Hipaa As An Evidentiary Rule: An Analysis Of Miguel M. And Its Impact , 2013 Cleveland State University
Hipaa As An Evidentiary Rule: An Analysis Of Miguel M. And Its Impact , Jennifer Clark
Journal of Law and Health
In New York suppression of evidence is only appropriate where constitutional, statutory, or decisional authority mandates it, even if obtained by unethical or unlawful means. The courts have been split on how to apply this standard to evidence obtained in violation of HIPAA. In the case In re Miguel M., the New York Court of Appeals addressed this question for the first time, finding that such evidence should be suppressed. Because it is the first authoritative case in New York addressing the evidentiary impact of a HIPAA violation, it is tempting to read Miguel M. as creating a new evidentiary …
Book Review: Burden Of Proof: A Review Of Math On Trial, 2013 Vanderbilt University Law School
Book Review: Burden Of Proof: A Review Of Math On Trial, Paul H. Edelman
Vanderbilt Law School Faculty Publications
In Math on Trial, Leila Schneps and Coralie Col mez write about the abuse of mathematical argu ments in criminal trials and how these flawed arguments "have sent innocent people to prison" (p. ix). Indeed, people "saw their lives ripped apart by simple mathematical errors." The purpose of focusing on these errors, despite mathematics' "relatively rare use in trials" (p. x), is "that many of the common mathematical fallacies that pervade the public sphere are perfectly represented by these trials. Thus they serve as ideal illustrations of these errors and of the drastic consequences that faulty reasoning has on real …
Being Pragmatic About Forensic Linguistics, 2013 Vanderbilt University Law School
Being Pragmatic About Forensic Linguistics, Edward K. Cheng
Vanderbilt Law School Faculty Publications
This article aims to provide some legal context to the Authorship Attribution Workshop (“conference”). In particular, I want to offer some pragmatic observations on what courts will likely demand of forensic linguistics experts and tentatively suggest what the field should aspire to in both the short and long run.
Five Answers And Three Questions After United States V. Jones (2012), The Fourth Amendment Gps Case, 2013 FAMU College of Law
Five Answers And Three Questions After United States V. Jones (2012), The Fourth Amendment Gps Case, Benjamin Priester
Journal Publications
Each year, the United States Supreme Court's docket includes a range of "high profile" cases that attract attention not merely from law professors and others with an acquired fascination with the Court, but also from a general audience of law students, lawyers, scholars and commentators on American politics and society, as well as, occasionally, the public at large. During the 2011 Term, one of those cases was "the GPS case," formally known as United States v. Jones.' Media coverage of the case spread far beyond the legal blogosphere to a wide variety of mainstream and popular sources, both in print …
Irreparable Misidentifications And Reliability: Reassessing The Threshold For Admissibility Of Eyewitness Identification, 2013 Villanova University Charles Widger School of Law
Irreparable Misidentifications And Reliability: Reassessing The Threshold For Admissibility Of Eyewitness Identification, Jules Epstein
Villanova Law Review
No abstract provided.
Junk Science And The Execution Of An Innocent Man, 2013 Case Western Reserve University School of Law
Junk Science And The Execution Of An Innocent Man, Paul C. Giannelli
Faculty Publications
Cameron Todd Willingham was tried and executed for the arson deaths of his three little girls. The expert testimony offered against him to establish arson was junk science.
The case has since become infamous, the subject of an award-winning New Yorker article, numerous newspaper accounts, and several television shows. It also became enmeshed in the death penalty debate and the reelection of Texas Governor Rick Perry, who refused to grant a stay of execution after a noted arson expert submitted a report debunking the “science” offered at Willingham’s trial. The governor then attempted to derail an investigation by the Texas …
Fifty: Shades Of Grey--Uncertainty About Extrinsic Evidence And Parol Evidence After All These Ucc Years, 2013 University of Richmond
Fifty: Shades Of Grey--Uncertainty About Extrinsic Evidence And Parol Evidence After All These Ucc Years, David G. Epstein
Law Faculty Publications
Lawyers and judges have been working with the Uniform Commercial Code for about fifty years. Most states adopted the Uniform Commercial Code between 1960 and 1965.
Notwithstanding these years of experience and the importance of certainty to parties entering into commercial transactions, there is still considerable confusion over the use of extrinsic evidence, parol evidence and the parol evidence rule in answering the questions (1) what are the terms of a contract for the sale of goods and (2) what do those contract terms mean. No "black and white rules"-just various "shades of grey."
