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Evidence Commons

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2010

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Articles 1 - 30 of 153

Full-Text Articles in Evidence

Vertical Restraints, Dealers With Power, And Antitrust Policy, Herbert J. Hovenkamp Dec 2010

Vertical Restraints, Dealers With Power, And Antitrust Policy, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The Supreme Court’s Leegin decision has now brought the rule of reason to all purely vertical intrabrand distribution restraints. But the rule of reason does not mean per se legality and occasions for anticompetitive vertically imposed restraints may still arise. Of all those that have been suggested the most plausible are vertical restraints imposed at the behest of a powerful dealer or group (cartel) of dealers.

Although a vertical distribution restraint resembles a dealer cartel in that both limit intraband competition, a manufacturer restraining the distribution of its product shuns the excess dealer profits a dealer cartel would seek ...


The Distortionary Effect Of Evidence On Primary Behavior, Alex Stein, Gideon Parchomovsky Dec 2010

The Distortionary Effect Of Evidence On Primary Behavior, Alex Stein, Gideon Parchomovsky

Faculty Scholarship

No abstract provided.


Doubting What The Elders Have To Say, David Milward Nov 2010

Doubting What The Elders Have To Say, David Milward

Dr. David Milward

The Supreme Court of Canada has articulated several legal principles that mandate the flexible and generous treatment of Aboriginal oral history evidence in support of Aboriginal rights claims. Lower courts, however, continue to devalue such evidence, often displaying explicit disregard for the legal principles, in order to defeat rights claims and subordinate Aboriginal interests to state sovereignty. This has no rational basis, since it is now clearly established that documentary historical evidence does not have any innate superiority over oral history evidence when it comes to ascertaining what happened in the past. This article proposes several solutions. These include educating ...


Evidence, Joseph B. Harvey Nov 2010

Evidence, Joseph B. Harvey

Cal Law Trends and Developments

The principal developments and trends to be noted in the law of evidence appeared this year in appellate Court decisions. The legislative changes were few. Only one legislative change seems likely to be of any significance and will be felt primarily by drivers accused of being under the influence of intoxicating liquor. For lawyers, the notable developments appear in the case law; it is likely that the courts will remain the primary arena for the development of the law of evidence for some time to come.


Evidence, Joseph B. Harvey Nov 2010

Evidence, Joseph B. Harvey

Cal Law Trends and Developments

On January 1, 1967, the California Evidence Code began to govern trials held in California courts. Because of the delays necessarily incident to litigation, the appellate courts were not called upon to review trials held under the new rules in significant numbers until 1968. With the 1968 decisions, however, the impact of the Code upon California practice has become fairly apparent. At the same time, the courts have continued to develop rules of evidence designed to implement the various procedural guarantees found in the Constitution of the United States, and some of these court-developed rules have had significant effect, particularly ...


"Minute And Separate": Considering The Admissibility Of Videotaped Forensic Interviews In Child Sexual Abuse Cases After Crawford And Davis, Kimberly Y. Chin Nov 2010

"Minute And Separate": Considering The Admissibility Of Videotaped Forensic Interviews In Child Sexual Abuse Cases After Crawford And Davis, Kimberly Y. Chin

Boston College Third World Law Journal

Child sexual abuse is one of the least prosecuted crimes in the United States in part because of the many evidentiary challenges prosecutors face. In 2004, the Supreme Court introduced a new standard for determining the admissibility of out-of-court statements made by declarants who are unavailable to testify at trial. In Crawford v. Washington, the Supreme Court held that testimonial statements are only admissible at trial if the declarant is unavailable to testify and there was a prior opportunity for cross-examination. This Note will examine Crawford’s impact on the admissibility of videotaped forensic interviews with child victims of sexual ...


