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Articles 31 - 60 of 198
Full-Text Articles in Evidence
Diamonds In The Rough: A Review Of Tiffany V. Costco And A Call To Apply Daubert To The Admissibility Of Consumer Survey Evidence In Trademark Infringement Litigation, Michael J. Borger
Diamonds In The Rough: A Review Of Tiffany V. Costco And A Call To Apply Daubert To The Admissibility Of Consumer Survey Evidence In Trademark Infringement Litigation, Michael J. Borger
Touro Law Review
No abstract provided.
Cabining Judicial Discretion Over Forensic Evidence With A New Special Relevance Rule, Emma F.E. Shoucair
Cabining Judicial Discretion Over Forensic Evidence With A New Special Relevance Rule, Emma F.E. Shoucair
Michigan Law Review
Modern forensic evidence suffers from a number of flaws, including insufficient scientific grounding, exaggerated testimony, lack of uniform best practices, and an inefficacious standard for admission that regularly allows judges to admit scientifically unsound evidence. This Note discusses these problems, lays out the current landscape of forensic science reform, and suggests the addition of a new special relevance rule to the Federal Rules of Evidence (and similar rules in state evidence codes). This proposed rule would cabin judicial discretion to admit non-DNA forensic evidence by barring prosecutorial introduction of such evidence in criminal trials absent a competing defense expert or …
Character Assassination: Amending Federal Rule Of Evidence 404(B) To Protect Criminal Defendants, Liesa L. Richter
Character Assassination: Amending Federal Rule Of Evidence 404(B) To Protect Criminal Defendants, Liesa L. Richter
Liesa L. Richter
Goldilocks And The Rule 803 Hearsay Exceptions, Liesa L. Richter
Goldilocks And The Rule 803 Hearsay Exceptions, Liesa L. Richter
Liesa L. Richter
Exemplary And Exceptional Confusion Under The Federal Rules Of Evidence, Dora W. Klein
Exemplary And Exceptional Confusion Under The Federal Rules Of Evidence, Dora W. Klein
Faculty Articles
This Article proposes that the final provisions of Rule 407 and 411, which provide a list of examples of permitted purposes for which a court may admit evidence, are asking for trouble--specifically, the trouble that courts will interpret the list not as examples, but as a specially enumerated, exhaustive list of exceptions.
Reality Check: A Modest Modification To Rationalize Rule 803 Hearsay Exceptions, Liesa L. Richter
Reality Check: A Modest Modification To Rationalize Rule 803 Hearsay Exceptions, Liesa L. Richter
Liesa L. Richter
No abstract provided.
Colorado Rule Of Evidence 502: Preserving Privilege And Work Product Protection In Discovery, Christopher B. Mueller, Ronald J. Hedges, Lino S. Lipinsky
Colorado Rule Of Evidence 502: Preserving Privilege And Work Product Protection In Discovery, Christopher B. Mueller, Ronald J. Hedges, Lino S. Lipinsky
Publications
No abstract provided.
Face-To-Face With Facial Recognition Evidence: Admissibility Under The Post-Crawford Confrontation Clause, Joseph Clarke Celentino
Face-To-Face With Facial Recognition Evidence: Admissibility Under The Post-Crawford Confrontation Clause, Joseph Clarke Celentino
Michigan Law Review
In Crawford v. Washington, the Supreme Court announced a major change in Confrontation Clause doctrine, abandoning a decades-old framework that focused on the common law principles of hearsay analysis: necessity and reliability. The new doctrine, grounded in an originalist interpretation of the Sixth Amendment, requires courts to determine whether a particular statement is testimonial. But the Court has struggled to present a coherent definition of the term testimonial. In its subsequent decisions, the Court illustrated that its new Confrontation Clause doctrine could be used to bar forensic evidence, including laboratory test results, if the government failed to produce the …
Defending Daubert: It's Time To Amend Federal Rule Of Evidence 702, David E. Bernstein, Eric G. Lasker
Defending Daubert: It's Time To Amend Federal Rule Of Evidence 702, David E. Bernstein, Eric G. Lasker
William & Mary Law Review
The 2000 amendments to Rule 702 sought to resolve the debate that had emerged in the courts in the 1990s over the proper meaning of Daubert by codifying the rigorous and structured approach to expert admissibility announced in the Daubert trilogy. Fifteen years later, however, the amendments have only partially accomplished this objective. Many courts continue to resist the judiciary’s proper gatekeeping role, either by ignoring Rule 702’s mandate altogether or by aggressively reinterpreting the Rule’s provisions.
