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Full-Text Articles in Evidence

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.


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 ...


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.


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 ...


Systemic Lying, Julia Simon-Kerr Dec 2014

Systemic Lying, Julia Simon-Kerr

Julia Simon-Kerr

This Article offers the foundational account of systemic lying from a definitional and theoretical perspective. Systemic lying involves the cooperation of multiple actors in the legal system who lie or violate their oaths across cases for a consistent reason that is linked to their conception of justice. It becomes a functioning mechanism within the legal system and changes the operation of the law as written. By identifying systemic lying, this Article challenges the assumption that all lying in the legal system is the same. It argues that systemic lying poses a particular threat to the legal system. This means that ...


The New Doctrinalism: Implications For Evidence Theory, Alex Stein Dec 2014

The New Doctrinalism: Implications For Evidence Theory, Alex Stein

Alex Stein

This Article revisits and refines the organizing principles of evidence law: case specificity, cost minimization, and equal best. These three principles explain and justify all admissibility and sufficiency requirements of the law of evidence. The case-specificity principle requires that factfinders base their decisions on the relative plausibility of the stories describing the parties’ entitlement–accountability relationship. The cost-minimization principle demands that factfinders minimize the cost of errors and the cost of avoiding errors as a total sum. The equal-best principle mandates that factfinders afford every person the maximal feasible protection against risk of error while equalizing that protection across the ...


Re-Examining Hearsay Under The Federal Rules: Some Method For The Madness, Paul S. Milich Oct 2014

Re-Examining Hearsay Under The Federal Rules: Some Method For The Madness, Paul S. Milich

Paul Milich

No abstract provided.


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 Aug 2014

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 overlooked ...


Shredded Fish,, Robert Sanger May 2014

Shredded Fish,, Robert Sanger

Robert M. Sanger

There are just too many criminal laws and their proliferation has expanded exponentially over the last few decades. This is overcriminalization. In addition, the jurisdiction of federal authorities under general or vague laws has vastly expanded federal criminal prosecution of people and organizations for what otherwise would not be a crime. This is overfederalization and overcriminalization. In this article we will look at the current litigation before the United States Supreme Court that had directly taken on this controversy. The case of Yates v. United States involves briefing by the parties and by amici curae directly invoking and defending the ...


Discretion Abused: Reinterpreting The Appellate Standard Of Review For Hearsay, Matthew J. Peterson Apr 2014

Discretion Abused: Reinterpreting The Appellate Standard Of Review For Hearsay, Matthew J. Peterson

Matthew J. Peterson

Matthew J. Peterson, Discretion Abused: Reinterpreting the Appellate Standard of Review for Hearsay

Abstract:

The decision by a federal a court to exclude or admit hearsay can be crucial to the case of either party. Despite this prospective impact, the federal courts of appeal currently defer to district courts’ expertise by reviewing a district court’s decision to admit or exclude hearsay for an abuse of discretion. Such deference often insulates district courts’ incorrect interpretation of the rule against hearsay and the improper application of the exclusions and exceptions to the rule from appellate reversal.

Lowering the standard of review ...


Evidence And The Pursuit Of Truth In The Law, Jeffery L. Johnson Mar 2014

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 ...


Rationality, Insanity, And The Insanity Defense: Reflections On The Limits Of Reason, Theodore Y. Blumoff Mar 2014

Rationality, Insanity, And The Insanity Defense: Reflections On The Limits Of Reason, Theodore Y. Blumoff

Theodore Y. Blumoff

Individuals who suffer from chronic paranoid ideations live with deeply embedded conspiratorial delusions that are sometimes accompanied by unwanted visual and/or auditory stimuli, sometime neither: just psychotic delusions in which they feel as if they have lost control of their lives – and of course they have, albeit not from the performances of foreign forces. When those perceived forces persevere for even a fairly short period of time, they can dictate the performance of evil deeds that the individual ultimately feels helpless to oppose. What observations and findings from neuroscience make clear is that such individuals do not lack knowledge ...


Tell Us A Story, But Don't Make It A Good One: Resolving The Confusion Regarding Emotional Stories And Federal Rule Of Evidence 403, Cathren Page Feb 2014

Tell Us A Story, But Don't Make It A Good One: Resolving The Confusion Regarding Emotional Stories And Federal Rule Of Evidence 403, Cathren Page

Cathren Page

Abstract: Tell Us a Story, But Don’t Make It A Good One: Resolving the Confusion Regarding Emotional Stories and Federal Rule of Evidence 403 by Cathren Koehlert-Page Courts need to reword their opinions regarding Rule 403 to address the tension between the advice to tell an emotionally evocative story at trial and the notion that evidence can be excluded if it is too emotional. In the murder mystery Mystic River, Dave Boyle is kidnapped in the beginning. The audience feels empathy for Dave who as an adult becomes one of the main suspects in the murder of his friend ...


