Law Commons^™

Summary Of Banks V. Sunrise Hospital, 120 Nev. Adv. Op. No. 89, Beth Rosenblum

Nevada Supreme Court Summaries

No abstract provided.

Standards Of Proof In Japan And The United States, Kevin M. Clermont

Cornell Law Faculty Publications

This article treats the striking divergence between Japanese and U.S. civil cases as to standards of proof. The civil-law Japan requires proof to a high probability similar to the criminal standard, while the common-law United States requires only that the burdened party prove the fact to be more likely than not. This divergence not only entails great practical consequences, but also suggests a basic difference in attitudes toward the process of trial.

As to the historical causation of the difference in standards of proof, civil-law and common-law standards diverged in the late eighteenth century, probably because of one system’s French …

Summary Of Lobato V. State, 120 Nev. Adv. Op. No. 57, Keith Brown

Nevada Supreme Court Summaries

District court convictions for first-degree murder and sexual penetration of a dead body reversed and case remanded for new trial. Trial court’s exclusion of extrinsic evidence to prove potential bias of State’s witness against Defendant was reversible error, not harmless error. Although a trial court had broad discretion to control cross-examination attacking a witness’s credibility, that discretion was narrowed when bias or motive was to be shown. Unless materially related to the case and admissible on other grounds, extrinsic evidence of prior bad acts or inconsistent statements is always collateral and, therefore, inadmissible to attack credibility. But, extrinsic evidence to …

Recent Evaluative Research On Jury Trial Innovations, B. Michael Dann, Valerie P. Hans

Cornell Law Faculty Publications

During the past decade, state jury reform commissions, many individual federal and state judges, and jury scholars have advocated the adoption of a variety of innovative trial procedures to assist jurors in trials. Many jury trial reforms reflect growing awareness of best practices in education and communication as well as research documenting that jurors take an active rather than a passive approach to their decision-making task. Traditional adversary jury trial procedures often appear to assume that jurors are blank slates, who will passively wait until the end of the trial and the start of jury deliberations to form opinions about …

What Happens When Dirty Harry Becomes An [Expert] Witness For The Prosecution?, Joelle A. Moreno

Faculty Publications

No abstract provided.

Doctors, The Adversary System, And Proceudral Reform In Medical Liability Litigation, Catherine T. Struve

All Faculty Scholarship

No abstract provided.

The Central Park Five, The Scottsboro Boys, And The Myth Of The Bestial Black Man, N. Jeremi Duru

Articles in Law Reviews & Other Academic Journals

No abstract provided.

A Non-Romantic View Of Expert Testimony, Lewis H. Larue, David S. Caudill

Scholarly Articles

The Daubert trilogy as a whole deflects attention away from abstract identifications of scientific validity (including the demarcation controversy aimed at rooting out allegedly junk science from the courtroom), and toward the application of expertise to the particular case at hand. That emphasis on application is reflected as well in post-trilogy scholarship, wherein we see three patterns or contours that both help quiet the debates and provide useful guidance to judges and lawyers. First, there is a pragmatic recognition, in various forms, that the focus should be on how science is being used rather than on science in the abstract. …

Protecting The Citizen Whilst He Is Quiet: Suspicionless Searches, Special Needs And General Warrants, Scott E. Sundby

Articles

No abstract provided.

True To Character: Honoring The Intellectual Foundations Of The Character Evidence Rule In Domestic Violence Prosecutions, Andrew King-Ries

Faculty Law Review Articles

This article calls for a new character evidence rule allowing the admission of prior acts of abuse within the context of a current domestic violence prosecution. Section II discusses the history of domestic violence in America and explores the three ways that the law has condoned domestic violence, including implicit sanction through the effect of the character evidence rule. Section III examines the intellectual background of the character evidence ban. This section also explores the conflict between the character evidence rule and the law's recognition of domestic violence. Further, Section III demonstrates how the character evidence ban violates its underlying …

Questions Of Fact In The Practice Of Law: A Response To Allen & Pardo's Facts In Law, Facts Of Law, Paul F. Kirgis

