Law Commons^™

Criminal Law—When The Pillow Talks: Arkansas's Rape Shield Statute Bars Dna Evidence Excluding The Defendant As The Source Of Semen. Thacker V. State, 2015 Ark. 406, 474 S.W.3d 65., Lacon Marie Smith

University of Arkansas at Little Rock Law Review

No abstract provided.

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

University of Arkansas at Little Rock Law Review

No abstract provided.

Demystifying Burdens Of Proof And The Effect Of Rebuttable Evidentiary Presumptions In Civil And Criminal Trials, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

Evidentiary presumptions in law act as shortcuts to rigorous proof. By means of an evidentiary presumption, a difficult-to-prove critical fact may be established by proving some other more easily provable subsidiary fact from which the critical fact may be presumed. This accounts for the popularity of these presumptions with trial lawyers.

But the puzzling question has always been, “What effect on the normal processes of trial, does a legal presumption have, especially when there is other evidence pro and con on the presumed fact?” This article aims to shed light on these problems, and to examine the arsenal of tools …

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. …

Barnett Vs. Corson. Libel—Truth Of Statement As A Defence—Malice—Act Of Apr. 11, 1901, Construed

Dickinson Law Review (2017-Present)

No abstract provided.

Avoid These Eleven Common Evidentiary Mistakes, John E. Rumel

Articles

No abstract provided.

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.

Evidence: Admissibility Vs. Weight In Scientific Testimony, David Faigman

The Judges' Book

No abstract provided.

Possession Of Child Exploitation Material In Computer Temporary Internet Cache, Sungmi Park, Yunsik Jake Jang, Joshua I. James

Journal of Digital Forensics, Security and Law

When considering the possession of child exploitation material U.S. and German courts have the same focus, but slightly different interpretations. This slight difference in interpretation could mean that in one country a defendant will be found guilty of possession while in the other country he or she could be found not guilty. In this work we examine the standards courts in Germany and the United States have used to combat child pornography, and analyze the approaches specifically related to viewing and possession of CEM. A uniform solution is suggested that criminalizes “knowing access with the intention to view” as a …

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

West Virginia Law Review

No abstract provided.

Discovering Forensic Fraud, Jennifer D. Oliva, Valena E. Beety

Northwestern University Law Review

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 …

The Unintended Consequences Of California Proposition 47: Reducing Law Enforcement’S Ability To Solve Serious, Violent Crimes, Shelby Kail

Pepperdine Law Review

For many years, DNA databases have helped solve countless serious, violent crimes by connecting low-level offenders to unsolved crimes. Because the passage of Proposition 47 reduced several low-level crimes to misdemeanors, which do not qualify for DNA sample collection, Proposition 47 has severely limited law enforcement’s ability to solve serious, violent crimes through California’s DNA database and reliable DNA evidence. This powerful law enforcement tool must be preserved to prevent additional crimes from being committed, to exonerate the innocent, and to provide victims with closure through conviction of their assailants or offenders. Proposition 47’s unintended consequences have led to devastating …

Adjudicated Juveniles And Collateral Relief, Joshua A. Tepfer, Laura H. Nirider

Maine Law Review

Collateral relief is a vital part of the American criminal justice system. By filing post-conviction petitions after the close of direct appeal, defendants can raise claims based on evidence outside the record that was not known or available at the time of trial. One common use of post-conviction relief is to file a claim related to a previously unknown constitutional violation that occurred at trial, such as ineffective assistance of counsel. If a defendant’s trial attorney performed ineffectively by failing to call, for instance, an alibi witness, then that omission is unlikely to be reflected in the trial record—but in …

Commissioning Innocence And Restoring Confidence: The North Carolina Innocence Inquiry Commission And The Missing Deliberative Citizen, Mary Kelly Tate

Maine Law Review

Since 1989, the United States has witnessed 289 DNA exonerations, with exonerees serving an average of thirteen years in prison. Although DNA an its unmatched power for the conclusive results is what brought popular attention to wrongful convictions, the scope of the problem is vastly larger than the number of known DNA exonerations. The actual number of convicted individuals who are factually innocent is unknown. The state of North Carolina has recently responded to this national crisis via a newly created state agency. This essay applauds North Carolina’s response, but urges that ordinary citizens, qua jurors, be active participants in …

Evidence, W. Randall Bassett, Val Leppert, Stephen A. Mccullers

Mercer Law Review

The 2016 term of the United States Court of Appeals for the Eleventh Circuit included important precedential opinions on a number of evidence topics. For example, in four cases the court considered what evidence constitutes "testimonial out-of-court statements" that are precluded by the Sixth Amendment's Confrontation Clause unless the declarant is unavailable and the defendant has a prior opportunity for cross-examination. The court also considered the interplay between a defendant's Sixth Amendment right to an effective cross-examination and the district court's authority to limit the scope of cross-examination.

