Ask Versus Tell: Potential Confusion When Child Witnesses Are Questioned About Conversastions, 2018 Arizona State University
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 ...
Federal Rule 26(A)(2) Expert Witness Disclosures: Strategies For Composing And Attacking Expert Disclosures, 2018 Stites & Harbison, PLLC
Federal Rule 26(A)(2) Expert Witness Disclosures: Strategies For Composing And Attacking Expert Disclosures, Douglas B. Bates, Chelsea R. Stanley, James L. Burt Iii
Journal of Air Law and Commerce
Federal Rule of Civil Procedure 26(A)(2) governs disclosure of expert testimony. The rule purports to create a clear delineation between experts that must provide a written report and those that do not. The rule then outlines the disclosure requirements that must be satisfied as to each type of expert. This article focuses on the implications of Rule 26(A)(2) in practice, with an emphasis on the field of aviation litigation. The article begins by discussing the general difference between non-retained experts and retained experts and the disclosure requirements associated with each. The article then progresses into a ...
Fleeing The Rat’S Nest: Title Vii Jurisprudence After Ortiz V. Werner Enterprises, Inc., 2018 Brooklyn Law School
Fleeing The Rat’S Nest: Title Vii Jurisprudence After Ortiz V. Werner Enterprises, Inc., Zachary J. Strongin
Brooklyn Law Review
In 2016, the Seventh Circuit issued an opinion that may be a harbinger for an important shift in the federal judiciary’s long-standing employment discrimination jurisprudence. In Ortiz v. Werner Enterprises, Judge Easterbrook reiterated the frustration with the existing “rat’s nest” of tests and standards used in Title VII discrimination and retaliation claims. The note contains two overarching arguments. First, the Supreme Court’s employment discrimination and “rat’s nest” of tests and standards has led to an untenable situation in which federal district courts apply different standards at different stages of litigations. This in turn has caused confusion ...
How Daubert And Its Progeny Have Failed Criminalistics Evidence And A Few Things The Judiciary Could Do About It, David H. Kaye
A recent report of the President’s Council of Advisors on Science and Technology questioned the validity of several types of criminalistics identification evidence and recommended “a best practices manual and an Advisory Committee note, providing guidance to Federal judges concerning the admissibility under Rule 702 of expert testimony based on forensic feature-comparison methods.” This article supplies information on why and how judicial bodies concerned with possible rules changes—and courts applying the current rules—can improve their regulation of criminalistics identification evidence. First, it describes how courts have failed to faithfully apply Daubert v. Merrell Dow Pharmaceutical’s criteria ...
Firearm-Mark Evidence: Looking Back And Looking Ahead, 2018 Penn State Law
Firearm-Mark Evidence: Looking Back And Looking Ahead, David H. Kaye
This article, written as a contribution to a festschrift for Paul Giannelli, surveys the development of the law on one type of feature-matching evidence that repeatedly attracted Professor Giannelli’s attention — “firearm-mark evidence.” By inspecting toolmarks on bullets or spent cartridge cases, firearms examiners can supply valuable information on whether a particular gun fired the ammunition in question. But the limits on this information have not always been respected in court, and a growing number of opinions have tried to address this fact.
The article explains how the courts have moved from a position of skepticism of the ability of ...
Waiver, Work Product, And Worry: A Case For Clarifying The Waiver Doctrine In Oklahoma, 2018 University of Oklahoma College of Law
Waiver, Work Product, And Worry: A Case For Clarifying The Waiver Doctrine In Oklahoma, Mitchell B. Bryant
Oklahoma Law Review
No abstract provided.
Adopted Statements In The Digital Age: Hearsay Responses To Social Media "Likes", 2018 Campbell University School of Law
Adopted Statements In The Digital Age: Hearsay Responses To Social Media "Likes", Daniel R. Tilly
Social media users collectively register billions of "likes" each and every day to the endless flow of content posted on social networking websites. What an individual user actually intends by the quick click of the "like" button may vary widely. Perhaps she is conveying acknowledgement but not agreement. Maybe he is expressing support but not acceptance. Within the social media context, short-form clicks register the same response. Yet they may be intended to convey sorrow, joy, support, agreement, acknowledgement, humor, or a multitude of other emotions. What a user actually intends by social media "likes" depends entirely on the person ...
