Law Commons^™

The Cat Is Already Out Of The Bag: Resolving The Circuit Split Over The Dangerous Patient Exception To The Psychotherapist–Patient Privilege, Blake R. Hills

University of Baltimore Law Review

No abstract provided.

Hearsay And Abuse: Where Past Is Present, The Hon. Andrea M. Leahy, Jared A. Mclain Esq.

University of Baltimore Law Review

No abstract provided.

"A Middle Temperature Between The Two": Exploring Intermediate Remedies For The Failure To Comply With Maryland's Eyewitness Identification Statute, Marc A. Desimone Jr.

University of Baltimore Law Review

This article addresses what remedies should be available to a criminal defendant in Maryland who has been identified in an extrajudicial identification procedure that does not comply with the present statutory requirements. Part II of this article provides an overview of the present due process test for evaluating the admissibility of extrajudicial eyewitness identifications, the present Maryland iteration of that test, and alternatives to that approach that have been adopted in other jurisdictions. Part III reviews recent legislative reforms to extrajudicial identification procedures, which are required in Maryland as of January 1, 2016. Section IV.A of this article argues why …

Recent Development: Seley-Radtke V. Hosmane: The Standard Of Proof Requirement In A Purely Private Defamation Action For An Individual Asserting A Common Law Conditional Privilege Is Preponderance Of The Evidence, Makeda Curbeam

University of Baltimore Law Forum

The Court of Appeals of Maryland held that a party seeking to overcome a common law conditional privilege in a purely private defamation suit must do so by a preponderance of the evidence. Seley-Radtke v. Hosmane, 450 Md. 468, 474, 149 A.3d 573, 576 (2016). The court also held that evidentiary issues not addressed by the court of special appeals are not subject to review by the court of appeals. Id. at 510, 149 A.3d at 598 (citing Md. R. 8- 131(b)(1)). Further, the court held that prejudicial evidence irrelevant to a claim is not admissible at trial. Seley-Radtke, 450 …

Recent Development: Allen V. State: Dna Evidence Of A Third Party Found At A Crime Scene Must Be Confirmed By Additional Testing To Permit Admission At Trial; Extra Testing Requirement Does Not Violate The Sixth Amendment, George Makris

University of Baltimore Law Forum

No abstract provided.

Recent Development: Hailes V. State: The State May Appeal A Trial Court's Ruling Excluding A Dying Declaration; The Length Of Time Between A Declarant's Statement And Death Is Irrelevant In A Dying Declaration Analysis; The Confrontation Clause Is Inapplicable To Dying Declarations, Lauren A. Panfile

University of Baltimore Law Forum

The Court of Appeals of Maryland held that the State may appeal a trial court’s suppression of a victim’s dying declaration based on the legislative intent of Section 12-302(c)(4)(i) of the Maryland Code, Courts and Judicial Procedure Article (“section 12-302(c)(4)(i)”). Hailes v. State, 442 Md. 488, 497-98, 113 A.3d 608, 613-14 (2015). The court further held that a victim’s statement, made while on life support, was a dying declaration regardless of the fact that the victim died two years after making the statement. Id. at 506, 113 A.3d at 618. Finally, the court held that the Confrontation Clause of the …

Recent Development: Sublet V. State: Authentication Of Evidence From Social Networking Websites Requires A Trial Judge To Find Sufficient Proof From Which A Reasonable Juror Could Conclude That The Evidence Is What The Proponent Claims It To Be, Denise A. Blake

University of Baltimore Law Forum

The Court of Appeals of Maryland, in three consolidated cases, held that a trial judge must determine that evidence from a social networking website meets the “reasonable juror” standard of authentication as a condition precedent to admissibility. Sublet v. State, 442 Md. 632, 678, 113 A.3d 695, 722 (2015). This standard requires a preliminary determination by the trial judge that a reasonable juror could find the evidence is what the proponent claims it to be.

