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Washington University in St. Louis

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Full-Text Articles in Evidence

Policing Predictive Policing, Andrew G. Ferguson Jan 2017

Policing Predictive Policing, Andrew G. Ferguson

Washington University Law Review

Predictive policing is sweeping the nation, promising the holy grail of policing—preventing crime before it happens. The technology has far outpaced any legal or political accountability and has largely escaped academic scrutiny. This article examines predictive policing’s evolution with the goal of providing the first practical and theoretical critique of this new policing strategy. Building on insights from scholars who have addressed the rise of risk assessment throughout the criminal justice system, this article provides an analytical framework to police new predictive technologies.


What Investigative Resources Does The International Criminal Court Need To Succeed?: A Gravity-Based Approach, Stuart Ford Jan 2017

What Investigative Resources Does The International Criminal Court Need To Succeed?: A Gravity-Based Approach, Stuart Ford

Washington University Global Studies Law Review

There is an ongoing debate about what resources the International Criminal Court (ICC) needs to be successful. On one side of this debate are many of the Court’s largest funders, including France, Germany, Britain, Italy, and Japan. They have repeatedly opposed efforts to increase the Court’s resources even as its workload has increased dramatically in recent years. On the other side of the debate is the Court itself and many of the Court’s supporters within civil society. They have taken the position that it is underfunded and does not have sufficient resources to succeed. This debate has ...


Bill Cosby, The Lustful Disposition Exception, And The Doctrine Of Chances, Wesley M. Oliver Jan 2016

Bill Cosby, The Lustful Disposition Exception, And The Doctrine Of Chances, Wesley M. Oliver

Washington University Law Review

On December 30, 2015, an affidavit of probable cause alleged that William H. Cosby, Jr., Ed.D., a comedian whose storied career spanned decades, committed aggravated indecent sexual assault upon Andrea Constand. For decades, women have been coming forward claiming to have been the victims of Cosby’s unwanted sexual advances, most of them claiming that Cosby drugged them and took advantage of them when they were in an unconscious state. Despite the number of accusers over decades, thus far only one criminal count has been announced. At this point, it appears that the statute of limitation would preclude an ...


Throwing A Toy Wrench In The “Greatest Legal Engine”: Child Witnesses And The Confrontation Clause, Jonathan Clow Jan 2015

Throwing A Toy Wrench In The “Greatest Legal Engine”: Child Witnesses And The Confrontation Clause, Jonathan Clow

Washington University Law Review

Cross-examination of witnesses has often been called the “greatest legal engine ever invented for the discovery of truth.” Enshrined in the Confrontation Clause of the Sixth Amendment, this most basic feature of an adversarial legal system guarantees criminal defendants the right to have the prosecution’s witnesses testify in open court and the opportunity to question said witnesses in front of the jury.

The premise underlying this “greatest legal engine” is challenged, however, when children are the “witnesses against” the defendant. Social science and psychological research in recent decades suggest that cross-examination of child witnesses could actually interfere with the ...


Visualizing Probabilistic Proof, Enrique Guerra-Pujol Nov 2014

Visualizing Probabilistic Proof, Enrique Guerra-Pujol

Washington University Jurisprudence Review

The author revisits the Blue Bus Problem, a famous thought-experiment in law involving probabilistic proof, and presents Bayesian solutions to different versions of the blue bus hypothetical. In addition, the author expresses his solutions in standard and visual formats, that is, in terms of probabilities and natural frequencies.


Bringing Guns To A Gun Fight: Why The Adversarial System Is Best Served By A Policy Compelling Attorneys To Ethically Mine For Metadata, Justin Fong Nov 2014

Bringing Guns To A Gun Fight: Why The Adversarial System Is Best Served By A Policy Compelling Attorneys To Ethically Mine For Metadata, Justin Fong

Washington University Jurisprudence Review

No abstract provided.


Confined To A Narrative: Approaching Rape Shield Laws Through Legal Narratology, Kathryn C. Swiss Jan 2014

Confined To A Narrative: Approaching Rape Shield Laws Through Legal Narratology, Kathryn C. Swiss

Washington University Jurisprudence Review

No abstract provided.


