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Evidence Commons

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2003

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Articles 1 - 30 of 75

Full-Text Articles in Evidence

Summary Of Barry V. Lindner, 119 Nev. Adv. Op. No. 45, Matt Wagner Dec 2003

Summary Of Barry V. Lindner, 119 Nev. Adv. Op. No. 45, Matt Wagner

Nevada Supreme Court Summaries

No abstract provided.


Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman Dec 2003

Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman

Rutgers Law School (Newark) Faculty Papers

In this Article, Professor Sharfman addresses the problem of "discretionary valuation": that courts resolve valuation disputes arbitrarily and unpredictably, thus harming litigants and society. As a solution, he proposes the enactment of "valuation averaging," a new procedure for resolving valuation disputes modeled on the algorithmic valuation processes often agreed to by sophisticated private firms in advance of any dispute. He argues that by replacing the discretion of judges and juries with a mechanical valuation process, valuation averaging would cause litigants to introduce more plausible and conciliatory valuations into evidence and thereby reduce the cost of valuation litigation and increase the ...


Apologies And Legal Settlement: An Empirical Examination, Jennifer K. Robbennolt Dec 2003

Apologies And Legal Settlement: An Empirical Examination, Jennifer K. Robbennolt

Michigan Law Review

It is often said that U.S. legal culture discourages apologies. Defendants, defense counsel, and insurers worry that statements of apology will be admissible at trial and will be interpreted by jurors and judges as admissions of responsibility. In recent years, however, several legal commentators have suggested that disputants in civil lawsuits should be encouraged to apologize to opposing parties. They claim that apologies will avert lawsuits and promote settlement. Consistent with this view, legislatures in several states have enacted statutes that are intended to encourage and protect apologies by making them inadmissible. In addition, some commentators argue that defendants ...


Expert Testimony And Scientific Evidence, Lynn Mclain Nov 2003

Expert Testimony And Scientific Evidence, Lynn Mclain

All Faculty Scholarship

Handout from a day-long lecture on expert and scientific testimony at the Maryland Judicial Institute.


Criminal Law, Marla Graff Decker, Stephen R. Mccullough Nov 2003

Criminal Law, Marla Graff Decker, Stephen R. Mccullough

University of Richmond Law Review

No abstract provided.


Daubert & Danger: The "Fit" Of Expert Predictions In Civil Commitments, Alex Scherr Nov 2003

Daubert & Danger: The "Fit" Of Expert Predictions In Civil Commitments, Alex Scherr

Scholarly Works

The opinions of experts in prediction in civil commitment hearings should help the courts, but over thirty years of commentary, judicial opinion, and scientific review argue that predictions of danger lack scientific rigor. The United States Supreme Court has commented regularly on the uncertainty of predictive science. The American Psychiatric Association has argued to the Court that "[t]he professional literature uniformly establishes that such predictions are fundamentally of very low reliability." Scientific studies indicate that some predictions do little better than chance or lay speculation, and even the best predictions leave substantial room for error about individual cases. The ...


Life Sciences, Technology, And The Law - Symosium Transcript - March 7, 2003, Philip R. Reilly, David H. Kaye, Jonathan J. Koehler, Richard O. Lempert Oct 2003

Life Sciences, Technology, And The Law - Symosium Transcript - March 7, 2003, Philip R. Reilly, David H. Kaye, Jonathan J. Koehler, Richard O. Lempert

Michigan Telecommunications & Technology Law Review

Life sciences, Technology, and the Law Symposium held at the University of Michigan Law School Friday, March 7, 2003


Impeachment Of Witnesses: A Walking Tour, Lynn Mclain Jun 2003

Impeachment Of Witnesses: A Walking Tour, Lynn Mclain

All Faculty Scholarship

This handout from the Maryland State's Attorneys' Convention in 2003 summarizes the general methods of witness impeachment, who may be impeached, and impeachments by attacks on witnesses' character for truthfulness.


