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Evidence

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Full-Text Articles in Criminal Law

Reappraising The Legality Of Post-Trial Interviews, Fredric I. Lederer Oct 2019

Reappraising The Legality Of Post-Trial Interviews, Fredric I. Lederer

Fredric I. Lederer

No abstract provided.

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Replacing The Exclusionary Rule With Administrative Rulemaking, Francis A. Gilligan, Fredric I. Lederer Oct 2019

Replacing The Exclusionary Rule With Administrative Rulemaking, Francis A. Gilligan, Fredric I. Lederer

Fredric I. Lederer

No abstract provided.

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Rights Warnings In The Armed Services, Fredric I. Lederer Oct 2019

Rights Warnings In The Armed Services, Fredric I. Lederer

Fredric I. Lederer

No abstract provided.

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The Law Of Confessions - The Voluntariness Doctrine, Fredric I. Lederer Oct 2019

The Law Of Confessions - The Voluntariness Doctrine, Fredric I. Lederer

Fredric I. Lederer

No abstract provided.

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The Exclusion Of Evidence In The United States, Paul Marcus Sep 2019

The Exclusion Of Evidence In The United States, Paul Marcus

Paul Marcus

No abstract provided.

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Restrictions On Law Enforcement Investigation And Prosecution Of Crime, Paul Marcus Sep 2019

Restrictions On Law Enforcement Investigation And Prosecution Of Crime, Paul Marcus

Paul Marcus

No abstract provided.

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It's Not Just About Miranda: Determining The Voluntariness Of Confessions In Criminal Prosecutions, Paul Marcus Sep 2019

It's Not Just About Miranda: Determining The Voluntariness Of Confessions In Criminal Prosecutions, Paul Marcus

Paul Marcus

No abstract provided.

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Defending Miranda, Paul Marcus Sep 2019

Defending Miranda, Paul Marcus

Paul Marcus

No abstract provided.

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Co-Conspirator Declarations: The Federal Rules Of Evidence And Other Recent Developments, From A Criminal Law Perspective, Paul Marcus Sep 2019

Co-Conspirator Declarations: The Federal Rules Of Evidence And Other Recent Developments, From A Criminal Law Perspective, Paul Marcus

Paul Marcus

Perhaps the most important advantage available to a prosecutor in a criminal conspiracy case is the exception to the hearsay rule for co-conspirator declarations. The exception is widely used and is often a significant part of the government presentation. In essence, it provides that otherwise inadmissible hearsay declarations of coconspirators are admissible at trial against the defendant so long as they were made during the course and in furtherance of the conspiracy. The exception typically arises when an alleged co-conspirator declarant tells the witness (often an undercover police officer) all about the conspiracy, perhaps in the hope of attracting a …

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Doing Away With The Exclusionary Rule, Francis A. Gilligan, Fredric I. Lederer Sep 2019

Doing Away With The Exclusionary Rule, Francis A. Gilligan, Fredric I. Lederer

Fredric I. Lederer

No abstract provided.

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Franks V. Delaware: A Proposed Interpretation And Application, Peter A. Alces Sep 2019

Franks V. Delaware: A Proposed Interpretation And Application, Peter A. Alces

Peter A. Alces

No abstract provided.

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

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

Adam M. Gershowitz

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 …

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Promising Protection: 911 Call Records As Foundation For Family Violence Intervention, James G. Dwyer Sep 2019

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

James G. Dwyer

No abstract provided.

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72. Identifying Liars Through Automatic Decoding Of Children’S Facial Expressions., Kaila C. Bruer, Sarah Zanette, Xiaopan Ding, Thomas D. Lyon, Kang Lee Sep 2019

72. Identifying Liars Through Automatic Decoding Of Children’S Facial Expressions., Kaila C. Bruer, Sarah Zanette, Xiaopan Ding, Thomas D. Lyon, Kang Lee

Thomas D. Lyon

This study explored whether children’s (N=158; 4-9 years-old) nonverbal facial expressions can be used to identify when children are being deceptive. Using a computer vision program to automatically decode children’s facial expressions according to the Facial Action Coding System, this study employed machine learning to determine whether facial expressions can be used to discriminate between children who concealed breaking a toy(liars) and those who did not break a toy(nonliars). Results found that, regardless of age or history of maltreatment, children’s facial expressions could accurately (73%) distinguished between liars and nonliars. Two emotions, surprise and fear, were more strongly expressed by …

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70. Children’S Concealment Of A Minor Transgression: The Role Of Age, Maltreatment, And Executive Functioning., Shanna Williams, Kelly Mcwilliams, Thomas D. Lyon Jul 2019