A Simple Theory Of Complex Valuation, Julia Simon-Kerr, Anthony Casey Dec 2013

A Simple Theory Of Complex Valuation, Julia Simon-Kerr, Anthony Casey

Julia Simon-Kerr

Complex valuations of assets, companies, government programs, damages, and the like cannot be done without expertise, yet judges routinely pick an arbitrary value that falls somewhere between the extreme numbers suggested by competing experts. This creates costly uncertainty and undermines the legitimacy of the court. Proposals to remedy this well-­‐‑recognized difficulty have become increasingly convoluted. As a result, no solution has been effectively adopted and the problem persists. This article suggests that the valuation dilemma stems from a misconception of the inquiry involved. Courts have treated valuation as its own special type of inquiry distinct from traditional fact finding ...


The Piranha Is As Deadly As The Shark: A Case For The Limitation On Deceptive Practices In Dna Collection, Brett A. Bauman Apr 2013

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 ...


Timeless Trial Strategies And Tactics: Lessons From The Classic Claus Von Bülow Case, Daniel M. Braun Feb 2013

Timeless Trial Strategies And Tactics: Lessons From The Classic Claus Von Bülow Case, Daniel M. Braun

Daniel M Braun

In this new Millennium -- an era of increasingly complex cases -- it is critical that lawyers keep a keen eye on trial strategy and tactics. Although scientific evidence today is more sophisticated than ever, the art of effectively engaging people and personalities remains prime. Scientific data must be contextualized and presented in absorbable ways, and attorneys need to ensure not only that they correctly understand jurors, judges, witnesses, and accused persons, but also that they find the means to make their arguments truly resonate if they are to formulate an effective case and ultimately realize justice. A decades-old case is highly ...


Arbitration, Women Arbitrators And Sharia, Mohamed Raffa Dr. Feb 2013

Arbitration, Women Arbitrators And Sharia, Mohamed Raffa Dr.

Mohamed Raffa Dr.

So, can the Arbitrator be a woman? Omar, the third Khalipha in Islam after Prophet Muhammad, actually appointed a female judge. Today, across the various Muslim countries, there are female judges in almost every Muslim country except in Saudi Arabia. There are about 70 female Iraqi judges, 10 female judges in the UAE, 20 in Egypt female judges and Arbitrators, Nigeria recently appointed the first female Chief Justice in Africa as well as it has one of the largest National Associations of Women Judges; with more in other Muslim Countries including Indonesia and Malaysia.


The Proscription Of Incorporated Law Practices (Ilps) In Nigeria: The Legal And Constitutional Issues Arising, Abdullahi Saliu Ishola May 2012

The Proscription Of Incorporated Law Practices (Ilps) In Nigeria: The Legal And Constitutional Issues Arising, Abdullahi Saliu Ishola

Abdullahi Saliu Ishola

This paper critically examines the legality and constitutionality of the provision of Rule 5 sub-rule (5) of the Rules of Professional Conduct for Legal Practitioners, 2007 (the Rules), prohibiting the practice of law in Nigeria as a corporation. The appraisal is done on the scales of the provisions of Sections 40 and 42 of the 1999 Constitution of the Federal Republic of Nigeria, as amended (the Constitution), providing for rights to freedom of association and peaceful assembly and freedom from discrimination, respectively; on one hand, and, Section 18 of the Companies and Allied Matters Act (CAMA), allowing any two or ...


The Basics Of Us Criminal Justice System, Bethel G.A Erastus-Obilo Feb 2012

The Basics Of Us Criminal Justice System, Bethel G.A Erastus-Obilo

Bethel G.A Erastus-Obilo

The criminal justice system is complex. It is also bureaucratic by design and has evolved over the years from simple unstructured peacekeeping units to the large complex crime-fighting system that it is today. Many of those who work within it find it challenging and unwieldy. Many of those who are accused of an offense find it confusing and intimidating. This goes for citizens and foreigners whether they are competent in the English language or not. For most members of ethnic minority groups, the experience can be harrowing and often fatal.


Restitution For Wrongs And The Restatement (Third) Of The Law Of Restitution, James S. Rogers Oct 2011

Restitution For Wrongs And The Restatement (Third) Of The Law Of Restitution, James S. Rogers

James S. Rogers

The law of restitution has been the forgotten step-child of American private law for many decades. The American Law Institute’s current project to produce a new restatement of the law of restitution holds the promise of bringing the subject to the foreground and removing some of the confusion that many lawyers and judges feel in approaching the topic. One of the important issues that must be addressed in any comprehensive treatment of the law of restitution is how to treat those areas where the possibility of recovery based on the unjust enrichment principle overlaps with recovery based on the ...


Unanswered Questions Of A Minority People In International Law: A Comparative Study Between Southern Cameroons & South Sudan, Bernard Sama Mr Oct 2011

Unanswered Questions Of A Minority People In International Law: A Comparative Study Between Southern Cameroons & South Sudan, Bernard Sama Mr

Bernard Sama

The month July of 2011 marked the birth of another nation in the World. The distressful journey of a minority people under the watchful eyes of the international community finally paid off with a new nation called the South Sudan . As I watched the South Sudanese celebrate independence on 9 July 2011, I was filled with joy as though they have finally landed. On a promising note, I read the UN Secretary General Ban Ki-moon saying “[t]ogether, we welcome the Republic of South Sudan to the community of nations. Together, we affirm our commitment to helping it meet its ...


