Digital Commons Network^™

Discovery By The Prosecution In Criminal Cases: Prudhomme Reconsidered , Jon R. Rolefson

Pepperdine Law Review

No abstract provided.

Williams V. Illinois: Confronting Experts, Science, And The Constitution, Natasha Crawford

Mercer Law Review

DNA evidence has revolutionized forensic science, making it the "single greatest advance in the search for truth.., since the advent of cross-examination." In Williams v. Illinois, the United States Supreme Court affirmed the Illinois Supreme Court's holding that there was no Confrontation Clause violation where experts based their testimony on another analyst's DNA report that was not admitted into evidence. The Court held an expert may assume the truth of certain facts-such as a DNA profile contained in a forensic report-to offer testimony based on those facts without testifying to the truth of the matter asserted. Until Williams, the …

The Proposed Fairness In Disclosure Of Evidence Act Of 2012: More Cons Than Pros With Proposed Disclosure Requirements In Federal Criminal Cases, Jacquelyn Smith

Mercer Law Review

The proposed Fairness in Disclosure of Evidence Act of 2012 (the Act) is a proposal of uniform standards for disclosing evidence in federal criminal cases that was introduced on March 15, 2012 by Senator Lisa Murkowski of Alaska.' The Act's stated purpose is: "To require the attorney for the Government to disclose favorable information to the defendant in criminal prosecutions brought by the United States, and for

Subverting Brady V. Maryland And Denying A Fair Trial: Studying The Schuelke Report, Bennett L. Gershman

Mercer Law Review

The Schuelke Report about the ill-fated federal prosecution of the late-Senator Ted Stevens is an extraordinary contribution to criminal procedure. No other official documentation or investigative study of a criminal prosecution, to my knowledge, has dissected and analyzed as carefully and thoroughly the sordid and clandestine actions of a team of prosecutors who zealously wanted to win a criminal conviction at all costs. In examining this Report, one gets the feeling that as the investigation and prosecution of Senator Stevens unfolded and the prosecution's theory of guilt unraveled, the prosecutors became indifferent to the defendant's guilt or innocence. They just …

Prosecutorial Disclosure Violations: Punishment Vs. Treatment, Kevin C. Mcmunigal

Mercer Law Review

Recent scholarship on prosecutorial disclosure violations proposes preventing violations through understanding and remedying the causes of violations, such as cognitive error. Scholars who adopt this view-what I call here the "treatment perspective"-often call for greater transparency and cooperation from prosecutors. A frequently unacknowledged tension exists between such a treatment perspective and a more traditional perspective-what I call here the "punishment perspective"-that seeks to deter disclosure violations through greater use of sanctions such as professional discipline.

The tension arises because increasing the certainty and severity of sanctions, as the punishment perspective urges, creates a powerful disincentive for individual prosecutors and prosecutor …

Counsel's Control Over The Presentation Of Mitigating Evidence During Capital Sentencing, James Michael Blakemore

Michigan Law Review

The Sixth Amendment gives a defendant the right to control his defense and the right to a lawyer's assistance. A lawyer's assistance, however, sometimes interferes with a defendant's control over his case. As a result, the Supreme Court, over time, has had to delineate the spheres of authority that pertain to counsel and defendant respectively. The Court has not yet decisively assigned control over mitigating evidence to either counsel or defendant. This Note argues that counsel should control the presentation of mitigating evidence during capital sentencing. First, and most importantly, decisions concerning the presentation of mitigating evidence are best characterized …

Two Notes On Evidence: Privileges And Hearsay, J. W. Deese

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Nature And Purpose Of Evidence Theory, Michael S. Pardo

Vanderbilt Law Review

pproximately twenty-five years ago, Professor Richard Lempert, reflecting on the then-current state of evidence scholarship, noted a dramatic shift underway.' He described what had become a largely "moribund" field giving way to a burgeoning "new evidence scholarship." The scholarship in the moribund phase employed "a timid kind of deconstructionism with no overarching critical theory," was "seldom interesting," and any "potential utility" was "rarely realized"; Lempert proposed the following mock article title as a model representing the genre: "What's Wrong with the Twenty-Ninth Exception to the Hearsay Rule and How the Addition of Three Words Can Correct the Problem." By contrast, …

Defending The Preponderance Of The Evidence Standard In College Adjudications Of Sexual Assault, Amy Chmielewski

Brigham Young University Education and Law Journal

No abstract provided.

Is It Safe? The Need For State Ethical Rules To Keep Pace With Technological Advances, Ann M. Murphy

Fordham Law Review

No abstract provided.

