Law Commons^™

Abid V. Abid, 133 Nev. Adv. Op. 94 (Dec. 7, 2017) (En Banc), Carmen Gilbert

Nevada Supreme Court Summaries

The Court held that the district court properly exercised its discretion in allowing illegally recorded conversations to be used by a court appointed child psychologist to evaluate a child’s welfare in a custody case.

Rus V Comcare: The Rules Of Evidence In The Aat, Nicholas Cardaci

The University of Notre Dame Australia Law Review

The Rus v Comcare cases arise from a claim for compensation by the widowed Ms Rus. The cases saw a highly contentious piece of evidence tendered. This evidence was hearsay of a lay opinion that answered the ultimate issue. The evidence was considered by the Administrative Appeals Tribunal (‘AAT’) and the Federal Court of Australia (‘Court’). These considerations demonstrate the uncertainty of how the rules of evidence are applicable in tribunals. Specifically, the cases raise applicability of the rules against opinion and hearsay evidence. Further, the relevance of delay and the parol evidence rule to these cases is raised. The …

Petition For A Writ Of Certiorari. Kirk V. Invesco, Limited, 138 S.Ct. 1164 (2018) (No. 17-762), 2017 U.S. S. Ct. Briefs Lexis 4618, 2017 Wl 5665441, Eric Schnapper, Nitin Sud

Court Briefs

QUESTION PRESENTED The Fair Labor Standards Act provides that covered employees who work more than 40 hours in a week must generally be paid overtime at a rate one and one-half times their regular rate. To assure compliance with that overtime rule, the Act and governing regulations require employers to maintain records of all hours worked by covered employees. If an employer has failed to keep the legally required records, the burden on the employee under Anderson v. Mt. Clemens Pottery Co. is simply to "produce[] sufficient evidence to show the amount and extent of that work as a matter …

Calling Crawford: Minnesota Declares A 911 Call Non-Testimonial In State V. Wright, Alistair Y. Raymond

Maine Law Review

In State v. Wright, 1 the State of Minnesota charged David Wright with possession of a firearm by a felon and two counts of second-degree assault against his girlfriend and her sister. A jury found Wright guilty on all charges and sentenced him to sixty months in jail for each crime, with sentences served concurrently. Wright’s girlfriend, R.R., and her sister, S.R., did not testify against him at trial. The prosecution, however, used the transcript of a 911 call placed by R.R. against Wright in the trial. Although the 911 call was hearsay, the court admitted it under Minnesota’s excited …

Appendix: Conjunction-Problem V. Non-Conjunction-Problem Jurisdictions, David S. Schwartz, Elliott Sober

William & Mary Law Review Online

This appendix presents the relevant data from our survey of jury instructions in support of the article in the print edition of the William & Mary Law Review. The Conjunction Problem and the Logic of Jury Findings (59 Wm. & Mary L. Rev. 619, 673-87 (2017))

The Conjunction Problem And The Logic Of Jury Findings, David S. Schwartz, Elliott Sober

William & Mary Law Review

For several decades, evidence theorists have puzzled over the following paradox, known as the “conjunction paradox” or “conjunction problem.” Probability theory appears to tell us that the probability of a conjunctive claim is the product resulting from multiplying the probabilities of its separate conjuncts. In a three element negligence case (breach of duty, causation, damages), a plaintiff who proves each element to a 0.6 probability will have proven her overall claim to a very low probability of 0.216. Either the plaintiff wins the verdict based on this low probability (if the jury focuses on elements), or the plaintiff loses despite …

State V. Thurston: An Examination Of Assualt, Self-Defense, And Trespass In Relation To Domestic Violence, Megan E. Magoon

Maine Law Review

Darrell Thurston and Suzanne Harmon were romantically involved on an intermittent basis for five years and had one child together. As a result of an altercation that took place at Harmon’s home in Sullivan, Maine, on September 27, 2007, between Thurston and Harmon, Thurston was charged with assault, criminal mischief, and obstructing report of crime or injury. The testimony during the trial illuminated the major factual differences between Thurston’s and Harmon’s accounts of the night the incident took place. Thurston requested a self defense jury instruction based on his version of what had happened, which the trial court ultimately denied. …

Juror Assessment Of Certainty About Firearms Identification Evidence, Sarah L. Cooper, Paraic Scanlon

University of Arkansas at Little Rock Law Review

No abstract provided.

Exorcising The Clergy Privilege, Christine P. Bartholomew

Journal Articles

This Article debunks the empirical assumption behind the clergy privilege, the evidentiary rule shielding confidential communications with clergy. For over a century, scholars and the judiciary have assumed generous protection is essential to foster and encourage spiritual relationships. Accepting this premise, all fifty states and the District of Columbia have adopted virtually absolute privilege statutes. To test this assumption, this Article distills data from over 700 decisions — making it the first scholarship to analyze state clergy privilege jurisprudence exhaustively. This review finds a privilege in decline: courts have lost faith in the privilege. More surprisingly, though, so have clergy. …

The Dangers Of E-Discovery And The New Federal Rules Of Civil Procedure, Ryan J. Reeves

Oklahoma Journal of Law and Technology

No abstract provided.

