Law Commons^™

An Essay On Drafting Evidence Legislation And Rules: Challenging The Conventional Wisdom, Edward J. Imwinkelried

Akron Law Review

There have been numerous major efforts to reform and codify American Evidence law. The efforts include the Model Code, the Uniform Rules, the California Evidence Code, and, of course, the Federal Rules of Evidence. The various reform initiatives have attempted to create “an evidence bible for busy trial judges and attorneys.” Of course, to resolve the many common-law splits of authority, the reformers faced substantive evidentiary questions: Should the opponent be permitted to impeach by cross-examining about a bad act that has not resulted in a conviction? Should there be a learned treatise hearsay exception? And should a presumption disappear …

Evidence Of Gambling Expert Witness In Prosecuting Online Gambling Offences: Malaysia’S Experience And Way Forward, Sharifah Zulia Balqish S. Agil

International Conference on Gambling & Risk Taking

Abstract:

Accessibility of online gambling surges with rife coverage of the Internet worldwide including in Malaysia. Criminal procedures to curb rampancy of online gambling are the last bastion of the society from gambling disorder hazards. However, prosecuting online gambling offences poses ginormous technical challenges to police force and prosecutors. The assistance of gambling expert witness is sine qua non in proving attributes of games as gambling. The existing Malaysia legal framework stipulates for appointment of gambling expert witness in prosecuting traditional gambling offences but absence of online equivalent. This paper seeks to examine the general law on expert witness in …

Toward Mutual Recognition: An Investigation Of Oral Tradition Evidence In The United States And Canada, Kalae Trask

Washington Journal of Social & Environmental Justice

United States (“U.S.”) courts have long failed to recognize the value of oral traditional evidence (“OTE”) in the law. Yet, for Indigenous peoples, OTE forms the basis of many of their claims to place, property, and political power. In Canada, courts must examine Indigenous OTE on “equal footing” with other forms of admissible evidence. While legal scholars have suggested applying Canadian precedent to U.S. law regarding OTE, scholarship has generally failed to critically examine the underlying ethos of settler courts as a barrier to OTE admission and usefulness. This essay uses the work of political philosopher, James Tully, …

From Hashtag To Hash Value: Using The Hash Value Model To Report Child Sex Abuse Material, Jessica Mcgarvie

Seattle Journal of Technology, Environmental & Innovation Law

In the summer of 2021, Apple announced it would release a Child Safety Feature (CSF) aimed at reducing Child Sex Abuse Materials (CSAM) on its platform. The CSF would scan all images a user uploaded to their iCloud for CSAM, and Apple would report an account with 30 or more flagged images to the National Center for Missing and Exploited Children. Despite Apple’s good intentions, they received intense backlash, with many critics arguing the proposed CSF eroded a user’s privacy. This article explores the technology behind Apple’s CSF and compares it to similar features used by other prominent tech companies. …

A New And Improved Doctrine Of Double Effect: Not Just For Trolleys

Connecticut Law Review

In its standard formulation, the doctrine of double effect (DDE) permits an action that causes foreseeable and harmful, even dire, collateral consequences, so long as the actor merely foresees but does not intend them and the harms are proportional to the benefit. Yet DDE’s critics question the moral distinction between intending a bad outcome, on one hand, and merely knowing that the actions will result in the bad outcome but acting in exactly the same way, on the other. After all, except in a few narrow circumstances, criminal law in the United States treats intent and knowledge as equally culpable …

The State Secrets Privilege: An Institutional Process Approach, Alexandra B. Dakich

Northwestern University Law Review

It is no secret that since September 11, 2001, the Executive Branch has acted at variance with laws otherwise restraining its conduct under the guise of national security. Among other doctrines that make up the new national security canon, state secrets privilege assertions have narrowed the scope of redressability for parties alleging official misconduct in national security cases. For parties such as the Muslim American community surveilled by the FBI in Orange County, California, or Abu Zubaydah, who was subjected to confirmed torture tactics by the U.S. government, success in the courts hinges on the government’s unbridled ability to assert …

Some Legal And Practical Challenges In The Investigation Of Cybercrime, Ritz Carr

Cybersecurity Undergraduate Research Showcase

According to the Internet Crime Complaint Center (IC3), in 2021, the United States lost around $6.9 billion to cybercrime. In 2022, that number grew to over $10.2 billion (IC3, 2022). In one of many efforts to combat cybercrimes, at least 40 states “introduced or considered more than 250 bills or resolutions that deal significantly with cybersecurity” with 24 states officially enacting a total of 41 bills (National Conference on State Legislatures, 2022).

