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2017

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Full-Text Articles in Evidence

Close Enough For Government Work: Proving Minimal Nexus In A Federal And Firearms Conviction: United States V. Corey, Barbara H. Taylor Dec 2017

Close Enough For Government Work: Proving Minimal Nexus In A Federal And Firearms Conviction: United States V. Corey, Barbara H. Taylor

Maine Law Review

In United States v. Corey, Alvin Scott Corey was found guilty of possessing a firearm as a felon. Although Corey's possession of a Smith and Wesson shotgun violated Maine law, Corey was prosecuted in the United States District Court under the federal statute 18 U.S.C. § 922(g)(1) and its penalty statute, § 924(e). On appeal, Corey argued that one of the requirements for his conviction, proof of the statute's jurisdictional element, had not been satisfied because that proof rested on expert testimony based, in part, on hearsay. The First Circuit Court of Appeals, in a ...


Scientific Evidence And Forensic Science Since Daubert: Maine Decides To Sit Out On The Dance, Thomas L. Bohan Dec 2017

Scientific Evidence And Forensic Science Since Daubert: Maine Decides To Sit Out On The Dance, Thomas L. Bohan

Maine Law Review

In 1993, the Supreme Court of the United States stated that with the federal adoption of statutory rules of evidence in 1975, the common law rule for determining admissibility of scientific testimony was superseded, and that thenceforth admissibility of scientific testimony was to be determined solely by Federal Rule of Evidence 702 (Rule 702). The Frye standard had been adopted in one form or another by most of the federal circuits and by many of the state courts during the 70 years preceding Daubert. Referred to as the “general acceptance” standard, the Frye standard--although adopted in a variety of forms--had ...


Federal Habeas Corpus And The Mapp Exclusionary Rule After Stone V. Powell, Philip Halpern Nov 2017

Federal Habeas Corpus And The Mapp Exclusionary Rule After Stone V. Powell, Philip Halpern

Philip Halpern

No abstract provided.


The Effects Of Promising To Tell The Truth, The Putative Confession, And Recall And Recognition Questions On Maltreated And Non-Maltreated Children's Disclosure Of A Minor Transgression, Jodi A. Quas, Stacia N. Stolzenberg, Thomas D. Lyon Nov 2017

The Effects Of Promising To Tell The Truth, The Putative Confession, And Recall And Recognition Questions On Maltreated And Non-Maltreated Children's Disclosure Of A Minor Transgression, Jodi A. Quas, Stacia N. Stolzenberg, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

This study examined the utility of two interview instructions designed to overcome children’s reluctance to disclose transgressions: eliciting a promise from children to tell the truth and the putative confession (telling children that a suspect “told me everything that happened and wants you to tell the truth”). The key questions were whether the instructions increased disclosure in response to recall questions and in response to recognition questions that were less or more explicit about transgressions, and whether instructions were differentially effective with age. Two-hundred and seventeen 4- to 9-year-old maltreated and comparable non-maltreated children played with a stranger. This ...


Calling Crawford: Minnesota Declares A 911 Call Non-Testimonial In State V. Wright, Alistair Y. Raymond Nov 2017

Calling Crawford: Minnesota Declares A 911 Call Non-Testimonial In State V. Wright, Alistair Y. Raymond

Maine Law Review

In State v. Wright, 1 the State of Minnesota charged David Wright with possession of a firearm by a felon and two counts of second-degree assault against his girlfriend and her sister. A jury found Wright guilty on all charges and sentenced him to sixty months in jail for each crime, with sentences served concurrently. Wright’s girlfriend, R.R., and her sister, S.R., did not testify against him at trial. The prosecution, however, used the transcript of a 911 call placed by R.R. against Wright in the trial. Although the 911 call was hearsay, the court admitted ...


The Relation Between Young Children's False Response Latency, Executive Functioning, And Truth-Lie Understanding, Shanna Williams, Elizabeth C. Ahern, Thomas D. Lyon Nov 2017

The Relation Between Young Children's False Response Latency, Executive Functioning, And Truth-Lie Understanding, Shanna Williams, Elizabeth C. Ahern, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

This study examined relations between children’s false statements and response latency, executive functioning, and truth-lie understanding in order to understand what underlies children’s emerging ability to make false statements. A total of 158 (2- to 5- year-old) children earned prizes for claiming that they were looking at birds even when presented with images of fish. Children were asked recall (“what do you have?”), recognition (“do you have a bird/fish?”), and outcome (“did you win/lose?”) questions. Response latencies were greater when children were presented with fish pictures than bird pictures, particularly when they were asked recall questions ...