Judging, Expertise, And The Rule Of Law, Chad M. Oldfather Jan 2012

Judging, Expertise, And The Rule Of Law, Chad M. Oldfather

Washington University Law Review

We live in an era of hyper specialization. Professionals across a spectrum of fields focus on mastering and practicing in narrow subspecialties. This is hardly a surprise. As the scale of knowledge grows, it becomes increasingly difficult for any one person to stay on top of details and developments across a field, and specialization represents something of a natural division of labor. Law is no exception.

There already exists a relatively large body of literature outlining proposals for specialized courts and otherwise considering their perceived virtues. I seek in this Article to engage this literature in two ways. First, I ...


Arbitrary Death: An Empirical Study Of Mitigation, Emily Hughes Jan 2012

Arbitrary Death: An Empirical Study Of Mitigation, Emily Hughes

Washington University Law Review

The Supreme Court has long viewed mitigation evidence as key to saving the death penalty from constitutional challenge. Mitigation evidence about a capital defendant’s life history, combined with other procedural protections, is thought to alleviate arbitrariness in juries’ decisions of whether a defendant deserves to die. This Article presents original empirical research studying that hypothesis. Interviews with thirty mitigation specialists who have represented over 700 capital clients in twenty-five death penalty states reveal that despite the Supreme Court’s hope, mitigation evidence has not alleviated arbitrariness in death penalty decisions. Instead, new arbitrariness enters the system through the process ...


The Next Innocence Project: Shaken Baby Syndrome And The Criminal Courts, Deborah Tuerkheimer Jan 2009

The Next Innocence Project: Shaken Baby Syndrome And The Criminal Courts, Deborah Tuerkheimer

Washington University Law Review

Every year in this country, hundreds of people are convicted of having shaken a baby, most often to death. In a prosecution paradigm without precedent, expert medical testimony is used to establish that a crime occurred, that the defendant caused the infant’s death by shaking, and that the shaking was sufficiently forceful to constitute depraved indifference to human life. Shaken Baby Syndrome (SBS) is, in essence, a medical diagnosis of murder, one based solely on the presence of a diagnostic triad: retinal bleeding, bleeding in the protective layer of the brain, and brain swelling. New scientific research has cast ...


Old Blood, Bad Blood, And Youngblood: Due Process, Lost Evidence, And The Limits Of Bad Faith, Norman C. Bay Jan 2008

Old Blood, Bad Blood, And Youngblood: Due Process, Lost Evidence, And The Limits Of Bad Faith, Norman C. Bay

Washington University Law Review

Under the law of lost evidence, absent a showing of bad faith, no due process violation occurs when the police lose potentially exculpatory evidence. This is so even though the evidence may be critical to the defense and even though post-conviction DNA testing has exonerated more than 200 individuals. Ironically, the case that developed that rule of law, Arizona v. Youngblood, is founded on the conviction of an innocent man. This Article critically examines Youngblood and provides a conceptual framework for examining the constitutional right of access to evidence. Supreme Court precedent reflects two different, sometimes competing, visions of procedural ...


Violence Between Lovers, Strangers, And Friends, Carissa Byrne Hessick Jan 2007

Violence Between Lovers, Strangers, And Friends, Carissa Byrne Hessick

Washington University Law Review

Part I of this Article briefly summarizes the commentary and studies that have examined the effect of victim-offender relationships on criminal justice decision making. It also notes instances where the treatment of stranger violence as more serious crime than comparable non-stranger violence has been codified in statutes or other written regulations. Possible justifications for the prioritization of stranger violence over non-stranger violence are explored in Part II. Those justifications include (a) a perception that stranger offenders are more culpable than nonstranger offenders; (b) a perception that stranger offenders are more dangerous than non-stranger offenders; (c) a belief that the non-stranger ...


The Practical Mandates Of The Fourth Amendment: A Behavioral Argument For The Exclusionary Rule And Warrant Preference, Bryan D. Lammon Jan 2007

The Practical Mandates Of The Fourth Amendment: A Behavioral Argument For The Exclusionary Rule And Warrant Preference, Bryan D. Lammon

Washington University Law Review

No abstract provided.