The world of cybercrime evolves each day. Nevertheless, challenges arise when we investigate and prosecute cybercrime, which will be examined in the following collection of essays that highlight …

Childist Objections, Youthful Relevance, And Evidence Reconceived, Mae C. Quinn

Dickinson Law Review (2017-Present)

Evidence rules are written by and for adults. As a result, they largely lack the vantage point of youth and are rooted in arm’s-length assumptions about the lives and legal interests of young people. Moreover, because children have been mostly treated as evidentiary afterthoughts, they have been patched into the justice system and its procedures in a piecemeal fashion. Yet, to date, there has been no comprehensive scholarly critique of evidence principles and practices for failing to meaningfully account for youth. And the evidentiary intersection of youth and race has been almost entirely overlooked in legal scholarship. This Article, in …

Abortion, The Underground Railroad, And Evidentiary Privilege, Tom Lininger

Washington and Lee Law Review

Building on my recent article in the Minnesota Law Review proposing reforms of evidentiary privilege law, this Article focuses on the unique context of communication about abortion. There is an urgent need to protect such communication in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which allowed states to recriminalize abortion. Now abortion seekers, providers, and third parties who aid and abet abortion could face significant exposure to both criminal penalties and civil suits in many states. Those states are attempting to extend the reach of their bans by sanctioning out-of-state travel and …

“Hey, Google, What Are The Elements Of Homicide By Vehicle In The First Degree?”: The Supreme Court Of Georgia Reinforces The Prohibition On Extrajudicial Information Considered By A Jury In Criminal Trials, Savannah Hall

Mercer Law Review

In a criminal trial, the presentation of evidence and the instruction of law to the jury are of crucial importance to ensure that a person is only convicted based upon sound understandings of the factual and legal framework under which they were charged. The complexities surrounding the rules of evidence are in place so that jurors are only allowed to consider the facts and testimony permissible under the rules of evidence, meaning it is of utmost importance for the jury to consider solely those things which a judge deems admissible, relevant, and helpful to understanding the case. However, given the …

The Long Road To Justice: Why State Courts Should Lower The Evidentiary Burden For Proving Racialized Traffic Stops And Adopt The Exclusionary Rule As A Remedy For Equal Protection Violations, Abby M. Fink

Washington Journal of Social & Environmental Justice

Racist and brutal policing continues to pervade the criminal legal system. Black and brown people who interact with the police consistently face unequal targeting and treatment. Routine traffic stops are especially dangerous and harmful and can lead to death. Under Whren, a police officer’s racist motivations or implicit bias towards a driver do not influence the constitutionality of a traffic stop. An officer only needs to show there was probable cause to believe a traffic stop occurred. Although the unconstitutionality of pre-textual traffic stops has been widely explored since Whren, both federal and state courts have struggled to find legal …

The "Crisis Of Expertise" Reaches The Courtroom: An Introduction To The Symposium On, And A Response To, Edward Cheng's Consensus Rule, David S. Caudill

Villanova Law Review

No abstract provided.

The Owls: Some Difficulties In Judging Scientific Consensus, Harry Collins

Villanova Law Review

No abstract provided.

The Consensus Rule: Lessons From The Regulatory World, Wendy Wagner

Villanova Law Review

No abstract provided.

Embracing Deference, Edward K. Cheng, Elodie O. Currier, Payton B. Hampton

Villanova Law Review

No abstract provided.

The Consensus Rule: Judges, Jurors, And Admissibility Hearings, Robert Evans

Villanova Law Review

No abstract provided.

The Adversity Of Adversarialism: How The Consensus Rule Reproduces The Expert Paradox, Martin Weinel

Villanova Law Review

No abstract provided.

What A Waste! An Evaluation Of Federal And State Medical And Biohazard Waste Regulations During The Covid-19 Pandemic And Their Impact On Environmental Justice, Samantha Newman

Villanova Environmental Law Journal

No abstract provided.

Something Doesn’T Add Up: Solving Dna Forensic Science Statistical Fallacies In Trial Testimony, Kendall Brooke Kilberger

Vanderbilt Journal of Entertainment & Technology Law

While the limitations of traditional forensic sciences are generally recognized, the presentation of DNA forensic science statistical testimony has widely evaded criticism. This lack of oversight has allowed four DNA forensic science statistical fallacies to plague the legal system: providing statistics without empirical support, the individualization fallacy, the prosecutor’s fallacy, and the defense attorney’s fallacy. These fallacies pose a significant risk to the preservation of justice, as erroneous DNA forensic science statistical testimony plays a critical role in wrongfully convicting innocent defendants.

This Note suggests administering standard jury instructions every time DNA forensic science statistical testimony is presented during trial. …

Embracing Deference, Edward K. Cheng, Elodie O. Currier, Payton B. Hampton

Vanderbilt Law School Faculty Publications

A fundamental conceptual problem has long dogged discussions about scientific and other expert evidence in the courtroom. In American law, the problem was most famously posed by Judge Learned Hand, who asked: "[H]ow can the jury judge between two statements each founded upon an experience confessedly foreign in kind to their own? It is just because they are incompetent for such a task that the expert is necessary at all." This puzzle, sometimes known as the "expert paradox," is quite general. It applies not only to the jury as factfinder, but also to the judge as gate- keeper under the …

Reforming Eyewitness Identification Processes: Challenges And Recommendations For Successful Implementation, Daniel Manley

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Safeguarding The Alford Plea: Minimizing State-Sanctioned Wrongful Convictions, Zana Molina