Relations Between Attorney Temporal Structure And Children's Response Productivity In Cases Of Alleged Child Sexual Abuse, J. Zoe Klemfuss, Kyndra C. Cleveland, J A. Quas, Thomas D. Lyon Nov 2017

Relations Between Attorney Temporal Structure And Children's Response Productivity In Cases Of Alleged Child Sexual Abuse, J. Zoe Klemfuss, Kyndra C. Cleveland, J A. Quas, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

Purpose. Previous research has demonstrated that attorney question format relates to child witness’ response productivity. However, little work has examined the extent to which attorneys provide temporal structure in their questions, and the effects of this structure on children’s responding. The purpose of this study was to address this gap in the literature to identify methods by which attorneys increase children’s response productivity on the stand without risking objections from opposing counsel for ‘calling for narrative answers’.

Methods. In this study, we coded criminal court transcripts involving child witnesses (5–18 years) for narrative structure in attorney questions ...


When Interviewing Children: A Review And Update, Karen J. Saywitz, Thomas D. Lyon, Gail S. Goodwin Nov 2017

When Interviewing Children: A Review And Update, Karen J. Saywitz, Thomas D. Lyon, Gail S. Goodwin

University of Southern California Legal Studies Working Paper Series

In this chapter, we highlight principles for interviewing children based on the best available science, understanding that such principles keep changing as new evidence accumulates and that gaps exist in the knowledge base where guidance is limited. Interviewers will need to stay abreast of new developments. First, we briefly describe the data base from which the tools derive--studies conducted in the laboratory and in the field. Then we discuss evidence-based interview tools and features of the interview about which there is sufficient empirical evidence and consensus to derive “toolboxes.” We discuss interview structure, setting, children’s reluctance and suggestibility, rapport ...


Spatial Language, Question Type, And Young Children's Ability To Describe Clothing: Legal And Developmental Implications, Stacia N. Stolzenberg, Kelly Mcwilliams, Thomas D. Lyon Nov 2017

Spatial Language, Question Type, And Young Children's Ability To Describe Clothing: Legal And Developmental Implications, Stacia N. Stolzenberg, Kelly Mcwilliams, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

Children’s descriptions of clothing placement and touching with respect to clothing are central to assessing child sexual abuse allegations. This study examined children’s ability to answer the types of questions attorneys and interviewers typically ask about clothing, using the most common spatial terms (on/off, outside/inside, over/under). Ninety-seven 3- to 6-year-olds were asked yes/no (e.g. “Is the shirt on?”), forced-choice (e.g., “Is the shirt on or off?”), open-choice (e.g., “Is the shirt on or off or something else?”), or where questions (e.g., “Where is the shirt?”) about clothing using a human ...


"Where Were Your Clothes?" Eliciting Descriptions Of Clothing Placement From Children Alleging Sexual Abuse In Criminal Trials And Forensic Interviews, Stacia N. Stolzenberg, Thomas D. Lyon Nov 2017

"Where Were Your Clothes?" Eliciting Descriptions Of Clothing Placement From Children Alleging Sexual Abuse In Criminal Trials And Forensic Interviews, Stacia N. Stolzenberg, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

Purpose: The present study examined how children alleging sexual abuse are asked about clothing placement during abusive episodes, both in criminal trials and forensic interviews. The placement of clothing is of great importance, because it facilitates distinguishing abusive touch from non-abusive touch, as well as the severity of abuse when the touching is in fact sexual. If clothing has not been removed, then sexual abuse appears less likely and certain types of sexual contact are physically impossible (or at least highly improbable). Methods: We examined how trial attorneys (n = 142) and forensic interviewers in investigative interviews (n = 155) questioned 5- ...


The Supreme Court's Long And Perhaps Unnecessary Struggle To Find A Standard Of Culpability To Regulate The Federal Exclusionary Remedy For Fourth/Fourteenth Amendment Violations, Melvyn H. Zarr Oct 2017

The Supreme Court's Long And Perhaps Unnecessary Struggle To Find A Standard Of Culpability To Regulate The Federal Exclusionary Remedy For Fourth/Fourteenth Amendment Violations, Melvyn H. Zarr

Maine Law Review

On January 14, 2009, the United States Supreme Court decided Herring v. United States. In Herring, the defendant moved to suppress evidence that he alleged was seized as a result of an arrest that violated the Fourth and Fourteenth Amendments to the U.S. Constitution. The Supreme Court approved the decision below to deny suppression of the evidence. The decision set off a flurry of speculation that the Fourth Amendment exclusionary rule would not see its 100th birthday in 2014. A headline in the New York Times of January 31 declared: “Supreme Court Edging Closer to Repeal of Evidence Ruling ...


