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Evidence Commons

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2004

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Articles 1 - 30 of 55

Full-Text Articles in Evidence

Summary Of Banks V. Sunrise Hospital, 120 Nev. Adv. Op. No. 89, Beth Rosenblum Dec 2004

Summary Of Banks V. Sunrise Hospital, 120 Nev. Adv. Op. No. 89, Beth Rosenblum

Nevada Supreme Court Summaries

No abstract provided.


Extending A Qualified Evidentiary Privilege To Confidential Communications Between Employees And Their Union Representatives, Michael D. Moberly Dec 2004

Extending A Qualified Evidentiary Privilege To Confidential Communications Between Employees And Their Union Representatives, Michael D. Moberly

Nevada Law Journal

No abstract provided.


A Rude Awakening: What To Do With The Sleepwalking Defense?, Mike Horn Dec 2004

A Rude Awakening: What To Do With The Sleepwalking Defense?, Mike Horn

Boston College Law Review

Some sleepwalkers commit acts of violence, or even murder, in their sleep. Courts must decide what to do with criminal defendants who raise a defense of sleepwalking. A brief review of common law reveals that courts apply the defense inconsistently under various doctrines of justification and excuse. Sleepwalking is a unique medical phenomenon, and courts are poorly equipped to evaluate claims of sleepwalking under existing common law defenses. This Note proposes a single sleepwalking defense based on a balancing test that integrates the medical understanding of sleepwalking.


Electronic Discovery Sanctions In The Twenty-First Century, Shira A. Scheindlin, Kachana Wangkeo Oct 2004

Electronic Discovery Sanctions In The Twenty-First Century, Shira A. Scheindlin, Kachana Wangkeo

Michigan Telecommunications & Technology Law Review

At the federal level, the Civil Rules Advisory Committee has responded to the "unique and necessary feature of computer systems--the automatic recycling, overwriting, and alteration of electronically stored information"--with a proposed amendment to Rule 37. The proposed Rule 37(f) would shield litigants from sanctions for the destruction of electronic data if the party "took reasonable steps to preserve the information after it knew or should have known the information was discoverable in the action" and "the failure resulted from the loss of the information because of the routine operation of the party's electronic information system." The safe ...


Standard Of Review For Prosecutorial Use Of Race Evidence During Trial, Peter Chung Oct 2004

Standard Of Review For Prosecutorial Use Of Race Evidence During Trial, Peter Chung

University of Michigan Journal of Law Reform

This Note argues that unfettered use of cultural evidence by prosecutors creates the same problems as would the use of evidence of race to show propensity of the accused to act. Using Wisconsin v. Chu as a case study, the author demonstrates that cultural evidence, just as any other evidence to show propensity to act, must rest upon the proper evidentiary foundation and that prosecutors must be sharply constrained in their use of cultural evidence.


Behavioral Science Evidence In The Age Of Daubert: Reflections Of A Skeptic, Mark S. Brodin Sep 2004

Behavioral Science Evidence In The Age Of Daubert: Reflections Of A Skeptic, Mark S. Brodin

ExpressO

The piece briefly traces the history of the use of social science in the courtroom, and proceeds to critically measure this form of proof (particularly “syndrome” evidence) against both the reliability standards imposed by Daubert v. Merrell Dow Pharmaceuticals, Inc. and the traditional requirements for admission of expert testimony. Drawing upon empirical research concerning juries and decision-making as well as transcripts of the use of behavioral evidence at trial, I conclude that much of this testimony should be rejected. Rather than providing meaningful assistance to the jury, social science experts can distort the accuracy of the fact-finding process and imperil ...


Standards Of Proof In Japan And The United States, Kevin M. Clermont Sep 2004

Standards Of Proof In Japan And The United States, Kevin M. Clermont

Cornell Law Faculty Publications

This article treats the striking divergence between Japanese and U.S. civil cases as to standards of proof. The civil-law Japan requires proof to a high probability similar to the criminal standard, while the common-law United States requires only that the burdened party prove the fact to be more likely than not. This divergence not only entails great practical consequences, but also suggests a basic difference in attitudes toward the process of trial.

As to the historical causation of the difference in standards of proof, civil-law and common-law standards diverged in the late eighteenth century, probably because of one system ...


Spin Control And The High-Profile Client -- Should The Attorney-Client Privilege Extend To Communications With Public Relations Consultants?, Ann Murphy Sep 2004

Spin Control And The High-Profile Client -- Should The Attorney-Client Privilege Extend To Communications With Public Relations Consultants?, Ann Murphy

ExpressO

The use of public relations consultants in connection with high-profile cases is a relatively new development. Public relations firms are advertising that their advice is necessary when celebrities face criminal charges. It is beyond speculation that such advice may be helpful, but should such advice be protected from disclosure under the attorney-client privilege? Privileges are to be recognized “only within the narrowest limits required by principle.” Public relations consultants transmit information to the public. The communications are not meant to be confidential. These communications do not fall within the purposes or the history of the attorney-client privilege.


