Evidence Commons^™

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Convenience Or Confidentiality: Nevada’S Digital Data Laws In The Age Of Always-Listening Devices, E. Sebastian Cate-Cribari

Nevada Law Journal

No abstract provided.

Restoring The Presumption Of Innocence: Protecting A Defendant’S Right To A Fair Trial By Closing The Door On 404(B) Evidence, Aaron Diaz

St. Mary's Law Journal

Congress enacted the Federal Rules of Evidence to govern evidentiary procedures and “eliminate unjustifiable expense and delay.” In criminal cases, for example, Federal Rule of Evidence 404(b) seeks to prevent prosecutors from improperly introducing a defendant’s past misdeeds. Nevertheless, prosecutors often attempt to introduce a defendant’s past misconduct to suggest that a defendant has a propensity to commit crimes, which is improper character evidence. Unsurprisingly, 404(b) is one of the most litigated evidence rules and has generated more published opinions than any other subsections of the Rules. And despite efforts to amend Rule 404(b), the rule has remained virtually untouched. …

Must A Friend Indeed Reveal A Friend’S Misdeed? Exploring The Merits Of A Friendship Privilege, Michael D. Moberly

St. Mary's Law Journal

Abstract forthcoming.

A Two-Stage Model For Social Network Investigations In Digital Forensics, Anne David, Sarah Morris, Gareth Appleby-Thomas

Journal of Digital Forensics, Security and Law

This paper proposes a two-stage model for identifying and contextualizing features from artefacts created as a result of social networking activity. This technique can be useful in digital investigations and is based on understanding and the deconstruction of the processes that take place prior to, during and after user activity; this includes corroborating artefacts. Digital Investigations are becoming more complex due to factors such as, the volume of data to be examined; different data formats; a wide range of sources for digital evidence; the volatility of data and the limitations of some of the standard digital forensic tools. This paper …

"Against The Defendant": Plea Rule's Purpose V. Plain Meaning, Nick Bell

Arkansas Law Review

Rarely is there a proverbial “smoking gun” in criminal prosecutions. Instead, prosecutors and defense attorneys must tell juries competing stories—largely from circumstantial evidence—and allow jurors to determine what happened based on inferences gleaned from argument and testimony. Naturally, this creates substantial uncertainty for both prosecutors and defendants. Instead of rolling the dice at trial, the vast majority of criminal matters are resolved through plea bargaining. Plea bargaining provides both sides with a certainty otherwise unobtainable through a traditional trial. The prosecution guarantees itself a conviction, and the defendant will often receive a lighter sentence than if he or she had …

"Buy One Get One Free": How Reindictment Policies Permit Excessive Searches, Katie Carroll

William & Mary Bill of Rights Journal

When the government decides to stop prosecuting a case, it files a nolle prosequi with the court. Nolle prosequis are slightly different from motions to dismiss. Unlike a motion to dismiss with prejudice, a prosecutor may later reindict a defendant with the same crime without a double jeopardy issue arising after dropping the same case through nolle prosequi. Furthermore, many states do not require judicial approval for a nolle prosequi. Therefore, prosecutors can gain a number of advantages by using nolle prosequi, like avoiding speedy trial deadlines or having a second chance to win important evidentiary hearings.

The advantages of …

Toward A More Apparent Approach To Considering The Admission Of Expert Testimony, Thomas D. Schroeder

Notre Dame Law Review

This Article highlights lingering confusion in the caselaw as to the proper standard for the trial court’s discharge of its gatekeeping role for the admission of expert testimony. The Article urges correction of the faulty application of Daubert’s admonition as to “shaky but admissible” evidence as a substitute for proper discharge of the trial court’s gatekeeper function under Rule 104(a). The Article concludes with several suggestions for trial and appellate courts to consider for better decisionmaking in discharging their duty to apply Rule 104(a)’s preponderance standard to the elements of Rule 702.

Evidence, W. Randall Bassett, Val Leppert, Elijah T. Staggers

Mercer Law Review

In the 2019 term, the United States Court of Appeals for the Eleventh Circuit issued several opinions deciding evidentiary issues. Those opinions span a broad range of topics including constitutional limitations on admissible evidence, expert testimony, the scope of certain hearsay exceptions, and various other evidentiary rules. This article looks back at the Eleventh Circuit's 2019 term to highlight and analyze keynote decisions on those issues.

Meta-Evidence And Preliminary Injunctions, Maggie Wittlin

UC Irvine Law Review

The decision to issue a preliminary injunction is enormously consequential; it has been likened to “judgment and execution before trial.” Yet, courts regularly say that our primary tool for promoting truth seeking at trial—the Federal Rules of Evidence—does not apply at preliminary injunction hearings. Judges frequently consider inadmissible evidence to make what may be the most important ruling in the case. This Article critically examines this widespread evidentiary practice.

