Law Commons^™

The Emotional Juror, Todd E. Pettys

Todd E. Pettys

Addressing the dichotomy often drawn between emotions and rationality, I argue that, while emotions sometimes exert undesirable influences in the courtroom, there are a variety of ways in which emotions aid rational decision-making by jurors.

A History Of Representations Of Justice: Coincident Preoccupations Of Law And Film, Jessica M. Silbey

Jessica Silbey

The American trial and the art of cinema share certain epistemological tendencies. Both stake claims to an authoritative form of knowledge based on the indubitable quality of observable phenomena. Both are preoccupied (sometimes to the point of self-defeat) with sustaining the authority that underlies the knowledge produced by visual perception. The American trial and art of cinema also increasingly share cultural space. Although the trial film (otherwise known as the courtroom drama) is as old as the medium of film the recent spate of popular trial films, be they fictional such as Runaway Jury or documentary such as Capturing the …

The Fax As Valid Evidence In Argentine Law, Felipe Eduardo Zabalza, Leandro Javier Caputo

Felipe Eduardo Zabalza

Under Argentine law, the facsimile transmission (fax) is not acceptable under certain circumstances. A recent decision in “Flowtex France S.R.L. v. Flowtex Servicios Urbanos S.A.”, handed down by the National Court of Appeals on Commercial Matters, Chamber A, stated that “a simple photocopy of a fax is not enough proof of the existence of a loan contract”.

As background to this matter, the Argentine court ruled in an international case regarding a loan made by a French company to an Argentine company, with particular consideration of the facsimile as valid evidence in commercial proceedings.

Crawford’S Aftershock: Aligning The Regulation Of Non-Testimonial Hearsay With The History And Purposes Of The Confrontation Clause, Fred O. Smith

Fred O. Smith Jr.

This Article explores what the purposes, history and text of the Confrontation Clause have to say about the admission of non-testimonial hearsay statements. Part I examines historical sources such as the common law near the Founding, as well as the text of the clause, and concludes that non-testimonial hearsay was one of the ills that the Confrontation Clause was designed to protect. Part I additionally proposes a two-tiered approach to interpreting the Confrontation Clause, in which testimonial statements receive the most vigorous form of constitutional scrutiny, but non-testimonial statements receive meaningful scrutiny as well. The United States Constitution is no …

Towards A Scientific Standard For The Admissibility And Evaluation Of Psychiatric Evidence In War Crimes Prosecutions, Matthew J. Madalo

Matthew J Madalo

"Towards a Standard for the Admissibility and Evaluation of Psychiatric Evidence in War Crimes Prosecutions" explores the nature and use of psychiatric/psychological defenses and evidence in war crimes prosecutions. Part I of the article focuses on the differing goals and overlapping concerns between psychiatry and the law. In the international criminal legal context, the discussion will center on the types of psychiatric evidence and defenses that have been used or are likely to be used in war crimes prosecutions. Part II analyzes the applicable ICTY, ICR and ICC Statutes, Rules of Procedure and Evidence, and relevant United States common law …

Making The Sale On Contingent Valuation, Sameer H. Doshi

Sameer H Doshi

Scholarship and jurisprudence have not seriously considered the question of whether the contingent valuation (CV) technique of monetizing preferences for non-tradeable public goods is consistent with the Daubert standards for scientific evidence. The greatest difficulty is in establishing that CV is testable and has measurable error rates; this problem is consonant with criticisms that economists have leveled at the CV method more generally. Additionally, the “state of the art” of contingent valuation practice has recommended the use of the willingness-to-pay question format for CV, rather than willingness-to-accept. This is misplaced in many cases, particularly in calculating damages in environmental tort …

Confronting The “Ongoing Emergency”: A Pragmatic Approach To Hearsay Evidence In The Context Of The Sixth Amendment, Ellen Liang Yee

ellen yee

The Supreme Court’s path breaking decision in Crawford v. Washington, 541 U.S 36 (2004), held that admission of an extrajudicial testimonial statement by an unavailable declarant-witness violates the Confrontation Clause unless the defendant has an opportunity to cross-examine the declarant. Unfortunately, the determination of admissibility for the trial court judge has not been simplified after Crawford. The role of the trial court judge has now shifted from determining the reliability of the hearsay evidence (as was required before Crawford) to a determination of the testimonial nature of the declarant’s statement. However, with some small exceptions, the Court in Crawford explicitly …

To Speak Or Not To Speak? Navigating The Treacherous Waters Of Parallel Investigations Following The Amendment Of Federal Rule Of Evidence 408, Mikah K. Story Thompson

