Evidence Commons^™

"An Opportunity For Effective Cross-Examination": Limits On The Confrontation Right Of The Pro Se Defendant, Alanna Clair

University of Michigan Journal of Law Reform

The rights of a defendant to confront his accusers and conduct his defense without the assistance of counsel are sacrosanct in the American judicial system. The rights of the defendant are even sometimes exalted at the expense of the rights of the public or of victims of crime. This Note examines the problem of a pro se defendant using his confrontation right to intimidate or harass his alleged victims testifying against him. It is well-established that the confrontation right is not unconditional. The problem comes in determining whether the courts can place limits on the confrontation right of a pro …

The Impact Of Information Overload On The Capital Jury's Ability To Assess Aggravating And Mitigating Factors, Katie Morgan, Michael J. Zydney Mannheimer

William & Mary Bill of Rights Journal

Since 1976, the U.S. Supreme Court has required that death penalty regimes meet two requirements. First, in order to minimize arbitrariness in the imposition of the death penalty, states must reserve capital punishment to a narrow class of offenders, those most deserving of death. States have done so by requiring that the prosecution prove at least one aggravating factor, i.e., some circumstance that separates the capital defendant on trial from those ineligible to be executed. Second, states must allow for individualization in sentencing by permitting the defendant to introduce mitigating evidence in order to persuade the jury that he is …

Balancing Interests Under Washington's Statute Governing The Admissibility Of Extraneous Sex-Offense Evidence, Blythe Chandler

Washington Law Review

American courts traditionally exclude evidence that a defendant has committed crimes other than the crime with which the defendant is charged. This rule, with exceptions, is codified as Federal Rule of Evidence 404(b) and Washington Evidence Rule 404(b). However, courts and legislatures have increasingly adopted the view that evidence of other sex offenses should be admissible in sex-offense prosecutions. The Washington State Legislature recently adopted a statute, RCW 10.58.090, which governs the admissibility of evidence of other sex offenses. This Comment argues that Washington courts should use precedent applying Rule 404(b) as a guide in applying robust Rule 403 balancing …

Vol. Ix, Tab 43 - Google Memorandum In Support Of Its Motion To Exclude Expert Report And Opinion Of Dr. Kent Van Liere, Google

Rosetta Stone v. Google (Joint Appendix)

Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?

Saving Face: The Benefits Of Not Saying I'M Sorry, Brent T. White

Publications

No abstract provided.

Standards Of Proof Revisited, Kevin M. Clermont

Cornell Law Faculty Publications

This Essay focuses not on how fact-finders process evidence but on how they apply the specified standard of proof to their finding. The oddity that prompts speculation is that, in noncriminal cases, the common law asks only that the fact appear more likely than not, while the Civil Law seems to apply the same high standard in these cases as it does in criminal cases. As a psychological explanation of the cognitive processes involved, some theorists posit that the bulk of fact-finding is an unconscious process, powerful but dangerous, which generates a level of confidence against which the fact-finder could …

Confronting Scientific Reports Under Crawford V. Washington, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

In People v. Rawlins and People v. Meekins, the New York Court of Appeals addressed, for the first time, the admissibility of scientific reports prepared by non-testifying forensic experts for use by the prosecution in a criminal trial under the Sixth Amendment's Confrontation Clause. Rawlins involved a fingerprint comparison report prepared by a police forensic expert, and Meekins involved a DNA profile prepared by a technician in a private laboratory. The constitutional issue in both cases was whether these reports were “testimonial” statements within the meaning of the Confrontation Clause, as interpreted by the Supreme Court in Crawford v. Washington, …

Testimonial Deficiencies And Evidentiary Uncertainties In International Criminal Trials, Nancy Amoury Combs

Faculty Publications

In this article, the author describes the flaws inherent in the process of international criminal tribunals which seek to punish the inhumane actions of dictators. The author first describes how international criminal trials confront severe impediments to accurate factfinding. It continues on to discuss the failure of witnesses in these tribunals to accurately convey the information needed to make a fully- informed decision. This problem is compounded by the fact that what clear information is provided during witness testimony often is inconsistent with the information that the witness previously provided in a pre-trial statement. The author also explores the causes …

Recent Developments In Oklahoma Evidence Law, Liesa Richter

Liesa L. Richter

No abstract provided.

