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Evidence Commons

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University of Baltimore Law

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Full-Text Articles in Evidence

Hearsay And Abuse: Where Past Is Present, The Hon. Andrea M. Leahy, Jared A. Mclain Esq. Jan 2018

Hearsay And Abuse: Where Past Is Present, The Hon. Andrea M. Leahy, Jared A. Mclain Esq.

University of Baltimore Law Review

No abstract provided.


Hearsay And The Confrontation Clause (2017), Lynn Mclain May 2017

Hearsay And The Confrontation Clause (2017), Lynn Mclain

All Faculty Scholarship

This material is a part of a lecture delivered at the Maryland Judicial Center on May 11, 2017. It is an update of previous versions available at the following locations:

2016: http://scholarworks.law.ubalt.edu/all_fac/955/

2012: http://scholarworks.law.ubalt.edu/all_fac/924/

The material is a series of flowcharts that explain the nuances of hearsay law and the confrontation clause under Maryland law.


"A Middle Temperature Between The Two": Exploring Intermediate Remedies For The Failure To Comply With Maryland's Eyewitness Identification Statute, Marc A. Desimone Jr. May 2017

"A Middle Temperature Between The Two": Exploring Intermediate Remedies For The Failure To Comply With Maryland's Eyewitness Identification Statute, Marc A. Desimone Jr.

University of Baltimore Law Review

This article addresses what remedies should be available to a criminal defendant in Maryland who has been identified in an extrajudicial identification procedure that does not comply with the present statutory requirements. Part II of this article provides an overview of the present due process test for evaluating the admissibility of extrajudicial eyewitness identifications, the present Maryland iteration of that test, and alternatives to that approach that have been adopted in other jurisdictions. Part III reviews recent legislative reforms to extrajudicial identification procedures, which are required in Maryland as of January 1, 2016. Section IV.A of this article argues ...


Recent Development: Seley-Radtke V. Hosmane: The Standard Of Proof Requirement In A Purely Private Defamation Action For An Individual Asserting A Common Law Conditional Privilege Is Preponderance Of The Evidence, Makeda Curbeam Jan 2017

Recent Development: Seley-Radtke V. Hosmane: The Standard Of Proof Requirement In A Purely Private Defamation Action For An Individual Asserting A Common Law Conditional Privilege Is Preponderance Of The Evidence, Makeda Curbeam

University of Baltimore Law Forum

The Court of Appeals of Maryland held that a party seeking to overcome a common law conditional privilege in a purely private defamation suit must do so by a preponderance of the evidence. Seley-Radtke v. Hosmane, 450 Md. 468, 474, 149 A.3d 573, 576 (2016). The court also held that evidentiary issues not addressed by the court of special appeals are not subject to review by the court of appeals. Id. at 510, 149 A.3d at 598 (citing Md. R. 8- 131(b)(1)). Further, the court held that prejudicial evidence irrelevant to a claim is not admissible ...


Hearsay And The Confrontation Clause, Lynn Mclain Oct 2016

Hearsay And The Confrontation Clause, Lynn Mclain

All Faculty Scholarship

This speech was delivered to the Wicomico Co. Bar Association on October 28th, 2016. It is an updated version of the 2012 speech, available at http://scholarworks.law.ubalt.edu/all_fac/924/ .

Overview: Only an out-of-court statement ("OCS") offered for the truth of the matter that was being asserted by the out-of-court declarant ("declarant") at the time when s/he made the OCS ("TOMA") = hearsay ("HS"). If evidence is not HS, the HS rule cannot exclude it. The Confrontation Clause also applies only to HS, but even then, only to its subcategory comprising "testimonial hearsay." Cross-references to "MD-EV" are to ...


Recent Development: Peterson V. State: Limitations On Defense Cross-Examination Are Permitted When The Testimony Lacks A Factual Foundation, Is Overly Prejudicial, Or Has Not Been Adequately Preserved, Meghan E. Ellis Jan 2016

Recent Development: Peterson V. State: Limitations On Defense Cross-Examination Are Permitted When The Testimony Lacks A Factual Foundation, Is Overly Prejudicial, Or Has Not Been Adequately Preserved, Meghan E. Ellis

University of Baltimore Law Forum

The Court of Appeals of Maryland held that the defendant’s right to confrontation was not violated when the defense was precluded from cross-examining a witness about hallucinations and his potential sentence prior to entering into a plea agreement. Peterson v. State, 444 Md. 105, 153-54, 118 A.3d 925, 952-53 (2015). The court found that the defendant failed to preserve the issue of a witness’s expectation of benefit with respect to pending charges, and failed to show sufficient factual foundation for a cross-examination regarding the expectation. Id. at 138-39, 118 A.3d at 944. In addition, the court ...


