Evidence Commons^™

The Aba Guidelines And The Norms Of Capital Defense Representation, Russell Stetler, W. Bradley Wendel

W. Bradley Wendel

The ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (“Guidelines”), as revised in 2003, continue to stand as the single most authoritative summary of the prevailing professional norms in the realm of capital defense practice. Hundreds of court opinions have cited the Guidelines. They have been particularly useful in helping courts to assess the investigation and presentation of mitigating evidence in death penalty cases. This Article will discuss how these Guidelines have come to reflect prevailing professional norms in this critical area of capital defense practice and how that practice has developed in the …

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

Paul Milich

No abstract provided.

Hiding The Elephant (How The Psychological Techniques Of Magicians Can Be Used To Manipulate Witnesses At Trial), Sydney A. Beckman

Sydney A. Beckman

In 1917 Harry Houdini performed a single, yet incredible, illusion; “[u]nder the bright spotlights of New York’s Theatre Hippodrome, he made a live elephant disappear.” In 1983 David Copperfield made the Statue of Liberty Disappear in front of both a live and a national television audience. To be sure, neither the elephant nor Lady Liberty actually disappeared. But from the perspective of the audience they did, indeed, disappear. So which is correct? Did they, or didn’t they?

Trial Lawyers and Magicians share many of the same talents and skills. Misdirection, misinformation, selective-attention, ambiguity, verbal manipulation, body language interpretation, and physical …

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 …

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 …

Panelist, Can Law Schools Prepare Students To Be Practice Ready?, R. Michael Cassidy

R. Michael Cassidy

No abstract provided.

Strategic Austerity: How Some Law School Affordability Initiatives Could Actually Improve Learning Outcomes, R. Michael Cassidy

R. Michael Cassidy

The legal profession is facing profound and perhaps irreversible changes. Whether you view these striking demographics as a “crisis” likely depends on the location of your perch. If you are a tenured professor at a T14 law school or a senior partner at an NLJ 250 firm, you may view the trends we have been discussing today as cyclical corrections. If you are an unemployed graduate looking for work or an untenured professor at a lower-tier school that is struggling to stay afloat, you may be more likely to view these trends as permanent and paradigm shifting.

While applications to …

Integrating Professional And Personal Values, R. Michael Cassidy

R. Michael Cassidy

No abstract provided.

Beyond Practical Skills: Nine Steps For Improving Legal Education Now, R. Michael Cassidy

R. Michael Cassidy

It has been five years since the Carnegie Report “Educating Lawyers” called upon law schools to adopt an integrated approach to professional education that teaches practical skills and professionalism across the curriculum. Yet so far, very few schools have responded to this clarion call for wholesale curricular reform. Considering the inertial effect of traditional law school pedagogy and the institutional impediments to change, this delay is not surprising. A fully integrated approach to teaching professional skills (such as the medical school model) would require major resource reallocations, realignment of teaching responsibilities, redesign of courses, and a change to graduation requirements. …

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 Model Penal Code’S Wrong Turn: Renunciation As A Defense To Criminal Conspiracy, R. Michael Cassidy

R. Michael Cassidy

While the Model Penal Code was certainly one the most influential developments in criminal law in the past century, the American Law Institute (ALI) took a seriously wrong turn by recognizing a defense of “renunciation” to the crime of conspiracy. Under the Model Penal Code formulation, a member of a conspiracy who later disavows the agreement and thwarts its objective (for example, by notifying authorities of the planned crime in order to prevent its completion) is afforded a complete defense to conspiracy liability. This defense has enormous implications for crimes involving national security and terrorism, which are typically planned covertly …

Virtue And Criminal Punishment, R. Michael Cassidy

R. Michael Cassidy

No abstract provided.

Personal Use Of Workplace Computers: A Threat To Otherwise Privileged Communications, Louise Hill

Louise L Hill

This article is an adaptation of "Gone but Not Forgotten: When Privacy, Policy and Privilege Collide" originally published in the Northwestern Journal of Technology and Intellectual Property, Volume 9, Issue 8, 2011

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 …

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

Justicia Militar Y Derechos Humanos, Claudio Fuentes Maureira

Claudio Fuentes Maureira

En diciembre de 2010 se publicó una reforma a la justicia militar que excluyó a los civiles de su jurisdicción, lo que fue celebrado por el Gobierno como un significativo paso hacia la democratización de esta jurisdicción, la misma que le valió a Chile una condena internacional en 2005. No obstante, mantuvo la competencia de tribunales militares para conocer delitos cometidos por miembros de las Fuerzas Armadas y de Orden, lo cual sigue estando por debajo de los estándares que obligan a Chile. A ello se suma que aún está pendiente la reforma orgánica y procedimental de la justicia militar, …

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 …

El Manejo De La Incertidumbre Judicial: La Construcción De La Duda Razonable En El Sistema Procesal Penal / Management Of Judicial Uncertainty: The Construction Of The Reasonable Doubt Standard Under The Criminal Procedure System, Claudio Fuentes Maureira

Claudio Fuentes Maureira

The Chilean criminal procedure reform introduced to the Chilean legal culture many foreign institutions. In every case the idea behind it was to change specific behaviours of the old system. One of these institutions was the concept or idea of the standard of proof, mainly the introduction in article 340 of the current Code of Criminal Procedure of the beyond reasonable doubt standard.