Daubert & Danger: The "Fit" Of Expert Predictions In Civil Commitments, Alexander W. Scherr Jun 2003

Daubert & Danger: The "Fit" Of Expert Predictions In Civil Commitments, Alexander W. Scherr

Popular Media

Never make predictions, especially about the future. But in civil commitments, courts predict future behavior all the time. Judicial action here has severe results for the individual: deprivation of liberty, potentially unwanted and intrusive treatment, and the stigma of mental illness. Judicial inaction can also do harm: erroneous release can lead to injury of the person or others. Resolving these risks requires courts to find the person poses a danger to him/herself or others because of a mental illness.


"Quick-Takes" On A Few Recent Decisions In Evidence Law ... And Rule 5-407, Lynn Mclain May 2003

"Quick-Takes" On A Few Recent Decisions In Evidence Law ... And Rule 5-407, Lynn Mclain

All Faculty Scholarship

Handout from the State and Local Government Law Institute covering recent (2003) Maryland evidence cases.


Life After Death Row: Preventing Wrongful Capital Convictions And Restoring Innocence After Exoneration, Jean C. Blackerby May 2003

Life After Death Row: Preventing Wrongful Capital Convictions And Restoring Innocence After Exoneration, Jean C. Blackerby

Vanderbilt Law Review

In Gregg v. Georgia, the Supreme Court overturned its ruling in Furman v. Georgia and held that the death penalty, as administered by the states, was not per se "cruel and unusual punishment" in violation of the Eighth Amendment.' Yet errors continue to occur at an alarming rate in the capital punishment system-over one hundred death row inmates have been released pursuant to evidence of actual innocence since 1973. Indeed, the number of death row exonerations has been steadily increasing in recent years.

Of those exonerations, DNA testing played a substantial role in twelve. Many more have benefited from the ...


Reporter's Privilege In Utah, Edward L. Carter May 2003

Reporter's Privilege In Utah, Edward L. Carter

Brigham Young University Journal of Public Law

No abstract provided.


Post-Trilogy Science In The Courtroom, Part Ii: What Are The Judges Still Doing?, David S. Caudill, Lewis H. Larue Apr 2003

Post-Trilogy Science In The Courtroom, Part Ii: What Are The Judges Still Doing?, David S. Caudill, Lewis H. Larue

Scholarly Articles

Not available.


Jurors' Evaluations Of Expert Testimony: Judging The Messenger And The Message, Sanja Kutnjak Ivkovic, Valerie P. Hans Apr 2003

Jurors' Evaluations Of Expert Testimony: Judging The Messenger And The Message, Sanja Kutnjak Ivkovic, Valerie P. Hans

Cornell Law Faculty Publications

Jurors are laypersons with no specific expert knowledge, yet they are routinely placed in situations in which they need to critically evaluate complex expert testimony. This paper examines jurors' reactions to experts who testify in civil trials and the factors jurors identify as important to expert credibility. Based on in-depth qualitative analysis of interviews with 55 jurors in 7 civil trials, we develop a comprehensive model of the key factors jurors incorporate into the process of evaluating expert witnesses and their testimony. Contrary to the frequent criticism that jurors primarily evaluate expert evidence in terms of its subjective characteristics, the ...


Jailhouse Informants, Robert M. Bloom Apr 2003

Jailhouse Informants, Robert M. Bloom

Boston College Law School Faculty Papers

No abstract provided.


Remedying Judicial Foot-In-Mouth Disease: Nevada's Prohibitions Against Judicial Commentary On Evidence And The Rule Of Harmless Error, Andrew F. Dixon Mar 2003

Remedying Judicial Foot-In-Mouth Disease: Nevada's Prohibitions Against Judicial Commentary On Evidence And The Rule Of Harmless Error, Andrew F. Dixon

Nevada Law Journal

No abstract provided.


