Evidence Commons^™

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 ...

On The Admissibility Of Expert Testimony On Eyewitness Identification: A Legal And Scientific Evaluation, Tanja Rapus Benton, Stephanie A. Mcdonnell, Neil Thomas, David F. Ross, Nicholas Honerkamp

Tennessee Journal of Law & Policy

This article is a state-by-state and circuit-by-circuit analysis of judicial decisions on the admissibility of expert testimony on eyewitness identification problems. The basis for the admission of expert testimony is analyzed, and then the rationale used in those decisions is considered with regard to the current data from psychological studies. This article also addresses the apparent disregard of social science research by the judicial system.

State V. Pierce: Refining The Standard For The Admission Of Polygraph Evidence, Anton L. Jackson

Tennessee Journal of Law & Policy

Although the inadmissibility of polygraph evidence in the course of a criminal trial has been well-established law in Tennessee for almost fifty years, the quandary presented itself two years ago in State v. Pierce.' This case forced the Tennessee Supreme Court to balance the need to protect state citizens against sexual predators with the wellestablished rules of evidence which hold that "polygraph evidence is inherently unreliable, and therefore irrelevant and inadmissible. ' In Pierce, the issue before the court was whether polygraph test results, which were performed as part of a sex offender risk assessment and encouraged by leading psychosexual analysts ...

Rationality, Insanity, And The Insanity Defense: Reflections On The Limits Of Reason, Theodore Y. Blumoff

Theodore Y. Blumoff

Individuals who suffer from chronic paranoid ideations live with deeply embedded conspiratorial delusions that are sometimes accompanied by unwanted visual and/or auditory stimuli, sometime neither: just psychotic delusions in which they feel as if they have lost control of their lives – and of course they have, albeit not from the performances of foreign forces. When those perceived forces persevere for even a fairly short period of time, they can dictate the performance of evil deeds that the individual ultimately feels helpless to oppose. What observations and findings from neuroscience make clear is that such individuals do not lack knowledge ...

Finding The Foregone Conclusions Of Encryption, Timothy A. Wiseman

Timothy A Wiseman

Encryption is commonly used to protect private information, for both legitimate and illegitimate reasons. Courts have been struggling to determine when, within the bounds of the Fourth and Fifth Amendments, the Courts may compel a defendant in a criminal case to decrypt their data.

This article argues that a broad use of the Forgone Conclusion doctrine would permit the Courts to order a defendant to decrypt their data when the prosecution can show with reasonable particularity the existence and location of the encrypted documents, that they are likely to be incriminating, and that the government can authenticate them without the ...

Furtive Encryption: Power, Trust, And The Constitutional Cost Of Collective Surveillance, Jeffrey L. Vagle

Jeffrey L Vagle

Recent revelations of heretofore secret U.S. government surveillance programs have sparked national conversations about their constitutionality and the delicate balance between security and civil liberties in a constitutional democracy. Among the revealed policies asserted by the National Security Agency (NSA) is a provision found in the “minimization procedures” required under Section 702 of the Foreign Intelligence Surveillance Act of 1978. This provision allows the NSA to collect and keep indefinitely any encrypted information collected from domestic communications—including the communications of U.S. citizens. That is, according to the U.S. government, the mere fact that a U.S ...

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 ...

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 ...

How To Avoid The Death Of Your Case By Two Billion Paper Cuts: Encouraging Arbitration As An Alternative Way To Resolve Costly Discovery Disputes, Tzipora Goodfriend-Gelernter

Pepperdine Dispute Resolution Law Journal

This article analyzes the costly effect of electronic information on discovery practice and advocates for the arbitration of discovery disputes. Part II discusses the background of electronic discovery, the evolution of our reliance on ESI (electronically stored information) as part of our modern day discovery practice, and the benefits and detriments of electronic discovery. Part III discusses the effects of our reliance on electronic discovery and the implications of those effects on litigating parties. It examines how the increasingly computer-based world of discovery has increased the cost of litigation disputes significantly and proposes using the patent arbitration model as a ...

A Step In The Wrong Direction: The Ninth Circuit Requires Reasonable Suspicion For Forensic Examinations Of Electronic Storage Devices During Border Searches In United States V. Cotterman, Michael Creta

Boston College Law Review

On March 8, 2013, in United States v. Cotterman, the U.S. Court of Appeals for the Ninth Circuit—sitting en banc—held that U.S. border agents must have a reasonable suspicion of criminal activity before conducting a forensic search of an electronic storage device at the border. In reaching this conclusion, the court narrowed existing federal appeals court precedents, which held that manual searches of electronic storage devices do not require any suspicion. This Comment argues that a reasonable suspicion requirement is illogical, harmful to national security, and administratively impractical. Instead, strengthening existing federal regulations is a better ...