Faculty Journal Articles & Other Writings

In an article in this journal, Professor Ronald Allen and Michael Pardo critiqued efforts to explain the fact-law distinction on ontological, epistemological or analytical grounds. Finding those efforts unavailing, the authors concluded that decisions to label an issue 'legal' or 'factual' rest on purely functional considerations turning on a complex set of variables including the conventional meanings of the terms, structural relationships among potential decision-makers, and a distinction between matters of general and specific import. In this response, it is argued that Allen and Pardo's critique is accurate to the extent it addresses the fact-law distinction from a general jurisprudential …

'A Flame Of Fire': The Fourth Amendment In Perilous Times, John Burkoff

Articles

The important questions we need to ask and to answer in the perilous times in which we live is whether the Fourth Amendment applies in the same fashion not just to run of the mill criminals, but also to terrorists and suspected terrorists, individuals who are committing or who have committed B or who may be poised to commit B acts aimed at the destruction of extremely large numbers of people? Professor Burkoff argues that we can protect ourselves from cataclysmic threats of this sort and still maintain a fair and objective application of Fourth Amendment doctrine that respects our …

Ake V. Oklahoma: The Right To Expert Assistance In A Post-Daubert, Post-Dna World, Paul C. Giannelli

Faculty Publications

Although securing the services of defense experts to examine evidence, to advise counsel, and to testify at trial is frequently critical in modern criminal litigation, it was not until 1985 that the United States Supreme Court in Ake v. Oklahoma, 470 U.S. 68 (1985), recognized, for the first time, a constitutional right to expert assistance. In a system in which an overwhelming majority of criminal defendants are indigent, Ake was a landmark case. Nevertheless, the Ake Court could not have anticipated how the advent of DNA evidence would revolutionize forensic science or how the Daubert trilogy would alter the judicial …

The Confrontation Clause Re-Rooted And Transformed, Richard D. Friedman

Articles

For several centuries, prosecution witnesses in criminal cases have given their testimony under oath, face to face with the accused, and subject to cross-examination at trial. The Confrontation Clause of the Sixth Amendment to the U.S. Constitution guarantees the procedure, providing that ‘‘[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witness against him.’’ In recent decades, however, judicial protection of the right has been lax, because the U.S. Supreme Court has tolerated admission of outof- court statements against the accused, without cross-examination, if the statements are deemed ‘‘reliable’’ or ‘‘trustworthy.’’ …

Adjusting To Crawford: High Court Decision Restores Confrontation Clause Protection, Richard D. Friedman

Articles

In Crawford v. Washington, 124 S. Ct. 1354 (2004), the U.S. Supreme Court radically transformed its doctrine governing the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. Craitiord is a very positive development, restoring to its central position one of the basic protections of the common law system of criminal justice. But the decision leaves many open questions, and all lawyers involved in the criminal justice process will have to adjust to the new regime that it creates. This article outlines and summarizes the problems with the law as it stood before Crait/brd. It then explains the theoretical …

De Novo Review In Deferential Robes?: A Deconstruction Of The Standard Of Review Of Evidentiary Errors In The Federal System, Peter Nicolas

Articles

Although the labels have changed, the name of the appellate game is still the same. For any given type of error in admitting or excluding evidence, one needs to determine whether review is discretionary or deferential. The purpose of this Article is to parse each of the rules of evidence to determine which types of claimed errors are entitled to de novo review, which are entitled to clear error review, and which are entitled to traditional abuse of discretion review. By "type" of error, this Article does not mean to refer to such large categories as "hearsay," "best evidence," "relevance," …

Back To The Future With Privileges Abandon Codification, Not The Common Law, Paul Rice

Articles in Law Reviews & Other Academic Journals

No abstract provided.

A Legisprudential Analysis Of Evidence Codification: Why Most Evidence Rules Should Not Be Codified—But Privilege Law Should Be, Paul F. Kirgis

Faculty Law Review Articles

In this article, I will suggest standards for use in assessing a proposed codification. Although the standards I will identify are useful for evaluating a proposed codification of privilege law, they are also more generally applicable. Indeed, I will use them to examine the codification of evidence law in general. First, I will ask whether, as a normative matter, the law of evidence should be codified. I will then focus on the individual rules of evidence, most notably the privilege rules, to draw conclusions about whether those standards are met.

