Evidence Commons^™

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

The Judges' Book

No abstract provided.

Adjudicated Juveniles And Collateral Relief, Joshua A. Tepfer, Laura H. Nirider

Maine Law Review

Collateral relief is a vital part of the American criminal justice system. By filing post-conviction petitions after the close of direct appeal, defendants can raise claims based on evidence outside the record that was not known or available at the time of trial. One common use of post-conviction relief is to file a claim related to a previously unknown constitutional violation that occurred at trial, such as ineffective assistance of counsel. If a defendant’s trial attorney performed ineffectively by failing to call, for instance, an alibi witness, then that omission is unlikely to be reflected in the trial record ...

Commissioning Innocence And Restoring Confidence: The North Carolina Innocence Iquiry Commission And The Missing Deliberative Citizen, Mary Kelly Tate

Maine Law Review

Since 1989, the United States has witnessed 289 DNA exonerations, with exonerees serving an average of thirteen years in prison. Although DNA an its unmatched power for the conclusive results is what brought popular attention to wrongful convictions, the scope of the problem is vastly larger than the number of known DNA exonerations. The actual number of convicted individuals who are factually innocent is unknown. The state of North Carolina has recently responded to this national crisis via a newly created state agency. This essay applauds North Carolina’s response, but urges that ordinary citizens, qua jurors, be active participants ...

Following The Rules: Exclusion Of Witness, Sequestration, And No-Consultation Orders, Richard H. Underwood

Richard H. Underwood

In this Article, Professor Underwood discusses the varying application of Rule 615 of the Federal Rules of Evidence, which provides for the exclusion of witnesses. He explains that varying application of Rule 615 and state evidence rules following Rule 615's language creates misunderstandings at trial. Thus, it is important to know not only the federal and local rules but also the "way things are done" in a particular court.

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.

Reflections On Motion Picture Evidence, Brian L. Frye

Brian L. Frye

Courts have long admitted motion pictures as evidence. But until recently, making motion pictures was expensive and cumbersome. Today, making motion pictures is cheap and easy. And as a result, people make so many of them. As Cocteau predicted, the democratization of motion pictures has enabled people to create new forms of motion picture art. But it has also enabled people to create new forms of motion picture evidence. This article offers a brief history of motion picture evidence in the United States, and reflects on the use of motion picture evidence by the Supreme Court.

Policing The Immigrant Identity, Eda Katharine Tinto

Florida Law Review

Information concerning an immigrant’s “identity” is critical evidence used by the government in a deportation proceeding. Today, the government collects immigrant identity evidence in a variety of ways: a local police officer conducts a traffic stop and obtains a driver’s name and date of birth, fingerprints taken at booking link to previously acquired biographical information, and a search of a national database reveals a person’s country of origin. Data suggests that in an increasing number of cases, police collect immigrant identity evidence following an unlawful search and seizure in violation of the Fourth Amendment to the U ...

State Searches, Federal Cases, And Choice Of Law: Just A Little Respect, John B. Corr

John (Bernie) Corr

No abstract provided.

The Forensic Community Can Educate Lawyers, Judges, Robert M. Sanger

Robert M. Sanger

An Evidentiary Oddity: “Careful Habit” – Does The Law Of Evidence Embrace This Archaic/Modern Concept?, 43 Ohio N.U. L. Rev. 293 (2017), Marc Ginsberg

Marc D. Ginsberg

The concept of the “careful habit”[i] is intriguing. The law of evidence vigorously distinguishes between character evidence (largely inadmissible)[ii] and habit evidence (presumptively admissible).[iii] Character is understood as a propensity to act in a certain fashion[iv]—a person’s disposition. Habit is understood as non-volitional, repetitive specific conduct, in response to stimuli, over a rather lengthy period of time.[v] “Carefulness” is known by the law as a character trait.[vi] Carefulness should not be confused with habit, yet this confusion has occurred in multiple jurisdictions, many years ago and recently. This paper seeks to explore ...

Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Absolute Immunity: General Principles And Recent Developments, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

The British Experience With Hearsay Reform: A Cautionary Tale, Mark S. Brodin

Mark S. Brodin

Among the proposals being considered by the Advisory Committee on the Federal Rules of Evidence (“the Committee”) is the scrapping of the categorical exception regime for hearsay, leaving questions of reliability and admissibility ad hoc to district court judges along the lines of Federal Rules of Evidence (FRE) 403 and 807. Over the past decades, the British have moved toward this approach, and it is the purpose of this Article to identify the lessons that can be learned from that experience, especially with regard to criminal prosecutions and the right of confrontation.

Small Cells, Big Problems: The Increasing Precision Of Cell Site Location Information And The Need For Fourth Amendment Protections, Robert M. Bloom, William T. Clark

Robert M. Bloom

The past fifty years has witnessed an evolution in technology advancement in police surveillance. Today, one of the essential tools of police surveillance is something most Americans carry with them in their pockets every day, the cell phone. Cell phones not only contain a huge repository of personal data, they also provide continuous surveillance of a person’s movement known as cell site location information (CSLI). In 1986, Congress sought to provide some privacy protections to CSLI in the Stored Communication Act. Although this solution may have struck the proper balance in an age when cell phones were a mere ...

Evidence Issues In Indian Law Cases, Taylor S. Fielding

American Indian Law Journal

No abstract provided.

Ask Versus Tell: Potential Confusion When Child Witnesses Are Questioned About Conversastions, Stacia N. Stolzenberg, Kelly Mcwilliams, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

Children’s potential confusion between “ask” and “tell” can lead to misunderstandings when child witnesses are asked to report prior conversations. The verbs distinguish both between interrogating and informing and between requesting and commanding. Children’s understanding was examined using both field (i.e., Study 1) and laboratory (i.e., Studies 2-4) methods. Study 1 examined 100 5- to 12-year-olds’ trial testimony in child sexual abuse cases, and found that potentially ambiguous use of ask and tell was common, typically found in yes/no questions that elicited unelaborated answers, and virtually never clarified by attorneys or child witnesses. Studies 2-4 ...

59. Ask Versus Tell: Potential Confusion When Child Witnesses Are Questioned About Conversations, Stacia N. Stolzenberg, Kelly Mcwilliams, Thomas D. Lyon

Thomas D. Lyon

Optimizing Collection Of Trace Biological Samples From Vehicle Headrests, Kevin Tang, Jesse Ramirez, John Bond, Jocelyn Weart, Yvette Delatorre, Ian Fitch, Steven Lee

Themis: Research Journal of Justice Studies and Forensic Science

Tape-lifting and swabbing are two methods commonly used for collecting biological samples in the United Kingdom and United States to investigate vehicle crimes. Determining the optimal collection method may lead to an increase in generating DNA profiles and crime-solving. The objective of this study is to evaluate the efficiency of adhesive tape and the double-swab collection methods for investigating vehicle crimes with possible touch DNA samples. Two experiments were conducted to evaluate the use of tape-lifts and swabs on spiked common vehicle fabric materials. The efficiency of recovery between the two collection methods was performed using qPCR. The results from ...

Physical Match: Unique Fracture Patterns In Wooden Popsicle Sticks, Yiu Ming Sunny Lau

Themis: Research Journal of Justice Studies and Forensic Science

Physical match (or physical fit) evidence was considered reliable in court for years, until the Daubert case, which required standardized scientific methodology on all forensic evidence. Physical matching faces the same criticism as other forms of physical evidence (specifically, that it lacks a scientific foundation). Physical matching is based on the idea that when an object is fractured, the shape of each fragment is unique and it is not possible to recreate a fragment that is identical to any other. In this study, fifty wooden popsicle sticks were broken in half, the pieces were mixed, and then reconstructed using physical ...

Minimum Education Requirements For Crime Scene Investigators, Araseli Saldivar

Themis: Research Journal of Justice Studies and Forensic Science

The initial crime scene investigation is critical since it is the primary step in the investigative process; therefore, individuals assigned to process a scene should be highly educated. Improperly educated (or uneducated) crime scene investigators (CSIs) can mishandle evidence during an investigation, affecting the outcome of cases. The minimum education requirement for CSIs should transition from a high school diploma—the current requirement—toward a bachelor’s degree. The importance of acquiring a college-level education is observed in a study conducted on crime scene examiners in Australia. To determine the educational requirement for CSIs in the United States, information was ...