Law Commons^™

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 …

Standing Mute At Arrest As Evidence Of Guilt: The 'Right To Silence' Under Attack, Frank R. Herrmann S.J., Brownlow M. Speer

Frank R. Herrmann, S.J.

It is commonly understood that an arrested person has a right to remain silent and that the government may not use his or her silence to prove guilt at trial. Three Circuit Courts of Appeal, however, reject this understanding. They allow the prosecution to use an arrested person's pre-Miranda silence as direct evidence of guilt. This article argues that those Circuits are wrong. The article, first, demonstrates the historical antiquity of the Common Law principle that a detained person has the right to stand mute. Though the right was limited by statutory incursion and in tension, at times, with the …

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

Robert M. 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 …

Judging Genes: Implications Of The Second Generation Of Genetic Tests In The Courtroom, Diane E. Hoffmann, Karen H. Rothenberg

Diane Hoffmann

The use of DNA tests for identification has revolutionized court proceedings in criminal and paternity cases. Now, requests by litigants to admit or compel a second generation of genetic tests – tests to confirm or predict genetic diseases and conditions – threaten to affect judicial decision-making in many more contexts. Unlike DNA tests for identification, these second generation tests may provide highly personal health and behavioral information about individuals and their relatives and will pose new challenges for trial court judges. This article reports on an original empirical study of how judges analyze these requests and uses the study results …

Gone But Not Forgotten: When Privacy, Policy And Privilege Collide, Louise L. Hill

Louise L Hill

No abstract provided.

A Safety Doctrine To The Criminal Justice System, Boaz Sangero, Mordechai Halpert

Prof. Boaz Sangero

Criminal law, unlike other risk-creating fields, currently lacks any modern safety doctrine. In light of the proven phenomenon of wrongful convictions and the severe harm it causes to both those wrongly convicted and society, this Essay focuses on the necessary preliminary stages in developing a safety doctrine for the criminal justice system. Under our conception, criminal law is a "safety-critical system": it deals with matters of life and death. We view false conviction to be a type of accident, similarly to a crash of a fighter airplane. This comparison is not only metaphorical, but quite literal when the damage is …

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.

Wild Dreamers: Meditation On The Admissibility Of Dream Talk, Louise Harmon

Louise Harmon

No abstract provided.

Selling Sex: Analyzing The Improper Use Defense To Contract Enforcement Through The Lens Of Carroll Versus Beardon, Julie M. Spanbauer

Julie M. Spanbauer

The 1963 decision of the Supreme Court of Montana in Carroll v. Beardon, occupies less than three full pages in the Pacific Reporter and involves a simple real estate transaction in which a “madam” sold a house used for prostitution to another “madam.” The opinion is the last in a long line of cases to speak specifically to the issue of enforcement of facially legitimate contracts that in some manner arguably involve or are related to prostitution and is commonly cited in treatises and hornbooks as representative of the movement by courts toward enforcement of such contracts under the law …

Admissibility Of Investigatory Reports In § 1983 Civil Rights Actions - A User's Manual, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

Punitive Damages--Developments In Section 1983 Cases, Eileen Kaufman, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

Selling Sex: Analyzing The Improper Use Defense To Contract Enforcement Through The Lens Of Carroll V. Beardon, Julie M. Spanbauer

Julie M. Spanbauer

The 1963 decision of the Supreme Court of Montana in Carroll v. Beardon, occupies less than three full pages in the Pacific Reporter and involves a simple real estate transaction in which a “madam” sold a house used for prostitution to another “madam.” The opinion is the last in a long line of cases to speak specifically to the issue of enforcement of facially legitimate contracts that in some manner arguably involve or are related to prostitution and is commonly cited in treatises and hornbooks as representative of the movement by courts toward enforcement of such contracts under the law …

Death To Dying Declarations! The Case For Killing A Hearsay Exception, Samuel T. Bernier

Samuel T Bernier

No abstract provided.

The Niqab In The Courtroom: Protecting Free Exercise Of Religion In A Post-Smith World, Adam Schwartzbaum

Adam Schwartzbaum

The niqab has become enmeshed in heated political controversy all across the world. In the United States, the situation of Ginnah Muhammad exemplifies the complex legal issues arising from conflicts between individuals whose religious beliefs compel this practice and the secular state. Muhammad, an African-American Muslim woman, was ejected from a Michigan small claims court for refusing to remove her veil while testifying. This Comment explores the constitutionality of this action, and a subsequent amendment to the Michigan Rules of Evidence passed in response to her case giving judges the power to “exercise reasonable control over parties and witnesses." Inevitably, …

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

Sidney Kwestel

No abstract provided.