The Csi Effect: What Can Forensic Science Really Tell Us?, Mary Sue Backus

Mary Sue Backus

No abstract provided.

Does Anyone Get Stopped At The Gate? An Empirical Assessment Of The Daubert Trilogy In The States, Eric Helland, Jonathan Klick

All Faculty Scholarship

The Supreme Court’s trilogy of evidence cases, Daubert, Joiner, and Kumho Tire appear to mark a significant departure in the way scientific and expert evidence is handled in federal court. By focusing on the underlying methods used to generate the experts’ conclusions, Daubert has the potential to impose a more rigorous standard on experts. Given this potential, some individuals have called for states to adopt the Daubert standards to purge “junk science” from state courts. However, there is relatively little empirical support for the notion that Daubert affects the quality of expert evidence. Using a large dataset of state court …

Recent Private International Law Developments Before The Supreme Court Of Canada, Antonin I. Pribetic

Antonin I. Pribetic

A trilogy of interesting cases involving private international law recently wended their way to the Supreme Court of Canada: (1) King v. Drabinsky (an Ontario case addressing the applicability of the Charter in respect of the enforcement of a foreign judgment); (2) Teck Cominco Metals Ltd. v. Lloyd's Underwriters (a British Columbia case involving declaratory relief in the context of parallel proceedings and forum non conveniens); and (3) Yugraneft v. Rexx Management Corporation (an Alberta case which affirmed that the two-year limitation period under s.3 of Alberta's Limitations Act, governs when a party seeks the recognition and enforcement in Alberta …

Run For The Border: Laptop Searches And The Fourth Amendment, Nathan Alexander Sales

University of Richmond Law Review

No abstract provided.

Federal Rule Of Evidence 502: Stirring The State Law Of Privilege And Professional Responsibility With A Federal Stick, Henry S. Noyes

Washington and Lee Law Review

No abstract provided.

Sealed Documents To Prevent “Perfectly Legitimate” Review And Dissemination Of Privileged Confidential Information, Bridget Hoy, Dana M. Malkus

All Faculty Scholarship

A recent federal district court case serves as a reminder that when filing documents through an electronic filing system, the information contained in the documents is immediately available to anyone “through perfectly legitimate means: by reading a public filing.” The January 6, 2009 opinion in E-Smart Technologies, Inc., et al. v. Wayne Drizin, et al., 2009 U.S. Dist. LEXIS 272 (N.D. Ca Jan. 6, 2009), demonstrates that when caution is not taken at the onset to seal documents that contain privileged or confidential information, there might be little recourse for immediate distribution of information that one might later determine …

The Csi Effect: What Can Forensic Science Really Tell Us?, Mary Sue Backus

Mary Sue Backus

No abstract provided.

20. Maltreated And Non-Maltreated Children’S Evaluations Of Emotional Fantasy., Nathalie Carrick, Thomas D. Lyon, Jodi A. Quas

Thomas D. Lyon

Policing, Place, And Race, Bennett Capers

Faculty Scholarship

No abstract provided.

Qualcomm Inc. V. Broadcom Corp.: 9,259,985 Reasons To Comply With Discovery Requests, Kristen Mcneal

Richmond Journal of Law & Technology

Evolving technology has advanced communication throughout the business industry. Corporations use various communication methods to initiate conversation, propose business ventures, and relay correspondence from one place to another. Quite naturally, with the development of different means of communication, various innovations in the legal profession have materialized and gained popularity. One of these innovations is electronic discovery.

Revisiting The Crime-Fraud Exception To The Attorney-Client Privilege: A Proposal To Remedy The Disparity In Protections For Civil And Criminal Privilege Holders, Cary Bricker

McGeorge School of Law Scholarly Articles

No abstract provided.

