Evidence Commons^™

Introduction To The Symposium On Digital Evidence, Melinda (M.J.) Durkee, Megiddo Tamar

Scholarship@WashULaw

The past few decades have seen radical advances in the availability and use of digital evidence in multiple areas of international law. Witnesses snap cellphone photos of unfolding atrocities and post them online, while others share updates in real time through messaging apps. Immigration officers search cell phones. Private citizens launch open-source online investigations. Investigators scrape social media posts. Digital experts verify authenticity with satellite geolocation. These new types of evidence and digitally facilitated methods and patterns of evidence gathering and analysis are revolutionizing the everyday practice of international law, drawing in an ever-wider circle of actors who can contribute …

Introduction To The Symposium On Digital Evidence, Melinda (M.J.) Durkee, Tamar Megiddo

Scholarship@WashULaw

The past few decades have seen radical advances in the availability and use of digital evidence in multiple areas of international law. Witnesses snap cellphone photos of unfolding atrocities and post them online, while others share updates in real time through messaging apps. Immigration officers search cell phones. Private citizens launch open-source online investigations. Investigators scrape social media posts. Digital experts verify authenticity with satellite geolocation. These new types of evidence and digitally facilitated methods and patterns of evidence gathering and analysis are revolutionizing the everyday practice of international law, drawing in an ever-wider circle of actors who can contribute …

False Accuracy In Criminal Trials: The Limits And Costs Of Cross Examination, Lisa Kern Griffin

Faculty Scholarship

According to the popular culture of criminal trials, skillful cross-examination can reveal the whole “truth” of what happened. In a climactic scene, defense counsel will expose a lying accuser, clear up the statements of a confused eyewitness, or surface the incentives and biases in testimony. Constitutional precedents, evidence theory, and trial procedures all reflect a similar aspiration—that cross-examination performs lie detection and thereby helps to produce accurate outcomes. Although conceptualized as a protection for defendants, cross-examination imposes some unexplored costs on them. Because it focuses on the physical presence of a witness, the current law of confrontation suggests that an …

Exposing Police Misconduct In Pre-Trial Criminal Proceedings, Anjelica Hendricks

All Faculty Scholarship

This Article presents a unique argument: police misconduct records should be accessible and applicable for pre-trial criminal proceedings. Unfortunately, the existing narrative on the value of police misconduct records is narrow because it exclusively considers how these records can be used to impeach officer credibility at trial. This focus is limiting for several reasons. First, it addresses too few defendants, since fewer than 3% of criminal cases make it to trial. Second, it overlooks misconduct records not directly addressing credibility—such as records demonstrating paperwork deficiencies, failures to appear in court, and “mistakes” that upon examination are patterns of abuse. Finally, …

Evidence, Arrest Circumstances, And Felony Cocaine Case Processing, Jacqueline G. Lee, Alexander Testa

Criminal Justice Faculty Publications and Presentations

Case evidence and situational arrest characteristics are widely speculated to influence courtroom actor decisions, yet such measures are infrequently included in research. Using new data on felony cocaine cases from an urban county in a Southern non-guideline state, this study examines how physical evidence and arrest circumstances affect three stages of case processing: initial charge type, charge reduction, and sentence length. The influence of evidence appeared strongest at the early stage when prosecutors chose the appropriate charge, though certain evidentiary and arrest measures continued to influence later decisions. Charge reductions were driven mostly by legal factors, and while guilt should …

The Costs And Benefits Of Forensics, Brandon L. Garrett

Faculty Scholarship

Supreme Court Justice Louis Brandeis famously wrote that states can be laboratories for experimentation in law and policy. Disappointingly, however, the actual laboratories that states and local governments run are not a home for experimentation. We do not have adequate information about either the costs or the benefits of forensic testing or allocation of resources. Increased spending and expansion of crime laboratories has perversely accompanied growing backlogs. Poor quality control has resulted in a series of audits and even closures of crime laboratories. In response to these problems, however, some laboratories and some entire states have developed new approaches toward …

Catching Killers With Consumer Genetic Information, Angela Hackstadt

University Libraries Faculty Scholarship

In April 2018, Joseph James D'Angelo was arrested as a suspect in the Golden State Killer case. DNA evidence collected at a 1980 crime scene finally shed light on the murderer's identity in early 2018 when investigators turned to GEDMatch, a service that allows users to upload and share DNA data obtained from consumer genetic tests. Consumer genetic testing, DNA collection, and familial DNA searching all raise ethical and privacy concerns. If investigators are using genetic genealogy to solve cold cases, where does that leave consumers?

