Digital Commons Network^™

Ignorance Of The Rules Of Omission: An Essay On Privilege Law, Rebecca Wexler

Vanderbilt Law Review

Evidentiary privileges--that is, rules that empower people to withhold evidence from legal proceedings-are one thread in a mesh of secrecy powers that control the flow of information in society. They are part and parcel of the laws, rules, norms, and practicalities that determine who can conceal and who can compel, that allocate power based on access to knowledge and its opposite. Despite the significance of privileges and of the harms that they produce, our understanding of this body of law has profound gaps.5 The questions posed above turn out to be more challenging than they might at first appear. Notwithstanding …

Models And Limits Of Federal Rule Of Evidence 609 Reform, Anna Roberts

Vanderbilt Law Review

A Symposium focusing on Reimagining the Rules of Evidence at 50 makes one turn to the federal rule that governs one's designated topic--prior conviction impeachment--and think about how that rule could be altered. Part I of this Article does just that, drawing inspiration from state models to propose ways in which the multiple criticisms of the existing federal rule might be addressed. But recent scholarship by Alice Ristroph, focusing on ways in which criminal law scholars talk to their students about "the rules," gives one pause. Ristroph identifies a pedagogical tendency to erase the many humans who turn rules into …

Race, Gatekeeping, Magical Words, And The Rules Of Evidence, Bennet Capers --

Vanderbilt Law Review

Although it might not be apparent from the Federal Rules of Evidence themselves, or the common law that preceded them, there is a long history in this country of tying evidence-what is deemed relevant, what is deemed trustworthy-to race. And increasingly, evidence scholars are excavating that history. Indeed, not just excavating, but showing how that history has racial effects that continue into the present.

One area that has escaped racialized scrutiny-at least of the type I am interested in-is that of expert testimony. Even in my own work on race and evidence, I have avoided discussion of expert testimony. In …

How Machines Reveal The Gaps In Evidence Law, Andrea Roth --

Vanderbilt Law Review

This Symposium asks participants to reimagine the Federal Rules of Evidence on the fiftieth anniversary of their effective date. As part of that conversation, this short Essay argues that the Rules of Evidence contain critical gaps in terms of empowering litigants to meaningfully challenge the credibility of evidence. Specifically, the increasing use of machine-generated proof has made clear that evidence law does not offer sufficiently meaningful opportunities to scrutinize conveyances of information whose flaws cannot be exposed through cross-examination. These underscrutinized conveyances include machine-generated output, information conveyed by animals, and statements made by absent hearsay declarants. Even for some witnesses …

The Federal Rules Of Emojis: A Proposed Framework For Handling Emoji Evidence In Trial Contexts, Marilyn Hurzeler

Fordham Law Review

Emojis are 3,633 ubiquitous symbols-as-communication used by 92 percent of internet users. These tiny yet influential pieces of evidence hold the power to complete, enhance, mitigate, and flip the meaning of surrounding text. Consequently, court references to emojis have grown exponentially in the last five years. As emojis have become a cornerstone of digital discourse, courts have increasingly encountered the significant impact of emojis on parties’ legal claims. A guide for handling of emoji evidence under the Federal Rules of Evidence (FRE), therefore, is important to afford proper treatment to this relatively new evidentiary form.

This Note discusses how the …

Forensic Evidence And Rule 3.8: What Does The Use Of Bite Mark Evidence Tell Us About Prosecutorial Ethics?, Brendan Clemente

Duke Law & Technology Review

Rule 3.8 of the ABA’s Model Rules of Professional Conduct should include rules that specifically address unethical uses of forensic evidence in criminal prosecutions. Forensic evidence is common in criminal trials. But the traditional rules of ethics do not effectively address the use of forensic evidence. Rule 3.8 should include a rule requiring prompt and full disclosure of information about expert witnesses whom the prosecutor plans to call and all relevant information that the prosecutor knows about a forensic method’s application in the case. Rule 3.8 should also include a requirement that the prosecutor use reasonable diligence to learn about …

Unreliable Forensic Science, Sarah Ciuffetelli

Quest

The Effectiveness of Forensic Science

Research in progress for CRIJ 1301: Introduction to Criminal Justice

Faculty Mentor: Stefanie LeMaire

Sarah Ciuffetelli uses critical thinking to examine the effectiveness of forensic sciences during criminal investigations. The assignment requires students to find the most prominent scholarly research in forensic sciences and discuss its efficacy. Further, the research leads students to discuss the potential limitations investigators must consider when examining forensic evidence. Lastly, students find at least six scholarly sources to provide an in-depth analysis of the research.

