Evidence Commons^™

Evidence, Marc T. Treadwell

Mercer Law Review

The most significant news during the current survey year continued to be the major legislative developments discussed in last year's survey. Most significantly, the Georgia General Assembly, during its 2005 session, enacted Official Code of Georgia Annotated ("O.C.G.A.") section 24-9-67.1, which purports to adopt, more or less, the United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. and its progeny, and creates special rules for expert testimony in medical negligence actions. In other words, Daubert has now come to Georgia and, as discussed below, there were both legislative and judicial developments regarding Georgia's new expert witness …

Criminal Law And Procedure, Marla G. Decker, Stephen R. Mccullough

University of Richmond Law Review

The authors have endeavored to select from the many appellate cases those that have the most significant precedential value. The article also outlines some of the most consequential changes enacted by the General Assembly in the areas of criminal law and procedure.

The Cognitive Psychology Of Circumstantial Evidence, Kevin Jon Heller

Michigan Law Review

Empirical research indicates that jurors routinely undervalue circumstantial evidence (DNA, fingerprints, and the like) and overvalue direct evidence (eyewitness identifications and confessions) when making verdict choices, even though false-conviction statistics indicate that the former is normally more probative and more reliable than the latter The traditional explanation of this paradox, based on the probability-threshold model of jury decision-making, is that jurors simply do not understand circumstantial evidence and thus routinely underestimate its effect on the objective probability of the defendant's guilt. That may be true in some situations, but it fails to account for what is known in cognitive psychology …

"So I Says To "The Guy,' I Says...": The Constitutionality Of Neutral Pronoun Redaction In Multidefendant Criminal Trials, Bryan M. Shay

William & Mary Law Review

No abstract provided.

Recordings, Transcripts, And Translations As Evidence, Clifford S. Fishman

Washington Law Review

Secretly recorded conversations often play a vital role in criminal trials. However, circumstances such as background noise, accidents, regional or national idioms, jargon, or code may make it difficult for a jury to hear or understand what was said—even if all participants were speaking English. Thus, a recording's value as evidence will often depend on whether an accurate transcript may be distributed to the jury. This Article discusses several legal issues, including: Who should prepare a transcript? What should it contain? How should its accuracy be determined, and by whom? Should the transcript be considered evidence, or only an "aid …

Learning The Wrong Lessons From "An American Tragedy": A Critique Of The Berger-Twerski Informed Choice Proposal, David E. Bernstein

Michigan Law Review

Margaret Berger and Aaron Twerski are among the leading scholars in their respective fields of Evidence and Products Liability. I have benefited from their work on many occasions. Precisely because of the deserved respect and esteem in which Berger and Twerski are held-not to mention the prominence of their forum, the Michigan Law Review-their proposal to create a new "informed choice" cause of action in pharmaceutical litigation is likely to receive sympathetic attention. Because I believe that their proposal is ill-conceived and dangerous, I feel compelled (with some trepidation) to write this response. Berger and Twerski propose that courts recognize …

From The Wrong End Of The Telescope: A Response To Professor David Bernstein, Margaret A. Berger, Aaron D. Twerski

Michigan Law Review

On the pages of this law review, in an article entitled Uncertainty and Informed Choice: Unmasking Daubert, the authors argued for the recognition of a new product liability cause of action when drug companies fail to warn about uncertain risks attendant to the use of non-therapeutic drugs whose purpose is to enhance lifestyle. We noted that in the post-Daubert era, plaintiffs have faced increasing difficulty in proving that a given toxic agent was causally responsible for the injuries suffered after ingesting a drug. That plaintiffs cannot overcome the barriers to proving injury causation does not mean that defendants have met …

Evidence, Marc T. Treadwell

Mercer Law Review

This survey year saw the continuation of what has become a clear trend in Eleventh Circuit evidence decisions. In stark contrast to the days when the Eleventh Circuit rigorously examined district court evidentiary decisions and freely reversed those decisions, the Eleventh Circuit now studiously defers to district judges. The reason for this trend can be debated. Perhaps because most evidentiary issues addressed by the Eleventh Circuit arise in the context of criminal cases, and because Eleventh Circuit judges are more conservative today, the Eleventh Circuit is less likely to reverse criminal convictions, particularly on evidentiary grounds. Or perhaps that the …

Same Old, Same Old: Scientific Evidence Past And Present, Edward K. Cheng

Michigan Law Review

For over twenty years, and particularly since the Supreme Court's Daubert decision in 1993, much ink has been spilled debating the problem of scientific evidence in the courts. Are jurors or, in the alternative, judges qualified to assess scientific reliability? Do courts really need to be concerned about "junk science"? What mechanisms can promote better decision making in scientific cases? Even a cursory scan of the literature shows the recent explosion of interest in these issues, precipitating new treatises, hundreds of articles, and countless conferences for judges, practitioners, and academics. To this literature, Professor Tal Golan adds Laws of Men …

Confrontation, Equity, And The Misnamed Exception For "Forfeiture" By Wrongdoing, James F. Flanagan

William & Mary Bill of Rights Journal

No abstract provided.