Summary Of Lobato V. State, 120 Nev. Adv. Op. No. 57, Keith Brown Sep 2004

Summary Of Lobato V. State, 120 Nev. Adv. Op. No. 57, Keith Brown

Nevada Supreme Court Summaries

District court convictions for first-degree murder and sexual penetration of a dead body reversed and case remanded for new trial. Trial court’s exclusion of extrinsic evidence to prove potential bias of State’s witness against Defendant was reversible error, not harmless error. Although a trial court had broad discretion to control cross-examination attacking a witness’s credibility, that discretion was narrowed when bias or motive was to be shown. Unless materially related to the case and admissible on other grounds, extrinsic evidence of prior bad acts or inconsistent statements is always collateral and, therefore, inadmissible to attack credibility. But ...


7. The Supreme Court And Reluctant Witnesses: Crawford V. Washington., Thomas D. Lyon Aug 2004

7. The Supreme Court And Reluctant Witnesses: Crawford V. Washington., Thomas D. Lyon

Thomas D. Lyon

A recent U.S. Supreme Court case is sure to have a major impact on the prosecution of family violence cases in which the victim fails to testify at trial.  A number of states have special hearsay exceptions for statements from victims of spouse abuse and child abuse.  Those exceptions often allow the statements into evidence even when the victim does not testify (usually with additional requirements, such as corroborative evidence or a finding that the statement has "indicia of reliability").  The U.S. Supreme Court has recently held that if the victim does not testify, "testimonial" hearsay is inadmissible ...


Forecasting Harm: The Law And Science Of Risk Assessment Among Prisoners, Predators, And Patients, John Monahan Aug 2004

Forecasting Harm: The Law And Science Of Risk Assessment Among Prisoners, Predators, And Patients, John Monahan

ExpressO

Scientifically valid instruments are being used for the first time to assess an individual’s risk of violence in criminal sentencing and in the civil commitment of mental patients and sexual predators. Risk factors on these instruments pertain to what the person is (e.g., gender), what the person has (e.g., personality disorder), what the person has done (e.g., past violence), and what has been done to the person (e.g., past victimization). In this Article, I argue that in criminal law, with its emphasis on blameworthiness for actions taken, the admissibility of scientifically valid risk factors is ...


Shame And Scandal: Clinical And Canon Law Perspectives On The Crisis In The Priesthood, Frank R. Herrmann, Gerald E. Kochansky Jun 2004

Shame And Scandal: Clinical And Canon Law Perspectives On The Crisis In The Priesthood, Frank R. Herrmann, Gerald E. Kochansky

Frank R. Herrmann, S.J.

No abstract provided.


"He Looks Guilty": Reforming Good Character Evidence To Undercut The Presumption Of Guilt., Josephine Ross Jun 2004

"He Looks Guilty": Reforming Good Character Evidence To Undercut The Presumption Of Guilt., Josephine Ross

Boston College Law School Faculty Papers

Juries often use short-cuts to determine the character of the accused, such as their job, age, race, gender, marital status, or what the person looks like. These short-cuts often substitute for character evidence in courtrooms across the United States, adding to the divide in the criminal justice system today. This problem provides a lens to examine the character evidence rules and how they are implemented. Rules governing good and bad character evidence themselves have been turned on their head. A defendant’s right to put in good character has been called “deeply imbedded in our jurisprudence.” Nevertheless, the rules currently ...


“Which One Of You Did It?” Criminal Liability For “Causing Or Allowing” The Death Of A Child, Lissa Griffin Jun 2004

“Which One Of You Did It?” Criminal Liability For “Causing Or Allowing” The Death Of A Child, Lissa Griffin

ExpressO

No abstract provided.


Summerlin V. Stewart And Ring Retroactivity, Tonya G. Newman Jun 2004

Summerlin V. Stewart And Ring Retroactivity, Tonya G. Newman

Chicago-Kent Law Review

The Sixth Amendment guarantees criminal defendants a trial before a jury. Until the Supreme Court decided Ring v. Arizona, however, nine states wholly or partially surrendered a portion of the jury's role to a sentencing judge. Specifically, those states allowed sentencing judges to make factual determinations regarding sentencing considerations by which capital defendants became eligible for the death penalty. The Ring Court halted the use of sentencing considerations to erode the jury's fundamental role in preserving accuracy and fairness of criminal proceedings, holding that the Sixth Amendment requires that a jury make factual findings on all elements, including ...


