Evidence Commons^™

Evidence’S #Metoo Moment, Aníbal Rosario-Lebrón

University of Miami Law Review

The #MeToo movement has drawn attention to the prevalence of sexual and gender-based violence. But more importantly, it has exposed how society discounts the testimony of women. This Article unfolds how this credibility discounting is reinforced in our evidentiary system through the use of character for untruthfulness evidence to impeach victims. Specifically, through defense attorneys’ practice of impeaching sexual and gender-based violence victims’ character for truthfulness as a way to introduce functional evidence of credibility biases regarding the trustworthiness of sexual and gender-based violence victims and the plausibility of their testimonies. The Article further shows a correlation between the poor …

The Noisy "Silent Witness": The Misperception And Misuse Of Criminal Video Evidence, Aaron M. Williams

Indiana Law Journal

This Note examines recent developments in the research of situational video evidence biases. Part I examines the current and growing body of psychological research into the various situational biases that can affect the reliability of video evidence and the gaps in this research that require further attention from researchers and legal academics. Because these biases do not “operate in a vacuum,” Part I also examines some of the recent and exciting research into the interaction between situational and dispositional biases. Part II examines the development of camera and video processing technology and its limitations as a means of mitigating such …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Why Do We Admit Criminal Confessions Into Evidence?, David Crump

Seattle University Law Review

There is an enormous literature about the admissibility of criminal confessions. But almost all of it deals with issues related to self-incrimination or, to a lesser extent, with hearsay or accuracy concerns. As a result, the question whether we ever admit criminal confessions into evidence has not been the subject of much analysis. This gap is odd, since confessions are implicitly disfavored by a proportion of the literature and they often collide with exclusionary doctrines. Furthermore, the self-incrimination issue sometimes is resolved by balancing, and it would help if we knew what we were balancing. Therefore, one might ask: Why …

Due Process People V. Scott (Decided June 5, 1996)

Touro Law Review

No abstract provided.

Can You Hear Me Now: The Impacts Of Prosecutorial Call Monitoring On Defendants' Access To Justice, Hope L. Demer

South Carolina Law Review

No abstract provided.

Justice Begins Before Trial: How To Nudge Inaccurate Pretrial Rulings Using Behavioral Law And Economic Theory And Uniform Commercial Laws, Michael Gentithes

William & Mary Law Review

Injustice in criminal cases often takes root before trial begins. Overworked criminal judges must resolve difficult pretrial evidentiary issues that determine the charges the State will take to trial and the range of sentences the defendant will face. Wrong decisions on these issues often lead to wrongful convictions. As behavioral law and economic theory suggests, judges who are cognitively busy and receive little feedback on these topics from appellate courts rely upon intuition, rather than deliberative reasoning, to resolve these questions. This leads to inconsistent rulings, which prosecutors exploit to expand the scope of evidentiary exceptions that almost always disfavor …

No Means No: An Argument For The Expansion Of Rape Shield Laws To Cases Of Nonconsensual Pornography, Austin Vining

William & Mary Journal of Race, Gender, and Social Justice

This Article considers the impact of a hypothetical nonconsensual pornography victim’s previous sexual history on potential legal remedies, both criminal and civil. Due to jury bias and the difficulty in proving standard elements of many claims, the research shows that such a victim would likely be unsuccessful in court. This Article then turns to two legal concepts from related fields—the incremental harm doctrine and rape shield laws—and considers what effect their application would have on the hypothetical victim’s case. Ultimately, the author presents an argument for the logical expansion of rape shield laws to cases of nonconsensual pornography.

Between Brady Discretion And Brady Misconduct, Bennett L. Gershman

Dickinson Law Review (2017-Present)

The Supreme Court’s decision in Brady v. Maryland presented prosecutors with new professional challenges. In Brady, the Supreme Court held that the prosecution must provide the defense with any evidence in its possession that could be exculpatory. If the prosecution fails to timely turn over evidence that materially undermines the defendant’s guilt, a reviewing court must grant the defendant a new trial. While determining whether evidence materially undermines a defendant’s guilt may seem like a simple assessment, the real-life application of such a determination can be complicated. The prosecution’s disclosure determination can be complicated under the Brady paradigm because …

O’Neill, Oh O’Neill, Wherefore Art Thou O’Neill: Defining And Cementing The Requirements For Asserting Deliberative Process Privilege, Andrew Scott

Dickinson Law Review (2017-Present)

The government may invoke the deliberative process privilege to protect the communications of government officials involving policy-driven decision-making. The privilege protects communications made before policy makers act upon the policy decision to allow government officials to speak candidly when deciding a course of action without fear of their words being used against them.

This privilege is not absolute and courts recognize the legitimate countervailing interest the public has in transparency. The Supreme Court in United States v. Reynolds held that someone with control over the protected information should personally consider the privilege before asserting it but did not provide definitive …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

The Bb Gun: A Harmless Toy Or Deadly Weapon? Practical Guidance For Objective Fact Finding In A Criminal Case, Steven N. Gosney, John Zak

Criminal Law Practitioner

No abstract provided.

Raising The Cost Of Using Title Iii Wiretap Evidence, Derik T. Fettig

Mitchell Hamline Law Review

No abstract provided.

Pleading Guilty To Innocence: How Faulty Field Tests Provide False Evidence Of Guilt, Kaelyn Phelps

Roger Williams University Law Review

No abstract provided.

2018 Survey Of Rhode Island Case Law

Roger Williams University Law Review

No abstract provided.

Where The Constitution Falls Short: Confession Admissibility And Police Regulation, Courtney E. Lewis

Dickinson Law Review (2017-Present)

A confession presented at trial is one of the most damning pieces of evidence against a criminal defendant, which means that the rules governing its admissibility are critical. At the outset of confession admissibility in the United States, the judiciary focused on a confession’s truthfulness. Culminating in the landmark case Miranda v. Arizona, judicial concern with the reliability of confessions shifted away from whether a confession was true and towards curtailing unconstitutional police misconduct. Post-hoc constitutionality review, however, is arguably inappropriate. Such review is inappropriate largely because the reviewing court must find that the confession was voluntary only by …