State V. Thurston: An Examination Of Assualt, Self-Defense, And Trespass In Relation To Domestic Violence, Megan E. Magoon Oct 2017

State V. Thurston: An Examination Of Assualt, Self-Defense, And Trespass In Relation To Domestic Violence, Megan E. Magoon

Maine Law Review

Darrell Thurston and Suzanne Harmon were romantically involved on an intermittent basis for five years and had one child together. As a result of an altercation that took place at Harmon’s home in Sullivan, Maine, on September 27, 2007, between Thurston and Harmon, Thurston was charged with assault, criminal mischief, and obstructing report of crime or injury. The testimony during the trial illuminated the major factual differences between Thurston’s and Harmon’s accounts of the night the incident took place. Thurston requested a self defense jury instruction based on his version of what had happened, which the trial ...


Findings Of Fact Vs. Conclusions Of Law: How The Law Court Complicated The Case Of State V. Connor, Christopher S. Boulos Oct 2017

Findings Of Fact Vs. Conclusions Of Law: How The Law Court Complicated The Case Of State V. Connor, Christopher S. Boulos

Maine Law Review

In State v. Connor, the Maine Supreme Judicial Court, sitting as the Law Court, upheld a trial judge’s denial of a motion to suppress evidence. Although the evidence presented in the suppression hearing seemed adequate to support the denial of the motion, the trial judge failed to clearly state his conclusions of law when denying the motion. However, the Law Court mistook the ambiguous conclusions of law as ambiguous findings of fact. Because the findings of fact were ambiguous in the court’s view, the majority and dissenting opinions spent the bulk of their energies discussing how the court ...


Criminal Law—When The Pillow Talks: Arkansas's Rape Shield Statute Bars Dna Evidence Excluding The Defendant As The Source Of Semen. Thacker V. State, 2015 Ark. 406, 474 S.W.3d 65., Lacon Marie Smith Oct 2017

Criminal Law—When The Pillow Talks: Arkansas's Rape Shield Statute Bars Dna Evidence Excluding The Defendant As The Source Of Semen. Thacker V. State, 2015 Ark. 406, 474 S.W.3d 65., Lacon Marie Smith

University of Arkansas at Little Rock Law Review

No abstract provided.


Discovering Forensic Fraud, Jennifer D. Oliva, Valena E. Beety Sep 2017

Discovering Forensic Fraud, Jennifer D. Oliva, Valena E. Beety

Northwestern University Law Review

This Essay posits that certain structural dynamics, which dominate criminal proceedings, significantly contribute to the admissibility of faulty forensic science in criminal trials. The authors believe that these dynamics are more insidious than questionable individual prosecutorial or judicial behavior in this context. Not only are judges likely to be former prosecutors, prosecutors are “repeat players” in criminal litigation and, as such, routinely support reduced pretrial protections for defendants. Therefore, we argue that the significant discrepancies between the civil and criminal pretrial discovery and disclosure rules warrant additional scrutiny.

In the criminal system, the near absence of any pretrial discovery means ...


The Unintended Consequences Of California Proposition 47: Reducing Law Enforcement’S Ability To Solve Serious, Violent Crimes, Shelby Kail Aug 2017

The Unintended Consequences Of California Proposition 47: Reducing Law Enforcement’S Ability To Solve Serious, Violent Crimes, Shelby Kail

Pepperdine Law Review

For many years, DNA databases have helped solve countless serious, violent crimes by connecting low-level offenders to unsolved crimes. Because the passage of Proposition 47 reduced several low-level crimes to misdemeanors, which do not qualify for DNA sample collection, Proposition 47 has severely limited law enforcement’s ability to solve serious, violent crimes through California’s DNA database and reliable DNA evidence. This powerful law enforcement tool must be preserved to prevent additional crimes from being committed, to exonerate the innocent, and to provide victims with closure through conviction of their assailants or offenders. Proposition 47’s unintended consequences have ...


Adjudicated Juveniles And Collateral Relief, Joshua A. Tepfer, Laura H. Nirider Jul 2017

Adjudicated Juveniles And Collateral Relief, Joshua A. Tepfer, Laura H. Nirider

Maine Law Review

Collateral relief is a vital part of the American criminal justice system. By filing post-conviction petitions after the close of direct appeal, defendants can raise claims based on evidence outside the record that was not known or available at the time of trial. One common use of post-conviction relief is to file a claim related to a previously unknown constitutional violation that occurred at trial, such as ineffective assistance of counsel. If a defendant’s trial attorney performed ineffectively by failing to call, for instance, an alibi witness, then that omission is unlikely to be reflected in the trial record ...