Self-Policing: Dissemination And Adoption Of Police Eyewitness Policies In Virginia, Brandon L. Garrett

Faculty Scholarship

Professional policing organizations emphasize the importance of the adoption of sound police policies and procedures, but traditionally doing so has been left to individual agencies. State and local government typically does not closely regulate police, and neither federal constitutional rulings nor state law typically sets out in any detail the practices that police should follow. Thus, law enforcement agencies must themselves draft and disseminate policy. This paper presents the results of studies used to assess the adoption of eyewitness identification policies by law enforcement agencies in Virginia. Policymakers were focused on this problem because Virginia experienced a series of DNA …

Introduction, Shari S. Diamond, Richard O. Lempert

Articles

Experts bedeviled the legal system long before seventeenth-century Salem, when the town's good citizens relied on youthful accusers and witchcraft experts to identify the devil's servants in their midst. As in Salem, claims of expertise have often been questioned and objections raised about the bases of expert knowledge. Expertise, then and now, did not have to be based on science; but the importance of science and the testimony of scientific experts has since medieval times been woven into the fabric of the English jurisprudence that Americans inherited. In cases as long ago as 1299 we find examples of courts seeking …

Honesty Without Truth: Lies, Accuracy, And The Criminal Justice Process, Lisa Kern Griffin

Faculty Scholarship

Focusing on “lying” is a natural response to uncertainty but too narrow of a concern. Honesty and truth are not the same thing and conflating them can actually inhibit accuracy. In several settings across investigations and trials, the criminal justice system elevates compliant statements, misguided beliefs, and confident opinions while excluding more complex evidence. Error often results. Some interrogation techniques, for example, privilege cooperation over information. Those interactions can yield incomplete or false statements, confessions, and even guilty pleas. Because of the impeachment rules that purportedly prevent perjury, the most knowledgeable witnesses may be precluded from taking the stand. The …

Introduction: Symposium On “Forensics, Statistics, And Law”, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

Sexual Consent And Disability, Jasmine E. Harris

All Faculty Scholarship

Our nation is engaged in deep debate over sexual consent. But to date the discussion has overlooked sexual consent’s implications for a key demographic: people with mental disabilities, for whom the reported incidence of sexual violence is three times that of the nondisabled population. Even as popular debate overlooks the question of sexual consent for those with disabilities, contemporary legal scholars critique governmental overregulation of this area, arguing that it diminishes the agency and dignity of people with disabilities. Yet in defending their position, these scholars rely on empirical data from over twenty years ago, when disability and sexual assault …

Neuroscience In Forensic Contexts: Ethical Concerns, Stephen J. Morse

All Faculty Scholarship

This is a chapter in a volume, Ethics Challenges in Forensic Psychiatry and Psychology Practice, edited by Ezra E. H. Griffith, M.D. and to be published by Columbia University Press. The chapter addresses whether the use of new neuroscience techniques, especially non-invasive functional magnetic resonance imaging (fMRI) and the data from studies employing them raise new ethical issues for forensic psychiatrists and psychologists. The implicit thesis throughout is that if the legal questions, the limits of the new techniques and the relevance of neuroscience to law are properly understood, no new ethical issues are raised. A major ethical lapse …

Actions Speak Louder Than Images: The Use Of Neuroscientific Evidence In Criminal Cases, Stephen J. Morse

All Faculty Scholarship

This invited commentary for Journal of Law & the Biosciences considers four empirical studies previously published in the journal of the reception of neuroscientific evidence in criminal cases in the United States, Canada, England and Wales, and the Netherlands. There are conceded methodological problems with all, but the data are nonetheless instructive and suggestive. The thesis of the comment is that the courts are committing the same errors that have bedeviled the reception of psychiatric and psychological evidence. There is insufficient caution about the state of the science, and more importantly, there is insufficient understanding of the relevance of the …

Conviction Review Units: A National Perspective, John Hollway

All Faculty Scholarship

Over the past 25 years, Americans have become increasingly aware of a vast array of mistakes in the administration of justice, including wrongful convictions, situations where innocent individuals have been convicted and incarcerated for crimes they did not commit. The most prevalent institutional response by prosecutors to address post-conviction fact-based claims of actual innocence is the Conviction Review Unit (CRU), sometimes called the Conviction Integrity Unit. Since the creation of the first CRU in the mid-2000s, more than 25 such units have been announced across the country; more than half of these have been created in the past 24 months. …