This essay explores the reasons for …
The Promise And Pitfalls Of Empiricism In Educational Equality Jurisprudence, 2013 American University Washington College of Law
The Promise And Pitfalls Of Empiricism In Educational Equality Jurisprudence, Lia Epperson
Articles in Law Reviews & Other Academic Journals
No abstract provided.
The Enduring Quality Of An Alluring Mistake: Why One Person’S Intentions Cannot—And Never Could—Be Evidence Of Another Person’S Conduct, 2013 California Western School of Law
The Enduring Quality Of An Alluring Mistake: Why One Person’S Intentions Cannot—And Never Could—Be Evidence Of Another Person’S Conduct, Kenneth S. Klein
Faculty Scholarship
For over a century, some courts—relying upon the landmark Supreme Court opinion in Mutual Life Insurance Co. of New York v. Hillmon— have admitted one person’s intentions as evidence of what another person did. But Hillmon is wrong. The Supreme Court made an analytical error in its analysis. This Article seeks to expose and explain the error and therefore demonstrate that the state of mind exception to the general rule of exclusion of hearsay evidence should never support admission of one person’s stated intentions as evidence of what another person later did.
The Supreme Court Screws Up The Science: There Is No Abusive Head Trauma/Shaken Baby Syndrome “Scientific” Controversy, 2013 Florida International University College of Law
The Supreme Court Screws Up The Science: There Is No Abusive Head Trauma/Shaken Baby Syndrome “Scientific” Controversy, Joëlle Anne Moreno, Brian Holmgren
Utah Law Review
Even if it is not true that law school is the consolation prize for those whose freshman biology grades make medical school impossible, judges, law professors, and lawyers are not (as a general rule) scientists. But they increasingly shape our understanding of scientific ideas by determining how law interprets and applies scientific information and by ensuring that bad science does not create bad law. As law becomes more science-dependent and expert witnesses play a greater role in a wide range of criminal and civil cases, there has been a concomitant increase in the need to ensure that the expert testimony …
Empirical Fallacies Of Evidence Law: A Critical Look At The Admission Of Prior Sex Crimes, 2013 University of Miami School of Law
Empirical Fallacies Of Evidence Law: A Critical Look At The Admission Of Prior Sex Crimes, Tamara Rice Lave, Aviva Orenstein
Articles
In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413-414 allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity to commit the sex crime charged. As reflected in their legislative history, these propensity rules rest on the assumption that sexual predators represent a small number of highly deviant and recidivistic offenders. This view of who commits sex crimes justified the passage of the sex-crime propensity rules and continues to influence their continuing adoption among the states and the way courts assess such evidence under Rule 403. In depending on …
Admissions Online: Statements Of A Party Opponent In The Internet Age, 2013 University of Oklahoma College of Law
Admissions Online: Statements Of A Party Opponent In The Internet Age, Dylan Charles Edwards
Oklahoma Law Review
No abstract provided.
The Curious Case Of Differing Literary Emphases: The Contrast Between The Use Of Scientific Publications At Pretrial Daubert Hearings And At Trial, 2013 University of Georgia School of Law
The Curious Case Of Differing Literary Emphases: The Contrast Between The Use Of Scientific Publications At Pretrial Daubert Hearings And At Trial, Ronald L. Carlson
Georgia Law Review
An expert's testimony at a pretrial Daubert hearing is
frequently supported by professional writings. Technical
literature is employed by litigants to buttress controversial
scientific theories and research. By way of example, a
plaintiff's attorney may urge that an alleged toxic
substance caused his or her client's cancer. The objective
in providing the court with learned texts and articles is to
convince the trial judge to admit expert opinions that
support causation. This Article reports appellate opinions
that strongly encourage production of professional
writings in the pretrial context. Indeed, in several cases
the absence of published research resulted in defeat of …
Do Sexually Violent Predator Laws Violate Double Jeopardy Or Substantive Due Process? An Empirical Inquiry, 2013 University of Miami School of Law
Do Sexually Violent Predator Laws Violate Double Jeopardy Or Substantive Due Process? An Empirical Inquiry, Tamara Rice Lave, Justin Mccrary
Articles
No abstract provided.