70. Children’S Concealment Of A Minor Transgression: The Role Of Age, Maltreatment, And Executive Functioning., Shanna Williams, Kelly Mcwilliams, Thomas D. Lyon

Thomas D. Lyon

This study examined the role of age, maltreatment status, and executive functioning (EF) on 752 4- to 9-year-old maltreated and nonmaltreated children’s recall disclosure of a transgression in which they appeared to have broken toys while playing with a stranger. Interviewers used narrative practice rapport-building and then questioned children with free recall and cued recall questions. Younger and maltreated children were more likely to disclose during rapport-building, whereas older and nonmaltreated children were more likely to disclose in response to recall questions. Working memory deficits appeared to mediate the relation between children’s characteristics and disclosure during rapport, but not during …

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69. The Role Of Kinship And Siblings In Young Children’S Placement Preferences., Kelli Dickerson, Thomas D. Lyon, Jodi A. Quas May 2019

69. The Role Of Kinship And Siblings In Young Children’S Placement Preferences., Kelli Dickerson, Thomas D. Lyon, Jodi A. Quas

Thomas D. Lyon

Although considerable attention has been directed toward the most appropriate placement for children following removal from home due to maltreatment, very little of this attention has focused on children’s stated preferences, particularly when they are young. Specifically, children under 12 years of age are typically presumed incompetent to form reasoned judgments about their best interests in placement. This assumption, however, has rarely been tested directly. We surveyed 100 4- to 11-year-olds removed from home because of maltreatment about their placement preferences. Children were less likely to indicate they wanted to return home if they were placed with siblings or with …

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68. Increasing Maltreated And Nonmaltreated Children’S Recall Disclosures Of A Minor Transgression: The Effects Of Back-Channel Utterances, A Promise To Tell The Truth And A Post-Recall Putative Confession., Kelly Mcwilliams, Stacia N. Stolzenberg, Shanna Williams, Thomas D. Lyon May 2019

68. Increasing Maltreated And Nonmaltreated Children’S Recall Disclosures Of A Minor Transgression: The Effects Of Back-Channel Utterances, A Promise To Tell The Truth And A Post-Recall Putative Confession., Kelly Mcwilliams, Stacia N. Stolzenberg, Shanna Williams, Thomas D. Lyon

Thomas D. Lyon

Background: Children are often hesitant to disclose transgressions, particularly when they feel implicated, and frequently remain reluctant until confronted with direct questions. Given the risks associated with direct questions, an important issue is how interviewers can encourage honesty through recall questions. Objective: The present study examined the use of three truth induction strategies for increasing the accuracy and productivity of children’s reports about a transgression. Participants: A total of 285 4-to-9-year-old maltreated and nonmaltreated children. Methods: Each child took part in a play session with a stranger during which the child appeared to break some toys. A research assistant interviewed …

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68. Increasing Maltreated And Nonmaltreated Children’S Recall Disclosures Of A Minor Transgression: The Effects Of Back-Channel Utterances, A Promise To Tell The Truth And A Post-Recall Putative Confession., Kelly Mcwilliams, Stacia N. Stolzenberg, Shanna Williams, Thomas D. Lyon May 2019

68. Increasing Maltreated And Nonmaltreated Children’S Recall Disclosures Of A Minor Transgression: The Effects Of Back-Channel Utterances, A Promise To Tell The Truth And A Post-Recall Putative Confession., Kelly Mcwilliams, Stacia N. Stolzenberg, Shanna Williams, Thomas D. Lyon

Thomas D. Lyon

Background: Children are often hesitant to disclose transgressions, particularly when they feel implicated, and frequently remain reluctant until confronted with direct questions. Given the risks associated with direct questions, an important issue is how interviewers can encourage honesty through recall questions. Objective: The present study examined the use of three truth induction strategies for increasing the accuracy and productivity of children’s reports about a transgression. Participants: A total of 285 4-to-9-year-old maltreated and nonmaltreated children. Methods: Each child took part in a play session with a stranger during which the child appeared to break some toys. A research assistant interviewed …

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Neuroscientists In Court, Owen D. Jones, Anthony D. Wagner, David L. Faigman, Marcus E. Raichle Apr 2019

Neuroscientists In Court, Owen D. Jones, Anthony D. Wagner, David L. Faigman, Marcus E. Raichle

Owen Jones

Neuroscientific evidence is increasingly being offered in court cases. Consequently, the legal system needs neuroscientists to act as expert witnesses who can explain the limitations and interpretations of neuroscientific findings so that judges and jurors can make informed and appropriate inferences. The growing role of neuroscientists in court means that neuroscientists should be aware of important differences between the scientific and legal fields, and, especially, how scientific facts can be easily misunderstood by non-scientists,including judges and jurors.