Informed by this additional history of recalcitrance, the time has come for the Judicial Conference to return to the drafting table and finish …
Proving Personal Use: The Admissibility Of Evidence Negating Intent To Distribute Marijuana, Stephen Mayer
Proving Personal Use: The Admissibility Of Evidence Negating Intent To Distribute Marijuana, Stephen Mayer
Michigan Law Review
Against the backdrop of escalating state efforts to decriminalize marijuana, U.S. Attorneys’ Offices continue to bring drug-trafficking prosecutions against defendants carrying small amounts of marijuana that are permitted under state law. Federal district courts have repeatedly barred defendants from introducing evidence that they possessed this marijuana for their own personal use. This Note argues that district courts should not exclude three increasingly common kinds of “personal use evidence” under Federal Rules of Evidence 402 and 403 when that evidence is offered to negate intent to distribute marijuana. Three types of personal use evidence are discussed in this Note: (1) a …
A Prosecutor's Guide To Character Evidence: When Is Uncharged Possession Evidence Probative Of A Defendant's Intent To Distribute?, James Decleene
A Prosecutor's Guide To Character Evidence: When Is Uncharged Possession Evidence Probative Of A Defendant's Intent To Distribute?, James Decleene
Marquette Law Review
none
The Texas Rules Of Evidence: Something Old, Something New, And Something Changed, David A. Schlueter
The Texas Rules Of Evidence: Something Old, Something New, And Something Changed, David A. Schlueter
Faculty Articles
On November 19, 2014, the Texas Supreme Court issued an Order amending all of the Texas Rules of Evidence, effective April 1, 2015. In its Order, the Court explained that the amendments were part of an effort to “restyle” the Rules, to make them as consistent as possible with the Federal Rules of Evidence, and to make them easier to understand.
The 2015 amendments to the Texas Rules of Evidence are a commendable step toward making the Rules more user-friendly. It is clear to even the casual reader that the reformatting of the Rules, through the use of consistent and …
Saving An Old Friend From Extinction: A Proposal To Amend Rather Than To Abrogate The Ancient Documents Hearsay Exception, Peter Nicolas
Saving An Old Friend From Extinction: A Proposal To Amend Rather Than To Abrogate The Ancient Documents Hearsay Exception, Peter Nicolas
Articles
This Essay critically assesses a pending, proposed amendment to the Federal Rules of Evidence—slated to take effect in December 2017—that would abrogate Federal Rule of Evidence 803(16), the hearsay exception for ancient documents. The proposed amendment was motivated largely by a fear that large quantities of potentially unreliable, stockpiled, electronically stored information (ESI) are approaching the threshold age for being deemed "ancient" and could thus be swept into evidence via the exception.
In Part I of this Essay, I provide an overview of the proposed amendment. In Part II, I contend that although the proposal is a well-intentioned effort to …
Jack Weinstein And The Missing Pieces Of The Hearsay Puzzle, Richard D. Friedman
Jack Weinstein And The Missing Pieces Of The Hearsay Puzzle, Richard D. Friedman
Articles
For the first three quarters of the twentieth century, the Wigmore treatise was the dominant force in organizing, setting out, and explaining the American law of evidence. Since then, the first two of those roles have been taken over in large part by the Federal Rules of Evidence (Rules). And the third has been performed most notably by the Weinstein treatise. Judge Jack Weinstein was present at the creation of the Rules and before. Though he first made his name in Civil Procedure, while still a young man he joined two of the stalwarts of evidence law, Edmund Morgan and …
Sweet Caroline: The Backslide From Federal Rule Of Evidence 613(B) To The Rule In Queen Caroline's Case, Katharine T. Schaffzin
Sweet Caroline: The Backslide From Federal Rule Of Evidence 613(B) To The Rule In Queen Caroline's Case, Katharine T. Schaffzin
University of Michigan Journal of Law Reform
Since 1975, Rule 613(b) of the Federal Rules of Evidence has governed the admission of extrinsic evidence of a prior inconsistent statement in federal court. Rule 613(b) requires the proponent of the prior inconsistent statement to provide the declarant an opportunity to explain or deny it. There is no requirement that the proponent provide that opportunity at any particular time or in any particular sequence. Rule 613 reflected a change from the common law that had fallen out of fashion in the federal courts. That common law rule, known as the Rule in Queen Caroline’s Case, required the proponent of …
Rule 408: Maintaining The Sheild For Negotiation In Federal And Bankruptcy Courts, Leslie T. Gladstone
Rule 408: Maintaining The Sheild For Negotiation In Federal And Bankruptcy Courts, Leslie T. Gladstone
Pepperdine Law Review
No abstract provided.
Empirical Fallacies Of Evidence Law: A Critical Look At The Admission Of Prior Sex Crimes, Aviva A. Orenstein, Tamara Rice Lave
Empirical Fallacies Of Evidence Law: A Critical Look At The Admission Of Prior Sex Crimes, Aviva A. Orenstein, Tamara Rice Lave
Articles by Maurer Faculty
In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413-414 allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity to commit the sex crime charged. As reflected in their legislative history, these propensity rules rest on the assumption that sexual predators represent a small number of highly deviant and recidivistic offenders. This view of who commits sex crimes justified the passage of the sex-crime propensity rules and continues to influence their continuing adoption among the states and the way courts assess such evidence under Rule 403. In depending on …
Admissions Online: Statements Of A Party Opponent In The Internet Age, Dylan Charles Edwards
Admissions Online: Statements Of A Party Opponent In The Internet Age, Dylan Charles Edwards
Oklahoma Law Review
No abstract provided.
