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Articles 1 - 30 of 166

Full-Text Articles in Evidence

Table Of Contents, Seattle University Law Review Sep 2019

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


A Philosophical Basis For Judicial Restraint, Michael Evan Gold Jun 2019

A Philosophical Basis For Judicial Restraint, Michael Evan Gold

Michael Evan Gold

The purpose of this article is to establish a principled basis for restraint of judicial lawmaking. The principle is that all findings of fact, whether of legislative or adjudicative facts, must be based on evidence in the record of a case. This principle is grounded in moral philosophy. I will begin with a discussion of the relevant aspect of moral philosophy, then state and defend the principle, and finally apply it to a line of cases.


Justice Begins Before Trial: How To Nudge Inaccurate Pretrial Rulings Using Behavioral Law And Economic Theory And Uniform Commercial Laws, Michael Gentithes May 2019

Justice Begins Before Trial: How To Nudge Inaccurate Pretrial Rulings Using Behavioral Law And Economic Theory And Uniform Commercial Laws, Michael Gentithes

William & Mary Law Review

Injustice in criminal cases often takes root before trial begins. Overworked criminal judges must resolve difficult pretrial evidentiary issues that determine the charges the State will take to trial and the range of sentences the defendant will face. Wrong decisions on these issues often lead to wrongful convictions. As behavioral law and economic theory suggests, judges who are cognitively busy and receive little feedback on these topics from appellate courts rely upon intuition, rather than deliberative reasoning, to resolve these questions. This leads to inconsistent rulings, which prosecutors exploit to expand the scope of evidentiary exceptions that almost always disfavor ...


Between Brady Discretion And Brady Misconduct, Bennett L. Gershman Apr 2019

Between Brady Discretion And Brady Misconduct, Bennett L. Gershman

Dickinson Law Review

The Supreme Court’s decision in Brady v. Maryland presented prosecutors with new professional challenges. In Brady, the Supreme Court held that the prosecution must provide the defense with any evidence in its possession that could be exculpatory. If the prosecution fails to timely turn over evidence that materially undermines the defendant’s guilt, a reviewing court must grant the defendant a new trial. While determining whether evidence materially undermines a defendant’s guilt may seem like a simple assessment, the real-life application of such a determination can be complicated. The prosecution’s disclosure determination can be complicated under the ...


Table Of Contents, Seattle University Law Review Feb 2019

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


A Philosophical Basis For Judicial Restraint, Michael Evan Gold Jan 2019

A Philosophical Basis For Judicial Restraint, Michael Evan Gold

Articles and Chapters

The purpose of this article is to establish a principled basis for restraint of judicial lawmaking. The principle is that all findings of fact, whether of legislative or adjudicative facts, must be based on evidence in the record of a case. This principle is grounded in moral philosophy. I will begin with a discussion of the relevant aspect of moral philosophy, then state and defend the principle, and finally apply it to a line of cases.


Where The Constitution Falls Short: Confession Admissibility And Police Regulation, Courtney E. Lewis Jan 2019

Where The Constitution Falls Short: Confession Admissibility And Police Regulation, Courtney E. Lewis

Dickinson Law Review

A confession presented at trial is one of the most damning pieces of evidence against a criminal defendant, which means that the rules governing its admissibility are critical. At the outset of confession admissibility in the United States, the judiciary focused on a confession’s truthfulness. Culminating in the landmark case Miranda v. Arizona, judicial concern with the reliability of confessions shifted away from whether a confession was true and towards curtailing unconstitutional police misconduct. Post-hoc constitutionality review, however, is arguably inappropriate. Such review is inappropriate largely because the reviewing court must find that the confession was voluntary only by ...


