Law Commons^™

Replacing The Exclusionary Rule With Administrative Rulemaking, Francis A. Gilligan, Fredric I. Lederer

Fredric I. Lederer

No abstract provided.

The Exclusion Of Evidence In The United States, Paul Marcus

Paul Marcus

No abstract provided.

Restrictions On Law Enforcement Investigation And Prosecution Of Crime, Paul Marcus

Paul Marcus

No abstract provided.

Australia And The United States: Two Common Criminal Justice Systems Uncommonly At Odds, Paul Marcus, Vicki Waye

Paul Marcus

At first glance the criminal justice systems of Australia and the United States look strikingly similar. With common law roots from England, they both emphasize the adversary system, the roleof the advocate, the presumption of innocence, and an appeals process. Upon closer reflection,however, they appear starkly different. From both Australian and U.S. perspectives, the authorsexplore those differences, examining important features such as the exclusion of evidence, rules regarding interrogation, the entrapment defense, and the open nature of trials. The Article concludes with an analysis of the reasons for those differences, reasons that heavily relate back to the founding of the …

Doing Away With The Exclusionary Rule, Francis A. Gilligan, Fredric I. Lederer

Fredric I. Lederer

No abstract provided.

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 …

Promising Protection: 911 Call Records As Foundation For Family Violence Intervention, James G. Dwyer

James G. Dwyer

No abstract provided.

Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Probability, Individualization, And Uniqueness In Forensic Science Evidence: Listening To The Academies, David H. Kaye

David Kaye

Day in and day out, criminalists testify to positive, uniquely specific identifications of fingerprints, bullets, handwriting, and other trace evidence. A committee of the National Academy of Sciences, building on the writing of academic commentators, has called for sweeping changes in the presentation and production of evidence of identification. These include some form of circumscribed and standardized testimony. But the Academy report is short on the specifics of the testimony that would be legally and professionally allowable. This essay outlines possible types of testimony that might harmonize the testimony of criminalists with the actual state of forensic science. It does …

Do We Need A Calculus Of Weight To Understand Proof Beyond A Reasonable Doubt?, David H. Kaye

David Kaye

The commentary on a paper by L.J. Cohen, prepared for a symposium on probability and inference in the law of evidence, shows that the legal requirement of proof beyond a reasonable doubt can be understood simply as demanding a sufficiently high probability that the prosecution's narrative or story of the facts, which captures all the elements of the offense, is true. No separate measure of the "weight" of the totality of the evidence is required to understand the burden of persuasion. Any incompleteness in the evidence can be accounted for by a conditional probability that includes the presence of any …

Case Comment - People V. Nelson: A Tale Of Two Statistics, David H. Kaye

David Kaye

In recent years, defendants who were identified as a result of a search through a database of DNA profiles have argued that the probability that a randomly selected person would match a crime-scene stain overstates the probative value of the match. The statistical literature is divided, with most statisticians who have written on the subject rejecting this claim. In People v. Nelson, the Supreme Court of California held that when the random-match probability is so small as to make it exceedingly unlikely that any unrelated individual has the incriminating DNA profile, this statistic is admissible in a database-search case. …

'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 …

Bill Cosby, The Lustful Disposition Exception, And The Doctrine Of Chances, Wesley Oliver

Wesley M Oliver

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 …

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

Andrea D. Lyon

No abstract provided.

The Importance Of Being Empirical, Michael Heise

Michael Heise

Legal scholarship is becoming increasingly empirical. Although empirical methodologies gain important influence within the legal academy, their application in legal research remains underdeveloped. This paper surveys and analyzes the state of empirical legal scholarship and explores possible influences on its production. The paper advances a normative argument for increased empirical legal scholarship.

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.

Dualism And Doctrine, Alex Stein, Dov Fox

Alex Stein

What kinds of harm among those that tortfeasors inflict are worthy of compensation? Which forms of self-incriminating evidence are privileged against government compulsion? What sorts of facts constitute a criminal defendant’s intent? Existing doctrine pins the answer to all of these questions on whether the injury, facts, or evidence at stake are “mental” or “physical.” The assumption that operations of the mind are meaningfully distinct from those of the body animates fundamental rules in our law.

A tort victim cannot recover for mental harm on its own because the law presumes that he is able to unfeel any suffering arising …

Admissibility Of Co-Conspirator Statements In A Post-Crawford World, Michael L. Seigel, Daniel Weisman

Michael L Seigel

This Article takes the position that co-conspirator statements must be examined on a case-by-case basis to determine whether they are testimonial and thus subject to exclusion under the Confrontation Clause. Further, in light of the fact that the author of the majority opinions in Crawford and Davis was Justice Antonin Scalia, this Article examines whether interpreting the Sixth Amendment as a bar to the admission of certain coconspirator statements would violate an originalist interpretation of that provision. The conclusion reached is that it would not. In the current era of ever-narrowing rights for criminal defendants, reaffirming the law's commitment to …

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 …

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

Timothy R Tarvin

A Scientific Approach To Scientific Evidence: A Four-Stage Rule For Admissibility And Scope, Robert Sanger

Robert M. Sanger

Scientific or expert testimony is often critical in criminal cases. The Supreme Court has established that the trial judge is the "gatekeeper" who is to determine what evidence is allowed before the jury. The current rules of evidence are not organized in a way that makes this task readily intelligible. This chapter proposes a more direct our-step process to accomplish the gatekeeping function.

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, …

Accounting For Federalism In State Courts - Exclusion Of Evidence Obtained Lawfully By Federal Agents, Robert M. Bloom, Hillary J. Massey

Robert Bloom

After the terrorist attacks on September 11th, Congress greatly enhanced federal law enforcement powers through enactment of the U.S.A. Patriot Act. The Supreme Court also has provided more leeway to federal officers in the past few decades, for example by limiting the scope of the exclusionary rule. At the same time, many states have interpreted their constitutions to provide greater individual protections to their citizens than provided by the federal constitution. This phenomenon has sometimes created a wide disparity between the investigatory techniques available to federal versus state law enforcement officers. As a result, state courts sometimes must decide whether …

"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 …

The Admissibility Of Hypnotically Enhanced Testimony In Criminal Trials, Gary Shaw

Gary M. Shaw

No abstract provided.

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 …