Injecting Fairness Into The Doctrine Of Forfeiture By Wrongdoing, Adam Sleeter Jan 2005

Injecting Fairness Into The Doctrine Of Forfeiture By Wrongdoing, Adam Sleeter

Washington University Law Review

No abstract provided.


Attorney-Client Privilege And The Patent Prosecution Process In The Post-Spalding World, Jonathan G. Musch Jan 2003

Attorney-Client Privilege And The Patent Prosecution Process In The Post-Spalding World, Jonathan G. Musch

Washington University Law Review

No abstract provided.


Causation In Retaliation Claims: Conflict Between The Prima Facie Case And The Plaintiff's Ultimate Burden Of Pretext, Rhea Gertken Jan 2003

Causation In Retaliation Claims: Conflict Between The Prima Facie Case And The Plaintiff's Ultimate Burden Of Pretext, Rhea Gertken

Washington University Law Review

No abstract provided.


Admissibility Of Fruits Of Breached Evidentiary Privileges: The Importance Of Adversarial Fairness, Party Culpability, And Fear Of Immunity, Robert P. Mosteller Jan 2003

Admissibility Of Fruits Of Breached Evidentiary Privileges: The Importance Of Adversarial Fairness, Party Culpability, And Fear Of Immunity, Robert P. Mosteller

Washington University Law Review

In civil cases, breaches of attorney-client confidentiality during litigation sometimes result, not only in exclusion of communication, but also in an order prohibiting use of the information obtained from the communication in any way. In criminal prosecutions, provisions of the Constitution under certain fact patterns give protection to attorney-client confidentiality, including the attorney-client privilege, which also prohibits derivative use of the confidential communications. This Article examines two general conclusions reached by the case law. The first is the general non-protection of derivative use of the disclosure of confidential information covered by evidentiary privileges. The second concerns special situations where protection ...


Automatic For Removal?: The Use Of Post-Petition Evidence To Establish The Amount In Controversy For Diversity Jurisdiction, C. Kinnier Lastimosa Jan 2002

Automatic For Removal?: The Use Of Post-Petition Evidence To Establish The Amount In Controversy For Diversity Jurisdiction, C. Kinnier Lastimosa

Washington University Law Review

No abstract provided.


Accuracy Where It Matters: Brady V. Maryland In The Plea Bargaining Context, Corinna Barrett Lain Jan 2002

Accuracy Where It Matters: Brady V. Maryland In The Plea Bargaining Context, Corinna Barrett Lain

Washington University Law Review

Decided in 1963, Brady v. Maryland imposes on prosecutors a duty to share with defendants information favorable to the defense and material to guilt or punishment. Under Brady and its progeny, prosecutors must disclose impeachment as well as exculpatory information, and are not excused from nondisclosure even if they never received a request for the information or were unaware that the government had it to give. In the analysis below, I argue that Brady’s role in protecting the innocent from wrongful conviction is just as essential in the plea bargaining context as it is at trial, and that therefore ...


The Admissibility Of Expert Testimony On Battering And Its Effects After Kumho Tire, Michelle Michelson Jan 2001

The Admissibility Of Expert Testimony On Battering And Its Effects After Kumho Tire, Michelle Michelson

Washington University Law Review

No abstract provided.


Life But Not Liberty? An Assessment Of Noncapital Indigent Defendants' Rights To Expert Assistance Under The Ake V. Oklahoma Doctrine, Amber J. Mcgraw Jan 2001

Life But Not Liberty? An Assessment Of Noncapital Indigent Defendants' Rights To Expert Assistance Under The Ake V. Oklahoma Doctrine, Amber J. Mcgraw

Washington University Law Review

No abstract provided.


Propensity Evidence Under Rule 413: The Need For Balance, Erik D. Ojala Jan 1999

Propensity Evidence Under Rule 413: The Need For Balance, Erik D. Ojala

Washington University Law Review

No abstract provided.


