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Full-Text Articles in Law

Justice Begins Before Trial: How To Nudge Inaccurate Pretrial Rulings Using Behavioral Law And Economic Theory And Uniform Commercial Laws, Michael Gentithes May 2019

Justice Begins Before Trial: How To Nudge Inaccurate Pretrial Rulings Using Behavioral Law And Economic Theory And Uniform Commercial Laws, Michael Gentithes

William & Mary Law Review

Injustice in criminal cases often takes root before trial begins. Overworked criminal judges must resolve difficult pretrial evidentiary issues that determine the charges the State will take to trial and the range of sentences the defendant will face. Wrong decisions on these issues often lead to wrongful convictions. As behavioral law and economic theory suggests, judges who are cognitively busy and receive little feedback on these topics from appellate courts rely upon intuition, rather than deliberative reasoning, to resolve these questions. This leads to inconsistent rulings, which prosecutors exploit to expand the scope of evidentiary exceptions that almost always disfavor ...


The Challenge Of Convincing Ethical Prosecutors That Their Profession Has A Brady Problem, Adam M. Gershowitz Apr 2019

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 what psychologists have ...


Goldilocks And The Rule 803 Hearsay Exceptions, Liesa L. Richter Feb 2018

Goldilocks And The Rule 803 Hearsay Exceptions, Liesa L. Richter

William & Mary Law Review

Criticism of the hearsay exceptions embodied in the Federal Rules of Evidence has reached a fever pitch in recent years. With scholars calling for the abrogation of the entire hearsay regime or of individual exceptions within it and the Advisory Committee on Evidence Rules exploring hearsay amendments, the time for genuine hearsay soul-searching may be at hand. This Article suggests that aggressive proposals to scuttle existing doctrine entirely in favor of alternative approaches to hearsay are overly broad, rejecting the benefits of significant portions of existing doctrine that are functioning well and threatening costly consequences that could make matters worse ...


Deconstructing The Epistemic Challenges To Mass Atrocity Prosecutions, Nancy Amoury Combs Jan 2018

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 ...


Appendix: Conjunction-Problem V. Non-Conjunction-Problem Jurisdictions, David S. Schwartz, Elliott Sober Nov 2017

Appendix: Conjunction-Problem V. Non-Conjunction-Problem Jurisdictions, David S. Schwartz, Elliott Sober

William & Mary Law Review Online

This appendix presents the relevant data from our survey of jury instructions in support of the article in the print edition of the William & Mary Law Review. The Conjunction Problem and the Logic of Jury Findings (59 Wm. & Mary L. Rev. 619, 673-87 (2017))


The Conjunction Problem And The Logic Of Jury Findings, David S. Schwartz, Elliott Sober Nov 2017

The Conjunction Problem And The Logic Of Jury Findings, David S. Schwartz, Elliott Sober

William & Mary Law Review

For several decades, evidence theorists have puzzled over the following paradox, known as the “conjunction paradox” or “conjunction problem.” Probability theory appears to tell us that the probability of a conjunctive claim is the product resulting from multiplying the probabilities of its separate conjuncts. In a three element negligence case (breach of duty, causation, damages), a plaintiff who proves each element to a 0.6 probability will have proven her overall claim to a very low probability of 0.216. Either the plaintiff wins the verdict based on this low probability (if the jury focuses on elements), or the plaintiff ...


Systemic Lying, Julia Simon-Kerr May 2015

Systemic Lying, Julia Simon-Kerr

William & Mary Law Review

This Article offers the foundational account of systemic lying from a definitional and theoretical perspective. Systemic lying involves the cooperation of multiple actors in the legal system who lie or violate their oaths across cases for a consistent reason that is linked to their conception of justice. It becomes a functioning mechanism within the legal system and changes the operation of the law as written. By identifying systemic lying, this Article challenges the assumption that all lying in the legal system is the same. It argues that systemic lying poses a particular threat to the legal system. This means that ...


Does Removing The Force Element Matter?: An Empirical Comparison Of Rape Statistics In Massachusetts And Colorado, Peter Landsman May 2015

Does Removing The Force Element Matter?: An Empirical Comparison Of Rape Statistics In Massachusetts And Colorado, Peter Landsman

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.


Section 6: Criminal, Institute Of Bill Of Rights Law At The William & Mary Law School Sep 2014

Section 6: Criminal, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Trial By Google: Judicial Notice In The Information Age, Jeffrey Bellin, Andrew Guthrie Ferguson Jul 2014

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 ...


Promising Protection: 911 Call Records As Foundation For Family Violence Intervention, James G. Dwyer Dec 2013

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

Faculty Publications

No abstract provided.


Hear Me Now: The Admission Of Expert Testimony On Battered Women's Syndrome—An Evidentiary Approach, Matthew Fine Dec 2013

Hear Me Now: The Admission Of Expert Testimony On Battered Women's Syndrome—An Evidentiary Approach, Matthew Fine

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.


Ehearsay, Jeffrey Bellin Nov 2013

Ehearsay, Jeffrey Bellin

Faculty Publications

No abstract provided.


Text Messages And The Hearsay Rule In The Aaron Hernandez Case, Jeffrey Bellin Jun 2013

Text Messages And The Hearsay Rule In The Aaron Hernandez Case, Jeffrey Bellin

Popular Media

No abstract provided.