Dna And Distrust, Kerry Abrams, Brandon L. Garrett

Faculty Scholarship

Over the past three decades, government regulation and funding of DNA testing has reshaped the use of genetic evidence across various fields, including criminal law, family law, and employment law. Courts have struggled with questions of when and whether to treat genetic evidence as implicating individual rights, policy trade-offs, or federalism problems. We identify two modes of genetic testing: identification testing, used to establish a person’s identity, and predictive testing, which seeks to predict outcomes for a person. Judges and lawmakers have often drawn a bright line at predictive testing, while allowing uninhibited identity testing. The U.S. Supreme Court in …

The Role Of Support In Sexual Decision-Making For People With Intellectual And Developmental Disabilities, Jasmine E. Harris

All Faculty Scholarship

In response to Alexander Boni-Saenz, Sexuality and Incapacity, 76 Ohio St. L.J. 1201 (2015).

This Response analyzes three aspects of Boni-Saenz’s cognition-plus test. First, I position his normative and prescriptive proposals within an existing, robust conversation regarding legal capacity, SDM, and the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Scholars of international human rights law offer valuable insights on challenges of redefining legal capacity and implementing SDM. Advocates continue to debate and contest SDM as a practical, administrable, and measurable alternative. Second, I identify potential normative implications of incorporating SDM into domestic law, specifically for …

Decision-Making In The Dark: How Pre-Trial Errors Change The Narrative In Criminal Jury Trials, Kara Mackillop, Neil Vidmar

Faculty Scholarship

Over the past decade and a half, a great deal of attention has rightfully been given to the issue of wrongful convictions. In 2003, Jim Dwyer, Peter Neufeld and Barry Scheck published Actual Innocence, an eyeopening treatise on the reality of wrongful convictions in the United States. In the years since, more than 1400 innocent persons have been exonerated, and a very diverse research community of attorneys, academics, social scientists, and activists has developed in response to the realization offlaws in our criminal justice system. In 2012, Brandon Garrett's Convicting the Innocent quantitatively evaluated the first 250 DNA exonerations and …

Neuroprediction: New Technology, Old Problems, Stephen J. Morse

All Faculty Scholarship

Neuroprediction is the use of structural or functional brain or nervous system variables to make any type of prediction, including medical prognoses and behavioral forecasts, such as an indicator of future dangerous behavior. This commentary will focus on behavioral predictions, but the analysis applies to any context. The general thesis is that using neurovariables for prediction is a new technology, but that it raises no new ethical issues, at least for now. Only if neuroscience achieves the ability to “read” mental content will genuinely new ethical issues be raised, but that is not possible at present.

Catalogs, Gideon Parchomovsky, Alex Stein

All Faculty Scholarship

It is a virtual axiom in the world of law that legal norms come in two prototypes: rules and standards. The accepted lore suggests that rules should be formulated to regulate recurrent and frequent behaviors, whose contours can be defined with sufficient precision. Standards, by contrast, should be employed to address complex, variegated, behaviors that require the weighing of multiple variables. Rules rely on an ex ante perspective and are therefore considered the domain of the legislator; standards embody a preference for ex post, ad-hoc, analysis and are therefore considered the domain of courts. The rules/standards dichotomy has become a …

Women As Expert Witnesses: A Review Of The Literature, Tess M. S. Neal

University of Nebraska Public Policy Center: Publications

This review of women’s participation in the legal system as expert witnesses examines the empirical literature on the perceived credibility and persuasiveness of women compared with men experts. The effects of expert gender are complex and sometimes depend on the circumstances of the case. Some studies find no differences, some find favorable effects for women and others for men, and still others find that expert gender interacts with other circumstances of the case. The findings are interpreted through social role theory and the role incongruity theory of prejudice. Future directions for research are identified and implications are considered for attorneys …

What Will We Lose If The Trial Vanishes?, Robert P. Burns

Faculty Working Papers

The number of trials continues to decline andfederal civil trials have almost completely disappeared. This essay attempts to address the significance of this loss, to answer the obvious question, "So what?" It argues against taking a resigned or complacent attitude toward an important problem for our public culture. It presents a short description of the trial's internal structure, recounts different sorts of explanations, and offers an inventory of the kinds of wounds this development would inflict.

