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Articles 31 - 60 of 206
Full-Text Articles in Law
Latif V. Obama: The Epistemology Of Intelligence Information And Legal Evidence, Richard O. Morgan
Latif V. Obama: The Epistemology Of Intelligence Information And Legal Evidence, Richard O. Morgan
Richard O. Morgan
The process used by the Intelligence Community to collection information concedes a degree of truth-finding efficacy in order to serve other social values and policy considerations. As a result, the use of information derived from the “intelligence cycle” as evidence in judicial proceedings creates conceptual and procedural challenges. For example, the need to quickly and widely disseminate intelligence information across vast geographic spaces results in the Intelligence Community relying heavily on written communication. As a consequence, degrees of uncertainty or reliability may be distilled into written caveats within intelligence reports, with an attendant loss of subtlety. In contrast, judicial trials …
Employee And Inventor Witnesses In Patent Trials: The Blurry Line Between Expert And Lay Testimony, Alex Reese
Employee And Inventor Witnesses In Patent Trials: The Blurry Line Between Expert And Lay Testimony, Alex Reese
Alex Reese
Parties in patent lawsuits that are going to trial face a crucial choice: who is the best witness to explain the often complex or scientific technology behind an invention or an accused product? Often, the parties will select an employee witness such as an engineer, scientist, or a named inventor of the patent-in-suit to offer this key testimony rather than a hired expert. Many litigants have found that there are benefits to choosing an employee witness who can testify based on first-hand experience with the technology in question rather than a hired expert, who must prepare an expert report and …
Death And Rehabilitation, Meghan J. Ryan
Death And Rehabilitation, Meghan J. Ryan
Meghan J. Ryan
While rehabilitation is reemerging as an important penological goal, the Supreme Court is eroding the long-revered divide between capital and non-capital sentences. This raises the question of whether and how rehabilitation applies in the capital context. Courts and scholars have long concluded that it does not—that death is completely irrelevant to rehabilitation. Yet, historically, the death penalty in this country has been imposed in large part to induce the rehabilitation of offenders’ characters. Additionally, there are tales of the worst offenders transforming their characters when they are facing death, and several legal doctrines are based on the idea that death …
Burdens Of Proof And Qualified Immunity, Kenneth J. Duvall
Burdens Of Proof And Qualified Immunity, Kenneth J. Duvall
Kenneth J Duvall
Despite the need to strike a proper balance between effective § 1983 suits to deter government misconduct and corresponding, robust defenses to deter frivolous suits, courts across the nation cannot agree on the fundamental questions of what the proper defenses to § 1983 actions are or how to allocate the burdens of proof in such litigation. This Article would remedy this situation, proposing an approach that offers both a single defense to § 1983 claims and a uniform allocation of the burdens of proof when that defense is raised. In Part I, this Article briefly explains the burdens of proof, …
The Contradictory Stance On Jury Nullification, Kenneth J. Duvall
The Contradictory Stance On Jury Nullification, Kenneth J. Duvall
Kenneth J Duvall
Arguments about jury nullification in both courts and academia proceed under the assumption that either proponents and opponents of nullification could decisively carry the day. But as current Supreme Court law stands, nullification is at once prohibited and protected. This Article shines a light on the uneasy, confusing compromise in the doctrine, and finds that the two ways out of the dilemma—fully embracing nullification, or rejecting it—are equally taboo to the American legal mind. In Part I, this Article briefly explains the contested history of nullification. In Part II, it examines modern courts’ intermittent recognition of nullification. Part III then …
The Troubling Role Of Federal Registration In Proving Intellectual Property Crimes, Susan M. Richey
The Troubling Role Of Federal Registration In Proving Intellectual Property Crimes, Susan M. Richey
Susan M Richey
No abstract provided.
The Troubling Role Of Federal Registration In Proving Intellectual Property Crimes, Susan M. Richey
The Troubling Role Of Federal Registration In Proving Intellectual Property Crimes, Susan M. Richey
Susan M Richey
No abstract provided.
Legal Applications Of Modern Finance, Matthew E. Cavanaugh Mba Cpa Esq.
Legal Applications Of Modern Finance, Matthew E. Cavanaugh Mba Cpa Esq.
Matthew E. Cavanaugh MBA CPA Esq.
While scholars and practitioners have applied economics to law successfully for decades, there has been almost no similar application of modern finance. Courts have used the central concept of classical finance, time value of money, for many years, but their use is still unsophisticated.
This article details two ways to apply modern finance to law. This article first describes a method of improving courts’ time value of money calculations, by using a systematically complete four factor analysis to determine the appropriate discount rate. This article then describes a method of calculating future damages that uses market price of risk, based …
A Response To Harel And Porat: On The Inadmissibility Of The Aggregated Probabilities Principle, Doron Menashe Dr.
