Law Commons^™

Can You Provide Evidence Of Insufficient Evidence? The Precautionary Principle At The Wto, Elisa Vecchione

Elisa Vecchione

This paper aims to demonstrate that the WTO jurisprudence on science-related trade disputes has become entangled with a specific vision of science that has prevented any possible application of the precautionary principle. This situation is due to reasons of both legal procedures specific to the WTO dispute settlement system and the substantive nature of precautionary measures. Indeed, their foundation on “insufficient scientific evidence” dramatically complicates the question of the probative value of science for the purpose of legal adjudication and creates a seemingly contradictory situation, of which the Panel on the EC-Biotech case confirmed to be a victim: that of …

Social Media And Legal Ethics, Jonathan I. Ezor

Jonathan I. Ezor

A presentation on the legal issues arising out of attorney use of social media services, including for electronic discovery

Electronic Discovery: A Survey Of E-Discovery, Its Effect On Corporate Constitutional Rights And Why Corporations May Receive The Fifth Amendment Privilege Against Self-Incrimination During Parallel Civil And Criminal Litigation, Percy Arnell King

Percy Arnell King Esq.

Advancing technology has created more places to seek out relevant information than ever before which, has created a burden for corporations tasked with retaining this information to comply with applicable laws and the prospect of civil or criminal litigation. This article explores how the modern trend of storing information electronically and subsequent electronic discovery allowed in parallel civil and criminal trials is inherently unfair to corporations. Furthermore, corporations have been granted several rights derived from the Bill of Rights, and should also receive the Fifth Amendment privilege against self-incrimination.

Silence Speaks Volumes: How The Absence Of Testimonial Compulsion Prior To Arrest Makes A Defendant’S Pre-Arrest Pre-Miranda Silence Admissible As Substantive Evidence, Jason E. Niehaus

Jason E Niehaus

The scope of this article addresses whether using a Defendant's pre-arrest, pre-Miranda silence as substantive evidence of guilt violates the Texas Constitution. Federal cases are addressed to illustrate the different approaches used to analyzing the constitutional questions raised by using the Defendant's silence as evidence. The analysis employed by Texas courts in ruling on the issue are then compared to the federal cases. After reviewing the federal and state cases on point, the conclusion is reached that the trend in Texas towards allowing the use of a Defendant's pre-arrest, pre-Miranda silence as substantive evidence of guilt does not offend the …

Keep Your Friends Close But Your Auditors Closer: Corporations Risk Waiver When Independent Auditors Request Work Product, Daniel Reach

Daniel Reach

In the current transparency-driven regulatory environment, corporations’ efforts at compliance are rife with uncertainty. The work product doctrine is a core safeguard of a lawyer’s work, which may contain sensitive information that corporations would not want disclosed to opposing parties. Meanwhile, independent auditors serve in a perilous capacity as they provide necessary services to their corporate clients while risking potentially adverse exposure of the information these clients and their counsel disclose to them. The work product doctrine is a time-honored and rule-driven protection that guards the mental impressions and work efforts of lawyers from discovery by opposing parties. Public accounting …

High Expectations And Some Wounded Hopes: The Policy And Politics Of A Uniform Statute On Videotaping Custodial Interrogations, Andrew Taslitz

Andrew E. Taslitz

Much has been written about the need to videotape the entire process of police interrogating suspects. Videotaping discourages abusive interrogation techniques, improves police training in proper techniques, reduces frivolous suppression motions because facts are no longer in dispute, and improves jury decision making about the voluntariness and accuracy of a confession. Despite these benefits, only a small, albeit growing, number of states have adopted legislation mandating electronic recording of the entire interrogation process. In the hope of accelerating legislative adoption of this procedure and of improving the quality of such legislation, the Uniform Law Commission (ULC), formerly the National Conference …

On Shaky Ground: The Need For The Reexamination Of The Admissibility Of Field Sobriety Testing, Patrick A. Corbus

Patrick A Corbus

Federal and state rules of evidence permit judges to take judicial notice of specific categories of facts, which allows these facts into evidence if the truth of these facts is so notorious or well known that they cannot be refuted. Frequently, judicial notice is used for the most basic, or common sense, facts without being formally introduced by a witness or other rule of evidence. At times, however, a request is made for a court to judicially notice something more complex than which day of the week corresponds to a particular calendar date. While judicial notice can contribute to a …

Does 'Sorry' Incriminate? Evidence, Harm And The Meaning Of Apologies, Jeffrey S. Helmreich

