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Limited Admissibility And Its Limitations, Lisa Dufraimont 2018 Osgoode Hall Law School of York University

Limited Admissibility And Its Limitations, Lisa Dufraimont

Lisa Dufraimont

Among the challenges facing juries and judges in adjudicating cases is the obligation to use evidence for limited purposes. Evidence inadmissible for one purpose is frequently admissible for other purposes, a situation known as "limited admissibility". Where limited admissibility arises in jury trials, courts generally deliver limiting instructions outlining the inferences that can legitimately be drawn from the evidence and identifying prohibited lines of reasoning to be avoided. Limiting instructions represent an expedient solution to limited-admissibility problems, but they create obvious problems of their own. A thoughtful observer might suspect-as psychological studies confirm-that limiting instructions are likely to fail in ...


Realizing The Potential Of The Principled Approach To Evidence, Lisa Dufraimont 2018 Osgoode Hall Law School of York University

Realizing The Potential Of The Principled Approach To Evidence, Lisa Dufraimont

Lisa Dufraimont

Ron Delisle's concern that lawyers and judges be constantly mindful of the purposes and policies underlying the rules of evidence led him to become one of the pioneers of the principled approach to evidence. This paper seeks to evaluate the extent to which the efforts of Canadian courts to incorporate principles into evidence law have alleviated the problem of the complexity of the traditional rules. Evidentiary rules are complex because they are dense or technical. Evidentiary principles are more capable of flexible and contextual application than evidentiary rules, but principles too are complex in the sense that they are ...


The Paragraph 20 Paradox: An Evaluation Of The Enforcement Of Ethical Rules As Substantive Law, Donald E. Campbell 2018 Mississippi College School of Law

The Paragraph 20 Paradox: An Evaluation Of The Enforcement Of Ethical Rules As Substantive Law, Donald E. Campbell

St. Mary's Journal on Legal Malpractice & Ethics

This Article addresses an issue courts across the country continue to struggle with: When are ethics rules appropriately considered enforceable substantive obligations, and when should they only be enforceable through the disciplinary process? The question is complicated by the ethics rules themselves. Paragraph 20 of the Scope section of the Model Rules of Professional Conduct includes seemingly contradictory guidance; it states the Rules are not to be used to establish civil liability, but also that they can be “some evidence” of a violation of a lawyer’s standard of care. Most states have adopted this paradoxal Paragraph 20 language. Consequently ...


"Dirty" Experts: Ethical Challenges Concerning, And A Comparative Perspective On, The Use Of Consulting Experts, David S. Caudill 2018 1567

"Dirty" Experts: Ethical Challenges Concerning, And A Comparative Perspective On, The Use Of Consulting Experts, David S. Caudill

St. Mary's Journal on Legal Malpractice & Ethics

U.S. attorneys often hire consulting experts who potentially never get named as testifying experts. The same practice is evident in Australia, where the colloquial distinction is between a “clean” and a “dirty” expert, the latter being in the role of a consultant who is considered a member of the client’s “legal team.” A “clean” expert named as a witness is then called “independent,” signaling that he or she is not an advocate. In contrast to the U.S. discourse concerning consulting and testifying experts, focused on discovery issues, the conversation in Australia betrays immediate ethical concerns that both ...


Causation And "Legal Certainty" In Legal Malpractice Law, Vincent R. Johnson 2018 St. Mary's University School of Law

Causation And "Legal Certainty" In Legal Malpractice Law, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

A line of California cases holds that causation of damages in legal malpractice actions must be proven with “legal certainty.” This Article argues that judicial references to legal certainty are ambiguous and threaten to undermine the fairness of legal malpractice litigation as a means for resolving lawyer-client disputes. Courts should eschew the language of legal certainty and plainly state that damages are recoverable if a legal malpractice plaintiff proves, by a preponderance of the evidence, that those losses were factually and proximately caused by the defendant’s breach of duty.


Rwu First Amendment Blog: David Logan's Blog: Discovering Trump 06-22-2018, David A. Logan 2018 Roger Williams University School of Law

Rwu First Amendment Blog: David Logan's Blog: Discovering Trump 06-22-2018, David A. Logan

Law School Blogs

No abstract provided.


Rape By Fraud: Eluding Washington Rape Statutes, Michael Mullen 2018 Seattle University School of Law

Rape By Fraud: Eluding Washington Rape Statutes, Michael Mullen

Seattle University Law Review

Existing Washington law does not sufficiently safeguard its citizens from “rape by fraud,” an action whereby a person obtains sexual consent and has sexual intercourse of any type by fraud, deception, misrepresentation, or impersonation. Rape by fraud is a form of sexual predation not always prosecutable under existing Washington law. In recent years, twelve states have adopted expanded rape by fraud statutory provisions. Presently, Washington’s rape statutes lack the expansive rape by fraud statutory language adopted by these twelve states. A recent sexual scam in Seattle has revealed holes in Washington’s rape statutes. This Note examines the history ...


