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Articles 1 - 30 of 169

Full-Text Articles in Evidence

Bloomberg Law Brief: Evidence Doctrine, Michael Best, Jeffrey Bellin, Andrew Guthrie Ferguson Sep 2019

Bloomberg Law Brief: Evidence Doctrine, Michael Best, Jeffrey Bellin, Andrew Guthrie Ferguson

Jeffrey Bellin

A discussion of a Supreme Court case over whether a juror may testify about statements made by another juror during deliberations.


65. Adults’ Perceptions Of Children’S Referentially Ambiguous Responses., Breanne E. Wylie, Thomas D. Lyon, Alison M. O’Connor, Christina Lapytskaia, Angela D. Evans Oct 2018

65. Adults’ Perceptions Of Children’S Referentially Ambiguous Responses., Breanne E. Wylie, Thomas D. Lyon, Alison M. O’Connor, Christina Lapytskaia, Angela D. Evans

Thomas D. Lyon

The present study examined adults’ (N = 295) interpretations of child witnesses’ referentially ambiguous “yes” and “no” responses to “Do You Know/Remember (DYK/R) if/whether” questions (e.g., “Do you know if it was blue?”). Participants were presented with transcripts from child sexual abuse cases modified based on question format (DYK/R vs. Direct) and child response type (Yes, No, I don’t know) in a between subjects design. We assessed whether adults recognized that children’s ambiguous responses were unclear, and if not, how they were interpreting children’s responses compared to the control (Direct) conditions. More specifically ...


Cabining Judicial Discretion Over Forensic Evidence With A New Special Relevance Rule, Emma F.E. Shoucair Oct 2018

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 ...


The Excited Utterance Paradox, Steven Baicker-Mckee Oct 2017

The Excited Utterance Paradox, Steven Baicker-Mckee

Seattle University Law Review

Based on nothing more than John Henry Wigmore’s personal belief that a witness under the throes of excitement is unable to fabricate an untruthful statement, the excited utterance exception allows parties to present out-of-court statements to the jury or judge without any of the safeguards the judicial system uses to promote honest and accurate testimony. This Article collects and examines much of the scientific evidence bearing on Wigmore’s premise and identifies two paradoxical conclusions that undermine the exception. First, the premise itself is unfounded; science absolutely does not support the notion that a witness is incapable of lying ...


Juror Assessment Of Certainty About Firearms Identification Evidence, Sarah L. Cooper, Paraic Scanlon Oct 2017

Juror Assessment Of Certainty About Firearms Identification Evidence, Sarah L. Cooper, Paraic Scanlon

University of Arkansas at Little Rock Law Review

No abstract provided.


Ringers Revisited, Richard H. Underwood Jun 2017

Ringers Revisited, Richard H. Underwood

Richard H. Underwood

In this short essay, Professor Underwood addresses an important development in the law dealing with eyewitness testimony and the New Jersey case of State v. Henderson. He gets at the subject by looking back to a 1950s television play starring fellow Kentucky resident, William Shatner. However, in this particular instance, William Shatner would not change the world.


Why New Hampshire Must Update Rape Shield Laws, Amy Vorenberg May 2017

Why New Hampshire Must Update Rape Shield Laws, Amy Vorenberg

Law Faculty Scholarship

[Excerpt] “Recent research indicates that New Hampshire has some of the highest rates of sexual assault in the nation; nearly one in four New Hampshire women and one in 20 New Hampshire men will experience sexual assault. Although reporting a crime can be hard for anyone, sexual assault victims have particular reasons for not reporting. After an assault, a rape victim typically feels embarrassment, shame and fears reprisal (most of these crimes are committed by an acquaintance). The deeply personal nature of rape makes it uniquely traumatizing and confusing.”


Bias In Blue: Instructing Jurors To Consider The Testimony Of Police Officer Witnesses With Caution, Vida B. Johnson Apr 2017

Bias In Blue: Instructing Jurors To Consider The Testimony Of Police Officer Witnesses With Caution, Vida B. Johnson

Pepperdine Law Review

Jurors in criminal trials are instructed by the judge that they are to treat the testimony of a police officer just like the testimony of any other witness. Fact-finders are told that they should not give police officer testimony greater or lesser weight than any other witness they will hear from at trial. Jurors are to accept that police are no more believable or less believable than anyone else. Jury instructions regarding police officer testimony stand in contrast to the instructions given to jurors when a witness with a legally recognized interest in the outcome of the case has testified ...