Jeffrey S. Helmreich

Apology has proven a dramatically effective means of resolving conflict and preventing litigation. Still, many injurers, particularly physicians, withhold apologies because they have long been used as evidence of liability. Recently, a majority of states in the U.S. have passed “Apology Laws” designed to lift this disincentive, by shielding apologies from evidentiary use. However, most of the new laws protect only expressions of benevolence and sympathy (such as “I feel bad about what happened to you”). They exclude full apologies, which express regret, remorse or self-criticism (“I should have prevented it,” for example). The state measures thereby reinforce a prevailing …

On Shaky Ground: The Need For The Reexamination Of The Admissibility Of Field Sobriety Testing, Patrick A. Corbus

Patrick A Corbus

Federal and state rules of evidence permit judges to take judicial notice of specific categories of facts, which allows these facts into evidence if the truth of these facts is so notorious or well known that they cannot be refuted. Frequently, judicial notice is used for the most basic, or common sense, facts without being formally introduced by a witness or other rule of evidence. At times, however, a request is made for a court to judicially notice something more complex than which day of the week corresponds to a particular calendar date. While judicial notice can contribute to a …

On Shaky Ground: The Need For The Reexamination Of The Admissibility Of Field Sobriety Testing, Patrick A. Corbus

Patrick A Corbus

Federal and state rules of evidence permit judges to take judicial notice of specific categories of facts, which allows these facts into evidence if the truth of these facts is so notorious or well known that they cannot be refuted. Frequently, judicial notice is used for the most basic, or common sense, facts without being formally introduced by a witness or other rule of evidence. At times, however, a request is made for a court to judicially notice something more complex than which day of the week corresponds to a particular calendar date. While judicial notice can contribute to a …

The Execution Of Cameron Todd Willingham: Junk Science, An Innocent Man, And The Politics Of Death, Paul C. Giannelli

Paul C. Giannelli

Cameron Todd Willingham was tried and executed for the arson deaths of his three little girls. The expert testimony offered against him to establish arson was junk science. The case has since become infamous, the subject of an award-winning New Yorker article, numerous newspaper accounts, and several television shows. It also became enmeshed in the death penalty debate and the reelection of Texas Governor Rick Perry, who refused to grant a stay of execution after a noted arson expert submitted a report debunking the “science” offered at Willingham’s trial. The governor has since attempted to derail an investigation by the …

“Bull” Coming From The States: Why The U.S. Supreme Court Should Use Williams V. Illinois To Close One Of Bullcoming’S Confrontation Clause Loopholes, Tara Klimek Price

Tara Price

Imagine that you are selected as a juror in a trial where the defendant is accused of driving while under the influence of alcohol. You listen to the police officer who testifies that he observed the defendant and believed him to be intoxicated. You hear about how after obtaining a warrant, the officer took the defendant to the emergency room for a blood-alcohol test. The police officer finishes his testimony, and the next witness will testify about the results of the defendant’s blood-alcohol test.

But before the witness can testify, defense counsel objects. Apparently, this is not the laboratory analyst …

Fourth, Fifth And Sixth Amendment Considerations For Admissibility Of Defendants’ Admissions And Confessions, Nancy Haydt

Nancy Haydt

Over the past three terms, the U.S. Supreme Court has rendered opinions that have great impact on the admissibility of a criminal defendant's statement which constitutes an admission under FRE Rule 801(d)(2). This paper addresses recent High Court rulings implicating Fourth Amendment Search and Seizure rights, Fifth Amendment Rights to silence and to counsel, and Sixth Amendment Right to non-interference with trial counsel in the context of admissions and confessions, and discusses the profound effect these rulings have in Criminal Procedure.

The Limitations And Admissibility Of Using Historical Cellular Site Data To Track The Location Of A Cellular Phone, Aaron M. Blank

Aaron M Blank

The Limitations and Admissibility of using Historical Cellular Site Data to Track the Location of a Cellular Phone

by Aaron Blank

Imagine a crime has just been committed. Shortly thereafter, law enforcement responds and quickly apprehends a suspect close by. Combining this with testimony or physical evidence may provide enough to obtain a conviction. Now imagine a longer, more complex investigation where a suspect is neither identified nor apprehended for days, weeks, or even months until after the crime. Law enforcement gathers some evidence but it is not enough for a conviction. If the prosecution can place the suspect in …

Come A Little Closer So That I Can See You My Pretty: The Use And Limits Of Fiction Point Of View Techniques In Appellate Briefs, Cathren Page

Cathren Page

Come a Little Closer so That I Can See You my Pretty, The Use and Limits of Fiction Point of Techniques in Appellate Briefs began when I was struggling to explain point of view to my students in Appellate Advocacy. They represented a fictional criminal defendant whose bag was searched when the police were executing a premises warrant at his friend’s house. My students scrunched up their faces when I tried to explain why they should not start their facts with the friend’s crime that spurred the search. The crime happened first in time, so to them it came first. …

A Defense Attorney’S Guide To Confrontation After Michigan V. Bryant, Kathryn K. Polonsky

Kathryn K Polonsky

In 1603, the Crown charged Sir Walter Raleigh with high treason in part for plotting to murder King James I. In preparing for trial, Lord Cobham, Raleigh’s alleged co-conspirator, was interrogated and signed a sworn confession. During trial, the King used the Crown-procured ex parte testimony of Cobham against Raleigh. Raleigh demanded Cobham be brought before the court so Raleigh might interrogate him “face to face.” Raleigh was sure Cobham would prove his innocence. After all, Cobham had written a letter stating his charges against Raleigh contained no truth.

