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Full-Text Articles in Evidence

Making Rule 23 Ideal: Using A Multifactor Test To Evaluate The Admissibility Of Evidence At Class Certification, Cianan M. Lesley Oct 2019

Making Rule 23 Ideal: Using A Multifactor Test To Evaluate The Admissibility Of Evidence At Class Certification, Cianan M. Lesley

Michigan Law Review

Circuit courts are split on whether and to what extent the Daubert standard should apply at class certification. Potential plaintiffs believe that application of Daubert would make it nearly impossible to obtain class certification. For potential defendants, the application of the standard is an important way to ensure that the certification process is fair. This Note examines the incentives underlying the push to apply the Daubert standard at class certification and the benefits and drawbacks associated with that proposal. It proposes a solution that balances the concerns of both plaintiffs and defendants by focusing on three factors: the obstacles to ...


Table Of Contents, Seattle University Law Review Sep 2019

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


Why Do We Admit Criminal Confessions Into Evidence?, David Crump Sep 2019

Why Do We Admit Criminal Confessions Into Evidence?, David Crump

Seattle University Law Review

There is an enormous literature about the admissibility of criminal confessions. But almost all of it deals with issues related to self-incrimination or, to a lesser extent, with hearsay or accuracy concerns. As a result, the question whether we ever admit criminal confessions into evidence has not been the subject of much analysis. This gap is odd, since confessions are implicitly disfavored by a proportion of the literature and they often collide with exclusionary doctrines. Furthermore, the self-incrimination issue sometimes is resolved by balancing, and it would help if we knew what we were balancing. Therefore, one might ask: Why ...


Due Process People V. Scott (Decided June 5, 1996) Jul 2019

Due Process People V. Scott (Decided June 5, 1996)

Touro Law Review

No abstract provided.


An Examination Of Computer Forensics And Related Certifications In The Accounting Curriculum, Michael A. Seda, Bonita Peterson Kramer, D. Larry Crumbley Jul 2019

An Examination Of Computer Forensics And Related Certifications In The Accounting Curriculum, Michael A. Seda, Bonita Peterson Kramer, D. Larry Crumbley

Journal of Digital Forensics, Security and Law

Forensic accounting has been a fast-growing niche area within the accounting field for many years. While there has been dramatic growth in the number of courses and degrees in forensic accounting offered by universities, certain relevant topics receive little coverage, such as computer forensics. The purpose of this paper is to examine the views of accounting academics and practitioners pertaining to integrating computer forensics in the accounting curriculum, as well as to determine which forensic accounting certifications the respondents hold. Differences in opinions between the two groups are discussed, along with recommendations on how to improve the forensic accounting curriculum ...


Bare Necessity: Simplifying The Standard For Admitting Showup Identifications, J.P. Christian Milde Jun 2019

Bare Necessity: Simplifying The Standard For Admitting Showup Identifications, J.P. Christian Milde

Boston College Law Review

In 1967, the Supreme Court held that admitting the results of an unnecessarily suggestive police identification procedure could violate a defendant’s right to due process. Over the next decade, several rulings narrowed and clarified the standard into the Brathwaite test, which remains in use today. This test allows the admission of identifications obtained through unnecessarily suggestive procedures if a court finds the identification to nonetheless be reliable. Applying the test requires courts to rule on a procedure’s necessity, its suggestiveness, and the resulting identification’s reliability. Making these determinations forces courts to grapple with intertwined questions of law ...


Promise-Induced False Confessions: Lessons From Promises In Another Context, Margaux Joselow Jun 2019

Promise-Induced False Confessions: Lessons From Promises In Another Context, Margaux Joselow

Boston College Law Review

People are generally skeptical that someone would falsely confess to a crime he or she did not commit. Nonetheless, a myriad of convicts exonerated by DNA and the rapidly emerging scientific literature on the subject calls into question this long-standing belief. Scholars in the field now recognize that personal and situational risk factors, including promises of leniency, heighten the risk of a false confession. Promises of leniency have been shown to be particularly coercive in interrogations and to produce unusually persuasive testimony in the courtroom. Due to a failure to recognize the power behind these promises, our justice system does ...


