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You Say Its Your Birthday... But Could You Prove It?, Cynthia Ford 2017 Alexander Blewett III School of Law at the University of Montana

You Say Its Your Birthday... But Could You Prove It?, Cynthia Ford

Faculty Journal Articles & Other Writings

No abstract provided.


Appendix: Conjunction-Problem V. Non-Conjunction-Problem Jurisdictions, David S. Schwartz, Elliott Sober 2017 College of William & Mary Law School

Appendix: Conjunction-Problem V. Non-Conjunction-Problem Jurisdictions, David S. Schwartz, Elliott Sober

William & Mary Law Review Online

This appendix presents the relevant data from our survey of jury instructions in support of the article in the print edition of the William & Mary Law Review. The Conjunction Problem and the Logic of Jury Findings (59 Wm. & Mary L. Rev. 619, 673-87 (2017))


The Conjunction Problem And The Logic Of Jury Findings, David S. Schwartz, Elliott Sober 2017 College of William & Mary Law School

The Conjunction Problem And The Logic Of Jury Findings, David S. Schwartz, Elliott Sober

William & Mary Law Review

For several decades, evidence theorists have puzzled over the following paradox, known as the “conjunction paradox” or “conjunction problem.” Probability theory appears to tell us that the probability of a conjunctive claim is the product resulting from multiplying the probabilities of its separate conjuncts. In a three element negligence case (breach of duty, causation, damages), a plaintiff who proves each element to a 0.6 probability will have proven her overall claim to a very low probability of 0.216. Either the plaintiff wins the verdict based on this low probability (if the jury focuses on elements), or the plaintiff ...


Unconstitutional Asymmetry Or A Rational Basis For Inconsistency? The Admissibility Of Medical Malpractice Prelitigation Screening Panel Findings Before And After Smith V. Hawthorne I And Ii, Matthew Asnault Morris 2017 University of Maine School of Law

Unconstitutional Asymmetry Or A Rational Basis For Inconsistency? The Admissibility Of Medical Malpractice Prelitigation Screening Panel Findings Before And After Smith V. Hawthorne I And Ii, Matthew Asnault Morris

Maine Law Review

Pre-litigation screening panels have been instrumental in streamlining medical malpractice litigation in the State of Maine by culling claims from superior court dockets, encouraging settlements, and providing findings of fact that could prove useful for a jury if the case proceeds to trial. In enacting one particular provision governing the confidentiality and the admissibility of the screening panel process, however, the legislature may have sacrificed the constitutional rights of medical malpractice claimants in favor of a lighter docket. Two recent cases before the Law Court, Smith I and II, have challenged the constitutionality of Maine’s unique statutory approach to ...


The Excited Utterance Paradox, Steven Baicker-McKee 2017 Seattle University School of Law

The Excited Utterance Paradox, Steven Baicker-Mckee

Seattle University Law Review

Based on nothing more than John Henry Wigmore’s personal belief that a witness under the throes of excitement is unable to fabricate an untruthful statement, the excited utterance exception allows parties to present out-of-court statements to the jury or judge without any of the safeguards the judicial system uses to promote honest and accurate testimony. This Article collects and examines much of the scientific evidence bearing on Wigmore’s premise and identifies two paradoxical conclusions that undermine the exception. First, the premise itself is unfounded; science absolutely does not support the notion that a witness is incapable of lying ...


Opportunity Lost, Opportunity Found: A Proposal To Amend Maine's Rule Of Evidence 404 To Admit "Prior Acts" Evidence In Domestic Violence Prosecutions, Tina Heather Nadeau 2017 University of Maine School of Law

Opportunity Lost, Opportunity Found: A Proposal To Amend Maine's Rule Of Evidence 404 To Admit "Prior Acts" Evidence In Domestic Violence Prosecutions, Tina Heather Nadeau

Maine Law Review

In 2008, thirty-one people were the victims of homicide in the state of Maine. Even more startling: nineteen of these homicides stemmed from domestic violence, possibly the largest number of domestic-violence-related killings in the state's history. This means that nearly 70 percent of Maine's homicides in 2008 were the result of domestic violence. Amendments made in 2007 (and implemented in February 2008) to Maine's Criminal Code have criminalized particular instances of domestic violence as “enhanced” crimes of violence. This allows prosecutors to consider “prior acts” of domestic abuse when deciding how to charge a criminal defendant accused ...


Racism, Juries, And Justice: Addressing Post-Verdict Juror Testimony Of Racial Prejudice During Deliberations, Andrew C. Helman 2017 University of Maine School of Law

Racism, Juries, And Justice: Addressing Post-Verdict Juror Testimony Of Racial Prejudice During Deliberations, Andrew C. Helman

Maine Law Review

From the beginning, race played a role in the prosecution of Christopher McCowen for the rape and murder of well-known fashion writer Christa Worthington. To some, the trial was even a spectacle and treated as “one of the most spectacular homicide cases in [Massachusetts'] history.” It quickly became a “made-for-cable-news tale of the heiress fashion writer and her lowly Portuguese fisherman lover, illicit sex, and an out-of-wedlock child,” all set in a seaside village. McCowen, an African-American garbage man, was right in the middle of it; police and prosecutors did not believe his assertions that he had consensual sex with ...