"I'M Going To Dinner With Frank": Admissibility Of Nontestimonial Statements Of Intent To Prove The Actions Of Someone Other Than The Speaker—And The Role Of The Due Process Clause, Lynn Mclain Nov 2010

"I'M Going To Dinner With Frank": Admissibility Of Nontestimonial Statements Of Intent To Prove The Actions Of Someone Other Than The Speaker—And The Role Of The Due Process Clause, Lynn Mclain

All Faculty Scholarship

A woman tells her roommate that she is going out to dinner with Frank that evening. The next morning her battered body is found along a country road outside of town. In Frank’s trial for her murder, is her statement to her roommate admissible to place Frank with her that night? Since the Court’s 2004 Crawford decision, the confrontation clause is inapplicable to nontestimonial hearsay such as this.

American jurisdictions are widely divided on the question of admissibility under their rules of evidence, however. Many say absolutely not. A sizeable number unequivocally say yes. A small number say ...


Omg! Evidence Challenges In An Electronic World, Mary Sue Backus Oct 2010

Omg! Evidence Challenges In An Electronic World, Mary Sue Backus

Mary Sue Backus

No abstract provided.


Evidence, Ronan E. Degnan Oct 2010

Evidence, Ronan E. Degnan

Cal Law Trends and Developments

This survey is concerned with case law as well as with statutes, but the cases selected will be of primary interest because they shed some light on how California courts are apt to interpret the statutes. Somewhat paradoxically, this requires some preference for dictum over holding. The clear holdings from all but the very end of the calendar year were applications of the old law, because the appellate courts were still disposing of the cases that had gone to trial before January 1, 1967. But the appellate judges were alert to the new Code, and frequently they would consider how ...


Limits Of The Inevitable Discovery Doctrine In United States V. Young: The Intersection Of Private Security Guards, Hotel Guests, And The Fourth Amendment, Lauren Young Epstein Oct 2010

Limits Of The Inevitable Discovery Doctrine In United States V. Young: The Intersection Of Private Security Guards, Hotel Guests, And The Fourth Amendment, Lauren Young Epstein

Golden Gate University Law Review

This Note analyzes the Young court’s opinion and the potential consequences of the majority’s cursory rejection of the government’s inevitable discovery argument. This Note also reconciles the differing applications of the inevitable discovery doctrine by the Young majority and dissent and highlights the speculative nature of employing the inevitable discovery doctrine based on the facts of Young. Part I of this Note presents the background of the case and the historical development of Fourth Amendment jurisprudence, focusing on the inevitable discovery doctrine as articulated by the Supreme Court in Nix v. Williams. Part II outlines the Young ...


United States V. Payton: Redefining The Reasonableness Standard For Computer Searches And Seizures, Susan A. Rados Oct 2010

United States V. Payton: Redefining The Reasonableness Standard For Computer Searches And Seizures, Susan A. Rados

Golden Gate University Law Review

This Note examines United States v. Payton and the issue of when it is reasonable to search a computer if it is not expressly authorized on the search warrant. Part I discusses the background facts of Payton and the Fourth Amendment. Part II analyzes why the Ninth Circuit ultimately decided Payton correctly but focused on the wrong underlying reason in its holding. The reasonableness standard for computer searches should be whether the computer “could” contain the evidence, rather than the stricter standard of “would” contain the evidence announced in Payton. However, because computers are different from traditional containers, they should ...


Possession Of Reading Material And Intent To Commit A Crime In United States V. Curtin, Anna L. Benvenue Oct 2010

Possession Of Reading Material And Intent To Commit A Crime In United States V. Curtin, Anna L. Benvenue

Golden Gate University Law Review

The majority opinion in United States v. Curtin held that simple possession of reading material can be evidence of a defendant's criminal intent, even without proof that the accused ever read the materials. Circuit Judge Stephen S. Trott, who wrote the majority decision, overruled prior Ninth Circuit precedent that would have made such evidence inadmissible as irrelevant under Federal Rule of Evidence 401. However, the majority also found the district court judge's failure to properly analyze the evidence under Rule 403 warranted reversal and remand. As a result, the remaining seven judges on the panel filed or joined ...


Summary Of Cramer V. Nev. Dep’T Of Motor Vehicles, 126 Nev. Adv. Op. No. 38, Justin Shiroff Oct 2010

Summary Of Cramer V. Nev. Dep’T Of Motor Vehicles, 126 Nev. Adv. Op. No. 38, Justin Shiroff

Nevada Supreme Court Summaries

The Court considers two appeals concerning NRS 50.320, which permits the use of an affidavit to prove a person’s blood-alcohol content in certain proceedings, including driver’s license revocation hearings, by a person who has been previously qualified to testify as an expert witness by a district court.