The Search For A Limited Search: The First Circuit Denies The Search Of Cell Phones Incident To Arrest In United States V. Wurie, Evan O'Connor

Boston College Law Review

On May 17, 2013, the U.S. Court of Appeals for the First Circuit in United States v. Wurie held that the warrantless search of a cell phone was not justified by the search-incident-to-arrest exception to the Fourth Amendment and was thus an illegal search. In doing so, the court declined to agree with other federal appeals court solutions regarding this issue; most notably, the Fifth Circuit’s 2007 decision in United States v. Finley and the Seventh Circuit’s 2012 decision in United States v. Flores-Lopez. This Comment argues that the approaches taken by courts on both sides of ...

A Murky Doctrine Gets A Little Pushback: The Fourth Circuit's Rebuff Of Guilty Pleas In United States V. Fisher, Eric Hawkins

Boston College Law Review

On April 1, 2013, in United States v. Fisher, the U.S. Court of Appeals for the Fourth Circuit vacated a defendant’s guilty plea post-sentencing because of an officer’s impermissible conduct during the preceding investigation. In doing so, the court expanded on the “voluntariness” prerequisite outlined in the seminal 1970 U.S. Supreme Court case of Brady v. United States that governs the guilty plea process in federal court. This Comment argues that this was a prudent expansion given the troubling nature of guilty pleas in general. This Comment outlines the basic contours of guilty pleas in the ...

A Simple Concept In A Complicated World: Actual Causation, Mixed-Drug Deaths And The Eighth Circuit's Opinion In United States V. Burrage, Benjamin Ernst

Boston College Law Review

On August 6, 2012, in United States v. Burrage, the U.S. Court of Appeals for the Eighth Circuit upheld the conviction of a defendant for the crime of distribution of drugs resulting in death where the defendant sold heroin that played a part in a mixed-drug overdose death. The court reasoned that the statute, which provides for a mandatory twenty-year prison sentence when a defendant sells illegal drugs and a death results, only requires that the defendant’s drugs contribute to the death. This Comment argues that the contributory cause standard of actual causation endorsed by the Eighth Circuit ...

Cherry Still On Top: How Pinkerton Concepts Continue To Govern Co-Conspirator Forfeiture Of Confrontation Rights Post-Giles, Nathaniel Koslof

Boston College Law Review

To combat the ever-expanding problem of witness intimidation, courts have employed familiar concepts of conspiracy liability to justify the extension of the forfeiture by wrongdoing doctrine in the context of group criminality. Under what is known as the Cherry doctrine, one co-conspirator’s misconduct in making a witness unavailable can generally be imputed to another co-conspirator defendant to forfeit the latter’s Confrontation Clause rights. In 2008, in Giles v. California, the U.S. Supreme Court added a wrinkle to this forfeiture analysis that seemingly put the Cherry doctrine in jeopardy. By inserting a new element of intent, the Giles ...

Seeing Is Believing: The Anti-Inference Bias, Eyal Zamir Prof., Ilana Ritov, Doron Teichman

Indiana Law Journal

A large body of studies suggests that people are reluctant to impose liability on the basis of circumstantial evidence alone, even when this evidence is more reliable than direct evidence. Current explanations for this pattern of behavior focus on factors such as the tendency of fact finders to assign low subjective probabilities to circumstantial evidence, the statistical nature of such evidence, and the fact that direct evidence can rule out with greater ease any competing factual theory regarding liability. This Article describes a set of four new experiments demonstrating that even when these factors are controlled for, the disinclination to ...

12. Lamb, M.E., Hershkowitz, I., & Lyon, T.D. (2013). Interviewing Victims And Suspected Victims Who Are Reluctant To Talk. Apsac (American Professional Society On The Abuse Of Children) Advisor, 25(4), 16-19., Thomas D. Lyon

Thomas D. Lyon

No abstract provided.

"Santa Baby, Just Slip A Sable Under The Tree For Me:" Or At Least A Catchall Exception To The Hearsay Rule?, Cynthia Ford

Faculty Journal Articles & Other Writings

This article examines Montana's two rule-based "catchall" or "residual" hearsay exceptions, and a statutory exception that applies only to child declarants in criminal cases.

The Ttab's Dangerous Dismissal Of 'Doubt', Charles E. Colman

New York University Public Law and Legal Theory Working Papers

On September 30, 2013, the Trademark Trial and Appeal Board issued a troubling decision in In re Bottega Veneta Int’l S.a.r.l. Viewed in a broader context, the decision reflects the Board’s growing reluctance to apply the doctrine of “aesthetic functionality” in ex parte prosecution proceedings to bar the issuance of potentially anticompetitive trade-dress registrations. The TTAB gives its imprimatur to the dubious “trade dress” at issue in Bottega Veneta through procedural tactics whose novelty and import have gone largely unacknowledged — specifically, (1) the Board’s declaration of its intention to resolve “doubts” as to aesthetic ...

Hear Me Now: The Admission Of Expert Testimony On Battered Women's Syndrome—An Evidentiary Approach, Matthew Fine

William & Mary Journal of Women and the Law

No abstract provided.

Promising Protection: 911 Call Records As Foundation For Family Violence Intervention, James G. Dwyer

Faculty Publications

No abstract provided.