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Standards Of Review In Texas, W. Wendell Hall, Ryan G. Anderson Nov 2019

Standards Of Review In Texas, W. Wendell Hall, Ryan G. Anderson

St. Mary's Law Journal

Abstract forthcoming


Table Of Contents, Seattle University Law Review Sep 2019

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


Due Process People V. Scott (Decided June 5, 1996) Jul 2019

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

Touro Law Review

No abstract provided.


Opting Out Of Discovery, Jay Tidmarsh Jun 2019

Opting Out Of Discovery, Jay Tidmarsh

Jay Tidmarsh

This Article proposes a system in which both parties are provided an opportunity to opt out of discovery. A party who opts out is immunized from dispositive motions, including a motion to dismiss for failure to state a claim or a motion for summary judgment. If neither party opts out of discovery, the parties waive jury-trial rights, thus giving judges the ability to use stronger case-management powers to focus the issues and narrow discovery. If one party opts out of discovery but an opponent does not, the cost of discovery shifts to the opponent. This Article justifies this proposal in ...


A Philosophical Basis For Judicial Restraint, Michael Evan Gold Jun 2019

A Philosophical Basis For Judicial Restraint, Michael Evan Gold

Michael Evan Gold

The purpose of this article is to establish a principled basis for restraint of judicial lawmaking. The principle is that all findings of fact, whether of legislative or adjudicative facts, must be based on evidence in the record of a case. This principle is grounded in moral philosophy. I will begin with a discussion of the relevant aspect of moral philosophy, then state and defend the principle, and finally apply it to a line of cases.


Social Media, Venue And The Right To A Fair Trial, Leslie Y. Garfield Tenzer Jun 2019

Social Media, Venue And The Right To A Fair Trial, Leslie Y. Garfield Tenzer

Pace Law Faculty Publications

Judicial failure to recognize social media's influence on juror decision making has identifiable constitutional implications. The Sixth Amendment right to a fair trial demands that courts grant a defendant's change of venue motion when media-generated pretrial publicity invades the unbiased sensibility of those who are asked to sit in judgment. Courts limit publicity suitable for granting a defendant's motion to information culled from newspapers, radio, and television reports. Since about 2014, however, a handful of defendants have introduced social media posts to support their claims of unconstitutional bias in the community. Despite defendants' introduction of negative social ...


Justice Begins Before Trial: How To Nudge Inaccurate Pretrial Rulings Using Behavioral Law And Economic Theory And Uniform Commercial Laws, Michael Gentithes May 2019

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 ...


Table Of Contents, Seattle University Law Review Feb 2019

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


A Philosophical Basis For Judicial Restraint, Michael Evan Gold Jan 2019

A Philosophical Basis For Judicial Restraint, Michael Evan Gold

Articles and Chapters

The purpose of this article is to establish a principled basis for restraint of judicial lawmaking. The principle is that all findings of fact, whether of legislative or adjudicative facts, must be based on evidence in the record of a case. This principle is grounded in moral philosophy. I will begin with a discussion of the relevant aspect of moral philosophy, then state and defend the principle, and finally apply it to a line of cases.


Evidence Law: Convictions Based On Circumstantial Evidence, Binyamin Blum Jan 2019

Evidence Law: Convictions Based On Circumstantial Evidence, Binyamin Blum

The Judges' Book

No abstract provided.


Judicializing History: Mass Crimes Trials And The Historian As Expert Witness In West Germany, Cambodia, And Bangladesh, Rebecca Gidley, Mathew Turner Dec 2018

Judicializing History: Mass Crimes Trials And The Historian As Expert Witness In West Germany, Cambodia, And Bangladesh, Rebecca Gidley, Mathew Turner

Genocide Studies and Prevention: An International Journal

Henry Rousso warned that the engagement of historians as expert witnesses in trials, particularly highly politicized proceedings of mass crimes, risks a judicialization of history. This article tests Rousso’s argument through analysis of three quite different case studies: the Frankfurt Auschwitz trial; the Extraordinary Chambers in the Courts of Cambodia; and the International Crimes Tribunal in Bangladesh. It argues that Rousso’s objections misrepresent the Frankfurt Auschwitz trial, while failing to account for the engagement of historical expertise in mass atrocity trials beyond Europe. Paradoxically, Rousso’s criticisms are less suited to the European context that represents his purview ...