"Another Day" Has Dawned: The Maine Supreme Judicial Court Holds Laboratory Evidence Subject To The Confrontation Clause In State V. Mangos, Reid Hayton-Hull 2017 University of Maine School of Law

"Another Day" Has Dawned: The Maine Supreme Judicial Court Holds Laboratory Evidence Subject To The Confrontation Clause In State V. Mangos, Reid Hayton-Hull

Maine Law Review

The Sixth Amendment's Confrontation Clause guarantees criminal defendants the right to “confront witnesses against them.” Specifically, the Clause ensures a criminal defendant's right to confront witnesses who testify against him by the unique medium, or “crucible,” of cross-examination. Although federal and state rules of evidence prohibiting hearsay and the Confrontation Clause are designed to protect similar interests, whether or not admission of a piece of evidence violates a defendant's rights under the Confrontation Clause is a separate analysis than whether that same piece of evidence is admissible under a rule of evidence. In 2004, the United States ...


The Supreme Court's Long And Perhaps Unnecessary Struggle To Find A Standard Of Culpability To Regulate The Federal Exclusionary Remedy For Fourth/Fourteenth Amendment Violations, Melvyn H. Zarr 2017 University of Maine School of Law

The Supreme Court's Long And Perhaps Unnecessary Struggle To Find A Standard Of Culpability To Regulate The Federal Exclusionary Remedy For Fourth/Fourteenth Amendment Violations, Melvyn H. Zarr

Maine Law Review

On January 14, 2009, the United States Supreme Court decided Herring v. United States. In Herring, the defendant moved to suppress evidence that he alleged was seized as a result of an arrest that violated the Fourth and Fourteenth Amendments to the U.S. Constitution. The Supreme Court approved the decision below to deny suppression of the evidence. The decision set off a flurry of speculation that the Fourth Amendment exclusionary rule would not see its 100th birthday in 2014. A headline in the New York Times of January 31 declared: “Supreme Court Edging Closer to Repeal of Evidence Ruling ...


State V. Thurston: An Examination Of Assualt, Self-Defense, And Trespass In Relation To Domestic Violence, Megan E. Magoon 2017 University of Maine School of Law

State V. Thurston: An Examination Of Assualt, Self-Defense, And Trespass In Relation To Domestic Violence, Megan E. Magoon

Maine Law Review

Darrell Thurston and Suzanne Harmon were romantically involved on an intermittent basis for five years and had one child together. As a result of an altercation that took place at Harmon’s home in Sullivan, Maine, on September 27, 2007, between Thurston and Harmon, Thurston was charged with assault, criminal mischief, and obstructing report of crime or injury. The testimony during the trial illuminated the major factual differences between Thurston’s and Harmon’s accounts of the night the incident took place. Thurston requested a self defense jury instruction based on his version of what had happened, which the trial ...


Findings Of Fact Vs. Conclusions Of Law: How The Law Court Complicated The Case Of State V. Connor, Christopher S. Boulos 2017 University of Maine School of Law

Findings Of Fact Vs. Conclusions Of Law: How The Law Court Complicated The Case Of State V. Connor, Christopher S. Boulos

Maine Law Review

In State v. Connor, the Maine Supreme Judicial Court, sitting as the Law Court, upheld a trial judge’s denial of a motion to suppress evidence. Although the evidence presented in the suppression hearing seemed adequate to support the denial of the motion, the trial judge failed to clearly state his conclusions of law when denying the motion. However, the Law Court mistook the ambiguous conclusions of law as ambiguous findings of fact. Because the findings of fact were ambiguous in the court’s view, the majority and dissenting opinions spent the bulk of their energies discussing how the court ...


Enough Is Enough: The Law Court's Decision To Functionally Raise The "Reasonable Connection" Relevancy Standard In State V. Mitchell, Robert P. Hayes 2017 University of Maine School of Law

Enough Is Enough: The Law Court's Decision To Functionally Raise The "Reasonable Connection" Relevancy Standard In State V. Mitchell, Robert P. Hayes

Maine Law Review

In State v. Mitchell, the Maine Supreme Judicial Court, sitting as the Law Court, affirmed a jury verdict finding Thomas Mitchell guilty of a 1983 murder. In doing so, the Law Court examined two issues: First, whether the trial court “abused its discretion in excluding evidence of an alternative suspect”; and second, whether the trial court’s decision to admit evidence stemming from an autopsy performed two decades before the trial violated the Confrontation Clause of the United States Constitution. In reaching the alternative suspect decision, the Law Court held that the evidence proffered by Mitchell did not establish a ...