Forensic Science: Complex Admissibility Standard For Scientific Evidence And Expert Witness's Testimony, Md Wahidur Rahman, Marissa J. Moran Dec 2018

Forensic Science: Complex Admissibility Standard For Scientific Evidence And Expert Witness's Testimony, Md Wahidur Rahman, Marissa J. Moran

Publications and Research

Modern science forces the world to accept new theories and invention. Science has invented several tools, which are used in the legal system to dispute criminal cases. Scientific evidence and expert witness testimony have weight in the courtroom because those are scientifically proved to be true. Even though there are few case laws and Federal rule of evidence 1975, still the admissibility standard is complex which may lead injustice.

This article examines the Federal rule of evidence, case laws and scholars’ opinion to address the complexity of the admissibility standard of scientific evidence and expert testimony. The first legal question ...


The Uk Forensic Science Regulator: A Model For Forensic Science Regulation?, Carole Mccartney, Emmanuel N. Amoako Aug 2018

The Uk Forensic Science Regulator: A Model For Forensic Science Regulation?, Carole Mccartney, Emmanuel N. Amoako

Georgia State University Law Review

The use of an array of scientific techniques and technologies is now considered customary within criminal justice, with technological developments and scientific advancements regularly added to the crime investigator’s arsenal. However, the scientific basis, reliability, and fallibility of the application of such “forensic science” (and the resulting scientific evidence) continues to come under intense scrutiny. In response to apparently irremediable problems with the quality of scientific evidence in the United Kingdom (UK), the government created the role of “Forensic Science Regulator” in 2007.

The introduction of a regulator was intended to establish quality standards for all forensic science providers ...


The First Amendment Case For Public Access To Secret Algorithms Used In Criminal Trials, Vera Eidelman Aug 2018

The First Amendment Case For Public Access To Secret Algorithms Used In Criminal Trials, Vera Eidelman

Georgia State University Law Review

As this Article sets forth, once a computerized algorithm is used by the government, constitutional rights may attach. And, at the very least, those rights require that algorithms used by the government as evidence in criminal trials be made available—both to litigants and the public. Scholars have discussed how the government’s refusal to disclose such algorithms runs afoul of defendants’ constitutional rights, but few have considered the public’s interest in these algorithms—or the widespread impact that public disclosure and auditing could have on ensuring their quality.

This Article aims to add to that discussion by setting ...


Garbage In, Garbage Out: Revising Strickland As Applied To Forensic Science Evidence, Mark Loudon-Brown Aug 2018

Garbage In, Garbage Out: Revising Strickland As Applied To Forensic Science Evidence, Mark Loudon-Brown

Georgia State University Law Review

Sophisticated scientific evidence may be an undesirable subject matter for a judge to tackle anew, and it can be even more daunting for a defense attorney to confront, particularly one faced with a crushing caseload. It can be tempting to avoid a challenge to a vulnerable forensic science discipline—be it new, novel, or simply recently called into question—when a lawyer reasonably believes that the evidence will be admitted regardless.

Worse still, it may seem reasonable to disregard any adversarial challenge to incriminatory science altogether, and to opt instead for a different defense or to encourage a guilty plea ...


It’S Not The Thought That Counts: Pennsylvania Quietly Made Rape And Idsi Strict Liability Crimes, Jordan E. Yatsko Apr 2018

It’S Not The Thought That Counts: Pennsylvania Quietly Made Rape And Idsi Strict Liability Crimes, Jordan E. Yatsko

Dickinson Law Review

In 1982, the Pennsylvania Superior Court decided Commonwealth v. Williams, wherein the court held that a defendant charged with rape or involuntary deviate sexual intercourse (IDSI) cannot use a mistake of fact defense as to the victim’s consent. The court relied on the reasoning that a defendant’s mens rea is not an element of either rape or IDSI. Section 302 of the Pennsylvania Crimes Code, however, requires that where the legislature has failed to expressly require a finding of mens rea in the text of the statute, at least recklessness must be imputed to each material element.

This ...


