Evidence Commons^™

Using The Dna Testing Of Arrestees To Reevaluate Fourth Amendment Doctrine, Steven P. Grossman

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With the advent of DNA testing, numerous issues have arisen with regard to obtaining and using evidence developed from such testing. As courts have come to regard DNA testing as a reliable method for linking some people to crimes and for exonerating others, these issues are especially significant. The federal government and most states have enacted statutes that permit or direct the testing of those convicted of at least certain crimes. Courts have almost universally approved such testing, rejecting arguments that obtaining and using such evidence violates the Fourth Amendment.

More recently governments have enacted laws permitting or directing the …

Dna Helps Clear Man's Name From Rape Charge After 24 Years, Colin Starger

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No abstract provided.

Comments On Maryland V. King In 'U.S. Supreme Court To Hear Arguments Over Md. Dna Case: Justices' Decision Will Have National Implications On Future Crime-Fighting Procedures', Colin Starger

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No abstract provided.

"Sweet Childish Days": Using Developmental Psychology Research In Evaluating The Admissibility Of Out-Of-Court Statements By Young Children, Lynn Mclain

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A three-year-old child, while being bathed by her babysitter, innocently mentions that her “pee-pee” hurts. When the babysitter asks the child how she hurt it, she says, “Uncle Ernie (her mother’s boyfriend) told me not to tell.” A subsequent medical examination reveals that the child has gonorrhea, a sexually transmitted disease.

By the time of trial, the child is four and-a-half-years old. When questioned by the trial judge, she cannot explain to the judge’s satisfaction, “the difference between the truth and a lie.” Moreover, she has no long term memory of the incident. The judge rules the child incompetent to …

"I'M Going To Dinner With Frank": Admissibility Of Nontestimonial Statements Of Intent To Prove The Actions Of Someone Other Than The Speaker—And The Role Of The Due Process Clause, Lynn Mclain

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A woman tells her roommate that she is going out to dinner with Frank that evening. The next morning her battered body is found along a country road outside of town. In Frank’s trial for her murder, is her statement to her roommate admissible to place Frank with her that night? Since the Court’s 2004 Crawford decision, the confrontation clause is inapplicable to nontestimonial hearsay such as this.

American jurisdictions are widely divided on the question of admissibility under their rules of evidence, however. Many say absolutely not. A sizeable number unequivocally say yes. A small number say yes, but …

The Dna Of An Argument: A Case Study In Legal Logos, Colin Starger

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This Article develops a framework for analyzing legal argument through an in-depth case study of the debate over federal actions for post-conviction DNA access. Building on the Aristotelian concept of logos, this Article maintains that the persuasive power of legal logic depends in part on the rhetorical characteristics of premises, inferences, and conclusions in legal proofs. After sketching a taxonomy that distinguishes between prototypical argument logo (formal, empirical, narrative, and categorical), the Article applies its framework to parse the rhetorical dynamics at play in litigation over post-conviction access to DNA evidence under 42 U.S.C. § 1983, focusing in particular on …

Post-Crawford: Time To Liberalize The Substantive Admissibility Of A Testifying Witness's Prior Consistent Statements, Lynn Mclain

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The United States Supreme Court's 1995 decision in Tome v. United States has read Federal Rule of Evidence 801(d)(1)(B) to prevent the prosecution's offering a child abuse victim's prior consistent statements as substantive evidence. As a result of that decision, the statements will also be inadmissible even for the limited purpose of helping to evaluate the credibility of a child, if there is a serious risk that the out-of-court statements would be used on the issue of guilt or innocence.

Moreover, after the Court's March 2004 decision in Crawford v. Washington, which redesigned the landscape of Confrontation Clause analysis, other …

Dealing With Complex Evidence Of Domestic Violence: A Primer For The Civil Bench, Jane C. Murphy, Jane H. Aiken

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New laws and policies aimed at protecting victims of domestic violence have been adopted across the country throughout the last twenty years. The legal approaches taken to protect battered women and control family violence have brought about significant changes in family law. New laws include statutes permitting civil protection or restraining orders, and laws requiring that domestic violence be considered in custody and visitation decisions. Both of these types of statutory reforms can provide protection to adult victims of domestic violence and their children. Evaluating a parent’s fitness by considering past acts of violence to other family members results in …

New Federal Rules In Sex Offense Cases, Lynn Mclain

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This article from the November/December 1995 issue of the Maryland Bar Journal details the changes made to the Federal Rules of Evidence following the enactment of the 1994 Comprehensive Crime Bill. Questions raised by the new rules and the response of the Judicial Conference are also discussed.

No Magic Formula: A New Approach For Calculating The Ten Year Time Period For Admission Of Prior Conviction Evidence, Amy E. Sloan

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Federal Rule of Evidence (FRE) 609 governs admission of prior conviction evidence. Under this rule, it is easier to admit evidence of a prior conviction that is less than ten years old than to admit evidence of older convictions. The ten year period is measured from the later of either the date of conviction or the date of release from confinement.

Calculating the ten year period is fairly straightforward in most cases but becomes confusing when the witness has been confined for violating the terms of probation, parole, or some other period of conditional release. Does the confinement for violation …

Challenging Public Investigative Reports: How To Fight The Hearsay Exception, Steven P. Grossman, Stephen J. Shapiro

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This paper discusses how attorneys can argue against having government and public reports admitted into evidence at trial that would be damaging to their client. When this paper was done, such reports were admitted via Federal Rule of Evidence 803(8)(C). The authors argue that it is possible to challenge admission of factual findings in public reports despite various court decisions which make this difficult.

The Admission Of Government Fact Findings Under Federal Rule Of Evidence 803(8)(C): Limiting The Dangers Of Unreliable Hearsay, Steven P. Grossman, Stephen J. Shapiro

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Federal Rule of Evidence 803(8)(C), an exception to the rule against admission of hearsay, permits introduction of public records or reports containing the fact findings of the reporter without requiring the reporter to appear at trial. These fact findings can be based upon the reporter's own observations and calculations or information imparted to the reporter from sources having no connection to any public agency whatsoever. Rule 803(8)(C) has also been used as the vehicle for presenting juries with fact findings from hearings conducted by public officials. The rule would seem to allow these fact findings even though the opponent had …

The Doctrine Of Inevitable Discovery: A Plea For Reasonable Limitations, Steven P. Grossman

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In reinstating the Iowa murder conviction of Robert Williams, the Supreme Court accepted explicitly for the first time the doctrine of inevitable discovery. Applied for some time by state and federal courts, the doctrine of inevitable discovery is a means by which evidence obtained illegally can still be admitted against defendants in criminal cases. Unfortunately, the Court chose to adopt the doctrine without any of the safeguards necessary to insure that the deterrent impact of the exclusionary rule would be preserved, and in a form that is subject to and almost invites abuse.

This article warns of the danger to …

Comments And Casenotes: To Kill A Mockingbird - Star Decisis And M'Naghten In Maryland, Kenneth Lasson

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There are certain pillars of jurisprudence which, despite the erosive elements of time and progress, remain sacred. After more than a century of judicial dialogue the venerable M'Naghten Rule survives as the prevailing test to determine criminal responsibility. The rule states: "To establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know …