The Judges refused to allow Raleigh the use of Cobham’s exonerating …

Electronic Discovery: Sanctioning Spoliation With An Adverse Inference Instruction, Robert A. Weninger

Robert A Weninger

This article discusses the spoliation of ESI (electronically stored evidence) in a completely non-technical way. It focuses on the law governing sanctions and not on computer technology.

Professor Richard L. Marcus, the Special Reporter to the Civil Rules Advisory Committee and a primary drafter of the 2006 amendments addressing the discovery of ESI, reviewed my article and was enthusiastic about it. The article is particularly timely because the Advisory Committee is presently considering whether to propose further amendments to address problems created by the disparate positions taken by federal courts on issues concerning sanctions for spoliation.

Courts divide over the …

The Competing Claims Of Canon And Civil Law To Accessing Diocesan Secret Archives, Stephen Braunlich

Stephen Braunlich

The fallout from Catholic clerics’ sexual abuse of children has continued, despite the best efforts of bishops to respond effectively, and has led to ongoing criminal and civil actions. Central to the protracted fights have been questions of compelled disclosure of diocesan secret archives: What records did the Church keep? Can they be discovered? Does the First Amendment provide protection? What is the role of privilege? Does the public have a right to everyman’s evidence, or is some protected because it comes from a religious organization? I ultimately conclude that while the rules of discovery and evidence do not protect …

“No Fishing Poles Allowed At The Office,” And Other Suggestions On How To Limit “Fishing Expeditions” To An Outdoor Weekend Activity And Away From The Realm Of E-Discovery, Joanna K. Slusarz

Joanna Slusarz

Early settlement is usually encouraged by the courts and welcomed by most parties involved in a lawsuit. However, it may not always be the most favorable result. This idiosyncrasy arises most when the costs of continuing litigation and adjudication on the merits outweigh those of early settlement. On the other hand, early settlement raises the risk of “encourag[ing] additional, low merit cases that might not otherwise have been filed had the company chosen to litigate existing lawsuits.”

The phenomenon of electronic discovery (“e-discovery”) has exponentially increased the occurrence of the latter result. As a result, defendants, particularly large corporations with …

Bad Science Makes Bad Law: How The Deference Afforded To Psychiatry Undermines Civil Liberties, Samantha Godwin

Samantha Godwin

Courts and lawmakers trust psychiatric expertise when making judicial and public policy decisions concerning mental health, but is this trust well placed? This paper adopts a philosophy of science approach informed by medical research to evaluating the validity of psychiatric classification. This provides the basis for an interdisciplinary critical analysis of civil commitment law and use of psychiatric expert witnesses in light of legal evidence standards. This analysis demonstrates that involuntary civil commitment as it now stands is incompatible with broader due process and civil rights concerns and affords an unjustifiable evidentiary status to psychiatric diagnosis.

Rules, Standards, And The Attorney-Client Privilege: When Is The Privilege At-Issue In The Discovery Rule And Other Contexts?, Kenneth J. Duvall

Kenneth J Duvall

Striking the right balance between a robust attorney-client privilege and a judicial system that maximizes access to the best evidence has always been difficult. In recent decades, the privilege battles have in large part been waged over one particular exception to the privilege: the “at-issue” carve-out. Under this exception, the holders of the privilege waive it when they place otherwise privileged communications at issue in the litigation not through outright consent but instead through their conduct. The troubling question has therefore been: what actions suffice to place communications at issue? Privilege defenders consider confidential communications to be at issue only …

Avoiding A Confrontation?: How Courts Have Erred In Finding That Nontestimonial Hearsay Is Beyond The Scope Of The Bruton Doctrine, Colin Miller

Colin Miller

The Bruton doctrine holds that the Confrontation Clause is violated by the admission at a joint jury trial of a nontestifying co-defendant’s confession that facially incriminates other defendants but is inadmissible against them under the rules of evidence. Under this doctrine, Co-Defendant’s confession to Police Officer that “Defendant and I killed Victim” could not be admitted unless Co-Defendant testified at trial. But what if Co-Defendant made his confession to his mother, his brother, his lover, or his friend? While the vast majority of courts before 2004 would have held that such “noncustodial” confessions violated the Bruton doctrine, the tables have …

