Law Commons^™

The Superfluous Rules Of Evidence, Jeffrey Bellin

Faculty Publications

There are few American legal codifications as successful as the Federal Rules of Evidence. But this success masks the project’s uncertain beginnings. The drafters of the Federal Rules worried that lawmakers would not adopt the new rules and that judges would not follow them. As a result, they included at least thirty rules of evidence that do not, in fact, alter the admissibility of evidence. Instead, these rules: (1) market the rules project, and (2) guide judges away from anticipated errors in applying the (other) nonsuperfluous rules.

Given the superfluous rules’ covert mission, it should not be surprising that the …

Tragedies Of The Cultural Commons, Etienne C. Toussaint

Faculty Publications

In the United States, Black cultural expressions of democratic life that operate within specific historical-local contexts, yet reflect a shared set of sociocultural mores, have been historically crowded out of the law and policymaking process. Instead of democratic cultural discourse occurring within an open and neutral marketplace of ideas, the discursive production and consumption of democratic culture in American politics has been rivalrous. Such rivalry too often enables dominant White supremacist cultural beliefs, values, and practices to exercise their hegemony upon law’s production and meaning. The result has been tragedy for politically disempowered and socioeconomically excluded communities.

This Article uses …

The Challenge Of Convincing Ethical Prosecutors That Their Profession Has A Brady Problem, Adam M. Gershowitz

Faculty Publications

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 …

Deconstructing The Epistemic Challenges To Mass Atrocity Prosecutions, Nancy Amoury Combs

Faculty Publications

Mass atrocity prosecutions are credited with advancing a host of praiseworthy objectives. They are believed to impose much-needed retribution, deter future atrocities, and affirm the rule of law in previously lawless societies. However, mass atrocity prosecutions will accomplish none of these laudable ends unless they are able to find accurate facts. Convicting the appropriate individuals of the appropriate crimes is a necessary and foundational condition for the success of mass atrocity prosecutions. But it is a condition that is frequently difficult to meet, as mass atrocity prosecutions are often bedeviled by pervasive and invidious obstacles to accurate fact-finding. This Article …

Your Mission, Should You Choose To Accept It: Taking Law School Mission Statements Seriously, Irene Scharf, Vanessa Merton

Faculty Publications

A law school can best achieve excellence and have the most effective academic program when it possesses a clear mission, a plan to achieve that mission, and the capacity and willingness to measure its success or failure. Absent a defined mission and the identification of attendant student and institutional outcomes, a law school lacks focus and its curriculum becomes a collection of discrete activities without coherence.

What Do I Do With The Porn On My Computer: How A Lawyer Should Counsel Clients About Physical Evidence, Rodney J. Uphoff, Peter A. Joy

Faculty Publications

For years, criminal defense lawyers and commentators have wrestled with thorny ethical and legal issues surrounding defense counsel's obligations with respect to handling items of physical evidence. Commentators have usually focused on the question of whether the lawyer should take possession of physical evidence of a crime as well as on counsel's obligations and options once the lawyer purposively or inadvertently comes into possession of such evidence. After discussing what the ethics rules and the law require concerning handling physical evidence, commentators have generally cautioned lawyers not to take possession of suspected contraband or possible evidence of a crime, except …

Trying The Trial, Andrew S. Pollis

Faculty Publications

Lawyers routinely make strategic advocacy choices that reflect directly, if inferentially, on the credibility of their clients’ claims and defenses. But courts have historically been reluctant to admit evidence of litigation conduct, sometimes even expressing hostility at the very notion of doing so. This Article deconstructs that reluctance. It argues not only that litigation conduct has probative value, but also that there is social utility in subjecting lawyer behavior to juror scrutiny.

Trial By Google: Judicial Notice In The Information Age, Jeffrey Bellin, Andrew Guthrie Ferguson

Faculty Publications

This Article presents a theory of judicial notice for the information age. It argues that the ease of accessing factual data on the Internet allows judges and litigants to expand the use of judicial notice in ways that raise significant concerns about admissibility, reliability, and fair process. State and federal courts are already applying the surprisingly pliant judicial notice rules to bring websites ranging from Google Maps to Wikipedia into the courtroom, and these decisions will only increase in frequency in coming years. This rapidly emerging judicial phenomenon is notable for its ad hoc and conclusory nature—attributes that have the …

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

Faculty Publications

No abstract provided.