Contaminating The Verdict: The Problem Of Juror Misconduct, Bennett L. Gershman May 2004

Contaminating The Verdict: The Problem Of Juror Misconduct, Bennett L. Gershman

ExpressO

No abstract provided.


2003 Trademark Law Decisions Of The Federal Circuit, Roberta Horton, Catherine Rowland Apr 2004

2003 Trademark Law Decisions Of The Federal Circuit, Roberta Horton, Catherine Rowland

American University Law Review

No abstract provided.


Recent Evaluative Research On Jury Trial Innovations, B. Michael Dann, Valerie P. Hans Apr 2004

Recent Evaluative Research On Jury Trial Innovations, B. Michael Dann, Valerie P. Hans

Cornell Law Faculty Publications

During the past decade, state jury reform commissions, many individual federal and state judges, and jury scholars have advocated the adoption of a variety of innovative trial procedures to assist jurors in trials. Many jury trial reforms reflect growing awareness of best practices in education and communication as well as research documenting that jurors take an active rather than a passive approach to their decision-making task. Traditional adversary jury trial procedures often appear to assume that jurors are blank slates, who will passively wait until the end of the trial and the start of jury deliberations to form opinions about ...


Jones On Evidence: Civil And Criminal 7th Ed., Anne T. Mckenna, Clifford S. Fishman Jan 2004

Jones On Evidence: Civil And Criminal 7th Ed., Anne T. Mckenna, Clifford S. Fishman

Books

In 2004, Anne began co-authoring this seminal evidence treatise, which is in its second century of publication. Jones on Evidence (“Jones”) currently contains 5 hardbound volumes and a softbound appendix of new chapters with two new hardbound volumes forthcoming. All volumes are updated yearly. Jones enables civil and criminal practitioners in private and public practice to learn and understand evidentiary issues and evidentiary rules, including the Federal Rules of Evidence, and to use evidence effectively, whether the issue is admission, exclusion, preservation or relevance. Jones has been cited in numerous federal and state court opinions and law review articles, including ...


“Do I Really Have To Do That?” Rule 26(A)(1) Disclosures And Electronic Information, David J. Waxse Jan 2004

“Do I Really Have To Do That?” Rule 26(A)(1) Disclosures And Electronic Information, David J. Waxse

Richmond Journal of Law & Technology

When the Federal Rules of Civil Procedure (FRCP) were formally adopted by United States Supreme Court Order on December 20, 1937, the emergence of computers and electronic information and their widespreadusewerehardlycontemplated. AlthoughtheFederalRulesof Civil Procedure have been amended on occasion to accommodate changing technology, the advent of the computer age creates new challenges for litigants, their attorneys, and the courts as they strive to apply traditional rules in an innovative technological environment. This article discusses just one aspect of that challenge: the fact that the vast majority of information now exists in electronic format and the impact of this reality on ...


Electronic Discovery Best Practices, Virginia Llewellyn Jan 2004

Electronic Discovery Best Practices, Virginia Llewellyn

Richmond Journal of Law & Technology

The concept of electronic discovery is still somewhat intimidating to many attorneys, but those who have learned to implement electronic discovery best practices are enjoying the advantages it offers, which include greater control over document review and production processes as well as significant cost reductions. Whether you come to the discovery process as in-house or outside counsel, you can anticipate some of the issues involved in responding to electronic data requests. Pre-review cooperation among in-house counsel, their litigators, and Information Technology (IT) personnel is ideal for planning a successful electronic discovery response.


Collaborative Navigation Of The Stormy E-Discovery Seas, Robert Douglas Brownstone Jan 2004

Collaborative Navigation Of The Stormy E-Discovery Seas, Robert Douglas Brownstone

Richmond Journal of Law & Technology

Seventy years ago, when the world was still paper-based, a famous lyricist wrote: “Say, it’s only a paper moon [s]ailing over a cardboard sea. But it wouldn’t be make-believe [i]f you believed in me.” Jump to today’s digital world, and imagine those lines re-written in an e-mail from a litigator to a client: “Now, underneath each paper moon is a vast electronic sea. If you plot a realist’s course you’ll cruise e-Discovery.” In the twentieth century, while civil litigation often wallowed in discovery disputes, at least paper’s one-dimensional nature provided several boundaries ...


Proyecto De Ley Sobre Juicio Por Jurados, Dr Leonardo J. Raznovich Jan 2004

Proyecto De Ley Sobre Juicio Por Jurados, Dr Leonardo J. Raznovich

Dr Leonardo J Raznovich

This article published in Spanish provides with an assessment of a bill sent to the Argentinean Parliament in order to implement trial by jury for serious criminal matters. It also provides with a historical overview of the institution and with some possible explanations why the Argentinean legislator has been reluctant to fulfill the constitutional mandate of implementing trial by jury for all criminal matters (articles 24, 75 (12) and 118 of the Argentinean Constitution).


