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Full-Text Articles in Law

Due Process People V. Scott (Decided June 5, 1996) Jul 2019

Due Process People V. Scott (Decided June 5, 1996)

Touro Law Review

No abstract provided.


Due Process Court Of Appeals Jul 2019

Due Process Court Of Appeals

Touro Law Review

No abstract provided.


Opting Out Of Discovery, Jay Tidmarsh Jun 2019

Opting Out Of Discovery, Jay Tidmarsh

Jay Tidmarsh

This Article proposes a system in which both parties are provided an opportunity to opt out of discovery. A party who opts out is immunized from dispositive motions, including a motion to dismiss for failure to state a claim or a motion for summary judgment. If neither party opts out of discovery, the parties waive jury-trial rights, thus giving judges the ability to use stronger case-management powers to focus the issues and narrow discovery. If one party opts out of discovery but an opponent does not, the cost of discovery shifts to the opponent. This Article justifies this proposal in ...


A Philosophical Basis For Judicial Restraint, Michael Evan Gold Jun 2019

A Philosophical Basis For Judicial Restraint, Michael Evan Gold

Michael Evan Gold

The purpose of this article is to establish a principled basis for restraint of judicial lawmaking. The principle is that all findings of fact, whether of legislative or adjudicative facts, must be based on evidence in the record of a case. This principle is grounded in moral philosophy. I will begin with a discussion of the relevant aspect of moral philosophy, then state and defend the principle, and finally apply it to a line of cases.


Maryland Makes New Evidence Postconviction Review Provisions Available To Defendants With Plea Deals, Felicia Langel Jun 2019

Maryland Makes New Evidence Postconviction Review Provisions Available To Defendants With Plea Deals, Felicia Langel

Maryland Law Review Online

No abstract provided.


Assessment Of Federal Rule Of Evidence 609 And The Necessity Of A Deeper Collaboration With The Social Sciences For Racial Equality, Carta H. Robison Jun 2019

Assessment Of Federal Rule Of Evidence 609 And The Necessity Of A Deeper Collaboration With The Social Sciences For Racial Equality, Carta H. Robison

Indiana Journal of Law and Social Equality

No abstract provided.


Non-Physician Vs. Physician: Cross-Disciplinary Expert Testimony In Medical Negligence Litigation, Marc D. Ginsberg May 2019

Non-Physician Vs. Physician: Cross-Disciplinary Expert Testimony In Medical Negligence Litigation, Marc D. Ginsberg

Marc D. Ginsberg

The source of the applicable standard of care in a specific medical negligence claim is multifaceted. The testifying expert witness, when explaining the applicable standard of care, “would draw upon his own education and practical frame of reference as well as upon relevant medical thinking, as manifested by literature, educational resources and information available to practitioners, and experiences of similarly situated members of the profession.” Accordingly, in typical medical negligence litigation, the plaintiff’s expert witness testifying regarding the existence of and the defendant-physician’s deviation from the standard of care would be a physician. Why, then, have courts permitted ...


Justice Begins Before Trial: How To Nudge Inaccurate Pretrial Rulings Using Behavioral Law And Economic Theory And Uniform Commercial Laws, Michael Gentithes May 2019

Justice Begins Before Trial: How To Nudge Inaccurate Pretrial Rulings Using Behavioral Law And Economic Theory And Uniform Commercial Laws, Michael Gentithes

William & Mary Law Review

Injustice in criminal cases often takes root before trial begins. Overworked criminal judges must resolve difficult pretrial evidentiary issues that determine the charges the State will take to trial and the range of sentences the defendant will face. Wrong decisions on these issues often lead to wrongful convictions. As behavioral law and economic theory suggests, judges who are cognitively busy and receive little feedback on these topics from appellate courts rely upon intuition, rather than deliberative reasoning, to resolve these questions. This leads to inconsistent rulings, which prosecutors exploit to expand the scope of evidentiary exceptions that almost always disfavor ...


Law Library Blog (April 2019): Legal Beagle's Blog Archive, Roger Williams University School Of Law Apr 2019

Law Library Blog (April 2019): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.


Non-Physician Vs. Physician: Cross-Disciplinary Expert Testimony In Medical Negligence Litigation, Marc D. Ginsberg Apr 2019

Non-Physician Vs. Physician: Cross-Disciplinary Expert Testimony In Medical Negligence Litigation, Marc D. Ginsberg

Georgia State University Law Review

The source of the applicable standard of care in a specific medical negligence claim is multifaceted. The testifying expert witness, when explaining the applicable standard of care, “would draw upon his own education and practical frame of reference as well as upon relevant medical thinking, as manifested by literature, educational resources and information available to practitioners, and experiences of similarly situated members of the profession.” Accordingly, in typical medical negligence litigation, the plaintiff’s expert witness testifying regarding the existence of and the defendant-physician’s deviation from the standard of care would be a physician. Why, then, have courts permitted ...