Garbage In, Garbage Out: Revising Strickland As Applied To Forensic Science Evidence, Mark Loudon-Brown Aug 2018

Garbage In, Garbage Out: Revising Strickland As Applied To Forensic Science Evidence, Mark Loudon-Brown

Georgia State University Law Review

Sophisticated scientific evidence may be an undesirable subject matter for a judge to tackle anew, and it can be even more daunting for a defense attorney to confront, particularly one faced with a crushing caseload. It can be tempting to avoid a challenge to a vulnerable forensic science discipline—be it new, novel, or simply recently called into question—when a lawyer reasonably believes that the evidence will be admitted regardless.

Worse still, it may seem reasonable to disregard any adversarial challenge to incriminatory science altogether, and to opt instead for a different defense or to encourage a guilty plea ...


The First Amendment Case For Public Access To Secret Algorithms Used In Criminal Trials, Vera Eidelman Aug 2018

The First Amendment Case For Public Access To Secret Algorithms Used In Criminal Trials, Vera Eidelman

Georgia State University Law Review

As this Article sets forth, once a computerized algorithm is used by the government, constitutional rights may attach. And, at the very least, those rights require that algorithms used by the government as evidence in criminal trials be made available—both to litigants and the public. Scholars have discussed how the government’s refusal to disclose such algorithms runs afoul of defendants’ constitutional rights, but few have considered the public’s interest in these algorithms—or the widespread impact that public disclosure and auditing could have on ensuring their quality.

This Article aims to add to that discussion by setting ...


Bait Questions As Source Of Misinformation In Police Interviews: Does Race Or Age Of The Suspect Increase Jurors' Memory Errors?, Matilde Ascheri Jun 2018

Bait Questions As Source Of Misinformation In Police Interviews: Does Race Or Age Of The Suspect Increase Jurors' Memory Errors?, Matilde Ascheri

Student Theses

Bait questions—hypothetical questions about evidence, often used by detectives during interrogations—can activate the misinformation effect and alter jurors’ perceptions of the evidence of a case. Here, we were interested in investigating whether mock jurors’ implicit biases could amplify the magnitude of the misinformation effect. We accomplished this by manipulating the age and race of the suspect being interrogated. As an extension of Luke et al. (2017), we had participants read a police report describing evidence found at a crime scene, then read a transcript of a police interrogation where the detective used bait questions to introduce new evidence ...


Hearsay In The Smiley Face: Analyzing The Use Of Emojis As Evidence, Erin Janssen Jun 2018

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

St. Mary's Law Journal

Abstract forthcoming


Litigation Academy Helps Lawyers Hone Skills 4-30-2018, Katie Mulvaney, Roger Williams University School Of Law Apr 2018

Litigation Academy Helps Lawyers Hone Skills 4-30-2018, Katie Mulvaney, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


Deceptively Simple: Framing, Intuition And Judicial Gatekeeping Of Forensic Feature-Comparison Methods Evidence, Jane Campbell Moriarty Feb 2018

Deceptively Simple: Framing, Intuition And Judicial Gatekeeping Of Forensic Feature-Comparison Methods Evidence, Jane Campbell Moriarty

Jane Campbell Moriarty

During the Symposium for the Judicial Conference Advisory Committee on Evidence Rules, held at Boston College on October 27, 2017, the scientists, statisticians, legal academics, and criminal defense lawyers presented a unified theme: the federal courts have not fulfilled their role as gatekeepers to exclude or limit potentially unreliable feature-comparison methods of forensic science evidence (“FCM evidence”). The only voiced dissents came from the DOJ and FBI lawyers, who argued that the courts had been admitting such pattern-matching evidence properly and that the evidence was indeed reliable.