The Productivity Of Wh- Prompts In Child Forensic Interviews, Elizabeth C, Ahern, Samantha J. Andrews, Stacia N. Stolzenberg, Thomas D. Lyon 2018 University of Cambridge

The Productivity Of Wh- Prompts In Child Forensic Interviews, Elizabeth C, Ahern, Samantha J. Andrews, Stacia N. Stolzenberg, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

Child witnesses are often asked wh- prompts (what, how, why, who, when, where) in forensic interviews. However, little research has examined the ways in which children respond to different wh- prompts and no previous research has investigated productivity differences among wh- prompts in investigative interviews. This study examined the use and productivity of wh- prompts in 95 transcripts of 4- to 13-year-olds alleging sexual abuse in child investigative interviews. What-how questions about actions elicited the most productive responses during both the rapport building and substantive phases. Future research and practitioner training should consider distinguishing among different wh- prompts.


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

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 ...


Narrowing The Legrand Test In New York State: A Necessary Limit On Judicial Discretion, Katherine I. Higginbotham 2018 Brooklyn Law School

Narrowing The Legrand Test In New York State: A Necessary Limit On Judicial Discretion, Katherine I. Higginbotham

Brooklyn Law Review

The admission of expert testimony on eyewitness identification evidence is an effective means of ensuring that juries and judges will weigh eyewitness identification evidence appropriately. The fallibility of such evidence is an increasingly well-researched and documented phenomenon in criminal law. Despite publicity of the frequency with which eyewitness identification evidence leads to wrongful convictions, studies show that jurors are often unable to properly assess the probative value of such testimony. Judges are also often unfamiliar with the factors that affect the reliability of eyewitness identification evidence. A 2016 Court of Appeals of New York case, People v. McCullough, represented a ...


Hearsay In The Smiley Face: Analyzing The Use Of Emojis As Evidence, Erin Janssen 2018 St. Mary's University School of Law

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

St. Mary's Law Journal

Abstract forthcoming


When The Defendant Doesn't Testify: The Eighth Circuit Considers A Reasonable Broken Promise In Bahtuoh V. Smith, Alexandre Bou-Rhodes 2018 Boston College Law School

When The Defendant Doesn't Testify: The Eighth Circuit Considers A Reasonable Broken Promise In Bahtuoh V. Smith, Alexandre Bou-Rhodes

Boston College Law Review

In 2017, in Bahtuoh v. Smith, the Eighth Circuit held that a criminal defendant’s counsel was not ineffective for promising the jury that the defendant would testify, but failing to deliver on that promise. This Comment argues that the Eighth Circuit’s decision is in line with the decisions of other circuits in ineffective assistance of counsel cases where counsel promised the defendant’s testimony but later reneged on that promise. Courts should consider in their analysis, however, the impact such a decision may have on the jury, and that a stricter standard for evaluating counsel’s trial performance ...


Lacking Regulated Policy For Dna Evidence, Maia Lister 2018 San Jose State University

Lacking Regulated Policy For Dna Evidence, Maia Lister

Themis: Research Journal of Justice Studies and Forensic Science

Despite its strong presence in criminal justice, DNA analysis is still a minimally regulated area. This minimal regulation devalues DNA evidence through the inconsistencies in these areas. The analysis methods of low template DNA lack a uniform method resulting in varying levels of reliability. Utilizing familial searches to assist in criminal investigations can potentially violate citizen rights. Such violations can also be found in the collection of DNA samples before an arrestee is tried or convicted. There are, however, regulations that could be applied universally to combat the problems that were discussed.


Scientific Excellence In The Forensic Science Community, Alice R. Isenberg, Cary T. Oien 2018 Federal Bureau of Investigation

Scientific Excellence In The Forensic Science Community, Alice R. Isenberg, Cary T. Oien

Fordham Law Review Online

This Article was prepared as a companion to the Fordham Law Review Reed Symposium on Forensic Expert Testimony, Daubert, and Rule 702, held on October 27, 2017, at Boston College School of Law. The Symposium took place under the sponsorship of the Judicial Conference Advisory Committee on Evidence Rules. For an overview of the Symposium, see Daniel J. Capra, Foreword: Symposium on Forensic Testimony, Daubert, and Rule 702, 86 Fordham L. Rev. 1459 (2018).