The Psychotherapist Privilege: Privacy And "Garden Variety" Emotional Distress, 2013 University of Washington School of Law
The Psychotherapist Privilege: Privacy And "Garden Variety" Emotional Distress, Helen A. Anderson
Articles
Surprisingly, there is no clear authority on implied waiver of the psychotherapist-patient privilege in federal courts. There is binding authority from the Supreme Court establishing the privilege, but the bold outlines of that decision have been blurred in the confusion about implied waiver.
This Article explores one aspect of that confusion: the popular "garden variety" approach, which favors plaintiffs with what the court deems garden variety, or "normal," mental distress. Although a few other scholars have written on the confusion in the law of implied waiver, this is the first article to look closely at the garden variety approach, which …
Review Of Recent Studies And Issues Regarding The P300-Based Complex Trial Protocol For Detection Of Concealed Information, 2013 Northwestern Pritzker School of Law
Review Of Recent Studies And Issues Regarding The P300-Based Complex Trial Protocol For Detection Of Concealed Information, J. Peter Rosenfeld, Xiaoqing Hu, Elena Labkovsky, John B. Meixner Jr., Michael R. Winograd
Scholarly Works
In this review, the evolution of new P300-based protocols for detection of concealed information is summarized. The P300-based complex trial protocol (CTP) is described as one such countermeasure (CM)-resistant protocol. Recent lapses in diagnostic accuracy (from 90% to 75%) with CTPs applied to mock crime protocols are summarized, as well as recent enhancements to the CTP which have restored accuracy. These enhancements include 1) use of performance feedback during testing, 2) use of other ERP components such as N200 in diagnosis, 3) use of auxiliary tests, including the autobiographical implicit association test, as leading to restored diagnostic accuracy, and 4) …
Shields, Swords, And Fulfilling The Exclusionary Rule's Deterrent Function, 2013 Fordham University School of Law
Shields, Swords, And Fulfilling The Exclusionary Rule's Deterrent Function, James L. Kainen
Faculty Scholarship
When the exclusionary rule prevents the prosecution from using evidence necessary to bring a case to trial, the rule deters illegality while raising no issue about how it might interfere with usual factfinding processes. However, when a case proceeds to trial although a court has suppressed some prosecution evidence, courts need to decide the extent to which the defendant may benefit from the absence of the proof without opening the door to its admission. The exclusion of any relevant evidence raises similar questions, and courts often say the exclusionary rule is a shield from suppressed evidence, but not a sword …
The Evidence Of Things Not Seen: Non-Matches As Evidence Of Innocence, 2013 Columbia Law School
The Evidence Of Things Not Seen: Non-Matches As Evidence Of Innocence, James S. Liebman, Shawn Blackburn, David Mattern, Jonathan Waisnor
Faculty Scholarship
Exonerations famously reveal that eyewitness identifications, confessions, and other “direct” evidence can be false, though police and jurors greatly value them. Exonerations also reveal that “circumstantial” non-matches between culprit and defendant can be telling evidence of innocence (e.g., an aspect of an eyewitness’s description of the perpetrator that does not match the suspect she identifies in a lineup, or a loose button found at the crime scene that does not match the suspect’s clothes). Although non-matching clues often are easily explained away, making them seem uninteresting, they frequently turn out to match the real culprit when exonerations reveal that the …
Narrative, Truth, And Trial, 2013 Duke Law School
Narrative, Truth, And Trial, Lisa Kern Griffin
Faculty Scholarship
This Article critically evaluates the relationship between constructing narratives and achieving factual accuracy at trials. The story model of adjudication— according to which jurors process testimony by organizing it into competing narratives—has gained wide acceptance in the descriptive work of social scientists and currency in the courtroom, but it has received little close attention from legal theorists. The Article begins with a discussion of the meaning of narrative and its function at trial. It argues that the story model is incomplete, and that “legal truth” emerges from a hybrid of narrative and other means of inquiry. As a result, trials …
Trial By Preview, 2013 Columbia Law School
Trial By Preview, Bert I. Huang
Faculty Scholarship
It has been an obsession of modern civil procedure to design ways to reveal more before trial about what will happen during trial. Litigants today, as a matter of course, are made to preview the evidence they will use. This practice is celebrated because standard theory says it should induce the parties to settle; why incur the expenses of trial, if everyone knows what will happen? Rarely noted, however, is one complication: The impact of previewing the evidence is intertwined with how well the parties know their future audience-that is, the judge or the jury who will be the finder …