Opting Out Of Discovery, Jay Tidmarsh Jan 2018

Opting Out Of Discovery, Jay Tidmarsh

Journal Articles

This Article proposes a system in which both parties are provided an opportunity to opt out of discovery. A party who opts out is immunized from dispositive motions, including a motion to dismiss for failure to state a claim or a motion for summary judgment. If neither party opts out of discovery, the parties waive jury-trial rights, thus giving judges the ability to use stronger case-management powers to focus the issues and narrow discovery. If one party opts out of discovery but an opponent does not, the cost of discovery shifts to the opponent. This Article justifies this proposal in ...


Evidence: Admissibility Vs. Weight In Scientific Testimony, David Faigman Sep 2017

Evidence: Admissibility Vs. Weight In Scientific Testimony, David Faigman

The Judges' Book

No abstract provided.


Justice And Other Crimes Evidence: The Smorgasbord Ploy, Kenneth Graham Mar 2017

Justice And Other Crimes Evidence: The Smorgasbord Ploy, Kenneth Graham

Fordham Law Review

The smorgasbord ploy probably plays only a minor role in the admission of other crimes evidence. But it offers us a nice window into the uses and abuses of Rule 404(b) of the Federal Rules of Evidence (“the Rules”) and its state clones. Rule 404(b)’s drafters may have supposed that trial judges would look among the illustrative uses in Rule 404(b) and select the one or two that seem most apropos to the case before them. However, the practitioners of smorgasbordism do not make any choices but instead list all (or most) of the illustrative uses ...


Child Abuse Evidence: New Perspectives From Law, Medicine, Psychology & Statistics: Opening Remarks, November 6, 2015, Bridget M. Mccormack Jan 2017

Child Abuse Evidence: New Perspectives From Law, Medicine, Psychology & Statistics: Opening Remarks, November 6, 2015, Bridget M. Mccormack

University of Michigan Journal of Law Reform

Opening remarks by Justice Bridget McCormack, Michigan Supreme Court on November 6, 2015.


Newsroom: Kuckes On Grand Jury Secrecy 8/30/2016, Roger Williams University School Of Law Aug 2016

Newsroom: Kuckes On Grand Jury Secrecy 8/30/2016, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


“Please Stop Telling Her To Leave.” Where Is The Money: Reclaiming Economic Power To Address Domestic Violence, Margo Lindauer Jul 2016

“Please Stop Telling Her To Leave.” Where Is The Money: Reclaiming Economic Power To Address Domestic Violence, Margo Lindauer

Seattle University Law Review

In this Article, I argue that economic dependence is a critical factor in violence prevention. For many victims of domestic violence, the economic entanglement with an abusive partner is too strong to sever contact without another source of economic support. This Article is a thought experiment in economic justice; it asks the question: is there a way to provide outside economic support for a victim of violence fleeing a battering partner? In this Article, I examine existing systems such as Social Security, unemployment assistance, work-readiness programs, crowd sourcing, and others to evaluate how these sources could provide emergency economic support ...


If It (Ain’T) Broke, Don’T Fix It: Twombly, Iqbal, Rule 84, And The Forms, Justin Olson Jul 2016

If It (Ain’T) Broke, Don’T Fix It: Twombly, Iqbal, Rule 84, And The Forms, Justin Olson

Seattle University Law Review

The past decade has not been kind to the Federal Rules of Civil Procedure (the Rules). From the growth of summary judgment as a mechanism to let judges instead of juries determine facts, to the love–hate relationship with class actions, judicial interpretations of the Rules have revealed a trend toward complicating the ability of plaintiffs to find redress for their claims. Nowhere is this more apparent than in the shifting standards of pleading requirements under Rule 8. Much has been written by academics and practitioners alike regarding the ripples caused by Twombly and Iqbal. Although the Court would like ...


From Simple Statements To Heartbreaking Photographs And Videos: An Interdisciplinary Examination Of Victim Impact Evidence In Criminal Cases, Mitchell J. Frank Jan 2016

From Simple Statements To Heartbreaking Photographs And Videos: An Interdisciplinary Examination Of Victim Impact Evidence In Criminal Cases, Mitchell J. Frank

Faculty Scholarship

No abstract provided.