Using The Dna Testing Of Arrestees To Reevaluate Fourth Amendment Doctrine, Steven P. Grossman

All Faculty Scholarship

With the advent of DNA testing, numerous issues have arisen with regard to obtaining and using evidence developed from such testing. As courts have come to regard DNA testing as a reliable method for linking some people to crimes and for exonerating others, these issues are especially significant. The federal government and most states have enacted statutes that permit or direct the testing of those convicted of at least certain crimes. Courts have almost universally approved such testing, rejecting arguments that obtaining and using such evidence violates the Fourth Amendment.

More recently governments have enacted laws permitting or directing the …

Dna Helps Clear Man's Name From Rape Charge After 24 Years, Colin Starger

All Faculty Scholarship

No abstract provided.

Comments On Maryland V. King In 'U.S. Supreme Court To Hear Arguments Over Md. Dna Case: Justices' Decision Will Have National Implications On Future Crime-Fighting Procedures', Colin Starger

All Faculty Scholarship

No abstract provided.

"Sweet Childish Days": Using Developmental Psychology Research In Evaluating The Admissibility Of Out-Of-Court Statements By Young Children, Lynn Mclain

All Faculty Scholarship

A three-year-old child, while being bathed by her babysitter, innocently mentions that her “pee-pee” hurts. When the babysitter asks the child how she hurt it, she says, “Uncle Ernie (her mother’s boyfriend) told me not to tell.” A subsequent medical examination reveals that the child has gonorrhea, a sexually transmitted disease.

By the time of trial, the child is four and-a-half-years old. When questioned by the trial judge, she cannot explain to the judge’s satisfaction, “the difference between the truth and a lie.” Moreover, she has no long term memory of the incident. The judge rules the child incompetent to …

"I'M Going To Dinner With Frank": Admissibility Of Nontestimonial Statements Of Intent To Prove The Actions Of Someone Other Than The Speaker—And The Role Of The Due Process Clause, Lynn Mclain

All Faculty Scholarship

A woman tells her roommate that she is going out to dinner with Frank that evening. The next morning her battered body is found along a country road outside of town. In Frank’s trial for her murder, is her statement to her roommate admissible to place Frank with her that night? Since the Court’s 2004 Crawford decision, the confrontation clause is inapplicable to nontestimonial hearsay such as this.

American jurisdictions are widely divided on the question of admissibility under their rules of evidence, however. Many say absolutely not. A sizeable number unequivocally say yes. A small number say yes, but …

Evidence Issues In Cina Cases, Lynn Mclain

All Faculty Scholarship

This handout reviews different evidence issues involved in CINA (Children in Need of Assistance) cases in Maryland.

Fact, Fiction And Proof In The 21st Century: Evidence And Credibility For Fact Finding By Administrative Law Judges, Lynn Mclain

All Faculty Scholarship

Handout from a panel at the NAALJ Annual Conference covering credibility.

Hearsay Law: Recent Developments In Maryland And In The Supreme Court, Lynn Mclain

All Faculty Scholarship

Handout from an Anne Arundel County Bar Association CLE class concerning then-recent developments in Maryland hearsay rules.

Post-Crawford: Time To Liberalize The Substantive Admissibility Of A Testifying Witness's Prior Consistent Statements, Lynn Mclain

All Faculty Scholarship

The United States Supreme Court's 1995 decision in Tome v. United States has read Federal Rule of Evidence 801(d)(1)(B) to prevent the prosecution's offering a child abuse victim's prior consistent statements as substantive evidence. As a result of that decision, the statements will also be inadmissible even for the limited purpose of helping to evaluate the credibility of a child, if there is a serious risk that the out-of-court statements would be used on the issue of guilt or innocence.

Moreover, after the Court's March 2004 decision in Crawford v. Washington, which redesigned the landscape of Confrontation Clause analysis, other …

The Lessons Of People V. Moscat: Confronting Judicial Bias In Domestic Violence Cases Interpreting Crawford V. Washington, David Jaros

All Faculty Scholarship

Crawford v. Washington was a groundbreaking decision that radically redefined the scope of the Confrontation Clause. Nowhere has the impact of Crawford and the debate over its meaning been stronger than in the context of domestic violence prosecutions. The particular circumstances that surround domestic violence cases 911 calls that record cries for help and accusations, excited utterances made to responding police officers, and the persistent reluctance of complaining witnesses to cooperate with prosecutors -- combine to make the introduction of "out-of-comment statements" a critical component of many domestic violence prosecutions. Because domestic violence cases are subject to a unique set …

Expert Testimony And Scientific Evidence, Lynn Mclain

All Faculty Scholarship

Handout from a day-long lecture on expert and scientific testimony at the Maryland Judicial Institute.

