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Cipa Creep: The Classified Information Procedures Act And Its Drift Into Civil National Security Litigation, Ian Macdougall

National Security Law Program

This Note documents an incipient trend in the courts and Congress, which I call "CIPA creep," and investigates its implications for civil national security litigation. CIPA – the Classified Information Procedures Act – governs the use of classified information in federal criminal cases. No comparable statute exists in the civil context, where the judge-made state secrets privilege determines whether litigants may use sensitive government information. The prevailing scholarly and popular accounts hold that this privilege, in the tense post-9/11 security environment, transformed from a narrow evidentiary rule into a non-justiciability doctrine that cedes to executive branch officials the power to …

Framing The Prosecution, Daniel C. Richman

Faculty Scholarship

The enormous value of Dan Simon’s In Doubt lies not just in its nuanced exploration of the challenges to accurate criminal factfinding, but also in its challenge to us to rethink trials themselves. Even as we endeavor to give criminal defendants the means and license to raise reasonable doubts, we need to think more about when and how those doubts can be allayed. Just because most jurisdictions have not come out of the first round of play – the one in which defendants get the tools to poke holes in the cases against them – does not mean it is …

The Exclusion Of Improperly Obtained Evidence At The International Criminal Court: A Principled Approach To Interpreting Article 69(7) Of The Rome Statute, Michael Madden

LLM Theses

This thesis examines article 69(7) of the Rome Statute, which creates an exclusionary rule for improperly obtained evidence at the International Criminal Court (ICC). Ultimately, the thesis proposes how the ICC should interpret its exclusionary rule. The thesis discusses the theory underlying exclusionary rules, the evidence law and remedial law contexts within which exclusionary rules operate, and numerous comparative examples of exclusionary doctrine from within national criminal justice systems. Finally, some unique aspects of international criminal procedure are described in order to demonstrate how an international exclusionary rule might need to differ from a domestic rule, and previous jurisprudence relating …

Sweet Caroline: The Backslide From Federal Rule Of Evidence 613(B) To The Rule In Queen Caroline's Case, Katharine T. Schaffzin

University of Michigan Journal of Law Reform

Since 1975, Rule 613(b) of the Federal Rules of Evidence has governed the admission of extrinsic evidence of a prior inconsistent statement in federal court. Rule 613(b) requires the proponent of the prior inconsistent statement to provide the declarant an opportunity to explain or deny it. There is no requirement that the proponent provide that opportunity at any particular time or in any particular sequence. Rule 613 reflected a change from the common law that had fallen out of fashion in the federal courts. That common law rule, known as the Rule in Queen Caroline’s Case, required the proponent of …

“Liking” The Social Media Revolution, Thaddeus A. Hoffmeister

School of Law Faculty Publications

As in other areas of society, social media has significantly influenced the law. Currently, civil and criminal cases can, and often do, turn on an attorney's understanding and use of social media. In the realm of family law, most practitioners view social media as an essential tool-one that could serve as grounds for malpractice if ignored. Even in legal academia-an area long resistant to change-law schools are starting to understand the impact of social media on the law and offer courses like Social Media and Criminal Law and Law and Social Media.

The goal of this essay is not to …

The Mold That Shapes Hearsay Law, Richard D. Friedman

Articles

In response to an article previously published in the Florida Law Review by Professor Ben Trachtenberg, I argue that the historical thesis of Crawford v. Washington is basically correct: The Confrontation Clause of the Sixth Amendment reflects a principle about how witnesses should give testimony, and it does not create any broader constraint on the use of hearsay. I argue that this is an appropriate limit on the Clause, and that in fact for the most part there is no good reason to exclude nontestimonial hearsay if live testimony by the declarant to the same proposition would be admissible. I …

Neuroscientists In Court, Owen D. Jones, Anthony D. Wagner, David L. Faigman, Marcus E. Raichle

Vanderbilt Law School Faculty Publications

Neuroscientific evidence is increasingly being offered in court cases. Consequently, the legal system needs neuroscientists to act as expert witnesses who can explain the limitations and interpretations of neuroscientific findings so that judges and jurors can make informed and appropriate inferences. The growing role of neuroscientists in court means that neuroscientists should be aware of important differences between the scientific and legal fields, and, especially, how scientific facts can be easily misunderstood by non-scientists,including judges and jurors.

