Law Commons^™

Shifting The Male Gaze Of Evidence, Teneille R. Brown

Utah Law Faculty Scholarship

In this article I target the altar at which many of us worship—the pursuit of rationality. For evidence purposes, rationality is defined as decisions that are reasonable, objective, inductive, and free from the bias of emotion. This view of rationality is deeply embedded in evidence scholarship and practice. It is also reflected in evidence rules like FRE 403, which treat emotional testimony as unfairly prejudicial simply because it is emotional. The anti-emotion view of rationality reflects the thinking of Western philosophical giants. Plato, Hobbes, Descartes, and Bacon all thought that men should strive for rationality by suppressing their emotions, because …

The Intersections Among Science, Technology, Policy And Law: In Between Truth And Justice, Paolo Davide Farah, Justo Corti Varela

Book Chapters

Different visions on the interaction between science, technology, policy and law have been presented. As common axe, we can detect the continuous search for truth and justice. Science and Law as social constructs, the distinction between truths and opinions through procedural method based on evidence and rationality, or how natural science “things” became facts, and consequently “truth”, are examples of this search. The evidence-gathering process that integrates scientific evidence into trial (sometimes by procedure and other times by a more substantive approach) is another possible approach. Of course, that the game of mutual influence among the four elements creates contradictions …

The Challenge Of Convicting Ethical Prosecutors That Their Profession Has A Brady Problem, Adam M. Gershowitz

Adam M. Gershowitz

In recent decades, both the media and legal scholars have documented the widespread problem of prosecutors failing to disclose favorable evidence to the defense – so called Brady violations. Despite all of this documentation however, many ethical prosecutors reject the notion that the criminal justice system has a Brady problem. These prosecutors – ethical lawyers who themselves have not been accused of misconduct – believe that the scope of the Brady problem is exaggerated. Why do ethical prosecutors downplay the evidence that some of their colleagues have committed serious errors?

This essay, in honor of Professor Bennett Gershman, points to …

The Challenge Of Convincing Ethical Prosecutors That Their Profession Has A Brady Problem, Adam M. Gershowitz

Faculty Publications

In recent decades, both the media and legal scholars have documented the widespread problem of prosecutors failing to disclose favorable evidence to the defense – so called Brady violations. Despite all of this documentation however, many ethical prosecutors reject the notion that the criminal justice system has a Brady problem. These prosecutors – ethical lawyers who themselves have not been accused of misconduct – believe that the scope of the Brady problem is exaggerated. Why do ethical prosecutors downplay the evidence that some of their colleagues have committed serious errors?

This essay, in honor of Professor Bennett Gershman, points to …

Deceptively Simple: Framing, Intuition And Judicial Gatekeeping Of Forensic Feature-Comparison Methods Evidence, Jane Campbell Moriarty

Jane Campbell Moriarty

Panel Discussion: Ethnographic Evidence

Northwestern Journal of Law & Social Policy

No abstract provided.

From Simple Statements To Heartbreaking Photographs And Videos: An Interdisciplinary Examination Of Victim Impact Evidence In Criminal Cases, Mitchell J. Frank

Faculty Scholarship

No abstract provided.

Evaluating The Evaluation: Reliance Upon Mental Health Assessments In Cases Of Alleged Child Sexual Abuse, Sarah F. Shelton

Nevada Law Journal

No abstract provided.

Hiding The Elephant: How The Psychological Techniques Of Magicians Can Be Used To Manipulate Witnesses At Trial, Sydney A. Beckman

Nevada Law Journal

No abstract provided.

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, …

Tell Us A Story But Don’T Make It A Good One: Embracing The Tension Regarding Emotional Stories And The Federal Rule Of Evidence 403, Cathren Koehlert-Page

Faculty Scholarship

No abstract provided.