Dna By The Entirety, Natalie Ram May 2015

Dna By The Entirety, Natalie Ram

All Faculty Scholarship

The law fails to accommodate the inconvenient fact that an individual’s identifiable genetic information is involuntarily and immutably shared with her close genetic relatives. Legal institutions have established that individuals have a cognizable interest in controlling genetic information that is identifying to them. The Supreme Court recognized in Maryland v. King that the Fourth Amendment is implicated when arrestees’ DNA is analyzed, and the Genetic Information Nondiscrimination Act protects individuals from genetic discrimination in the employment and health-insurance markets. But genetic information is not like other forms of private or personal information because it is shared — immutably and involuntarily ...


Serial: The Presumption Of Guilt, Staff Editors Jan 2015

Serial: The Presumption Of Guilt, Staff Editors

University of Baltimore Law Review

Below is a transcript of a panel discussion with key participants in the defense of Adnan Syed which inspired the popular Serial podcast. The Student Bar Association of the University of Baltimore School of Law hosted the event on February 12, 2015.


Recent Development: Sublet V. State: Authentication Of Evidence From Social Networking Websites Requires A Trial Judge To Find Sufficient Proof From Which A Reasonable Juror Could Conclude That The Evidence Is What The Proponent Claims It To Be, Denise A. Blake Jan 2015

Recent Development: Sublet V. State: Authentication Of Evidence From Social Networking Websites Requires A Trial Judge To Find Sufficient Proof From Which A Reasonable Juror Could Conclude That The Evidence Is What The Proponent Claims It To Be, Denise A. Blake

University of Baltimore Law Forum

The Court of Appeals of Maryland, in three consolidated cases, held that a trial judge must determine that evidence from a social networking website meets the “reasonable juror” standard of authentication as a condition precedent to admissibility. Sublet v. State, 442 Md. 632, 678, 113 A.3d 695, 722 (2015). This standard requires a preliminary determination by the trial judge that a reasonable juror could find the evidence is what the proponent claims it to be.


Recent Development: Hailes V. State: The State May Appeal A Trial Court's Ruling Excluding A Dying Declaration; The Length Of Time Between A Declarant's Statement And Death Is Irrelevant In A Dying Declaration Analysis; The Confrontation Clause Is Inapplicable To Dying Declarations, Lauren A. Panfile Jan 2015

Recent Development: Hailes V. State: The State May Appeal A Trial Court's Ruling Excluding A Dying Declaration; The Length Of Time Between A Declarant's Statement And Death Is Irrelevant In A Dying Declaration Analysis; The Confrontation Clause Is Inapplicable To Dying Declarations, Lauren A. Panfile

University of Baltimore Law Forum

The Court of Appeals of Maryland held that the State may appeal a trial court’s suppression of a victim’s dying declaration based on the legislative intent of Section 12-302(c)(4)(i) of the Maryland Code, Courts and Judicial Procedure Article (“section 12-302(c)(4)(i)”). Hailes v. State, 442 Md. 488, 497-98, 113 A.3d 608, 613-14 (2015). The court further held that a victim’s statement, made while on life support, was a dying declaration regardless of the fact that the victim died two years after making the statement. Id. at 506, 113 A.3d at ...


Foreword, J. Amy Dillard Jan 2015

Foreword, J. Amy Dillard

University of Baltimore Law Review

No abstract provided.


Comments: Hipaa Confusion: How The Privacy Rule Authorizes "Informal" Discovery, Myles J. Poster Jan 2015

Comments: Hipaa Confusion: How The Privacy Rule Authorizes "Informal" Discovery, Myles J. Poster

University of Baltimore Law Review

No abstract provided.


Using The Dna Testing Of Arrestees To Reevaluate Fourth Amendment Doctrine, Steven P. Grossman Jan 2015

Using The Dna Testing Of Arrestees To Reevaluate Fourth Amendment Doctrine, Steven P. Grossman

All Faculty Scholarship

With the advent of DNA testing, numerous issues have arisen with regard to obtaining and using evidence developed from such testing. As courts have come to regard DNA testing as a reliable method for linking some people to crimes and for exonerating others, these issues are especially significant. The federal government and most states have enacted statutes that permit or direct the testing of those convicted of at least certain crimes. Courts have almost universally approved such testing, rejecting arguments that obtaining and using such evidence violates the Fourth Amendment.

More recently governments have enacted laws permitting or directing the ...


Dna Helps Clear Man's Name From Rape Charge After 24 Years, Colin Starger Jul 2014

Dna Helps Clear Man's Name From Rape Charge After 24 Years, Colin Starger

All Faculty Scholarship

No abstract provided.


