Evidence Commons^™

The Liar’S Mark: Character And Forfeiture In Federal Rule Of Evidence 609(A)(2), Jesse Schupack

Michigan Law Review

Rule 609(a)(2) of the Federal Rules of Evidence is an outlier. The Rule mandates admission of impeaching evidence of a witness’s past convictions for crimes of dishonesty. It is the only place in the Rules where judges are denied their usual discretion to exclude evidence on the grounds that its admission would be more prejudicial than probative. This Note analyzes three assumptions underlying this unusual Rule: (1) that there is a coherently definable category of crimes of dishonesty, (2) that convictions for crimes of dishonesty are uniquely probative of a person’s character, and (3) that an assessment of moral character …

Junk Evidence: A Call To Scrutinize Historical Cell Site Location Evidence, Victoria Saxe

The University of New Hampshire Law Review

Historical cell site location information (CSLI) has been offered as objective, scientific location evidence in criminal trials, but is far less precise than the claims it is used to support. Not only is there no way to pinpoint a cellphone’s precise geographic location from historical CSLI, but there are also no known validation or error rates for the methodologies used to collect and analyze this data. A 2019 telecommunications scandal in Denmark revealed gross inadequacies in the cellphone data and software used by law enforcement to analyze this type of evidence. The scandal sent shockwaves through the country’s legal community …

Unbuckling The Seat Belt Defense In Arkansas, Spencer G. Dougherty

Arkansas Law Review

The “seat belt defense” has been hotly litigated over the decades in numerous jurisdictions across the United States. It is an affirmative defense that, when allowed, reduces a plaintiff’s recovery for personal injuries resulting from an automobile collision where the defendant can establish that those injuries would have been less severe or avoided entirely had the plaintiff been wearing an available seat belt. This is an unsettled legal issue in Arkansas, despite the growing number of cases in which the seat belt defense is raised as an issue. Most jurisdictions, including Arkansas, initially rejected the defense, but the basis for …

The Truthsayer And The Court: Expert Testimony On Credibility, Michael W. Mullane

Maine Law Review

The purpose of this Article is to analyze the admissibility of expert testimony on credibility. State v. Woodburn serves as a lens to focus on the broader issues. The primary issue is an examination of expert testimony on credibility in light of the Federal Rules of Evidence and their progeny. The Rules of Evidence mandate admission or exclusion of expert testimony based on certain criteria. How are these criteria applied to expert testimony on credibility? How should they be applied? The surprising survivability of other criteria discarded by the Rules is also considered.

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 …

Between Brady Discretion And Brady Misconduct, Bennett L. Gershman

Dickinson Law Review (2017-Present)

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 Brady paradigm because …

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

Dickinson Law Review (2017-Present)

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 …

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 …

Unconstitutional Asymmetry Or A Rational Basis For Inconsistency? The Admissibility Of Medical Malpractice Prelitigation Screening Panel Findings Before And After Smith V. Hawthorne I And Ii, Matthew Asnault Morris

Maine Law Review

Pre-litigation screening panels have been instrumental in streamlining medical malpractice litigation in the State of Maine by culling claims from superior court dockets, encouraging settlements, and providing findings of fact that could prove useful for a jury if the case proceeds to trial. In enacting one particular provision governing the confidentiality and the admissibility of the screening panel process, however, the legislature may have sacrificed the constitutional rights of medical malpractice claimants in favor of a lighter docket. Two recent cases before the Law Court, Smith I and II, have challenged the constitutionality of Maine’s unique statutory approach to the …

Opportunity Lost, Opportunity Found: A Proposal To Amend Maine's Rule Of Evidence 404 To Admit "Prior Acts" Evidence In Domestic Violence Prosecutions, Tina Heather Nadeau

Maine Law Review

In 2008, thirty-one people were the victims of homicide in the state of Maine. Even more startling: nineteen of these homicides stemmed from domestic violence, possibly the largest number of domestic-violence-related killings in the state's history. This means that nearly 70 percent of Maine's homicides in 2008 were the result of domestic violence. Amendments made in 2007 (and implemented in February 2008) to Maine's Criminal Code have criminalized particular instances of domestic violence as “enhanced” crimes of violence. This allows prosecutors to consider “prior acts” of domestic abuse when deciding how to charge a criminal defendant accused of a domestic-violence-related …

Criminal Law—When The Pillow Talks: Arkansas's Rape Shield Statute Bars Dna Evidence Excluding The Defendant As The Source Of Semen. Thacker V. State, 2015 Ark. 406, 474 S.W.3d 65., Lacon Marie Smith

University of Arkansas at Little Rock Law Review

No abstract provided.