To Download Or Not To Download: Is Mere Membership Enough To Justify A Search Of A Home Computer For Child Pornography Under United States V. Gourde?, Erin Frazor Oct 2010

To Download Or Not To Download: Is Mere Membership Enough To Justify A Search Of A Home Computer For Child Pornography Under United States V. Gourde?, Erin Frazor

Golden Gate University Law Review

In the nine to two decision by the en banc Ninth Circuit panel in United States v. Gourde, the court ruled that probable cause existed to search the defendant's home computer based in part on his two-month subscription to a website that offered child pornography. The majority opinion sought to conform to Supreme Court precedent in its probable cause analysis, while the dissenting opinions expressed great concern about the door being opened to this type of governmental invasion of privacy. Gourde has sparked reactions by commentators regarding the implications of the decision, and has influenced the analysis of subsequent ...


Seeking Truth On The Other Side Of The Wall: Greenleaf’S Evangelists Meet The Federal Rules, Naturalism, And Judas, Nancy J. Kippenhan Oct 2010

Seeking Truth On The Other Side Of The Wall: Greenleaf’S Evangelists Meet The Federal Rules, Naturalism, And Judas, Nancy J. Kippenhan

Faculty Publications and Presentations

An inquiry that seeks truth by accepting only natural answers excludes the possibility of the sacred or supernatural, building a wall that forecloses a complete exploration for the truth it seeks. Without analysis, critics dismiss sources presenting supernatural explanations, and those who believe sacred works have no factual foundation accept without investigation any popular theory that appears attractive. The rules of evidence expressly seek truth, wherever it lies. Noted legal scholar Simon Greenleaf used evidentiary principles to demonstrate the factual credibility of the Gospels in his Testimony of the Evangelists. This Article examines Greenleaf’s analysis, applying current rules of ...


Unscrambling The Confusion: Applying The Correct Standard Of Review For Rape-Shield Evidentiary Rulings, Robert E. Steinbuch Oct 2010

Unscrambling The Confusion: Applying The Correct Standard Of Review For Rape-Shield Evidentiary Rulings, Robert E. Steinbuch

Faculty Scholarship

No abstract provided.


Reinforcing The Hague Convention On Taking Evidence Abroad After Blocking Statutes, Data Privacy Directives, And Aerospatiale, Brian Friederich Oct 2010

Reinforcing The Hague Convention On Taking Evidence Abroad After Blocking Statutes, Data Privacy Directives, And Aerospatiale, Brian Friederich

San Diego International Law Journal

There has always been tension between European countries and the United States on the topic of evidence gathering. Much of that tension stems from the inherent differences between common and civil policies and methods. Until the Hague Convention, the process for obtaining evidence abroad was cumbersome and unreliable. The Hague Convention sought to change that by providing signatory countries more effective methods of cooperating with each other in international litigation. However, the Hague Convention has not been able to achieve its purpose, at least not in the United States. U.S. courts have interpreted the Hague Convention as optional, meaning ...


Plea Bargainng, Discovery, And Waivers, R. Michael Cassidy Sep 2010

Plea Bargainng, Discovery, And Waivers, R. Michael Cassidy

R. Michael Cassidy

No abstract provided.


Technology - Konop V. Hawaiian Airlines, Inc., Patricia Defonte Sep 2010

Technology - Konop V. Hawaiian Airlines, Inc., Patricia Defonte

Golden Gate University Law Review

In Konop v. Hawaiian Airlines Inc., the United States Court of Appeals for the Ninth Circuit held that the unauthorized access of the content of a secure website is a violation of the Wiretap Act and the Stored Communications Act. This is the first case to determine whether unauthorized accessing of a secure private website is a violation of the Wiretap Act. This decision is contrary to an earlier decision by the Fifth Circuit in United. States v. Turk, which held that the Wiretap Act required contemporaneous transmission and acquisition of the communication. The Ninth Circuit concluded that the scope ...