This article describes similarities, as well as key differences, of legal and scientific cultures. And it explains six key principles about neuroscience that …

The Exclusionary Rule As A Symbol Of The Rule Of Law, Jenia I. Turner

SMU Law Review

Throughout South America, Southern and Eastern Europe, and East Asia, more than two dozen countries have transitioned to democracy since the 1980s. A remarkable number of these have adopted an exclusionary rule (mandating that evidence obtained unlawfully by the government is generally inadmissible in criminal trials) as part of broader legal reforms. Democratizing countries have adopted exclusionary rules even though they are not required to do so by any international treaty and there is no indication that there is widespread popular demand for such rules. This has occurred at a time when the rule has been weakened in the United …

Redefining Relevancy And Exclusionary Discretion In Sir James Fitzjames Stephen’S Indian Evidence Act Of 1872: The Singapore Experiment And Lessons For Other Indian Evidence Act Jurisdictions, Siyuan Chen

Research Collection Yong Pung How School Of Law

In many jurisdictions, the rules of evidence can often be instrumental in determining the outcome of a dispute. But to what extent can evidence law be controlled by codification, or is it better to leave its regulation and development to the judges via common law? In an attempt to bridge the gap between the rules of an antiquated evidence statute and the modern realities of practice, Singapore’s Evidence Act was amended in 2012. Certain relevancy provisions were amended to allow greater admissibility of evidence, while new provisions were introduced to act as a check against abuse. However, it will be …

Teaching “The Wire”: Crime, Evidence, And Kids, Andrea L. Dennis

Scholarly Works

I have a confession: I have only watched Season 1 of The Wire, and it has been many years since I did that. Thus, both my knowledge and pedagogical use of the show are limited. What explanation can I offer for my failings? I am a Maryland native with family who resides in Baltimore City, or Charm City as it is affectionately called. I worked for several years as an assistant federal public defender in Baltimore City. Over time, I have seen the city evolve, and I have seen it chew up and spit out many good people and some …

Thinking Outside The Box: Limiting The Collection Of Rape Kit Evidence In Acquaintance Rape Trials, Taylor Gamble

Cardozo Journal of Equal Rights & Social Justice

The note argues that limiting the collection of rape kit evidence in acquaintance rape cases could strike a balance between reducing victim trauma, conserving resources, and maintaining the integrity of the justice system. While DNA evidence is crucial in stranger rape cases, its utility in acquaintance rapes is limited since the central issue is often consent rather than identity. The analysis weighs the benefits of minimizing invasive exams and protecting victim privacy against the potential loss of probative evidence, ultimately suggesting that the benefits of selective collection outweigh the harms.

Juror Perceptions Of Eyewitness Identification Evidence, Timothy G. Wykes

Theses and Dissertations (Comprehensive)

Jurors rely on eyewitness testimony in deciding a defendant’s guilt or innocence. Archival analyses of hundreds of post-conviction DNA exonerations have identified eyewitness misidentification as the highest individual factor contributing to wrongful convictions (Innocence Project, 2014). Internationally, criminal justice systems have employed procedural safeguards (PSs) to educate juries on factors affecting eyewitness identification accuracy. Two such safeguards include the introduction of eyewitness expert testimony during trial proceedings and the reading of cautionary instructions by a presiding judge. In an independent factorial design, this research sought to examine the effects of a model judicial caution drafted by the Ontario Judicial Council …

This Is Your Sword: How Damaging Are Prior Convictions To Plaintiffs In Civil Trials?, Kathryn M. Stanchi, Deirdre Bowen

Scholarly Works

The conventional wisdom in law is that a prior conviction is one of the most powerful and damaging pieces of evidence that can be offered against a witness or party. In legal lore, prior convictions seriously undercut the credibility of the witness and can derail the outcome of a trial. This Article suggests that may not always be true.

This Article details the results of an empirical study of juror decision-making that challenges the conventional wisdom about prior convictions. In our study, the prior conviction evidence did not have a direct impact on the outcome of the civil trial or …

Hear Me Now: The Admission Of Expert Testimony On Battered Women's Syndrome—An Evidentiary Approach, Matthew Fine

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Promising Protection: 911 Call Records As Foundation For Family Violence Intervention, James G. Dwyer

Faculty Publications

No abstract provided.

The Legality Of Deliberate Miranda Violations: How Two-Step National Security Interrogations Undermine Miranda And Destabilize Fifth Amendment Protections, Lee Ross Crain

Michigan Law Review

As part of the global “War on Terror,” federal agents intentionally delay issuing Miranda warnings to terrorism suspects during custodial interrogations. They delay the warnings presuming that unwarned suspects will more freely offer vital national security intelligence. After a suspect offers the information he has, agents administer Miranda warnings and attempt to elicit confessions that prosecutors can use at the suspect’s trial. No court has ruled on the constitutionality of this two-step national security interrogation process to determine whether admitting the second, warned confession is allowed under Miranda v. Arizona and its progeny. A fragmented Supreme Court examined two-step interrogations …

The Misbegotten Judicial Resistance To The Daubert Revolution, David E. Bernstein

Notre Dame Law Review

This Article reviews the history of the evolution of the rules for the admissibility of expert testimony since the 1980s, the revolutionary nature of what ultimately emerged, and the consistent efforts by recalcitrant judges to stop or roll back the changes, even after Rule 702 was amended to explicitly incorporate a strict interpretation of those changes.