The court issued two published opinions of importance regarding the Fifth Amendment …

Electronic Discovery, K. Alex Khoury

Mercer Law Review

At the end of 2015, the Federal Rules of Civil Procedure were amended to reform the discovery process with three main goals in mind: (1) promoting cooperation between the parties, (2) emphasizing proportionality in discovery, and (3) encouraging active case management by the courts. This Article will examine how the courts in the Eleventh Circuit interpreted and applied the new rules in 2016 and consider whether the new rules are having their desired effect on E-Discovery practice.

Policing The Immigrant Identity, Eda Katharine Tinto

Florida Law Review

Information concerning an immigrant’s “identity” is critical evidence used by the government in a deportation proceeding. Today, the government collects immigrant identity evidence in a variety of ways: a local police officer conducts a traffic stop and obtains a driver’s name and date of birth, fingerprints taken at booking link to previously acquired biographical information, and a search of a national database reveals a person’s country of origin. Data suggests that in an increasing number of cases, police collect immigrant identity evidence following an unlawful search and seizure in violation of the Fourth Amendment to the U.S. Constitution. In immigration …

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

John (Bernie) Corr

No abstract provided.

The Forensic Community Can Educate Lawyers, Judges, Robert M. Sanger

Robert M. Sanger

An Evidentiary Oddity: “Careful Habit” – Does The Law Of Evidence Embrace This Archaic/Modern Concept?, 43 Ohio N.U. L. Rev. 293 (2017), Marc Ginsberg

Marc D. Ginsberg

The concept of the “careful habit”[i] is intriguing. The law of evidence vigorously distinguishes between character evidence (largely inadmissible)[ii] and habit evidence (presumptively admissible).[iii] Character is understood as a propensity to act in a certain fashion[iv]—a person’s disposition. Habit is understood as non-volitional, repetitive specific conduct, in response to stimuli, over a rather lengthy period of time.[v] “Carefulness” is known by the law as a character trait.[vi] Carefulness should not be confused with habit, yet this confusion has occurred in multiple jurisdictions, many years ago and recently. This paper seeks to explore the development of the curious and anomalous concept …

Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Absolute Immunity: General Principles And Recent Developments, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

The British Experience With Hearsay Reform: A Cautionary Tale, Mark S. Brodin

Mark S. Brodin

Among the proposals being considered by the Advisory Committee on the Federal Rules of Evidence (“the Committee”) is the scrapping of the categorical exception regime for hearsay, leaving questions of reliability and admissibility ad hoc to district court judges along the lines of Federal Rules of Evidence (FRE) 403 and 807. Over the past decades, the British have moved toward this approach, and it is the purpose of this Article to identify the lessons that can be learned from that experience, especially with regard to criminal prosecutions and the right of confrontation.

Small Cells, Big Problems: The Increasing Precision Of Cell Site Location Information And The Need For Fourth Amendment Protections, Robert M. Bloom, William T. Clark

Robert M. Bloom

The past fifty years has witnessed an evolution in technology advancement in police surveillance. Today, one of the essential tools of police surveillance is something most Americans carry with them in their pockets every day, the cell phone. Cell phones not only contain a huge repository of personal data, they also provide continuous surveillance of a person’s movement known as cell site location information (CSLI). In 1986, Congress sought to provide some privacy protections to CSLI in the Stored Communication Act. Although this solution may have struck the proper balance in an age when cell phones were a mere novelty …

Evidence Issues In Indian Law Cases, Taylor S. Fielding

American Indian Law Journal

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 …

59. Ask Versus Tell: Potential Confusion When Child Witnesses Are Questioned About Conversations, Stacia N. Stolzenberg, Kelly Mcwilliams, Thomas D. Lyon

Thomas D. Lyon

Minimum Education Requirements For Crime Scene Investigators, Araseli Saldivar

Themis: Research Journal of Justice Studies and Forensic Science

The initial crime scene investigation is critical since it is the primary step in the investigative process; therefore, individuals assigned to process a scene should be highly educated. Improperly educated (or uneducated) crime scene investigators (CSIs) can mishandle evidence during an investigation, affecting the outcome of cases. The minimum education requirement for CSIs should transition from a high school diploma—the current requirement—toward a bachelor’s degree. The importance of acquiring a college-level education is observed in a study conducted on crime scene examiners in Australia. To determine the educational requirement for CSIs in the United States, information was gathered electronically from …

Optimizing Collection Of Trace Biological Samples From Vehicle Headrests, Kevin Tang, Jesse Ramirez, John Bond, Jocelyn Weart, Yvette Delatorre, Ian Fitch, Steven Lee

Themis: Research Journal of Justice Studies and Forensic Science

Tape-lifting and swabbing are two methods commonly used for collecting biological samples in the United Kingdom and United States to investigate vehicle crimes. Determining the optimal collection method may lead to an increase in generating DNA profiles and crime-solving. The objective of this study is to evaluate the efficiency of adhesive tape and the double-swab collection methods for investigating vehicle crimes with possible touch DNA samples. Two experiments were conducted to evaluate the use of tape-lifts and swabs on spiked common vehicle fabric materials. The efficiency of recovery between the two collection methods was performed using qPCR. The results from …