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Ai Risk Assessment Tools Amid The War On Drugs: Productive Or Counterproductive?, Matin Pedram

Mitchell Hamline Law Journal of Public Policy and Practice

The War on Drugs refers to a situation in which all the processes of production, distribution, and consumption of all illegal drugs are prohibited. This ambitious goal has imposed considerable costs on societies. The war has weaponized harsher punishments such as life imprisonment, execution, and long-term incarceration against drug offenders. Nonviolent offenders, those who possessed illegal drugs, have been easy targets for governments to show that the war is still ongoing. Although some countries became pioneers in changing the laws to end this costly war, Iran and the United States have made their stance on the drug issue clear, and …

Environmental Evidence, Seema Kakade

Faculty Scholarship

The voices of impacted people are some of the most important when trying to make improvements to social justice in a variety of contexts, including, criminal policing, housing, and health care. After all, the people with on the ground experience know what is likely to truly effectuate change in their community, and what is not. Yet, such lived experience is also often significantly lacking and undermined in law and policy. People with lived experience tend to be seen as both community experts with valuable knowledge, as well as non-experts with little valuable knowledge. This Article explores the lived experience with …

Provisional Measures In Aid Of Arbitration, Ronald A. Brand

Articles

The success of the New York Convention has made arbitration a preferred means of dispute resolution for international commercial transactions. Success in arbitration often depends on the extent to which a party may secure assets, evidence, or the status quo between parties prior to the completion of the arbitration process. This makes the availability of provisional measures granted by either arbitral tribunals or by courts fundamental to the arbitration. In this Article, I consider the existing legal framework for provisional measures in aid of arbitration, with particular attention to the sources of the rules providing for such measures. Those sources …

Digital Habit Evidence, Andrew Guthrie Ferguson

Articles in Law Reviews & Other Academic Journals

This Article explores how “habit evidence” will become a catalyst for a new form of digital proof based on the explosive growth of smart homes, smart cars, smart devices, and the Internet of Things. Habit evidence is the rule that certain sorts of semiautomatic, regularized responses to particular stimuli are trustworthy and thus admissible under the Federal Rules of Evidence (“FRE”) 406 “Habit; Routine Practice” and state equivalents.

While well established since the common law, “habit” has made only an inconsistent appearance in reported cases and has been underutilized in trial practice. But intriguingly, once applied to the world of …

Limiting Limited Liability: Requiring More Than Mere Subsequence Under Federal Rule Of Evidence 407, Cynara Hermes Mcquillan

Scholarly Works

Rule 407 of the Federal Rules of Evidence, the “Subsequent Remedial Measures” Rule, is troubling. This exclusionary rule of evidence prohibits using subsequent remedial measures to demonstrate negligence, culpable conduct, or product defect. But, other than in the title of the rule, the phrase “subsequent remedial measures” does not appear anywhere in the rule’s text and the rule itself does not expressly define what measures fall within its purview. This omission creates space for different judicial interpretations of the rule’s language and ultimately disparate judicial outcomes. Although the Federal Rules of Evidence lend themselves to fact-specific inquiries that can lead …

Rethinking Evidentiary Rules In An Age Of Bench Trials, Henry Zhuhao Wang

UC Irvine Law Review

American jury trials are vanishing. Statistics indicate that the number of jury trials in U.S. federal and state courts has diminished for decades, a phenomenon that has become even more pronounced amid the ongoing COVID-19 pandemic. Courts throughout the nation are on track for more than a year without any trials by jury. But as jury trials wane, bench trials are dominant in federal and state courts for both civil and criminal cases. What does that mean, then, for evidentiary rules? The Federal Rules of Evidence (FRE), first adopted in 1975, codify federal evidence law and have been adopted by …

Evidence, John E. Hall Jr., W. Scott Henwood, Krysta Grimes

Mercer Law Review

Georgia’s judicial system has continued to grapple with the novel Coronavirus (COVID-19) for more than two years since the Honorable Harold D. Melton, former Chief Justice of the Supreme Court of Georgia,
first issued the Order Declaring Statewide Judicial Emergency on March 14, 2020. That order was extended fifteen times before finally terminating on June 30, 2021.

Seemingly in response to the world of uncertainties created by COVID-19, Georgia appellate courts took the opportunity to provide some additional interpretation and explanation to various aspects of Georgia’s new Evidence Code. This Article highlights some of the continuing interpretations of Georgia’s evidence …

You Can’T Simply Say “No!” Almighty Ceo: Georgia’S View On The Apex Doctrine And Discovery Abuse, W. Warren Hedgepeth

Mercer Law Review

Discovery is the process that allows litigants to gather information from the opposing party in a civil lawsuit. Discovery practices differ among states, and each state’s discovery laws generally determine (1) the scope and limits of what information can be gathered, (2) how it is gathered, and (3) when it is gathered. Depositions are included in discovery methods and allow parties to ask the deponent questions relating to the case. Depositions are not only expensive but can be disruptive, especially to high-level corporate executives whose time and dedication to their companies should be their primary focus. In some jurisdictions, corporate …