Fleeing The Rat’S Nest: Title Vii Jurisprudence After Ortiz V. Werner Enterprises, Inc., Zachary J. Strongin Jan 2018

Fleeing The Rat’S Nest: Title Vii Jurisprudence After Ortiz V. Werner Enterprises, Inc., Zachary J. Strongin

Brooklyn Law Review

In 2016, the Seventh Circuit issued an opinion that may be a harbinger for an important shift in the federal judiciary’s long-standing employment discrimination jurisprudence. In Ortiz v. Werner Enterprises, Judge Easterbrook reiterated the frustration with the existing “rat’s nest” of tests and standards used in Title VII discrimination and retaliation claims. The note contains two overarching arguments. First, the Supreme Court’s employment discrimination and “rat’s nest” of tests and standards has led to an untenable situation in which federal district courts apply different standards at different stages of litigations. This in turn has caused confusion ...


Find My Criminals: Fourth Amendment Implications Of The Universal Cell Phone "App" That Every Cell Phone User Has But No Criminal Wants, Christopher Joseph Apr 2017

Find My Criminals: Fourth Amendment Implications Of The Universal Cell Phone "App" That Every Cell Phone User Has But No Criminal Wants, Christopher Joseph

Barry Law Review

No abstract provided.


The Triangle Of Law And The Role Of Evidence In Class Action Litigation, Jonah B. Gelbach Jan 2017

The Triangle Of Law And The Role Of Evidence In Class Action Litigation, Jonah B. Gelbach

Faculty Scholarship at Penn Law

In Tyson Foods v. Bouaphakeo, a "donning and doffing" case brought under Iowa state law incorporating the Fair Labor Standards Act's overtime pay provisions, the petitioners asked the Supreme Court to reject the use of statistical evidence in Rule 23(b)(3) class certification. To its great credit, the Court refused. In its majority opinion, the Court cited both the Federal Rules of Evidence and federal common law interpreting the FLSA. In this paper, I take a moderately deep dive into the facts of the case, and the three opinions penned by Justice Kennedy (for the Court), Chief Justice ...


Teaching The Quandary Of Statistical Jurisprudence: A Review-Essay On Math On Trial By Schneps And Colmez, Noah Giansiracusa Jul 2016

Teaching The Quandary Of Statistical Jurisprudence: A Review-Essay On Math On Trial By Schneps And Colmez, Noah Giansiracusa

Journal of Humanistic Mathematics

This review-essay on the mother-and-daughter collaboration Math on Trial stems from my recent experience using this book as the basis for a college freshman seminar on the interactions between math and law. I discuss the strengths and weaknesses of this book as an accessible introduction to this enigmatic yet deeply important topic. For those considering teaching from this text (a highly recommended endeavor) I offer some curricular suggestions.


Reconsidering The Standards Of Admission For Prior Bad Acts Evidence In Light Of Research On False Memories And Witness Preparation, Jason Tortora Mar 2016

Reconsidering The Standards Of Admission For Prior Bad Acts Evidence In Light Of Research On False Memories And Witness Preparation, Jason Tortora

Fordham Urban Law Journal

No abstract provided.


Hearsay Evidence: Legal Discourse, Circumstantiality, And The Woman In White, Matthew Finley Jan 2016

Hearsay Evidence: Legal Discourse, Circumstantiality, And The Woman In White, Matthew Finley

Global Tides

In Wilkie Collins’s The Woman in White, Walter Hartright begins the narrative by stating that, because “the Law is still … the pre-engaged servant of the long purse,” he has arranged the novel to reveal the truth (5). The author, then, puts the law on trial by engaging the interplay between legal questions of witness credibility and testimonial evidence and their impact on social factors such as class and gender. The law’s emphasis on externality leads the system to privilege the snakelike Fosco over the heroic Walter, Laura, and Marian, signaling the courts' capital offence. Although the novel is ...


