Evidence Commons^™

Where Did My Privilege Go? Congress And Its Discretion To Ignore The Attorney-Client Privilege, Don Berthiaume, Jeffrey Ansley

Don R Berthiaume

“The right to counsel is too important to be passed over for prosecutorial convenience or executive branch whimsy. It has been engrained in American jurisprudence since the 18th century when the Bill of Rights was adopted... However, the right to counsel is largely ineffective unless the confidential communications made by a client to his or her lawyer are protected by law.”[1] So said Senator Arlen Specter on February 13, 2009, just seven months before Congress chose to ignore the very privilege he lauded. Why then, if the right to counsel is as important as Senator Specter articulated, does Congress maintain …

Social Media And Legal Ethics, Jonathan I. Ezor

Jonathan I. Ezor

A presentation on the legal issues arising out of attorney use of social media services, including for electronic discovery

Finding Evidence On Facebook, Jeffrey Bellin

Popular Media

No abstract provided.

Accounting For Federalism In State Courts - Exclusion Of Evidence Obtained Lawfully By Federal Agents, Robert M. Bloom, Hillary J. Massey

Robert M. Bloom

After the terrorist attacks on September 11th, Congress greatly enhanced federal law enforcement powers through enactment of the U.S.A. Patriot Act. The Supreme Court also has provided more leeway to federal officers in the past few decades, for example by limiting the scope of the exclusionary rule. At the same time, many states have interpreted their constitutions to provide greater individual protections to their citizens than provided by the federal constitution. This phenomenon has sometimes created a wide disparity between the investigatory techniques available to federal versus state law enforcement officers. As a result, state courts sometimes must decide whether …

More On The Impeachment Of Criminal Defendants, Jeffrey Bellin

Popular Media

No abstract provided.

More On The Future Of Present Sense Impressions, Jeffrey Bellin

Popular Media

No abstract provided.

Plea Bargaining, Discovery, And The Intractable Problem Of Impeachment Disclosures, R. Michael Cassidy

Vanderbilt Law Review

Several recent high-profile cases have illustrated flaws with the government's discovery practices in criminal cases and have put prosecutors across the country on the defensive about their compliance with disclosure obligations. The conviction of former Alaska Senator Ted Stevens on ethics charges was set aside after it was revealed that federal prosecutors withheld notes of an interview with a key government witness; one member of the Stevens prosecution team who was under investigation for contempt subsequently committed suicide. The Supreme Court remanded a double murder case from Tennessee for potential resentencing after it was revealed that state prosecutors had withheld …

The Usefulness Of . . . Evidence, Jeffrey Bellin

Popular Media

No abstract provided.

The Evidentiary Significance Of “Tweets,” Texts And Status Updates (Starring Justin Bieber), Jeffrey Bellin

Popular Media

No abstract provided.

Gone But Not Forgotten: When Privacy, Policy And Privilege Collide, Louise L. Hill

Louise L Hill

No abstract provided.

Rule 609 And The Frustratingly Unkillable Five-Factor Mahone Framework, Jeffrey Bellin

Popular Media

No abstract provided.

Unpredictable And Inconsistent: Nevada's Expert Witness Standard After Higgs V. State, Ryan A. Henry

Nevada Law Journal

No abstract provided.

Etchings On Glass: Reflections On The Science Of Proof, Louise Harmon

Louise Harmon

No abstract provided.

Wild Dreamers: Meditation On The Admissibility Of Dream Talk, Louise Harmon

Louise Harmon

No abstract provided.

"Introduction" (Chapter 1) Of Stories About Science In Law: Literary And Historical Images Of Acquired Expertise (Ashgate 2011), David S. Caudill

Working Paper Series

This is the introductory chapter of Stories About Science in Law: Literary and Historical Images of Acquired Expertise (Ashgate, 2011), explaining that the book presents examples of how literary accounts can provide a supplement to our understanding of science in law. Challenging the view that law and science are completely different, I focus on stories that explore the relationship between law and science, and identify cultural images of science that prevail in legal contexts. In contrast to other studies on the transfer and construction of expertise in legal settings, the book considers the intersection of three interdisciplinary projects-- law and …

Lawyers Judging Experts: Oversimplifying Science And Undervaluing Advocacy To Construct An Ethical Duty?, David S. Caudill

Working Paper Series

My focus is on an apparent trend at the intersection of the fields of evidentiary standards for expert admissibility and professional responsibility, namely the eagerness to place more ethical responsibilities on lawyers to vet their proffered expertise to ensure its reliability. My reservations about this trend are not only based on its troubling implications for the lawyer’s duty as a zealous advocate, which already has obvious limitations (because of lawyers’ conflicting duties to the court), but are also based on the problematic aspects of many reliability determinations. To expect attorneys—and this is what the proponents of a duty to vet …

Admissibility Of Investigatory Reports In § 1983 Civil Rights Actions - A User's Manual, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

The Business Records Exception To The Hearsay Rule - New Is Not Necessarily Better, Sidney Kwestel

Sidney Kwestel

No abstract provided.

Why Cops Lie, Peter Keane

Publications

Police officer perjury in court to justify illegal dope searches is commonplace. One of the dirty little not-so-secret secrets of the criminal justice system is undercover narcotics officers intentionally lying under oath. It is a perversion of the American justice system that strikes directly at the rule of law. Yet it is the routine way of doing business in courtrooms everywhere in America.

Declaración De La Parte Como Medio De Prueba, Felipe Marín Verdugo

Felipe Marín Verdugo

The Chilean judicial procedures went from a written procedure to a hearing-based procedure. This change involved a new design for the trial hearing and, in particular, for the rules of evidence. The meaning of these changes is not yet well understood, making it easier for the survival of former practices of the written system within the new hearing-based system. This paper identifies on of them, which is the exclusion of parties as witnesses.