The Assault On Campus Assault: The Conflicts Between Local Law Enforcement, Ferpa, And Title Ix, Emma B. Bolla May 2019

The Assault On Campus Assault: The Conflicts Between Local Law Enforcement, Ferpa, And Title Ix, Emma B. Bolla

Boston College Law Review

Controversies on college campuses nationwide have led to widespread calls to reform the investigative process of campus sexual assault cases. A total abandonment of the Title IX system would leave victims with few options for justice, but investigations by both universities and local law enforcement can lead to conflicts that are often not addressed in policy discussions about Title IX. This Note explores the Title IX and criminal systems for handling campus sexual assault. It then examines the conflicts created by federal law under the Family Educational Rights and Privacy Act (“FERPA”) and Title IX for the effective policing of ...


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 ...


The Ninth Circuit Enters The Class Certification Fray: Sali'S Rejection Of Evidentiary Formalism And Its Implications, Jessica Bachetti Apr 2019

The Ninth Circuit Enters The Class Certification Fray: Sali'S Rejection Of Evidentiary Formalism And Its Implications, Jessica Bachetti

Boston College Law Review

In 2015, registered nurses brought a putative employment class action against the hospital that employed them, alleging that the hospital underpaid them by rounding their time in violation of California law. The United States District Court for the Central District of California denied class certification because the evidence that the plaintiffs submitted to demonstrate the “typicality requirement” for class certification under Federal Rule of Civil Procedure 23 was inadmissible. On appeal, the U.S. Court of Appeals for the Ninth Circuit held that inadmissibility alone is not a proper basis for denying class certification, adding to the circuit split over ...


No Means No: An Argument For The Expansion Of Rape Shield Laws To Cases Of Nonconsensual Pornography, Austin Vining Apr 2019

No Means No: An Argument For The Expansion Of Rape Shield Laws To Cases Of Nonconsensual Pornography, Austin Vining

William & Mary Journal of Race, Gender, and Social Justice

This Article considers the impact of a hypothetical nonconsensual pornography victim’s previous sexual history on potential legal remedies, both criminal and civil. Due to jury bias and the difficulty in proving standard elements of many claims, the research shows that such a victim would likely be unsuccessful in court. This Article then turns to two legal concepts from related fields—the incremental harm doctrine and rape shield laws—and considers what effect their application would have on the hypothetical victim’s case. Ultimately, the author presents an argument for the logical expansion of rape shield laws to cases of ...


Between Brady Discretion And Brady Misconduct, Bennett L. Gershman Apr 2019

Between Brady Discretion And Brady Misconduct, Bennett L. Gershman

Dickinson Law Review

The Supreme Court’s decision in Brady v. Maryland presented prosecutors with new professional challenges. In Brady, the Supreme Court held that the prosecution must provide the defense with any evidence in its possession that could be exculpatory. If the prosecution fails to timely turn over evidence that materially undermines the defendant’s guilt, a reviewing court must grant the defendant a new trial. While determining whether evidence materially undermines a defendant’s guilt may seem like a simple assessment, the real-life application of such a determination can be complicated. The prosecution’s disclosure determination can be complicated under the ...


O’Neill, Oh O’Neill, Wherefore Art Thou O’Neill: Defining And Cementing The Requirements For Asserting Deliberative Process Privilege, Andrew Scott Apr 2019

O’Neill, Oh O’Neill, Wherefore Art Thou O’Neill: Defining And Cementing The Requirements For Asserting Deliberative Process Privilege, Andrew Scott

Dickinson Law Review

The government may invoke the deliberative process privilege to protect the communications of government officials involving policy-driven decision-making. The privilege protects communications made before policy makers act upon the policy decision to allow government officials to speak candidly when deciding a course of action without fear of their words being used against them.

This privilege is not absolute and courts recognize the legitimate countervailing interest the public has in transparency. The Supreme Court in United States v. Reynolds held that someone with control over the protected information should personally consider the privilege before asserting it but did not provide definitive ...


Non-Physician Vs. Physician: Cross-Disciplinary Expert Testimony In Medical Negligence Litigation, Marc D. Ginsberg Apr 2019

Non-Physician Vs. Physician: Cross-Disciplinary Expert Testimony In Medical Negligence Litigation, Marc D. Ginsberg

Georgia State University Law Review

The source of the applicable standard of care in a specific medical negligence claim is multifaceted. The testifying expert witness, when explaining the applicable standard of care, “would draw upon his own education and practical frame of reference as well as upon relevant medical thinking, as manifested by literature, educational resources and information available to practitioners, and experiences of similarly situated members of the profession.” Accordingly, in typical medical negligence litigation, the plaintiff’s expert witness testifying regarding the existence of and the defendant-physician’s deviation from the standard of care would be a physician. Why, then, have courts permitted ...