Discharging State V. Hurd: Maine Rule Of Evidence 606(B) Should Not Be Used To Prevent A Jury From Fully Reporting Its Verdict, William I. Olver 2017 University of Maine School of Law

Discharging State V. Hurd: Maine Rule Of Evidence 606(B) Should Not Be Used To Prevent A Jury From Fully Reporting Its Verdict, William I. Olver

Maine Law Review

In State v. Hurd, the Maine Supreme Judicial Court, sitting as the Law Court, was asked to decide if a jury may correct a mistake in the reporting of its verdict, mere moments after leaving the courtroom, once the court had declared that the jury was “discharged.” Ryan Hurd was charged with aggravated OUI, among other things, as a result of a crash involving Hurd’s car, which tragically resulted in one person losing his life. During the trial, because there was a dispute regarding whether Hurd was driving the car himself or asked a second person to drive the ...


The Prolonged Arm Of The Law: Fourth Amendment Principles, The Maynard Decision, And The Need For A New Warrant For Electronic Tracking, R. Reeve Wood III 2017 University of Maine School of Law

The Prolonged Arm Of The Law: Fourth Amendment Principles, The Maynard Decision, And The Need For A New Warrant For Electronic Tracking, R. Reeve Wood Iii

Maine Law Review

This article examines the decision in United States v. Maynard as well as the simultaneous emergence of a vocal set of magistrate judges advocating for Fourth Amendment protection for cell phone location information. It argues that, even if the Maynard rationale is widely adopted and the use of tracking devices is found to be a search, the Fourth Amendment principles of specificity and limited discretion on the part of government officers mean that the warrant frameworks currently in use will not provide adequate protection from the threat of government officers obtaining information for which they have not demonstrated a need ...


Trial By Numbers, Rebecca K. Helm, Valerie P. Hans, Valerie F. Reyna 2017 University of Exeter

Trial By Numbers, Rebecca K. Helm, Valerie P. Hans, Valerie F. Reyna

Cornell Journal of Law and Public Policy

Legal cases often require jurors to use numerical information. They may need to evaluate the meaning of specific numbers, such as the probability of match between a suspect and a DNA sample, or they may need to arrive at a sound numerical judgment, such as a money damage award. Thus, it is important to know how jurors understand numerical information, and what steps can be taken to increase juror comprehension and appropriate application of numerical evidence. In this Article, we examine two types of juror decisions involving numbers--decisions in which jurors must convert numbers into meaning (such as by understanding ...


Cross-Examination, College Sexual-Assault Adjudications, And The Opportunity For Tuning Up The "Greatest Legal Engine Ever Invented", H. Hunter Bruton 2017 Duke University School of Law, J.D. 2016

Cross-Examination, College Sexual-Assault Adjudications, And The Opportunity For Tuning Up The "Greatest Legal Engine Ever Invented", H. Hunter Bruton

Cornell Journal of Law and Public Policy

With its reputation as the "greatest legal engine ever invented" cross-examination rarely receives critical evaluation. This Article seeks to narrow that academic gap and offer pragmatic advice to policymakers and judges considering the in-the-trenches issues of cross-examination. Despite a great body of empirical and interdisciplinary work on cross-examination, legal scholarship often relegates discussion of cross-examination's benefits and costs to an errant footnote or a short paragraph. But cross-examination's efficacy should not be an afterthought or aside to doctrinal exegesis. Answers to the hardest questions about the presence, scope, and format of cross-examination rely on assumptions about the benefits ...


Barnett Vs. Corson. Libel—Truth Of Statement As A Defence—Malice—Act Of Apr. 11, 1901, Construed, 2017 Penn State Dickinson Law

Barnett Vs. Corson. Libel—Truth Of Statement As A Defence—Malice—Act Of Apr. 11, 1901, Construed

Dickinson Law Review

No abstract provided.


Avoid These Eleven Common Evidentiary Mistakes, John E. Rumel 2017 University of Idaho College of Law

Avoid These Eleven Common Evidentiary Mistakes, John E. Rumel

Faculty Scholarship

No abstract provided.


Exorcising The Clergy Privilege, Christine P. Bartholomew 2017 University at Buffalo School of Law

Exorcising The Clergy Privilege, Christine P. Bartholomew

Journal Articles

This Article debunks the empirical assumption behind the clergy privilege, the evidentiary rule shielding confidential communications with clergy. For over a century, scholars and the judiciary have assumed generous protection is essential to foster and encourage spiritual relationships. Accepting this premise, all fifty states and the District of Columbia have adopted virtually absolute privilege statutes. To test this assumption, this Article distills data from over 700 decisions — making it the first scholarship to analyze state clergy privilege jurisprudence exhaustively. This review finds a privilege in decline: courts have lost faith in the privilege. More surprisingly, though, so have clergy. For ...


The Dangers Of E-Discovery And The New Federal Rules Of Civil Procedure, Ryan J. Reeves 2017 University of Oklahoma College of Law

The Dangers Of E-Discovery And The New Federal Rules Of Civil Procedure, Ryan J. Reeves

Oklahoma Journal of Law and Technology

No abstract provided.


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