Evidence Commons^™

Tragedies Of The Cultural Commons, Etienne C. Toussaint

Faculty Publications

In the United States, Black cultural expressions of democratic life that operate within specific historical-local contexts, yet reflect a shared set of sociocultural mores, have been historically crowded out of the law and policymaking process. Instead of democratic cultural discourse occurring within an open and neutral marketplace of ideas, the discursive production and consumption of democratic culture in American politics has been rivalrous. Such rivalry too often enables dominant White supremacist cultural beliefs, values, and practices to exercise their hegemony upon law’s production and meaning. The result has been tragedy for politically disempowered and socioeconomically excluded communities.

This Article uses …

Confrontation In The Age Of Plea Bargaining [Comments], William Ortman

Law Faculty Research Publications

No abstract provided.

Can You Hear Me Now: The Impacts Of Prosecutorial Call Monitoring On Defendants' Access To Justice, Hope L. Demer

South Carolina Law Review

No abstract provided.

Equal Access To Evidence: The Case For The Defense Use Of Immunity For Essential Witnesses, Andrea Lyon

Andrea D. Lyon

No abstract provided.

Every Juror Wants A Story: Narrative Relevance, Third Party Guilt And The Right To Present A Defense, John H. Blume, Sheri L. Johnson, Emily C. Paavola

Sheri Lynn Johnson

On occasion, criminal defendants hope to convince a jury that the state has not met its burden of proving them guilty beyond a reasonable doubt by offering evidence that someone else (a third party) committed the crime. Currently, state and federal courts assess the admissibility of evidence of third-party guilt using a variety of standards. In general, however, there are two basic approaches. Many state courts require a defendant to proffer evidence of some sort of direct link or connection between a specific third-party and the crime. A second group of state courts, as well as federal courts, admit evidence …

Every Juror Wants A Story: Narrative Relevance, Third Party Guilt And The Right To Present A Defense, John H. Blume, Sheri L. Johnson, Emily C. Paavola

John H. Blume

On occasion, criminal defendants hope to convince a jury that the state has not met its burden of proving them guilty beyond a reasonable doubt by offering evidence that someone else (a third party) committed the crime. Currently, state and federal courts assess the admissibility of evidence of third-party guilt using a variety of standards. In general, however, there are two basic approaches. Many state courts require a defendant to proffer evidence of some sort of direct link or connection between a specific third-party and the crime. A second group of state courts, as well as federal courts, admit evidence …

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

Timothy R Tarvin

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 …

"Introduction" (Chapter 1) Of Stories About Science In Law: Literary And Historical Images Of Acquired Expertise (Ashgate 2011), David S. Caudill

David S Caudill

This is the introductory chapter of Stories About Science in Law: Literary and Historical Images of Acquired Expertise (Ashgate, 2011), explaining that the book presents examples of how literary accounts can provide a supplement to our understanding of science in law. Challenging the view that law and science are completely different, I focus on stories that explore the relationship between law and science, and identify cultural images of science that prevail in legal contexts. In contrast to other studies on the transfer and construction of expertise in legal settings, the book considers the intersection of three interdisciplinary projects-- law and …

From Gridlock To Groundbreaking: Realizing Reliability In Forensic Science, Jessica D. Gabel

Jessica Gabel Cino

In 2009, The National Academy of Sciences published a scathing report announcing that forensic science is broken and needs to be overhauled. Weaknesses have plagued forensic evidence for decades, and the resulting legal challenges have been hard fought but met with few victories. What we do know is a harsh truth: that faulty forensic science has contributed to the conviction of innocent people—and will continue to do so if the status quo persists.

In recent years, the reality of wrongful convictions has become mainstream through the work of the Innocence Project and other organizations. Out of the 305 DNA-based exonerations …

The Piranha Is As Deadly As The Shark: A Case For The Limitation On Deceptive Practices In Dna Collection, Brett A. Bauman

Brett A Bauman

Police deception tactics are utilized throughout the United States as a way to catch unsuspecting criminals. Although criticized in many respects, most deceptive police techniques are not only legal, but are actually encouraged. DNA collection and analysis is no exception—techniques are frequently used by law enforcement officers in an attempt to collect a suspect’s genetic specimen in the interest of solving crimes. While law enforcement officers typically have the best interests of society in mind, the current practices employed by officers to collect suspects’ DNA violate the Fourth Amendment. The Fourth Amendment provides protection against unreasonable searches and seizures, and …

Full Disclosure: Cognitive Science, Informants, And Search Warrant Scrutiny, Mary Bowman

Mary N. Bowman

Full Disclosure: Cognitive Science, Informants, and Search Warrant Scrutiny

By Mary Nicol Bowman

This article posits that cognitive biases play a significant role in the gap between the rhetoric regarding Fourth Amendment protection and actual practices regarding search warrant scrutiny, particularly for search warrants based on informants’ tips. Specifically, this article examines the ways in which implicit bias, tunnel vision, priming, and hindsight bias can affect search warrants. These biases can affect each stage of the search warrant process, including targeting decisions, the drafting process, the magistrate’s decision whether to grant the warrant, and post-search review by trial and appellate …