Comments: Trending: Proportionality In Electronic Discovery In Common Law Countries And The United States' Federal And State Courts, Laura Hunt Jan 2014

Comments: Trending: Proportionality In Electronic Discovery In Common Law Countries And The United States' Federal And State Courts, Laura Hunt

University of Baltimore Law Review

No abstract provided.


Comments On Maryland V. King In 'U.S. Supreme Court To Hear Arguments Over Md. Dna Case: Justices' Decision Will Have National Implications On Future Crime-Fighting Procedures', Colin Starger Feb 2013

Comments On Maryland V. King In 'U.S. Supreme Court To Hear Arguments Over Md. Dna Case: Justices' Decision Will Have National Implications On Future Crime-Fighting Procedures', Colin Starger

All Faculty Scholarship

No abstract provided.


Comments: Functional Magnetic Resonance Imaging And The Law Today: The Brain Is Reliable As A Mitigating Factor, But Unreliable As An Aggravating Factor Or As A Method Of Lie Detection, Kristina E. Donahue Jan 2013

Comments: Functional Magnetic Resonance Imaging And The Law Today: The Brain Is Reliable As A Mitigating Factor, But Unreliable As An Aggravating Factor Or As A Method Of Lie Detection, Kristina E. Donahue

University of Baltimore Law Review

No abstract provided.


Flow Chart For Hearsay And The Confrontation Clause 'Crawford Through Bernadyn' (April 18, 2012). University Of Baltimore School Of Law Legal Studies Research Paper, Lynn Mclain Apr 2012

Flow Chart For Hearsay And The Confrontation Clause 'Crawford Through Bernadyn' (April 18, 2012). University Of Baltimore School Of Law Legal Studies Research Paper, Lynn Mclain

All Faculty Scholarship

A series of flowcharts outline the nuances of hearsay law and the Confrontation Clause.


Fortuity And Forensic Familial Identification, Natalie Ram Apr 2011

Fortuity And Forensic Familial Identification, Natalie Ram

All Faculty Scholarship

On July 7, 2010, Los Angeles police announced the arrest of a suspect in the Grim Sleeper murders, so called because of a decade-long hiatus in killings. The break in the case came when California searched its state DNA database for a genetic profile similar, but not identical, to the killer’s. DNA is inherited in specific and predictable ways, so a source-excluding partial match might indicate that a close genetic relative of the matching offender was the Grim Sleeper. California’s apparent success in this case has intensified interest in policymaking for source-excluding partial matching. To date, however, little ...


"Sweet Childish Days": Using Developmental Psychology Research In Evaluating The Admissibility Of Out-Of-Court Statements By Young Children, Lynn Mclain Jan 2011

"Sweet Childish Days": Using Developmental Psychology Research In Evaluating The Admissibility Of Out-Of-Court Statements By Young Children, Lynn Mclain

All Faculty Scholarship

A three-year-old child, while being bathed by her babysitter, innocently mentions that her “pee-pee” hurts. When the babysitter asks the child how she hurt it, she says, “Uncle Ernie (her mother’s boyfriend) told me not to tell.” A subsequent medical examination reveals that the child has gonorrhea, a sexually transmitted disease.

By the time of trial, the child is four and-a-half-years old. When questioned by the trial judge, she cannot explain to the judge’s satisfaction, “the difference between the truth and a lie.” Moreover, she has no long term memory of the incident. The judge rules the child ...


"I'M Going To Dinner With Frank": Admissibility Of Nontestimonial Statements Of Intent To Prove The Actions Of Someone Other Than The Speaker—And The Role Of The Due Process Clause, Lynn Mclain Nov 2010

"I'M Going To Dinner With Frank": Admissibility Of Nontestimonial Statements Of Intent To Prove The Actions Of Someone Other Than The Speaker—And The Role Of The Due Process Clause, Lynn Mclain

All Faculty Scholarship

A woman tells her roommate that she is going out to dinner with Frank that evening. The next morning her battered body is found along a country road outside of town. In Frank’s trial for her murder, is her statement to her roommate admissible to place Frank with her that night? Since the Court’s 2004 Crawford decision, the confrontation clause is inapplicable to nontestimonial hearsay such as this.

American jurisdictions are widely divided on the question of admissibility under their rules of evidence, however. Many say absolutely not. A sizeable number unequivocally say yes. A small number say ...