What Happens When Dirty Harry Becomes An [Expert] Witness For The Prosecution?, Joelle A. Moreno Jan 2004

What Happens When Dirty Harry Becomes An [Expert] Witness For The Prosecution?, Joelle A. Moreno

Faculty Publications

No abstract provided.


Crying Wolf Or An Excited Utterance - Allowing Reexcited Statements To Qualify Under The Excited Utterance Exception, Jone Tran Jan 2004

Crying Wolf Or An Excited Utterance - Allowing Reexcited Statements To Qualify Under The Excited Utterance Exception, Jone Tran

Cleveland State Law Review

It is clear that the reexcitement analysis has both benefits and detriments. Reexcitement may be a basis for admission of evidence in cases where the danger of influencing during the calm period is somehow obviated-as in the recent Crawford opinion. Because of the heightened danger of undue influence in reexcitement cases, the courts should require corroborating evidence that the declarant did not confide in anyone during the intervening period of calm, to reduce the chance of outside pressures and influences. Congress should provide an amendment to the Federal Rules of Evidence expressly allowing for reexcitement, but also requiring either physical ...


Lingering Questions Of A Supreme Court Decision: The Confines Of The Psychotherapist-Patient Privilege, Jennifer L. Odrobina Jan 2004

Lingering Questions Of A Supreme Court Decision: The Confines Of The Psychotherapist-Patient Privilege, Jennifer L. Odrobina

Cleveland State Law Review

The United States Supreme Court "in light of [its] reason and experience"' has recognized a psychotherapist-patient privilege. The Court has, however, left lingering questions for the lower courts to determine regarding possible exceptions to the privilege. The lower courts have used their own reason and experience to develop exceptions to the privilege. Such exceptions include the crime-fraud exception, waiver exception, and the dangerous-patient exception. Inevitably other exceptions will follow. The Supreme Court should recognize a dangerous patient exception to the psychotherapist-patient privilege to allow a psychotherapist to testify in court when there is "a serious threat of harm to the ...


Use Of Secret Evidence By Government Lawyers: Balancing Defendants' Rights With National Security Concerns, Tracy L. Conn Jan 2004

Use Of Secret Evidence By Government Lawyers: Balancing Defendants' Rights With National Security Concerns, Tracy L. Conn

Cleveland State Law Review

The ability to use secret evidence in trials involving national security matters is an extremely controversial power of the government lawyer. Although the use of secret evidence was a divisive issue before September 11, 2001, the terrorist attacks that day sparked the passage of new legislation that increased the power of the government lawyer to use classified evidence. By examining the cases involving secret evidence both before and after September 11, in particular the case of Zacarias Moussaoui, it becomes apparent that what is at stake is the appropriate balance between national security concerns and the constitutional rights of defendants ...


A Legisprudential Analysis Of Evidence Codification: Why Most Evidence Rules Should Not Be Codified—But Privilege Law Should Be, Paul F. Kirgis Jan 2004

A Legisprudential Analysis Of Evidence Codification: Why Most Evidence Rules Should Not Be Codified—But Privilege Law Should Be, Paul F. Kirgis

Faculty Law Review Articles

In this article, I will suggest standards for use in assessing a proposed codification. Although the standards I will identify are useful for evaluating a proposed codification of privilege law, they are also more generally applicable. Indeed, I will use them to examine the codification of evidence law in general. First, I will ask whether, as a normative matter, the law of evidence should be codified. I will then focus on the individual rules of evidence, most notably the privilege rules, to draw conclusions about whether those standards are met.


Negotiating The Minefields Of Electronic Discovery, Stephen D. Williger, Robin M. Wilson Jan 2004

Negotiating The Minefields Of Electronic Discovery, Stephen D. Williger, Robin M. Wilson

Richmond Journal of Law & Technology

A company’s employee has sued for sexual harassment, age discrimination, or wrongful termination. Or, as another example, the company has been sued for infringement of intellectual property, breach of contract, fraud, or any number of other business reasons. During the course of discovery, the plaintiff serves discovery requests, including a request for data that has been deleted from the company’s electronic records but may still be contained within the company’s backup systems. The search for this data is time consuming and expensive. Discoverable materials may be found in the company’s backup system, but does that possibility ...


Wild Dreamers: Meditation On The Admissibility Of Dream Talk, Louise Harmon Jan 2004

Wild Dreamers: Meditation On The Admissibility Of Dream Talk, Louise Harmon

Scholarly Works

No abstract provided.