The Moment Of Truth For Fmri: Will Deception Detection Pass Admissibility Hurdles In Oklahoma?, Julie Elizabeth Myers

Oklahoma Journal of Law and Technology

No abstract provided.

Pinging Into Evidence: The Implications Of Historical Cell Site Location Information, Alexandra C. Smith

West Virginia Law Review

No abstract provided.

State Searches, Federal Cases, And Choice Of Law: Just A Little Respect, John B. Corr

John (Bernie) Corr

No abstract provided.

Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

The Virtue Of Process: Finding The Legitimacy Of Judicial Fact-Finding In Personal Injury Litigation, Nayha Acharya

PhD Dissertations

This thesis is an inquiry into the legitimacy of judicial fact-finding in civil litigation. Judges make authoritative factual findings in conditions of uncertainty and the decision-making process cannot, and does not, guarantee the accuracy of those outcomes. Given the inevitable risk of error, on what basis is the authority of judicial fact-finding legitimate? This project provides a framework of procedural legitimacy that bridges two unavoidable aspects of adjudication: factual indeterminacy and the need for justifiably authoritative dispute resolution. This work draws of the legal theories of Lon Fuller and Jurgen Habermas to substantiate the notion of procedural legitimacy in the …

"A Middle Temperature Between The Two": Exploring Intermediate Remedies For The Failure To Comply With Maryland's Eyewitness Identification Statute, Marc A. Desimone Jr.

University of Baltimore Law Review

This article addresses what remedies should be available to a criminal defendant in Maryland who has been identified in an extrajudicial identification procedure that does not comply with the present statutory requirements. Part II of this article provides an overview of the present due process test for evaluating the admissibility of extrajudicial eyewitness identifications, the present Maryland iteration of that test, and alternatives to that approach that have been adopted in other jurisdictions. Part III reviews recent legislative reforms to extrajudicial identification procedures, which are required in Maryland as of January 1, 2016. Section IV.A of this article argues why …

Manipulation Of Suspects And Unrecorded Questioning, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Fifty years after Miranda, courts still do not have clear guidance on the types oftechniques police may use during interrogation. While first-generation tactics (a.k.a. the third degree) are banned, second-generation tactics such as those found in the famous Reid Manual continue to be used by interrogators. The Supreme Court has sent only vague signals as to which of these second- generation techniques, if any, are impermissible, and has made no mention of newly developed third-generation tactics that are much less reliant on manipulation. This Article divides second-generation techniques into four categories: impersonation, rationalization, fabrication, and negotiation. After concluding, based on …

Utah V. Strieff: The Gratuitous Expansion Of The Attenuation Doctrine, Courtney Watkins

Maryland Law Review Online

No abstract provided.

The Cost Of Ab 193: Constitutional Guarantees Sacrificed For Ineffective Means, Paul George

Nevada Law Journal

No abstract provided.

Changing The Culture Of Disclosure And Forensics, Valena Beety

Washington and Lee Law Review Online

This Essay responds to Professor Brandon Garrett’s Constitutional Regulation of Forensic Evidence, and, in particular, his identification of the dire need to change the culture of disclosing forensic evidence. My work on forensics is—similarly to Garrett’s—rooted in both scholarship and litigation of wrongful convictions. From this perspective, I question whether prosecutors fully disclose forensics findings and whether defense attorneys understand these findings and their impact on a client’s case. To clarify forensic findings for the entire courtroom, this Essay suggests increased pre-trial discovery and disclosure of forensic evidence and forensic experts. Forensic analysts largely work in police-governed labs; therefore, …

Mass Suppression: Aggregation And The Fourth Amendment, Nirej Sekhon

Georgia Law Review

The FourthAmendment's exclusionary rule requires that
criminal courts suppress evidence obtained as a result of
an unconstitutionalsearch or seizure. The Supreme Court
has repeatedly stated that suppression is purely
regulatory, not remedial. Its only purpose is to deter
future police misconduct, not to remedy past privacy or
liberty harms suffered by the defendant. Exclusion, in
other words, is for the benefit of community members who
might, sometime in the future, be subject to police
misconduct like that endured by the defendant.
Exclusion's regulatory purpose would be greatly aided if
criminal courts could identify when a suppression motion
involved Fourth Amendment …

What Do I Do With The Porn On My Computer: How A Lawyer Should Counsel Clients About Physical Evidence, Rodney J. Uphoff, Peter A. Joy