Addressing Racial Bias In The Jury System: Another Failed Attempt?, Alisa Micu Apr 2019

Addressing Racial Bias In The Jury System: Another Failed Attempt?, Alisa Micu

Georgia State University Law Review

This Note explores the majority opinion and the dissents in Pena- Rodriguez regarding whether the Supreme Court has adequately provided guidance for lower courts to follow the ruling, which now allows exceptions for evidence of racial bias to Rule 606(b). Part I discusses the history of the no-impeachment rule, its foundation in the Sixth Amendment, and its constitutional requirements. Further, Part I discusses the different approaches that courts have taken in adopting Rule 606(b) and what problems courts have identified in its application. Part II analyzes whether the Supreme Court, as a practical matter, has provided a workable ...


Between Brady Discretion And Brady Misconduct, Bennett L. Gershman Apr 2019

Between Brady Discretion And Brady Misconduct, Bennett L. Gershman

Dickinson Law Review

The Supreme Court’s decision in Brady v. Maryland presented prosecutors with new professional challenges. In Brady, the Supreme Court held that the prosecution must provide the defense with any evidence in its possession that could be exculpatory. If the prosecution fails to timely turn over evidence that materially undermines the defendant’s guilt, a reviewing court must grant the defendant a new trial. While determining whether evidence materially undermines a defendant’s guilt may seem like a simple assessment, the real-life application of such a determination can be complicated. The prosecution’s disclosure determination can be complicated under the ...


The Disappointing History Of Science In The Courtroom: Frye, Daubert, And The Ongoing Crisis Of “Junk Science” In Criminal Trials, Jim Hilbert Jan 2019

The Disappointing History Of Science In The Courtroom: Frye, Daubert, And The Ongoing Crisis Of “Junk Science” In Criminal Trials, Jim Hilbert

Faculty Scholarship

Twenty-five years ago, the Supreme Court decided one of the most important cases concerning the use of science in courtrooms. In Daubert v. Merrell Dow Pharmaceuticals , the Court addressed widespread concerns that courts were admitting unreliable scientific evidence. In addition, lower courts lacked clarity on the status of the previous landmark case for courtroom science, Frye v. United States. In the years leading up to the Daubert decision, policy-makers and legal observers sounded the alarm about the rise in the use of "junk science" by so-called expert witnesses. Some critics went so far as to suggest that American businesses and ...


Between Brady Discretion And Brady Misconduct, Bennett L. Gershman Jan 2019

Between Brady Discretion And Brady Misconduct, Bennett L. Gershman

Pace Law Faculty Publications

The Supreme Court’s decision in Brady v. Maryland presented prosecutors with new professional challenges. In Brady, the Supreme Court held that the prosecution must provide the defense with any evidence in its possession that could be exculpatory. If the prosecution fails to timely turn over evidence that materially undermines the defendant’s guilt, a reviewing court must grant the defendant a new trial. While determining whether evidence materially undermines a defendant’s guilt may seem like a simple assessment, the real-life application of such a determination can be complicated. The prosecution’s disclosure determination can be complicated under the ...


A Philosophical Basis For Judicial Restraint, Michael Evan Gold Jan 2019

A Philosophical Basis For Judicial Restraint, Michael Evan Gold

Articles and Chapters

The purpose of this article is to establish a principled basis for restraint of judicial lawmaking. The principle is that all findings of fact, whether of legislative or adjudicative facts, must be based on evidence in the record of a case. This principle is grounded in moral philosophy. I will begin with a discussion of the relevant aspect of moral philosophy, then state and defend the principle, and finally apply it to a line of cases.


Where The Constitution Falls Short: Confession Admissibility And Police Regulation, Courtney E. Lewis Jan 2019

Where The Constitution Falls Short: Confession Admissibility And Police Regulation, Courtney E. Lewis

Dickinson Law Review

A confession presented at trial is one of the most damning pieces of evidence against a criminal defendant, which means that the rules governing its admissibility are critical. At the outset of confession admissibility in the United States, the judiciary focused on a confession’s truthfulness. Culminating in the landmark case Miranda v. Arizona, judicial concern with the reliability of confessions shifted away from whether a confession was true and towards curtailing unconstitutional police misconduct. Post-hoc constitutionality review, however, is arguably inappropriate. Such review is inappropriate largely because the reviewing court must find that the confession was voluntary only by ...


