Evidence Commons^™

The Entity Attorney-Client Privilege Meets The Twenty-First Century: Rethinking Functional Equivalent Analysis In The Time Of A Nonemployee Workforce., Grace M. Giesel

Faculty Scholarship

Courts have struggled with whether an entity’s attorney-client privilege can protect communications between the entity’s lawyer and a nonemployee who has information the entity’s lawyer needs to best advise the entity. The nonemployee might be a former employee. But increasingly in recent times, the nonemployee is an individual who was never an entity employee. Corporations and other entities have incorporated nonemployees in their economic enterprises in all sorts of roles—roles employees may have held in the past. Many courts have accepted that the privilege can apply to communications involving former employees.

When faced with nonemployees who are not former employees, …

Assertion And Hearsay, Richard Lloret

Dickinson Law Review (2017-Present)

This article explores the characteristics and functions of assertion and considers how the term influences the definition of hearsay under Federal Rule of Evidence 801. Rule 801(a) defines hearsay by limiting it to words and conduct intended as an assertion, but the rule does not define the term assertion. Courts and legal scholars have focused relatively little attention on the nature and definition of assertion. That is unfortunate, because assertion is a robust concept that has been the subject of intense philosophic study over recent decades. Assertion is not a mere cypher standing in for whatever speech or conduct one …

Rock And Hard Place Arguments, Jareb Gleckel, Grace Brosofsky

Seattle University Law Review

This Article explores what we coin “rock and hard place” (RHP) arguments in the law, and it aims to motivate mission-driven plaintiffs to seek out such arguments in their cases. The RHP argument structure helps plaintiffs win cases even when the court views that outcome as unfavorable.

We begin by dissecting RHP dilemmas that have long existed in the American legal system. As Part I reveals, prosecutors and law enforcement officials have often taken advantage of RHP dilemmas and used them as a tool to persuade criminal defendants to forfeit their constitutional rights, confess, or give up the chance to …

International Arbitration And Attorney-Client Privilege — A Conflict Of Laws Approach, Susan Franck

Articles in Law Reviews & Other Academic Journals

Privilege determinations in international arbitration are currently the equivalent of the “wild west,” with minimal predictability and massive pockets of tribunal discretion. Yet protecting privilege in international arbitration — when the same document or communications with lawyers that is protected by United States law may receive no protection under another law — is fundamental to safeguarding attorney-client relationships within a global environment, incentivizing procedural integrity of dispute resolution, and ensuring that justice is done. As it is not clear what law applies to privilege and client confidentiality (let alone how the law is determine), this Essay begins to bridge the …

The Challenge Of Convicting Ethical Prosecutors That Their Profession Has A Brady Problem, Adam M. Gershowitz

Adam M. Gershowitz

In recent decades, both the media and legal scholars have documented the widespread problem of prosecutors failing to disclose favorable evidence to the defense – so called Brady violations. Despite all of this documentation however, many ethical prosecutors reject the notion that the criminal justice system has a Brady problem. These prosecutors – ethical lawyers who themselves have not been accused of misconduct – believe that the scope of the Brady problem is exaggerated. Why do ethical prosecutors downplay the evidence that some of their colleagues have committed serious errors?

This essay, in honor of Professor Bennett Gershman, points to …

The Challenge Of Convincing Ethical Prosecutors That Their Profession Has A Brady Problem, Adam M. Gershowitz

Faculty Publications

In recent decades, both the media and legal scholars have documented the widespread problem of prosecutors failing to disclose favorable evidence to the defense – so called Brady violations. Despite all of this documentation however, many ethical prosecutors reject the notion that the criminal justice system has a Brady problem. These prosecutors – ethical lawyers who themselves have not been accused of misconduct – believe that the scope of the Brady problem is exaggerated. Why do ethical prosecutors downplay the evidence that some of their colleagues have committed serious errors?

