Evidence Commons^™

Determining When Extrinsic Evidence Not Attached To Or Incorporated By Reference In A Pleading May Be Considered On A Rule 12 Dismissal Motion, Laurence A. Steckman, Rita D. Turner

Touro Law Review

No abstract provided.

Should The Medium Affect The Message? Legal And Ethical Implications Of Prosecutors Reading Inmate-Attorney Email, Brandon P. Ruben

Fordham Law Review

The attorney-client privilege protects confidential legal communications between a party and her attorney from being used against her, thus encouraging full and frank attorney-client communication. It is a venerable evidentiary principle of American jurisprudence. Unsurprisingly, prosecutors may not eavesdrop on inmate-attorney visits or phone calls or read inmate-attorney postal mail. Courts are currently divided, however, as to whether or not they can forbid prosecutors from reading inmate- attorney email.

This Note explores the cases that address whether federal prosecutors may read inmates’ legal email. As courts have unanimously held, because inmates know that the Bureau of Prisons (BOP) monitors all ...

Dumping Daubert, Popping Popper And Falsifying Falsifiability: A Re-Assessment Of First Principles, Barbara P. Billauer Esq

barbara p billauer esq

Abstract:

The Daubert mantra demands that judges, acting as gatekeepers, prevent para, pseudo or bad science from infiltrating the courtroom. To do so, the Judges must first determine what is ‘science’ and what is ‘good science.’

It is submitted that Daubert is deeply polluted with the notions of Karl Popper who sets ‘falsifiability’ and ‘falsification’ as the demarcation line for that determination. This philosophy has intractably infected case law, leading to bad decisions immortalized as stare decisis, and an unworkable system of decision-making, which negatively impacts litigant expectations. Among other problems is the intolerance of Popper’s system for multiple ...

Permissibility Of Colour And Racial Profiling, James Singh Gill

Western Journal of Legal Studies

Racial profiling in law enforcement is a contentious matter, particularly in light of U.S. police-citizen race tensions. The racial profiling debate has not been settled. Racial profiling proponents view it as a tool to effectively uncover criminal activity among certain racial groups. Critics find that racial profiling perpetuates racial stigmas and is largely inefficient as a policing tool. This article explores the ongoing debate and offers an overview of the Canadian judicial experience with racial profiling. The author proposes a middle-ground solution where racial profiling may be used under certain constraints imposed on law enforcement. The author suggests that ...

Testimonial Is As Testimonial Does, Ben Trachtenberg

Florida Law Review

In the decade since Crawford v. Washington declared “testimony” to be the touchstone of the Confrontation Clause, courts—from the humblest criminal trial court to the Supreme Court itself—have struggled with two problems. First, defining “testimonial” has proven difficult. Second, in certain cases, the results of defining “testimonial” as Crawford would seem to require have proven unappealing. Justice Antonin Scalia, the author of the majority opinion in Crawford and the most vocal cheerleader of its new doctrine, has consequently had trouble maintaining a majority of Justices for what would seem to be straightforward applications of the opinion. Professor Richard ...

The Mold That Shapes Hearsay Law, Richard D. Friedman

Florida Law Review

In response to an article previously published in the Florida Law Review by Professor Ben Trachtenberg, Professor Friedman argues 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. Friedman argues 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 ...

Hague Evidence Convention: A Practical Guide To The Convention, United States Case Law, Convention - Sponsored Review Commissions (1978 And 1985), And Responses Of Other Signatory Nations: With Digest Of Cases And Bibliography, Denise L. Dunham

Georgia Journal of International & Comparative Law

No abstract provided.

Proportionality And The Social Benefits Of Discovery: Out Of Sight And Out Of Mind?, Stephen B. Burbank

Faculty Scholarship

In this short essay, based on remarks delivered at the 2015 meeting of the AALS Section of Litigation, I use a recent paper by Gelbach and Kobayashi to highlight the risk that, in assessing the proportionality of proposed discovery under the 2015 amendments to Rule 26 of the Federal Rules of Civil Procedure, federal judges will privilege costs over benefits, and private over public interests. The risk arises from the temptation to focus on (1) the interests of those who are present to the detriment of the interests of those who are absent (“the availability heuristic”), and (2) variables that ...