What Judges Say And Do In Deciding National Security Cases: The Example Of The State Secrets Privilege, Anthony John Trenga Jan 2016

What Judges Say And Do In Deciding National Security Cases: The Example Of The State Secrets Privilege, Anthony John Trenga

Duke Law Master of Judicial Studies Theses

From the criminal trial of Aaron Burr on charges of treason to modern-day litigation involving the CIA, the state secrets privilege presents a thorny issue for federal judges. Judge Trenga examines the legal issues at the heart of this privilege—separation of powers, non-justiciability, evidentiary privilege, national security interests, and military secrets—and the two primary doctrinal tracks judges invoke. Then, based on interviews with thirty-one federal judges, Judge Trenga offers insights into how judges think about applying the state secrets privilege to sensitive material.


Daubert Debunked: A History Of Legal Retrogression A History Of Legal Retrogression And The Need To Reassess ‘Scientific Admissibility’, Barbara P. Billauer Esq Sep 2015

Daubert Debunked: A History Of Legal Retrogression A History Of Legal Retrogression And The Need To Reassess ‘Scientific Admissibility’, Barbara P. Billauer Esq

barbara p billauer esq

Abstract: With ‘novel’ scientific discoveries accelerating at an unrelenting pace, the need for accessible and implementable standards for evaluating the legal admissibility of scientific evidence becomes more and more crucial. As science changes, legal standards for evaluating ‘novel’ science must be plastic enough to respond to fast-moving changes. This, ostensibly, was the Daubert objective. Since it was decided in 1993, however, Daubert’s impact has been hotly contested -- with plaintiffs and defendants each claiming the decision unfairly favors the other side. New approaches are constantly suggested to deal with the perceived impact, although there is no uniform consensus of exactly ...


Voir Dire: Strategy And Tactics In The Defense Of Social And Political Activists, Murray R. Bowes Aug 2015

Voir Dire: Strategy And Tactics In The Defense Of Social And Political Activists, Murray R. Bowes

Akron Law Review

With the courts increasingly being the forum for legal disputes between those who demand change in the superstructure and those who represent (or are) the structure, a rather unfortunate by-product has evolved: a feeling that the courts can no longer adequately dispense justice.8 This manifests itself in beliefs that if one is prosecuted for activities that were designed to advance social change, either in violation of the law or not, that the individual will not be afforded a fair trial; 9 a reflection that the social or political activist will not be judged by an impartial jury….For the ...


The Trial Judge As Gatekeeper For Scientific Evidence: Will Ohio Rule Of Evidence 102 Frustrate The Ohio Courts' Role Under Daubert V. Merrell Dow?, Michael Lepp, Chrisopher B. Mcneil Jul 2015

The Trial Judge As Gatekeeper For Scientific Evidence: Will Ohio Rule Of Evidence 102 Frustrate The Ohio Courts' Role Under Daubert V. Merrell Dow?, Michael Lepp, Chrisopher B. Mcneil

Akron Law Review

This article considers the role of the trial court in responding to the changes wrought by scientific innovation. Particular consideration is given to the impact likely to be realized in Ohio trial courts from the decision of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.

[...]In order to appreciate the significance of Ohio Evidence Rule 102 in this context, it is helpful to first examine some of the events leading to Daubert, especially the application (and in some instances, the rejection) of Frye both in Ohio and at the federal level. Following that, this article will ...


Calculating Credibility: State V. Sharma And The Future Of Polygraph Admissibility In Ohio And Beyond, Vincent V. Vigluicci Jun 2015

Calculating Credibility: State V. Sharma And The Future Of Polygraph Admissibility In Ohio And Beyond, Vincent V. Vigluicci

Akron Law Review

Almost a century after its inception, the polygraph test remains one of the most fascinating forms of evidence. Firmly entrenched in popular mythology, the polygraph offers the promise of calculating truth and credibility with scientific certainty, a proposition that continues to capture the public’s imagination. At the same time, the polygraph has also been viewed with great trepidation as a flawed and dangerous instrument of oppression. Commonly called a “lie detector,” the polygraph does not actually detect lying; it measures subtle changes in blood pressure, pulse, respiration, and the skin’s resistance to electricity that are thought to result ...