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Articles 1 - 14 of 14
Full-Text Articles in Evidence
Mediating Rules In Criminal Law, Alex Stein, Richard A. Bierschbach
Mediating Rules In Criminal Law, Alex Stein, Richard A. Bierschbach
Faculty Scholarship
No abstract provided.
Chimeras: Double The Dna - Double The Fun For Crime Scene Investigators, Prosecutors, And Defense Attorneys?, Catherine Arcabascio
Chimeras: Double The Dna - Double The Fun For Crime Scene Investigators, Prosecutors, And Defense Attorneys?, Catherine Arcabascio
Faculty Scholarship
This article first explores the mythological origins of the term "chimera." It then explores the causes and scientific explanations of chimerism and the various conditions covered by the term chimera in the area of genetics. Although this article will discuss the various chimeric conditions that are thought to exist, its primary focus is on chimerism that is the result of the fusing of embryos in utero. Next, the article will discuss recent cases of chimerism - and of alleged chimerism - and how the genetic differences between chimeras and the general population came to light. It also will discuss …
Probability, Policy And The Problem Of Reference Class, Robert J. Rhee
Probability, Policy And The Problem Of Reference Class, Robert J. Rhee
Faculty Scholarship
This short paper focuses on the problem of reference class in evidentiary assessment as it relates to probability and weight of evidence. The reluctance to inject mathematical formalism into the factfinding function is justified. Objective probability requires a reference class from which a proportion is derived. Probability assessments change with the reference class. If a proposition is subject to proportional comparison against two or more different references, their selection is often an inductive process. The advantage of objectivity and methodological rigor is illusory. A legal dispute is the search for a plausible understanding of the truth, and an overtly mathematized …
A Suspicionless Search And Seizure Quagmire: The Supreme Court Revives The Pretext Doctrine And Creates Another Fine Fourth Amendment Mess, Edwin J. Butterfoss
A Suspicionless Search And Seizure Quagmire: The Supreme Court Revives The Pretext Doctrine And Creates Another Fine Fourth Amendment Mess, Edwin J. Butterfoss
Faculty Scholarship
This Article contends the Supreme Court's use of a primary purpose test to regulate suspicionless searches and seizures by the government is misguided and will provide little or no protection against the evils that apparently led the Court to strike down recent schemes by government officials. The evil of the government schemes is less the purpose of the schemes than their expansion into areas and activities in which citizens should be protected from government intrusion in the absence of any suspicion of wrongdoing. Rather than facing this head on and carefully assessing whether the government schemes infringe on such areas …
Is Confrontation The Bottom Line?, Roger C. Park
Is Confrontation The Bottom Line?, Roger C. Park
Faculty Scholarship
No abstract provided.
Finding The Golden Mean With Daubert: An Elusive, Perhaps An Impossible, Goal, Robert P. Mosteller
Finding The Golden Mean With Daubert: An Elusive, Perhaps An Impossible, Goal, Robert P. Mosteller
Faculty Scholarship
No abstract provided.
Was He Guilty As Charged? An Alternative Narrative Based On The Circumstantial Evidence From 12 Angry Men, Neil Vidmar, Sara Sun Beale, Erwin Chemerinsky, James E. Coleman Jr.
Was He Guilty As Charged? An Alternative Narrative Based On The Circumstantial Evidence From 12 Angry Men, Neil Vidmar, Sara Sun Beale, Erwin Chemerinsky, James E. Coleman Jr.
Faculty Scholarship
No abstract provided.