Sarah begins by discussing the history of forensic science and the ever-increasing technology used in …

The History Of Forensic-Science Evidence In Criminal Trials And The Role Of Early “Success” In Establishing Its Putative Reliability, Carrie Leonetti

St. Mary's Law Journal

This Article posits the history of forensic-science evidence plays a significant role in the unquestioning manner of its modern acceptance. It traces early high-profile forensic science “successes” and the public reactions to them. It argues the public perception of the “advances” of forensic science continues to play a role in the lack of scrutiny given to these disciplines in admissibility decisions today. It concludes, when it comes to forensic science, history should play a different role by serving as a critical warning rather than a congratulatory buttress.

Revealing Realities Hidden Behind The Curtain Of Subjective Syndromes: The Seventh Circuit Changes The Narrative Around Expert Evidence On Battered Woman Syndrome In United States V. Dingwall, Keane Brazda

Villanova Law Review (1956 - )

No abstract provided.

Race Ethics: Colorblind Formalism And Color-Coded Pragmatism In Lawyer Regulation, Anthony V. Alfieri

Articles

The recent, high-profile civil and criminal trials held in the aftermath of the George Floyd and Ahmaud Arbery murders, the Kyle Rittenhouse killings, and the Charlottesville "Unite the Right" Rally violence renew debate over race, representation, and ethics in the U.S. civil and criminal justice systems. For civil rights lawyers, prosecutors, and criminal defense attorneys, neither the progress of post-war civil rights movements and criminal justice reform campaigns nor the advance of Critical Race Theory and social movement scholarship have resolved the debate over the use of race in pretrial, trial, and appellate advocacy, and in the lawyering process more …

Fact-Finding Without Rules: Habermas's Communicative Rationality As A Framework For Judicial Assessments Of Digital Open-Source Information, Matthew Gillett

Michigan Journal of International Law

Jürgen Habermas’s theory of “communicative rationality” (also known as “communicative action”) provides a promising conceptual apparatus through which to justify and validate the International Criminal Court’s consideration of the emerging phenomenon of digital open-source information. Because of its process-based and inclusive qualities, Habermas’s communicative rationality is particularly apposite for the dynamic nature of digital open-source information and the heterogenous range of actors and institutions which have relevant experiences and skills to contribute to the generation of norms and determinations regarding its role before the Court. This is important, as the International Criminal Court’s procedural framework is largely silent on digital …

How To Alleviate The Repercussions Of Wrongful Convictions: Holistically Righting The Wrongs Of Inadequate Compensation Statutes, Marissa Cohen

Cardozo Law Review

No abstract provided.

An Archival Exploration Of Lineup Fairness In Eyewitness Research, Phoebe Kane

Student Theses

In this study, we were interested in investigating if the Betaface facial analysis program reliably predicts eyewitness lineup choosing behavior. If face analysis programs are as good or better than human judgements, using them could be a reliably more efficient, reproducible, and equitable basis for choosing fillers and evaluating lineup fairness. We collected 27 datasets from eyewitness researchers and analyzed them to produce Betaface similarity values, which measured the similarity between all the photos in each array. We compared these Betaface data to the identification data from the original studies. Our analysis of the arrays via Betaface yielded data with …

Lineups, Showups, And Simultaneous Showups: A Replication And Extension Of The Red Box Study, Lana Dranow

Psychological Science Undergraduate Honors Theses

The reliability of eyewitness identification procedures and the following testimony in a court of law has been highly contested in recent decades. There are two main types of identification procedures most commonly used by law enforcement officers in the United States: lineups and showups. Prior research has indicated that lineups consistently yield the most accurate identifications due to the presence of fillers (plausible alternatives to a suspect) alongside the suspect when compared to showups. This is commonly attributed to two main theories- filler siphoning theory and diagnostic feature detection theory. In a study conducted by Colloff and Wixted (2020), researchers …

The Contribution Of Forensic Science To Wrongful Convictions: An Analysis Of Forensic Expert Testimony, Parker Gunter