Myth, Inference And Evidence In Sexual Assault Trials, Lisa Dufraimont Jan 2019

Myth, Inference And Evidence In Sexual Assault Trials, Lisa Dufraimont

Articles & Book Chapters

In sexual assault cases, the ability to distinguish myths and stereotypes from legitimate lines of reasoning continues to be a challenge for Canadian courts. The author argues that this challenge could be overcome by clearly identifying problematic inferences in sexual assault cases as prohibited lines of reasoning, while allowing the defence to bring forward evidence that is logically relevant to the material issues so long as it does not raise these prohibited inferences.

This paper advances that judges should take a broad view of relevance as an evidentiary approach in the adjudication of sexual assault cases. This approach allows for ...


A Game Of Katso And Mouse: Current Theories For Getting Forensic Analysis Evidence Past The Confrontation Clause, Ronald J. Coleman, Paul F. Rothstein Dec 2018

A Game Of Katso And Mouse: Current Theories For Getting Forensic Analysis Evidence Past The Confrontation Clause, Ronald J. Coleman, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The Sixth Amendment’s Confrontation Clause ensures that an “accused” in a “criminal prosecution[]” has the right “to be confronted with the witnesses against him [.]” Although perhaps a simple concept, defining the scope of confrontation rights has proved extremely difficult. The law has had particular difficulty scoping confrontation rights in forensic analysis cases, such as those where the prosecution seeks to utilize a laboratory report of DNA, blood alcohol content, narcotics, or other “CSI” type analysis. In this connection, Justice Gorsuch recently authored an opinion dissenting from denial of certiorari in Stuart v. Alabama, in which he recognized the “decisive ...


Revenge Porn, Thomas Lonardo, Tricia P. Martland, Rhode Island Bar Journal Nov 2018

Revenge Porn, Thomas Lonardo, Tricia P. Martland, Rhode Island Bar Journal

Life of the Law School (1993- )

No abstract provided.


2018 Changes To The Evidence Act And Criminal Procedure Code - The Criminal Justice Reform Bill And Evidence (Amendment) Bill, Siyuan Chen, Eunice Chua Oct 2018

2018 Changes To The Evidence Act And Criminal Procedure Code - The Criminal Justice Reform Bill And Evidence (Amendment) Bill, Siyuan Chen, Eunice Chua

Research Collection School Of Law

Various portions of the Evidence Act and Criminal Procedure Code were amended in 2018 vide the Criminal Justice Reform Bill and Evidence (Amendment) Bill; this was a continuation of a series of gradual but important changes to the criminal justice system that had begun in 2010 when the old Criminal Procedure Code was replaced. This legislation comment outlines and briefly analyses some of the most substantive changes brought about by the 2018 amendments: the video-recording of interviews in criminal proceedings; the introduction of a psychiatrist panel to regulate the reception of evidence from expert psychiatric witnesses in criminal proceedings; and ...


Will Rule 401(B) Ever Be Predictable, Sean D. Thomas Sep 2018

Will Rule 401(B) Ever Be Predictable, Sean D. Thomas

West Virginia Law Review

No abstract provided.


The Privilege Doctrines--Are They Just Another Discovery Tool Utilized By The Tobacco Industry To Conceal Damaging Information?, Christine Hatfield Aug 2018

The Privilege Doctrines--Are They Just Another Discovery Tool Utilized By The Tobacco Industry To Conceal Damaging Information?, Christine Hatfield

Pace Law Review

This Comment will analyze the tobacco companies' use of the privilege doctrines to avoid litigation over the past thirty years, specifically focusing on the last fifteen years of litigation between this industry and its accusers. Part II of this Comment will discuss the pertinent discovery rules and the manner in which they are abused. Part III will examine the development, scope and limitations of the attorney-client privilege and work product doctrines, considering with particularity the corporate context and the applicability of the crime-fraud exception to these doctrines. Part IV will review the case law of the tobacco litigation, focusing on ...


Limited Admissibility And Its Limitations, Lisa Dufraimont Jul 2018

Limited Admissibility And Its Limitations, Lisa Dufraimont

Lisa Dufraimont

Among the challenges facing juries and judges in adjudicating cases is the obligation to use evidence for limited purposes. Evidence inadmissible for one purpose is frequently admissible for other purposes, a situation known as "limited admissibility". Where limited admissibility arises in jury trials, courts generally deliver limiting instructions outlining the inferences that can legitimately be drawn from the evidence and identifying prohibited lines of reasoning to be avoided. Limiting instructions represent an expedient solution to limited-admissibility problems, but they create obvious problems of their own. A thoughtful observer might suspect-as psychological studies confirm-that limiting instructions are likely to fail in ...


