresses an important development in the law dealing with eyewitness testimony and the New Jersey case of State v. Henderson. He gets at the subject by looking back to a 1950s television play starring fellow Kentucky resident, William Shatner. However, in this particular instance, William Shatner would not change the world.
Sharpening The Tools Of An Adequate Defense: Providing For The Appointment Of Experts For Indigent Defendants In Child Death Cases Under Ake V. Oklahoma, Laurel Gilbert
San Diego Law Review
This Comment proposes that because of ongoing concerns regarding the reliability and validity of forensic science in the United States, the Due Process Clause constitutionally mandates the appointment of forensic experts for indigent defendants in criminal cases arising out of a child’s death if the prosecution relies on forensic evidence. Part II of this Comment provides an overview of the current law governing the admissibility of forensic expert testimony in criminal cases and explains why these admissibility standards create a need for the appointment of defense forensic experts to protect the rights of criminal defendants. Part III then discusses Due …
Limited Admissibility And Its Limitations, Lisa Dufraimont
Limited Admissibility And Its Limitations, Lisa Dufraimont
Articles & Book Chapters
Among the challenges facing juries and judges in adjudicating cases is the obligation to use evidence for limited purposes. Evidence inadmissible for one purpose is frequently admissible for other purposes, a situation known as "limited admissibility". Where limited admissibility arises in jury trials, courts generally deliver limiting instructions outlining the inferences that can legitimately be drawn from the evidence and identifying prohibited lines of reasoning to be avoided. Limiting instructions represent an expedient solution to limited-admissibility problems, but they create obvious problems of their own. A thoughtful observer might suspect-as psychological studies confirm-that limiting instructions are likely to fail in …
A Model For Fixing Identification Evidence After Perry V. New Hampshire, Robert Couch
A Model For Fixing Identification Evidence After Perry V. New Hampshire, Robert Couch
Michigan Law Review
Mistaken eyewitness identifications are the leading cause of wrongful convictions. In 1977, a time when the problems with eyewitness identifications had been acknowledged but were not yet completely understood, the Supreme Court announced a test designed to exclude unreliable eyewitness evidence. This standard has proven inadequate to protect against mistaken identifications. Despite voluminous scientific studies on the failings of eyewitness identification evidence and the growing number of DNA exonerations, the Supreme Court's outdated reliability test remains in place today. In 2012, in Perry v. New Hampshire, the Supreme Court commented on its standard for evaluating eyewitness evidence for the first …
Due Process In American Military Tribunals After September 11, 2001, Gary Shaw
Due Process In American Military Tribunals After September 11, 2001, Gary Shaw
Gary M. Shaw
The Authorization for Use of Military Force ("AUMF") provides broad powers for a president after September 11, 2001. President Bush, under the AUMF, claimed he had the power to hold "enemy combatants" without due process. This gave rise to two questions that the article addresses: "Could they be held indefinitely without charges or proceedings being initiated? If proceedings had to be initiated, what process was due to the defendants?"
Book Review: Errol Morris, “A Wilderness Of Error”: Provocative But Unpersuasive, Richard C. Cahn
Book Review: Errol Morris, “A Wilderness Of Error”: Provocative But Unpersuasive, Richard C. Cahn
Touro Law Review
No abstract provided.
The Military Trial At Rennes: Text And Subtext Of The Dreyfus Affair, Vivian G. Curran
The Military Trial At Rennes: Text And Subtext Of The Dreyfus Affair, Vivian G. Curran
Touro Law Review
Discusses the Dreyfus affair and how the outside world viewed France's conduct. This article provides insight into how the trial was conducted and the evidence that was offered.
The Duty Of The Prosecutor To Disclose Unrequested Evidence: United States V. Agurs, Christian F. Dubia Jr
The Duty Of The Prosecutor To Disclose Unrequested Evidence: United States V. Agurs, Christian F. Dubia Jr
Pepperdine Law Review
No abstract provided.
