Evidence Commons^™

Evidence, W. Randall Bassett, Simon A. Rodell, Dmitry M. Epstein

Mercer Law Review

The 2013 term of the United States Court of Appeals for the Eleventh Circuit saw a number of precedential opinions dealing with a wide variety of evidentiary issues. Of particular interest to prosecutors and criminal defense attorneys are two Eleventh Circuit decisions applying the Sixth Amendment's Confrontation Clause and a unanimous United States Supreme Court decision dealing with the Fifth Amendment's' right against self-incrimination as applied to psychiatric evidence. A number of published Eleventh Circuit decisions involved non-constitutional issues under the Federal Rules of Evidence, including balancing probative value against prejudicial effect under Rule 403, authentication of audio and video …

The Conversational Consent Search: How “Quick Look” And Other Similar Searches Have Eroded Our Constitutional Rights, Alexander A. Mikhalevsky

Georgia State University Law Review

One area in which law enforcement agencies have stretched constitutional limits concerns the scope of a suspect’s consent to search his or her vehicle. Police forces across the country have tested the limits of consent by asking vague, conversational questions to suspects with the goal of obtaining a suspect’s consent to search, even though that individual may not want to allow the search or may not know that he or she has the right to deny consent.

Conversational phrases like “Can I take a quick look?” or “Can I take a quick look around?” have “emerg[ed] as . . . …

Appellate Division, Third Department, People V. Smith, Jennifer Belk

Touro Law Review

No abstract provided.

Supreme Court, New York County, Hughes V. Farrey, Eric Pack

Touro Law Review

No abstract provided.

Responding To Independent Juror Research In The Internet Age: Positive Rules, Negative Rules, And Outside Mechanisms, Robbie Manhas

Michigan Law Review

Independent juror research is an old problem for jury trials. It invites potentially prejudicial, irrelevant, and inaccurate information to guide jury decisionmaking. At the same time, independent juror research compromises our adversarial system by preventing parties from responding to all the evidence under consideration and obfuscating the record on which the jury’s decision is made. These threats have only increased in the internet age, where inappropriate sources of information are ubiquitous and where improper access is hard to detect. Nevertheless, courts and parties continue to engage in the same inhibitory measures they have employed for decades. This Note argues for …

How To Avoid The Death Of Your Case By Two Billion Paper Cuts: Encouraging Arbitration As An Alternative Way To Resolve Costly Discovery Disputes, Tzipora Goodfriend-Gelernter

Pepperdine Dispute Resolution Law Journal

This article analyzes the costly effect of electronic information on discovery practice and advocates for the arbitration of discovery disputes. Part II discusses the background of electronic discovery, the evolution of our reliance on ESI (electronically stored information) as part of our modern day discovery practice, and the benefits and detriments of electronic discovery. Part III discusses the effects of our reliance on electronic discovery and the implications of those effects on litigating parties. It examines how the increasingly computer-based world of discovery has increased the cost of litigation disputes significantly and proposes using the patent arbitration model as a …

Toward A Child-Centered Approach To Evaluating Claims Of Alienation In High-Conflict Custody Disputes, Allison M. Nichols

Michigan Law Review

Theories of parental alienation abound in high-conflict custody cases. The image of one parent brainwashing a child against the other parent fits with what we think we know about family dynamics during divorce. The concept of a diagnosable “Parental Alienation Syndrome” (“PAS”) developed as an attempt to explain this phenomenon, but it has been widely discredited by mental health professionals and thus fails the standard for evidentiary admissibility. Nevertheless, PAS and related theories continue to influence the decisions of family courts, and even in jurisdictions that explicitly reject such theories, judges still face the daunting task of resolving these volatile …

Seeing Is Believing: The Anti-Inference Bias, Eyal Zamir Prof., Ilana Ritov, Doron Teichman

Indiana Law Journal

A large body of studies suggests that people are reluctant to impose liability on the basis of circumstantial evidence alone, even when this evidence is more reliable than direct evidence. Current explanations for this pattern of behavior focus on factors such as the tendency of fact finders to assign low subjective probabilities to circumstantial evidence, the statistical nature of such evidence, and the fact that direct evidence can rule out with greater ease any competing factual theory regarding liability. This Article describes a set of four new experiments demonstrating that even when these factors are controlled for, the disinclination to …

On Demonstrative Evidence And Trial Graphics: What Works And What Doesn't, Ryan Flax

Criminal Law Practitioner

No abstract provided.