Is The Exclusionary Rule A Prohibition-Era Relic?, Thomas M. Hardiman, Lauren Gailey Apr 2019

Is The Exclusionary Rule A Prohibition-Era Relic?, Thomas M. Hardiman, Lauren Gailey

Michigan Law Review

Review of Wesley M. Oliver's The Prohibition Era and Policing: A Legacy of Misregulation.


Conference On Proposed Amendments: Experts, The Rules Of Completeness, And Sequestration Of Witnesses Mar 2019

Conference On Proposed Amendments: Experts, The Rules Of Completeness, And Sequestration Of Witnesses

Fordham Law Review

This conference was held on October 19, 2018, at University of Denver Sturm College of Law under the sponsorship of the Judicial Conference Advisory Committee on Evidence Rules. The transcript has been lightly edited. It represents the panelists’ individual views only and in no way reflects those of their affiliated firms, organizations, law schools, or the judiciary.


Policing The Admissibility Of Body Camera Evidence, Jeffrey Bellin, Shevarma Pemberton Mar 2019

Policing The Admissibility Of Body Camera Evidence, Jeffrey Bellin, Shevarma Pemberton

Fordham Law Review

Body cameras are sweeping the nation and becoming, along with the badge and gun, standard issue for police officers. These cameras are intended to ensure accountability for abusive police officers. But, if history is any guide, the videos they produce will more commonly be used to prosecute civilians than to document abuse. Further, knowing that the footage will be available as evidence, police officers have an incentive to narrate body camera videos with descriptive oral statements that support a later prosecution. Captured on an official record that exclusively documents the police officer’s perspective, these statements—for example, “he just ...


Intrinsic Evidence: Do Utah Prosecutors Too Often Neglect This Avenue Of Admissibility?, Blake R. Hills Feb 2019

Intrinsic Evidence: Do Utah Prosecutors Too Often Neglect This Avenue Of Admissibility?, Blake R. Hills

Brigham Young University Journal of Public Law

No abstract provided.


Intrinsic Evidence: Do Utah Prosecutors Too Often Neglect This Avenue Of Admissibility? Feb 2019

Intrinsic Evidence: Do Utah Prosecutors Too Often Neglect This Avenue Of Admissibility?

Brigham Young University Journal of Public Law

No abstract provided.


Remedying Wrongful Convictions Through Dna Testing: Expanding Post-Conviction Litigants’ Access To Dna Database Searches To Prove Innocence, Kayleigh E. Mcglynn Feb 2019

Remedying Wrongful Convictions Through Dna Testing: Expanding Post-Conviction Litigants’ Access To Dna Database Searches To Prove Innocence, Kayleigh E. Mcglynn

Boston College Law Review

Forensic science is used as evidence in criminal cases regularly. Recently, however, scientists have criticized several commonly used forensic methods that are unreliable, scientifically invalid, and have contributed to wrongful convictions. In contrast, DNA testing, which is reliable and valid, is a powerful resource for exonerating wrongfully convicted individuals. Congress and all fifty states have enacted statutes providing access to post-conviction DNA testing. Only nine states, however, have enacted statutes granting post-conviction litigants access to another important resource—law enforcement DNA database searches. Even though Congress amended the federal post-conviction DNA testing statute to provide access to DNA database searches ...


Table Of Contents, Seattle University Law Review Feb 2019

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


Clarifying The Scope Of The Self-Incrimination Clause: City Of Hays V. Vogt, Samantha Ruben Feb 2019

Clarifying The Scope Of The Self-Incrimination Clause: City Of Hays V. Vogt, Samantha Ruben

Chicago-Kent Law Review

Three months after oral arguments, the Supreme Court dismissed the writ of certiorari in City of Hays v. Vogt as improvidently granted. The question in Vogt was whether the Fifth Amendment right against self-incrimination is violated when incriminating statements are used at a probable cause hearing, as opposed to a criminal trial. As a result of the “DIG,” the Court left a circuit split unresolved surrounding the meaning of a “criminal case” within the Fifth Amendment’s Self-Incrimination Clause.

