Evidence Commons^™

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

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 …

The French Huissier As A Model For U.S. Civil Procedure Reform, Robert W. Emerson

University of Michigan Journal of Law Reform

Huissiers de justice serve multiple roles in the French legal system. One is that of a court officer who compiles dossiers (reports). In that role, the huissier is d'audiencier (literally translated as "hearing" or "assisting") and works directly for the court system itself.

The huissier's report remains alien to the American lawyer, who is steeped in notions of procedure and "testimonialism" and in principles of fairness which appear ancient, but are rather modern dissimulations of law and equity's rich history in the American tradition. An important aspect of most legal processes, the collection of data in preparation for litigation is …

Silent At Sentencing: Waiver Doctrine And A Capital Defendant's Right To Present Mitigating Evidence After Schriro V. Landrigan, Dale E. Ho

Dale E Ho

The consideration of mitigating evidence—evidence that weighs against the imposition of the death penalty in a capital defendant’s individual case—has been deemed a “constitutionally indispensable” feature of a valid capital sentencing scheme. And yet, Jeffrey Landrigan, like many capital defendants, was sentenced to death without the consideration of any mitigating evidence whatsoever. Landrigan’s trial counsel failed to uncover substantial evidence of Landrigan’s history of severe physical and sexual abuse as a child, and of the possible biological effects of his mother’s alcohol and drug abuse. Every member of the Ninth Circuit en banc panel considering his case deemed his counsel’s …

Limites A La Vigencia Del Principio Contradictorio En Los Juicios De Familia / Limits To The Adversarial Ideal In The Family Courts, Claudio Fuentes Maureira

Claudio Fuentes Maureira

The relevance of the adversarial ideal in the design of judicial proceedings is due to two major ideas: the right to a proper defence for the parties and the important role that the parties perform during the questioning and the control of the other party’s case. Once the relevance of the adversarial ideal is acknowledged, one could ask if this ideal is properly welcomed under the family procedure stated in the law. I propose that in order to answer this question properly, it is pertinent to use some sort of instrument to measure the amount of the adversarialness that the …

Informe De Funcionamiento De Los Tribunales De Familia De Santiago / Report On The Family Courts Of Santiago City, Claudio Fuentes Maureira, Felipe Marín Verdugo, Erick Rios Leiva

Claudio Fuentes Maureira

In October 2005, the Chilean government launched the new family courts. The new tribunals were the second major judicial reform that Chile’s executive power supported and it was a huge failure. The system collapsed after a couple of months, and in the beginning of the 2006, the executive branch called for a group of academics and experts to elaborate some kind of response.

After years of problems the authorities arrived at identifying the main problems, and because of that in September 2008 a new bill was enacted, containing modifications to the family law system. Also, the Supreme Court of Chile …

Evidence, Marc T. Treadwell

Mercer Law Review

I. INTRODUCTION

During the survey year from January 1, 2009 to December 31, 2009, the United States Court of Appeals for the Eleventh Circuit continued its recent trend of limiting the number of its published opinions, a trend discussed in more detail in a previous survey. This Survey will address several unpublished-yet noteworthy-decisions. However, readers should bear in mind Eleventh Circuit Rule 36-2, which provides that "[u~npublished opinions are not considered binding precedent, but they may be cited as persuasive authority." Also note that the court's internal operating procedures suggest an even more limited role for unpublished opinions:

The court …

Making Stuff Up, Richard H. Underwood

Law Faculty Scholarly Articles

Beginning with an article in this Journal almost thirty years ago, Professor Underwood continues to research and write about legal ethics and litigation. In this Commentary, he offers a witty look at several cases where, in his opinion, the judge allowed improper arguments to the jury.

Allshouse V. Pennsylvania, Brief Of The National Association Of Criminal Defense Lawyers, The Pennsylvania Association Of Criminal Defense Lawyers, The Public Defender Association Of Pennsylvania, And The Defender Association Of Philadelphia, As Amici Curiae On Behalf Of Petitioner, Jules Epstein

Jules Epstein

No abstract provided.

Summary Of Thomas V. Hardwick, 126 Nev. Adv. Op. No. 16, Amanda Hogeg

Nevada Supreme Court Summaries

A multi-faceted appeal from jury verdict entered in favor of defense in wrongful death suit.