Defying Dna: Rethinking The Role Of The Jury In An Age Of Scientific Proof Of Innocence, Andrea L. Roth

Andrea L Roth

In 1946, public outrage erupted after a jury ordered Charlie Chaplin to support a child who, according to apparently definitive blood tests, was not his. Half a century later, juries have again defied apparently definitive evidence of innocence, finding criminal defendants guilty based on a confession or eyewitness notwithstanding exculpatory DNA test results. One might expect judges in such cases to direct an acquittal, on grounds that the evidence is legally insufficient because no rational juror could find guilt beyond a reasonable doubt. Yet few if any do. Instead, courts defer to juries when they form an actual belief in …

Cipa V. State Secrets: How A Few Mistakes Confused Two Important National Security Privileges, Elisa Poteat

Elisa Poteat

No abstract provided.

Taking A Stand On Taking The Stand: The Effect Of A Prior Criminal Record On The Decision To Testify And On Trial Outcomes, Theodore Eisenberg, Valerie P. Hans

Valerie P. Hans

This article uses unique data from over 300 criminal trials in four large counties to study the relations between the existence of a prior criminal record and defendants testifying at trial, between testifying at trial and juries' learning about a criminal record, and between juries' learning about a criminal record and their decisions to convict or acquit. Sixty percent of defendants without criminal records testified compared to 45 percent with criminal records. For testifying defendants with criminal records, juries learned of those records in about half the cases. Juries rarely learned about criminal records unless defendants testified. After controlling for …

Defense Counsel, Trial Judges, And Evidence Production Protocols, Darryl K. Brown

Darryl K. Brown

This essay, a contribution to the 2012 Texas Tech Symposium on the Sixth Amendment, argues that constitutional criminal adjudication provisions are fruitfully viewed not primarily as defendant rights but as procedural components that, when employed, maximize the odds that adversarial adjudication will succeed in its various goals, notably accurate judgments. On this view, the state has an interest in how those procedural mechanisms, especially regarding fact investigation and evidence gathering, are invoked or implemented. Deficient attorney performance, on this view, can be understood as a problem of the state’s adversarial adjudication process, for which public officials—notably judges, whose judgments depend …

Where Did My Privilege Go? Congress And Its Discretion To Ignore The Attorney-Client Privilege, Don Berthiaume, Jeffrey Ansley

Don R Berthiaume

“The right to counsel is too important to be passed over for prosecutorial convenience or executive branch whimsy. It has been engrained in American jurisprudence since the 18th century when the Bill of Rights was adopted... However, the right to counsel is largely ineffective unless the confidential communications made by a client to his or her lawyer are protected by law.”[1] So said Senator Arlen Specter on February 13, 2009, just seven months before Congress chose to ignore the very privilege he lauded. Why then, if the right to counsel is as important as Senator Specter articulated, does Congress maintain …

"Introduction" (Chapter 1) Of Stories About Science In Law: Literary And Historical Images Of Acquired Expertise (Ashgate 2011), David S. Caudill

Working Paper Series

This is the introductory chapter of Stories About Science in Law: Literary and Historical Images of Acquired Expertise (Ashgate, 2011), explaining that the book presents examples of how literary accounts can provide a supplement to our understanding of science in law. Challenging the view that law and science are completely different, I focus on stories that explore the relationship between law and science, and identify cultural images of science that prevail in legal contexts. In contrast to other studies on the transfer and construction of expertise in legal settings, the book considers the intersection of three interdisciplinary projects-- law and …

Lawyers Judging Experts: Oversimplifying Science And Undervaluing Advocacy To Construct An Ethical Duty?, David S. Caudill

Working Paper Series

My focus is on an apparent trend at the intersection of the fields of evidentiary standards for expert admissibility and professional responsibility, namely the eagerness to place more ethical responsibilities on lawyers to vet their proffered expertise to ensure its reliability. My reservations about this trend are not only based on its troubling implications for the lawyer’s duty as a zealous advocate, which already has obvious limitations (because of lawyers’ conflicting duties to the court), but are also based on the problematic aspects of many reliability determinations. To expect attorneys—and this is what the proponents of a duty to vet …

Allshouse V. Pennsylvania, Brief Of The National Association Of Criminal Defense Lawyers, The Pennsylvania Association Of Criminal Defense Lawyers, The Public Defender Association Of Pennsylvania, And The Defender Association Of Philadelphia, As Amici Curiae On Behalf Of Petitioner, Jules Epstein

Jules Epstein

No abstract provided.