In critiquing courts’ justifications for abandoning the Rules in the preliminary injunction context, this Article introduces a new concept: “meta-evidence.” Meta-evidence is evidence of what evidence will be presented at trial. …

The Clergy-Penitent Privilege: The Role Of Clergy In Perpetuating And Preventing Domestic Violence, Kami Orton

Nevada Law Journal Forum

Domestic violence occurs at alarming rates in all socioeconomic levels, races, locations, sexual orientations, and professions. Domestic violence occurs at similar frequencies among religious and non-religious individuals. Clergy play an important role in religious communities. The clergy-penitent privilege was created to protect the relationship between clergy and communicant and prevents clergy from testifying about spiritual communications. However, the privilege is currently an absolute privilege which is unnecessary and hurts victims and survivors of domestic violence. Additionally, the statutorily written privilege is not aligned with the application and practice of the privilege. Practice indicates clergy tend to desire to testify and …

Climate Change Science And The Daubert Standard, Fred K. Morrison, Craig Manson, Matthew C. Wickersham

William & Mary Environmental Law and Policy Review

Climate change science attempts to predict the future based on complex modeling of potential levels of CO2, other greenhouse gases, manmade conditions, and naturally occurring events. Even the most widely cited analysis of climate change studies expressly acknowledges the limitations on accurately predicting the effects of climate change on anything other than a macro basis.1 These studies acknowledge substantial uncertainty in the prediction of climate change and its effects on a regional level, much less on a local level.2 Recent lawsuits brought by the State of Rhode Island; the counties of King (Washington), Marin (California), and San Mateo (California); the …

Truth And Justice Vs. The Integrity Of The Family Unit: Family Members' Testimonies From A Comparative And Normative Viewpoint, Dr. Guy Ben-David

Georgia Journal of International & Comparative Law

No abstract provided.

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.

State V. Pinkham: Erosion Of Meaningful Forth Amendment Protection For Vehicle Stops In Maine?, Roger M. Clement Jr.

Maine Law Review

In State v. Pinkham, the Maine Supreme Judicial Court, sitting as the Law Court, held that a police officer's stop of a motorist to inquire and advise about the motorist's improper-but not illegal-lane usage did not necessarily violate the Fourth Amendment's proscription against unreasonable seizures. The Pinkham decision is the first time that the Law Court has validated the stop of a moving vehicle in the absence of either a suspected violation of law or an imminent, ongoing threat to highway safety.
This Note considers whether the Law Court was correct in sustaining the police officer's stop of Ronald Pinkham. …

Please Stop: The Law Court's Recent Roadblock Decisions, Jonathan A. Block

Maine Law Review

Police checkpoints or “roadblocks” have become an increasingly utilized law enforcement tool. At best, these checkpoints result in only a minor inconvenience to motorists. When abused, however, roadblocks have the potential for invidious invasions of privacy and personal freedom. Roadblocks are designed to deter, and to a lesser extent detect, criminal activity by stopping everyone—both the guilty and the law-abiding—for a brief inspection, thereby impinging to some degree on one's freedom of travel, privacy, and “right to be let alone.” Such “seizures” must be “reasonable” under the Fourth Amendment in order to survive constitutional challenge. The major difference between roadblocks …

Reviving “Dead Letters”: Reimagining Federal Rule Of Evidence 410 As A Conditional Privilege, Peter G. Cornick

Vanderbilt Law Review

Though understudied relative to its fellow specialized relevance rules, Federal Rule of Evidence 410 protects a crucial element of the criminal justice system: plea negotiations. As written, the rule prevents the admission of evidence gathered during plea discussions, which helps assure criminal defendants that their candid discussions with prosecutors will not harm them in any future proceeding. But the Supreme Court has greatly weakened Rule 410, permitting broad waiver of the rule’s protections that run afoul of Congress’s purpose in creating the rule and its plain language. In light of these developments, the Note argues that Rule 410 should be …

Does Impeachment By Conviction Create Undue Prejudice? An Experiment And An Analysis, David Crump

Akron Law Review

The Federal Rules of Evidence, and rules in the States, allow for impeachment of the testimony of a witness by proof of the witness's criminal convictions. If the witness is the criminal defendant, however, there are restrictions on this kind of impeachment. The theory is that the jury is supposed to use the evidence solely for impeachment and not to support an inference that the defendant has a propensity toward committing crimes. But intuition tells us that the jury is likely to be influenced toward the prohibited inference of guilt of the crime charged rather than devaluation of credibility alone. …

Secret Conviction Programs, Meghan J. Ryan

Washington and Lee Law Review

Judges and juries across the country are convicting criminal defendants based on secret evidence. Although defendants have sought access to the details of this evidence—the results of computer programs and their underlying algorithms and source codes—judges have generally denied their requests. Instead, judges have prioritized the business interests of the for-profit companies that developed these “conviction programs” and which could lose market share if the secret algorithms and source codes on which the programs are based were exposed. This decision has jeopardized criminal defendants’ constitutional rights.