The Moment Of Truth For Fmri: Will Deception Detection Pass Admissibility Hurdles In Oklahoma?, Julie Elizabeth Myers

Oklahoma Journal of Law and Technology

No abstract provided.

Gatekeeping Science: Using The Structure Of Scientific Research To Distinguish Between Admissibility And Weight In Expert Testimony, David L. Faigman, Christopher Slobogin, John Monahan

Northwestern University Law Review

Fundamental to all evidence rules is the division of responsibility between the judge, who determines the admissibility of evidence, and the jury, which gauges its weight. In most evidentiary contexts, such as those involving hearsay and character, threshold admissibility obligations are clear and relatively uncontroversial. The same is not true for scientific evidence. The complex nature of scientific inference, and in particular the challenges of reasoning from group data to individual cases, has bedeviled courts. As a result, courts vary considerably on how they define the judge’s gatekeeping task under Federal Rule of Evidence 702 and its state equivalents.

This …

Billy Joel: The Minstrel Testifies Or How The Rules Of Evidence Handcuff The Piano Man, Hon. Richard A. Dollinger

Touro Law Review

No abstract provided.

Face-To-Face With Facial Recognition Evidence: Admissibility Under The Post-Crawford Confrontation Clause, Joseph Clarke Celentino

Michigan Law Review

In Crawford v. Washington, the Supreme Court announced a major change in Confrontation Clause doctrine, abandoning a decades-old framework that focused on the common law principles of hearsay analysis: necessity and reliability. The new doctrine, grounded in an originalist interpretation of the Sixth Amendment, requires courts to determine whether a particular statement is testimonial. But the Court has struggled to present a coherent definition of the term testimonial. In its subsequent decisions, the Court illustrated that its new Confrontation Clause doctrine could be used to bar forensic evidence, including laboratory test results, if the government failed to produce the …

The Increasing Use Of Challenges To Expert Evidence Under Daubert And Rule 702 In Patent Litigation, Douglas G. Smith

Journal of Intellectual Property Law

No abstract provided.

The Future Of Confession Law: Toward Rules For The Voluntariness Test, Eve Brensike Primus

Michigan Law Review

Confession law is in a state of collapse. Fifty years ago, three different doctrines imposed constitutional limits on the admissibility of confessions in criminal cases: Miranda doctrine under the Fifth Amendment, Massiah doctrine under the Sixth Amendment, and voluntariness doctrine under the Due Process Clauses of the Fifth and Fourteenth Amendments. But in recent years, the Supreme Court has gutted Miranda and Massiah, effectively leaving suspects with only voluntariness doctrine to protect them during police interrogations. The voluntariness test is a notoriously vague case-by-case standard. In this Article, I argue that if voluntariness is going to be the framework for …

Blackness As Character Evidence, Mikah K. Thompson

Michigan Journal of Race and Law

Federal Rule of Evidence 404 severely limits the government’s ability to offer evidence of a defendant’s character trait of violence to prove action in conformity with that trait on the occasion in question. The Rule states that such character evidence is generally inadmissible when offered to prove propensity. The Rule also allows the government to offer evidence of an alleged victim’s character for peacefulness in homicide cases where the defendant asserts the self-defense privilege. Although criminal defendants may offer character evidence under limited circumstances, Rule 404 creates a significant disincentive for doing so. Where a defendant offers evidence of an …

Hypnosis In Our Legal System: The Status Of Its Acceptance In The Trial Setting, Joel R. Hlavaty