Neuroprediction: New Technology, Old Problems, Stephen J. Morse

All Faculty Scholarship

Neuroprediction is the use of structural or functional brain or nervous system variables to make any type of prediction, including medical prognoses and behavioral forecasts, such as an indicator of future dangerous behavior. This commentary will focus on behavioral predictions, but the analysis applies to any context. The general thesis is that using neurovariables for prediction is a new technology, but that it raises no new ethical issues, at least for now. Only if neuroscience achieves the ability to “read” mental content will genuinely new ethical issues be raised, but that is not possible at present.

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, …

Tell Us A Story, But Don't Make It A Good One: Resolving The Confusion Regarding Emotional Stories And Federal Rule Of Evidence 403, Cathren Page

Cathren Page

Abstract: Tell Us a Story, But Don’t Make It A Good One: Resolving the Confusion Regarding Emotional Stories and Federal Rule of Evidence 403 by Cathren Koehlert-Page Courts need to reword their opinions regarding Rule 403 to address the tension between the advice to tell an emotionally evocative story at trial and the notion that evidence can be excluded if it is too emotional. In the murder mystery Mystic River, Dave Boyle is kidnapped in the beginning. The audience feels empathy for Dave who as an adult becomes one of the main suspects in the murder of his friend Jimmy’s …

Law And Neuroscience: Recommendations Submitted To The President's Bioethics Commission, Owen D. Jones, Richard J. Bonnie, B. J. Casey, Andre Davis, David L. Faigman, Morris Hoffman, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth Scott, Laurence Steinberg, Kim Taylor-Thompson, Anthony Wagner, Gideon Yaffe

All Faculty Scholarship

President Obama charged the Presidential Commission for the Study of Bioethical Issues to identify a set of core ethical standards in the neuroscience domain, including the appropriate use of neuroscience in the criminal-justice system. The Commission, in turn, called for comments and recommendations. The MacArthur Foundation Research Network on Law and Neuroscience submitted a consensus statement, published here, containing 16 specific recommendations. These are organized within three main themes: 1) what steps should be taken to enhance the capacity of the criminal justice system to make sound decisions regarding the admissibility and weight of neuroscientific evidence?; 2) to what extent …

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.

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 …

Adult Survivors Of Childhood Sexual Abuse And The Statute Of Limitations: The Need For Consistent Application Of The Delayed Discovery Rule, Gregory G. Gordon

Pepperdine Law Review

No abstract provided.

Psychotherapist And Patient In The California Supreme Court: Ground Lost And Ground Regained, Stanley Mosk

Pepperdine Law Review

No abstract provided.

Predators And Propensity: The Proper Approach For Determining The Admissibility Of Prior Bad Acts Evidence In Child Sexual Abuse Prosecutions, Basyle Tchividjian

Faculty Publications and Presentations

PREDATORS AND PROPENSITY: THE PROPER APPROACH FOR DETERMINING THE ADMISSIBILITY OF PRIOR BAD ACTS EVIDENCE IN CHILD SEXUAL ABUSE PROSECUTIONS

Basyle J. Tchividjian†

Abstract

The admissibility of prior bad act evidence in child sexual abuse prosecutions oftentimes makes the difference between a guilty and not guilty verdict. Recently, jurisdictions have growingly embraced the admission of such evidence for the purpose of establishing the defendant’s propensity to sexually victimize children. Due to the potentially high prejudicial effect of admitting propensity evidence, it is more critical than ever that courts carefully apply the decisive evidentiary gatekeeper, the probative value balancing test …

Predators And Propensity: The Proper Approach For Determining The Admissibility Of Prior Bad Acts Evidence In Child Sexual Abuse Prosecutions, Basyle Tchividjian

Basyle Tchividjian

The admissibility of prior bad act evidence in child sexual abuse prosecutions oftentimes makes the difference between a guilty and not guilty verdict. Recently, jurisdictions have growingly embraced the admission of such evidence for the purpose of establishing the defendant’s propensity to sexually victimize children. Due to the potentially high prejudicial effect of admitting propensity evidence, it is more critical than ever that courts carefully apply the decisive evidentiary gatekeeper, the probative value balancing test of Federal Rule of Evidence 403 and its state equivalents. Over the years, courts and legislators have attempted to develop analytical frameworks to be used …