Scientific Evidence In The Age Of Daubert: A Proposal For A Dual Standard Of Admissibility In Civil And Criminal Cases , William P. Haney Iii
Scientific Evidence In The Age Of Daubert: A Proposal For A Dual Standard Of Admissibility In Civil And Criminal Cases , William P. Haney Iii
Pepperdine Law Review
No abstract provided.
Impeachment Methods Illustrated: Movies, Novels, And High Profile Cases, Martin A. Schwartz, John Nicodemo
Impeachment Methods Illustrated: Movies, Novels, And High Profile Cases, Martin A. Schwartz, John Nicodemo
Martin A. Schwartz
No abstract provided.
Trial Evidence 2011: Advocacy, Analysis, & Illustrations, Martin A. Schwartz, Deborah Jones Merritt, William G. Young
Trial Evidence 2011: Advocacy, Analysis, & Illustrations, Martin A. Schwartz, Deborah Jones Merritt, William G. Young
Martin A. Schwartz
No abstract provided.
The Psychotherapist And The Attorney/Client Privileges As They Arise In Civil Rights Disputes, Lewis M. Wasserman
The Psychotherapist And The Attorney/Client Privileges As They Arise In Civil Rights Disputes, Lewis M. Wasserman
Touro Law Review
This article briefly reviews the elements of the psychotherapist-patient and attorney-client privileges and how these privileges may be waived in the context of federal civil rights litigation.
The Propriety Of Jury Questioning: A Remedy For Perceived Harmless Error, Laurie Forbes Neff
The Propriety Of Jury Questioning: A Remedy For Perceived Harmless Error, Laurie Forbes Neff
Pepperdine Law Review
No abstract provided.
Social Media, The Sixth Amendment, And Restyling: Recent Developments In The Federal Laws Of Evidence, Deborah Jones Merritt
Social Media, The Sixth Amendment, And Restyling: Recent Developments In The Federal Laws Of Evidence, Deborah Jones Merritt
Touro Law Review
No abstract provided.
The Restyled Federal Rules Of Evidence, Davison M. Douglas, Sidney A. Fitzwater, Daniel J. Capra, Robert A. Hinkle, Joseph Kimble, Joan N. Ericksen, Marilyn L. Huff, Reena A. Raggi, Geraldine Soat Brown, Edward H. Cooper, Kenneth S. Broun, Harris L. Hartz, Katharine Traylor Schaffzin, Roger C. Park, Deborah J. Merritt, Andrew D. Hurwitz, W. Jeremy Counseller, Paula Hannaford-Agor
The Restyled Federal Rules Of Evidence, Davison M. Douglas, Sidney A. Fitzwater, Daniel J. Capra, Robert A. Hinkle, Joseph Kimble, Joan N. Ericksen, Marilyn L. Huff, Reena A. Raggi, Geraldine Soat Brown, Edward H. Cooper, Kenneth S. Broun, Harris L. Hartz, Katharine Traylor Schaffzin, Roger C. Park, Deborah J. Merritt, Andrew D. Hurwitz, W. Jeremy Counseller, Paula Hannaford-Agor
William & Mary Law Review
A lightly edited transcript of the Symposium held at the William & Mary School of Law on October 28, 2011.
Federal Discovery Stays, Gideon Mark
Federal Discovery Stays, Gideon Mark
University of Michigan Journal of Law Reform
In federal civil litigation, unless a discretionary stay is granted, discovery often proceeds while motions to dismiss are pending. Plaintiffs with non-meritorious cases can compel defendants to spend massively on electronic discovery before courts ever rule on such motions. Defendants who are unable or unwilling to incur the huge up-front expense of electronic discovery may be forced to settle non-meritorious claims. To address multiple electronic discovery issues, Congress amended the Federal Rules of Civil Procedure in 2006 and the Federal Rules of Evidence in 2008. However, the amendments failed to significantly reduce costs and failed to address the critical issue …
Trial Evidence 2011: Advocacy, Analysis, & Illustrations, Martin A. Schwartz, Deborah Jones Merritt, William G. Young
Trial Evidence 2011: Advocacy, Analysis, & Illustrations, Martin A. Schwartz, Deborah Jones Merritt, William G. Young
Touro Law Review
No abstract provided.
Impeachment Methods Illustrated: Movies, Novels, And High Profile Cases, Martin A. Schwartz, John Nicodemo
Impeachment Methods Illustrated: Movies, Novels, And High Profile Cases, Martin A. Schwartz, John Nicodemo
Touro Law Review
No abstract provided.
The Return Of “Voodoo Information”: A Call To Resist A Heightened Authentication Standard For Evidence Derived From Social Networking Websites, Richard Fox
Catholic University Law Review
No abstract provided.
An Unsettling Development: The Use Of Settlement Related Evidence For Damages Determinations In Patent Litigation, Tejas N. Narechania, J. Taylor Kirklin