A Response To Harel And Porat: On The Inadmissibility Of The Aggregated Probabilities Principle, Doron Menashe Dr.
Mahdi Naamnee
This article is a response to an article by Alon Harel and Ariel Porat, recently published in the Michigan Law Review. In the article, the authors argue that, under certain conditions, courts should be permitted to convict a defendant in an unspecified offense. This possibility is meant to address situations in which there is no reasonable doubt that the defendant committed an offense, even though the prosecution failed to prove beyond reasonable doubt that the defendant committed any specific offense of which he was accused. The authors term this new decision principle as the Aggregated Probabilities Principle – APP.
In …
A Turbulent Adolescence Ahead: The Icc’S Insistence On Disclosure In The Lubanga Trial, Christodoulos Kaoutzanis
A Turbulent Adolescence Ahead: The Icc’S Insistence On Disclosure In The Lubanga Trial, Christodoulos Kaoutzanis
Christodoulos Kaoutzanis
The completion of the first trial at the International Criminal Court (‘ICC’), against Thomas Lubanga Dyilo, was a great milestone for international criminal justice. Despite this obvious accomplishment, this paper argues that the Trial Chamber’s solutions to two evidentiary problems will restrict the ICC’s potential to effectively hear future cases. First, this paper presents the details behind the two evidentiary problems of disclosure, that of exculpatory confidential information and that of the identities of the Prosecutor’s intermediaries. This analysis is undertaken in an exhaustive manner, in order to highlight the challenges that the Prosecutor faced and the manner in which …
Like A Glass Slipper On Step-Sister, How The One-Ring Rules Them All At Trial, Cathren Page
Like A Glass Slipper On Step-Sister, How The One-Ring Rules Them All At Trial, Cathren Page
Cathren Page
The literary concept of an endowed object can weave a thread of narrative continuity throughout a trial and resonates in the mind of the judge or juror. In literature, an endowed object is a material object that reverberates with symbolic significance throughout the story. The object can develop the theme, character, and emotions. Examples include Cinderella’s glass slipper, the one-ring, the handkerchief in Othello, and the mocking jay pin from The Hunger Games. Endowed objects have been persuasive symbols in famous trials as well. Endowed objects include the glove in the O.J. Simpson murder trial and John Wilkes Booth’s boot …
Deliberating Beyond Evidence: Lessons From Integrated Assessment Modelling, Elisa Vecchione
Deliberating Beyond Evidence: Lessons From Integrated Assessment Modelling, Elisa Vecchione
Elisa Vecchione
The premises of this paper rely on associating policy inertia toward action on climate change with the inadequacy of the classical ‘liability culture’ of evidence-based policy-making to deal with this global environmental challenge. To provide support to this hypothesis, the following discussion analyses the technical properties and the current policy use of Integrated Assessment Modelling (IAM) of economic-climate interactions. The paper contends that IAM is still not clarified enough as far as its potential for information-production in the framework of policy making processes is concerned, and that this fact is symptomatic of the current inability of societies to undertake the …
Admissibility Of Dna Evidence: Italy Under Attack, Adina Rosenfeld
Admissibility Of Dna Evidence: Italy Under Attack, Adina Rosenfeld
Adina Rosenfeld
The purpose of this paper is to compare the differences and similarities in the evidentiary rules for DNA in Italy and in the United States in the light of their two different legal traditions. This note will compare American and Italian rules of evidence and procedure for the admissibility of DNA in criminal trials and analyze the most relevant differences between the two systems. Based on this comparison, the note will argue that Amanda Knox would not have been convicted of murdering her roommate in American lower court because the DNA evidence would not have been admissible. In Italy, Knox …
The Psychotherapist-Patient Privilege As An “Occasional Instrument Of Injustice”: An Argument For A Criminal Threat Exception, Joi T. Montiel
The Psychotherapist-Patient Privilege As An “Occasional Instrument Of Injustice”: An Argument For A Criminal Threat Exception, Joi T. Montiel
Joi T Montiel
The Supreme Court in Jaffee v. Redmond announced a federal testimonial privilege protecting communications between a psychotherapist and his patient in federal court. However, in footnote 19 of the opinion, the Court noted that there may be times where the privilege must “give way,” such as when “disclosure” of the statements made in therapy is necessary to protect an intended victim of the patient. Nonetheless, commentators have argued against an exception to the privilege when the statements made to the therapist indicate that a target is in danger, and some courts have rejected such a “dangerous patient exception” to the …
Taking Confrontation Seriously: Does Crawford Mean That Confessions Must Be Cross-Examined?, Mark Summers
Taking Confrontation Seriously: Does Crawford Mean That Confessions Must Be Cross-Examined?, Mark Summers
Mark Summers
This article focuses on the applicability of the Supreme Court's decision in Crawford v. Washington to one subcategory of party admissions – defendants’ confessions “taken by police officers in the course of interrogations.” Such statements fall within Crawford’s core class of testimonial statements, which must be subjected to cross-examination either at the time they are made or at trial in order to satisfy the Confrontation Clause. In some post-Crawford cases, defendants have argued that the failure to comply with Crawford should bar the prosecution from using their confessions. The lower courts have uniformly held that Crawford does not apply to …
The Right To Remain Silent: Addressing A Government Attorney Client Privilege In The Context Of A Grand Jury Subpoena, Matan Shmuel
The Right To Remain Silent: Addressing A Government Attorney Client Privilege In The Context Of A Grand Jury Subpoena, Matan Shmuel
Matan Shmuel
This article deals with the circuit split over whether a government agency can use government attorneys to conceal what would otherwise become public information. Often, a government agency representative might discuss with nearby agency counsel personal legal information outside the scope of their employment. Courts are split over whether this is privileged or not. My article proposes a solution to the split by implementing a factor test which takes into account the government interest in confidentiality, the public need for disclosure, and the ability of the grand jury to find the information elsewhere.