Just The Facts: Solving The Corporate Privilege Waiver Dilemma, Don R. Berthiaume

Don R Berthiaume

How can corporations provide “just the facts” — which are, in fact, not privileged — without waiving the attorney client privilege and work product protection? This article argues for an addition to the Federal Rules of Criminal Procedure based upon Rule 30(b)(6) of the Federal Rules of Civil Procedure, which allows civil litigants to issue a subpoena to an organization and cause them to “designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf … about information known or reasonably available to the organization.”[6] Why should we look to Fed. …

Can Criminal Law Be Controlled?, Darryl K. Brown

Darryl K. Brown

This review of Douglas Husak's 2008 book, Overcriminalization: The Limits of the Criminal Law, summarizes and largely endorses Husak's normative argument about the indefensible expansiveness of much contemporary criminal liability. It then offers a skeptical (or pessimistic) argument about the possibilities for a normative theory such as Husak's to have much effect on criminal justice policy in light of the political barriers to reform.

Executing Capital Punishment Via Case Study: A Socratic Chat About New Jersey's Abolition Of The Death Penalty And Convincing Other States To Follow Suit, James Johnston

James B Johnston

For those who detest capital punishment Christmas arrived early in 1997. On December 17, 2007 New Jersey became the first State to abolish the death penalty via enactments from both the executive and legislative branches of government. The responses both domestically and abroad have been overwhelmingly supportive. New Jersey was able to do so thanks to the work of the New Jersey Death Penalty Study Commission; a blue ribbon panel of individuals appointed by Governor Corzine to study capital punishment and provide their findings to the State Legislature and the Governor. The commission recommended the death penalty be abolished and …

Taking A Stand On Taking The Stand: The Effect Of A Prior Criminal Record On The Decision To Testify And On Trial Outcomes, Theodore Eisenberg, Valerie P. Hans

Cornell Law Faculty Publications

This article uses unique data from over 300 criminal trials in four large counties to study the relations between the existence of a prior criminal record and defendants testifying at trial, between testifying at trial and juries' learning about a criminal record, and between juries' learning about a criminal record and their decisions to convict or acquit. Sixty percent of defendants without criminal records testified compared to 45 percent with criminal records. For testifying defendants with criminal records, juries learned of those records in about half the cases. Juries rarely learned about criminal records unless defendants testified. After controlling for …

Fair Process And Fair Play: Professionally Responsible Cross-Examination, John F. Nivala

John F. Nivala

No abstract provided.

The Constable Blunders But Isnt Punished Does Hudson V Michigans Abolition Of The Exclusionary Rule Extend Beyond Knockandannounce Violations, Mark A. Summers

Faculty Scholarship

No abstract provided.

Credibility: A Fair Subject For Expert Testimony?, Anne Poulin

Working Paper Series

This article explores the ways in which experts can assist the jury to assess the credibility of other witnesses and suggests analytical approaches to such expert testimony. The article argues that the courts should be more receptive to expert testimony bearing on witness credibility and engage in a more nuanced consideration of the role played by proffered expert testimony and how the role of the evidence affects its admissibility. Doing so should lead the courts to embrace the promise of the modern rules of evidence and permit experts to assist juries as they assess credibility.

Every Juror Wants A Story: Narrative Relevance, Third Party Guilt And The Right To Present A Defense, John H. Blume, Sheri L. Johnson, Emily C. Paavola

Cornell Law Faculty Publications

On occasion, criminal defendants hope to convince a jury that the state has not met its burden of proving them guilty beyond a reasonable doubt by offering evidence that someone else (a third party) committed the crime. Currently, state and federal courts assess the admissibility of evidence of third-party guilt using a variety of standards. In general, however, there are two basic approaches. Many state courts require a defendant to proffer evidence of some sort of direct link or connection between a specific third-party and the crime. A second group of state courts, as well as federal courts, admit evidence …

Hudson And Samson: The Roberts Court Confronts Privacy, Dignity, And The Fourth Amendment, John D. Castiglione

ExpressO

This article critically analyzes Samson v. California and Hudson v. Michigan, which were the Roberts Court's first major Fourth Amendment decisions. In Samson, the Court upheld a California law allowing government officials to search parolees without any suspicion of wrongdoing. In Hudson, to the surprise of almost every observer, the Court held that knock-and-announce violations do not carry with them a remedy of exclusion. What was most notable about Hudson was not only that it rejected what every state and every federal court, save one, believed to be the proper remedy for knock-and-announce violations, but that it called into question …

Prosecutors: Factors To Aid Your Filing Decisions With Respect To Fatal Traffic Collisions, Kimberly Rebecca Bird

ExpressO

As you may know, on a fairly regular basis, prosecutors are faced with filing decisions with respect to fatal traffic collisions. Many of them, of course, do not involve criminal negligence and are not prosecuted as crimes. Sometimes, on the other hand, the circumstances are egregious and the decision to be made is whether to file a case as a vehicular manslaughter or as a murder, on an implied malice theory. There are a finite number of California Supreme Court and Court of Appeal cases (beginning with People v. Watson (1981) 30 Cal.3d 290) that have addressed the sufficiency of …