Mikah K. Story Thompson

This article is the first to explore the true impact of the recently amended Fed. R. Evid. 408 on parallel proceedings. Parallel proceedings exist where the government conducts both a civil and criminal investigation against a defendant for single instance of alleged misconduct. Prior to the rule’s amendment, a defendant facing parallel proceedings had the ability to negotiate settlement of the civil suit without fear that any incriminating statements made during settlement talks would later re-surface in the criminal case. However, the amendment to Rule 408 singles out defendants facing parallel proceedings by stating that the government may use any …

Should Statements Made By Patients During Psychotherapy Fall Within The Medical Treatment Hearsay Exception? An Interdisciplinary Critique, Philip K. Hamilton

Philip K. Hamilton

This article challenges the prevailing view of courts that statements made to a mental health clinician are the functional equivalent of statements made for the purpose of any other kind of treatment and should therefore be admitted under the hearsay exception for statements made for the purposes of medical diagnosis or treatment. The article takes the position that, because of the nature of psychotherapy, patient statements to therapists are not sufficiently reliable to be included in the hearsay exception.

This use of the “medical treatment exception,” which began with statements of child victims in abuse cases, has been extended to …

Procedural Path Dependence: Discrimination And The Civil-Criminal Divide, Julie C. Suk

Julie C Suk

Procedural path dependence occurs when the particular features of the procedural system which has been charged with enforcing a given legal norm determine the substantive path of that legal norm. This article shows how the limits of employment discrimination law in two different national contexts can be explained by procedural dynamics. In France, as in several European countries, employment discrimination law is enforced predominantly in criminal proceedings. French criminal procedure enables the discovery of information necessary to proving the facts of discrimination, whereas the limited nature of French civil procedure makes it impossible for such information to be revealed. As …

Toward A Unified Theory Of Testimonial Evidence Under The Fifth And Sixth Amendments, Michael J.Z. Mannheimer

Michael J.Z. Mannheimer

There is an obvious parallel between the language of the Self-Incrimination Clause and that of the Confrontation Clause: the former forbids the government from forcing a criminal suspect to become a “witness against himself,” while the latter requires the government to allow a criminal defendant to confront the “witnesses against him.” The irresistible inference is that the word “witness” means the same thing in both Clauses. And, indeed, the Supreme Court has hinged the question of whether someone is a "witness" in both contexts on whether he or she has given "testimonial" evidence. Yet, at least at first blush, the …

If The Glove Don’T Fit, Try Newer Gloves: The Unplanned Obsolescence Of The Substantial Similarity Standard For Experimental Evidence, Jonathan M. Hoffman

Jonathan M Hoffman

In the context of a recent Fifth Circuit decision, this article reviews the law concerning the admissibility of “experimental” and demonstrative evidence. The standards used to determine the admissibility of both categories of evidence predate the Federal Rules of Evidence. These standards for admission of such evidence are obsolete and at odds with the Federal Rules. The issue is particularly important in the wake of the Kumho Tire decision and the 2000 amendments to Federal Rule of Evidence 702, as engineers and other technical experts are increasingly called upon to test their hypotheses, even as the courts’ continued use of …

Evidentiary Value Of Expert Opinion Under Indian Evidence Act, Krishna Kumari Areti

Krishna Kumari Areti prof

Law of evidence allows a person –who is a witness to state the facts related to either to a fact in issue or to relevant fact, but not his inference. It applies to both criminal law and civil law. The opinion of any person other than the judge by whom the fact has to be decided as to the existence of the facts in issue or relevant facts are as a rule, irrelevant to the decision of the cases to which they relate for the most obvious reasons- for this would invest the person whose opinion was proved with the …

Search And Seizure On Steroids: United States V. Comprehensive Drug Testing And Its Consequences For Private Information Stored On Commercial Electronic Databases, Aaron S. Lowenstein

Aaron S Lowenstein

This article critiques the Ninth Circuit’s recent decision in United States v. Comprehensive Drug Testing. This case received some attention because it stems from the investigation into the use of steroids in Major League Baseball. It should have received much more attention, however, because of its troubling expansion of the government’s authority to access our private digital information without a warrant.

