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Full-Text Articles in Evidence

Convicting Lennie: Mental Retardation, Wrongful Convictions, And The Right To A Fair Trial, John H. Blume, Sheri Lynn Johnson, Susan E. Millor Dec 2014

Convicting Lennie: Mental Retardation, Wrongful Convictions, And The Right To A Fair Trial, John H. Blume, Sheri Lynn Johnson, Susan E. Millor

Sheri Lynn Johnson

"Lennie" refers to Lennie Small, the intellectually disabled character in John Steinbeck's famous novella Of Mice and Men, which tells the story of two Depression-era wandering farmhands, George and Lennie, who dream of getting their own stake and living "off the fat of the land." Their dream dies hard when Lennie accidently kills the young, beautiful, and flirtatious wife of a ranch owner's son and then tries to cover it up because he realizes that he has "done a bad thing." George, in turn, kills Lennie to prevent him from being lynched or tried for murder. Lennie was doomed because …


Surveying Work Product, Kevin M. Clermont Dec 2014

Surveying Work Product, Kevin M. Clermont

Kevin M. Clermont

Work product is the legal doctrine that central casting would send over. First, it boasts profundities, arising as it does from the colliding thrusts of our discovery and trial processes and from conflicting currents in our modified adversary system. Second, it will surface frequently, because the protected materials are commonly created by each side but uncommonly useful to the opponent. Third, it has generated a small mountain of lower-court case law, with the foothills forming a labyrinth of rules and wrinkles. In short, work product has for a couple of generations dramatically bewitched academics, bothered practitioners, and bewildered students. Significant …


Death Of Paradox: The Killer Logic Beneath The Standards Of Proof, Kevin Clermont Dec 2014

Death Of Paradox: The Killer Logic Beneath The Standards Of Proof, Kevin Clermont

Kevin M. Clermont

The prevailing but contested view of proof standards is that factfinders should determine facts by probabilistic reasoning. Given imperfect evidence, they should ask themselves what they think the chances are that the burdened party would be right if the truth were to become known; they then compare those chances to the applicable standard of proof. I contend that for understanding the standards of proof, the modern versions of logic — in particular, fuzzy logic and belief functions — work better than classical probability. This modern logic suggests that factfinders view evidence of an imprecisely perceived and described reality to form …


Procedure's Magical Number Three: Psychological Bases For Standards Of Decision, Kevin M. Clermont Dec 2014

Procedure's Magical Number Three: Psychological Bases For Standards Of Decision, Kevin M. Clermont

Kevin M. Clermont

So many procedural doctrines appear, after research and teaching, to trifurcate. An obvious example is that kind of standard of decision known as the standard of proof: what in theory might have been a continuum of standards divides in practice into the three distinct standards of preponderance of the evidence, clear and convincing evidence, and proof beyond a reasonable doubt. Other examples suggest both that I am not imagining the prominence of three and that more than coincidence is at work. Part I of this essay describes the role of the number three in procedure, with particular regard to standards …


Convicting Lennie: Mental Retardation, Wrongful Convictions, And The Right To A Fair Trial, John H. Blume, Sheri Lynn Johnson, Susan E. Millor Dec 2014

Convicting Lennie: Mental Retardation, Wrongful Convictions, And The Right To A Fair Trial, John H. Blume, Sheri Lynn Johnson, Susan E. Millor

John H. Blume

"Lennie" refers to Lennie Small, the intellectually disabled character in John Steinbeck's famous novella Of Mice and Men, which tells the story of two Depression-era wandering farmhands, George and Lennie, who dream of getting their own stake and living "off the fat of the land." Their dream dies hard when Lennie accidently kills the young, beautiful, and flirtatious wife of a ranch owner's son and then tries to cover it up because he realizes that he has "done a bad thing." George, in turn, kills Lennie to prevent him from being lynched or tried for murder. Lennie was doomed because …


An Unsettling Outcome: Why The Florida Supreme Court Was Wrong To Ban All Settlement Evidence In Saleeby V Rocky Elson Construction, Inc., 3 So. 3d 1078 (Fla. 2009), Michael L. Seigel, Robert J. Hauser, Allison D. Sirica Dec 2014

An Unsettling Outcome: Why The Florida Supreme Court Was Wrong To Ban All Settlement Evidence In Saleeby V Rocky Elson Construction, Inc., 3 So. 3d 1078 (Fla. 2009), Michael L. Seigel, Robert J. Hauser, Allison D. Sirica

Michael L Seigel

It is rare that a court as sophisticated as the Florida Supreme Court casually makes a fundamental mistake in an important area of the law. Unfortunately, Saleeby v. Rocky Elson Construction, Inc., 3 So. 3d 1078 (Fla. 2009) represents one of these unusual instances. The Court was faced with a simple question: may evidence pertaining to a prior settlement be offered at trial when it is relevant to something other than liability or the invalidity or amount of the pending claim. The universal answer under both federal law and the law of other states is yes, as long as the …


Capping E-Discovery Costs: A Hybrid Solution To E-Discovery Abuse, Karel Mazanec Nov 2014

Capping E-Discovery Costs: A Hybrid Solution To E-Discovery Abuse, Karel Mazanec

William & Mary Law Review

No abstract provided.


Summary Of L.V. Dev. Assocs. V. Eighth Jud. Dist. Ct., 130 Nev. Adv. Op. 37, Ryan Becklean May 2014

Summary Of L.V. Dev. Assocs. V. Eighth Jud. Dist. Ct., 130 Nev. Adv. Op. 37, Ryan Becklean

Nevada Supreme Court Summaries

The Court determined whether NRS 50.125 applies to depositions.


Chapter 623: Giving The Wrongfully Convicted A Better Chance At Review, Natasha Machado Jan 2014

Chapter 623: Giving The Wrongfully Convicted A Better Chance At Review, Natasha Machado

McGeorge Law Review

No abstract provided.


Expert Mining And Required Disclosure, Jonah B. Gelbach Jan 2014

Expert Mining And Required Disclosure, Jonah B. Gelbach

All Faculty Scholarship

No abstract provided.


Mixed Signals On Summary Judgment, Howard Wasserman Jan 2014

Mixed Signals On Summary Judgment, Howard Wasserman

Faculty Publications

This essay examines three cases from the Supreme Court’s October Term 2013 addressing the standards for summary judgment. In one case, the Court affirmed summary judgment against a civil-rights plaintiff, in a continued erroneous over-reliance on the certainty of video evidence. In two other cases, the Court rejected the grant of summary judgment against civil-rights plaintiffs, arguably for the first time in quite a while. This essay unpacks the substance and procedure underlying all three decisions and considers the effect of the three cases and what signals they send to lower courts and litigants about the proper approach to summary …