The Restyled Federal Rules Of Evidence, Davison M. Douglas, Sidney A. Fitzwater, Daniel J. Capra, Robert A. Hinkle, Joseph Kimble, Joan N. Ericksen, Marilyn L. Huff, Reena A. Raggi, Geraldine Soat Brown, Edward H. Cooper, Kenneth S. Broun, Harris L. Hartz, Katharine Traylor Schaffzin, Roger C. Park, Deborah J. Merritt, Andrew D. Hurwitz, W. Jeremy Counseller, Paula Hannaford-Agor Apr 2012

The Restyled Federal Rules Of Evidence, Davison M. Douglas, Sidney A. Fitzwater, Daniel J. Capra, Robert A. Hinkle, Joseph Kimble, Joan N. Ericksen, Marilyn L. Huff, Reena A. Raggi, Geraldine Soat Brown, Edward H. Cooper, Kenneth S. Broun, Harris L. Hartz, Katharine Traylor Schaffzin, Roger C. Park, Deborah J. Merritt, Andrew D. Hurwitz, W. Jeremy Counseller, Paula Hannaford-Agor

William & Mary Law Review

A lightly edited transcript of the Symposium held at the William & Mary School of Law on October 28, 2011.


Finding Evidence On Facebook, Jeffrey Bellin Nov 2011

Finding Evidence On Facebook, Jeffrey Bellin

Popular Media

No abstract provided.


More On The Impeachment Of Criminal Defendants, Jeffrey Bellin Oct 2011

More On The Impeachment Of Criminal Defendants, Jeffrey Bellin

Popular Media

No abstract provided.


More On The Future Of Present Sense Impressions, Jeffrey Bellin Oct 2011

More On The Future Of Present Sense Impressions, Jeffrey Bellin

Popular Media

No abstract provided.


The Usefulness Of . . . Evidence, Jeffrey Bellin Sep 2011

The Usefulness Of . . . Evidence, Jeffrey Bellin

Popular Media

No abstract provided.


The Evidentiary Significance Of “Tweets,” Texts And Status Updates (Starring Justin Bieber), Jeffrey Bellin Sep 2011

The Evidentiary Significance Of “Tweets,” Texts And Status Updates (Starring Justin Bieber), Jeffrey Bellin

Popular Media

No abstract provided.


Rule 609 And The Frustratingly Unkillable Five-Factor Mahone Framework, Jeffrey Bellin Sep 2011

Rule 609 And The Frustratingly Unkillable Five-Factor Mahone Framework, Jeffrey Bellin

Popular Media

No abstract provided.


Book Review Of Fact Finding Without Facts: The Uncertain Evidentiary Foundations Of International Criminal Convictions, Linda A. Malone Jan 2011

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 Jan 2011

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

Faculty Publications

No abstract provided.


When Facts Are Thin On The Ground, Julia Romasevych, Paul Antiss, Nancy Amoury Combs Sep 2010

When Facts Are Thin On The Ground, Julia Romasevych, Paul Antiss, Nancy Amoury Combs

Popular Media

Fact-finding at the international tribunals is not as precise as we think. Nancy Combs, Professor of Law at William and Mary Law School, explores this in her new book 'Fact-finding without facts: the uncertain evidentiary foundations of international criminal convictions'.


Fact-Finding Without Facts, Nancy Amoury Combs Aug 2010

Fact-Finding Without Facts, Nancy Amoury Combs

Popular Media

No abstract provided.


A Disparate Impact On Female Veterans: The Unintended Consequences Of Veterans Affairs Regulations Governing The Burdens Of Proof For Post-Traumatic Stress Disorder Due To Combat And Military Sexual Trauma, Jennifer C. Schingle Oct 2009

A Disparate Impact On Female Veterans: The Unintended Consequences Of Veterans Affairs Regulations Governing The Burdens Of Proof For Post-Traumatic Stress Disorder Due To Combat And Military Sexual Trauma, Jennifer C. Schingle

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.


Searching Cell Phones Incident To Arrest: Can Courts And Legislatures Impose Limits On A Bright Line Rule?, Adam M. Gershowitz Feb 2009

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 Unrecognized Right Of Criminal Defendants To Admit Their Own Pretrial Statements, Stephen A. Saltzburg, Daniel J. Capra May 2008

The Unrecognized Right Of Criminal Defendants To Admit Their Own Pretrial Statements, Stephen A. Saltzburg, Daniel J. Capra

William & Mary Law Review

In Agard v. Portuondo, the United States Supreme Court held that a prosecutor did not violate a testifying defendant's constitutional rights by inviting the jury to infer from the defendant's presence at trial that the defendant altered his own version of events to accord with other witnesses' testimony. Justice Scalia's opinion for the Court emphasized that jurors might well draw the inference even without a prosecutor asking them to do so. Although Agard is viewed as giving an advantage in a criminal trial to the government, this Article considers how Agard might be used to allow defense ...


Improving The Reliability Of Criminal Trials Through Legal Rules That Encourage Defendants To Testify, Jeffrey Bellin Apr 2008

Improving The Reliability Of Criminal Trials Through Legal Rules That Encourage Defendants To Testify, Jeffrey Bellin

Faculty Publications

Reflecting a traditional bias against defendants' trial testimony, the modern American criminal justice system, which now recognizes a constitutional right to testify at trial, unabashedly encourages defendants to waive that right and remain silent. As a result, a large percentage of criminal defendants decline to testify, forcing juries to decide the question of the defendant's guilt without ever hearing from the person most knowledgeable on the subject.

This Article contends that the inflated percentage of silent defendants in the American criminal trial system is a needless, self-inflected wound, neither required by the Constitution nor beneficial to the search for ...


Is Silence Sacred? The Vulnerability Of Griffin V. California In A Terrorist World, Lissa Griffin Feb 2007

Is Silence Sacred? The Vulnerability Of Griffin V. California In A Terrorist World, Lissa Griffin

William & Mary Bill of Rights Journal

No abstract provided.