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Articles 1 - 30 of 40
Full-Text Articles in Law
Admissibility Of Scientific Evidence Under Daubert: The Fatal Flaws Of ‘Falsifiability’ And ‘Falsification’, Barbara P. Billauer Esq
Admissibility Of Scientific Evidence Under Daubert: The Fatal Flaws Of ‘Falsifiability’ And ‘Falsification’, Barbara P. Billauer Esq
barbara p billauer esq
Abstract: The Daubert mantra demands that judges, acting as gatekeepers, prevent para, pseudo or ‘bad’ science from infiltrating the courtroom. To do so, the Judges must first determine what “science” is? And then, what ‘good science’ is? It is submitted that Daubert is seriously polluted with the notions of Karl Popper who sets ‘falsifiability’ and ‘falsification’ as the demarcation line for that determination. This inapt philosophy has intractably infected case law, leading to bad decisions immortalized as stare decisis. Among other problems, is the intolerance of Popper’s system for multiple causation, a key component of toxic- torts. Thus, the primary …
Experts, Statistics, Science & Bad Science, Curtis E.A. Karnow
Experts, Statistics, Science & Bad Science, Curtis E.A. Karnow
Curtis E.A. Karnow
Articles, books, and other online resources relating to expert testimony with a specific focus on problems with peer review, bad science, and statistics
Daubert Debunked: A History Of Legal Retrogression A History Of Legal Retrogression And The Need To Reassess ‘Scientific Admissibility’, Barbara P. Billauer Esq
Daubert Debunked: A History Of Legal Retrogression A History Of Legal Retrogression And The Need To Reassess ‘Scientific Admissibility’, Barbara P. Billauer Esq
barbara p billauer esq
Abstract: With ‘novel’ scientific discoveries accelerating at an unrelenting pace, the need for accessible and implementable standards for evaluating the legal admissibility of scientific evidence becomes more and more crucial. As science changes, legal standards for evaluating ‘novel’ science must be plastic enough to respond to fast-moving changes. This, ostensibly, was the Daubert objective. Since it was decided in 1993, however, Daubert’s impact has been hotly contested -- with plaintiffs and defendants each claiming the decision unfairly favors the other side. New approaches are constantly suggested to deal with the perceived impact, although there is no uniform consensus of exactly …
Implementing The Lessons From Wrongful Convictions: An Empirical Analysis Of Eyewitness Identification Reform Strategies, Keith A. Findley
Implementing The Lessons From Wrongful Convictions: An Empirical Analysis Of Eyewitness Identification Reform Strategies, Keith A. Findley
Keith A Findley
Learning about the flaws in the criminal justice system that have produced wrongful convictions has progressed at a dramatic pace since the first innocent individuals were exonerated by postconviction DNA testing in 1989. Application of that knowledge to improving the criminal justice system, however, has lagged far behind the growth in knowledge. Likewise, while considerable scholarship has been devoted to identifying the factors that produce wrongful convictions, very little scholarly attention has been devoted to the processes through which knowledge about causes is translated into reforms.
Using eyewitness misidentification—one of the leading contributors to wrongful convictions and the most thoroughly …
Visualizing Dna Proof, Nicholas L. Georgakopoulos
Visualizing Dna Proof, Nicholas L. Georgakopoulos
Nicholas L Georgakopoulos
DNA proof inherently involves the use of probability theory, which is often counterintuitive. Visual depictions of probability theory, however, can clarify the analysis and make it tractable. A DNA hit from a large database is a notoriously difficult probability theory issue, yet the visuals should enable courts and juries to handle it. The Puckett facts are an example of a general approach: A search in a large DNA database produces a hit for a cold crime from 1972 San Francisco. Probability theory allows us to process the probabilities that someone else in the database, someone not in the database, or …
Dumping Daubert, Popping Popper And Falsifying Falsifiability: A Re-Assessment Of First Principles, Barbara P. Billauer Esq
Dumping Daubert, Popping Popper And Falsifying Falsifiability: A Re-Assessment Of First Principles, Barbara P. Billauer Esq
barbara p billauer esq
Abstract: The Daubert mantra demands that judges, acting as gatekeepers, prevent para, pseudo or bad science from infiltrating the courtroom. To do so, the Judges must first determine what is ‘science’ and what is ‘good science.’ It is submitted that Daubert is deeply polluted with the notions of Karl Popper who sets ‘falsifiability’ and ‘falsification’ as the demarcation line for that determination. This philosophy has intractably infected case law, leading to bad decisions immortalized as stare decisis, and an unworkable system of decision-making, which negatively impacts litigant expectations. Among other problems is the intolerance of Popper’s system for multiple causation, …
Please Provide The Entire Electronic Medical Record, Jonathan H. Lomurro Esq. Llm
Please Provide The Entire Electronic Medical Record, Jonathan H. Lomurro Esq. Llm
Jonathan H. Lomurro Esq. LLM
No abstract provided.