Ninth Circuit Strikes Out On Hearsay, Peter Keane

Publications

The recent Ninth Circuit U.S. Court of Appeals opinion, United States v. Barry Bonds , is a murky distortion of an important Federal Rule of Evidence. Quite apart from any celebrity status about a decision regarding the upcoming perjury trial of the former Giants' slugger, the ruling significantly affects the admissibility of evidence in the federal courts in an unfortunate and erroneous way.

An Economic Analysis Of Fact Witness Payment, Eugene Kontorovich, Ezra Friedman

Faculty Working Papers

In this paper we discuss the disparate treatment of perceptual (''fact'') witnesses and expert witnesses in the legal system. We highlight the distinction between the perceptual act of witnessing and the act of testifying, and argue that although there might be good reasons to regulate payments to fact witnesses, the customary prohibition on paying them for their services is not justified by reference to economic theory. We propose considering a court mediated system for compensating fact witnesses so as to encourage witnessing of legally important events.We construct a simple model of witness incentives, and simulate the effects of several possible …

The Need For A Research Culture In The Forensic Sciences, Jonathan Koehler, Jennifer L. Mnookin, Simon A. Cole, Barry A.J. Fisher, Itiel E. Dror, Max Houck, Kieth Inman, David H. Kaye, Glenn Langenburg, D. Michel Risinger, Norah Rudin, Jay Siegel

Faculty Working Papers

The methods, techniques, and reliability of the forensic sciences in general, and the pattern identification disciplines in particular, have faced significant scrutiny in recent years. Critics have attacked the scientific basis for the assumptions and claims made by forensic scientists both in and out of the courtroom. Defenders have emphasized courts' long-standing acceptance of forensic science evidence, the relative dearth of known errors, and the skill and experience of practitioners. This Article reflects an effort made by a diverse group of participants in these debates, including law professors, academics from several disciplines, and practicing forensic scientists, to find and explore …

Narrative Implications Of Evidentiary Rules, Bruce Ching

Journal Articles

Advocates are increasingly conscious of courtroom disputes as forms of story-battles, in which the parties present competing narratives. But the rules of evidence -- determining which facts can be incorporated into the presentation of the parties' stories -- can also often best be understood from a narrative point of view. This paper examines narrative features underlying evidentiary rules dealing with leading questions, "speaking objections," and hearsay.

Rule 801(D)'S Oxymoronic 'Not Hearsay' Classification: The Untold Backstory And A Suggested Amendment, Sam Stonefield

Faculty Scholarship

This Article examines Rule 801(d)’s oxymoronic treatment of admissions and prior statements as “not hearsay.” This “not hearsay” label is inaccurate – the evidence is hearsay, as defined in Rule 801(c) – and is inconsistent with the analytically important and well-established use of the term not hearsay to describe evidence that is actually not hearsay.

The Article tells the story of how the drafters of the Federal Rules of Evidence ended up with such a confused and confusing label and proposes an amendment that would classify admissions and prior statements as hearsay exceptions and place each in a new, separate, …

A Parent's "Apparent" Authority: Why Intergenerational Coresidence Requires A Reassessment Of Parental Consent To Search Adult Children's Bedrooms, Hillary B. Farber

Faculty Publications

The proliferation of multigenerational U.S. households provides a new perspective on the social customs and practices concerning coresidence in the United States. Rather than relying outdated presumptions of parental control, this Article argues that police should be compelled to conduct a more thorough inquiry before searching areas occupied exclusively by the adult child. Police should differentiate between "common" and private areas, and inquire into any agreements - formal or informal - that the parent and child may have regarding access and control over such areas. By fully recognizing the changing nature of the American household and rejecting a bare reliance …

Admissibility Of Electronic Documents, Curtis E.A. Karnow

Curtis E.A. Karnow

A comprehensive inventory of issues involved in the introduction of electronic evidence, including practical alerts

A Defense Attorney’S Guide To Confrontation After Michigan V. Bryant, Kathryn K. Polonsky

Kathryn K Polonsky

In 1603, the Crown charged Sir Walter Raleigh with high treason in part for plotting to murder King James I. In preparing for trial, Lord Cobham, Raleigh’s alleged co-conspirator, was interrogated and signed a sworn confession. During trial, the King used the Crown-procured ex parte testimony of Cobham against Raleigh. Raleigh demanded Cobham be brought before the court so Raleigh might interrogate him “face to face.” Raleigh was sure Cobham would prove his innocence. After all, Cobham had written a letter stating his charges against Raleigh contained no truth.

The Judges refused to allow Raleigh the use of Cobham’s exonerating …

Predators And Propensity: The Proper Approach For Determining The Admissibility Of Prior Bad Acts Evidence In Child Sexual Abuse Prosecutions, Basyle Tchividjian

Basyle Tchividjian

The admissibility of prior bad act evidence in child sexual abuse prosecutions oftentimes makes the difference between a guilty and not guilty verdict. Recently, jurisdictions have growingly embraced the admission of such evidence for the purpose of establishing the defendant’s propensity to sexually victimize children. Due to the potentially high prejudicial effect of admitting propensity evidence, it is more critical than ever that courts carefully apply the decisive evidentiary gatekeeper, the probative value balancing test of Federal Rule of Evidence 403 and its state equivalents. Over the years, courts and legislators have attempted to develop analytical frameworks to be used …

Schultz V. Bank Of America: A Fly In The Financial Buttermilk - Clarifying The Common Knowledge Exception To Improve Litigation Efficiency And Bank Safety, Lauren M. Elfner

Maryland Law Review Online

No abstract provided.