Reconceptualizing The Burden Of Proof, Edward K. Cheng

Vanderbilt Law School Faculty Publications

The preponderance standard is conventionally described as an absolute probability threshold of 0.5. This Essay argues that this absolute characterization of the burden of proof is wrong. Rather than focusing on an absolute threshold, the Essay reconceptualizes the preponderance standard as a probability ratio and shows how doing so eliminates many of the classical problems associated with probabilistic theories of evidence. Using probability ratios eliminates the so-called Conjunction Paradox, and developing the ratio tests under a Bayesian perspective further explains the Blue Bus problem and other puzzles surrounding statistical evidence. By harmonizing probabilistic theories of proof with recent critiques advocating …

The 2012 Amendments To Singapore's Evidence Act: More Questions Than Answers As Regards Expert Opionion Evidence?, Siyuan Chen

Research Collection Yong Pung How School Of Law

Singapore amended the expert opinion evidence provisions in its Evidence Act (EA) in 2012. The criteria for admissibility have been broadened, but the courts are now also expressly given the discretion to exclude relevant expert opinion evidence if it is ‘in the interests of justice’. This article explains why the 2012 amendments have raised more questions than answered them. First, Parliament did not appear to have properly appreciated the distinction—as conceptualised by the EA—between legal and logical relevance and relevance and admissibility. Second, it did not appear to have appreciated the distinction between general and specific relevance. Third, the introduction …

Comments On Maryland V. King In 'U.S. Supreme Court To Hear Arguments Over Md. Dna Case: Justices' Decision Will Have National Implications On Future Crime-Fighting Procedures', Colin Starger

All Faculty Scholarship

No abstract provided.

Amending For Justice’S Sake: Codified Disclosure Rule Needed To Provide Guidance To Prosecutor’S Duty To Disclose, Nathan A. Frazier

Florida Law Review

This Note argues for the implementation of bright-line rules to guide prosecutorial discretion. It urges a solution that identifies the salient facts from the case law and enumerates those facts into a codified Strickler three-prong standard. A bright-line standard should exist requiring disclosure when any of the following scenarios are present: (1) Prior perjury or false testimony of a government witness; (2) Promises of immunity to a government witness; (3) Monetary rewards to key government witnesses; (4) Mental impairments of a government witness; (5) Information reflecting bias or prejudice of a government witness against defendant; (6) Confessions to the crime …

Drug Use And The Exclusionary Manque, Jerome A. Busch

Pepperdine Law Review

No abstract provided.

United States V. Salvucci: The Problematic Absence Of Automatic Standing, William C. Bollard

Pepperdine Law Review

The United States Supreme Court recently abolished the automatic standing rule in United States v. Salvucci. The author analyzes the difficulties created for the criminal defendant charged with a possessory crime. In particular, this note focuses on the inequitable position the defendant is placed in when his suppression hearing testimony is used as a tool to impeach subsequent testimony offered at trial. The author continues by pointing out that the "prosecutorial self-contradiction," sought to be abolished in Salvucci, remains a part of our present judicial system. In conclusion, the author offers several considerations that will necessarily be an integral part …

Admissibility Of Illegally Seized Evidence In Civil Cases: Could This Be The Path Out Of The Labyrinth Of The Exclusionary Rule?, Richard J. Hanscom

Pepperdine Law Review

The use of the exclusionary rule in criminal cases has been the subject of extensive debate since its inception. Although most efforts to modify the rule have been deemed unworkable, the author proposes a modification that is both workable and sensible. Modification would be accomplished by legislation which admits the results of illegal searches by law enforcement officers who acted in good faith, and, at the same time, provide fixed monetary sanctions against the governmental agencies whose officers conducted the search. The author proposes a good faith balancing test to determine evidence admissibility and administrative type proceedings to determine monetary …

Child Witnesses In Sexual Abuse Criminal Proceedings: Their Capabilities, Special Problems, And Proposals For Reform, Dominic J. Fote

Pepperdine Law Review

No abstract provided.

Confronting Coventurers: Coconspirator Hearsay, Sir Walter Raleigh, And The Sixth Amendment Confrontation Clause, Ben Trachtenberg

Florida Law Review

Using the example of a recent major terrorism prosecution, this Article addresses “coventurer hearsay” in the context of the ongoing Confrontation Clause debate concerning the United States Supreme Court’s decision in Crawford v. Washington. Courts have recently begun admitting hearsay evidence pursuant to a revisionist interpretation of the coconspirator statement exception to the hearsay rule. Under the new “lawful joint venture” theory, a hearsay statement may be admitted as a coconspirator statement if made in furtherance of a “joint undertaking”—defined as pretty much any cooperative activity—even if the “conspiracy” is not illegal. Because this new interpretation of an old …

Avoiding The Insanity Defense Strait Jacket: The Mens Rea Route, Harlow M. Huckabee

Pepperdine Law Review

No abstract provided.

Coy V. Iowa: A Constitutional Right Of Intimidation, John A. Mayers

Pepperdine Law Review

No abstract provided.

Evidence Of Mental Disorder On Mens Rea: Constitutionality Of Drawing The Line At The Insanity Defense , Harlow M. Huckabee

Pepperdine Law Review

No abstract provided.