Gay Panic And The Case For Gay Shield Laws, Kelly Strader, Molly Selvin, Lindsey Hay
Gay Panic And The Case For Gay Shield Laws, Kelly Strader, Molly Selvin, Lindsey Hay
Kelly Strader
In a highly publicized “gay panic” case, Brandon McInerney shot and killed Larry King in their middle school classroom. King was a self-identified gay student who sometimes wore jewelry and makeup to school and, according to those who knew him, was possibly transgender. Tried as an adult for first-degree murder, McInerney asserted a heat of passion defense based upon King’s alleged sexual advances. The jury deadlocked, with a majority accepting McInerney’s defense. Drawing largely upon qualitative empirical research, this article uses the Larry King murder case as a prism though which to view the doctrinal, theoretical, and policy bases of …
Litigation Technology For The Modern Practitioner, Jonathan H. Lomurro Esq. Llm, Christopher T. Campbell Esq, Matthew K. Blaine Esq, Stephanie L. Lomurro Esq, Christina V. Harvey Esq
Litigation Technology For The Modern Practitioner, Jonathan H. Lomurro Esq. Llm, Christopher T. Campbell Esq, Matthew K. Blaine Esq, Stephanie L. Lomurro Esq, Christina V. Harvey Esq
Jonathan H. Lomurro Esq. LLM
No abstract provided.
Breaking The Ice: How Plaintiffs May Establish Premises Liability In "Black Ice" Cases Where The Dangerous Condition Is By Definition Not Visible Or Apparent To The Property Owner, Hon. Mark Dillon
Hon. Mark C. Dillon
Plaintiffs that are injured as a result of encounters with "black ice," as distinguished from regular ice, face peculiar difficulties in establishing liability against property owners for the dangerous icy conditions on their premises. Black ice results from a unique process under certain conditions by which air bubbles are expelled from water during the freezing process, rendering the ice virtually invisible to the naked eye. Property owners therefore are not typically on actual or constructive notice of black ice conditions as to become subject to the legal requirement of undertaking measures to remedy the conditions. This article explores the law …
Discretion Abused: Reinterpreting The Appellate Standard Of Review For Hearsay, Matthew J. Peterson
Discretion Abused: Reinterpreting The Appellate Standard Of Review For Hearsay, Matthew J. Peterson
Matthew J. Peterson
Matthew J. Peterson, Discretion Abused: Reinterpreting the Appellate Standard of Review for Hearsay
Abstract:
The decision by a federal a court to exclude or admit hearsay can be crucial to the case of either party. Despite this prospective impact, the federal courts of appeal currently defer to district courts’ expertise by reviewing a district court’s decision to admit or exclude hearsay for an abuse of discretion. Such deference often insulates district courts’ incorrect interpretation of the rule against hearsay and the improper application of the exclusions and exceptions to the rule from appellate reversal.
Lowering the standard of review for …
Evidence And The Pursuit Of Truth In The Law, Jeffery L. Johnson
Evidence And The Pursuit Of Truth In The Law, Jeffery L. Johnson
Jeffery L Johnson
Lawyers should be much more concerned with the concepts of truth and evidence. The entire profession depends on truth. It is what police detectives, District Attorneys, juries, trial judges, appellate judges, and academic lawyers offering interpretive theories, are all concerned with. But, since truth is seldom apparent on its sleeve, these legal actors are equally dependent on evidence as the only(?) reliable(?) means of determining truth. I defend a commonsensical theory of [good] evidence. I argue that this view, inference to the best explanation, captures most, if not all, of a lawyer’s appeal to evidence. It is far from clear, …
Rationality, Insanity, And The Insanity Defense: Reflections On The Limits Of Reason, Theodore Y. Blumoff
Rationality, Insanity, And The Insanity Defense: Reflections On The Limits Of Reason, Theodore Y. Blumoff
Theodore Y. Blumoff
Individuals who suffer from chronic paranoid ideations live with deeply embedded conspiratorial delusions that are sometimes accompanied by unwanted visual and/or auditory stimuli, sometime neither: just psychotic delusions in which they feel as if they have lost control of their lives – and of course they have, albeit not from the performances of foreign forces. When those perceived forces persevere for even a fairly short period of time, they can dictate the performance of evil deeds that the individual ultimately feels helpless to oppose. What observations and findings from neuroscience make clear is that such individuals do not lack knowledge, …
Finding The Foregone Conclusions Of Encryption, Timothy A. Wiseman
Finding The Foregone Conclusions Of Encryption, Timothy A. Wiseman
Timothy A Wiseman
Encryption is commonly used to protect private information, for both legitimate and illegitimate reasons. Courts have been struggling to determine when, within the bounds of the Fourth and Fifth Amendments, the Courts may compel a defendant in a criminal case to decrypt their data.