Part I reviews the law of expert testimony through the Supreme Court’s Daubert decision. Critics had charged for decades that the adversarial system was a failure with regard to expert testimony. Parties to litigation, they argued, often presented expert testimony of dubious validity because …

Ehearsay, Jeffrey Bellin

Faculty Publications

No abstract provided.

Supplementing The Record In The Federal Courts Of Appeals: What If The Evidence You Need Is Not In The Record?, George C. Harris, Xiang Li

The Journal of Appellate Practice and Process

No abstract provided.

Testifying Minors: Pre-Trial Strategies To Reduce Anxiety In Child Witnesses, Dawn Hathaway Thoman

Nevada Law Journal

No abstract provided.

The Future Of The Similar Fact Rule In An Indian Evidence Act Jurisdiction: Singapore, Siyuan Chen

Research Collection Yong Pung How School Of Law

In yet another attempt to bridge the gap between the rules of an antiquated statute and the modern realities of practice, Singapore’s Evidence Act was amended in 2012. Certain relevancy provisions were amended to allow greater admissibility of evidence. While new provisions were introduced to act as a check against abuse, oddly some similar fact provisions were left intact. This paper explains why the 2012 amendments have rendered the future of these enactments very uncertain. This paper also suggests a number of tentative recommendations as regards future legislative change or judicial interpretation. To the extent that Singapore’s Evidence Act was …

Altering Attention In Adjudication, Jeffrey J. Rachlinski, Andrew J. Wistrich, Chris Guthrie

Cornell Law Faculty Publications

Judges decide complex cases in rapid succession but are limited by cognitive constraints. Consequently judges cannot allocate equal attention to every aspect of a case. Case outcomes might thus depend on which aspects of a case are particularly salient to the judge. Put simply, a judge focusing on one aspect of a case might reach a different outcome than a judge focusing on another. In this Article, we report the results of a series of studies exploring various ways in which directing judicial attention can shape judicial outcomes. In the first study, we show that judges impose shorter sentences when …

Mock Trials And Real Justices And Judges, Richard A. Posner

Cardozo Law Review

No abstract provided.

Ringers Revisited, Richard H. Underwood

Law Faculty Scholarly Articles

In this short essay, Professor Underwood addresses an important development in the law dealing with eyewitness testimony and the New Jersey case of State v. Henderson. He gets at the subject by looking back to a 1950s television play starring fellow Kentucky resident, William Shatner. However, in this particular instance, William Shatner would not change the world.

Limited Admissibility And Its Limitations, Lisa Dufraimont

Articles & Book Chapters

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 …

A Model For Fixing Identification Evidence After Perry V. New Hampshire, Robert Couch

Michigan Law Review

Mistaken eyewitness identifications are the leading cause of wrongful convictions. In 1977, a time when the problems with eyewitness identifications had been acknowledged but were not yet completely understood, the Supreme Court announced a test designed to exclude unreliable eyewitness evidence. This standard has proven inadequate to protect against mistaken identifications. Despite voluminous scientific studies on the failings of eyewitness identification evidence and the growing number of DNA exonerations, the Supreme Court's outdated reliability test remains in place today. In 2012, in Perry v. New Hampshire, the Supreme Court commented on its standard for evaluating eyewitness evidence for the first …

Sharpening The Tools Of An Adequate Defense: Providing For The Appointment Of Experts For Indigent Defendants In Child Death Cases Under Ake V. Oklahoma, Laurel Gilbert

San Diego Law Review

This Comment proposes that because of ongoing concerns regarding the reliability and validity of forensic science in the United States, the Due Process Clause constitutionally mandates the appointment of forensic experts for indigent defendants in criminal cases arising out of a child’s death if the prosecution relies on forensic evidence. Part II of this Comment provides an overview of the current law governing the admissibility of forensic expert testimony in criminal cases and explains why these admissibility standards create a need for the appointment of defense forensic experts to protect the rights of criminal defendants. Part III then discusses Due …

Book Review: Errol Morris, “A Wilderness Of Error”: Provocative But Unpersuasive, Richard C. Cahn

Touro Law Review

No abstract provided.

The Military Trial At Rennes: Text And Subtext Of The Dreyfus Affair, Vivian G. Curran

Touro Law Review

Discusses the Dreyfus affair and how the outside world viewed France's conduct. This article provides insight into how the trial was conducted and the evidence that was offered.

The Duty Of The Prosecutor To Disclose Unrequested Evidence: United States V. Agurs, Christian F. Dubia Jr

Pepperdine Law Review

No abstract provided.