This note argues that the Supreme Court should not have dismissed Vogt and should have decided that the Fifth Amendment right ...


Courts Increasingly Demand That Businesses Break The Law, Geoffrey Sant Jan 2019

Courts Increasingly Demand That Businesses Break The Law, Geoffrey Sant

Akron Law Review

United States courts are demanding that businesses break foreign laws at an exponentially increasing rate. A practice that was virtually unheard of only 30 years ago is now so widespread that U.S. courts are ordering foreign lawbreaking in the most trivial discovery matters. When a court receives a discovery request that violates a foreign law, it applies the 5-part Aérospatiale balancing test—a test where 4 of the 5 factors are left to the subjective decisions of the judge. By ordering foreign law breaking, our courts—often biased in favor of United States discovery rules—are encouraging abusive litigation ...


Pleading Guilty To Innocence: How Faulty Field Tests Provide False Evidence Of Guilt, Kaelyn Phelps Jan 2019

Pleading Guilty To Innocence: How Faulty Field Tests Provide False Evidence Of Guilt, Kaelyn Phelps

Roger Williams University Law Review

No abstract provided.


Burying Evidence's Dead Hand, Matthew D. Provencher Jan 2019

Burying Evidence's Dead Hand, Matthew D. Provencher

Roger Williams University Law Review

When the Rhode Island Rules of Evidence were adopted, they displaced all inconsistent case law existing at the time. Though the Rules retain a great deal of the evidence practice that preceded them, there is much in evidence practice that changed with their adoption. Rhode Island courts have consistently applied Rule 403 in a manner that comports with practice as it existed before the enactment of the Rhode Island Rules of Evidence. That practice, though, is inconsistent with the plain language of the Rule. These doctrines must be discarded.


Where The Constitution Falls Short: Confession Admissibility And Police Regulation, Courtney E. Lewis Jan 2019

Where The Constitution Falls Short: Confession Admissibility And Police Regulation, Courtney E. Lewis

Dickinson Law Review

A confession presented at trial is one of the most damning pieces of evidence against a criminal defendant, which means that the rules governing its admissibility are critical. At the outset of confession admissibility in the United States, the judiciary focused on a confession’s truthfulness. Culminating in the landmark case Miranda v. Arizona, judicial concern with the reliability of confessions shifted away from whether a confession was true and towards curtailing unconstitutional police misconduct. Post-hoc constitutionality review, however, is arguably inappropriate. Such review is inappropriate largely because the reviewing court must find that the confession was voluntary only by ...


Evidence Without Rules, Bennett Capers Jan 2019

Evidence Without Rules, Bennett Capers

Notre Dame Law Review

Much of what we tell ourselves about the Rules of Evidence—that they serve as an all-seeing gatekeeper, checking evidence for relevance and trustworthiness, screening it for unfair prejudice—is simply wrong. In courtrooms every day, fact finders rely on “evidence”—for example, a style of dress, the presence of family members in the gallery, and of course race—that rarely passes as evidence in the formal sense, and thus breezes past evidentiary gatekeepers unseen and unchecked. This Article calls much needed attention to this other evidence and demonstrates that such unregulated evidence matters. Jurors use this other evidence to ...


Evidence Law: Convictions Based On Circumstantial Evidence, Binyamin Blum Jan 2019

Evidence Law: Convictions Based On Circumstantial Evidence, Binyamin Blum

The Judges' Book

No abstract provided.


2018 Survey Of Rhode Island Case Law Jan 2019

2018 Survey Of Rhode Island Case Law

Roger Williams University Law Review

No abstract provided.


Psychosocial Analysis Of An Ethnography At The Cuyahoga County Public Defenders Office, Ernest M. Oleksy Dec 2018

Psychosocial Analysis Of An Ethnography At The Cuyahoga County Public Defenders Office, Ernest M. Oleksy

The Downtown Review

Too often, social science majors become jaded with their field of study due to a misperception of the nature of many potential jobs which they are qualified for. Such discord is prevalent amongst undergraduates who strive for work in the criminal justice system. Hollywood misrepresentations become the archetypes of the aforementioned field, leaving out the necessity and ubiquity of accompanying desk work. Still other social science majors struggle to identify theoretical interpretations in praxis.