This essay, in honor of Professor Bennett Gershman, points to …

Between Brady Discretion And Brady Misconduct, Bennett L. Gershman

Dickinson Law Review (2017-Present)

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 Brady paradigm because …

Between Brady Discretion And Brady Misconduct, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

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 Brady paradigm because the …

The Privilege Doctrines--Are They Just Another Discovery Tool Utilized By The Tobacco Industry To Conceal Damaging Information?, Christine Hatfield

Pace Law Review

This Comment will analyze the tobacco companies' use of the privilege doctrines to avoid litigation over the past thirty years, specifically focusing on the last fifteen years of litigation between this industry and its accusers. Part II of this Comment will discuss the pertinent discovery rules and the manner in which they are abused. Part III will examine the development, scope and limitations of the attorney-client privilege and work product doctrines, considering with particularity the corporate context and the applicability of the crime-fraud exception to these doctrines. Part IV will review the case law of the tobacco litigation, focusing on …

Causation And "Legal Certainty" In Legal Malpractice Law, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

A line of California cases holds that causation of damages in legal malpractice actions must be proven with “legal certainty.” This Article argues that judicial references to legal certainty are ambiguous and threaten to undermine the fairness of legal malpractice litigation as a means for resolving lawyer-client disputes. Courts should eschew the language of legal certainty and plainly state that damages are recoverable if a legal malpractice plaintiff proves, by a preponderance of the evidence, that those losses were factually and proximately caused by the defendant’s breach of duty.

The Paragraph 20 Paradox: An Evaluation Of The Enforcement Of Ethical Rules As Substantive Law, Donald E. Campbell

St. Mary's Journal on Legal Malpractice & Ethics

This Article addresses an issue courts across the country continue to struggle with: When are ethics rules appropriately considered enforceable substantive obligations, and when should they only be enforceable through the disciplinary process? The question is complicated by the ethics rules themselves. Paragraph 20 of the Scope section of the Model Rules of Professional Conduct includes seemingly contradictory guidance; it states the Rules are not to be used to establish civil liability, but also that they can be “some evidence” of a violation of a lawyer’s standard of care. Most states have adopted this paradoxal Paragraph 20 language. Consequently, courts …

Review Of Privileged Documents In Trial And Deposition Preparation Of Witnesses In New York: When, If Ever, Will The Privilege Be Lost?, Michael J. Hutter

Pace Law Review

This article will examine New York’s refreshing recollection doctrine in the context of trial and deposition preparation of witnesses as to the consequences of the witness’s review of privileged writings. Initially, Part II will discuss Rule 612 of the Federal Rules of Evidence. The discussion will serve as the backdrop for the analysis of the above-mentioned issues under New York law. Part III will then examine the refreshing recollection doctrine as developed and applied to testifying witnesses at a trial or deposition by the New York courts. The examination will point out the doctrine’s key rules. Part IV discusses the …

Prosecutorial Summation: Where Is The Line Between "Personal Opinion" And Proper Argument?, James W. Gunson

Maine Law Review

Prosecutorial forensic misconduct has become front page news in Maine. Since April of 1993, the Maine Supreme Judicial Court, sitting as the Law Court, has reversed convictions in three highly publicized cases based on remarks made by the prosecutor. In State v. Steen, the prosecutor asked the defendant to give his opinion concerning the veracity of other witnesses and suggested in closing argument that the favorable testimony given by the defense's expert witness resulted from the fee he had received. The Law Court vacated the gross sexual assault conviction, finding that the prosecutor's questions and closing argument “clearly suggested” to …

Panel Discussion: Ethnographic Evidence

Northwestern Journal of Law & Social Policy

No abstract provided.

Panel Discussion: Ethnography, Ethics & Law

Northwestern Journal of Law & Social Policy

No abstract provided.