Executing a search warrant for information stored on a computer database poses special problems. Because targets of government investigations can easily conceal incriminating digital evidence, investigators often must search an entire computer hard drive in order to effectively execute …

Miranda Is Not Enough: A New Justification For Demanding "Strong Corroboration" To A Confession, Boaz Sangero

Prof. Boaz Sangero

Following research conducted in recent years—some of it regarding evidence obtained through DNA testing—no doubt remains that, in reality, innocent persons are convicted of crimes and that, in a significant number of these cases, wrongful convictions are solely based on the out-of-court confessions of accused persons obtained by police interrogators.This Article discusses existing law regarding confessions and convictions based on confessions. While this body of law deals in a relatively satisfactory manner with the fear that the confession is involuntary (primarily, through Miranda rules), unfortunately, it does not adequately address the serious fear of false confessions.The Article is designed to …

If You Could Read My Mind: Implications Of Neurological Evidence For Twenty-First Century Criminal Jurisprudence, John G. New

John G. New

The advent of new technologies has permitted cognitive neuroscientists to explore the neural mechanisms underlying deceptive behaviors. Lawyers and law enforcement entities have shown great interest in exploring the legal consequences of employing such technologies; indeed such interest extends back to the days of phrenology and the advent of polygraphy. This article recounts current advances in the development of “truth telling” technologies, particularly functional magnetic resonance imaging (fMRI) and Brain Fingerprinting and recent attempts to introduce the latter into court as scientific evidence. The second part of the article explores the challenges to constitutional jurisprudence, especially to the Fifth and …

Do Rules Of Evidence Apply (Only) In The Courtroom? Deceptive Interrogations In The United States And Germany, Jacqueline E. Ross

Jacqueline E Ross

Scholars who compare common law and civil law countries have long argued that civil law legal systems like Germany do not employ formal rules of evidence comparable to those which govern American courtrooms. The complex and restrictive nature of American evidentiary rules is said to be an artifact of the adversarial process and lay juries, which the legal system does not trust to evaluate evidence dispassionately. Civil law systems that commit fact-finding to mixed panels of lay and professional judges are said to have less need for formal rules of evidence that withhold information from decision-makers.

My essay challenges this …

Who Knew? Admissibility Of Subsequent Remedial Measures When Defendants Are Without Knowledge Of The Injuries, Mark Boyko, Ryan Vacca

Mark Boyko

Federal Rule of Evidence 407 prohibits the introduction of subsequent remedial measures for the purposes of demonstrating negligence, culpable conduct, or product defect. But the rule breaks down when a defendant undertakes the new safety measure after the plaintiff's injury, but before the defendant had knowledge of the loss. This situation is not uncommon. Toxic exposure cases represent a prime example where defendants are likely to have improvements before learning of a plaintiff's injury. Should evidence of these improvements be admissible? The literal text of Rule 407 suggests not. Yet admitting this evidence may not have the same chilling effect …

Criminal Performances: Film, Autobiography, And Confession, Jessica M. Silbey

Jessica Silbey

This article questions the criminal justice emphasis on filmed confession as the superlative evidentiary proffer that promotes accuracy and minimizes unconstitutional coercion by comparing filmed confessions to autobiographical film. It suggests that analyzing filmed confessions as a kind of autobiographical film exposes helpful tensions between the law’s reliance on confession as revealing the inner self and the literary and filmic conception of confession as constituting one self among many. Through a close examination of several filmed confessions along side an examination of the history of autobiographical writing and film, this article shows how filmed confessions do not reveal the truthfulness …

Fear And Loathing In Insanity Law: Explaining The Otherwise Inexplicable Clark V. Arizona, Susan Rozelle

Seattle University

Eric Clark believed he was battling space aliens when he shot and killed Officer Jeffrey Moritz. Charged under a first-degree murder statute that requires knowledge the victim is a police officer, Clark should have been “not guilty” two ways: first, by reason of insanity, and second, because he did not satisfy the mens rea requirement. Instead, he was found guilty, and the United States Supreme Court’s decision upholding this result tortured insanity law jurisprudence. The only plausible explanation for the Court’s decision lies in society’s emotional reaction to mental illness. Fear and loathing have displaced not only care and compassion, …

Coporate America Fights Back: The Battle Over Waiver Of The Attorney-Client Privilege, Michael L. Seigel

Michael L Seigel

This article address a topic that is the subject of an on-going and heated contest between the business lobby and its lawyers, represented primarily by the American Bar Association, the Association of Corporate Counsel, and the National Association of Criminal Defense Lawyers, on the one side, and the United States Department of Justice, on the other. The fight is over federal prosecutors’ escalating practice of requesting that corporations accused of criminal wrongdoing waive their attorney-client privilege as part of their cooperation with the government. The Department views privilege waiver as a legitimate and very important tool in its post-Enron battle …