The Unabomber Revisited: Reexamining The Use Of Mental Disorder Diagnoses As Evidence Of The Mental Condition Of Criminal Defendants, Adam K. Magid

Indiana Law Journal

This Article revisits a longstanding debate concerning the appropriateness of diagnostic evidence in criminal cases in which a defendant’s mental condition is at issue. As illustrated through a case study of Theodore Kaczynski, more widely known as the “Unabomber,” a diagnosis of paranoid schizophrenia poses a risk of confounding a judge or jury attempting to ascertain an accurate picture of the mental state of a criminal defendant, specifically by (i) suggesting symptoms not actually present, (ii) creating a distorted picture of symptoms that are present, and (iii) suggesting organic, determinative factors as the mechanism behind a defendant’s actions, even where …

A Matter Of Context: Social Framework Evidence In Employment Discrimination Class Actions, Melissa Hart, Paul M. Secunda

Publications

In litigation disputes over the certification of employment discrimination class actions, social scientists have come to play a central, yet controversial, role. Organizational behavioralists and social psychologists regularly testify for the plaintiffs, offering what is commonly referred to as social framework testimony. These experts explain the general social science research on the operation of stereotyping and bias in decision making and examine the challenged workplace to identify those policies and practices that research has shown will tend to increase and those that will tend to limit the likely impact of these factors. Defendants fight hard against the admission of social …

His Brain Has Been Mismanaged With Great Skill: How Will Jurors Respond To Neuroimaging Testimony In Insanity Defense Cases, Michael L. Perlin

Articles & Chapters

The robust debate over neuroimaging has highlighted a series of law-and-policy questions dealing primarily with reliability, admissibility and availability. When we consider the topic that I will be addressing in this paper - the impact of this evidence on juror decision-making in insanity defense cases - we need to recalibrate our focus so as to incorporate other questions that are as essential (most likely, more essential) to the resolution of the underlying dilemma: (1) to what extent will such evidence - apparently, less inherently easy to falsify - have on jurors whose inherent suspicion of mental state opinion testimony is …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Forgetting Freud: The Courts' Fear Of The Subconscious In Date Rape (And Other) Criminal Cases, Andrew E. Taslitz

ExpressO

Courts too often show a reluctance to learn the lessons taught by social science in criminal cases, especially where subconcious processes are involved. The subconscious is seen as rarely relevant and, in the unusual cases where it is relevant, it is viewed as a disease commandeering the conscious mind and thus helping to exculpate the accused. Drawing on the example of forensic linguistics in date rape cases as illustrative of a broader phenomenon, this article argues that the courts' misuse of social science stems from fear and misunderstanding of the workings of the subconscious mind. Accordingly, the piece contrasts the …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Dangerousness And Expertise Redux, Christopher Slobogin

ExpressO

Civil commitment, confinement under sexual predator laws, and many capital and noncapital sentences depend upon proof of a propensity toward violence. This article discusses the current state of prediction science, in particular the advantages and disadvantages of clinical and actuarial prediction, and then analyzes how the rules of evidence should be interpreted in deciding whether opinions about propensity should be admissible. It concludes that dangerousness predictions that are not based on empirically-derived probability estimates should be excluded from the courtroom unless the defense decides otherwise. This conclusion is not bottomed on the usual concern courts and commentators raise about expert …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Cross-Examining The Brain: A Legal Analysis Of Neural Imaging For Credibility Impeachment, Charles N. W. Keckler

ExpressO

The last decade has seen remarkable process in understanding ongoing psychological processes at the neurobiological level, progress that has been driven technologically by the spread of functional neuroimaging devices, especially magnetic resonance imaging, that have become the research tools of a theoretically sophisticated cognitive neuroscience. As this research turns to specification of the mental processes involved in interpersonal deception, the potential evidentiary use of material produced by devices for detecting deception, long stymied by the conceptual and legal limitations of the polygraph, must be re-examined. Although studies in this area are preliminary, and I conclude they have not yet satisfied …