Akron Law Review

Hypnosis is a method of therapy which has been utilized by society for quite some time. Recently, it has gained popularity as a new device to be used in the trial setting. Although it is a legitimate method of therapy in the medical and psychological professions, in the hands of attorneys and the legal system it takes on a whole new life. This new life is plagued with questions of admissibility, reliability and suggestibility. This comment will examine these questions and the use of hypnosis in the various stages of trial. This paper will show that some courts hold such …

The Admissibility Of Confessions Compelled By Foreign Coercion: A Compelling Question Of Values In An Era Of Increasing International Criminal Cooperation, Geoffrey S. Corn, Kevin Cieply

Pepperdine Law Review

This Article proceeds on a simple and clear premise: a confession extracted by torture or cruel, inhuman, or degrading treatment should never be admitted into evidence in a U.S. criminal trial. Whether accomplished through extending the Due Process or Self-Incrimination based exclusionary rules to foreign official coercion, or by legislative action, such exclusion is necessary to align evidentiary practice regarding confessions procured by foreign agents with our nation's fundamental values as reflected in the Fifth Amendment and our ratification of the CAT. This outcome is not incompatible with Connelly. Rather, this Article explores the limits of the Court's language in …

Proving Personal Use: The Admissibility Of Evidence Negating Intent To Distribute Marijuana, Stephen Mayer

Michigan Law Review

Against the backdrop of escalating state efforts to decriminalize marijuana, U.S. Attorneys’ Offices continue to bring drug-trafficking prosecutions against defendants carrying small amounts of marijuana that are permitted under state law. Federal district courts have repeatedly barred defendants from introducing evidence that they possessed this marijuana for their own personal use. This Note argues that district courts should not exclude three increasingly common kinds of “personal use evidence” under Federal Rules of Evidence 402 and 403 when that evidence is offered to negate intent to distribute marijuana. Three types of personal use evidence are discussed in this Note: (1) a …

Is Limited Remand Required If The District Court Admitted Or Excluded Evidence Without A Daubert Analysis?, Robert B. Gilbreath

The Journal of Appellate Practice and Process

No abstract provided.

Strengths, Limitations, And Controversies Of Dna Evidence, Naseam Rachel Behrouzfard

University of Massachusetts Law Review

This article explores the benefits of DNA evidence as well as the evidentiary problems associated with DNA. Part II discusses the history, development, and the emergence of DNA in the criminal justice system. Part III analyzes the significance of DNA evidence and its impact on recent cases. Part IV describes the disadvantages of DNA evidence in terms of efficiency, risks, human error, and its impact on jurors.

Supreme Court, New York County, People V. Vasquez, Jessica Goodwin

Touro Law Review

No abstract provided.

Putting The Cat Back In The Bag: Involuntary Confessions And Self-Incrimination, Joseph A. Iemma

Touro Law Review

No abstract provided.

Evidentiary Use Of Photographic Identification: Is It Time For New York To Reevaluate Its Singular Exception?, Daniela Giordano

Touro Law Review

No abstract provided.

A Short Primer On The Admissibility Of Forensic Science Evidence In Tennessee: A Checklist, Bernard A. Raum

Tennessee Journal of Law and Policy

For decades, aircraft pilots have been using preflight and approach-to-landing checklists rather than relying on their memory to ensure that everything has been done in its proper sequence. The use of this tool gives pilots the ability to fly their aircrafts safely and according to an established procedure. Similarly, most trial attorneys employ witness checklists during the in-court examination of their witnesses to ensure that all of the witnesses' evidence has been fully presented and their exhibits have been properly marked and received in evidence. It is the intent of this presentation to suggest the use of another evidentiary checklist …

Admissibility Of Field Test Results At Trial To Prove Intoxication, Vincent J. Costa

Touro Law Review

No abstract provided.

The Federal Retreat From Protecting Defendants From Tainted Show-Up Identifications And The Superiority Of New York's Approach, Stephan Josephs

Touro Law Review

No abstract provided.

Is New York Achieving More Reliable And Just Convictions When The Admissibility Of A Suggestive Pretrial Identification Is At Issue?, Matthew Gordon

Touro Law Review

No abstract provided.