Crossing The Line: Daubert, Dual Roles, And The Admissibility Of Forensic Mental Health Testimony, Sara G. Gordon Jan 2016

Crossing The Line: Daubert, Dual Roles, And The Admissibility Of Forensic Mental Health Testimony, Sara G. Gordon

Scholarly Works

Psychiatrists and other mental health professionals often testify as forensic experts in civil commitment and criminal competency proceedings. When an individual clinician assumes both a treatment and a forensic role in the context of a single case, however, that clinician forms a dual relationship with the patient—a practice that creates a conflict of interest and violates professional ethical guidelines. The court, the parties, and the patient are all affected by this conflict and the biased testimony that may result from dual relationships. When providing forensic testimony, the mental health professional’s primary duty is to the court, not to ...


Mind The Analytical Gap! Tracing A Fault Line In Daubert, Susan Haack Jan 2016

Mind The Analytical Gap! Tracing A Fault Line In Daubert, Susan Haack

Articles

No abstract provided.


Bill Cosby, The Lustful Disposition Exception, And The Doctrine Of Chances, Wesley Oliver Nov 2015

Bill Cosby, The Lustful Disposition Exception, And The Doctrine Of Chances, Wesley Oliver

Wesley M Oliver

With the filing of criminal charges against Bill Cosby in a case involving one victim, the question attracting a great deal of attention is whether other victims will be allowed to testify for the prosecution. Yes is the likely answer but probably for the wrong reasons. Generally the prosecution is forbidden to introduce other bad acts by a defendant, but there are certain categorical exceptions. Under federal law, any prior sexual misconduct can be admitted in the prosecution of a sex crime case -- a notion that the drafters of the Federal Rules of Evidence borrowed from something called the Lustful ...


The Probative Value Of Testimony From The Hypnotically Refreshed Recollection, Kevin L. Pelanda Jul 2015

The Probative Value Of Testimony From The Hypnotically Refreshed Recollection, Kevin L. Pelanda

Akron Law Review

"The experience of the last three centuries of judicial trials has demonstrated that in disputed issues one cannot depend upon the mere assertion of anybody, however plausible, without scrutiny into its basis." The recent increase in the use of hypnotic memory enhancement on the victims and witnesses of crimes, as well as on defendants' and plaintiffs' witnesses, necessitates an in-depth examination of the reliability of hypnosis as a basis for testimony or statements of persons who are speaking from a hypno-enhanced recollection. Such an examination of hypnosis reveals that hypnotically enhanced memories are likely to be fraught with fantasized and ...


Systemic Lying, Julia Simon-Kerr May 2015

Systemic Lying, Julia Simon-Kerr

William & Mary Law Review

This Article offers the foundational account of systemic lying from a definitional and theoretical perspective. Systemic lying involves the cooperation of multiple actors in the legal system who lie or violate their oaths across cases for a consistent reason that is linked to their conception of justice. It becomes a functioning mechanism within the legal system and changes the operation of the law as written. By identifying systemic lying, this Article challenges the assumption that all lying in the legal system is the same. It argues that systemic lying poses a particular threat to the legal system. This means that ...


Hiding The Elephant: How The Psychological Techniques Of Magicians Can Be Used To Manipulate Witnesses At Trial, Sydney A. Beckman Mar 2015

Hiding The Elephant: How The Psychological Techniques Of Magicians Can Be Used To Manipulate Witnesses At Trial, Sydney A. Beckman

Nevada Law Journal

No abstract provided.


Diagnosis Dangerous: Why State Licensing Boards Should Step In To Prevent Mental Health Practitioners From Speculating Beyond The Scope Of Professional Standards, Jennifer S. Bard Jan 2015

Diagnosis Dangerous: Why State Licensing Boards Should Step In To Prevent Mental Health Practitioners From Speculating Beyond The Scope Of Professional Standards, Jennifer S. Bard

Utah Law Review

This Article reviews the use of mental health experts to provide testimony on the future dangerousness of individuals who have already been convicted of a crime that qualifies them for the death penalty. Although this practice is common in many states that still retain the death penalty, it most frequently occurs in Texas because of a statute that makes it mandatory for juries to determine the future dangerousness of the defendant they have just found guilty. Both the American Psychiatric Association and the American Psychological Association have protested the use of mental health professionals in this setting because there are ...


Introduction, Miriam F. Miquelon-Weismann Dec 2014

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 ...


Jack Weinstein And The Missing Pieces Of The Hearsay Puzzle, Richard D. Friedman Dec 2014

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 ...


Supreme Court, Bronx County, People V. Paul, Adam D'Antonio Nov 2014

Supreme Court, Bronx County, People V. Paul, Adam D'Antonio

Touro Law Review

No abstract provided.


Virginia's Gap Between Punishment And Culpability: Re-Examining Self-Defense Law And Battered Women's Syndrome, Kendall Hamilton Nov 2014

Virginia's Gap Between Punishment And Culpability: Re-Examining Self-Defense Law And Battered Women's Syndrome, Kendall Hamilton

University of Richmond Law Review

No abstract provided.