Thinking Like Thinkers: Is The Art And Discipline Of An "Attitude Of Suspended Conclusion" Lost On Lawyers?, Donald J. Kochan Aug 2011

Thinking Like Thinkers: Is The Art And Discipline Of An "Attitude Of Suspended Conclusion" Lost On Lawyers?, Donald J. Kochan

Donald J. Kochan

In his 1910 book, How We Think, John Dewey proclaimed that “the most important factor in the training of good mental habits consists in acquainting the attitude of suspended conclusion. . .” This Article explores that insight and describes its meaning and significance in the enterprise of thinking generally and its importance in law school education specifically. It posits that the law would be best served if lawyers think like thinkers and adopt an attitude of suspended conclusion in their problem solving affairs. Only when conclusion is suspended is there space for the exploration of the subject at hand. The thinker must ...


A Theory Of The Perverse Verdict, Bethel G.A Erastus-Obilo Aug 2011

A Theory Of The Perverse Verdict, Bethel G.A Erastus-Obilo

Bethel G.A Erastus-Obilo

The concept of a perverse verdict is one that pervades the Criminal justice system of nearly all common law jurisdictions. The English Criminal Justice system is no exception and the concept has become institutionalised as if it were a true occurrence. This paper challenges the idea and argues that it is, technically, a legal non-event given the system of trial by jury. The theory is that besides the jury, no one else is invested with the power and authority to declare a verdict and this position is supported both by legal custom and the mechanism of the criminal justice system ...


Curtains, Bethel G.A Erastus-Obilo Jul 2011

Curtains, Bethel G.A Erastus-Obilo

Bethel G.A Erastus-Obilo

This is the story of life in all its glory and eternal ramifications. This is the story of us.


I Wept, Bethel G.A Erastus-Obilo Jul 2011

I Wept, Bethel G.A Erastus-Obilo

Bethel G.A Erastus-Obilo

It is not always what we expect to find in love but sometimes, we look in the worng places. We fail to notice that what we always wanted and sought was always in front of us.


Vanity Of Vanities, Bethel G.A Erastus-Obilo Jul 2011

Vanity Of Vanities, Bethel G.A Erastus-Obilo

Bethel G.A Erastus-Obilo

All that we see and all that we do are emptied into the eternal abyss of nothingness and vain glory. All the we have and all own us are intertwined in the great deception of man. Vanity of vanities, says the preacher, all is vanity


A Criminal Moment In Time, Bethel G.A Erastus-Obilo Jul 2011

A Criminal Moment In Time, Bethel G.A Erastus-Obilo

Bethel G.A Erastus-Obilo

Criminal law jurisprudence considers the concepts of motive, intent and the forbidden act integral to the justice process. Throughout the common law jurisdictions, this trio overshadows a central theme that is a precursor to all criminal acts – the idea of a social responsibility continuum or cognitive dependency. While motive is dispositional on a wider application, intent is situational and is a product of one’s socio-cultural experience. The forbidden act, though central to the process, constitutes ‘a faithful mirror of thought’ – the consummation of a deliberate and manipulated cognition. The nexus between the three subjects extends beyond the Cartesan vorticism ...


Jury Deliberations – How Do Reasoning Skills Interplay With Decision-Making?, Bethel G.A Erastus-Obilo Jul 2011

Jury Deliberations – How Do Reasoning Skills Interplay With Decision-Making?, Bethel G.A Erastus-Obilo

Bethel G.A Erastus-Obilo

We may well wonder how the Casey Anthony reached its verdict in spite of what many of us thought was a raft of compelling evidence. In order to understand some of the nuances at play, it is important to understand some of the issues that confront a jury and how the criminal justice system ensures or attempts to ensure a fair outcome in our trial by jury system


Jury Continuum, Bethel G.A Erastus-Obilo Jul 2011

Jury Continuum, Bethel G.A Erastus-Obilo

Bethel G.A Erastus-Obilo

Jury deliberations – how do reasoning skills interplay with decision-making?We may well wonder how the Casey Anthony jury reached its verdict in spite of what many of us thought was a raft of compelling evidence for conviction. In order to understand some of the nuances at play, it is important to understand some of the issues that confront a jury and how the criminal justice system ensures or attempts to ensure a fair outcome in our trial by jury system. At the risk of stating the obvious, one of the most enduring features of our criminal justice system is the ...


The Talmudic Rule Against Self-Incrimination And The American Exclusionary Rule: A Societal Prohibition Versus An Affirmative Individual Right, Suzanne Darrow Kleinhaus Mar 2011

The Talmudic Rule Against Self-Incrimination And The American Exclusionary Rule: A Societal Prohibition Versus An Affirmative Individual Right, Suzanne Darrow Kleinhaus

Suzanne Darrow Kleinhaus

No abstract provided.