Honors Theses

The purpose of this study was to explore the progression and potential improvement of forensic science in court. Errors is forensic science have contributed to the problem of wrongful convictions, but research surrounding forensic expert testimony over the last decade is lacking. The way that an expert explains evidence in court is important to gain a broader understanding for how forensic science may fail. The testimonies of forensic experts were analyzed both quantitatively and qualitatively to further understand the shortcomings in the field at the end of its journey through the criminal justice system. The results showed that the testimonies …

Defendants In The Dark: How The Jencks Act Is Incompatible With The Adversarial Legal System, Eli J. Esakoff

Journal of Law and Policy

The Jencks Act is a McCarthy Era law that prohibits compelling the disclosure of any statement made by a government witness in a federal criminal prosecution until after the witness has testified at trial. Passed in 1957 in response to the Supreme Court’s decision in Jencks v. United States, the Act’s life in Congress was “nasty, brutish, and short.” In prosecuting its anti-communist “witch hunts” of the era, the government strove to keep hidden as much of its case against those accused as possible. Against this backdrop of the desire for secrecy, the Supreme Court held that a criminal defendant …

Some Legal And Practical Challenges In The Investigation Of Cybercrime, Ritz Carr

Cybersecurity Undergraduate Research Showcase

According to the Internet Crime Complaint Center (IC3), in 2021, the United States lost around $6.9 billion to cybercrime. In 2022, that number grew to over $10.2 billion (IC3, 2022). In one of many efforts to combat cybercrimes, at least 40 states “introduced or considered more than 250 bills or resolutions that deal significantly with cybersecurity” with 24 states officially enacting a total of 41 bills (National Conference on State Legislatures, 2022).

The world of cybercrime evolves each day. Nevertheless, challenges arise when we investigate and prosecute cybercrime, which will be examined in the following collection of essays that highlight …

An Examination Of U.S. And U.K. Procedures Governing Sexual Misconduct Investigations In Universities, Marc Siegel

Cardozo International & Comparative Law Review

The note critiques the lack of a unified regulatory framework for addressing sexual misconduct in U.K. universities, contrasting it with the structured, albeit controversial, Title IX system in the U.S. It argues that the U.K.'s voluntary approach has led to inconsistent, unjust outcomes and advocates for the adoption of a comprehensive regulatory regime similar to Title IX to ensure fairness, accountability, and consistency in handling such cases.

“Hey, Google, What Are The Elements Of Homicide By Vehicle In The First Degree?”: The Supreme Court Of Georgia Reinforces The Prohibition On Extrajudicial Information Considered By A Jury In Criminal Trials, Savannah Hall

Mercer Law Review

In a criminal trial, the presentation of evidence and the instruction of law to the jury are of crucial importance to ensure that a person is only convicted based upon sound understandings of the factual and legal framework under which they were charged. The complexities surrounding the rules of evidence are in place so that jurors are only allowed to consider the facts and testimony permissible under the rules of evidence, meaning it is of utmost importance for the jury to consider solely those things which a judge deems admissible, relevant, and helpful to understanding the case. However, given the …

The Long Road To Justice: Why State Courts Should Lower The Evidentiary Burden For Proving Racialized Traffic Stops And Adopt The Exclusionary Rule As A Remedy For Equal Protection Violations, Abby M. Fink

Washington Journal of Social & Environmental Justice

Racist and brutal policing continues to pervade the criminal legal system. Black and brown people who interact with the police consistently face unequal targeting and treatment. Routine traffic stops are especially dangerous and harmful and can lead to death. Under Whren, a police officer’s racist motivations or implicit bias towards a driver do not influence the constitutionality of a traffic stop. An officer only needs to show there was probable cause to believe a traffic stop occurred. Although the unconstitutionality of pre-textual traffic stops has been widely explored since Whren, both federal and state courts have struggled to find legal …

Reforming Eyewitness Identification Processes: Challenges And Recommendations For Successful Implementation, Daniel Manley

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Is It Science Or Storytime? Expert Testimony Evaluating Child Witness Credibility In Sexual Assault Cases, Elizabeth I. Boals

American University Law Review

While jurors struggle with determining any witnesses’ credibility, an even more arduous task is determining the credibility of a child victim in a sexual assault case. Due to developmental immaturity, children lack important recall and communication skills, and the well-established procedures of direct and cross examination are ineffective at producing accurate and complete trial testimony. Despite the adversarial system being proven ineffective in these contexts, American courts remain hesitant to admit expert testimony based on established psychology tools. Specifically, courts have questioned the application of Statement Validity Assessments (“SVAs”), to assist jurors in evaluating witness credibility, as they believe such …

Policing For Profit: A Constitutional Analysis Of Washington State’S Civil Forfeiture Laws, Julia Doherty

Seattle University Law Review

The summer of 2020 reignited a conversation about the relationship between race and policing in the United States. While many have taken the opportunity to scrutinize the racially discriminate components of our criminal justice system, comparable aspects of civil law must be equally scrutinized. A particular area of concern pertains to racially biased policing and the concept of “policing for profits” with Black, Indigenous, and people of color communities (BIPOC), which is accomplished mainly through civil asset forfeiture at a state and federal level.