Your Opponent Does Not Need A Friend Request To See Your Page: Social Networking Sites And Electronic Discovery, Derek S. Witte

McGeorge Law Review

No abstract provided.

Reality Bites: The Illusion Of Science In Bite-Mark Evidence, Erica Beecher-Monas

Law Faculty Research Publications

No abstract provided.

Notes On Minority Report, Bennett Capers

Faculty Scholarship

No abstract provided.

Vol. Xiv, Tab 51 - Google's Objection To Evidence And Motion To Strike, Google

Rosetta Stone v. Google (Joint Appendix)

Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?

Happiness And Punishment (With J. Bronsteen & J. Masur), Christopher J. Buccafusco

All Faculty Scholarship

This article continues our project to apply groundbreaking new literature on the behavioral psychology of human happiness to some of the most deeply analyzed questions in law. Here we explain that the new psychological understandings of happiness interact in startling ways with the leading theories of criminal punishment. Punishment theorists, both retributivist and utilitarian, have failed to account for human beings' ability to adapt to changed circumstances, including fines and (surprisingly) imprisonment. At the same time, these theorists have largely ignored the severe hedonic losses brought about by the post-prison social and economic deprivations (unemployment, divorce, and disease) caused by …

Taking A Stand On Taking The Stand: The Effect Of A Prior Criminal Record On The Decision To Testify And On Trial Outcomes, Theodore Eisenberg, Valerie P. Hans

Cornell Law Faculty Publications

This article uses unique data from over 300 criminal trials in four large counties to study the relations between the existence of a prior criminal record and defendants testifying at trial, between testifying at trial and juries' learning about a criminal record, and between juries' learning about a criminal record and their decisions to convict or acquit. Sixty percent of defendants without criminal records testified compared to 45 percent with criminal records. For testifying defendants with criminal records, juries learned of those records in about half the cases. Juries rarely learned about criminal records unless defendants testified. After controlling for …

Burden Of Proof, Prima Facie Case And Presumption In Wto Dispute Settlement, John J. Barceló Iii

Cornell Law Faculty Publications

The essay maintains that the WTO Appellate Body's concepts and terminology concerning a claimant's burden of proof-the concepts of prima facie case, presumption, and burden shifting-are disturbingly ambiguous and potentially misleading. This is so whether one thinks of these terms from either a common law or a civil law perspective. In the face of the current ambiguity, a future panel might understand the AB's prima facie case concept to require an overwhelming level of proof from the claimant. On the other hand, a different panel might allow a rather weak level of claimant's proof to meet the prima facie requirement, …

"False But Highly Persuasive": How Wrong Were The Probability Estimates In Mcdaniel V. Brown?, David H. Kaye

Michigan Law Review First Impressions

In McDaniel v. Brown, the Supreme Court will review the use of DNA evidence in a 1994 trial for sexual assault and attempted murder. The Court granted certiorari to consider two procedural issues—the standard of federal postconviction review of a state jury verdict for sufficiency of the evidence, and the district court's decision to allow the prisoner to supplement the record of trials, appeals, and state postconviction proceedings with a geneticist's letter twelve years after the trial. The letter from Laurence Mueller, a professor at the University of California at Irvine, identified two obvious mistakes in the state's expert testimony. …

Happiness And Punishment (With J. Bronsteen & J. Masur), Christopher J. Buccafusco

Christopher J. Buccafusco

This article continues our project to apply groundbreaking new literature on the behavioral psychology of human happiness to some of the most deeply analyzed questions in law. Here we explain that the new psychological understandings of happiness interact in startling ways with the leading theories of criminal punishment. Punishment theorists, both retributivist and utilitarian, have failed to account for human beings' ability to adapt to changed circumstances, including fines and (surprisingly) imprisonment. At the same time, these theorists have largely ignored the severe hedonic losses brought about by the post-prison social and economic deprivations (unemployment, divorce, and disease) caused by …

Electronically Stored Information: A Primer For Litigators, Jules Epstein

Jules Epstein

No abstract provided.