Impeachment Of Witnesses: A Walking Tour, Lynn Mclain

All Faculty Scholarship

This handout from the Maryland State's Attorneys' Convention in 2003 summarizes the general methods of witness impeachment, who may be impeached, and impeachments by attacks on witnesses' character for truthfulness.

"Quick-Takes" On A Few Recent Decisions In Evidence Law ... And Rule 5-407, Lynn Mclain

All Faculty Scholarship

Handout from the State and Local Government Law Institute covering recent (2003) Maryland evidence cases.

An Introduction To The Rules Of Evidence Applicable To Collection Cases In Maryland Trial Courts, Lynn Mclain

All Faculty Scholarship

This class handout introduces students to the basic concepts of evidence using examples and language from the Maryland Rules of Evidence.

Teaching First-Year Civil Procedure And Other Introductory Courses By The Problem Method, Stephen J. Shapiro

All Faculty Scholarship

I have been teaching the first-year course in Civil Procedure for twenty years, first for five years at Ohio Northern University, and for the last fifteen years at the University of Baltimore, where I also teach a required second-year course in Evidence. When I first started teaching Civil Procedure, I used a fairly typical case method. I was never very happy with this approach for teaching a course in which one of my major goals was getting the students to learn to read, interpret and apply the Federal Rules of Civil Procedure (“Federal Rules”). Gradually, I began to develop sets …

Has Wright Line Gone Wrong? Why Pretext Can Be Sufficient To Prove Discrimination Under The National Labor Relations Act,, Michael Hayes

All Faculty Scholarship

Every year in the United States, thousands of employees are illegally fired for joining or supporting unions. These employees must bring their claims to the National Labor Relations Board (the “Board”), which applies its famous Wright Line standard to decide thousands of discrimination cases each year.

Probably the most common issue in labor discrimination cases is “pretext.” In virtually every case, an employer claims that it fired an employee not for an illegal anti-union motive, but for a legitimate business reason. The pretext issue arises when the evidence shows that the legitimate reason asserted by the employer was most likely …

Evidentiary Considerations In Civil Cases, Lynn Mclain

All Faculty Scholarship

Handout from a presentation at the Maryland Judicial Institute outlining character evidence and providing the text of the applicable Rules.

Evidence Issues In Domestic Violence Civil Cases, Jane C. Murphy, Jane H. Aiken

All Faculty Scholarship

New laws and policies aimed at protecting victims of domestic violence have been adopted across the country over the last twenty years.The legal approaches taken to protect battered women and control family violence have resulted in significant changes in family law. New laws include statutes permitting civil protection or restraining orders, and laws requiring that domestic violence be considered in custody and/or visitation decisions. Both of these types of statutory reforms can provide protection to adult victims of domestic violence and their children. Evaluating a parent's fitness by considering past acts of violence to other family members results in decisions …

Challenging Public Investigative Reports: How To Fight The Hearsay Exception, Steven P. Grossman, Stephen J. Shapiro

All Faculty Scholarship

This paper discusses how attorneys can argue against having government and public reports admitted into evidence at trial that would be damaging to their client. When this paper was done, such reports were admitted via Federal Rule of Evidence 803(8)(C). The authors argue that it is possible to challenge admission of factual findings in public reports despite various court decisions which make this difficult.

Recent Developments: Virgil V. "Kash N'Karry": Circumstantial Evidence Sufficient In Products Liability, Kevin L. Beard

University of Baltimore Law Forum

No abstract provided.

Recent Maryland Decisions, Jack Elsby, Jerry Fenzel, Milton Baxley, John M. Crabbs

University of Baltimore Law Forum

No abstract provided.