Law Commons^™

"Fact-Finding Without Facts": A Conversation With Nancy Combs, Nancy Amoury Combs

Nancy Combs

No abstract provided.

Trial By Google: Judicial Notice In The Information Age, Jeffrey Bellin, Andrew Guthrie Ferguson

Jeffrey Bellin

This Article presents a theory of judicial notice for the information age. It argues that the ease of accessing factual data on the Internet allows judges and litigants to expand the use of judicial notice in ways that raise significant concerns about admissibility, reliability, and fair process. State and federal courts are already applying the surprisingly pliant judicial notice rules to bring websites ranging from Google Maps to Wikipedia into the courtroom, and these decisions will only increase in frequency in coming years. This rapidly emerging judicial phenomenon is notable for its ad hoc and conclusory nature—attributes that have the …

Improving The Reliability Of Criminal Trials Through Legal Rules That Encourage Defendants To Testify, Jeffrey Bellin

Jeffrey Bellin

Reflecting a traditional bias against defendants' trial testimony, the modern American criminal justice system, which now recognizes a constitutional right to testify at trial, unabashedly encourages defendants to waive that right and remain silent. As a result, a large percentage of criminal defendants decline to testify, forcing juries to decide the question of the defendant's guilt without ever hearing from the person most knowledgeable on the subject.

This Article contends that the inflated percentage of silent defendants in the American criminal trial system is a needless, self-inflected wound, neither required by the Constitution nor beneficial to the search for truth. …

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 …

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

John (Bernie) Corr

No abstract provided.

Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

'False But Highly Persuasive:' How Wrong Were The Probability Estimates In Mcdaniel V. Brown?, David H. Kaye

David Kaye

In McDaniel v. Brown, the Supreme Court will review the use of DNA evidence in a 1994 trial for sexual assault and attempted murder. The Court granted certiorari to consider two procedural issues - the standard of federal postconviction review of a state jury verdict for sufficiency of the evidence, and the district court's decision to allow the prisoner to supplement the record of trials, appeals, and state postconviction proceedings with a geneticist's letter twelve years after the trial.

This essay clarifies the nature and extent of the errors in the presentation of the DNA evidence in Brown. It questions …

Equal Access To Evidence: The Case For The Defense Use Of Immunity For Essential Witnesses, Andrea Lyon

Andrea D. Lyon

No abstract provided.

The Privilege Against Self-Incrimination In Bankruptcy And The Plight Of The Debtor, Timothy R. Tarvin

Timothy R Tarvin

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, …

The Trial Court's Gatekeeper Role Under Frye, Daubert, And Kumho: A Special Look At Children's Cases, John Eric Smithburn

J. Eric Smithburn

No abstract provided.

"Introduction" (Chapter 1) Of Stories About Science In Law: Literary And Historical Images Of Acquired Expertise (Ashgate 2011), David S. Caudill

David S Caudill

This is the introductory chapter of Stories About Science in Law: Literary and Historical Images of Acquired Expertise (Ashgate, 2011), explaining that the book presents examples of how literary accounts can provide a supplement to our understanding of science in law. Challenging the view that law and science are completely different, I focus on stories that explore the relationship between law and science, and identify cultural images of science that prevail in legal contexts. In contrast to other studies on the transfer and construction of expertise in legal settings, the book considers the intersection of three interdisciplinary projects-- law and …

From Gridlock To Groundbreaking: Realizing Reliability In Forensic Science, Jessica D. Gabel

Jessica Gabel Cino

In 2009, The National Academy of Sciences published a scathing report announcing that forensic science is broken and needs to be overhauled. Weaknesses have plagued forensic evidence for decades, and the resulting legal challenges have been hard fought but met with few victories. What we do know is a harsh truth: that faulty forensic science has contributed to the conviction of innocent people—and will continue to do so if the status quo persists.