Commissioning Innocence And Restoring Confidence: The North Carolina Innocence Inquiry Commission And The Missing Deliberative Citizen, Mary Kelly Tate Jul 2017

Commissioning Innocence And Restoring Confidence: The North Carolina Innocence Inquiry Commission And The Missing Deliberative Citizen, Mary Kelly Tate

Maine Law Review

Since 1989, the United States has witnessed 289 DNA exonerations, with exonerees serving an average of thirteen years in prison. Although DNA an its unmatched power for the conclusive results is what brought popular attention to wrongful convictions, the scope of the problem is vastly larger than the number of known DNA exonerations. The actual number of convicted individuals who are factually innocent is unknown. The state of North Carolina has recently responded to this national crisis via a newly created state agency. This essay applauds North Carolina’s response, but urges that ordinary citizens, qua jurors, be active participants ...


State Searches, Federal Cases, And Choice Of Law: Just A Little Respect, John B. Corr Jun 2017

State Searches, Federal Cases, And Choice Of Law: Just A Little Respect, John B. Corr

John (Bernie) Corr

No abstract provided.


Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky Jun 2017

Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.


The Grand Jury: A Shield Of A Different Sort, R. Michael Cassidy, Julian A. Cook Iii Jun 2017

The Grand Jury: A Shield Of A Different Sort, R. Michael Cassidy, Julian A. Cook Iii

Boston College Law School Faculty Papers

According to the Washington Post, 991 people were shot to death by police officers in the United States during calendar year 2015, and 957 people were fatally shot in 2016. A disproportionate percentage of the citizens killed in these police-civilian encounters were black. Events in Ferguson, Missouri; Chicago, Illinois; Charlotte, North Carolina; Baton Rouge, Louisiana; and Staten Island, New York - to name but a few affected cities - have now exposed deep distrust between communities of color and law enforcement. Greater transparency is necessary to begin to heal this culture of distrust and to inform the debate going forward about police ...


The British Experience With Hearsay Reform: A Cautionary Tale, Mark S. Brodin May 2017

The British Experience With Hearsay Reform: A Cautionary Tale, Mark S. Brodin

Mark S. Brodin

Among the proposals being considered by the Advisory Committee on the Federal Rules of Evidence (“the Committee”) is the scrapping of the categorical exception regime for hearsay, leaving questions of reliability and admissibility ad hoc to district court judges along the lines of Federal Rules of Evidence (FRE) 403 and 807. Over the past decades, the British have moved toward this approach, and it is the purpose of this Article to identify the lessons that can be learned from that experience, especially with regard to criminal prosecutions and the right of confrontation.


Small Cells, Big Problems: The Increasing Precision Of Cell Site Location Information And The Need For Fourth Amendment Protections, Robert M. Bloom, William T. Clark May 2017

Small Cells, Big Problems: The Increasing Precision Of Cell Site Location Information And The Need For Fourth Amendment Protections, Robert M. Bloom, William T. Clark

Robert M. Bloom

The past fifty years has witnessed an evolution in technology advancement in police surveillance. Today, one of the essential tools of police surveillance is something most Americans carry with them in their pockets every day, the cell phone. Cell phones not only contain a huge repository of personal data, they also provide continuous surveillance of a person’s movement known as cell site location information (CSLI). In 1986, Congress sought to provide some privacy protections to CSLI in the Stored Communication Act. Although this solution may have struck the proper balance in an age when cell phones were a mere ...


Physical Match: Unique Fracture Patterns In Wooden Popsicle Sticks, Yiu Ming Sunny Lau May 2017

Physical Match: Unique Fracture Patterns In Wooden Popsicle Sticks, Yiu Ming Sunny Lau

Themis: Research Journal of Justice Studies and Forensic Science

Physical match (or physical fit) evidence was considered reliable in court for years, until the Daubert case, which required standardized scientific methodology on all forensic evidence. Physical matching faces the same criticism as other forms of physical evidence (specifically, that it lacks a scientific foundation). Physical matching is based on the idea that when an object is fractured, the shape of each fragment is unique and it is not possible to recreate a fragment that is identical to any other. In this study, fifty wooden popsicle sticks were broken in half, the pieces were mixed, and then reconstructed using physical ...


