Law Commons^™

Liar, Liar, Jury's The Trier? The Future Of Neuroscience-Based Credibility Assessment And The Court, John B. Meixner Jr.

Scholarly Works

Neuroscience-based credibility-assessment tests have recently become increasingly mainstream, purportedly able to determine whether an individual is lying to a certain set of questions (the Control Question Test) or whether an individual recognizes information that only a liable person would recognize (the Concealed Information Test). Courts have hesitated to admit these tests as evidence for two primary reasons. First, following the general standard that credibility assessment is a matter solely for the trier of fact, courts exclude the evidence because it impinges on the province of the jury. Second, because these methods have not been rigorously tested in realistic scenarios, courts …

Judicial Gatekeeping And The Seventh Amendment: How Daubert Infringes Upon The Constitutional Right To A Civil Jury Trial, Brandon L. Boxler

W&M Law Student Publications

This Article begins by reviewing the history, purpose, and function of the Seventh Amendment within the American constitutional system. It then discusses the Supreme Court‘s analytical framework for preserving the fundamental features of the right to a civil jury trial while simultaneously permitting rational legal development of the jury system. Next, the Article provides a brief overview of the Court‘s Daubert jurisprudence, and argues that the creation of judicial gatekeeping has caused an institutional shift of adjudicatory authority away from juries and into the hands of judges in violation of the Seventh Amendment. The Article concludes by suggesting three legal …

Forensic Science: Why No Research?, Paul C. Giannelli

Faculty Publications

The National Academy of Sciences ground-breaking report on forensic science – Strengthening Forensic Science in the United States: A Path Forward – raised numerous issues. One dominant theme that runs throughout the Report is the failure of some forensic science disciplines to comport with fundamental scientific principles – in particular, to support claims with empirical research. The Report observed that “some forensic science disciplines are supported by little rigorous systematic research to validate the discipline’s basic premises and techniques. There is no evident reason why such research cannot be conducted.”

The Report went on to identify fingerprint examinations, firearms (ballistics) …

Comparative Bullet Lead Analysis: A Retrospective, Paul C. Giannelli

Faculty Publications

For over thirty years, FBI experts testified about comparative bullet lead analysis (CBLA), a technique that was first used in the investigation into President Kennedy’s assassination. CBLA compares trace chemicals found in bullets at crime scenes with ammunition found in the possession of a suspect. This technique was used by the FBI when firearms (“ballistics”) identification could not be employed – for example, if the weapon was not recovered or the bullet was too mutilated to compare striations. Although the FBI eventually ceased using CBLA, the Bureau’s conduct in first employing the technique and then defending it after it was …

More Views From The Ivory Tower: The Kiss Principle - Keep It Simple, Solicitor, David Spratt

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Everything New Is Old Again: Brain Fingerprinting And Evidentiary Analogy, Alexandra J. Roberts

Law Faculty Scholarship

Brain Fingerprinting uses electroencephalography to ascertain the presence or absence of information in a subject's brain based on his reaction to particular stimuli. As a new forensic tool, Brain Fingerprinting technology stands poised to exert a tremendous impact on the presentation and outcome of selected legal cases in the near future. It also provides a fertile case study to examine the role of analogical reasoning in the process by which lawyers, experts, judges, and the media influence how factjinders perceive and evaluate unfamiliar types of proof When juridical metaphor disguises, distorts, or destroys ideas, it ceases to serve as an …

What Do Snowmobiles, Mercury Emissions, Greenhouse Gases, And Runoff Have In Common?: The Controversy Over "Junk Science", Linda A. Malone

Faculty Publications

No abstract provided.

Ake V. Oklahoma: The Right To Expert Assistance In A Post-Daubert, Post-Dna World, Paul C. Giannelli

Faculty Publications

Although securing the services of defense experts to examine evidence, to advise counsel, and to testify at trial is frequently critical in modern criminal litigation, it was not until 1985 that the United States Supreme Court in Ake v. Oklahoma, 470 U.S. 68 (1985), recognized, for the first time, a constitutional right to expert assistance. In a system in which an overwhelming majority of criminal defendants are indigent, Ake was a landmark case. Nevertheless, the Ake Court could not have anticipated how the advent of DNA evidence would revolutionize forensic science or how the Daubert trilogy would alter the judicial …

The Admissibility Of Dna Evidence, David H. Kaye

Journal Articles

In contrast to the widespread acceptance of red blood cell grouping, blood serum protein and enzyme analysis, and HLA typing, the evidentiary status of forensic applications of recombinant-DNA technology is in flux. A proper evidentiary analysis must attend to the fact that there is no single method of DNA typing. As with the more established genetic tests, the probative value of the laboratory findings depends both on the procedure employed and the genetic characteristics that are discerned. This paper describes some of these procedures and the theory that lies behind them, and then considers the developing case law. Given the …

What Is Bayesianism? A Guide For The Perplexed, David H. Kaye

Journal Articles

Bayes' Theorem, Bayesian statistics and Bayesian inference have been the subject of sharp dispute in various writings about legal rules of evidence and proof. This article disentangles the many meanings of "Bayesianism." It sketches several competing interpretations of probability, some leading schools of statistical inference, and the elements of Bayesian decision theory. In the process, it notes the aspects of Bayesian theory that have been applied in studies of forensic proof.

Resolving The Frye Dilemma: A Reliability Approach, Fredric I. Lederer

Faculty Publications

No abstract provided.

Constitutional Limitations On Obtaining Evidence For Scientific Analysis, Paul C. Giannelli

Faculty Publications

No abstract provided.