Law Commons^™

The Hearsay Rule At Work: Has It Been Abolished De Facto By Judicial Decision, Eleanor Swift

Eleanor Swift

No abstract provided.

The Hallmark Of A Champion—Or Not, Robert Sanger

Robert M. Sanger

Two decisions that just came down, one from the United States Supreme Court and the other from the California Supreme Court. The former is Hall v. Florida and the latter is In re Champion on Habeas Corpus. The Hall and Champion cases, although they do not cite each other, both discuss significant issues with regard to who is eligible for execution under the Atkins decision.

Hall and Champion perpetuate the myth that capital punishment can be imposed accurately and consistently. Additionally, both cases contain serious errors in interpreting science while suggesting that life and death decisions can be based on …

Workshop | Body Worn Video Recorders: The Socio-Technical Implications Of Gathering Direct Evidence, Katina Michael, Alexander Hayes

Alexander Hayes Mr.

- From in-car video recording to body-worn video recording

- Exploring available technologies: how do they work, pros and cons

- Storing direct evidence in secure storage: factors to consider

- Citizens “shooting” back with POV tech – what are their rights?

- Crowdsourced sousveillance- harnessing public data for forensic profiling

- Police force policies and practices on the application of new media

Presenting Expert Testimony - An American Perspective, James Seckinger

James H. Seckinger

No abstract provided.

Evidence In Context: A Trial Evidence Workbook, James Seckinger, Robert Burns, Steven Lubet

James H. Seckinger

No abstract provided.

Criminal And Scientific Evidence: Cases, Materials And Problems, Jimmy Gurule, Robert Goodwin

Jimmy Gurule

No abstract provided.

Criminal And Forensic Evidence: Cases, Materials, Problems. 3rd Edition., Jimmy Gurule, Robert Goodwin

Jimmy Gurule

This unique casebook adopts a modern, comprehensive approach to the study of evidence issues that arise in the context of criminal trial litigation. It covers evidentiary issues associated with the admission of forensic evidence, including expert testimony, as well as traditional evidence issues, such as evidence of prior bad acts offered for purposes other than to prove propensity, and evidence of a rape victim's prior sexual behavior. The materials are presented in two parts that allow for a Criminal Evidence course focused solely on forensic science, solely on traditional criminal evidentiary issues, or a combination of both topics. The Third …

Criminal And Scientific Evidence: Cases, Materials And Problems. 2nd Edition., Jimmy Gurule, Robert Goodwin

Jimmy Gurule

No abstract provided.

Using Video Link To Take Forensic Evidence - Lessons From An Australian Case Study, Anne Wallace

Anne Wallace Professor

This article examines the use of audio-visual communications technology (specifically, video link) to enable courts to receive forensic evidence in criminal cases. It outlines the legislative powers to take evidence via video link in Australia, identifying their broad discretionary nature, and analysing relevant case law on their interpretation. The article then discusses empirical findings from an Australian case study in a jurisdiction where a police forensic service has a policy to promote the use of this technology to take evidence from its staff. The findings suggest that, although the policy has had some success in influencing the approach of courts …

The Persuasive Powers Of Dna: An Experimental Study In Perceptions Of Expert Evidence, Robyn Lincoln, Adam Southerland, Madeleine Jarrett-Luck

Robyn Lincoln

This article presents the results of an experimental study where mock-jurors were tasked with interpreting the presentation of DNA evidence. The 200 university student participants were exposed to one of five murder scenarios where the information about the DNA evidence was manipulated. The results showed that participants were more likely to convict when the DNA match statistic was presented as a probability (0.1%) and focused on the defendant, less likely to convict when it was presented as a frequency (1 in 1,000) and focused on a broader reference group, and even less likely in the control scenario with no DNA …

Managing Big Data In Complex Litigation, Robert Sanger

Robert M. Sanger

Any lawyer doing complex litigation, civil or criminal, has confronted what seems like an insurmountable sea of data. Many of us have used computer relational database programs and otherwise fought through the mass of information to prepare to try a case. There have been some advancements in managing data made by law enforcement in recent years to make their investigations manageable. During law enforcement investigations, the goal is somewhat different than that of the lawyer preparing for trial; however, the concepts are useful.