This article describes similarities, as well as key differences, of legal and scientific cultures. And it explains six key principles about neuroscience that …

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Brain Scans As Evidence: Truths, Proofs, Lies, And Lessons, Owen D. Jones, Francis X. Shen Apr 2019

Brain Scans As Evidence: Truths, Proofs, Lies, And Lessons, Owen D. Jones, Francis X. Shen

Owen Jones

This contribution to the Brain Sciences in the Courtroom Symposium identifies and discusses issues important to admissibility determinations when courts confront brain-scan evidence. Through the vehicle of the landmark 2010 federal criminal trial U.S. v. Semrau (which considered, for the first time, the admissibility of brain scans for lie detection purposes) this article highlights critical evidentiary issues involving: 1) experimental design; 2) ecological and external validity; 3) subject compliance with researcher instructions; 4) false positives; and 5) drawing inferences about individuals from group data. The article’s lessons are broadly applicable to the new wave of neurolaw cases now being seen …

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67. The Utility Of Direct Questions In Eliciting Subjective Content From Children Disclosing Sexual Abuse., Stacia N. Stolzenberg, Shanna Williams, Kelly Mcwilliams, Catherine Liang, Thomas D. Lyon Feb 2019

67. The Utility Of Direct Questions In Eliciting Subjective Content From Children Disclosing Sexual Abuse., Stacia N. Stolzenberg, Shanna Williams, Kelly Mcwilliams, Catherine Liang, Thomas D. Lyon

Thomas D. Lyon

Background: Children alleging sexual abuse rarely exhibit emotion when disclosing, but they may be able to describe their subjective reactions to abuse if asked. Objective: This study examined the extent to which different types of questions in child sexual abuse interviews elicited subjective content, namely emotional reactions, cognitive content, and physical sensations.
Participants and Setting: The study included transcripts of 205 Child Advocacy Center interviews with 4- to 12-year-old children alleging sexual abuse.
Methods: We coded questions for question type, distinguishing among invitations, wh- questions, yes/no and forced-choice questions, and suggestive questions. We coded both questions and answers for whether …

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Legal Burdens Of Proof Under U.S. Law, Tsion Chudnovsky Feb 2019

Legal Burdens Of Proof Under U.S. Law, Tsion Chudnovsky

Tsion Chudnovsky, JD

US laws defines that the legal burden of proof standard becomes more strict as potential consequences become higher. So for criminal matters, since they include the possible loss of freedom, the strictest standard applies: Beyond a reasonable doubt.

Defense has to merely illuminate a reasonable doubt about any of the required elements that have to be proven to prevail in a court trial. Criminal jury instructions require jurors unanimously find that the defendant is guilty with moral certainty. There can be no doubt amongst any jurors that the defendant is guilty.

This strict burden benefits the defendant. You can …

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66. Younger And Older Adults’ Lie-Detection And Credibility Judgments Of Children’S Coached Reports, Alison M. O'Connor, Thomas D. Lyon, Angela D. Evans Jan 2019

66. Younger And Older Adults’ Lie-Detection And Credibility Judgments Of Children’S Coached Reports, Alison M. O'Connor, Thomas D. Lyon, Angela D. Evans

Thomas D. Lyon

Previous research has examined young and middle-aged adults’ perceptions of child witnesses; however, no research to date has examined how potential older adult jurors may perceive a child witness. The present investigation examined younger (18-30 years, N = 100) and older adults’ (66-89 years, N = 100) lie-detection and credibility judgments when viewing children’s truthful and dishonest reports. Participants viewed eight child interview videos where children (9 to 11 years of age) either provided a truthful report or a coached fabricated report to conceal a transgression. Participants provided lie-detection judgments following all eight videos and credibility assessments following the first …

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64. Effects Of The Putative Confession Instruction On Perceptions Of Children’S True And False Statements, Jennifer Gongola, Nicholas Scurich, Thomas D. Lyon Oct 2018

64. Effects Of The Putative Confession Instruction On Perceptions Of Children’S True And False Statements, Jennifer Gongola, Nicholas Scurich, Thomas D. Lyon

Thomas D. Lyon

The putative confession instruction (“[suspect] told me everything that happened and wants you to tell the truth”) during forensic interviews with children has been shown to increase the accuracy of children’s statements, but it is unclear whether adult’s perceptions are sensitive to this salutary effect. The present study examined how adults perceive children’s true and false responses to the putative confession (PC) instruction. Participants (n = 299) watched videotaped interviews of children and rated the child’s credibility and the truthfulness of his/her statements. When viewing children’s responses to the PC instruction, true and false statements were rated as equally credible, …