Character Flaws, 2018 University of Colorado Law School
Character Flaws, Frederic Bloom
Character evidence doctrine is infected by error. It is riddled with a set of pervasive mistakes and misconceptions—a group of gaffes and glitches involving Rule 404(b)’s “other purposes” (like intent, absence of accident, and plan) that might be called “character flaws.” This Essay identifies and investigates those flaws through the lens of a single, sensational case: United States v. Henthorn. By itself, Henthorn is a tale worth telling—an astonishing story of danger and deceit, malice and murder. But Henthorn is more than just a stunning story. It is also an example and an opportunity, a chance ...
Deconstructing The Epistemic Challenges To Mass Atrocity Prosecutions, 2018 William & Mary Law School
Deconstructing The Epistemic Challenges To Mass Atrocity Prosecutions, Nancy Amoury Combs
Mass atrocity prosecutions are credited with advancing a host of praiseworthy objectives. They are believed to impose much-needed retribution, deter future atrocities, and affirm the rule of law in previously lawless societies. However, mass atrocity prosecutions will accomplish none of these laudable ends unless they are able to find accurate facts. Convicting the appropriate individuals of the appropriate crimes is a necessary and foundational condition for the success of mass atrocity prosecutions. But it is a condition that is frequently difficult to meet, as mass atrocity prosecutions are often bedeviled by pervasive and invidious obstacles to accurate fact-finding. This Article ...
The "Primary Purpose" Of Children's Advocacy Centers: How Ohio V. Clark Revolutionized Children's Hearsay, 2018 J.D. 2018, Roger Williams University School of Law
The "Primary Purpose" Of Children's Advocacy Centers: How Ohio V. Clark Revolutionized Children's Hearsay, Andrew Lentz
Roger Williams University Law Review
No abstract provided.
Common Sense On Standards Of Proof, 2018 Cornell Law School
Common Sense On Standards Of Proof, Kevin M. Clermont
Cornell Law Faculty Publications
The law speaks clearly on the standards of proof, but listeners often misunderstand its words. This article tries, with some common sense and a modicum of multivalent logic, to explain how the law expects its standards to be applied, and then to show how the law thereby avoids such complications as the conjunction paradox.
First, in accordance with belief function theory, the factfinder should start at zero belief. Given imperfect evidence, the factfinder will end up retaining a fair amount of uncommitted belief. As evidence comes in, though, the factfinder will form a belief in the truth of the disputed ...
The Logic And Limits Of Event Studies In Securities Fraud Litigation, 2018 University of Pennsylvania Law School
The Logic And Limits Of Event Studies In Securities Fraud Litigation, Jill E. Fisch, Jonah B. Gelbach, Jonathan Klick
Faculty Scholarship at Penn Law
Event studies have become increasingly important in securities fraud litigation after the Supreme Court’s decision in Halliburton II. Litigants have used event study methodology, which empirically analyzes the relationship between the disclosure of corporate information and the issuer’s stock price, to provide evidence in the evaluation of key elements of federal securities fraud, including materiality, reliance, causation, and damages. As the use of event studies grows and they increasingly serve a gatekeeping function in determining whether litigation will proceed beyond a preliminary stage, it will be critical for courts to use them correctly.
This Article explores an array ...
Forensics, Chicken Soup, And Meteorites: A Tribute To Michael Risinger, 2018 Vanderbilt University Law School
Forensics, Chicken Soup, And Meteorites: A Tribute To Michael Risinger, Edward K. Cheng
Vanderbilt Law School Faculty Publications
Michael Risinger's scholarship has had a profound impact on our field. And while his work has run the gamut in evidence law, I think it is clear that Michael's true love has always been expert evidence, and more specifically, forensics. So let me take a moment to revisit "an oldie but a goodie": his 1989 article entitled Exorcism of Ignorance as a Proxy for Rational Knowledge: The Lessons of Handwriting Identification "Expertise," published in the University of Pennsylvania Law Review, and co-authored with Mark Denbeaux and Michael Saks.' For those of you who have not read the article ...