Warping The Rules: How Some Courts Misapply Generic Evidentiary Rules To Exclude Polygraph Evidence, John C. Bush

Vanderbilt Law Review

Polygraph tests rely on the hypothesis that a subject's body yields physiologically different symptoms if he or she is lying.' When a polygraph test is administered, a mechanical apparatus records the subject's physiological changes, and the polygrapher conducting the examination interprets the data. The techniques for measuring physiological changes vary in their foci, which may include respiration, blood pressure, cardiovascular function, and skin resistance. The polygraph apparatus records changes to one or more of these foci, and a technician, or polygrapher, then analyzes the results to conclude whether the subject has been truthful.

Polygraph results factor into choices ranging from …

Fixing The Constable's Blunder: Can One Trial Judge In One County In One State Nudge A Nation Beyond The Exclusionary Rule?, H. Mitchell Caldwell

BYU Law Review

No abstract provided.

Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Neal H. Lewis

Richmond Journal of Law & Technology

Welcome to the fourth issue and final of the Richmond Journal of Law & Technology for the 2005-2006 academic year. Volume 12, Issue 4 is the second publication of the Journal’s Annual Survey on Electronic Discovery. The topic of Electronic Discovery is particularly relevant considering the impending applicability of the proposed amendments to the Federal Rules of Civil Procedure. The Annual Survey Editor has worked extensively to bring together different commentary on Electronic Discovery.

Procuring The Right To An Unfair Trial: Federal Rule Of Evidence 804(B)(6) And The Due Process Implications Of The Rule's Failure To Require Standards Of Reliability For Admissible Evidence, Kelly Rutan

American University Law Review

This Comment argues that though the doctrine of forfeiture by wrongdoing allows a court to forfeit both a defendant’s right to object to the admission of hearsay statements and the right of confrontation, the current state of the law requires all out-of-court statements admitted under Rule 804(b)(6) to possess some level of reliability in order to satisfy due process. Part I of this Comment discusses the doctrine of forfeiture by wrongdoing, the courts’ treatment of this principle prior to 1997, and its codification into the Federal Rules of Evidence. Part II looks at Confrontation Clause issues unique to hearsay exceptions …

Who Knew - The Admissibility Of Subsequent Remedial Measures When Defendants Are Without Knowledge Of The Injuries, Mark G. Boyko, Ryan G. Vacca

McGeorge Law Review

No abstract provided.

Balancing The Scales Of Confidential Justice: Civil Mediation Privileges In The Criminal Arena - Indispensable, Impracticable, Or Merely Unconstitutional, Shawn P. Davisson

McGeorge Law Review

No abstract provided.

Davis And Hammon: A Step Forward, Or A Step Back?, Tom Lininger

Michigan Law Review First Impressions

Prosecutors, defense attorneys, and lower court judges hoped that the Supreme Court’s ruling in the consolidated cases of Davis v. Washington and Hammon v. Indiana (hereafter simply Davis) would provide a primer on testimonial hearsay. In retrospect, these hopes were somewhat unrealistic. The Davis ruling could not possibly clear up all the confusion that followed Crawford v. Washington, the landmark 2004 case in which the Court strengthened the right of the accused to confront declarants of testimonial hearsay. In Davis, the Court focused on the facts under review and developed a taxonomy that will be useful in similar cases, but …

Circling Around The Confrontation Clause: Redefined Reach But Not A Robust Right, Lisa Kern Griffin

Michigan Law Review First Impressions

The Supreme Court’s consolidated ruling in United States v. Davis and United States v. Hammon is a classic of the genre of consensus opinions to which the Roberts Court aspired in its first, transitional term. The opinion, authored by Justice Scalia, contains practical accommodations unusual in a decision by the Court’s fiercest proponent of first principles. The restraint that characterized the term is, of course, more about considerations of logistics (including the desire to avoid re-arguments after the mid-term replacement of Justice O’Connor) than about the alignment of logic. Because it reflects temporary institutional constraints rather than intellectual agreement, the …

Davis/Hammon, Domestic Violence, And The Supreme Court: The Case For Cautious Optimism, Joan S. Meier

Michigan Law Review First Impressions

The Supreme Court’s consolidated decision in Davis v. Washington and Hammon v. Indiana offers something for everyone: by “splitting the difference” between the two cases—affirming one and reversing the other—the opinion provides much grist for advocates’ mills on both sides of this issue. While advocates for defendants’ rights are celebrating the opinion’s continued revitalization of the right to confrontation, which began in Crawford v. Washington, advocates for victims have cause for celebration as well: the decision is notable for its reflection of the Court’s growing—albeit incomplete— awareness and understanding of the dynamics of domestic violence and their implications for justice. …