Government Denial Under Oath – Hidta, Hemisphere And Parallel Construction, Robert Sanger

Robert M. Sanger

In September of last year, the New York Times reported on a remarkable program of the United States Government that involved spying on domestic phone records without a warrant.1 The news had a limited independent impact as it seemed to be lost in the disclosures of Michael Snowden regarding the National Security Administration (NSA), which purportedly was aimed at foreign terrorists but also included domestic targets. Yet, this program, called “Hemisphere,” was authorized by the Office of the President of the United States, Office of Drug Control Policy, under the High Intensity Drug Trafficking Area Program (HIDTA) and it primarily …

Shredded Fish,, Robert Sanger

Robert M. Sanger

There are just too many criminal laws and their proliferation has expanded exponentially over the last few decades. This is overcriminalization. In addition, the jurisdiction of federal authorities under general or vague laws has vastly expanded federal criminal prosecution of people and organizations for what otherwise would not be a crime. This is overfederalization and overcriminalization. In this article we will look at the current litigation before the United States Supreme Court that had directly taken on this controversy. The case of Yates v. United States involves briefing by the parties and by amici curae directly invoking and defending the …

Brady Reconstructed: An Overdue Expansion Of Rights And Remedies, Leonard Sosnov

Leonard N Sosnov

Over fifty years ago, the Supreme Court held in Brady v Maryland, 373 U.S. 83 (1963), that the Due Process Clause requires prosecutors to disclose materially favorable evidence to the defense. The Brady Court emphasized the need to treat all defendants fairly and to provide each accused with a meaningful opportunity to present a defense. While Brady held great promise for defendants to receive fundamentally fair access to evidence, the subsequent decisions of the Court have fallen short of meeting this promise.

Since Brady, the Court has limited the disclosure obligation by failing to separately determine rights and remedies. Additionally, …

Canudo On Evidence: Laws Of New York, Gary Shaw

Gary M. Shaw

No abstract provided.

Bullets, Bad Florins, And Old Boots: A Report Of The Indiana Trial Judges Seminar On The Judge's Control Over Demonstrative Evidence, Thomas Shaffer

Thomas L. Shaffer

No abstract provided.

Book Review: Carl Cranor, Toxic Torts: Science, Law, And The Possibility Of Justice, David Caudill

David S Caudill

Carl F. Cranor’s Toxic Torts: Science, Law, and the Possibility of Justice is a sustained, comprehensive argument that the Daubert gatekeeping regime has tilted the playing field against injured plaintiffs in toxic tort litigation. More generally, Cranor joins those who argue that the Daubert regime has not fared well in practice. Complex scientific evidence is not handled well in trials because scientific methods, data, and inferential reasoning are not well understood by gatekeeping judges. Cranor’s goal is to help solve this problem by offering a detailed description of the patterns of reasoning, evidence collection, and inference in nonlegal scientific settings. …

Legal Ethics And Scientific Testimony: In Defense Of Manufacturing Uncertainty, Deconstructing Expertise And Other Trial Strategies, David Caudill

David S Caudill

No abstract provided.

Speaking Science To Law, Deborah Hussey Freeland

Deborah M. Hussey Freeland

involving a strong scientific consensus, the powerful qualities of scientific knowledge are easily lost in translation. Moreover, even prominent scientists who are committed to providing accurate information to legal fact-finders may suffer reputational harm simply for participating in an adversarial process.

This article analyzes the connection between law and science through the expert witness from the perspectives of epistemology and cross-cultural communication, focusing on the distinct ways in which scientists and lawyers know, value and express their knowledge. When a lawyer meets with a scientific expert witness, more confusion attends their interaction than either likely realizes. Linguistic translation is necessary--but …

Misconvictions: When Law & Science Collide, Jane Moriarty

Jane Campbell Moriarty

Forthcoming 2013.