A Prediction Is Worth Four Thousand Words: The Third Circuit Boldly Holds That The Supreme Court Of Pennsylvania Will Apply The Restatement (Third) In Covell V. Bell Sports, Inc., Craig Lawrence Bazarsky
A Prediction Is Worth Four Thousand Words: The Third Circuit Boldly Holds That The Supreme Court Of Pennsylvania Will Apply The Restatement (Third) In Covell V. Bell Sports, Inc., Craig Lawrence Bazarsky
Craig Bazarsky
The Third Circuit has struggled with whether to apply the Restatement (Second) of Torts or Restatement (Third) when sitting in diversity jurisdiction in Pennsylvania. This began in Berrier v. Simplicity Manufacturing, Inc., when the Third Circuit predicted that the Supreme Court of Pennsylvania would reject the Restatement (Second) and adopt the Restatement (Third). The Supreme Court of Pennsylvania was set to decide the issue in Bugosh v. I.U. North America, Inc., after granting allocatur in 2008; however, they dismissed the appeal as improvidently granted in 2009, and neither adopted the Restatement (Third) nor reaffirmed the Restatement (Second). The Third Circuit, …
A Witness Against Himself: Use And Derivative Use Immunity And Prosecutorial Discretion, John B. Plimpton Mr.
A Witness Against Himself: Use And Derivative Use Immunity And Prosecutorial Discretion, John B. Plimpton Mr.
JOHN B. PLIMPTON
In Kastigar v. United States, the Supreme Court held that in order to compel testimony containing self-incriminating information from a witness (1) who is not a criminal defendant and (2) has invoked the privilege against self-incrimination, the government must grant the witness immunity from “use and derivative use” of the testimony in a subsequent criminal proceeding against him. The federal circuits are split on the scope of protection afforded by this type of immunity. Some circuits construe use and derivative use immunity to prohibit any and all uses the government may make of his immunized testimony. Other circuits maintain that …
Evidence-Based Prosecution & Strangulation-Specific Training: Obtaining Justice For Victims Of Strangulation In Domestic Violence, Brigitte P. Volochinsky
Evidence-Based Prosecution & Strangulation-Specific Training: Obtaining Justice For Victims Of Strangulation In Domestic Violence, Brigitte P. Volochinsky
Brigitte P Volochinsky
Strangulation accounts for 10-percent of violent deaths in the United States, with six female victims to every male victim. A common form of abuse in domestic violence, strangulation may result in many harmful health effects and it often indicates either an ongoing pattern of abuse or it foreshadows escalating violence. Yet, strangulation is often minimized by the criminal justice system, including law enforcement officials, emergency room medical personnel, and prosecutors, who equate strangulation with a slap on the face. The phenomenon of minimizing a violent and life-threatening act occurs for two reasons; first, and most importantly, victims of strangulation often …
To Testify Or Not To Testify: The Dilemma Facing Children With Multiple Cases Before The Same Judge In Delinquency Court., Katherine I. Puzone
To Testify Or Not To Testify: The Dilemma Facing Children With Multiple Cases Before The Same Judge In Delinquency Court., Katherine I. Puzone
Katherine I. Puzone
In Juvenile Court, children often have more than one case pending, especially children living in group foster homes and those at alternative schools. In many jurisdictions, all of a child’s cases are assigned to the same judge. If the child is arrested at a later time, the new case is also assigned to the same judge. That means that if a child exercises her right to go to trial in each case, the same judge will hear every case. If they are set for trial on the same day, and they often are, the judge will hear each case in …
The Crucible And The Federal Rules Of Evidence, Martin Pritikin
The Crucible And The Federal Rules Of Evidence, Martin Pritikin
Martin Pritikin
Counter-intuitively, one of the best ways to learn the practice-oriented topic of evidence may be by studying a work of fiction—specifically, Arthur Miller’s The Crucible, which dramatizes the Salem witch trials. The play puts the reader in the position of legal advocate, and invites strategic analysis of evidentiary issues. A close analysis of the dialogue presents an opportunity to explore both the doctrinal nuances of and policy considerations underlying the most important topics covered by the Federal Rules of Evidence, including relevance, character evidence and impeachment, opinion testimony, hearsay, and the mode and order of interrogation.
