Law Commons^™

Shifting The Male Gaze Of Evidence, Teneille R. Brown

Utah Law Faculty Scholarship

In this article I target the altar at which many of us worship—the pursuit of rationality. For evidence purposes, rationality is defined as decisions that are reasonable, objective, inductive, and free from the bias of emotion. This view of rationality is deeply embedded in evidence scholarship and practice. It is also reflected in evidence rules like FRE 403, which treat emotional testimony as unfairly prejudicial simply because it is emotional. The anti-emotion view of rationality reflects the thinking of Western philosophical giants. Plato, Hobbes, Descartes, and Bacon all thought that men should strive for rationality by suppressing their emotions, because …

Demystifying Mindreading For The Law, Teneille R. Brown

Utah Law Faculty Scholarship

To lawyers, mindreading conjures up flamboyant images of crystal balls or charlatans. However, it is a deeply serious endeavor for the law. The primary role of fact-finders in civil, criminal, and administrative trials in the United States is to serve as highly-regulated mind readers—to listen to the testimony and decide whether the witnesses are credible and telling the truth. Because it can be so easily biased, we must directly acknowledge how jurors and judges (in addition to voters and employers) automatically and imperfectly read minds. We must remove the “mystique of mindreading,” and see how ordinary assessments of mental states …

Evidentiary Policies Through Other Means: The Disparate Impact Of “Substantive Law” On The Distribution Of Errors Among Racial Groups, Gustavo Ribeiro

Utah Law Review

This Article develops an analytical framework to investigate novel ways in which legal reforms disguised as “substantive” can affect procedural due process safeguards differently among racial groups. Scholars have long recognized the impact evidence rules have on substantive policies, such as modifying primary incentives or affecting the distribution of legal entitlements in society. However, legal scholars have not paid enough attention to the reverse effect: how changes in “substantive law” influence policy objectives traditionally associated with evidence law—“evidentiary policies.”

To fill this gap, this Article discusses three related evidentiary policies. The first is accuracy, which courts and scholars consider a …

Minding Accidents, Teneille R. Brown

Utah Law Faculty Scholarship

Tort doctrine states that breach is all about conduct. Unlike in the criminal law, where jurors must engage in an amateur form of mindreading to evaluate mens rea, jurors are told that they can assess civil negligence by looking only at how the defendant behaved. But this is false. Foreseeability is at the heart of negligence—appearing as the primary tests for duty, breach, and proximate cause. And yet, we cannot ask whether a defendant should have foreseen a risk without interrogating what he subjectively knew, remembered, perceived, or realized at the time. In fact, the focus on actions in negligence …

Do You See What I See? The Science Behind Utah Rule Of Evidence 617, Louisa Heiny

Utah Law Faculty Scholarship

Eyewitness identifications play a key role in many investigations and are often central to a prosecutor’s case. At the same time, eyewitness identifications can be tainted, accidentally or purposely, thus tainting the justice system as well. There are myriad reasons for this phenomenon, but the primary responsibility lies not with the witness, but rather a system that fails to recognize, and often amplifies, mistakes and assumptions in the identification process.

Where Are The Gatekeepers? Challenging Utah’S Threshold Standard For Admissibility Of Expert Witness Testimony, Samuel D. Hatch

Utah Law Review

Utah’s Rule 702 on the admissibility of expert witness testimony is far too low. Utah trial courts cannot to fulfill their role as gatekeepers because the threshold standard forces them to admit almost everything without ensuring reliability. Accordingly, Utah evidence law will benefit from amending Rule 702 whether it reverts to the federal rule or elects the Minnesota approach. Either is preferred to the almost nonexistent standard currently in place, which has drifted far from the “inherent[ly] reliab[le]” tradition and is no longer “the touchstone of admissibility” in Utah. The State should amend Rule of Evidence 702 to allow judges …

Diagnosis Dangerous: Why State Licensing Boards Should Step In To Prevent Mental Health Practitioners From Speculating Beyond The Scope Of Professional Standards, Jennifer S. Bard

Utah Law Review

This Article reviews the use of mental health experts to provide testimony on the future dangerousness of individuals who have already been convicted of a crime that qualifies them for the death penalty. Although this practice is common in many states that still retain the death penalty, it most frequently occurs in Texas because of a statute that makes it mandatory for juries to determine the future dangerousness of the defendant they have just found guilty. Both the American Psychiatric Association and the American Psychological Association have protested the use of mental health professionals in this setting because there are …

Factually Innocent Without Dna? An Analysis Of Utah's Factual Innocence Statute, Nic Caine

Utah OnLaw: The Utah Law Review Online Supplement

Since 1989, DNA evidence has fueled the innocence movement, helping hundreds prove their innocence and obtain freedom. DNA technology has been an invaluable development for the innocence movement, and DNA technology will continue to advance and improve in the future. DNA evidence is not available in the majority of cases, however, and many believe that DNA exonerations will eventually diminish as DNA analysis becomes more widely available. Furthermore, “for every DNA exoneree there are hundreds if not over a thousand wrongfully convicted defendants whose cases do not contain biological evidence that could prove innocence.”150 It is time for other states …

The Supreme Court Screws Up The Science: There Is No Abusive Head Trauma/Shaken Baby Syndrome “Scientific” Controversy, Joëlle Anne Moreno, Brian Holmgren

Utah Law Review

Even if it is not true that law school is the consolation prize for those whose freshman biology grades make medical school impossible, judges, law professors, and lawyers are not (as a general rule) scientists. But they increasingly shape our understanding of scientific ideas by determining how law interprets and applies scientific information and by ensuring that bad science does not create bad law. As law becomes more science-dependent and expert witnesses play a greater role in a wide range of criminal and civil cases, there has been a concomitant increase in the need to ensure that the expert testimony …

Brain Images As Legal Evidence, Walter Sinnott-Armstrong, Adina Roskies, Teneille R. Brown, Emily Murphy

Utah Law Faculty Scholarship

This paper explores whether brain images may be admitted as evidence in criminal trials under Federal Rule of Evidence 403, which weighs probative value against the danger of being prejudicial, confusing, or misleading to fact finders. The paper summarizes and evaluates recent empirical research relevant to these issues. We argue that currently the probative value of neuroimages for criminal responsibility is minimal, and there is some evidence of their potential to be prejudicial or misleading. We also propose experiments that will directly assess how jurors are influenced by brain images.