Neuroimaging And The "Complexity" Of Capital Punishment, Orlando Carter Snead

O. Carter Snead

The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and in the public square, the contours of a project to transform capital sentencing both in principle and practice have emerged. In the short term, such scientists seek to intervene in the process of capital sentencing by serving as mitigation experts for defendants, where they invoke neuroimaging research on the roots of criminal violence to support their arguments. Over …

Neuroimaging And The "Complexity" Of Capital Punishment, Orlando Carter Snead

O. Carter Snead

The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and in the public square, the contours of a project to transform capital sentencing both in principle and practice have emerged. In the short term, such scientists seek to intervene in the process of capital sentencing by serving as mitigation experts for defendants, where they invoke neuroimaging research on the roots of criminal violence to support their arguments. Over …

The Individualization Fallacy In Forensic Science Evidence, Michael J. Saks, Jonathan J. Koehler

Michael J Saks

Forensic scientists across a broad array of sub-specialties have long maintained that they can link an unknown mark (e.g., a partial fingerprint or tireprint) to a unique source. Yet no scientific basis exists for this assertion, which is sustained largely by faulty probabilistic intuition that equates infrequency with uniqueness. This article traces the origins of the individualization claim and explicates the various failed lines of evidence and argument offered in its support. We conclude with suggestions for how to improve the scientific basis of the forensic identification sciences.

I’Ll Never Forget That Face . . . (But I Might Not Remember It Accurately), Jules Epstein

Jules Epstein

No abstract provided.

Community Notification And The Perils Of Mandatory Juvenile Sex Offender Registration: The Dangers Faced By Children And Their Families, Joanna S. Markman

Joanna S. Markman

The impetus for the creation of a separate juvenile justice system, as will be explained below, was the acknowledgment that children are not adults, and as such, do not have the capacity for rationale thoughts as do adults. Moreover, the juvenile justice system was derived to create a structure whereby rehabilitation would be the ultimate objective in devising juvenile punishment or, as it is referred to in the language of juvenile law, disposition.

It is difficult, if not impossible, to garner sympathy for the plight of the sexual offender. This Article is not designed to do so. Moreover, while it …

“Misconvictions,” Science And The Ministers Of Justice, Jane Campbell Moriarty

Jane Campbell Moriarty

DNA evidence has exonerated over two hundred wrongfully convicted defendants in the last several years, providing insights into the causes of such convictions. One such cause, faulty scientific evidence, is a focus of this article. For decades, many have written about the prevalence of and reasons for wrongful convictions --what I have termed “misconvictions.” A few reasons support the coinage “misconvictions”: the miscarriage of justice when an innocent person is convicted; the mistakes involved in the prosecution and trial of the case; the mistaken identification that may have occurred; and finally, the recognition that all wrongful convictions are a missed …

Who Knew? The Admissibility Of Subsequent Remedial Measures When Defendants Are Without Knowledge Of The Injuries, Ryan G. Vacca

Ryan G. Vacca

Federal Rule of Evidence 407 and equivalent state court rules prohibit the introduction of subsequent remedial measures for the purpose of demonstrating negligence, culpable conduct, or product defect. The rule breaks down, however, in application and purpose, when a defendant undertakes a new safety measure after the plaintiff's injury but before the defendant had knowledge of the loss. Such a situation is not uncommon. Would-be defendants frequently improve their products and product safety, whether in response to injuries incurred by other users, business pressures, or simply advances in the state of the art and scientific knowledge. Toxic exposure cases, where …

Symposium Foreward: Daubert, Innocence, And The Future Of Forensic Science, Jane Moriarty

Jane Campbell Moriarty

The years since Daubert have not been kind to those seeking to challenge prosecutorial expert evidence, as many of the Symposium authors recognize. After two decades of trying to convince courts that there is no empirical basis for handwriting identification testimony declaring a match between two samples, Michael Risinger claims to be packing his bags and leaving the island until there is a more conducive climate for examining the reliability problems.

If You (Re)Build It They Will Come: Contracts To Remake The Rules Of Litigation In Arbitration's Image, Henry S. Noyes

Henry S. Noyes

The Supreme Court describes the right to trial by jury in a civil action as a "basic and fundamental" right that is "sacred to the citizen" and therefore "should be jealously guarded by the court." But parties to a contract may agree that, in the event a dispute arises, they waive their right to a jury. If this dispute resolution right - which is fundamental, constitutional, and set forth in the Federal Rules of Civil Procedure - may be used as a bargaining chip, are there any limits on parties' ability to modify the rules of litigation in their ex …