Faculty Publications

For years, criminal defense lawyers and commentators have wrestled with thorny ethical and legal issues surrounding defense counsel's obligations with respect to handling items of physical evidence. Commentators have usually focused on the question of whether the lawyer should take possession of physical evidence of a crime as well as on counsel's obligations and options once the lawyer purposively or inadvertently comes into possession of such evidence. After discussing what the ethics rules and the law require concerning handling physical evidence, commentators have generally cautioned lawyers not to take possession of suspected contraband or possible evidence of a crime, except …

Recent Development: Seley-Radtke V. Hosmane: The Standard Of Proof Requirement In A Purely Private Defamation Action For An Individual Asserting A Common Law Conditional Privilege Is Preponderance Of The Evidence, Makeda Curbeam

University of Baltimore Law Forum

The Court of Appeals of Maryland held that a party seeking to overcome a common law conditional privilege in a purely private defamation suit must do so by a preponderance of the evidence. Seley-Radtke v. Hosmane, 450 Md. 468, 474, 149 A.3d 573, 576 (2016). The court also held that evidentiary issues not addressed by the court of special appeals are not subject to review by the court of appeals. Id. at 510, 149 A.3d at 598 (citing Md. R. 8- 131(b)(1)). Further, the court held that prejudicial evidence irrelevant to a claim is not admissible at trial. Seley-Radtke, 450 …

Missing Police Body Camera Videos: Remedies, Evidentiary Fairness, And Automatic Activation, Mary D. Fan

Articles

A movement toward police regulation by recording is sweeping the nation. Responding to calls for accountability, transparency and better evidence, departments have rapidly adopted body cameras. Recording policies require the police to record more law enforcement encounters than ever before. But what happens if officers do not record? This is an important, growing area of controversy. Based on the collection and coding of police department body camera policies, this Article reveals widespread detection and enforcement gaps regarding failures to record as required. More than half of the major-city departments in the sample have no provisions specifying consequences for not recording …

The Wrong Decision At The Wrong Time: Utah V. Strieff In The Era Of Aggressive Policing, Julian A. Cook

Scholarly Works

On June 20, 2016, the United States Supreme Court held in Utah v. Strieff that evidence discovered incident to an unconstitutional arrest of an individual should not be suppressed given that the subsequent discovery of an outstanding warrant attenuated the taint from the unlawful detention. Approximately two weeks later the issue of aggressive policing was again thrust into the national spotlight when two African-American individuals — Alton Sterling and Philando Castile — were killed by policemen in Baton Rouge, Louisiana and Falcon Heights, Minnesota, respectively, under questionable circumstances. Though connected by proximity in time, this article will demonstrate that these …

Notice And Standing In The Fourth Amendment: Searches Of Personal Data, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

In at least two recent cases, courts have rejected service providers' capacity to raise Fourth Amendment claims on behalf of their customers. These holdings rely on longstanding Supreme Court doctrine establishing a general rule against third parties asserting the Fourth Amendment rights of others. However, there is a key difference between these two recent cases and those cases on which the doctrine rests. The relevant Supreme Court doctrine stems from situations in which someone could take action to raise the Fourth Amendment claim, even if the particular thirdparty litigant could not. In the situations presented by the recent cases, by …

Richards Ii Takes A Bite Out Of Forensic Science, Michelle Cornell-Davis

Loyola of Los Angeles Law Review

No abstract provided.

Unpacking Frye-Mack: A Critical Analysis Of Minnesota’S Frye-Mack Standard For Admitting Scientific Evidence, Zach Alter

Mitchell Hamline Law Review

No abstract provided.

Discovering Forensic Fraud, Jennifer Oliva, Valena Beety

Articles by Maurer Faculty

This Essay posits that certain structural dynamics, which dominate criminal proceedings, significantly contribute to the admissibility of faulty forensic science in criminal trials. The authors believe that these dynamics are more insidious than questionable individual prosecutorial or judicial behavior in this context. Not only are judges likely to be former prosecutors, prosecutors are “repeat players” in criminal litigation and, as such, routinely support reduced pretrial protections for defendants. Therefore, we argue that the significant discrepancies between the civil and criminal pretrial discovery and disclosure rules warrant additional scrutiny.

In the criminal system, the near absence of any pretrial discovery means …

Reflections On Motion Picture Evidence, Brian L. Frye

Law Faculty Scholarly Articles

Courts have long admitted motion pictures as evidence. But until recently, making motion pictures was expensive and cumbersome. Today, making motion pictures is cheap and easy. And as a result, people make so many of them. As Cocteau predicted, the democratization of motion pictures has enabled people to create new forms of motion picture art. But it has also enabled people to create new forms of motion picture evidence. This article offers a brief history of motion picture evidence in the United States, and reflects on the use of motion picture evidence by the Supreme Court.