Evidence Commons^™

The World Moved On Without Me: Redefining Contraband In A Technology-Driven World For Youth Detained In Washington State, Stephanie A. Lowry

Seattle University Law Review

If you ask a teenager in the United States to show you one of their favorite memories, they will likely show you a picture or video on their cell phone. This is because Americans, especially teenagers, love cell phones. Ninety-seven percent of all Americans own a cell phone according to a continuously updated survey by the Pew Research Center. For teenagers aged thirteen to seventeen, the number is roughly 95%. For eighteen to twenty-nine-year-olds, the number grows to 100%. On average, eight to twelve-year-old’s use roughly five and a half hours of screen media per day, in comparison to thirteen …

Requiring What’S Not Required: Circuit Courts Are Disregarding Supreme Court Precedent And Revisiting Officer Inadvertence In Cyberlaw Cases, Michelle Zakarin

Scholarly Works

As the age of technology has taken this country by surprise and left us with an inability to formally prepare our legal system to incorporate these advances, many courts are forced to adapt by applying pre-technology rules to new technological scenarios. One illustration is the plain view exception to the Fourth Amendment. Recently, the issue of officer inadvertence at the time of the search, a rule that the United States Supreme Court has specifically stated is not required in plain view inquiries, has been revisited in cyber law cases. It could be said that the courts interested in the existence …

Junk Evidence: A Call To Scrutinize Historical Cell Site Location Evidence, Victoria Saxe

The University of New Hampshire Law Review

Historical cell site location information (CSLI) has been offered as objective, scientific location evidence in criminal trials, but is far less precise than the claims it is used to support. Not only is there no way to pinpoint a cellphone’s precise geographic location from historical CSLI, but there are also no known validation or error rates for the methodologies used to collect and analyze this data. A 2019 telecommunications scandal in Denmark revealed gross inadequacies in the cellphone data and software used by law enforcement to analyze this type of evidence. The scandal sent shockwaves through the country’s legal community …

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 …

Technology Comes To The Courtroom, And . . ., Fredric I. Lederer

Fredric I. Lederer

No abstract provided.

Revenge Porn, Thomas Lonardo, Tricia P. Martland, Rhode Island Bar Journal

Life of the Law School (1993- )

No abstract provided.

Hearsay In The Smiley Face: Analyzing The Use Of Emojis As Evidence, Erin Janssen

St. Mary's Law Journal

Abstract forthcoming

To Understand Us V. Microsoft, Consider 'Acme V. Shamrock', Peter B. Rutledge, Amanda W. Newton

Popular Media

The February 27, 2018, Supreme Court argument in United States v. Microsoft Corp. raises profound questions about issues of executive power, corporate governance, technology, judicial power and international affairs. At stake for the government is the scope of its investigative authority to obtain information located in a foreign country, irrespective of that country’s laws. At stake for Microsoft is its ability to organize its international corporate affairs and the predictability of the laws that will govern those affairs. This article analyzes the potential effects of this critical Supreme Court case.

User-Generated Evidence, Rebecca Hamilton

Articles in Law Reviews & Other Academic Journals

Around the world, people are using their smartphones to document atrocities. This Article is the first to address the implications of this important development for international criminal law. While acknowledging the potential benefits such user-generated evidence could have for international criminal investigations, the Article identifies three categories of concern related to its use: (i) user security; (ii) evidentiary bias; and (iii) fair trial rights. In the absence of safeguards, user-generated evidence may address current problems in international criminal justice at the cost of creating new ones and shifting existing problems from traditional actors, who have institutional backing, to individual users …

Riley And Abandonment: Expanding Fourth Amendment Protection Of Cell Phones, Abigail Hoverman

Northwestern University Law Review

In light of the privacy concerns inherent to personal technological devices, the Supreme Court handed down a unanimous decision in 2014 recognizing the need for categorical heightened protection of cell phones during searches incident to arrest in Riley v. California. This Note argues for expansion of heightened protections for cell phones in the context of abandoned evidence because the same privacy concerns apply. This argument matters because state and federal courts have not provided the needed protection to abandoned cell phones pre- or post-Riley.