This article argues that a broad use of the Forgone Conclusion doctrine would permit the Courts to order a defendant to decrypt their data when the prosecution can show with reasonable particularity the existence and location of the encrypted documents, that they are likely to be incriminating, and that the government can authenticate them without the …
Back To The Future: The Constitution Requires Reasonableness And Particularity—Introducing The “Seize But Don’T Search” Doctrine, Adam Lamparello, Charles E. Maclean
Back To The Future: The Constitution Requires Reasonableness And Particularity—Introducing The “Seize But Don’T Search” Doctrine, Adam Lamparello, Charles E. Maclean
Adam Lamparello
Issuing one-hundred or fewer opinions per year, the United States Supreme Court cannot keep pace with opinions that match technological advancement. As a result, in Riley v. California and United States v. Wurie, the Court needs to announce a broader principle that protects privacy in the digital age. That principle, what we call “seize but don’t search,” recognizes that the constitutional touchstone for all searches is reasonableness.
When do present-day circumstances—the evolution in the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies—become so thoroughly unlike those considered by the Supreme Court thirty-four years …
A Canada Evidence Code Should Replace The Canada Evidence Act, Ken Chasse Mr.
A Canada Evidence Code Should Replace The Canada Evidence Act, Ken Chasse Mr.
Ken Chasse Mr.
The need for codification of the law of evidence in Canada, and the failed effort to enact an Evidence Code. A detailed description of the national consultation process and its results is provided.
Proving Customary Law In Uganda: Roadmaps And Roadblocks, David B. Dennison
Proving Customary Law In Uganda: Roadmaps And Roadblocks, David B. Dennison
David Brian Dennison
Customary law is second-class law in Uganda. While customary law applies in many “grass root” settings, customary law struggles for legitimacy within formal legal environments. Matters of customary proof exemplify this disconnect. Ugandan methods of customary proof are the product of British colonial precedent. Despite longstanding calls for revised approaches, little has changed since Uganda’s independence in 1962. The colonially crafted framework of customary proof devalues custom and culture. In terms of proof, Ugandan courts treat customary law less favorably than foreign law. Judges have no duty to know customary law. Instead customary law is a fact to be proved. …
Crawford & Its Progeny In Texas & The Nation's Other State Supreme Courts, Dannye Holley
Crawford & Its Progeny In Texas & The Nation's Other State Supreme Courts, Dannye Holley
Dannye Holley
CRAWFORD & ITS PROGENY IN TEXAS & THE
NATION’S OTHER STATE SUPREME COURTS
This article is designed to track three major conceptual themes. First, the elusive pursuit of scholarship which engages both the practicing bar and academics. Second, how our federalism is shaped by the interaction of the “Supreme Courts”. Finally, identifying metrics upon which to base a principled assessment of whether a United States Supreme Court decision is a “watershed” decision.
The article documents that Crawford and its progeny have created a powerful convergence of the interests of academics and the practicing bar. It does so by making reference …
Civil Litigation In Spain: How To Practice Evidence In Civil Procedure, Elena Martinez
Civil Litigation In Spain: How To Practice Evidence In Civil Procedure, Elena Martinez
Elena Martinez
Evidence Law and Practice is the key to succeed on a civil procedure. It is possible to have some rights, but if they cannot be proved the desired legal consequences will not be obtained and the proceedings will not finish in a satisfactory manner. In this article we will explain that civil procedure evidence is governed by the dispositive principle and all the principles arising out of it. The rights disputed in civil procedure are private rights, that is, available to the parties. In this regard the parties are entitled to take action and therefore bring a claim, which means …
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.