Evidence Verite And The Law Of Film, Jessica M. Silbey

Jessica Silbey

This paper explores a puzzle concerning the authority of certain images that increasingly find themselves at the center of legal disputes: surveillance or “real time” film images that purport to capture an event about which there is a dispute. Increasingly, this kind of “evidence verité” is used in United States courts of law as the best evidence of what happened. Film footage of arrests, criminal confessions, photographs of crime scenes (during and after) is routinely admitted into court as evidence. It tends to overwhelm all other evidence (e.g., testimonial or documentary) and be immune to critical analysis. Why would this …

The Anatomy Of A Search: Intrusiveness And The Fourth Amendment, Renée Mcdonald Hutchins

University of Richmond Law Review

In this essay, I contend that when evaluating the constitutionality of enhanced surveillance devices, the existing test for assessing the occurrence of a Fourth Amendment search should be modified. Specifically, I suggest that intrusiveness should be unambiguously adopted by the Court as the benchmark for assessing and defining the existence of a search under the Fourth Amendment. Moreover, intrusiveness should be clearly defined to require an examination of two factors: the functionality of a challenged form of surveillance and the potential for disclosure created by the device.

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

Mary Sue Backus

No abstract provided.

22. Young Children’S Emerging Ability To Make False Statements., Thomas D. Lyon, Elizabeth C. Ahern, Jodi A. Quas

Thomas D. Lyon

Vol. Xxii, Tab 59 - Ex. 1 - Declaration Of Jonathan B. Oblak (Counsel For Google), Jonathan Oblak

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?

Vol. Xxii, Tab 59 - Ex. 2 - Declaration Of Margret M. Caruso (Counsel For Google), Margret Caruso

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?

Vol. Xxii, Tab 59 - Google's Opposition To Rosetta Stone's Motion For Sanctions, 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?

Vol. Xxii, Tab 59 - Ex. 3 - Declaration Of Kris Brewer (Counsel For Google), Kris Brewer

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?

Vol. Xxi, Tab 58 - Declaration Of Jennifer L. Spaziano In Support Of Rosetta Stone's Response To Google's Objections To Evidence And Motion To Strike, Jennifer Spaziano

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?

Vol. Xx, Tab 57 - Declaration Of Jennifer L. Spaziano In Support Of Rosetta Stone's Motion For Sanctions, Jennifer Spaziano

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?

Vol. Xv, Tab 52 - Rosetta Stone's Reply Brief In Support Of Its Motion For Partial Summary Judgment As To Liability, Rosetta Stone

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?

Vol. Ix, Tab 44 - Rosetta Stone's Opposition To Google's Motion For Summary Judgment, Rosetta Stone

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?

Vol. Ix, Tab 45 - Rosetta Stone's Opposition To Google's Motion For Summary Judgment, Rosetta Stone

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?

Development Of A Dna Database In Ireland — Assessing The Proposed Legislation, Liz Campbell

Liz Campbell

The collection and retention of DNA samples are seen universally as crucial for purposes of criminal investigation and prosecution, as a means of excluding innocent suspects, and of exonerating the wrongfully convicted. However, there is less consistency across jurisdictions regarding whose DNA should be obtained by the state and for how long it should be stored. The need for a measured approach in this context is underlined by the “exceptionalism” of genetic material, given the depth and sensitivity of the information contained within, and the potential for “function creep”, whereby state powers insidiously increase and data gathered for one purpose …

Jurisdictional Discovery In United States Federal Courts, S. I. Strong

Faculty Publications

The article begins with a discussion of the historical development and jurisprudential bases for jurisdictional discovery, then analyzes the two major structural problems with the device, namely (1) the lack of any identifiable standard regarding when jurisdictional discovery will be ordered and (2) the absence of any understanding about the proper scope of such discovery. Next, the article describes the root causes of these structural inadequacies and proposes several ways to address the root concerns, relying on a new line of Supreme Court precedent (including Ashcroft v. Iqbal) as well as analogies to other common law jurisdictions. The paper concludes …

Why Modern Evidence Law Lacks Credibility, Daniel D. Blinka

Buffalo Law Review

No abstract provided.

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

Mary Sue Backus

No abstract provided.

Appealing To The Legislature: A Comparative Analysis Of The Georgia Statutes Regarding Evidence Preservation And Access To Post-Conviction Dna Testing, Joy D. Aceves-Amaya

University of the District of Columbia Law Review

DNA evidence testing is the leading cause of exonerations in criminal cases throughout the United States.2 Yet, without the preservation of evidence in these cases and the ability to subject this evidence to advancing technology in DNA testing, many claims of innocence go unheard and defendants remain incarcerated while the real perpetrators of crime go unpunished. As of September 2009, seven Georgia men have been exonerated by post-conviction DNA testing.3 Such exonerations should be considered "victories for our criminal justice system: they free the innocent, correct miscarriages of justice that undermine public confidence in our criminal justice system, and allow …

Vol. Xxi, Tab 58 - Ex. 4 - Plaintiff Rosetta Stone's Supplemental Rule 26(A)(1) Disclosures, Rosetta Stone

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?

Vol. Xxiv, Tab 61 - Ex. 3 - Rosetta Stone's Supplemental Response To Google's First Set Of Interrogatories, Rosetta Stone

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?