Policing In The Era Of Permissiveness: Mitigating Misconduct Through Third-Party Standing, Julian A. Cook Iii Jan 2016

Policing In The Era Of Permissiveness: Mitigating Misconduct Through Third-Party Standing, Julian A. Cook Iii

Brooklyn Law Review

On April 4, 2015, Walter L. Scott was driving his vehicle when he was stopped by Officer Michael T. Slager of the North Charleston, South Carolina, police department for a broken taillight. A dash cam video from the officer’s vehicle showed the two men engaged in what appeared to be a rather routine verbal exchange. Sometime after Slager returned to his vehicle, Scott exited his car and ran away from Slager, prompting the officer to pursue him on foot. After he caught up with Scott in a grassy field near a muffler establishment, a scuffle between the men ensued ...


Admissibility Of Scientific Evidence Under Daubert: The Fatal Flaws Of ‘Falsifiability’ And ‘Falsification’, Barbara P. Billauer Esq Dec 2015

Admissibility Of Scientific Evidence Under Daubert: The Fatal Flaws Of ‘Falsifiability’ And ‘Falsification’, Barbara P. Billauer Esq

barbara p billauer esq

Abstract: The Daubert mantra demands that judges, acting as gatekeepers, prevent para, pseudo or ‘bad’ science from infiltrating the courtroom. To do so, the Judges must first determine what “science” is? And then, what ‘good science’ is? It is submitted that Daubert is seriously polluted with the notions of Karl Popper who sets ‘falsifiability’ and ‘falsification’ as the demarcation line for that determination. This inapt philosophy has intractably infected case law, leading to bad decisions immortalized as stare decisis. Among other problems, is the intolerance of Popper’s system for multiple causation, a key component of toxic- torts. Thus, the ...


Florida's "Brave New World": The Transition From Frye To Daubert Will Transform The Playing-Field For Litigants In Medical Causation Cases, Erica W. Rutner, Lara B. Bach Sep 2015

Florida's "Brave New World": The Transition From Frye To Daubert Will Transform The Playing-Field For Litigants In Medical Causation Cases, Erica W. Rutner, Lara B. Bach

Barry Law Review

No abstract provided.


Response Of John Kulewicz To Professor Shanker, John J. Kulewicz Jul 2015

Response Of John Kulewicz To Professor Shanker, John J. Kulewicz

Akron Law Review

A glaring error in Professor Shanker's recent article proves the value of the parol evidence rule at least as effectively as the balance of his scholarly contribution to this journal. In reviewing the arguments of counsel in the Marion PCA v. Cochran case,' Professor Shanker claims that the Court "was led astray by the lawyers" and that" [m]isleading from the [l]awyers" caused the Court to undertake its analysis of the Statute of Frauds.2 He stakes this claim on his apparent belief that counsel did not ask the Court to apply the parol evidence rule to the ...


Wiggins V. State: Receiving A Fair Trial Under The Specter Of Aids, Charles Zamora Jul 2015

Wiggins V. State: Receiving A Fair Trial Under The Specter Of Aids, Charles Zamora

Akron Law Review

Wiggins v. State presented two unique issues: (1) whether it was proper to authorize courtroom security personnel to use prophylactic apparel while escorting a defendant merely suspected of having acquired immunodeficiency syndrome (AIDS), and (2) the extent to which this handling procedure impacted the jury.

This Note will analyze the Wiggins decision, emphasizing the court's reasoning as it pertains to the following: (1) the guarantee of a fair and impartial jury trial for defendants either having or being suspected of having AIDS; (2) the permissible exercise of discretion by the trial judge in authorizing precautions during the course of ...


Evidentiary Use Of Prior Acquittals: When Analysis Exceeds Reality, Paul Harper Jul 2015

Evidentiary Use Of Prior Acquittals: When Analysis Exceeds Reality, Paul Harper

Akron Law Review

The purpose of this note is to assess the basis and propriety of that decision and to highlight some potential problems with the Court's conclusion. Additionally, this casenote will attempt to envision how this holding may affect future prosecutions.

Finally it will offer an alternative model which may more adequately address the tension between the government's legitimate prosecutorial interests and the defendant's interest in finality of judgment.