The Piranha Is As Deadly As The Shark: A Case For The Limitation On Deceptive Practices In Dna Collection, Brett A. Bauman
The Piranha Is As Deadly As The Shark: A Case For The Limitation On Deceptive Practices In Dna Collection, Brett A. Bauman
Brett A Bauman
Police deception tactics are utilized throughout the United States as a way to catch unsuspecting criminals. Although criticized in many respects, most deceptive police techniques are not only legal, but are actually encouraged. DNA collection and analysis is no exception—techniques are frequently used by law enforcement officers in an attempt to collect a suspect’s genetic specimen in the interest of solving crimes. While law enforcement officers typically have the best interests of society in mind, the current practices employed by officers to collect suspects’ DNA violate the Fourth Amendment. The Fourth Amendment provides protection against unreasonable searches and seizures, and …
Crawford, Confrontation And Mental States, Kevin C. Mcmunigal
Crawford, Confrontation And Mental States, Kevin C. Mcmunigal
Kevin C. McMunigal
This essay seeks to explain and help remedy the confusion generated by Crawford v. Washington, the landmark Supreme Court confrontation clause case. Many have taken the Crawford line of cases, the most recent of which came down this past June, to task for lack of clarity and coherence. My thesis is that the primary source of the Crawford cases’ ambiguity is their poor handling of four key mental state questions. I argue that clearer treatment of these is the way out of the current morass. I use criminal law’s treatment of mental state as a foil against which to compare …
Cipa V. State Secrets: How A Few Mistakes Confused Two Important National Security Privileges, Elisa Poteat
Cipa V. State Secrets: How A Few Mistakes Confused Two Important National Security Privileges, Elisa Poteat
Elisa Poteat
No abstract provided.
Timeless Trial Strategies And Tactics: Lessons From The Classic Claus Von Bülow Case, Daniel M. Braun
Timeless Trial Strategies And Tactics: Lessons From The Classic Claus Von Bülow Case, Daniel M. Braun
Daniel M Braun
In this new Millennium -- an era of increasingly complex cases -- it is critical that lawyers keep a keen eye on trial strategy and tactics. Although scientific evidence today is more sophisticated than ever, the art of effectively engaging people and personalities remains prime. Scientific data must be contextualized and presented in absorbable ways, and attorneys need to ensure not only that they correctly understand jurors, judges, witnesses, and accused persons, but also that they find the means to make their arguments truly resonate if they are to formulate an effective case and ultimately realize justice. A decades-old case …
The System Of Modern Criminal Conspiracy, Steven R. Morrison
The System Of Modern Criminal Conspiracy, Steven R. Morrison
Steven R Morrison
Something has changed in the modern system of American criminal conspiracy law compared to its prior iterations. This article explores that change, arguing that the system of modern criminal conspiracy now gives to the government such great discretion to charge and prove a conspiracy that unpopular ideas and the speech that expresses them have become ready subjects of prosecution. At its center, this article defines the system of modern conspiracy law, which is one of uniformity rather than dynamism. Where dynamic systems of law contain distinct components that perform different tasks (proving actus reus and mens rea, for example), the …
Deliberating Beyond Evidence: Lessons From Integrated Assessment Modelling, Elisa Vecchione
Deliberating Beyond Evidence: Lessons From Integrated Assessment Modelling, Elisa Vecchione
Elisa Vecchione
The premises of this paper rely on associating policy inertia toward action on climate change with the inadequacy of the classical ‘liability culture’ of evidence-based policy-making to deal with this global environmental challenge. To provide support to this hypothesis, the following discussion analyses the technical properties and the current policy use of Integrated Assessment Modelling (IAM) of economic-climate interactions. The paper contends that IAM is still not clarified enough as far as its potential for information-production in the framework of policy making processes is concerned, and that this fact is symptomatic of the current inability of societies to undertake the …
Images In/Of Law, Jessica M. Silbey
Images In/Of Law, Jessica M. Silbey
Jessica Silbey
The proliferation of images in and of law lends itself to surprisingly complex problems of epistemology and power. Understanding through images is innate; most of us easily understand images without thinking. But arriving at mutually agreeable understandings of images is also difficult. Translating images into shared words leads to multiple problems inherent in translation and that pose problems for justice. Despite our saturated imagistic culture, we have not established methods to pursue that translation process with confidence. This article explains how images are intuitively understood and yet collectively inscrutable, posing unique problems for resolving legal conflicts that demand common and …
Social Media And Legal Ethics, Jonathan I. Ezor
Social Media And Legal Ethics, Jonathan I. Ezor
Jonathan I. Ezor
A presentation on the legal issues arising out of attorney use of social media services, including for electronic discovery
Declaración De La Parte Como Medio De Prueba, Felipe Marín Verdugo
Declaración De La Parte Como Medio De Prueba, Felipe Marín Verdugo
Felipe Marín Verdugo
The Chilean judicial procedures went from a written procedure to a hearing-based procedure. This change involved a new design for the trial hearing and, in particular, for the rules of evidence. The meaning of these changes is not yet well understood, making it easier for the survival of former practices of the written system within the new hearing-based system. This paper identifies on of them, which is the exclusion of parties as witnesses.
Admissibility Of Electronic Documents, Curtis E.A. Karnow
Admissibility Of Electronic Documents, Curtis E.A. Karnow
Curtis E.A. Karnow
A comprehensive inventory of issues involved in the introduction of electronic evidence, including practical alerts