New York Law Of Domestic Violence, Deseriee Kennedy

Deseriee A. Kennedy

NEW YORK LAW OF DOMESTIC VIOLENCE, 3rd ed., is a comprehensive 2-volume, 7-chapter, hardbound treatise published by West (Thomson-Reuters). The treatise is the seminal authority on domestic violence in New York State covering New York State laws and relevant U.S. Supreme Court cases. The authors of the book are Professor Breger (Albany Law School, Albany, NY), Professor Kennedy (Touro School of Law, Central Islip, NY), Jill M. Zuccardy, Esq. (New York City), and now retired Judge Lee Hand Elkins (formerly Brooklyn Family Court). The treatise and its authors have been cited as authority repeatedly by trial and appellate courts, as …

Toward A Neuroscience Model Of Tort Law: How Functional Neuroimaging Will Transform Tort Doctrine, Jean Eggen, Eric Laury

Jean M. Eggen

The “neuroscience revolution” has now gained the attention of legal thinkers and is poised to be the catalyst for significant changes in the law. Over the past several decades, research in functional neuroimaging has sought to explain a vast array of human thought processes and behaviors, and the law has taken notice. Although functional neuroimaging is not yet close to being a staple in the courtroom, the information acquired from these studies has been featured in a handful of cases, including a few before the United States Supreme Court. Our assertion involves the incorporation of functional neuroscience evidence in tort …

Evidence - A Contemporary Approach (2nd Edition), Sydney Beckman, Susan Crump, Fred Galves

Sydney A. Beckman

The 2nd Edition has been reorganized to reflect feedback from users and provides a comprehensive treatment of the former rules while highlighting the new language of the restyling project. The FREs are presented in a clear and concise format that is accessible and engaging to students. The casebook features a novel visual display and layout that uses text boxes, diagrams, and color/border segregated feature sections for hypotheticals, references to scholarly debates, useful information for students, and questions to provoke thought. Additional logic maps have been added providing a visual overview of challenging concepts. The chapter on the confrontation clause has …

China's Evidentiary And Procedural Reforms, The Federal Rules Of Evidence, And The Harmonization Of Civil And Common Law, John J. Capowski

John J. Capowski

Etchings On Glass: Reflections On The Science Of Proof, Louise Harmon

Louise Harmon

No abstract provided.

The Business Records Exception To The Hearsay Rule - New Is Not Necessarily Better, Sidney Kwestel

Sidney Kwestel

No abstract provided.

Flickering Admissibility: Neuroimaging Evidence In The U.S. Courts, Jane Moriarty

Jane Campbell Moriarty

This article explores the admissibility of neuroimaging evidence in U.S. courts, recognizing various trends in decisions about such evidence. While courts have routinely admitted some neuroimages, such as CT scans and MRI, as proof of trauma and disease, they have been more circumspect about admitting the PET and SPECT scans and fMRI evidence. With the latter technologies, courts have often expressed reservations about what can be inferred from the images. Moreover, courts seem unwilling to find neuroimaging sufficient to prove either insanity or incompetency, but are relatively lenient about admitting neuroimages in death penalty hearings. Some claim that fMRI and …

Establishing Separate Criminal And Civil Evidence Codes, John J. Capowski

John J. Capowski

Symposium Foreward: Daubert, Innocence, And The Future Of Forensic Science, Jane Moriarty

Jane Campbell Moriarty

The years since Daubert have not been kind to those seeking to challenge prosecutorial expert evidence, as many of the Symposium authors recognize. After two decades of trying to convince courts that there is no empirical basis for handwriting identification testimony declaring a match between two samples, Michael Risinger claims to be packing his bags and leaving the island until there is a more conducive climate for examining the reliability problems.

The Uses Of History In Crawford V. Washington, Frank Herrmann

Frank R. Herrmann, S.J.

To a striking degree, both the majority and concurring opinions in Crawford v. Washington are replete with references to Anglo-American historical materials, used to support differing conclusions about the application of the Confrontation Clause to testimonial hearsay. This essay sets out Justice Scalia's and Chief Justice Rehnquist's historical arguments and then employs the standards of legal historians to evaluate whether the two opinions use history in a valid manner. The essay concludes that the "history" in Crawford is not that of an historian, but is a "usable past," as conceived by Cass Sunstein and Stephen Griffin.