What Do I Do With The Porn On My Computer: How A Lawyer Should Counsel Clients About Physical Evidence, Rodney J. Uphoff, Peter A. Joy

Faculty Publications

For years, criminal defense lawyers and commentators have wrestled with thorny ethical and legal issues surrounding defense counsel's obligations with respect to handling items of physical evidence. Commentators have usually focused on the question of whether the lawyer should take possession of physical evidence of a crime as well as on counsel's obligations and options once the lawyer purposively or inadvertently comes into possession of such evidence. After discussing what the ethics rules and the law require concerning handling physical evidence, commentators have generally cautioned lawyers not to take possession of suspected contraband or possible evidence of a crime, except …

Newsroom: Good Reason For Secrecy On 38 Studios 8/12/2016, Niki Kuckes, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Section 276 Misconstrued: The Failure To Properly Interpret And Apply Canada's Rape Shield Provisions, Elaine Craig

Articles, Book Chapters, & Popular Press

Despite the vintage of Canada’s rape shield provisions (which in their current manifestation have been in force since 1992), some trial judges continue to misinterpret and/or misapply the Criminal Code provisions limiting the use of evidence of a sexual assault complainant’s other sexual activity. These errors seem to flow from a combination of factors including a general misunderstanding on the part of some trial judges as to what section 276 requires and a failure on the part of some trial judges to properly identify, and fully remove, problematic assumptions about sex and gender from their analytical approach to the use …

Negotiator's Nook: The Ins And Outs Of Effective Negotiation, David Spratt

Articles in Law Reviews & Other Academic Journals

No abstract provided.

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 Jimmy’s …

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

David S Caudill

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 …

Legal Ethics And Scientific Testimony: In Defense Of Manufacturing Uncertainty, Deconstructing Expertise And Other Trial Strategies, David Caudill

David S Caudill

No abstract provided.

Speaking Science To Law, Deborah Hussey Freeland

Deborah M. Hussey Freeland

involving a strong scientific consensus, the powerful qualities of scientific knowledge are easily lost in translation. Moreover, even prominent scientists who are committed to providing accurate information to legal fact-finders may suffer reputational harm simply for participating in an adversarial process.

This article analyzes the connection between law and science through the expert witness from the perspectives of epistemology and cross-cultural communication, focusing on the distinct ways in which scientists and lawyers know, value and express their knowledge. When a lawyer meets with a scientific expert witness, more confusion attends their interaction than either likely realizes. Linguistic translation is necessary--but …

Law And Justice On The Small Screen, Jessica Silbey

Books

'Law and Justice on the Small Screen' is a wide-ranging collection of essays about law in and on television. In light of the book's innovative taxonomy of the field and its international reach, it will make a novel contribution to the scholarly literature about law and popular culture. Television shows from France, Canada, the United Kingdom, Germany, Spain and the United States are discussed. The essays are organised into three sections: (1) methodological questions regarding the analysis of law and popular culture on television; (2) a focus on genre studies within television programming (including a subsection on reality television), and …

Testimony For Sale: The Law And Ethics Of Snitches And Experts, George C. Harris

Pepperdine Law Review

No abstract provided.

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

Pepperdine Law Review

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 …

Blaming As A Social Process: The Influence Of Character And Moral Emotion On Blame, Janice Nadler

Faculty Working Papers

For the most part, the law eschews the role of moral character in legal blame. But when we observe an actor who causes harm, legal and psychological blame processes are in tension. Procedures for legal blame assume an assessment of the actor's mental state, and ultimately of responsibility, that is independent of the moral character of the actor. In this paper, I present experimental evidence to suggest that perceptions of intent, foreseeability, and possibly causation can be colored by independent reasons for thinking the actor is a bad person, and are mediated by the experience of negative moral emotion. Our …

Social Media And Legal Ethics, Jonathan I. Ezor

Jonathan I. Ezor

A presentation on the legal issues arising out of attorney use of social media services, including for electronic discovery

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 …

A Witness To Justice, Jessica Silbey

Faculty Scholarship

In the 1988 film The Accused, a young woman named Sarah Tobias is gang raped on a pinball machine by three men while a crowded bar watches. The rapists cut a deal with the prosecutor. Sarah's outrage at the deal convinces the assistant district attorney to prosecute members of the crowd that cheered on and encouraged the rape. This film shows how Sarah Tobias, a woman with little means and less experience, intuits that according to the law rape victims are incredible witnesses to their own victimization. The film goes on to critique what the right kind of witness would …