The paper explores, ten years after the adoption of the new system, how the the tribunals have understood and incorporated this concept, and specifically the beyond reasonable doubt standard. In terms of methodology the paper focuses, in …

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 …

Comentario Del Fallo De La Corte De Apelaciones De Concepción Sobre Exclusión Probatoria En Juicios De Familia: ¿Realidad O Ficción?, Claudio Fuentes Maureira

Claudio Fuentes Maureira

El presente documento destaca la relevancia de una reciente sentencia de la Corte de Apelaciones de Concepción en materia de derecho procesal de Familia. En ella la Corte establece una sana línea jurisprudencial que fija una expectativa de conducta por parte del juez de familia respecto de cómo deben encarar el incidente de exclusión probatoria que se da en el contexto de la audiencia preparatoria. Asimismo, qué tipo de razonamiento deben llevar a cabo para resolver la solicitud de exclusión planteada y cuáles son los mínimos argumentos que su decisión de exclusión debe considerar.

Prosecutorial Ethics, R. Michael Cassidy

R. Michael Cassidy

No abstract provided.

Consideraciones Entorno A La Idea Del Estándar De Convicción En El Proceso Civil / Some Thoughts About The Standard Of Proof In Civil Proceedings, Claudio Fuentes Maureira

Claudio Fuentes Maureira

The paper’s main goal is to present to the Chilean legal community the concept and role of the standard of proof. Chile’s evidentiary system is derived from the Spanish legal tradition and specially the legal regulation of the evidence, in terms of its admissibility but also in terms of its weight. A concept of the standard was not needed until the judicial world start dealing with new evidentiary principles such us the free proof and sound criticism of the evidence.

In general terms the idea of the standard of proof pretends to answer a specific question: How much evidence is …

El Derecho De Sucesiones Se Debe Atemperar A Los Cambios De La Sociedad Del Siglo Xxi, Edward Ivan Cueva

Edward Ivan Cueva

No abstract provided.

Plea Bargaining, Discovery, And The Intractable Problem Of Impeachment Disclosures, R. Michael Cassidy

R. Michael Cassidy

In a criminal justice system where guilty pleas are the norm and trials the rare exception, the issue of how much discovery a defendant is entitled to before allocution has immense significance. This article examines the scope of a prosecutor’s obligation to disclose impeachment information before a guilty plea. This question has polarized the criminal bar and bedeviled the academic community since the Supreme Court’s controversial decision in United States v. Ruiz (2002). A critical feature of the debate has been the enduring schism between a prosecutor’s legal and ethical obligations – a gulf that the American Bar Association recently …

Plea Bargainng, Discovery, And Waivers, R. Michael Cassidy

R. Michael Cassidy

No abstract provided.

Limites A La Vigencia Del Principio Contradictorio En Los Juicios De Familia / Limits To The Adversarial Ideal In The Family Courts, Claudio Fuentes Maureira

Claudio Fuentes Maureira

The relevance of the adversarial ideal in the design of judicial proceedings is due to two major ideas: the right to a proper defence for the parties and the important role that the parties perform during the questioning and the control of the other party’s case. Once the relevance of the adversarial ideal is acknowledged, one could ask if this ideal is properly welcomed under the family procedure stated in the law. I propose that in order to answer this question properly, it is pertinent to use some sort of instrument to measure the amount of the adversarialness that the …

Informe De Funcionamiento De Los Tribunales De Familia De Santiago / Report On The Family Courts Of Santiago City, Claudio Fuentes Maureira, Felipe Marín Verdugo, Erick Rios Leiva

Claudio Fuentes Maureira

In October 2005, the Chilean government launched the new family courts. The new tribunals were the second major judicial reform that Chile’s executive power supported and it was a huge failure. The system collapsed after a couple of months, and in the beginning of the 2006, the executive branch called for a group of academics and experts to elaborate some kind of response.

After years of problems the authorities arrived at identifying the main problems, and because of that in September 2008 a new bill was enacted, containing modifications to the family law system. Also, the Supreme Court of Chile …

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. …

Panelist, Developments In Criminal Procedure, R. Michael Cassidy

R. Michael Cassidy

No abstract provided.

Lawyers And Fundamental Moral Responsibility, R. Michael Cassidy, Daniel Coquillette, Judith Mcmorrow

R. Michael Cassidy

The materials in this book are organized around specific problems designed to encourage and focus class discussion. There are two other inherent organizing principles of the materials in this book. First, the philosophical materials are in the rough order in which the ideas themselves evolved in the history of philosophy. The materials have been revised since the book first was published in 1995 to address some of the burning ethical problems of our day, including terrorism, national security, and abuse of government power. The Second Edition also is reorganized to assist students to better appreciate philosophical theories underpinning discourse about …