The World Moved On Without Me: Redefining Contraband In A Technology-Driven World For Youth Detained In Washington State, Stephanie A. Lowry

Seattle University Law Review

If you ask a teenager in the United States to show you one of their favorite memories, they will likely show you a picture or video on their cell phone. This is because Americans, especially teenagers, love cell phones. Ninety-seven percent of all Americans own a cell phone according to a continuously updated survey by the Pew Research Center. For teenagers aged thirteen to seventeen, the number is roughly 95%. For eighteen to twenty-nine-year-olds, the number grows to 100%. On average, eight to twelve-year-old’s use roughly five and a half hours of screen media per day, in comparison to thirteen …

Ai Risk Assessment Tools Amid The War On Drugs: Productive Or Counterproductive?, Matin Pedram

Mitchell Hamline Law Journal of Public Policy and Practice

The War on Drugs refers to a situation in which all the processes of production, distribution, and consumption of all illegal drugs are prohibited. This ambitious goal has imposed considerable costs on societies. The war has weaponized harsher punishments such as life imprisonment, execution, and long-term incarceration against drug offenders. Nonviolent offenders, those who possessed illegal drugs, have been easy targets for governments to show that the war is still ongoing. Although some countries became pioneers in changing the laws to end this costly war, Iran and the United States have made their stance on the drug issue clear, and …

Eliminating Cash Bail In Washington State—Amending Criminal Rule 3.2, Simran Kaur

Seattle University Law Review

This Note discusses the following three parts. Part I provides an overview of the cash bail system, its history, and its contemporary use in Washington state. Part II presents the effects of bail on pretrial release, analyzing low-income and racial inequalities and the adverse impacts it can have on the accused. Part III focuses on solutions and alternatives to the cash bail system, using other states as case studies.

Law's Credibility Problem, Julia Simon-Kerr

Faculty Articles and Papers

Credibility determinations often seal people's fates. They can determine outcomes at trial; they condition the provision of benefits, like social security; and they play an increasingly dispositive role in immigration proceedings. Yet there is no stable definition of credibility in the law. Courts and agencies diverge at the most basic definitional level in their use of the category.

Consider a real-world example. An immigration judge denies asylum despite the applicant's plausible and unrefuted account of persecution in their country of origin. The applicant appeals, pointing to the fact that Congress enacted a "rebuttable presumption of credibility" for asylum-seekers "on appeal." …

Reforming Prior Conviction Impeachment, Julia Simon-Kerr, Anna Roberts

Faculty Articles and Papers

No abstract provided.

Is Silence Golden?, Tracey Maclin

UF Law Faculty Publications

Absolute constitutional rights are rare—even the venerable rights of free speech and freedom of religion are not absolute. In criminal prosecutions, the Sixth Amendment’s right to counsel has been described as the most important of all rights because it affects a defendant’s ability to assert his or her other rights. But the right to counsel is not unlimited.

Yet one right is absolute. A criminal defendant has an absolute right not to testify in his own criminal trial. The text of the Self-Incrimination Clause of the Fifth Amendment—“no person . . . shall be compelled in any criminal case to …

“Statistics Are Human Beings With The Tears Wiped Away”: Utilizing Data To Develop Strategies To Reduce The Number Of Native Americans Who Go Missing, Lori Mcpherson, Sarah Blazucki

Seattle University Law Review

On New Year’s Eve night, 2019, sixteen-year-old Selena Shelley Faye Not Afraid attended a party in Billings, Montana, about fifty miles west of her home in Hardin, Montana, near the Crow Reservation. A junior at the local high school, she was active in her community. The party carried over until the next day, and she caught a ride back toward home with friends in a van the following afternoon. When the van stopped at an interstate rest stop, Selena got out but never made it back to the van. The friends reported her missing to the police and indicated they …