State V. Jenks Fails To Clarify Appellate Standards Of Evidence Review In Ohio, Kevin L. Leffel Jul 2015

State V. Jenks Fails To Clarify Appellate Standards Of Evidence Review In Ohio, Kevin L. Leffel

Akron Law Review

The analysis that follows focuses on two points. First, many reviewing courts in Ohio have failed to discern between reversing a conviction because it was against the manifest weight of the evidence and reversing because the evidence was not sufficient to support the conviction. The concepts and associated standards of review are separate and distinct. Jenks failed to clarify the distinction and may actually add to the confusion. Second, the elimination of the circumstantial evidence rule has implications concerning the definition of reasonable doubt in Ohio.


The Clear Initiative And Mental States: 1½ Problems Solved, 41 J. Marshall L. Rev. 701 (2008), Timothy P. O'Neill May 2015

The Clear Initiative And Mental States: 1½ Problems Solved, 41 J. Marshall L. Rev. 701 (2008), Timothy P. O'Neill

Timothy P. O'Neill

No abstract provided.


Cultural Bias In Judicial Decision Making, Masua Sagiv May 2015

Cultural Bias In Judicial Decision Making, Masua Sagiv

Boston College Journal of Law & Social Justice

This Essay describes the phenomenon of cultural bias in judicial decision making, and examines the use of testimonies and opinions of cultural experts as a way to diminish this bias. The Essay compares the legal regimes of the United States and Israel. Whereas in the United States, the general practice of using cultural experts in courts is well developed and regulated, the Israeli legal procedure has no formal method for admitting cultural expert testimony, and examples of opinions or testimonies of cultural experts in the Israeli legal system are sporadic. The Essay further argues that social science evidence is an ...


Science Is Not Waiting For The Courts, Robert Sanger Mar 2015

Science Is Not Waiting For The Courts, Robert Sanger

Robert M. Sanger

The Forensic Science Community and the federal government are moving far beyond the courts in an effort to improve the quality of scientific evidence and expert testimony in the courts. Major events in forensics have caused a top to bottom reconsideration of what should count as expert testimony. Last month, the National Institute of Standards and Technology (NIST) and the federal Department of Justice (DOJ) convened the first set of meetings of the Organization of Scientific Area Committees (OSAC). This is a forward-looking approach to forensic science.

The first OSAC meetings were held on February 16 and 17, 2015, at ...


Proportionality And The Social Benefits Of Discovery: Out Of Sight And Out Of Mind?, Stephen B. Burbank Jan 2015

Proportionality And The Social Benefits Of Discovery: Out Of Sight And Out Of Mind?, Stephen B. Burbank

Faculty Scholarship at Penn Law

In this short essay, based on remarks delivered at the 2015 meeting of the AALS Section of Litigation, I use a recent paper by Gelbach and Kobayashi to highlight the risk that, in assessing the proportionality of proposed discovery under the 2015 amendments to Rule 26 of the Federal Rules of Civil Procedure, federal judges will privilege costs over benefits, and private over public interests. The risk arises from the temptation to focus on (1) the interests of those who are present to the detriment of the interests of those who are absent (“the availability heuristic”), and (2) variables that ...


Ambiguous-Purpose Statements Of Children And Other Victims Of Abuse Under The Confrontation Clause, Paul F. Rothstein Jan 2015

Ambiguous-Purpose Statements Of Children And Other Victims Of Abuse Under The Confrontation Clause, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The author examines in this paper two kinds of ambiguous-purpose out-of-court statements that are especially problematic under current Confrontation law--problematic in ways that we hope will be solved directly or indirectly by the Supreme Court when it renders its decision in Ohio v. Clark. The statements he examines are:

(1) Statements made by abused children concerning their abuse, for example to police, physicians, teachers, welfare workers, baby sitters, or family members, some of whom may be under a legal duty to report suspected abuse to legal authorities. At least some of these statements will be directly addressed by the Court ...