A Review Of China's New Civil Evidence Law, Paul J. Schmidt Mar 2003

A Review Of China's New Civil Evidence Law, Paul J. Schmidt

Washington International Law Journal

On December 21, 2001, China's Supreme People's Court promulgated landmark rules concerning the production and use of evidence in civil cases. These rules became effective on April 1, 2002 and apply to legal actions initiated after that date. The rules apply in all Chinese courts, from the high and intermediate level courts found at the provincial and prefecture level, down to the basic level courts found in rural counties and in urban districts. Of the eighty-three newly promulgated rules, more than half concern procedures for exchanging, confronting, investigating, or discovering evidence. Eleven are strict rules of evidence. The ...


A Review Of China's New Civil Evidence Law, Paul J. Schmidt Mar 2003

A Review Of China's New Civil Evidence Law, Paul J. Schmidt

Washington International Law Journal

On December 21, 2001, China's Supreme People's Court promulgated landmark rules concerning the production and use of evidence in civil cases. These rules became effective on April 1, 2002 and apply to legal actions initiated after that date. The rules apply in all Chinese courts, from the high and intermediate level courts found at the provincial and prefecture level, down to the basic level courts found in rural counties and in urban districts. Of the eighty-three newly promulgated rules, more than half concern procedures for exchanging, confronting, investigating, or discovering evidence. Eleven are strict rules of evidence. The ...


The Epistemology Of Prediction: Future Dangerousness Testimony And Intellectual Due Process, Erica Beecher-Monas Mar 2003

The Epistemology Of Prediction: Future Dangerousness Testimony And Intellectual Due Process, Erica Beecher-Monas

Washington and Lee Law Review

No abstract provided.


Manual De Derecho Procesal Civil, Edward Ivan Cueva Feb 2003

Manual De Derecho Procesal Civil, Edward Ivan Cueva

Edward Ivan Cueva

No abstract provided.


Why Judges Applying The Daubert Trilogy Need To Know About The Social, Institutional, And Rhetorical -- And Not Just The Methodological Aspects Of Science, Lewis H. Larue, David S. Caudill Jan 2003

Why Judges Applying The Daubert Trilogy Need To Know About The Social, Institutional, And Rhetorical -- And Not Just The Methodological Aspects Of Science, Lewis H. Larue, David S. Caudill

Scholarly Articles

In response to the claim that many judges are deficient in their understanding of scientific methodology, this Article identifies in recent cases (i) a pragmatic perspective on the part of federal appellate judges when they reverse trial judges who tend to idealize science (i.e., who do not appreciate the local and practical goals and limitations of science), and (ii) an educational model of judicial gatekeeping that results in reversal of trial judges who defer to the social authority of science (i.e., who mistake authority for reliability). Next, this Article observes that courts (in the cases it analyzes) are ...


Ohio's Patient-Physician Privilege: Whether Planned Parenthood Is A Protected Party, Melissa O'Neill Jan 2003

Ohio's Patient-Physician Privilege: Whether Planned Parenthood Is A Protected Party, Melissa O'Neill

Journal of Law and Health

This article will suggest that under Ohio's patient-physician privilege, the results of pregnancy tests that are administered at Planned Parenthood clinics will not be considered privileged or confidential information, unless the test is administered by a physician and is later used by a physician in treatment of the woman. In particular, this article will briefly examine the history of a right to medical privacy, the development of the patient-physician privilege and the origin of Planned Parenthood . The notion of very intimate details of a person's health, including diseases, conditions, diagnoses and prognoses being readily available to whoever would ...


The Epistemology Of Prediction: Future Dangerousness Testimony And Intellectual Due Process, Erica Beecher-Monas Jan 2003

The Epistemology Of Prediction: Future Dangerousness Testimony And Intellectual Due Process, Erica Beecher-Monas

Law Faculty Research Publications

No abstract provided.


Danger At The Edge Of Chaos: Predicting Violent Behavior In A Post-Daubert World, Erica Beecher-Monas, Edgar Garcia-Ril Jan 2003

Danger At The Edge Of Chaos: Predicting Violent Behavior In A Post-Daubert World, Erica Beecher-Monas, Edgar Garcia-Ril

Law Faculty Research Publications

No abstract provided.