Potential Responses To The Melendez-Diaz Line Of Cases, Richard D. Friedman

Articles

Criminal prosecution is increasingly dependent on proof of the results of forensic laboratory tests. They are used, for example, to prove that a given substance contains cocaine; the prove what a driver’s blood alcohol content was; and to demonstrate that the DNA profile of some substance found at the crime scene matches that of the accused.

In Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), the United States Supreme Court resolved a question that had divided the lower courts in the wake of Crawford v. Washington, 541 U.S. 36 (2004). The Melendez-Diaz Court held by a 5-4 vote that forensic laboratory …

Seeking Truth On The Other Side Of The Wall: Greenleaf’S Evangelists Meet The Federal Rules, Naturalism, And Judas, Nancy J. Kippenhan

Faculty Publications and Presentations

An inquiry that seeks truth by accepting only natural answers excludes the possibility of the sacred or supernatural, building a wall that forecloses a complete exploration for the truth it seeks. Without analysis, critics dismiss sources presenting supernatural explanations, and those who believe sacred works have no factual foundation accept without investigation any popular theory that appears attractive. The rules of evidence expressly seek truth, wherever it lies. Noted legal scholar Simon Greenleaf used evidentiary principles to demonstrate the factual credibility of the Gospels in his Testimony of the Evangelists. This Article examines Greenleaf’s analysis, applying current rules of evidence …

Documentation, Documentary, And The Law: What Should Be Made Of Victim Impact Videos?, Regina Austin

All Faculty Scholarship

Since the Supreme Court sanctioned the introduction of victim impact evidence in the sentencing phase of capital cases in Payne v. Tennessee, 501 U.S. 808 (1991), there have been a number of reported decisions in which that evidence has taken the form of videos composed of home-produced still photographs and moving images of the victim. Most of these videos were first shown at funerals or memorial services and contain music appropriate for such occasions. This article considers the probative value of victim impact videos and responds to the call of Justice John Paul Stevens, made in a statement regarding the …

The Death Of The American Trial, Robert P. Burns

Faculty Working Papers

This short essay is a summary of my assessment of the meaning of the "vanishing trial" phenomenon. It addresses the obvious question: "So what?" It first briefly reviews the evidence of the trial's decline. It then sets out the steps necessary to understand the political and social signficance of our vastly reducing the trial's importance among our modes of social ordering. The essay serves as the Introduction to a book, The Death of the American Trial, soon to be published by the University of Chicago Press.

How Accountability-Based Policing Can Reinforce - Or Replace - The Fourth Amendment Exclusionary Rule, David A. Harris

Articles

In Hudson v. Michigan, a knock-and-announce case, Justice Scalia's majority opinion came close to jettisoning the Fourth Amendment exclusionary rule. The immense costs of the rule, Scalia said, outweigh whatever benefits might come from it. Moreover, police officers and police departments now generally follow the dictates of the Fourth Amendment, so the exclusionary rule has outlived the reasons that the Court adopted it in the first place. This viewpoint did not become the law because Justice Kennedy, one member of the five-vote majority, withheld his support from this section of the opinion. But the closeness of the vote on …

The Science Of Dna Identification: From The Laboratory To The Courtroom (And Beyond), David H. Kaye

Journal Articles

This article focuses on sequences of DNA base-pairs, which are becoming increasingly important in the field of law. These DNA sequences are used by forensic scientists to discover evidence such as blood stains, semen, saliva, and hair, and has become highly useful in the courtroom with regard to exonerating the innocent and convicting the guilty. Part I of the article examines how courts may (or may not) admit DNA evidence in court through four phases: uncritical acceptance; serious challenges to analytical methods and statistical interpretation of the results; renewed acceptance of DNA evidence; and acceptance of advance systems of DNA …

Behavioral Genetics Research And Criminal Dna Databanks, David H. Kaye

Journal Articles

This article examines the current concerns about whether DNA databases may be used for actions other than to apprehend criminals, such as genetic research, in particular, searching for a "crime gene". Part II considers the perspective that these databases may be useful for research. The information within a DNA sample consists of a limited number of DNA base-pair variations, which are important to identification, but not necessarily to genetic research. However, while it may be difficult to conduct genetic research, it is not impossible. Part III examines state and federal database legislation. There are examples of three states' statutes and …

The Evidentiary Theory Of Blackmail: Taking Motives Seriously, Mitchell N. Berman

All Faculty Scholarship

No abstract provided.