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63. Children’S Conversational Memory Regarding A Minor Transgression And A Subsequent Interview., Stacia N. Stolzenberg, Kelly Mcwilliams, Thomas D. Lyon May 2018

63. Children’S Conversational Memory Regarding A Minor Transgression And A Subsequent Interview., Stacia N. Stolzenberg, Kelly Mcwilliams, Thomas D. Lyon

Thomas D. Lyon

Children’s memories for their conversations are commonly explored in child abuse cases. In two studies, we examined conversational recall in 154 4- to 9-year-old children’s reports of an interaction with a stranger, some of whom were complicit in a transgression and were admonished to keep it a secret. Immediately afterwards, all children were interviewed about their interaction. One week later, children were asked recall questions about their interaction with the stranger, their conversations with the stranger, and their conversations with the interviewer. Overall, interaction recall questions elicited few details about children’s conversations, whereas conversation recall questions were effective in doing …

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62. The Effects Of Implicit Encouragement And The Putative Confession On Children’S Memory Reports., Kyndra C. Cleveland, Jodi A. Quas, Thomas D. Lyon Mar 2018

62. The Effects Of Implicit Encouragement And The Putative Confession On Children’S Memory Reports., Kyndra C. Cleveland, Jodi A. Quas, Thomas D. Lyon

Thomas D. Lyon

The current study tested the effects of two interview techniques on children's report productivity and accuracy following exposure to suggestion: implicit encouragement (backchanneling, use of children's names) and the putative confession (telling children that a suspect "told me everything that happened and wants you to tell the truth"). One hundred and forty-three, 3-8-year-old children participated in a classroom event. One week later, they took part in a highly suggestive conversation about the event and then a mock forensic interview in which the two techniques were experimentally manipulated. Greater use of implicit encouragement led to increases, with age, in children's narrative …

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Self Incrimination And Cryptographic Keys, Gregory S. Sergienko Mar 2018

Self Incrimination And Cryptographic Keys, Gregory S. Sergienko

Greg Sergienko

Modern cryptography can make it virtually impossible to decipher documents without the cryptographic key thus making the availability of the contents of those documents depend on the availability of the key. This article examines the Fourth and Fifth Amendments' protection against the compulsory production of the key and the scope of the Fifth Amendment immunity against compelled production. After analyzing these questions using prevailing Fourth and Fifth Amendment jurisprudence, I shall describe the advantages of a privacy-based approach in practical and constitutional terms. [excerpt]

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Hall V. Florida: The Supreme Court’S Guidance In Implementing Atkins, James W. Ellis Feb 2018

Hall V. Florida: The Supreme Court’S Guidance In Implementing Atkins, James W. Ellis

James W. Ellis

No abstract provided.

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19. Child Witnesses., Thomas D. Lyon, Kelly Mcwilliams, Shanna Williams Nov 2017

19. Child Witnesses., Thomas D. Lyon, Kelly Mcwilliams, Shanna Williams

Thomas D. Lyon

In this chapter we provide an overview of psychological issues involving children’s capacities as witnesses. First, we discuss the kinds of cases in which children are usually involved. Across different courts, one most often sees children describing abuse at the hands of familiar adults. Second, we describe the difficulties children encounter in disclosing abuse, particularly when it is perpetrated by adults close to them. These dynamics lead most children to remain silent, and only the most forthcoming children to disclose. Third, we suggest a framework for assessing children’s allegations, in which child-generated and adult-generated information lie on opposite ends of …

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61. The Relation Between Young Children’S False Statements And Response Latency, Executive Functioning, And Truth–Lie Understanding., Shanna Williams, Elizabeth C. Ahern, Thomas D. Lyon Nov 2017

61. The Relation Between Young Children’S False Statements And Response Latency, Executive Functioning, And Truth–Lie Understanding., Shanna Williams, Elizabeth C. Ahern, Thomas D. Lyon

Thomas D. Lyon

This study examined relations between children’s false statements and response latency, executive functioning, and truth-lie understanding in order to understand what underlies children’s emerging ability to make false statements. A total of 158 (2- to 5-year-old) children earned prizes for claiming that they were looking at birds even when presented with images of fish. Children were asked recall (“what do you have?”), recognition (“do you have a bird/fish?”), and outcome (“did you win/lose?”) questions. Response latencies were greater when children were presented with fish pictures than bird pictures, particularly when they were asked recall questions, and were greater for false …

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