A Brief Essay Defending The Doctrine Of Objective Chances As A Valid Theory For Introducing Evidence Of An Accused’S Uncharged Misconduct, Edward J. Imwinkelried

New Mexico Law Review

Rule 404(b) has been described as the most controversial of the Federal Rules of Evidence. In many states, errors in the admission of uncharged misconduct evidence are the most common ground for reversal in criminal cases. Testimony about an accused’s other crimes can be so prejudicial that it is “often virtually decisive of the whole case.”

It would be a mistake to jettison the character evidence prohibition altogether. Evidence reformers should focus on improving the administration of the doctrine of objective chances rather than seeking its abolition.

Conference On Best Practices For Managing Daubert Questions

Fordham Law Review

Most of our faculty have meaningful disciplinary training outside of law including doctrinal training in multiple fields. Our faculty holds secondary appointments in many schools and departments on campus including biology, chemistry, economics, history, management, medicine, political science, psychiatry, radiology, and sociology, and we are home to a unique PhD program in law and economics, as well as a law and neuroscience program funded by the MacArthur Foundation. As a school, we therefore believe we are a logical host for you and your work, and we are thrilled that you are here with us. And speaking personally, I’m particularly pleased …

Limitations Of Washington Evidence Rule 413, Sarah Desautels

Washington Law Review

This Comment analyzes Washington State Evidence Rule 413 (ER 413). ER 413 renders evidence of the immigration status of criminal defendants, civil plaintiffs, and witnesses presumptively inadmissible at trial. The Washington State Supreme Court adopted ER413 in September 2018. It is the first of its kind in the nation. ER 413 provides a clear, uniform rule limiting the use of immigration evidence, an area where prior caselaw had created uncertainty. However, ER 413 falls short of its goal of promoting access to justice and protecting immigrants from jury bias without a supporting system that addresses (1) the dangers of implicit …

People V. Buza: A Step In The Wrong Direction, Emily R. Pincin

Loyola of Los Angeles Law Review

No abstract provided.

California's Child Abuse Dependency Hearsay Exception In In Re I.C., Rachel Monas

Loyola of Los Angeles Law Review

No abstract provided.

Blatantly Biased: Expanding Pena-Rodriguez To Cases Of Bias Against Sexual Orientation, Religion, And Sex, Tressa Bussio

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

No abstract provided.

A Break From Reality: Modernizing Authentication Standards For Digital Video Evidence In The Era Of Deepfakes, John P. Lamonaga

American University Law Review

The legal standard for authenticating photographic and video evidence in court has remained largely static throughout the evolution of media technology in the twentieth century. The advent of “deepfakes,” or fake videos created using artificial intelligence programming, renders outdated many of the assumptions that the Federal Rules of Evidence are built upon.

Rule 901(b)(1) provides a means to authenticate evidence through the testimony of a “witness with knowledge.” Courts commonly admit photographic and video evidence by using the “fair and accurate portrayal” standard to meet this Rule’s intent. This standard sets an extremely low bar—the witness need only testify that …

Domesticating Comity: Territorial U.S. Discovery In Violation Of Foreign Privacy Laws, Corby F. Burger

Cornell Law Review

The European Union's (EU) recently enacted General Data Protection Regulation (GDPR) is being billed as "the most important change in data privacy regulation in 20 years." The GDPR sets forth a stringent set of binding regulations that govern how data controllers and processors manage the private electronic data of EU citizens. In an audacious effort to ensure comprehensive privacy protection for EU citizens in a globally connected digital landscape, EU regulators have made the GDPR apply extraterritorially. The regulation extends beyond the borders of the European Union, reaching any entity that stores or processes the personal data of EU citizens …

Sexual Contact Between A Suspect And Police Officers: How Far Should Police Go To Prove Prostitution?, Paula Del Valle Torres

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Evidence, John E. Hall Jr., W. Scott Henwood, Leesa Guarnotta

Mercer Law Review

In the sixth year since the implementation of Georgia’s new Evidence Code, the Georgia Supreme Court must still remind lower courts and litigators to rely upon the new Code and its subsequent case law when addressing evidentiary issues arising after 2013. This Article highlights some of the continuing changes to Georgia’s evidence rules based on the new Georgia Evidence Code, Official Code of Georgia Annotated (O.C.G.A.) Title 24. This Article period spans from June 1, 2018 to May 31, 2019. Specifically, this Article addresses: (1) the consequences of straying from the new Code; (2) new interpretations of Rule 404(b); and …

The Decline And Fall Of Circumstantial Evidence In Antitrust Law, Christopher R. Leslie

American University Law Review

No abstract provided.