Ehearsay, Jeffrey Bellin

Faculty Publications

No abstract provided.

Confrontation In Children's Cases: The Dimensions Of Limited Coverage, Robert P. Mosteller

Faculty Publications

No abstract provided.

Responding To Mccleskey And Batson: The North Carolina Racial Justice Act Confronts Racial Peremptory Challenges In Death Cases, Robert P. Mosteller

Faculty Publications

No abstract provided.

The International Court Of Justice's Treatment Of Circumstantial Evidence And Adverse Inferences, Michael P. Scharf, Marqaux Day

Faculty Publications

This Article examines a vexing evidentiary question with which the International Court of Justice has struggled in several cases, namely: What should the Court do when one of the parties has exclusive access to critical evidence and refuses to produce it for security or other reasons? In its first case, Corfu Channel, the Court decided to apply liberal inferences of fact against the non-producing party, but in the more recent Crime of Genocide case, the Court declined to do so under seemingly similar circumstances. By carefully examining the treatment of evidence exclusively accessible by one party in these and other …

Confronting Coventurers: Coconspirator Hearsay, Sir Walter Raleigh, And The Sixth Amendment Confrontation Clause, Ben L. Trachtenberg

Faculty Publications

Using the example of a recent major terrorism prosecution, this article addresses “coventurer hearsay” in the context of the ongoing Confrontation Clause debate concerning the United States Supreme Court’s decision in Crawford v. Washington. Courts have recently begun admitting hearsay evidence pursuant to a revisionist interpretation of the coconspirator statement exception to the hearsay rule. Under the new “lawful joint venture” theory, a hearsay statement may be admitted as a coconspirator statement if made in furtherance of a “joint undertaking” - defined as pretty much any cooperative activity - even if the “conspiracy” is not illegal. Because this new interpretation …

Diagnosing Liability : The Legal History Of Posttraumatic Stress Disorder, Deirdre M. Smith

Faculty Publications

This Article examines the origins of the unique relationship between the psychiatric diagnosis Posttraumatic Stress Disorder (PTSD) and the law and considers the implications of that relationship for contemporary uses of the diagnosis in legal settings. PTSD stands apart from all other diagnoses in psychiatry 's standard classification system, the Diagnostic and Statistical Manual of Mental Disorders (DSM} , and is the focus of significant controversy within psychiatry, because its diagnostic criteria require a determination of causation. By diagnosing a person with PTSD, a clinician necessarily assigns responsibility to a specific event or agent for causing the person 's symptoms, …

Supergeneric Collateral Descriptions In Financing Statements And Notice Filing, Lissa Lamkin Broome

Faculty Publications

No abstract provided.

A Parent's "Apparent" Authority: Why Intergenerational Coresidence Requires A Reassessment Of Parental Consent To Search Adult Children's Bedrooms, Hillary B. Farber

Faculty Publications

The proliferation of multigenerational U.S. households provides a new perspective on the social customs and practices concerning coresidence in the United States. Rather than relying outdated presumptions of parental control, this Article argues that police should be compelled to conduct a more thorough inquiry before searching areas occupied exclusively by the adult child. Police should differentiate between "common" and private areas, and inquire into any agreements - formal or informal - that the parent and child may have regarding access and control over such areas. By fully recognizing the changing nature of the American household and rejecting a bare reliance …

Book Review Of Fact Finding Without Facts: The Uncertain Evidentiary Foundations Of International Criminal Convictions, Linda A. Malone

Faculty Publications

No abstract provided.

"Fact-Finding Without Facts": A Conversation With Nancy Combs, Nancy Amoury Combs

Faculty Publications

No abstract provided.

Revealing And Thereby Tempering The Abuses Of Government Created Evidence In Criminal Trials, Robert P. Mosteller

Faculty Publications

No abstract provided.