Scientific Validity And Error Rates: A Short Response To The Pcast Report, Ted Robert Hunt 2018 U.S. Department of Justice

Scientific Validity And Error Rates: A Short Response To The Pcast Report, Ted Robert Hunt

Fordham Law Review Online

This Article was prepared as a companion to the Fordham Law Review Reed Symposium on Forensic Expert Testimony, Daubert, and Rule 702, held on October 27, 2017, at Boston College School of Law. The Symposium took place under the sponsorship of the Judicial Conference Advisory Committee on Evidence Rules. For an overview of the Symposium, see Daniel J. Capra, Foreword: Symposium on Forensic Testimony, Daubert, and Rule 702, 86 Fordham L. Rev. 1459 (2018).


The Reliability Of The Adversarial System To Assess The Scientific Validity Of Forensic Evidence, Andrew D. Goldsmith 2018 U.S. Department of Justice

The Reliability Of The Adversarial System To Assess The Scientific Validity Of Forensic Evidence, Andrew D. Goldsmith

Fordham Law Review Online

This Article was prepared as a companion to the Fordham Law Review Reed Symposium on Forensic Expert Testimony, Daubert, and Rule 702, held on October 27, 2017, at Boston College School of Law. The Symposium took place under the sponsorship of the Judicial Conference Advisory Committee on Evidence Rules. For an overview of the Symposium, see Daniel J. Capra, Foreword: Symposium on Forensic Testimony, Daubert, and Rule 702, 86 Fordham L. Rev. 1459 (2018).


Federal Criminal Defendants Out Of The Frying Pan And Into The Fire? Brady And The United States Attorney’S Office, Vida B. Johnson 2018 The Catholic University of America, Columbus School of Law

Federal Criminal Defendants Out Of The Frying Pan And Into The Fire? Brady And The United States Attorney’S Office, Vida B. Johnson

Catholic University Law Review

The Supreme Court decided Brady v. Maryland in an effort to ensure fair trials and fair outcomes. The Brady decision requires prosecutors to disclose exculpatory evidence regarding guilt of the defendant. The Brady rule is meant to ensure innocent defendants are not convicted for crimes they did not commit. This rule should have unanimous support from both prosecution and defense teams, and yet Brady violations continue to occur within prosecutor offices around the country.

No offender highlights the short comings of the current system more so than the United States Attorney’s Office. Since the Brady decision, the USAO has ...


Review Of Privileged Documents In Trial And Deposition Preparation Of Witnesses In New York: When, If Ever, Will The Privilege Be Lost?, Michael J. Hutter 2018 Albany Law School

Review Of Privileged Documents In Trial And Deposition Preparation Of Witnesses In New York: When, If Ever, Will The Privilege Be Lost?, Michael J. Hutter

Pace Law Review

This article will examine New York’s refreshing recollection doctrine in the context of trial and deposition preparation of witnesses as to the consequences of the witness’s review of privileged writings. Initially, Part II will discuss Rule 612 of the Federal Rules of Evidence. The discussion will serve as the backdrop for the analysis of the above-mentioned issues under New York law. Part III will then examine the refreshing recollection doctrine as developed and applied to testifying witnesses at a trial or deposition by the New York courts. The examination will point out the doctrine’s key rules. Part ...


63. Children’S Conversational Memory Regarding A Minor Transgression And A Subsequent Interview., Stacia N. Stolzenberg, Kelly McWilliams, Thomas D. Lyon 2018 Arizona State University

63. Children’S Conversational Memory Regarding A Minor Transgression And A Subsequent Interview., Stacia N. Stolzenberg, Kelly Mcwilliams, Thomas D. Lyon

Thomas D. Lyon

Children’s memories for their conversations are commonly explored in child abuse cases. In two studies, we examined conversational recall in 154 4- to 9-year-old children’s reports of an interaction with a stranger, some of whom were complicit in a transgression and were admonished to keep it a secret. Immediately afterwards, all children were interviewed about their interaction. One week later, children were asked recall questions about their interaction with the stranger, their conversations with the stranger, and their conversations with the interviewer. Overall, interaction recall questions elicited few details about children’s conversations, whereas conversation recall questions were ...


Sniffing Out The Fourth Amendment: United States V. Place-Dog Sniffs-Ten Years Later, Hope Walker Hall 2018 University of Maine School of Law

Sniffing Out The Fourth Amendment: United States V. Place-Dog Sniffs-Ten Years Later, Hope Walker Hall

Maine Law Review

In the endless and seemingly futile government war against drugs, protections afforded by the Fourth Amendment of the United States Constitution may have fallen by the wayside as courts struggle to deal with drug offenders. The compelling government interest in controlling the influx of drugs all too often results in a judicial attitude that the ends justify the means. Judges can be reluctant to exclude evidence of drugs found in an unlawful search pursuant to the exclusionary rule, which provides that illegally obtained evidence may not be used at trial. The exclusion of drugs as evidence in drug cases often ...


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