Discovery By The Prosecution In Criminal Cases: Prudhomme Reconsidered , Jon R. Rolefson
Discovery By The Prosecution In Criminal Cases: Prudhomme Reconsidered , Jon R. Rolefson
Pepperdine Law Review
No abstract provided.
Not For The Truth Of The Matter: Defendant's Hearsay And The Necessity Of Limiting Instructions In Psychological Defenses, Brian A. Ford
Not For The Truth Of The Matter: Defendant's Hearsay And The Necessity Of Limiting Instructions In Psychological Defenses, Brian A. Ford
Brian A Ford
This paper presents a thorough discussion of the use of a defendant's hearsay statements to a psychological expert as the basis of the expert's opinion at trial, under California Law.
Williams V. Illinois: Confronting Experts, Science, And The Constitution, Natasha Crawford
Williams V. Illinois: Confronting Experts, Science, And The Constitution, Natasha Crawford
Mercer Law Review
DNA evidence has revolutionized forensic science, making it the "single greatest advance in the search for truth.., since the advent of cross-examination." In Williams v. Illinois, the United States Supreme Court affirmed the Illinois Supreme Court's holding that there was no Confrontation Clause violation where experts based their testimony on another analyst's DNA report that was not admitted into evidence. The Court held an expert may assume the truth of certain facts-such as a DNA profile contained in a forensic report-to offer testimony based on those facts without testifying to the truth of the matter asserted. Until Williams, the …
Prosecutorial Disclosure Violations: Punishment Vs. Treatment, Kevin C. Mcmunigal
Prosecutorial Disclosure Violations: Punishment Vs. Treatment, Kevin C. Mcmunigal
Mercer Law Review
Recent scholarship on prosecutorial disclosure violations proposes preventing violations through understanding and remedying the causes of violations, such as cognitive error. Scholars who adopt this view-what I call here the "treatment perspective"-often call for greater transparency and cooperation from prosecutors. A frequently unacknowledged tension exists between such a treatment perspective and a more traditional perspective-what I call here the "punishment perspective"-that seeks to deter disclosure violations through greater use of sanctions such as professional discipline.
The tension arises because increasing the certainty and severity of sanctions, as the punishment perspective urges, creates a powerful disincentive for individual prosecutors and prosecutor …
Subverting Brady V. Maryland And Denying A Fair Trial: Studying The Schuelke Report, Bennett L. Gershman
Subverting Brady V. Maryland And Denying A Fair Trial: Studying The Schuelke Report, Bennett L. Gershman
Mercer Law Review
The Schuelke Report about the ill-fated federal prosecution of the late-Senator Ted Stevens is an extraordinary contribution to criminal procedure. No other official documentation or investigative study of a criminal prosecution, to my knowledge, has dissected and analyzed as carefully and thoroughly the sordid and clandestine actions of a team of prosecutors who zealously wanted to win a criminal conviction at all costs. In examining this Report, one gets the feeling that as the investigation and prosecution of Senator Stevens unfolded and the prosecution's theory of guilt unraveled, the prosecutors became indifferent to the defendant's guilt or innocence. They just …
The Proposed Fairness In Disclosure Of Evidence Act Of 2012: More Cons Than Pros With Proposed Disclosure Requirements In Federal Criminal Cases, Jacquelyn Smith
The Proposed Fairness In Disclosure Of Evidence Act Of 2012: More Cons Than Pros With Proposed Disclosure Requirements In Federal Criminal Cases, Jacquelyn Smith
Mercer Law Review
The proposed Fairness in Disclosure of Evidence Act of 2012 (the Act) is a proposal of uniform standards for disclosing evidence in federal criminal cases that was introduced on March 15, 2012 by Senator Lisa Murkowski of Alaska.' The Act's stated purpose is: "To require the attorney for the Government to disclose favorable information to the defendant in criminal prosecutions brought by the United States, and for