Listing Decisions Under The Endangered Species Act: Why Better Science Isn't Always Better Policy, Holly Doremus Jan 1997

Listing Decisions Under The Endangered Species Act: Why Better Science Isn't Always Better Policy, Holly Doremus

Washington University Law Review

This Article offers an alternative approach to ESA listing determinations which would better combine scientific credibility with democratic legitimacy. As background to the current problem, Part II explains the origins of the ESA's stringent strictly science mandate. Part III considers the nature and limits of scientific information and explains how the scientific process can identify the best available scientific information. Part IV evaluates the specific decisions required for ESA listings in light of the strictly science mandate, explaining why these decisions require input from beyond the realm of scientific information. Part IV goes on to demonstrate that the incompatibility ...


One Of These Things Is Not Like The Other: Proving Liability Under The Equal Pay Act And Title Vii Tidwell V. Fort Howard Cop. 989 F.2d 406 (10th Cir. 1993), Amy M. Sneirson Jan 1994

One Of These Things Is Not Like The Other: Proving Liability Under The Equal Pay Act And Title Vii Tidwell V. Fort Howard Cop. 989 F.2d 406 (10th Cir. 1993), Amy M. Sneirson

Washington University Law Review

No abstract provided.


Upward Departures From The Sentencing Guidelines: Should Nonsimilar, Outdated Convictions Provide A Basis For Departure? United States V. Diaz-Collado, 981 F.2d 640 (2d Cir. 1992), Cert. Denied, 113 S. Ct. 2934 (1993), Carol A. Shubinski Jan 1994

Upward Departures From The Sentencing Guidelines: Should Nonsimilar, Outdated Convictions Provide A Basis For Departure? United States V. Diaz-Collado, 981 F.2d 640 (2d Cir. 1992), Cert. Denied, 113 S. Ct. 2934 (1993), Carol A. Shubinski

Washington University Law Review

No abstract provided.


The Debate In The Dna Cases Over The Foundation For The Admission Of Scientific Evidence: The Importance Of Human Error As A Cause Of Forensic Misanalysis, Edward J. Imwinkelried Jan 1991

The Debate In The Dna Cases Over The Foundation For The Admission Of Scientific Evidence: The Importance Of Human Error As A Cause Of Forensic Misanalysis, Edward J. Imwinkelried

Washington University Law Review

The first part of the Article addresses the threshold question of whether deficiencies in test protocol should affect the admissibility as well as the weight of scientific testimony. After surveying the empirical studies of laboratory proficiency, the Article concludes that correct test procedure is such a fundamental concern that it should impact the admissibility of scientific evidence. The second part of the Article turns to the question of whether the proponent or opponent should be allocated the burden of showing the analyst's compliance with proper scientific protocol. Analogizing to Federal Rule of Evidence 803(8) governing the hearsay exception ...


Protecting Defense Evidence From Prosecutorial Discovery, Richard W. Beckler, Frederick Robinson, Wendy Sue Morphew Jan 1990

Protecting Defense Evidence From Prosecutorial Discovery, Richard W. Beckler, Frederick Robinson, Wendy Sue Morphew

Washington University Law Review

No abstract provided.


The International Silver Platter And The "Shocks The Conscience" Test: U.S. Law Enforcement Overseas, Robert L. King Jan 1989

The International Silver Platter And The "Shocks The Conscience" Test: U.S. Law Enforcement Overseas, Robert L. King

Washington University Law Review

No abstract provided.


Treating Experts Like Ordinary Witnesses: Recent Trends In Discovery Of Testifying Experts Under Federal Rule Of Civil Procedure 26(B)(4), Steven K. Sims Jan 1988

Treating Experts Like Ordinary Witnesses: Recent Trends In Discovery Of Testifying Experts Under Federal Rule Of Civil Procedure 26(B)(4), Steven K. Sims

Washington University Law Review

No abstract provided.


Evidentiary Use Of Prior Acquitted Crimes: The “Relative Burdens Of Proof” Rationale, Alexander H. Gillespie Jan 1986

Evidentiary Use Of Prior Acquitted Crimes: The “Relative Burdens Of Proof” Rationale, Alexander H. Gillespie

Washington University Law Review

No abstract provided.