Challenging The Credibility Of Alleged Victims Of Child Sexual Abuse In Scottish Courts, Zsofia Szojka, Samantha J. Andrews, Michael E. Lamb, Stacia N. Stolzenberg, Thomas D. Lyon May 2017

Challenging The Credibility Of Alleged Victims Of Child Sexual Abuse In Scottish Courts, Zsofia Szojka, Samantha J. Andrews, Michael E. Lamb, Stacia N. Stolzenberg, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

This study examined the effects of credibility-challenging questions (n = 2,729) on 62 5- to 17-year-olds’ testimony in child sexual abuse cases in Scotland by categorizing the type, source, and content of the credibility-challenging questions defence lawyers asked and assessing how children responded. Credibility-challenging questions comprised 14.9% of all questions asked during cross-examination. Of defence lawyers’ credibility-challenging questions, 77.8% focused generally on children’s honesty, whereas the remainder referred to specific inconsistencies in the children’s testimony. Children resisted credibility challenges 54% of the time, significantly more often than they provided compliant responses (26.8%). The tendency to ...


Pragmatic Failure And Referential Ambiguity When Attorneys Ask Child Witnesses "Do You Know/Remember" Questions, Angela D. Evans, Stacia N. Stolzenberg, Thomas D. Lyon May 2017

Pragmatic Failure And Referential Ambiguity When Attorneys Ask Child Witnesses "Do You Know/Remember" Questions, Angela D. Evans, Stacia N. Stolzenberg, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

“Do you know” and “Do you remember” (DYK/R) questions explicitly ask whether one knows or remembers some information while implicitly asking for that information. This study examined how 104 4- to 9-year-old children testifying in child sexual abuse cases responded to DYK/R wh- and yes/no questions. When asked DYK/R questions containing an implicit wh- question requesting information, children often provided unelaborated “Yes” responses. Attorneys’ follow-up questions suggested that children usually misunderstood the pragmatics of the questions. When DYK/R questions contained an implicit yes/no question, unelaborated “Yes” or “No” responses could be responding to the ...


"A Middle Temperature Between The Two": Exploring Intermediate Remedies For The Failure To Comply With Maryland's Eyewitness Identification Statute, Marc A. Desimone Jr. May 2017

"A Middle Temperature Between The Two": Exploring Intermediate Remedies For The Failure To Comply With Maryland's Eyewitness Identification Statute, Marc A. Desimone Jr.

University of Baltimore Law Review

This article addresses what remedies should be available to a criminal defendant in Maryland who has been identified in an extrajudicial identification procedure that does not comply with the present statutory requirements. Part II of this article provides an overview of the present due process test for evaluating the admissibility of extrajudicial eyewitness identifications, the present Maryland iteration of that test, and alternatives to that approach that have been adopted in other jurisdictions. Part III reviews recent legislative reforms to extrajudicial identification procedures, which are required in Maryland as of January 1, 2016. Section IV.A of this article argues ...


The Miranda Case Fifty Years Later, Yale Kamisar May 2017

The Miranda Case Fifty Years Later, Yale Kamisar

Articles

A decade after the Supreme Court decided Miranda v. Arizona, Geoffrey Stone took a close look at the eleven decisions the Court had handed down “concerning the scope and application of Miranda.” As Stone observed, “[i]n ten of these cases, the Court interpreted Miranda so as not to exclude the challenged evidence.” In the eleventh case, the Court excluded the evidence on other grounds. Thus, Stone noted, ten years after the Court decided the case, “the Court ha[d] not held a single item of evidence inadmissible on the authority of Miranda.” Not a single item. To use baseball ...


Find My Criminals: Fourth Amendment Implications Of The Universal Cell Phone "App" That Every Cell Phone User Has But No Criminal Wants, Christopher Joseph Apr 2017

Find My Criminals: Fourth Amendment Implications Of The Universal Cell Phone "App" That Every Cell Phone User Has But No Criminal Wants, Christopher Joseph

Barry Law Review

No abstract provided.


The Effects Of The Hypothetical Putative Confession And Negatively-Valenced Yes/No Questions On Maltreated And Non-Maltreated Children's Dislcosure Of A Minor Transgression, Stacia N. Stolzenberg, Kelly Mcwilliams, Thomas D. Lyon Apr 2017

The Effects Of The Hypothetical Putative Confession And Negatively-Valenced Yes/No Questions On Maltreated And Non-Maltreated Children's Dislcosure Of A Minor Transgression, Stacia N. Stolzenberg, Kelly Mcwilliams, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

This study examined the effects of the hypothetical putative confession (telling children “What if I said that [the suspect] told me everything that happened and he wants you to tell the truth?”) and negatively-valenced yes/no questions varying in their explicitness (“Did [toy] break?” vs. “Did something bad happen to the [toy]?”) on 206 4- to 9-year-old maltreated and non-maltreated children’s reports, half of whom had experienced toy breakage and had been admonished to keep the breakage a secret. The hypothetical putative confession increased the likelihood that children disclosed breakage without increasing false reports. The yes/no questions elicited ...