A History Of Representations Of Justice: Coincident Preoccupations Of Law And Film, Jessica Silbey
A History Of Representations Of Justice: Coincident Preoccupations Of Law And Film, Jessica Silbey
Faculty Scholarship
The American trial and the art of cinema share certain epistemological tendencies. Both stake claims to an authoritative form of knowledge based on the indubitable quality of observable phenomena. Both are preoccupied (sometimes to the point of self-defeat) with sustaining the authority that underlies the knowledge produced by visual perception. The American trial and art of cinema also increasingly share cultural space. Although the trial film (otherwise known as the courtroom drama) is as old as the medium of film the recent spate of popular trial films, be they fictional such as Runaway Jury or documentary such as Capturing the …
Truth Tales And Trial Films, Jessica Silbey
Truth Tales And Trial Films, Jessica Silbey
Faculty Scholarship
Investigations into law and popular culture preoccupy themselves with understanding how law and popular cultural forms work together to challenge or sustain community structures, identity and power. It is inevitable at this point in our cultural history that law and popular culture are intertwined. There are too many television shows, films, popular novels and web-based entertainment to withdraw "the law" (whatever that is) from the domain of popular culture. This article takes as a given the intermixing of law and popular culture, embracing it as a new feature of our popular legal consciousness. I suggest that one result of this …
Truth, Deterrence, And The Impeachment Exception , James L. Kainen
Truth, Deterrence, And The Impeachment Exception , James L. Kainen
Faculty Scholarship
James v. Illinois permits illegally-obtained evidence to impeach defendants, but not defense witnesses. Thus far, all courts have construed James to allow impeachment of defendants' hearsay declarations. This article argues against allowing illegally-obtained evidence to impeach defendants' hearsay declarations because doing so unduly diminishes the exclusionary rule's deterrent effect. The distinction between impeaching defendants and defense witnesses disappears when courts allow prosecutors to impeach defendants' hearsay declarations. Because defense witnesses report exculpatory conduct of a defendant who always has a substantial interest in disguising his criminality, their testimony routinely incorporates defendant hearsay. Defense witness testimony thus routinely paves the way …
Unrecognized Right Of Criminal Defendants To Admit Their Own Pretrial Statements, The , Stephen A. Saltzburg, Daniel J. Capra
Unrecognized Right Of Criminal Defendants To Admit Their Own Pretrial Statements, The , Stephen A. Saltzburg, Daniel J. Capra
Faculty Scholarship
In Agard v. Portuondo, the United States Supreme Court held that a prosecutor did not violate a testifying defendant's constitutional rights by inviting the jury to infer from the defendant's presence at trial that the defendant altered his own version of events to accord with other witnesses' testimony. Justice Scalia's opinion for the Court emphasized that jurors might well draw the inference even without a prosecutor asking them to do so. Although Agard is viewed as giving an advantage in a criminal trial to the government, this Article considers how Agard might be used to allow defense counsel to introduce …
The Duke Lacrosse Case, Innocence, And False Identifications: A Fundamental Failure To “Do Justice, Robert P. Mosteller
The Duke Lacrosse Case, Innocence, And False Identifications: A Fundamental Failure To “Do Justice, Robert P. Mosteller
Faculty Scholarship
The Duke lacrosse case was a disaster - a caricature. The case, which involved false rape charges against three Duke University lacrosse players, began with gang rape allegations by an exotic dancer at a team party in March 2006 and ended with the declaration of their innocence in April 2007 and the disbarment of Durham County District Attorney Mike Nifong in June of that year. Often a full examination of the facts of a notorious case reveals that events were ambiguous and the reality is not as bad as early reports suggested. This case does not fit that pattern; it …
Police Deception Before Miranda Warnings: The Case For Per Se Exclusion Of An Entirely Unjustified Practice At A Particularly Sensitive Moment, Robert P. Mosteller
Police Deception Before Miranda Warnings: The Case For Per Se Exclusion Of An Entirely Unjustified Practice At A Particularly Sensitive Moment, Robert P. Mosteller
Faculty Scholarship
This essay focuses on the limits of deception practiced before the suspect waives his or her rights under Miranda v. Arizona (1966). In Miranda, the Court stated: [A]ny evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the suspect did not voluntarily waive his privilege. The quotation appears to forbid any evidence of threats, tricks, or cajolery, which contributes to a waiver of the privilege, creating a per se exclusion. However, in Moran v. Burbine (1986), the Court shifts focus away from the nature of the police conduct to its effect on …
Testing The Testimonial Concept And Exceptions To Confrontation: “A Little Child Shall Lead Them”, Robert P. Mosteller
Testing The Testimonial Concept And Exceptions To Confrontation: “A Little Child Shall Lead Them”, Robert P. Mosteller
Faculty Scholarship
In Crawford v. Washington (2004), the Supreme Court radically transformed the analysis of the Confrontation Clause for hearsay, but left many specific questions unanswered. Two years later in Davis v. Washington (2006), it revisited the subject and answered a few of the unresolved issues, but again left much in doubt, apparently reorienting the focus of the testimonial definition from that of the party making the statement to that of the person receiving it. One of the areas where the new doctrine has greatest potential importance is in cases involving children, particularly cases involving physical and sexual abuse. The importance derives …