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Full-Text Articles in Evidence

Justice Begins Before Trial: How To Nudge Inaccurate Pretrial Rulings Using Behavioral Law And Economic Theory And Uniform Commercial Laws, Michael Gentithes May 2019

Justice Begins Before Trial: How To Nudge Inaccurate Pretrial Rulings Using Behavioral Law And Economic Theory And Uniform Commercial Laws, Michael Gentithes

William & Mary Law Review

Injustice in criminal cases often takes root before trial begins. Overworked criminal judges must resolve difficult pretrial evidentiary issues that determine the charges the State will take to trial and the range of sentences the defendant will face. Wrong decisions on these issues often lead to wrongful convictions. As behavioral law and economic theory suggests, judges who are cognitively busy and receive little feedback on these topics from appellate courts rely upon intuition, rather than deliberative reasoning, to resolve these questions. This leads to inconsistent rulings, which prosecutors exploit to expand the scope of evidentiary exceptions that almost always disfavor ...


Goldilocks And The Rule 803 Hearsay Exceptions, Liesa L. Richter Feb 2018

Goldilocks And The Rule 803 Hearsay Exceptions, Liesa L. Richter

William & Mary Law Review

Criticism of the hearsay exceptions embodied in the Federal Rules of Evidence has reached a fever pitch in recent years. With scholars calling for the abrogation of the entire hearsay regime or of individual exceptions within it and the Advisory Committee on Evidence Rules exploring hearsay amendments, the time for genuine hearsay soul-searching may be at hand. This Article suggests that aggressive proposals to scuttle existing doctrine entirely in favor of alternative approaches to hearsay are overly broad, rejecting the benefits of significant portions of existing doctrine that are functioning well and threatening costly consequences that could make matters worse ...


The Conjunction Problem And The Logic Of Jury Findings, David S. Schwartz, Elliott Sober Nov 2017

The Conjunction Problem And The Logic Of Jury Findings, David S. Schwartz, Elliott Sober

William & Mary Law Review

For several decades, evidence theorists have puzzled over the following paradox, known as the “conjunction paradox” or “conjunction problem.” Probability theory appears to tell us that the probability of a conjunctive claim is the product resulting from multiplying the probabilities of its separate conjuncts. In a three element negligence case (breach of duty, causation, damages), a plaintiff who proves each element to a 0.6 probability will have proven her overall claim to a very low probability of 0.216. Either the plaintiff wins the verdict based on this low probability (if the jury focuses on elements), or the plaintiff ...


Defending Daubert: It's Time To Amend Federal Rule Of Evidence 702, David E. Bernstein, Eric G. Lasker Oct 2015

Defending Daubert: It's Time To Amend Federal Rule Of Evidence 702, David E. Bernstein, Eric G. Lasker

William & Mary Law Review

The 2000 amendments to Rule 702 sought to resolve the debate that had emerged in the courts in the 1990s over the proper meaning of Daubert by codifying the rigorous and structured approach to expert admissibility announced in the Daubert trilogy. Fifteen years later, however, the amendments have only partially accomplished this objective. Many courts continue to resist the judiciary’s proper gatekeeping role, either by ignoring Rule 702’s mandate altogether or by aggressively reinterpreting the Rule’s provisions.

Informed by this additional history of recalcitrance, the time has come for the Judicial Conference to return to the drafting ...


Systemic Lying, Julia Simon-Kerr May 2015

Systemic Lying, Julia Simon-Kerr

William & Mary Law Review

This Article offers the foundational account of systemic lying from a definitional and theoretical perspective. Systemic lying involves the cooperation of multiple actors in the legal system who lie or violate their oaths across cases for a consistent reason that is linked to their conception of justice. It becomes a functioning mechanism within the legal system and changes the operation of the law as written. By identifying systemic lying, this Article challenges the assumption that all lying in the legal system is the same. It argues that systemic lying poses a particular threat to the legal system. This means that ...


Capping E-Discovery Costs: A Hybrid Solution To E-Discovery Abuse, Karel Mazanec Nov 2014

Capping E-Discovery Costs: A Hybrid Solution To E-Discovery Abuse, Karel Mazanec

William & Mary Law Review

No abstract provided.