Whether The Bright-Line Cut-Off Rule And The Adversarial Expert Explanation Of Adaptive Functioning Exacerbates Capital Juror Comprehension Of The Intellectual Disability, 2018 Touro College Jacob D. Fuchsberg Law Center
Whether The Bright-Line Cut-Off Rule And The Adversarial Expert Explanation Of Adaptive Functioning Exacerbates Capital Juror Comprehension Of The Intellectual Disability, Leona Deborah Jochnowitz
Touro Law Review
No abstract provided.
Diamonds In The Rough: A Review Of Tiffany V. Costco And A Call To Apply Daubert To The Admissibility Of Consumer Survey Evidence In Trademark Infringement Litigation, 2018 Touro College Jacob D. Fuchsberg Law Center
Diamonds In The Rough: A Review Of Tiffany V. Costco And A Call To Apply Daubert To The Admissibility Of Consumer Survey Evidence In Trademark Infringement Litigation, Michael J. Borger
Touro Law Review
No abstract provided.
The At&T/Time Warner Merger: Judge Leon Garbled Professor Nash, 2018 Georgetown University Law Center
The At&T/Time Warner Merger: Judge Leon Garbled Professor Nash, Steven C. Salop
Georgetown Law Faculty Publications and Other Works
This short article forthcoming in the Journal of Antitrust Enforcement offers comments on Judge Leon’s opinion in the AT&T/Time Warner vertical merger litigation. It provides out a critical analysis of the court’s skeptical treatment of the Nash bargaining theory that formed the basis of the DOJ’s complaint and the economic errors he made. The article also raises questions about whether Judge Leon’s economic errors in analyzing the bargaining model might have affected his interpretation of the evidence. The article also offers some critical comments about the DOJ’s treatment of efficiencies from the elimination ...
Touch Dna And Chemical Analysis Of Skin Trace Evidence: Protecting Privacy While Advancing Investigations, 2018 The Catholic University of America, Columbus School of Law
Touch Dna And Chemical Analysis Of Skin Trace Evidence: Protecting Privacy While Advancing Investigations, Mary Graw Leary
Scholarly Articles and Other Contributions
Forensic science transforms criminal investigations by resolving previously unsolvable cases and bringing an increased sense of justice to communities. This application of scientific disciplines to legal questions aids investigators in solving crimes. While many sciences can be utilized—such as physics (pattern evidence), chemistry (toxicology), or biology (cause of death), to name a few—two aspects of scientific advancement have played an outsized role in responding to crime. Trace evidence analysis—specifically, deoxyribonucleic acid (DNA) analysis—is an essential component to an effective and accurate criminal justice system. DNA evidence has emerged as a powerful tool to identify perpetrators of ...
Debunked, Discredited, But Still Defended: Why Prosecutors Resist Challenges To Bad Science And Some Suggestions For Crafting Remedies For Wrongful Conviction Based On Changed Science, 2018 Indiana University Maurer School of Law
Debunked, Discredited, But Still Defended: Why Prosecutors Resist Challenges To Bad Science And Some Suggestions For Crafting Remedies For Wrongful Conviction Based On Changed Science, Aviva A. Orenstein
Articles by Maurer Faculty
Flawed science has significantly contributed to wrongful convictions. Courts struggle with how to address such convictions when the mistaken science (such as bogus expert claims about the differences between accidental fires and intentionally set ones) significantly affected the guilty verdict but there is no DNA evidence to directly exonerate the accused. My short piece explores why prosecutors often defend bad science. Mistakes in science tend to serve the prosecution, but there are other more subtle factors that explain prosecutors’ reluctance to address flawed forensic testimony. Such reluctance may arise from fondness for the status quo and a resistance to subverting ...
Character Assassination: Amending Federal Rule Of Evidence 404(B) To Protect Criminal Defendants, 2017 University of Oklahoma College of Law
Character Assassination: Amending Federal Rule Of Evidence 404(B) To Protect Criminal Defendants, Liesa L. Richter
Liesa L. Richter
Goldilocks And The Rule 803 Hearsay Exceptions, 2017 University of Oklahoma College of Law