The Paragraph 20 Paradox: An Evaluation Of The Enforcement Of Ethical Rules As Substantive Law, Donald E. Campbell Jul 2018

The Paragraph 20 Paradox: An Evaluation Of The Enforcement Of Ethical Rules As Substantive Law, Donald E. Campbell

St. Mary's Journal on Legal Malpractice & Ethics

This Article addresses an issue courts across the country continue to struggle with: When are ethics rules appropriately considered enforceable substantive obligations, and when should they only be enforceable through the disciplinary process? The question is complicated by the ethics rules themselves. Paragraph 20 of the Scope section of the Model Rules of Professional Conduct includes seemingly contradictory guidance; it states the Rules are not to be used to establish civil liability, but also that they can be “some evidence” of a violation of a lawyer’s standard of care. Most states have adopted this paradoxal Paragraph 20 language. Consequently ...


Causation And "Legal Certainty" In Legal Malpractice Law, Vincent R. Johnson Jul 2018

Causation And "Legal Certainty" In Legal Malpractice Law, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

A line of California cases holds that causation of damages in legal malpractice actions must be proven with “legal certainty.” This Article argues that judicial references to legal certainty are ambiguous and threaten to undermine the fairness of legal malpractice litigation as a means for resolving lawyer-client disputes. Courts should eschew the language of legal certainty and plainly state that damages are recoverable if a legal malpractice plaintiff proves, by a preponderance of the evidence, that those losses were factually and proximately caused by the defendant’s breach of duty.


Rwu First Amendment Blog: David Logan's Blog: Discovering Trump 06-22-2018, David A. Logan Jun 2018

Rwu First Amendment Blog: David Logan's Blog: Discovering Trump 06-22-2018, David A. Logan

Law School Blogs

No abstract provided.


Hearsay In The Smiley Face: Analyzing The Use Of Emojis As Evidence, Erin Janssen Jun 2018

Hearsay In The Smiley Face: Analyzing The Use Of Emojis As Evidence, Erin Janssen

St. Mary's Law Journal

Abstract forthcoming


Review Of Privileged Documents In Trial And Deposition Preparation Of Witnesses In New York: When, If Ever, Will The Privilege Be Lost?, Michael J. Hutter May 2018

Review Of Privileged Documents In Trial And Deposition Preparation Of Witnesses In New York: When, If Ever, Will The Privilege Be Lost?, Michael J. Hutter

Pace Law Review

This article will examine New York’s refreshing recollection doctrine in the context of trial and deposition preparation of witnesses as to the consequences of the witness’s review of privileged writings. Initially, Part II will discuss Rule 612 of the Federal Rules of Evidence. The discussion will serve as the backdrop for the analysis of the above-mentioned issues under New York law. Part III will then examine the refreshing recollection doctrine as developed and applied to testifying witnesses at a trial or deposition by the New York courts. The examination will point out the doctrine’s key rules. Part ...


Termination Of Hospital Medical Staff Privileges For Economic Reasons: An Appeal For Consistency, June D. Zellers, Michael R. Poulin May 2018

Termination Of Hospital Medical Staff Privileges For Economic Reasons: An Appeal For Consistency, June D. Zellers, Michael R. Poulin

Maine Law Review

The relationship between physicians and hospitals is undergoing significant change. Historically, a physician maintained a private practice in the community and looked to the local hospital for ancillary support when his or her patients were too ill to remain at home. This community-based physician gained access to the hospital by obtaining medical staff privileges. These privileges allowed the physician to admit patients to the hospital, treat patients while they were there, and use the hospital's staff and equipment. The physician generally enjoyed the use of the privileges throughout his or her active career, losing them only if found incompetent ...


Life After Daubert V. Merrell Dow: Maine As A Case Law Laboratory For Evidence Rule 702 Without Frye, Leigh Stephens Mccarthy Apr 2018

Life After Daubert V. Merrell Dow: Maine As A Case Law Laboratory For Evidence Rule 702 Without Frye, Leigh Stephens Mccarthy

Maine Law Review

In reaching its recent decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court grappled not with case law but with fundamental questions about the nature of science and its role in law. The court in Daubert addressed the problematic issue of admissibility of expert scientific testimony. In the end the Court rejected as an exclusionary rule the venerable standard set in 1923 by Frye v. United States. Frye held that scientific testimony was to be excluded unless it had gained “general acceptance” in its field. Daubert held that Rule 702 of the Federal Rules of Evidence ...