Problems With Using Statistics To Justify Institutional Policies, Justin Shin

Senior Projects Spring 2017

It is becoming increasingly common for institutions to use statistics to inform policy decisions. We should be prepared to ask ourselves what regulatory principles should be imposed on institutions that seek to justify certain policies through deference to a statistical analysis. This paper will examine the difficulties that come with using statistics to justify actions, and argue that certain standards of transparency and verifiability should be expected from any institution that seeks to involve a statistical analysis in the formation of policies. I will first use Market Share Liability, an established use of statistics, to draw out what responsibilities an …

Network Investigation Techniques: Government Hacking And The Need For Adjustment In The Third-Party Doctrine, Eduardo R. Mendoza

St. Mary's Law Journal

Modern society is largely dependent on technology, and legal discovery is no longer limited to hard-copy, tangible documents. The clash of technology and the law is an exciting, yet dangerous phenomena; dangerous because our justice system desperately needs technological progress. The clash between scientific advancement and the search for truth has recently taken an interesting form—government hacking. The United States Government has increasingly used Network Investigation Techniques (NITs) to target suspects in criminal investigations. NITs operate by identifying suspects who have taken affirmative steps to conceal their identity while browsing the Internet. The hacking technique has become especially useful to …

Riley V. California And The Beginning Of The End For The Third-Party Search Doctrine, David A. Harris

Articles

In Riley v. California, the Supreme Court decided that when police officers seize a smart phone, they may not search through its contents -- the data found by looking into the call records, calendars, pictures and so forth in the phone -- without a warrant. In the course of the decision, the Court said that the rule applied not just to data that was physically stored on the device, but also to data stored "in the cloud" -- in remote sites -- but accessed through the device. This piece of the decision may, at last, allow a re-examination of …

Making "Friends" With The #Ethics Rules: Avoiding Pitfalls In Professional Social Media Use, Cynthia Laury Dahl

All Faculty Scholarship

Lawyers’ professional use of social media is widespread and a critical component to running a successful practice. Yet some common uses of social media easily – and often innocently -- violate the professional rules of ethics. The American Bar Association recently passed amendments to the Model Rules of Professional Conduct to include topics related to social media use, but the amendments still do not address all issues. Likewise, advisory opinions of state and local bar associations and court opinions give scant and sometimes contradictory advice about when a use does or does not violate a Rule. This essay discusses four …

Introduction, Miriam F. Miquelon-Weismann

University of Massachusetts Law Review

Legal educators increasingly use the classroom to import expertise from scientists and social scientists to better prepare law students to engage in specialized and collaborative fields of practice. Indeed, this project grew out of a paper course on Scientific Evidence in Civil and Criminal Cases offered during the spring 2006 semester at the law school. Students heard from accident reconstruction experts, DNA scientists, forensic pathologist and medical malpractice experts. In February 2006, Dr. Aaron Lazare, Dean and Chancellor at the University of Massachusetts, addressed the law school on a cutting-edge legal theory from his recently published book, “On Apology.” Stimulated …

Litigation Technology For The Modern Practitioner, Jonathan H. Lomurro Esq. Llm, Christopher T. Campbell Esq, Matthew K. Blaine Esq, Stephanie L. Lomurro Esq, Christina V. Harvey Esq

Jonathan H. Lomurro Esq. LLM

No abstract provided.

Search Method In E-Discovery: How Rule 26'S Silence Poses A Risk Of Sanctions To Attorneys And Increases The Cost Of Litigation, Khanh T. Huynh

University of Massachusetts Law Review

The 2006 Amendments to the Federal Rules of Civil Procedure are the first codified references in the FRCP to electronic discovery. However, the lack of comprehensive rules in this area provides opportunities for attorneys to leverage search terms as a weapon, primarily to wear out opponents financially. Disagreement on search terms used to produce documents can prolong litigation. Complicated Boolearn search tems can be difficult to run. Other search methods, such as natural language search, cannot provide efficient and accurate results. The cost to run complicated searches is high, and the lack of rules addressing search terms in the FRCP …

The Discoverability Of E-Mails: The Smoking Gun Of The Modern Era, Michael J. Martin

University of Massachusetts Law Review

The discoverability of e-mails is an area of law that every modern day lawyer must be familiar with in order to avoid the risk of being sanctioned. Over the past years, courts have awarded sanctions to moving parties at a steadily increasing pace. These sanctions have included adverse jury instructions, default judgements, attorney's fees, large monetary fines, and in one instance, a jail sentence. Courts have sent the message that improper conduct will not be tolerated in this developing area of law by not hesitating to order sanctions. Thus, it is essential that modern day lawyers become acquainted with the …