A Hearsay Exception For Physical Abuse, Karleen F. Murphy Sep 2010

A Hearsay Exception For Physical Abuse, Karleen F. Murphy

Golden Gate University Law Review

This Comment will trace the history of the hearsay rule under both common law and California law. It examines the early use of the common law state of mind hearsay exception regarding statements of fear and physical abuse. It will also discuss the enactment of the California Evidence Code (hereinafter "Code") and the later codification of the state of mind hearsay exception. In addition, it will examine People v. Ruiz, a case which applied the Code's state of mind hearsay exception to prohibit statements regarding the victims' fear of the defendant and the physical abuse which the defendant inflicted ...


Making The Crucial Connection: A Proposed Threat Hearsay Exception, Donna Meredith Matthews Sep 2010

Making The Crucial Connection: A Proposed Threat Hearsay Exception, Donna Meredith Matthews

Golden Gate University Law Review

This article discusses how courts admit and exclude threat hearsay in the domestic homicide context and suggests an approach for admission of such evidence. After analyzing the current evidentiary status of the victim's statements regarding threats in homicide cases in which an apparently abusive spouse/partner is accused, I argue for adoption of a new hearsay exception that permits systematic admission of victims' statements concerning threats and violence by the accused. The victim can no longer speak for herself because she has been killed, often because the law is apparently helpless to intervene on her behalf, even when asked ...


California's Newsgatherer's Shield: Inconsistent Interpretation Means Inadequate Protection, Nora Linda Rousso Sep 2010

California's Newsgatherer's Shield: Inconsistent Interpretation Means Inadequate Protection, Nora Linda Rousso

Golden Gate University Law Review

This Comment will initially discuss the history of the shield law in California and examine how it has been defined by the courts in the leading cases. It will also discuss New York Times, Delaney and Hallissy in terms of the courts' application of the shield law to those cases. The analyses of New York Times and Hallissy will be contrasted with that of Delaney. This Comment will attempt to show how the New York Times/Hallissy analysis could have been applied to the facts of Delaney and still have yielded the same result. Recommendations will be made with respect ...


Raising The Standard For Expert Testimony: An Unwarranted Obstacle In Proving Claims Of Child Sexual Abuse In Dependency Hearings, Matthew J. Dulka Sep 2010

Raising The Standard For Expert Testimony: An Unwarranted Obstacle In Proving Claims Of Child Sexual Abuse In Dependency Hearings, Matthew J. Dulka

Golden Gate University Law Review

This comment will examine the Amber B. court's decision to characterize evidence provided by the mental health professionals as scientific evidence and not as expert opinion. Secondly, this comment will explore the desirability of imposing the scientific evidence standard, usually applied in criminal cases, to dependency hearings. Finally, this comment will discuss the implications of the Amber B. decision in light of the already present evidentiary difficulties of proving child sexual abuse claims and the social policy of protecting the welfare of the abused child.


When Facts Are Thin On The Ground, Julia Romasevych, Paul Antiss, Nancy Amoury Combs Sep 2010

When Facts Are Thin On The Ground, Julia Romasevych, Paul Antiss, Nancy Amoury Combs

Popular Media

Fact-finding at the international tribunals is not as precise as we think. Nancy Combs, Professor of Law at William and Mary Law School, explores this in her new book 'Fact-finding without facts: the uncertain evidentiary foundations of international criminal convictions'.


Problems At Daubert: Expert Testimony In Title Vii Sex Discrimination And Sexual Harassment Litigation, Harriet M. Antczak Sep 2010

Problems At Daubert: Expert Testimony In Title Vii Sex Discrimination And Sexual Harassment Litigation, Harriet M. Antczak

Buffalo Journal of Gender, Law & Social Policy

No abstract provided.


