Evidence Commons^™

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

Paul Marcus

No abstract provided.

Brief Of Amici Curiae Professors Of Law In Support Of Petitioner, Barbara Allen Babcock, Jeffrey Bellin, Darryl K. Brown, Robert P. Burns, James E. Coleman Jr., Lisa Kern Griffin, Robert P. Mosteller, Deborah Tuerkheimer, Neil Vidmar, Jessica L. West

Jeffrey Bellin

No abstract provided.

Password Protected? Can A Password Save Your Cell Phone From A Search Incident To Arrest?, Adam M. Gershowitz

Adam M. Gershowitz

Over the last few years, dozens of courts have authorized police to conduct warrantless searches of cell phones when arresting individuals. Under the “search incident to arrest” doctrine, police are free to search text messages, call histories, photos, voicemails, and a host of other data if they arrest an individual and remove a cell phone from his pocket. Given that courts have offered little protection against cell-phone searches, this Article explores whether individuals can protect themselves by password protecting their phones. The Article concludes, unfortunately, that password protecting a cell phone offers minimal legal protection when an individual is lawfully …

The Psychiatric Expert As Due Process Decisionmaker, Robert S. Berger

Robert S. Berger

No abstract provided.

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]

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

James W. Ellis

No abstract provided.

Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Absolute Immunity: General Principles And Recent Developments, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

The Dual Meaning Of Evidence-Based Judicial Review Of Legislation, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

Beating The Prisoner At Prisoner's Dilemma: The Evidentiary Value Of A Witness's Refusal To Testify , Russell Dean Covey

Russell D. Covey

No abstract provided.

A Tale Of Two (And Possibly Three) Atkins: Intellectual Disability And Capital Punishment Twelve Years After The Supreme Court’S Creation Of A Categorical Bar, John H. Blume, Sheri Lynn Johnson, Paul Marcus, Emily Paavola

Sheri Lynn Johnson

No abstract provided.

The Confrontation Clause And Forensic Autopsy Reports-A "Testimonial", 74 La. L. Rev. 117 (2013), Marc Ginsberg

Marc D. Ginsberg

This Article examines the landscape of legal issues involved in determining whether the presence at trial of a surrogate pathologist, whose testimony refers to a forensic autopsy report prepared by the examining pathologist and provides the foundation for the admissibility of the forensic autopsy report, implicates the Confrontation Clause of the Sixth Amendment. This Article concludes that the practice of surrogate testimony and admission of the forensic autopsy report, well known and often required in criminal homicide prosecutions, implicates and violates the Confrontation Clause.

Illinois Courts And The Law Of Miranda Waivers: A Policy Worth Preserving, 30 N. Ill. U. L. Rev. 429 (2010), Timothy P. O'Neill

Timothy P. O'Neill

No abstract provided.

The Aba Guidelines And The Norms Of Capital Defense Representation, Russell Stetler, W. Bradley Wendel

W. Bradley Wendel

The ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (“Guidelines”), as revised in 2003, continue to stand as the single most authoritative summary of the prevailing professional norms in the realm of capital defense practice. Hundreds of court opinions have cited the Guidelines. They have been particularly useful in helping courts to assess the investigation and presentation of mitigating evidence in death penalty cases. This Article will discuss how these Guidelines have come to reflect prevailing professional norms in this critical area of capital defense practice and how that practice has developed in the …

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 …

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 …

Beating The Prisoner At Prisoner's Dilemma: The Evidentiary Value Of A Witness's Refusal To Testify , Russell Dean Covey

Russell D. Covey

No abstract provided.

The Fourth Amendment Fetches Fido: The Future Of Dog Searches, Robert M. Bloom, Dana L. Walsh

Robert M. Bloom

For over thirty-five years, the Supreme Court has grappled with the controversial issue of affirmative action and race preference. Beginning with Justice Lewis Powell’s influential opinion in Bakke v. U. Cal. Davis in 1978, leeway has been permitted for admissions policies that take account of race, as long as it is not given determinative weight so as to exclude consideration of nonminority candidates, or used to set quotas. As the Court has become increasingly conservative, however, its license for race preference has tightened considerably, and it has become receptive to “reverse discrimination” plaintiffs challenging such policies in universities and the …

Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The , James L. Kainen

James L. Kainen

Crawford v. Washington’s historical approach to the confrontation clause establishes that testimonial hearsay inadmissible without confrontation at the founding is similarly inadmissible today, despite whether it fits a subsequently developed hearsay exception. Consequently, the requirement of confrontation depends upon whether an out-of-court statement is hearsay, testimonial, and, if so, whether it was nonetheless admissible without confrontation at the founding. A substantial literature has developed about whether hearsay statements are testimonial or were, like dying declarations, otherwise admissible at the founding. In contrast, this article focuses on the first question – whether statements are hearsay – which scholars have thus far …

Truth, Deterrence, And The Impeachment Exception , James L. Kainen

James L. Kainen

James v. Illinois permits illegally-obtained evidence to impeach defendants, but not defense witnesses. Thus far, all courts have construed James to allow impeachment of defendants' hearsay declarations. This article argues against allowing illegally-obtained evidence to impeach defendants' hearsay declarations because doing so unduly diminishes the exclusionary rule's deterrent effect. The distinction between impeaching defendants and defense witnesses disappears when courts allow prosecutors to impeach defendants' hearsay declarations. Because defense witnesses report exculpatory conduct of a defendant who always has a substantial interest in disguising his criminality, their testimony routinely incorporates defendant hearsay. Defense witness testimony thus routinely paves the way …

Section 1983 Civil Rights Litigation From The October 2006 Term, Martin Schwartz

Martin A. Schwartz

No abstract provided.

Evidence And The Pursuit Of Truth In The Law, Jeffery L. Johnson

Jeffery L Johnson

Lawyers should be much more concerned with the concepts of truth and evidence. The entire profession depends on truth. It is what police detectives, District Attorneys, juries, trial judges, appellate judges, and academic lawyers offering interpretive theories, are all concerned with. But, since truth is seldom apparent on its sleeve, these legal actors are equally dependent on evidence as the only(?) reliable(?) means of determining truth. I defend a commonsensical theory of [good] evidence. I argue that this view, inference to the best explanation, captures most, if not all, of a lawyer’s appeal to evidence. It is far from clear, …

The Privilege Against Self-Incrimination In Bankruptcy And The Plight Of The Debtor, Timothy R. Tarvin

Timothy R Tarvin

Back To The Future: The Constitution Requires Reasonableness And Particularity—Introducing The “Seize But Don’T Search” Doctrine, Adam Lamparello, Charles E. Maclean

Adam Lamparello

Issuing one-hundred or fewer opinions per year, the United States Supreme Court cannot keep pace with opinions that match technological advancement. As a result, in Riley v. California and United States v. Wurie, the Court needs to announce a broader principle that protects privacy in the digital age. That principle, what we call “seize but don’t search,” recognizes that the constitutional touchstone for all searches is reasonableness.

When do present-day circumstances—the evolution in the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies—become so thoroughly unlike those considered by the Supreme Court thirty-four years …

Accounting For Federalism In State Courts - Exclusion Of Evidence Obtained Lawfully By Federal Agents, Robert M. Bloom, Hillary J. Massey

Robert Bloom

After the terrorist attacks on September 11th, Congress greatly enhanced federal law enforcement powers through enactment of the U.S.A. Patriot Act. The Supreme Court also has provided more leeway to federal officers in the past few decades, for example by limiting the scope of the exclusionary rule. At the same time, many states have interpreted their constitutions to provide greater individual protections to their citizens than provided by the federal constitution. This phenomenon has sometimes created a wide disparity between the investigatory techniques available to federal versus state law enforcement officers. As a result, state courts sometimes must decide whether …

Jailhouse Informants, Robert M. Bloom

Robert Bloom

No abstract provided.

Inevitable Discovery: An Exception Beyond The Fruits, Robert Bloom

Robert Bloom

No abstract provided.

Considering The Libel Trial Of Émile Zola In Light Of Contemporary Defamation Doctrine, Peter A. Zablotsky

Peter Zablotsky

Touro Law School's three-day conference on the Dreyfus affair provided an opportunity to re-examine the libel trial Émile Zola. A modern view on tort law is provided to analyze this case as if it unfolded today.

Introduction: Persecution Through Prosecution: Revisiting Touro Law Center’S Conference In Paris On The Dreyfus Affair And The Leo Frank Trial, Rodger D. Citron

Rodger Citron

This piece provides the introduction for the Dreyfus affair. It gives a brief overview of the actual Dreyfus affair and outlines the articles in this volume.

Uprooting The Cell-Plant: Comparing United States And Canadian Constitutional Approaches To Surreptitious Interrogations In The Detention Context, Amar Khoday

Dr. Amar Khoday

No abstract provided.