The Danger To Confidential Communications In The Mismatch Between The Fourth Amendment's "Reasonable Expectation Of Privacy" And The Confidentiality Of Evidentiary Privileges, Robert P. Mosteller, Kenneth S. Broun

Faculty Publications

No abstract provided.

The Exclusionary Rule In Immigration Proceedings: Where It Was, Where It Is, Where It May Be Going, Irene Scharf

Faculty Publications

The case alerted me to the continuing issue concerning the treatment of alleged violations of Fourth Amendment rights in immigration court, with this article the result of research conducted relating thereto. Beyond reviewing the relevant views of the federal courts of appeals; the administrative tribunal that handles appeals of immigration court cases, the Board of Immigration Appeals (BIA); and even local immigration courts; I consider whether the jurisprudence has remained static since the Supreme Court's watershed opinion on the issue about twenty-five years ago. I also offer suggestions as to how to effectively, fairly, and efficiently resolve the issues raised …

Coconspirators, “Coventurers,” And The Exception Swallowing The Hearsay Rule, Ben L. Trachtenberg

Faculty Publications

In recent years, prosecutors - sometimes with the blessing of courts - have argued that when proving the existence of a “conspiracy” to justify admission of evidence under the Coconspirator Exception to the Hearsay Rule, they need show only that the declarant and the defendant were “coventurers” with a common purpose, not coconspirators with an illegal purpose. Indeed, government briefs and court decisions specifically disclaim the need to show any wrongful goal whatsoever. This Article contends that such a reading of the Exception is mistaken and undesirable. Conducted for this article, a survey of thousands of court decisions, including the …

Adverse Inference About Adverse Inferences: Restructuring Juridical Roles For Responding To Evidence Tampering By Parties To Litigation, Dale A. Nance

Faculty Publications

For at least two centuries, Anglo-American courts have responded to a party's evidence tampering by allowing the opponent to argue to jurors that they should draw an adverse inference against the offending party in deciding the merits of the case. This Article argues that the use of such inferences, and invitations to draw them, should be radically curtailed, not only because of the ambiguities and risks of prejudice that such inferences entail, but more importantly because they reflect and contribute to a confusion of roles in which the jury is enlisted to participate in the management of the pre-trial conduct …

Scientific Fraud, Paul C. Giannelli

Faculty Publications

Although scientific fraud is rare, when it occurs, it needs to be identified and documented. This article discusses two of the most notorious cases in forensic science. Part I focuses on the misconduct of Fred Zain, a serologist with the West Virginia State Police crime laboratory and later with the County Medical Examiner’s laboratory in San Antonio, Texas. Part II examines the misconduct of Joyce Gilchrist, a forensic examiner with the Oklahoma City Police Department.

Scientific Evidence In Criminal Prosecutions - A Retrospective, Paul C. Giannelli

Faculty Publications

No abstract provided.

Searching Cell Phones Incident To Arrest: Can Courts And Legislatures Impose Limits On A Bright Line Rule?, Adam M. Gershowitz

Faculty Publications

No abstract provided.

The Special Threat Of Informants To The Innocent Who Are Not Innocents: Producing "First Drafts," Recording Incentives, And Taking A Fresh Look At The Evidence, Robert P. Mosteller

Faculty Publications

No abstract provided.

The Nrc Report And Its Implications For Criminal Litigation, Paul C. Giannelli

Faculty Publications

The National Research Council, an arm of the National Academy of Sciences, issued a landmark report on forensic science in February 2009. In the long run, the report’s recommendations, if adopted, would benefit law enforcement and prosecutors. The recommendations would allow forensic science to develop a strong scientific basis and limit evidentiary challenges regarding the reliability of forensic evidence. In keeping with its congressional charge, however, the NRC Committee did not directly address admissibility issues. Nevertheless, given its content, the report will inevitably be cited in criminal cases. Indeed, within months, the United States Supreme Court cited the report, noting …

Scientific Evidence And Prosecutorial Misconduct In The Duke Lacrosse Rape Case, Paul C. Giannelli

Faculty Publications

The need for pretrial discovery in criminal cases is critical. A defendant's right to confrontation, effective assistance of counsel, and due process often turns on pretrial disclosure. This essay discusses a case that demonstrates this point.