Managing The Unmanageable: A Brief Accounting Of A Special Master’S Thirty Years Of Experience In Complex Litigation, Paul Rice Aug 2010

Managing The Unmanageable: A Brief Accounting Of A Special Master’S Thirty Years Of Experience In Complex Litigation, Paul Rice

Paul Rice

Managing an efficient, but fair, pretrial process in a large and complex case has always been a challenge. With the advent of electronic communications and the corresponding explosion of privilege claims, this challenge has become significantly more difficult. Indeed, it is not uncommon for corporate parties to assert tens of thousands, if not hundreds of thousands, of privilege claims. Furthermore, the resolution of these privilege questions is often compounded by difficult choice of law questions that can have the result of different substantive principles being applied to identical discovery demands originating in different jurisdictions. Additionally, before addressing the increasingly voluminous ...


Managing The Unmanageable: A Brief Accounting Of A Special Master’S Thirty Years Of Experience In Complex Litigation, Paul Rice Aug 2010

Managing The Unmanageable: A Brief Accounting Of A Special Master’S Thirty Years Of Experience In Complex Litigation, Paul Rice

Paul Rice

Managing an efficient, but fair, pretrial process in a large and complex case has always been a challenge. With the advent of electronic communications and the corresponding explosion of privilege claims, this challenge has become significantly more difficult. Indeed, it is not uncommon for corporate parties to assert tens of thousands, if not hundreds of thousands, of privilege claims. Furthermore, the resolution of these privilege questions is often compounded by difficult choice of law questions that can have the result of different substantive principles being applied to identical discovery demands originating in different jurisdictions. Additionally, before addressing the increasingly voluminous ...


Managing The Unmanageable: A Brief Accounting Of A Special Master’S Thirty Years Of Experience In Complex Litigation, Paul Rice Aug 2010

Managing The Unmanageable: A Brief Accounting Of A Special Master’S Thirty Years Of Experience In Complex Litigation, Paul Rice

Paul Rice

Managing an efficient, but fair, pretrial process in a large and complex case has always been a challenge. With the advent of electronic communications and the corresponding explosion of privilege claims, this challenge has become significantly more difficult. Indeed, it is not uncommon for corporate parties to assert tens of thousands, if not hundreds of thousands, of privilege claims. Furthermore, the resolution of these privilege questions is often compounded by difficult choice of law questions that can have the result of different substantive principles being applied to identical discovery demands originating in different jurisdictions. Additionally, before addressing the increasingly voluminous ...


Criminal Practice Developments In Maryland Evidence Law And Confrontation Clause Jurisprudence, Lynn Mclain Jul 2010

Criminal Practice Developments In Maryland Evidence Law And Confrontation Clause Jurisprudence, Lynn Mclain

All Faculty Scholarship

This paper was prepared as a handout for a presentation given on July 9th., 2010 to staff at the Harford County Public Defender’s Office, Bel Air, MD. The specific sections of the paper are: Discovery of Witnesses’ Identities: Protective Orders; Jury Selection; Communications from Jurors; Preservation of the Record: Rules 4-323, 5-103, and 5-702; Judicial Notice: Rule 5-201; Balancing Risk of Unfair Prejudice and Confusion against Probative Value: Rule 5-403; Character Evidence; Fifth Amendment Privilege: Miranda; Competency of Witnesses: Rule 5-601; Impeachment by Prior Convictions: Rule 5-609; Questioning by Court: Rule 5-614; Expert Testimony: Rules 5-702 – 5-706; Hearsay; The ...


Islamic Legal Maxims As Substantive Canons Of Construction: Ḥudūd-Avoidance In Cases Of Doubt, Intisar A. Rabb Jul 2010

Islamic Legal Maxims As Substantive Canons Of Construction: Ḥudūd-Avoidance In Cases Of Doubt, Intisar A. Rabb

Boston College Law School Faculty Papers

Legal maxims reflect settled principles of law to which jurists appeal when confronting new legal cases. One such maxim of Islamic criminal law stipulates that judges are to avoid imposing ḥudūd and other sanctions when beset by doubts as to the scope of the law or the sufficiency of the evidence (idra’ū ʾl-ḥudūd biʾl-shubahāt): the “ḥudūd maxim.” Jurists of all periods reference this maxim widely. But whereas developed juristic works attribute it to Muḥammad in the form of a prophetic report (ḥadīth), early jurists do not. Instead, they cite the maxim as an anonymous saying of nonspecific provenance in ...