Judges Commons^™

Bending The Rules Of Evidence, Edward K. Cheng, G. Alexander Nunn, Julia Simon-Kerr

Faculty Scholarship

The evidence rules have well-established, standard textual meanings—meanings that evidence professors teach their law students every year. Yet, despite the rules’ clarity, courts misapply them across a wide array of cases: Judges allow past acts to bypass the propensity prohibition, squeeze hearsay into facially inapplicable exceptions, and poke holes in supposedly ironclad privileges. And that’s just the beginning.

The evidence literature sees these misapplications as mistakes by inept trial judges. This Article takes a very different view. These “mistakes” are often not mistakes at all, but rather instances in which courts are intentionally bending the rules of evidence. Codified evidentiary …

Childist Objections, Youthful Relevance, And Evidence Reconceived, Mae C. Quinn

Dickinson Law Review (2017-Present)

Evidence rules are written by and for adults. As a result, they largely lack the vantage point of youth and are rooted in arm’s-length assumptions about the lives and legal interests of young people. Moreover, because children have been mostly treated as evidentiary afterthoughts, they have been patched into the justice system and its procedures in a piecemeal fashion. Yet, to date, there has been no comprehensive scholarly critique of evidence principles and practices for failing to meaningfully account for youth. And the evidentiary intersection of youth and race has been almost entirely overlooked in legal scholarship. This Article, in …

"You Should Have Known:" The Need For Evidentiary Notice Requirements In Immigration Court, Marisa Moore Apel

University of Cincinnati Law Review

No abstract provided.

Assertion And Hearsay, Richard Lloret

Dickinson Law Review (2017-Present)

This article explores the characteristics and functions of assertion and considers how the term influences the definition of hearsay under Federal Rule of Evidence 801. Rule 801(a) defines hearsay by limiting it to words and conduct intended as an assertion, but the rule does not define the term assertion. Courts and legal scholars have focused relatively little attention on the nature and definition of assertion. That is unfortunate, because assertion is a robust concept that has been the subject of intense philosophic study over recent decades. Assertion is not a mere cypher standing in for whatever speech or conduct one …

Rock And Hard Place Arguments, Jareb Gleckel, Grace Brosofsky

Seattle University Law Review

This Article explores what we coin “rock and hard place” (RHP) arguments in the law, and it aims to motivate mission-driven plaintiffs to seek out such arguments in their cases. The RHP argument structure helps plaintiffs win cases even when the court views that outcome as unfavorable.

We begin by dissecting RHP dilemmas that have long existed in the American legal system. As Part I reveals, prosecutors and law enforcement officials have often taken advantage of RHP dilemmas and used them as a tool to persuade criminal defendants to forfeit their constitutional rights, confess, or give up the chance to …

The Acquisition Of Scientific Evidence Between Frye And Daubert. From Ad Hominem Arguments To Cross-Examination Among Experts, Lorenzo Zoppellari

OSSA Conference Archive

The Frye and Daubert rulings give us two very different ways to intend the relation between law and science. Through the contributions of Wellman and Walton, we will see how the main method to question the expert’s testimony before a judge deferent to science is to question her personal integrity by using ad hominem arguments. Otherwise, using Alvin Goldman’s novice/expert problem, we will investigate if other manners of argumentative cross-examinations are possible.

Judicial Treatment Of Aboriginal Peoples’ Oral History Evidence: More Room For Reconciliation, Jimmy Peterson

Dalhousie Law Journal

Oral history is the only past record in many Aboriginal groups in Canada. In 1997, in Delgamuukw, the Supreme Court of Canada recognized that the strict approach to evidence law with respect to oral history had to be relaxed for Aboriginal peoples to be able to pursue claims to Aboriginal rights or Aboriginal title. This was a necessary element of the attempt to achieve reconciliation between Aboriginal and non-Aboriginal peoples. Yet, while evidence law has become increasingly flexible when it comes to accommodating Aboriginal peoples, courts have struggled with how to value oral traditions. A review of the case …

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

Touro Law Review

No abstract provided.

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.

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 …

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

St. Mary's Law Journal

Abstract forthcoming

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

Jane Campbell Moriarty

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 …

The Virtue Of Process: Finding The Legitimacy Of Judicial Fact-Finding In Personal Injury Litigation, Nayha Acharya

PhD Dissertations

This thesis is an inquiry into the legitimacy of judicial fact-finding in civil litigation. Judges make authoritative factual findings in conditions of uncertainty and the decision-making process cannot, and does not, guarantee the accuracy of those outcomes. Given the inevitable risk of error, on what basis is the authority of judicial fact-finding legitimate? This project provides a framework of procedural legitimacy that bridges two unavoidable aspects of adjudication: factual indeterminacy and the need for justifiably authoritative dispute resolution. This work draws of the legal theories of Lon Fuller and Jurgen Habermas to substantiate the notion of procedural legitimacy in the …

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.

Decision Making And The Law: Truth Barriers, Jonathan J. Koehler, John B. Meixner Jr.

Scholarly Works

Reaching an accurate outcome is a central goal of the American trial. But structural features of the legal system, in combination with the cognitive shortcomings of legal actors, hinder the search for truth. Regarding the legal system, various rules and policies restrict decision makers’ access to evidence, violate the laws of probability, and limit the evidentiary concerns that may be considered on appeal. Regarding legal actors, informational deficits (particularly regarding scientific and statistical evidence) and cognitive biases of police investigators, witnesses (lay and expert), attorneys, judges, and jurors pose serious obstacles. We conclude by suggesting that research in judgment and …

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 …

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 …

Discretion Abused: Reinterpreting The Appellate Standard Of Review For Hearsay, Matthew J. Peterson

Matthew J. Peterson

Matthew J. Peterson, Discretion Abused: Reinterpreting the Appellate Standard of Review for Hearsay

Abstract:

The decision by a federal a court to exclude or admit hearsay can be crucial to the case of either party. Despite this prospective impact, the federal courts of appeal currently defer to district courts’ expertise by reviewing a district court’s decision to admit or exclude hearsay for an abuse of discretion. Such deference often insulates district courts’ incorrect interpretation of the rule against hearsay and the improper application of the exclusions and exceptions to the rule from appellate reversal.