Face To Face': Rediscovering The Right To Confront Prosecution Witnesses, Richard D. Friedman

Articles

The Sixth Amendment to the United States Constitution protects the right of an accused 'to confront the witnesses against him'. The United States Supreme Court has treated this Confrontation Clause as a broad but rather easily rebuttable rule against using hearsay on behalf of a criminal prosecution; with respect to most hearsay, the exclusionary rule is overcome if the court is persuaded that the statement is sufficiently reliable, and the court can reach that conclusion if the statement fits within a 'firmly rooted' hearsay exception. This article argues that this framework should be abandoned. The clause should not be regarded …

Judges As Film Critics: New Approaches To Filmic Evidence, Jessica Silbey

Faculty Scholarship

This Article exposes internal contradictions in case law concerning the use and admissibility of film as evidence. Based on a review of more than ninety state and federal cases dating from 1923 to the present, the Article explains how the source of these contradictions is the frequent miscategorization of film as “demonstrative evidence,” evidence that purports to illustrate other evidence, rather than to be directly probative of some fact at issue. The Article further demonstrates how these contradictions are based on two venerable jurisprudential anxieties. One is the concern about the growing trend toward replacing the traditional testimony of live …

Wild Dreamers: Meditation On The Admissibility Of Dream Talk, Louise Harmon

Scholarly Works

No abstract provided.

Justice Still Fails: A Review Of Recent Efforts To Compensate Individuals Who Have Been Unjustly Convicted And Later Exonerated, Adele Bernhard

Articles & Chapters

With this Article, I hope to motivate state legislators to enact responsible, practical compensation statutes and encourage courts to entertain state law and civil rights claims brought by those who have been unjustly convicted and later exonerated. I begin by looking at the reasons for enacting compensation statutes: uniformity, practicality, popular support, and fairness. Next, I dissect the arguments raised by opponents. Finally, I turn to recent judicial decisions hinting that courts may be stepping in where legislatures fear to tread.

Gaining/Losing Perspective On The Law, Or Keeping Digital Evidence In Perspective, Christopher J. Buccafusco

Faculty Scholarship

No abstract provided.

Gatekeeping, Peter B. Oh

Articles

Gatekeeping is a metaphor ubiquitous across disciplines and within fields of law. Generally, gatekeeping comprises an actor monitoring the quality of information, products, or services. Specific conceptions of gatekeeping functions have arisen independently within corporate and evidentiary law. Corporate gatekeeping entails deciding whether to grant or withhold support necessary for financial disclosure; evidentiary gatekeeping entails assessing whether expert knowledge is relevant and reliable for admissibility. This article is the first to identify substantive parallels between gatekeeping in these two contexts and to suggest their cross-treatment. Public corporate gatekeepers, like their judicial evidentiary analogues, should bear a duty of reliable monitoring.

The Crawford Transformation, Richard D. Friedman

Articles

Crawford v. Washington, 124 S. Ct. 1354 (2004), is one of the most dramatic Evidence cases in recent history, radically transforming the doctrine governing the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. Crawford is a very positive development, but leaves many open questions - and forces Evidence teachers to rethink how they teach hearsay and confrontation.

Judges As Film Critics: New Approaches To Filmic Evidence, Jessica Silbey

Faculty Scholarship

This Article exposes internal contradictions in case law deciding the use and admissibility of film as evidence. Based on a review of more than ninety state and federal cases dating from 1923 to the present, the Article explains how the source of these contradictions is the frequent miscategorization of film as "demonstrative evidence," that category of evidence that purports to illustrate other evidence rather than to be directly probative of some fact at issue. The Article further demonstrates how these contradictions are based on two venerable jurisprudential anxieties. One is the concern about the growing trend toward replacing the traditional …

Face To Face With The Right Of Confrontation, Richard D. Friedman

Other Publications

This article is an edited excerpt from the amicus curiae brief filed in Crawford v. Washington, heard before the United States Supreme Court on November 10, 2003. Prof. Friedman wrote the brief for the Court.

Epistemology Legalized: Or, Truth, Justice, And The American Way, Susan Haack

Articles

No abstract provided.

Flags, Bennett Capers

Faculty Scholarship

No abstract provided.