Still "Left In The Dark": The Confrontation Clause And Child Abuse Cases After Davis V. Washington, Anthony J. Franze, Jacob E. Smiles

Michigan Law Review First Impressions

In his concurring opinion in Crawford v. Washington, Chief Justice Rehnquist criticized the majority for holding that the Confrontation Clause applies to “testimonial” statements but leaving for “another day” any effort to define sufficiently what “testimonial” means. Prosecutors and defendants, he said, “should not be left in the dark in this manner.” Over the next two years, both sides grappled with the meaning of testimonial, each gleaning import from sections of Crawford that seemingly proved their test was the right one. When the Court granted certiorari in Davis v. Washington and Hammon v. Indiana (hereinafter Davis), hopes were high that …

Davis V. Washington And Hammon V. Indiana: Beating Expectations, Robert P. Mosteller

Michigan Law Review First Impressions

I begin with a question of effectiveness: does the new Confrontation Clause doctrine effectively protect defendants with respect to the most im-portant types of problematic out-of-court statements? Although they leave much room for the introduction of hearsay in the immediate aftermath of crime generally, Davis v. Washington and Hammon v. Indiana (together hereinafter Davis) are better opinions from that broad perspective than I had feared. The new doctrine now covers and provides substantial procedural protection for a very important class of problematic hearsay—statements made to government agents investigating past crime.

Refining Crawford: The Confrontation Claus After Davis V. Washington And Hammon V. Indiana, Andrew C. Fine

Michigan Law Review First Impressions

Clarification of the Supreme Court’s newly minted interpretation of the Confrontation Clause was desperately needed, and Davis v. Washington and Hammon v. Indiana promised to provide it. Two terms earlier, in Crawford v. Washington, the Supreme Court had worked a revolutionary transformation of Confrontation Clause analysis by overruling Ohio v. Roberts and severing the link between hearsay jurisprudence and the Clause. Crawford was hailed by the criminal defense bar, since it seemed to presage a sharp reduction in the frequency of so-called “victimless” trials by holding that “testimonial” hearsay, no matter how reliable, was constitutionally inadmissible in the absence of …

Police Can Be More Aggressive When Gathering Evidence, Court Says, Tim Kerrigan

Public Interest Law Reporter

No abstract provided.

A Duty Everlasting: The Perils Of Applying Traditional Doctrines Of Spoliation To Electronic Discovery, Michael R. Nelson, Mark H. Rosenberg

Richmond Journal of Law & Technology

Amendments to the Federal Rules of Civil Procedure regarding electronic discovery are expected to take effect on December 1, 2006. These amendments are designed to alleviate the burden, expense and uncertainty that has resulted from the application of traditional discovery principles in the electronic age. These principles worked well in an era where discovery was primarily limited to the production of paper documentation, but have proved unworkable when applied to the discovery of electronic data, particularly in the “corporate world,” where even the most routine business discussions are captured in electronic format.5

The Paranormal, Daubert, Dictionary Court, And A Futuristic Courtroom Drama, Joseph P. Baker

Florida A & M University Law Review

No abstract provided.

I Am Certain He Is The Man...I Think, Tim Harris

The Modern American

No abstract provided.

The Impact Of The Proposed Federal E-Discovery Rules, Thomas Y. Allman

Richmond Journal of Law & Technology

Because of a conviction that e-discovery presents unique issues requiring uniform national rules, the Judicial Conference of the United States (“Judicial Conference”) has recommended and the Supreme Court has approved a number of amendments to the Federal Rules of Civil Procedure (“Proposed Rules”), which are scheduled to go into effect at the end of 2006.

Waiving The Privilege In A Storm Of Data: An Argument For Uniformity And Rationality In Dealing With The Inadvertent Production Of Privileged Materials In The Age Of Electronically Stored Information, Dennis R. Kiker

Richmond Journal of Law & Technology

At the point where one of the most venerable principles of common law and the reality of modern information management collide, even the most diligent attorneys may become victims of the resulting fallout.

Shifting Burdens And Concealing Electronic Evidence: Discovery In The Digital Era, Rebecca Rockwood

Richmond Journal of Law & Technology

In the twenty-first century, persons involved in the legal profession will be forced to confront technological issues. Computers and technology have pervaded every aspect of society, and the legal system is no exception. The discovery process is a dramatic example of how lawyers and courts strain to keep up with technological advances. Traditional discovery practices have been severely overhauled as electronic information becomes increasingly prevalent. What was once a simple discovery request can now become an overwhelming task, as defendants must wade through a plethora of electronic documents in an attempt to comply with the court’s discovery orders.

Dostoyevsky And The Therapeutic Jurisprudence Confession, 40 J. Marshall L. Rev. 41 (2006), Amy D. Ronner

UIC Law Review

No abstract provided.