In recent years, the reality of wrongful convictions has become mainstream through the work of the Innocence Project and other organizations. Out of the 305 DNA-based exonerations …

Full Disclosure: Cognitive Science, Informants, And Search Warrant Scrutiny, Mary Bowman

Mary N. Bowman

Full Disclosure: Cognitive Science, Informants, and Search Warrant Scrutiny

By Mary Nicol Bowman

This article posits that cognitive biases play a significant role in the gap between the rhetoric regarding Fourth Amendment protection and actual practices regarding search warrant scrutiny, particularly for search warrants based on informants’ tips. Specifically, this article examines the ways in which implicit bias, tunnel vision, priming, and hindsight bias can affect search warrants. These biases can affect each stage of the search warrant process, including targeting decisions, the drafting process, the magistrate’s decision whether to grant the warrant, and post-search review by trial and appellate …

Defying Dna: Rethinking The Role Of The Jury In An Age Of Scientific Proof Of Innocence, Andrea L. Roth

Andrea L Roth

In 1946, public outrage erupted after a jury ordered Charlie Chaplin to support a child who, according to apparently definitive blood tests, was not his. Half a century later, juries have again defied apparently definitive evidence of innocence, finding criminal defendants guilty based on a confession or eyewitness notwithstanding exculpatory DNA test results. One might expect judges in such cases to direct an acquittal, on grounds that the evidence is legally insufficient because no rational juror could find guilt beyond a reasonable doubt. Yet few if any do. Instead, courts defer to juries when they form an actual belief in …

Brain Trauma, Pet Scans And Forensic Complexity, Jane Moriarty, Daniel Langleben, James Provenzale

Jane Campbell Moriarty

Positron Emission Tomography (PET) is a medical imaging technique that can be used to show brain function. Courts have admitted PET scan evidence in cases involving brain damage, injury, toxic exposure, or illness ("brain trauma") and to support claims of diminished cognitive abilities and impulse control. Despite the limited data on the relationships between PET, brain trauma and behavior, many courts admit PET scan evidence without much critical analysis. This article examines the use of PET as proof of functional impairment and justification of abnormal behavior by explaining its diagnostic use and limitations, the limited support for claims of its …

Opposing Mr. Big In Principle, David Milward

Dr. David Milward

No abstract provided.

Legally Blind: Hyperadversarialism, Brady Violations, And The Prosecutorial Organizational Culture, Hadar Aviram

Hadar Aviram

Recently, in Connick v. Thompson (2011), the Supreme Court held that the failure of several prosecutors to disclose to the defense the blood type of the perpetrator, which did not match the defendant’s blood type, was not a systematic defect that required training of staff. According to the Court the prosecutors’ misconduct, and lack of training in Brady discovery duties, did not constitute “deliberate indifference” by the municipality, which would have entitled the exonerated defendant to relief under §1983. This Article criticizes the decision--and Brady policies in general—for their narrowness and excessive reliance on indications of intent or bad faith. …

Where Did My Privilege Go? Congress And Its Discretion To Ignore The Attorney-Client Privilege, Don Berthiaume, Jeffrey Ansley

Don R Berthiaume

“The right to counsel is too important to be passed over for prosecutorial convenience or executive branch whimsy. It has been engrained in American jurisprudence since the 18th century when the Bill of Rights was adopted... However, the right to counsel is largely ineffective unless the confidential communications made by a client to his or her lawyer are protected by law.”[1] So said Senator Arlen Specter on February 13, 2009, just seven months before Congress chose to ignore the very privilege he lauded. Why then, if the right to counsel is as important as Senator Specter articulated, does Congress maintain …

Simplifying Discovery And Production- Using Easy Frameworks To Evaluate The 2009 Term Of Cases.Pdf, Eric Carpenter

Eric R. Carpenter

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.

Sharing Sacred Secrets: Is It (Past) Time For A Dangerous Person Exception To The Clergy-Penitent Privilege?, R. Michael Cassidy

R. Michael Cassidy

In this article, the author discusses the important and previously unexplored topic of whether the law should recognize a future harms exception to the clergy-penitent privilege, similar to that recognized in the area of psychotherapist-patient and attorney-client privileges. After tracing the origins and current application of the clergy-penitent privilege in America, the author discusses how the privilege as currently applied in most states admits of no exceptions, and is unnecessarily expansive in breadth. Using the hypothetical of a homicidal spouse who reveals to his minister an intent to murder his wife, the article compares the ethical and legal duties of …