Rape Trauma, The State, And The Art Of Tracey Emin, Yxta M. Murray
Rape Trauma, The State, And The Art Of Tracey Emin, Yxta M. Murray
Yxta M. Murray
Prosecutors use “rape trauma syndrome” evidence at rape trials to explain victims’ “counterintuitive” behaviors and demeanors, such as late reporting, denying their rapes, returning to the scenes of their attacks, and lack of emotional affect. Courts and experts, in instructions and testimony, usually describe victim reticence as a product of “shame” or “trauma.” Feminist critics of R.T.S. evidence posit that it is based on incomplete evidence, because most rapes are unreported. Furthermore, they object to its condescending, sexist, and colonial construction of rape victims and their emotions. In this Article, I respond to feminist critics by studying the work of …
Thank You For Testifying: The Need To Re-Examine Admission Of Expert Testimony Under Rule 703 In Relation To The Confrontation Clause In Light Of Williams V. Illinois, Derek Regensburger
Thank You For Testifying: The Need To Re-Examine Admission Of Expert Testimony Under Rule 703 In Relation To The Confrontation Clause In Light Of Williams V. Illinois, Derek Regensburger
Derek Regensburger
In Williams v. Illinois, the Supreme Court, in a plurality opinion, held that the basis evidence underlying an expert’s opinion may be introduced in a criminal trial without violating the Confrontation Clause. The Court also created a new primary purpose test for determining the testimonial nature of statements. Hearsay statements must now be both formalized statements made with the purpose of providing evidence against the accused as well as being made against a targeted individual. The ruling has the potential to impact the way in which testimonial hearsay statements are analyzed by court, and it could open the door for …
What's Good In Theory May Be Flawed In Practice: Potential Legal Consequences Of Poor Implementation Of A Theoretical Sample, Melanie S. Williams, A. Lynn Phillips, G. Michael Phillips
What's Good In Theory May Be Flawed In Practice: Potential Legal Consequences Of Poor Implementation Of A Theoretical Sample, Melanie S. Williams, A. Lynn Phillips, G. Michael Phillips
Melanie S. Williams
The article discusses the problem of the use in litigation of statistical sampling. Sample-based research is increasingly used in cases as diverse as products liability, antitrust, intellectual property, and criminal law, among others. Sample-based research provides objective evidence upon which decisions, damages and liability may rest. Despite its importance, however, statistical evidence is often misused and misunderstood by attorneys who may be unfamiliar with the underlying form of analysis. The paper explores common errors when using litigative samples, comments upon best practices for the use in law of sample-based research, and demonstrates the importance of sound statistical sampling and data …
Persuasive Visions: Film And Memory, Jessica M. Silbey
Persuasive Visions: Film And Memory, Jessica M. Silbey
Jessica Silbey
This commentary takes a new look at law and film studies through the lens of film as memory. Instead of describing film as evidence and foreordaining its role in truth-seeking processes, it thinks instead of film as individual, institutional and cultural memory, placing it squarely within the realm of contestability. Paralleling film genres, the commentary imagines four forms of memory that film could embody: memorabilia (cinema verite), memoirs (autobiographical and biographical film), ceremonial memorials (narrative film monuments of a life, person or institution), and mythic memory (dramatic fictional film). Imagining film as memory resituates film’s role in law (procedural, substantive …
Images In/Of Law, Jessica M. Silbey
Images In/Of Law, Jessica M. Silbey
Jessica Silbey
The proliferation of images in and of law lends itself to surprisingly complex problems of epistemology and power. Understanding through images is innate; most of us easily understand images without thinking. But arriving at mutually agreeable understandings of images is also difficult. Translating images into shared words leads to multiple problems inherent in translation and that pose problems for justice. Despite our saturated imagistic culture, we have not established methods to pursue that translation process with confidence. This article explains how images are intuitively understood and yet collectively inscrutable, posing unique problems for resolving legal conflicts that demand common and …
Can You Provide Evidence Of Insufficient Evidence? The Precautionary Principle At The Wto, Elisa Vecchione
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
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 …