Violent Video Games & "Constitutionalized" Negligence, Deana Ann Pollard Sacks

Deana A Pollard

Violent video games create serious risks of harm to children’s brain functioning, health, and safety. Extremely wealthy game producers’ demonstrated disregard for children’s safety raises questions about lower courts’ negligent speech liability rules that effectively bar tort liability for unreasonably dangerous speech, including violent video games. Violent Video Games & “Constitutionalized” Negligence reviews the latest scientific data on the effects of violent video games on children and challenges the prevailing negligent speech liability rules generally, and specifically relative to violent video game producers’ relationship with children. Most courts have adopted the Brandenburg incitement test to prove fault and causation in …

Spoliation Of Evidence: Sanctions Versus Advocacy, Charles Adams

Charles W. Adams

Spoliation of evidence involves the destruction of evidence to prevent its use in either pending or reasonably anticipated litigation. Electronic evidence is easily susceptible to spoliation, and consequently, as electronic discovery has become a major part of modern litigation over the past twenty years, claims of spoliation have increased dramatically, particularly for emails. The courts have responded with various sanctions. A recent survey of reported federal cases shows that the most prevalent sanction for spoliation is the adverse inference instruction in which the jury is directed that it may infer from evidence of spoliation that the destroyed evidence would have …

State E-Discovery Today: An Assessment And Update Of Rulemaking, Thomas Y. Allman

Thomas Y. Allman

Discovery of information in electronic form for use in civil litigation in the United States has assumed major importance in the state courts, where the great bulk of litigation occurs. This paper analyzes the 37 states that have formally acted against the backdrop of the key issues facing litigants utilizing electronically stored information, with a particular emphasis on the author's view, as a former General Counsel, that the time has come to embody rationale principles of preservation and spoliation in the rules at both the federal and state level.

A Crowning Achievement In Protecting High Ranking Officials From Unreasonable Depositions: The Impact Of The Crown Central Test, Scott A. Mager

scott a mager

In an increasingly litigious society, the attempt to first set depositions of high-ranking corporate executives, who are often referred to as “apex officials,” has become commonplace. While these executives rarely have personal knowledge of the facts and issues surrounding a given case, broad-stroked claims against parent companies and lax discovery rules seem to serve as a launching pad to harass executives and extort settlements through threats of—and in many cases the actual taking of—depositions from chief executive officers, chief operating officers, chief financial officers, or other apex executives. In recent years, courts across the country have sought to articulate the …

Declaración De La Parte Como Medio De Prueba, Felipe Marín Verdugo

Felipe Marín Verdugo

The Chilean judicial procedures went from a written procedure to a hearing-based procedure. This change involved a new design for the trial hearing and, in particular, for the rules of evidence. The meaning of these changes is not yet well understood, making it easier for the survival of former practices of the written system within the new hearing-based system. This paper identifies on of them, which is the exclusion of parties as witnesses.

The Created, The Fallen, And The Redeemed—The Symbolism Of The Federal Rules Of Evidence, Christopher G. Hastings, Nelson P. Milller, Curt A. Benson

Christopher G Hastings

The Federal Rules of Evidence, taken as a whole, represent an ethical system—not just norms, values, or cultural constructs but, moreover, a genuine way of comprehending the world consistent with our best understanding of how it would, if not constrained, truly operate. Underlying each rule are assumptions about the nature and dispositions of lawyers, clients, witnesses, jurors, and judges, as well as the nature of evidence itself. Those assumptions symbolize what the rules’ promulgators understand to be the imperatives of justice in a system peopled by the created, the fallen, and the redeemed. Citing each of the 67 Federal Rules …

Admissibility Of Electronic Documents, Curtis E.A. Karnow

Curtis E.A. Karnow

A comprehensive inventory of issues involved in the introduction of electronic evidence, including practical alerts

Hazard In The Courtroom: Moral Hazard's Ability To Explain An Insured's Behavior And What It Means For Federal Rules Of Evidence Rule 411, Jared S. Livingston

Jared S Livingston

This note contends that considering evidence of insurance within a moral hazard framework may justify another look at the blanket exclusion of Federal Rules of Evidence Rule 411. Not only does moral hazard implicate the relevance of evidence of insurance in a negligence action, but it may also reveal that the evidence is not as prejudicial as many scholars and courts had originally supposed. As a result, Rule 411 could be over-exclusive in its application, excluding not only a wholly irrelevant part of insurance evidence--the wealth or ability-to-pay implication—but also the part of insurance evidence that implies an insured’s possible …