Criminal Practice Developments In Maryland Evidence Law And Confrontation Clause Jurisprudence, Lynn Mclain Jul 2010

Criminal Practice Developments In Maryland Evidence Law And Confrontation Clause Jurisprudence, Lynn Mclain

All Faculty Scholarship

This paper was prepared as a handout for a presentation given on July 9th., 2010 to staff at the Harford County Public Defender’s Office, Bel Air, MD. The specific sections of the paper are: Discovery of Witnesses’ Identities: Protective Orders; Jury Selection; Communications from Jurors; Preservation of the Record: Rules 4-323, 5-103, and 5-702; Judicial Notice: Rule 5-201; Balancing Risk of Unfair Prejudice and Confusion against Probative Value: Rule 5-403; Character Evidence; Fifth Amendment Privilege: Miranda; Competency of Witnesses: Rule 5-601; Impeachment by Prior Convictions: Rule 5-609; Questioning by Court: Rule 5-614; Expert Testimony: Rules 5-702 – 5-706; Hearsay; The ...


Admissibility Of Scientific Evidence And Expert Testimony: One Potato, Two Potato, Daubert, Frye, Lynn Mclain Sep 2009

Admissibility Of Scientific Evidence And Expert Testimony: One Potato, Two Potato, Daubert, Frye, Lynn Mclain

All Faculty Scholarship

This handout from a Maryland Judicial Institute presentation covers the Maryland Rules concerning expert testimony and the ways they differ from the Federal Rules of Evidence.


Out-Of-Court Statements: The Concentric Hoops Of The Hearsay Rule And The Confrontation Clause, Lynn Mclain Sep 2009

Out-Of-Court Statements: The Concentric Hoops Of The Hearsay Rule And The Confrontation Clause, Lynn Mclain

All Faculty Scholarship

This 44 page booklet created for the Maryland Judicial Institute outlines hearsay evidence, how hearsay overlaps with the Confrontation Clause, and the exceptions to hearsay under Maryland law.


The Dna Of An Argument: A Case Study In Legal Logos, Colin Starger Jul 2009

The Dna Of An Argument: A Case Study In Legal Logos, Colin Starger

All Faculty Scholarship

This Article develops a framework for analyzing legal argument through an in-depth case study of the debate over federal actions for post-conviction DNA access. Building on the Aristotelian concept of logos, this Article maintains that the persuasive power of legal logic depends in part on the rhetorical characteristics of premises, inferences, and conclusions in legal proofs. After sketching a taxonomy that distinguishes between prototypical argument logo (formal, empirical, narrative, and categorical), the Article applies its framework to parse the rhetorical dynamics at play in litigation over post-conviction access to DNA evidence under 42 U.S.C. § 1983, focusing in particular ...


Independent And Adequate: Maryland's State Exclusionary Rule For Illegally Obtained Evidence, Carrie Leonetti Jan 2009

Independent And Adequate: Maryland's State Exclusionary Rule For Illegally Obtained Evidence, Carrie Leonetti

University of Baltimore Law Review

No abstract provided.


The 'Double Feature' Of Hearsay And The Confrontation Clause, Plus Coming Attractions, Lynn Mclain Mar 2008

The 'Double Feature' Of Hearsay And The Confrontation Clause, Plus Coming Attractions, Lynn Mclain

All Faculty Scholarship

Class handout outlining the interaction between the evidence rule of hearsay and the Confrontation Clause of the Constitution.


Fact, Fiction And Proof In The 21st Century: Evidence And Credibility For Fact Finding By Administrative Law Judges, Lynn Mclain Oct 2007

Fact, Fiction And Proof In The 21st Century: Evidence And Credibility For Fact Finding By Administrative Law Judges, Lynn Mclain

All Faculty Scholarship

Handout from a panel at the NAALJ Annual Conference covering credibility.


Hearsay Law: Recent Developments In Maryland And In The Supreme Court, Lynn Mclain Oct 2007

Hearsay Law: Recent Developments In Maryland And In The Supreme Court, Lynn Mclain

All Faculty Scholarship

Handout from an Anne Arundel County Bar Association CLE class concerning then-recent developments in Maryland hearsay rules.


Post-Crawford: Time To Liberalize The Substantive Admissibility Of A Testifying Witness's Prior Consistent Statements, Lynn Mclain Oct 2005

Post-Crawford: Time To Liberalize The Substantive Admissibility Of A Testifying Witness's Prior Consistent Statements, Lynn Mclain

All Faculty Scholarship

The United States Supreme Court's 1995 decision in Tome v. United States has read Federal Rule of Evidence 801(d)(1)(B) to prevent the prosecution's offering a child abuse victim's prior consistent statements as substantive evidence. As a result of that decision, the statements will also be inadmissible even for the limited purpose of helping to evaluate the credibility of a child, if there is a serious risk that the out-of-court statements would be used on the issue of guilt or innocence.

Moreover, after the Court's March 2004 decision in Crawford v. Washington, which redesigned ...