Lowering the standard of review for …

Evidence And The Pursuit Of Truth In The Law, Jeffery L. Johnson

Jeffery L Johnson

Lawyers should be much more concerned with the concepts of truth and evidence. The entire profession depends on truth. It is what police detectives, District Attorneys, juries, trial judges, appellate judges, and academic lawyers offering interpretive theories, are all concerned with. But, since truth is seldom apparent on its sleeve, these legal actors are equally dependent on evidence as the only(?) reliable(?) means of determining truth. I defend a commonsensical theory of [good] evidence. I argue that this view, inference to the best explanation, captures most, if not all, of a lawyer’s appeal to evidence. It is far from clear, …

Tell Us A Story, But Don't Make It A Good One: Resolving The Confusion Regarding Emotional Stories And Federal Rule Of Evidence 403, Cathren Page

Cathren Page

Abstract: Tell Us a Story, But Don’t Make It A Good One: Resolving the Confusion Regarding Emotional Stories and Federal Rule of Evidence 403 by Cathren Koehlert-Page Courts need to reword their opinions regarding Rule 403 to address the tension between the advice to tell an emotionally evocative story at trial and the notion that evidence can be excluded if it is too emotional. In the murder mystery Mystic River, Dave Boyle is kidnapped in the beginning. The audience feels empathy for Dave who as an adult becomes one of the main suspects in the murder of his friend Jimmy’s …

Avoiding Adversarial Adjudication, Michael T. Morley

Scholarly Publications

There are a variety of procedural vehicles through which litigants may seek a substantive court ruling or order that declares or modifies their legal rights and obligations without actually litigating the merits of a case as a whole or particular issues within the case. These alternatives include defaults, failures to oppose motions for summary judgment, waivers and forfeitures, stipulations of law, confessions of error, and consent decrees. Courts presently apply different standards in determining whether to accept or allow litigants to take advantage of each of these vehicles for avoiding adversarial adjudication. Because all of these procedural alternatives share the …

Timeless Trial Strategies And Tactics: Lessons From The Classic Claus Von Bülow Case, Daniel M. Braun

Daniel M Braun

In this new Millennium -- an era of increasingly complex cases -- it is critical that lawyers keep a keen eye on trial strategy and tactics. Although scientific evidence today is more sophisticated than ever, the art of effectively engaging people and personalities remains prime. Scientific data must be contextualized and presented in absorbable ways, and attorneys need to ensure not only that they correctly understand jurors, judges, witnesses, and accused persons, but also that they find the means to make their arguments truly resonate if they are to formulate an effective case and ultimately realize justice. A decades-old case …

Judicial Review And The Exclusionary Rule, Morgan Cloud

Pepperdine Law Review

No abstract provided.

The Propriety Of Jury Questioning: A Remedy For Perceived Harmless Error, Laurie Forbes Neff

Pepperdine Law Review

No abstract provided.

Evidence Verite And The Law Of Film, Jessica M. Silbey

Jessica Silbey

This paper explores a puzzle concerning the authority of certain images that increasingly find themselves at the center of legal disputes: surveillance or “real time” film images that purport to capture an event about which there is a dispute. Increasingly, this kind of “evidence verité” is used in United States courts of law as the best evidence of what happened. Film footage of arrests, criminal confessions, photographs of crime scenes (during and after) is routinely admitted into court as evidence. It tends to overwhelm all other evidence (e.g., testimonial or documentary) and be immune to critical analysis. Why would this …

Hearings, Mark Spottswood

Faculty Working Papers

This article explores a constantly recurring procedural question: When is fact-finding improved by a live hearing, and when would it be better to rely on a written record? Unfortunately, when judges, lawyers, and rulemakers consider this issue, they are led astray by the widely shared—but false—assumption that a judge can best determine issues of credibility by viewing the demeanor of witnesses while they are testifying. In fact, a large body of scientific evidence indicates that judges are more likely to be deceived by lying or mistaken witnesses when observing their testimony in person than if the judges were to review …

Cross-Examining Film, Jessica Silbey

Faculty Scholarship

The Supreme Court decision in Scott v. Harris holds that a Georgia police officer did not violate a fleeing suspect's Fourth Amendment rights when he caused the suspect's car to crash. The court's decision relies almost entirely on the filmed version of the high-speed police chase taken from a "dash-cam," a video camera mounted on the dashboard of the pursuing police cruiser. The Supreme Court said that in light of the contrary stories told by the opposing parties to the lawsuit, the only story to be believed was that told by the video. In Scott v. Harris, the court fell …

Evidentiary Wisdom And Blinders In Perspective: Thoughts On Misjudging, Elaine W. Shoben

Scholarly Works

Empirical studies serve to enlighten the law, even when they simply confirm the wisdom of existing rules. Chris Guthrie's article, Misjudging, primarily serves that useful function—confirming the wisdom of existing rules—even though the author sought to establish something different. Guthrie's article applies insights from cognitive psychology to the resolution of legal disputes and presents some empirical proof of the effect of the application. He concludes that three sets of “blinders”—informational, cognitive, and attitudinal—affect the ability of judges to reach correct resolutions of disputes. He therefore recommends further appreciation of the ability of arbitration and mediation to avoid some of the …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.