Back To The Future: The Constitution Requires Reasonableness And Particularity—Introducing The “Seize But Don’T Search” Doctrine, Adam Lamparello, Charles E. Maclean

Adam Lamparello

Issuing one-hundred or fewer opinions per year, the United States Supreme Court cannot keep pace with opinions that match technological advancement. As a result, in Riley v. California and United States v. Wurie, the Court needs to announce a broader principle that protects privacy in the digital age. That principle, what we call “seize but don’t search,” recognizes that the constitutional touchstone for all searches is reasonableness.

When do present-day circumstances—the evolution in the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies—become so thoroughly unlike those considered by the Supreme Court thirty-four years …

Visual Jurisprudence, Richard Sherwin

Articles & Chapters

Lawyers, judges, and jurors face a vast array of visual evidence and visual argument inside the contemporary courtroom. From videos documenting crimes and accidents to computer displays of their digital simulation, increasingly, the search for fact-based justice is becoming an offshoot of visual meaning making. But when law migrates to the screen it lives there as other images do, motivating belief and judgment on the basis of visual delight and unconscious fantasies and desires as well as actualities. Law as image also shares broader cultural anxieties concerning not only the truth of the image, but also the mimetic capacity itself, …

Wilson V. Layne: Increasing The Scope Of The Fourth Amendment Right To Privacy, Ashlea Wright

Pepperdine 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.

"False But Highly Persuasive": How Wrong Were The Probability Estimates In Mcdaniel V. Brown?, David H. Kaye

Michigan Law Review First Impressions

In McDaniel v. Brown, the Supreme Court will review the use of DNA evidence in a 1994 trial for sexual assault and attempted murder. The Court granted certiorari to consider two procedural issues—the standard of federal postconviction review of a state jury verdict for sufficiency of the evidence, and the district court's decision to allow the prisoner to supplement the record of trials, appeals, and state postconviction proceedings with a geneticist's letter twelve years after the trial. The letter from Laurence Mueller, a professor at the University of California at Irvine, identified two obvious mistakes in the state's expert testimony. …

Life Sciences, Technology, And The Law - Symosium Transcript - March 7, 2003, Philip R. Reilly, David H. Kaye, Jonathan J. Koehler, Richard O. Lempert

Michigan Telecommunications & Technology Law Review

Life sciences, Technology, and the Law Symposium held at the University of Michigan Law School Friday, March 7, 2003

Inquiry And Advocacy, Fallibilism And Finality: Culture And Inference In Science And The Law, Susan Haack

Articles

No abstract provided.

Computer Searches And Seizures: Some Unresolved Issues, Susan W. Brenner, Barbara A. Frederiksen

Michigan Telecommunications & Technology Law Review

The goal of this article is to illustrate the issues that arise in the context of computer search and seizures by examining several areas in which the application of Fourth Amendment concepts to computer searches and/or seizures can be problematic. In order to illustrate this point, the article will build on a hypothetical. The hypothetical situation assumes law enforcement officers have lawfully obtained a warrant to search for and seize evidence concerning the commission of one or more crimes. It will also be assumed that computer technology played some role in the commission of these crimes, so computer equipment and …

Technology Comes To The Courtroom, And . . ., Fredric I. Lederer

Faculty Publications

No abstract provided.

Legal Systems For Allocating Groundwater And Controlling Its Extraction, Charles F. Wilkinson

Groundwater: Allocation, Development and Pollution (Summer Conference, June 6-9)

22 pages (includes illustration).

Contains research sources list (pages 1-2).

The Future Of Evidence Law: Or, Some Prophecies About Proof, John W. Reed

Other Publications

I am honored to participate in this seminar that is part of the celebration surrounding the dedication of Colorado's new State Judicial Building. But that feeling of honor is tempered by an awareness of the responsibility and perils of the role I have been asked to play. With the assignment, "The Future of Evidence Law," I have been asked to play the prophet, to be a seer of sorts, and to suggest what rules and principles will govern proof at trials at some date in the future. Exactly what date was not specified in the invitation-a decade, perhaps? A generation? …

Technical And Scientific Evidence In Administrative Adjudication, Scott C. Whitney

Faculty Publications

No abstract provided.