Supreme Court, New York County, Hughes V. Farrey, Eric Pack May 2014

Supreme Court, New York County, Hughes V. Farrey, Eric Pack

Touro Law Review

No abstract provided.


Making The Right Call For Confrontation At Felony Sentencing, Shaakirrah R. Sanders Apr 2014

Making The Right Call For Confrontation At Felony Sentencing, Shaakirrah R. Sanders

University of Michigan Journal of Law Reform

Felony sentencing courts have discretion to increase punishment based on un-cross-examined testimonial statements about several categories of uncharged, dismissed, or otherwise unproven criminal conduct. Denying defendants an opportunity to cross-examine these categories of sentencing evidence undermines a core principle of natural law as adopted in the Sixth Amendment: those accused of felony crimes have the right to confront adversarial witnesses. This Article contributes to the scholarship surrounding confrontation rights at felony sentencing by cautioning against continued adherence to the most historic Supreme Court case on this issue, Williams v. New York. This Article does so for reasons beyond the unacknowledged ...


Sweet Caroline: The Backslide From Federal Rule Of Evidence 613(B) To The Rule In Queen Caroline's Case, Katharine T. Schaffzin Jan 2014

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 Limits Of Textualism In Interpreting The Confrontation Clause, Stephanos Bibas Jan 2014

The Limits Of Textualism In Interpreting The Confrontation Clause, Stephanos Bibas

Faculty Scholarship at Penn Law

No abstract provided.


Some Thoughts On The Fundamentals Of An Evidence Code From The U.S. American Perspective, Paul F. Rothstein Jan 2014

Some Thoughts On The Fundamentals Of An Evidence Code From The U.S. American Perspective, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

In the U.S. American trial system proof mainly consists of live witnesses presented in open court under oath before the judge, jury, and parties, subject to perjury laws. Cross-examination of the witnesses in that setting is the principal (though not the only) form of testing their reliability. It is for these reasons that we have a rule against hearsay (second-hand reporting in court of what someone has said outside of court).


Expert Mining And Required Disclosure, Jonah B. Gelbach Jan 2014

Expert Mining And Required Disclosure, Jonah B. Gelbach

Faculty Scholarship at Penn Law

No abstract provided.


The Mold That Shapes Hearsay Law, Richard D. Friedman Jan 2014

The Mold That Shapes Hearsay Law, Richard D. Friedman

Articles

In response to an article previously published in the Florida Law Review by Professor Ben Trachtenberg, I argue that the historical thesis of Crawford v. Washington is basically correct: The Confrontation Clause of the Sixth Amendment reflects a principle about how witnesses should give testimony, and it does not create any broader constraint on the use of hearsay. I argue that this is an appropriate limit on the Clause, and that in fact for the most part there is no good reason to exclude nontestimonial hearsay if live testimony by the declarant to the same proposition would be admissible. I ...


Testifying Minors: Pre-Trial Strategies To Reduce Anxiety In Child Witnesses, Dawn Hathaway Thoman Sep 2013

Testifying Minors: Pre-Trial Strategies To Reduce Anxiety In Child Witnesses, Dawn Hathaway Thoman

Nevada Law Journal

No abstract provided.


Adaptation And The Courtroom: Judging Climate Science, Kirsten Engel, Jonathan Overpeck Sep 2013

Adaptation And The Courtroom: Judging Climate Science, Kirsten Engel, Jonathan Overpeck

Michigan Journal of Environmental & Administrative Law

Climate science is increasingly showing up in courtroom disputes over the duty to adapt to climate change. While judges play a critical role in evaluating scientific evidence, they are not apt to be familiar with the basic methods of climate science nor with the role played by peer review, publication, and training of climate scientists. This Article is an attempt to educate the bench and the bar on the basics of the discipline of climate science, which we contend is a distinct scientific discipline. We propose a series of principles to guide a judge’s evaluation of the reliability and ...


Ringers Revisited, Richard H. Underwood Jul 2013

Ringers Revisited, Richard H. Underwood

Law Faculty Scholarly Articles

In this short essay, Professor Underwood addresses an important development in the law dealing with eyewitness testimony and the New Jersey case of State v. Henderson. He gets at the subject by looking back to a 1950s television play starring fellow Kentucky resident, William Shatner. However, in this particular instance, William Shatner would not change the world.


The Admissibility Of Hypnotically Enhanced Testimony In Criminal Trials, Gary Shaw May 2013

The Admissibility Of Hypnotically Enhanced Testimony In Criminal Trials, Gary Shaw

Gary M. Shaw

No abstract provided.