The Restyled Federal Rules Of Evidence, Davison M. Douglas, Sidney A. Fitzwater, Daniel J. Capra, Robert A. Hinkle, Joseph Kimble, Joan N. Ericksen, Marilyn L. Huff, Reena A. Raggi, Geraldine Soat Brown, Edward H. Cooper, Kenneth S. Broun, Harris L. Hartz, Katharine Traylor Schaffzin, Roger C. Park, Deborah J. Merritt, Andrew D. Hurwitz, W. Jeremy Counseller, Paula Hannaford-Agor Apr 2012

The Restyled Federal Rules Of Evidence, Davison M. Douglas, Sidney A. Fitzwater, Daniel J. Capra, Robert A. Hinkle, Joseph Kimble, Joan N. Ericksen, Marilyn L. Huff, Reena A. Raggi, Geraldine Soat Brown, Edward H. Cooper, Kenneth S. Broun, Harris L. Hartz, Katharine Traylor Schaffzin, Roger C. Park, Deborah J. Merritt, Andrew D. Hurwitz, W. Jeremy Counseller, Paula Hannaford-Agor

William & Mary Law Review

A lightly edited transcript of the Symposium held at the William & Mary School of Law on October 28, 2011.


Neuroscience In The Courtroom: An International Concern, Dominique J. Church Apr 2012

Neuroscience In The Courtroom: An International Concern, Dominique J. Church

William & Mary Law Review

No abstract provided.


The Unrecognized Right Of Criminal Defendants To Admit Their Own Pretrial Statements, Stephen A. Saltzburg, Daniel J. Capra May 2008

The Unrecognized Right Of Criminal Defendants To Admit Their Own Pretrial Statements, Stephen A. Saltzburg, Daniel J. Capra

William & Mary Law Review

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 ...


Killing Roger Coleman: Habeas, Finality, And The Innocence Gap, Todd E. Pettys May 2007

Killing Roger Coleman: Habeas, Finality, And The Innocence Gap, Todd E. Pettys

William & Mary Law Review

For the past fifteen years, the execution of Roger Coleman has served as perhaps the most infamous illustration of the U.S. Supreme Court's determination to help the states achieve finality in their criminal cases. Convicted of rape and murder in 1982, Coleman steadfastly maintained his innocence and drew many supporters to his cause. In its 1991 ruling in Coleman v. Thompson, however, the Court refused to consider the constitutional claims raised in Coleman's habeas petition. The Court ruled that Coleman had forfeited his right to seek habeas relief when, in prior state proceedings, his attorneys mistakenly filed ...


"So I Says To "The Guy,' I Says...": The Constitutionality Of Neutral Pronoun Redaction In Multidefendant Criminal Trials, Bryan M. Shay Oct 2006

"So I Says To "The Guy,' I Says...": The Constitutionality Of Neutral Pronoun Redaction In Multidefendant Criminal Trials, Bryan M. Shay

William & Mary Law Review

No abstract provided.


Aedpa Deference And The Undeveloped State Factual Record: Monroe V. Angelone And New Evidence, Rachel E. Wheeler Mar 2005

Aedpa Deference And The Undeveloped State Factual Record: Monroe V. Angelone And New Evidence, Rachel E. Wheeler

William & Mary Law Review

No abstract provided.


Meaning, Intention, And The Hearsay Rule, Paul F. Kirgis Oct 2001

Meaning, Intention, And The Hearsay Rule, Paul F. Kirgis

William & Mary Law Review

No abstract provided.


Evidence Myopia: The Failure To See The Federal Rules Of Evidence As A Codification Of The Common Law, Glen Weissenberger May 1999

Evidence Myopia: The Failure To See The Federal Rules Of Evidence As A Codification Of The Common Law, Glen Weissenberger

William & Mary Law Review

No abstract provided.


The Elusive Identity Of The Federal Rules Of Evidence, Glen Weissenberger May 1999

The Elusive Identity Of The Federal Rules Of Evidence, Glen Weissenberger

William & Mary Law Review

No abstract provided.