Junk Science? Four Arguments Against The Radiological Age Assessment Of Unaccompanied Minors Seeking Asylum, Gregor Noll

Gregor Noll

Should radiological age assessment at all be considered as a means to alleviate the doubts of a decision taker in the asylum procedure? In this text, I ask, first, whether the use of radiological imaging methods in the age assessment of unaccompanied adolescents seeking asylum are in compliance with internal norms of the forensic science community and find that they are not. Second, I consider whether their use is scientifically authoritative according to the current state of the art in forensic medicine and traumatology. I find that they are not. Third, I pursue they question whether their use is sufficiently ...

Reasonable Expectations Of Privacy Settings: Social Media And The Stored Communications Act, Christopher J. Borchert, Fernando M. Pinguelo, David Thaw

Duke Law & Technology Review

In 1986, Congress passed the Stored Communications Act (“SCA”) to provide additional protections for individuals’ private communications content held in electronic storage by third parties. Acting out of direct concern for the implications of the Third-Party Records Doctrine—a judicially created doctrine that generally eliminates Fourth Amendment protections for information entrusted to third parties—Congress sought to tailor the SCA to electronic communications sent via and stored by third parties. Yet, because Congress crafted the SCA with language specific to the technology of 1986, courts today have struggled to apply the SCA consistently with regard to similar private content sent ...

Inefficient Evidence, Alex Stein

Alex Stein

Why set up evidentiary rules rather than allow factfinders to make decisions by considering all relevant evidence? This fundamental question has been the subject of unresolved controversy among scholars and policymakers since it was raised by Bentham at the beginning of the nineteenth century. This Article offers a surprisingly straightforward answer: An economically minded legal system must suppress all evidence that brings along a negative productivity-expense balance and is therefore inefficient. Failure to suppress inefficient evidence will result in serious diseconomies of scale. To operationalize this idea, I introduce a “signal-to-noise” method borrowed from statistics, science, and engineering. This method ...

Systemic Lying, Julia Simon-Kerr

Julia Simon-Kerr

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 ...

Unwrapping The Box The Supreme Court Justices Have Gotten Themselves Into: Internal Confrontations Over Confronting The Confrontation Clause, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

Williams v. Illinois, handed down in 2012, is the latest in a new and revolutionary line of U.S. Supreme Court cases beginning with the 2004 decision of Crawford v. Washington which radically altered the Court's former approach to the Constitutional Confrontation Clause. That clause generally requires persons who make written or oral statements outside the trial, that may constitute evidence against a criminal defendant, to take the witness stand for cross-examination rather than those statements being presented at the trial only by the writing or by another person who heard the statement.

Previous to Crawford, under Ohio v ...

Ambiguous-Purpose Statements Of Children And Other Victims Of Abuse Under The Confrontation Clause, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The author examines in this paper two kinds of ambiguous-purpose out-of-court statements that are especially problematic under current Confrontation law--problematic in ways that we hope will be solved directly or indirectly by the Supreme Court when it renders its decision in Ohio v. Clark. The statements he examines are:

(1) Statements made by abused children concerning their abuse, for example to police, physicians, teachers, welfare workers, baby sitters, or family members, some of whom may be under a legal duty to report suspected abuse to legal authorities. At least some of these statements will be directly addressed by the Court ...

Epilogue: Moral Panics And Body Cameras, Howard M. Wasserman

Washington University Law Review Commentaries

This brief follow-up to Moral Panics and Body Cameras comments on in the weeks after that essay was published on the Commentaries website and what those events show about the efficacy of body cameras and video evidence as a response to police-public conflicts.

Surrogate Testimony After Williams: A New Answer To The Question Of Who May Testify Regarding The Contents Of A Laboratory Report, Jennifer Alberts

Indiana Law Journal

No abstract provided.

The Psychotherapist-Patient Privilege, Michael L. Orenstein

Touro Law Review

No abstract provided.

The Daryl Atkins Story, Mark E. Olive

William & Mary Bill of Rights Journal

No abstract provided.

Hall V. Florida: The Supreme Court’S Guidance In Implementing Atkins, James W. Ellis

William & Mary Bill of Rights Journal

No abstract provided.

Scientizing Culpability: The Implications Of Hall V. Florida And The Possibility Of A “Scientific Stare Decisis”, Christopher Slobogin

William & Mary Bill of Rights Journal

The Supreme Court’s decision in Hall v. Florida held that “clinical definitions” control the meaning of intellectual disability in the death penalty context. In other words, Hall “scientized” the definition of a legal concept. This Article discusses the implications of this unprecedented move. It also introduces the idea of scientific stare decisis—a requirement that groups that are scientifically alike be treated similarly for culpability purposes—as a means of implementing the scientization process.