"They Say He's Gay": The Admissibility Of Evidence Of Sexual Orientation, Peter Nicolas Jan 2003

"They Say He's Gay": The Admissibility Of Evidence Of Sexual Orientation, Peter Nicolas

Articles

This Article seeks to fill an existing gap. Part II of this Article discusses the ways in which the sexual orientation of a victim, party, or witness is relevant within the meaning of Federal Rule of Evidence 401 and its state-law analogues, as well as when such evidence, although relevant, is nonetheless excluded due to its potential prejudicial impact.

Part III of this Article examines the hearsay rule and its exceptions to determine when, if ever, a person's assertion that he is gay can be admitted into evidence. Part IV of this Article discusses the applicability of the spousal ...


Reliability And The Admissibility Of Experts, Dale A. Nance Jan 2003

Reliability And The Admissibility Of Experts, Dale A. Nance

Faculty Publications

Modern law on expert testimony insists, as a condition of admissibility, that the asserted expertise be determined by the trial judge to be reliable. Reliability is usually characterized as a dichotomous attribute of evidence, as if expertise were either reliable or unreliable. This article argues that making progress in the development of meaningful and appropriate restrictions on the admissibility of expert testimony requires that we abandon this conceptualization and understand the implications of endorsing a gradational notion of reliability in which evidence can be more or less reliable and in which a comparative assessment of reliability is prominent. Consistent with ...


Causation In Retaliation Claims: Conflict Between The Prima Facie Case And The Plaintiff's Ultimate Burden Of Pretext, Rhea Gertken Jan 2003

Causation In Retaliation Claims: Conflict Between The Prima Facie Case And The Plaintiff's Ultimate Burden Of Pretext, Rhea Gertken

Washington University Law Review

No abstract provided.


Fifteen Years After The Federal Sentencing Revolution: How Mandatory Minimums Have Undermined Effective And Just Narcotics Sentencing Perspectives On The Federal Sentencing Guidelines And Mandatory Sentencing, Ian Weinstein Jan 2003

Fifteen Years After The Federal Sentencing Revolution: How Mandatory Minimums Have Undermined Effective And Just Narcotics Sentencing Perspectives On The Federal Sentencing Guidelines And Mandatory Sentencing, Ian Weinstein

Faculty Scholarship

Federal criminal sentencing has changed dramatically since 1988. Fifteen years ago, judges determined if and for how long a defendant would go to jail. Since that time, changes in substantive federal criminal statutes, particularly the passage of an array of mandatory minimum penalties and the adoption of the federal sentencing guidelines, have limited significantly judicial sentencing power and have remade federal sentencing and federal criminal practice. The results of these changes are significantly longer federal prison sentences, as was the intent of these reforms, and the emergence of federal prosecutors as the key players in sentencing. Yet, at the same ...


Attorney-Client Privilege And The Patent Prosecution Process In The Post-Spalding World, Jonathan G. Musch Jan 2003

Attorney-Client Privilege And The Patent Prosecution Process In The Post-Spalding World, Jonathan G. Musch

Washington University Law Review

No abstract provided.


Admissibility Of Fruits Of Breached Evidentiary Privileges: The Importance Of Adversarial Fairness, Party Culpability, And Fear Of Immunity, Robert P. Mosteller Jan 2003

Admissibility Of Fruits Of Breached Evidentiary Privileges: The Importance Of Adversarial Fairness, Party Culpability, And Fear Of Immunity, Robert P. Mosteller

Washington University Law Review

In civil cases, breaches of attorney-client confidentiality during litigation sometimes result, not only in exclusion of communication, but also in an order prohibiting use of the information obtained from the communication in any way. In criminal prosecutions, provisions of the Constitution under certain fact patterns give protection to attorney-client confidentiality, including the attorney-client privilege, which also prohibits derivative use of the confidential communications. This Article examines two general conclusions reached by the case law. The first is the general non-protection of derivative use of the disclosure of confidential information covered by evidentiary privileges. The second concerns special situations where protection ...