More Than A "Quick Glimpse Of The Life": The Relationship Between Victim Impact Evidence And Death Sentencing, Jerome E. Deise, Raymond Paternoster

Faculty Scholarship

In striking down the use of victim impact evidence (VIE) during the penalty phase of a capital trial, the Supreme Court in Booth v. Maryland and South Carolina v. Gathers argued that such testimony would appeal to the emotions of jurors with the consequence that death sentences would not be based upon a reasoned consideration of the blameworthiness of the offender. After a change in personnel, the Court overturned both decisions in Payne v. Tennessee, decided just two years after Gathers. The majority in Payne were decidedly less concerned with the emotional appeal of VIE, arguing that it would only …

Genetic Privacy And The Fourth Amendment: Unregulated Surreptitious Dna Harvesting, Albert E. Scherr

Law Faculty Scholarship

Genetic privacy and police practices have come to the fore in the criminal justice system. Case law and stories in the media document that police are surreptitiously harvesting the DNA of putative suspects. Some sources even indicate that surreptitious data banking may also be in its infancy. Surreptitious harvesting of out-of-body DNA by the police is currently unregulated by the Fourth Amendment. The few courts that have addressed the issue find that the police are free to harvest DNA abandoned by a putative suspect in a public place. Little in the nascent surreptitious harvesting case law suggests that surreptitious data …

Factually Innocent Without Dna? An Analysis Of Utah's Factual Innocence Statute, Nic Caine

Utah OnLaw: The Utah Law Review Online Supplement

Since 1989, DNA evidence has fueled the innocence movement, helping hundreds prove their innocence and obtain freedom. DNA technology has been an invaluable development for the innocence movement, and DNA technology will continue to advance and improve in the future. DNA evidence is not available in the majority of cases, however, and many believe that DNA exonerations will eventually diminish as DNA analysis becomes more widely available. Furthermore, “for every DNA exoneree there are hundreds if not over a thousand wrongfully convicted defendants whose cases do not contain biological evidence that could prove innocence.”150 It is time for other states …

Evidence, Probability, And The Burden Of Proof, Alex Stein, Ronald J. Allen

Faculty Scholarship

No abstract provided.

Examining Committee Reports As A Basis To Dismiss Petitions To Determine Incapacity: A Question Of Admissibility And Evidentiary Relevancy, Enrique Zamora, Andres Vasquez

St. Thomas Law Review

This article will focus on answering two issues that play an important role in the determination of the need of establishing a guardianship for an AIP. Specifically, (1) whether the requirement that a petition to determine incapacity be dismissed if two examining committee members opine there is no incapacity, in violation of Florida's Evidence Code as well as Chapter 744's requirements; and (2) whether examining committee reports, without testimony, are hearsay under Florida's Evidence Code, section 90.803 of the Florida Statutes, and usurp judicial discretion under section 90.703. Part I will delineate the problem associated with section 744.331(4) of the …

The Degrading Character Rule In American Criminal Trials, Paul S. Milich

Georgia Law Review

The rule prohibiting evidence of the accused's bad
character is steadily degrading as courts and legislatures
expand existing exceptions and add new ones. In Georgia,

we saw the rule almost disappear as trial courts blithely
admitted a defendant's past crimes to prove his or her
"bent of mind" to commit the crime charged. This Article
examines why the character rule is losing ground.
The thesis is that a rule requiring as much careful
balancing as the character rule needs a clear, strong
justification to hold its own when faced with competing
claims to admit the evidence in the search for …

Judicial Gatekeeping Of Suspect Evidence: Due Process And Evidentiary Rules In The Age Of Innocence, Keith A. Findley

Georgia Law Review

The growing number of wrongful convictions exposed
over the past two-and-a-half decades, and the research
that points to a few recurring types of flawed evidence in
those cases, raise questions about the effectiveness of the
rules of evidence and the constitutional admissibility
standards that are designed to guard against unreliable
evidence. Drawing on emerging empirical data, this
Article concludes that the system can and should be

adjusted to do a better job of guarding against undue
reliance on flawed evidence. The Article first considers the
role of reliability screening as a constitutional concern.
The wrongful convictions data identify what might …

On The 'Considered Analysis' Of Collecting Dna Before Conviction, David H. Kaye

Faculty Scholarship

For nearly a decade, DNA-on-arrest laws eluded scrutiny in the courts. For another five years, they withstood a gathering storm of constitutional challenges. In Maryland v. King, however, Maryland's highest court reasoned that usually fingerprints provide everything police need to establish the true identity of an individual before trial and that the state's interest in finding the perpetrators of crimes by trawling databases of DNA profiles is too "generalized" to support "a warrantless, suspicionless search." The U.S. Supreme Court reacted forcefully. Chief Justice Roberts stayed the Maryland judgment, writing that "given the considered analysis of courts on the other side …