Evidence Commons^™

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

Nevada Law Journal

No abstract provided.

Evidence, Marc T. Treadwell

Mercer Law Review

One of the more interesting things about writing evidence surveys for the Mercer Law Review for almost twenty years has been watching evidentiary rules rise and, sometimes, fall. No rise has been more dramatic than Georgia's necessity exception to the hearsay rule. Its fall, or partial fall, should be equally dramatic as a result of the United States Supreme Court's decision in Crawford v. Washington, which knocked the constitutional underpinnings from underneath the necessity exception. As discussed in many prior surveys, sometimes with tentative and respectful criticism, the necessity exception, despite a few minor setbacks, has become a vehicle …

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 harbor provision would …

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.

Wrongful Convictions: It Is Time To Take Prosecution Discipline Seriously, Ellen Yaroshefsky

University of the District of Columbia Law Review

Ron Williamson, who came within five days of execution, and Dennis Fritz, who served twelve years of a life sentence, were released from prison in 1999. They were innocent men, wrongfully convicted of the rape and murder of Debra Carter. Arrested five years after her murder and tried separately, the cases against them rested on testimony of a jailhouse informant, a jail trainee, and unreliable hair evidence. Fortunately, there was DNA evidence in the case, and scientific testing exonerated Fritz and Williamson. The evidence instead implicated Glen Gore, the person who should have been the prime suspect. Many of these …

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

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’s French …

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

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, extrinsic evidence to …

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

Thomas D. Lyon

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 properly constrained to those that …

Evidence, Marc T. Treadwell

Mercer Law Review

On March 8, 2004, the United States Supreme Court, in Crawford v. Washington, rendered its most significant evidence decision in a number of years. Since the Court's 1980 ruling in Ohio v. Roberts, holding that the Sixth Amendment's confrontation clause does not necessarily bar the admission of out of court statements in criminal trials, federal and state courts have increasingly allowed prosecutors to use hearsay statements against criminal defendants if trial judges found that the statements bore sufficient indicia of reliability. Crawford likely will bring an end to that.

As the author has often commented in surveys of …

Defining Misappropriation: The Spousal Duty Of Loyalty And The Expectation Of Benefit, M. Anne Kaufold

Mercer Law Review

In a case of first impression, SEC v. Yun, the United States Court of Appeals for the Eleventh Circuit settled two disputed aspects of insider-trading liability. First, a duty of loyalty and confidentiality between spouses may be shown if the spouses have a history or practice of sharing and maintaining business confidences or, if in disclosing the confidential information, the spouse breaches an agreement to maintain the other spouse's business confidences. Second, in a misappropriation theory of insider-trading liability action, the Securities and Exchange Commission ("SEC") must prove that the misappropriator expected to benefit from the tip. The decision …

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.

“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

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 sentencing …

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

ExpressO

No abstract provided.

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 …

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

American University Law Review

No abstract provided.

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. The expansive powers of …

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.

Justice Still Fails: A Review Of Recent Efforts To Compensate Individuals Who Have Been Unjustly Convicted And Later Exonerated, Adele Bernhard

Articles & Chapters

With this Article, I hope to motivate state legislators to enact responsible, practical compensation statutes and encourage courts to entertain state law and civil rights claims brought by those who have been unjustly convicted and later exonerated. I begin by looking at the reasons for enacting compensation statutes: uniformity, practicality, popular support, and fairness. Next, I dissect the arguments raised by opponents. Finally, I turn to recent judicial decisions hinting that courts may be stepping in where legislatures fear to tread.

Judges As Film Critics: New Approaches To Filmic Evidence, Jessica M. Silbey

University of Michigan Journal of Law Reform

This Article exposes internal contradictions in case law concerning the use and admissibility of film as evidence. Based on a review of more than ninety state and federal cases dating from 1923 to the present, the Article explains how the source of these contradictions is the frequent miscategorization of film as "demonstrative evidence, "evidence that purports to illustrate other evidence, rather than to be directly probative of some fact at issue. The Article further demonstrates how these contradictions are based on two venerable jurisprudential anxieties. One is the concern about the growing trend toward replacing the traditional testimony of live …

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

Faculty Publications

No abstract provided.

Doctors, The Adversary System, And Proceudral Reform In Medical Liability Litigation, Catherine T. Struve

All Faculty Scholarship

No abstract provided.

The Central Park Five, The Scottsboro Boys, And The Myth Of The Bestial Black Man, N. Jeremi Duru

Articles in Law Reviews & Other Academic Journals

No abstract provided.

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).

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 …

A Non-Romantic View Of Expert Testimony, Lewis H. Larue, David S. Caudill

Scholarly Articles

The Daubert trilogy as a whole deflects attention away from abstract identifications of scientific validity (including the demarcation controversy aimed at rooting out allegedly junk science from the courtroom), and toward the application of expertise to the particular case at hand. That emphasis on application is reflected as well in post-trilogy scholarship, wherein we see three patterns or contours that both help quiet the debates and provide useful guidance to judges and lawyers. First, there is a pragmatic recognition, in various forms, that the focus should be on how science is being used rather than on science in the abstract. …