Whether The Federal Rules Of Evidence Should Be Conceived As A Perpetual Index Code: Blindness Is Worse Than Myopia, Edward J. Imwinkelried May 1999

Whether The Federal Rules Of Evidence Should Be Conceived As A Perpetual Index Code: Blindness Is Worse Than Myopia, Edward J. Imwinkelried

William & Mary Law Review

No abstract provided.


Conflicts Of Interest In Scientific Expert Testimony, Mark R. Patterson Apr 1999

Conflicts Of Interest In Scientific Expert Testimony, Mark R. Patterson

William & Mary Law Review

No abstract provided.


Psychiatric Evidence In Criminal Trials: To Junk Or Not To Junk?, Christopher Slobogin Oct 1998

Psychiatric Evidence In Criminal Trials: To Junk Or Not To Junk?, Christopher Slobogin

William & Mary Law Review

No abstract provided.


Using Impartial Experts In Valuations: A Forum-Specific Approach, Andrew Macgregor Smith Mar 1994

Using Impartial Experts In Valuations: A Forum-Specific Approach, Andrew Macgregor Smith

William & Mary Law Review

No abstract provided.


Dna Fingerprinting: The Virginia Approach, James P. O'Brien Jr. Feb 1994

Dna Fingerprinting: The Virginia Approach, James P. O'Brien Jr.

William & Mary Law Review

No abstract provided.


Impeachment With An Unsworn Prior Inconsistent Statement As Subterfuge, Dan Johnson Feb 1987

Impeachment With An Unsworn Prior Inconsistent Statement As Subterfuge, Dan Johnson

William & Mary Law Review

No abstract provided.


Application Problems Arising From The Good Faith Exception To The Exclusionary Rule, Robert C. Gleason May 1986

Application Problems Arising From The Good Faith Exception To The Exclusionary Rule, Robert C. Gleason

William & Mary Law Review

No abstract provided.


Scientific Evidence - An Introduction, Fredric I. Lederer May 1984

Scientific Evidence - An Introduction, Fredric I. Lederer

William & Mary Law Review

No abstract provided.


Applying Lawyers' Expertise To Scientific Experts: Some Thoughts About Trial Court Analysis Of The Prejudicial Effects Of Admitting And Excluding Expert Scientific Testimony, James M. Doyle May 1984

Applying Lawyers' Expertise To Scientific Experts: Some Thoughts About Trial Court Analysis Of The Prejudicial Effects Of Admitting And Excluding Expert Scientific Testimony, James M. Doyle

William & Mary Law Review

No abstract provided.


Jurisprudence Or "Juriscience"?, Howard T. Markey May 1984

Jurisprudence Or "Juriscience"?, Howard T. Markey

William & Mary Law Review

No abstract provided.


Judge Versus Jury: Who Should Decide Questions Of Preliminary Facts Conditioning The Admissibility Of Scientific Evidence?, Edward J. Imwinkelried May 1984

Judge Versus Jury: Who Should Decide Questions Of Preliminary Facts Conditioning The Admissibility Of Scientific Evidence?, Edward J. Imwinkelried

William & Mary Law Review

No abstract provided.


Capabilities Of Modern Forensic Laboratories, Irving C. Stone May 1984

Capabilities Of Modern Forensic Laboratories, Irving C. Stone

William & Mary Law Review

No abstract provided.


Scientific Evidence And The Question Of Judicial Capacity, John W. Wesley May 1984

Scientific Evidence And The Question Of Judicial Capacity, John W. Wesley

William & Mary Law Review

No abstract provided.


Seeing Can Be Deceiving: Photographic Evidence In A Visual Age - How Much Weight Does It Deserve?, Benjamin V. Madison Iii May 1984

Seeing Can Be Deceiving: Photographic Evidence In A Visual Age - How Much Weight Does It Deserve?, Benjamin V. Madison Iii

William & Mary Law Review

No abstract provided.


Good Faith, The Exclusionary Remedy, And Rule-Oriented Adjudication In The Criminal Process, Gerald G. Ashdown Apr 1983

Good Faith, The Exclusionary Remedy, And Rule-Oriented Adjudication In The Criminal Process, Gerald G. Ashdown

William & Mary Law Review

No abstract provided.