Excluding Exclusion: How Herring Jeopardizes The Fourth Amendment's Protections Against Unreasonable Search And Seizure, Hariqbal Basi

Hariqbal Basi

For nearly a half-century, the exclusionary rule has remained an important mechanism for ensuring police compliance with the Fourth Amendment and deterring unconstitutional searches and seizures. In January 2009, the Supreme Court held in Herring v. United States that the exclusionary rule does not apply to good faith negligent police behavior. This significantly broadened the law, and severely limits the future application of the exclusionary rule. Furthermore, this holding has strong potential for abuse by police departments. By analogizing to Fifth Amendment jurisprudence and Miranda rights, I argue that the ruling in Herring needs to be limited in order to …

To Serve And Protect? Officers As Expert Witnesses In Federal Drug Prosecutions, Brian Gallini

Brian Gallini

Punitive Damages--Developments In Section 1983 Cases, Eileen Kaufman, Martin A. Schwartz

Eileen Kaufman

No abstract provided.

The Canyon Of Doubt: John William Corrington's The Risi's Wife, Louise Harmon

Louise Harmon

No abstract provided.

Proposal To Reverse The View Of A Confession: From Key Evidence Requiring Corroboration To Corroboration For Key Evidence, Boaz Sangero, Mordechai Halpert

Prof. Boaz Sangero

Both case law and legal literature have recognized that all, and not just clearly statistical, evidence is probabilistic. Therefore, we have much to learn from the laws of probability with regard to the evaluation of evidence in a criminal trial. The present article focuses on the confession. First, we review legal and psychological literature and show that the probability of a false confession and, consequently, a wrongful conviction is far from insignificant. In light of this, we warn against the cognitive illusion, stemming from the fallacy of the transposed conditional, which is liable to mislead the trier of fact in …

Proposal To Reverse The View Of A Confession: From Key Evidence Requiring Corroboration To Corroboration For Key Evidence, Boaz Sangero, Mordechai Halpert

Prof. Boaz Sangero

Both case law and legal literature have recognized that all, and not just clearly statistical, evidence is probabilistic. Therefore, we have much to learn from the laws of probability with regard to the evaluation of evidence in a criminal trial. The present article focuses on the confession. First, we review legal and psychological literature and show that the probability of a false confession and, consequently, a wrongful conviction is far from insignificant. In light of this, we warn against the cognitive illusion, stemming from the fallacy of the transposed conditional, which is liable to mislead the trier of fact in …

The Implications Of A Jeopardy! Computer Named Watson: Beating Corporate Boards Of Directors At Fiduciary Duties?, Roger M. Groves

Roger M. Groves

Millions of documents, including five million messages, termed electronically stored information (“ESI”) from the Enron litigation have provided an opportunity for software developers to create software that analyzes ESI for behaviors of computer users in more provocative and innovative ways than previously encountered. The law is struggling to clarify e-discovery rules, but the ambiguities provide an opportunity for counsel to manipulate or take advantage of forensic investigations. In this article, the author examines the potential exploitation of e-discovery forensic tools by shareholders of a corporation that suspect a breach of fiduciary duties by members of the board of directors.

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

Eric R. Carpenter

Self-Incrimination, Alex Stein

Alex Stein

This Chapter surveys the law & economics literature on self-incrimination and confessions.

Liability For Future Harm, Alex Stein, Porat Ariel

Alex Stein

This Article considers the possibility of imposing liability in torts for a wrongfully created risk of future harm. We examine the American and English court decisions pertaining to this issue and consider whether a probability-based compensation for the victim’s expected—albeit not yet materialized—harm is just and efficient. We demonstrate how the virtues of a legal regime that allows a tort victim to recover compensation for her expected harm overshadow its vices. We conclude that a person’s risk of sustaining harm in the future should be actionable whenever the risk is substantial. We further conclude that it should be left to …

Writings On The Wall: The Need For An Authorship-Centric Approach To The Authentication Of Social-Networking Evidence, Ira P. Robbins

Ira P. Robbins