Digital Commons Network^™

Is Silence Sacred? The Vulnerability Of Griffin V. California In A Terrorist World, Lissa Griffin

William & Mary Bill of Rights Journal

No abstract provided.

Everything New Is Old Again: Brain Fingerprinting And Evidentiary Analogy, Alexandra J. Roberts

Law Faculty Scholarship

Brain Fingerprinting uses electroencephalography to ascertain the presence or absence of information in a subject's brain based on his reaction to particular stimuli. As a new forensic tool, Brain Fingerprinting technology stands poised to exert a tremendous impact on the presentation and outcome of selected legal cases in the near future. It also provides a fertile case study to examine the role of analogical reasoning in the process by which lawyers, experts, judges, and the media influence how factjinders perceive and evaluate unfamiliar types of proof When juridical metaphor disguises, distorts, or destroys ideas, it ceases to serve as an …

Brady And Jailhouse Snitches, Paul C. Giannelli

Faculty Publications

No abstract provided.

Chimeras: Double The Dna - Double The Fun For Crime Scene Investigators, Prosecutors, And Defense Attorneys?, Catherine Arcabascio

Faculty Scholarship

This article first explores the mythological origins of the term "chimera." It then explores the causes and scientific explanations of chimerism and the various conditions covered by the term chimera in the area of genetics. Although this article will discuss the various chimeric conditions that are thought to exist, its primary focus is on chimerism that is the result of the fusing of embryos in utero. Next, the article will discuss recent cases of chimerism - and of alleged chimerism - and how the genetic differences between chimeras and the general population came to light. It also will discuss …

Where The Rubber Meets The Road: Thinking About Expert Evidence As Expert Testimony, Simon A. Cole

Villanova Law Review (1956 - )

No abstract provided.

Prosecutors, Ethics, And Expert Witnesses, Paul C. Giannelli, Kevin C. Mcmunigal

Faculty Publications

Commentators who have examined the DNA exonerations have noted the disturbing role that prosecutors have played in these wrongful convictions. Another significant contributor to these miscarriages of justice is the misuse of expert testimony, a third of the cases according to some sources. This Article examines the intersection of these two factors - the prosecutor's role in using and presenting expert testimony.

Prosecutorial misconduct may occur during most stages of a trial, beginning with the selection of witnesses, including the improper "shopping" for experts. Additional abuses occur when prosecutors fail to abide by rules governing the pretrial disclosure of scientific …

He Said, She Said: Why Pennsylvania Should Adopt Federal Rules Of Evidence 413 And 414, Jessica D. Khan

Villanova Law Review (1956 - )

No abstract provided.

The Youngblood Success Stories: Overcoming The "Bad Faith" Destruction Of Evidence Standard, Teresa N. Chen

West Virginia Law Review

No abstract provided.

Circumventing Daubert In The Gene Pool, Erica Beecher-Monas

Law Faculty Research Publications

No abstract provided.

The Science Of Dna Identification: From The Laboratory To The Courtroom (And Beyond), David H. Kaye

Faculty Scholarship

This article focuses on sequences of DNA base-pairs, which are becoming increasingly important in the field of law. These DNA sequences are used by forensic scientists to discover evidence such as blood stains, semen, saliva, and hair, and has become highly useful in the courtroom with regard to exonerating the innocent and convicting the guilty. Part I of the article examines how courts may (or may not) admit DNA evidence in court through four phases: uncritical acceptance; serious challenges to analytical methods and statistical interpretation of the results; renewed acceptance of DNA evidence; and acceptance of advance systems of DNA …

Crawford And Davis: A Personal Reflection, Richard D. Friedman

Articles

I have to say that when I stood up to argue Hammon I felt the wind at my back. I was basically a lawyer with an easy case, and there wasn't anything particularly unpredictable at the argument of Hammon. Now it got a little bit interesting, as I will explain later, because to a certain extent I was trying to argue the other case as well. But Hammon itself was sort of ordinary, normal law.

Holmes V. South Carolina Upholds Trial By Jury, Samuel R. Gross

Articles

Bobby Lee Holmes was convicted of a brutal rape-murder and sentenced to death. The only evidence that connected him to the crime was forensic: a palm print, and blood and fiber evidence. (Biological samples taken from the victim for two rape kits were compromised and yielded no identifiable evidence.) Holmes claimed that the state's forensic evidence was planted and mishandled, and that the rape and murder were committed by another man, Jimmy McCaw White. At a pretrial hearing three witnesses testified that they saw White near the victim's house at about the time of the crime, and four others testified …

Testing The Testimonial Concept And Exceptions To Confrontation: “A Little Child Shall Lead Them”, Robert P. Mosteller

Faculty Scholarship

In Crawford v. Washington (2004), the Supreme Court radically transformed the analysis of the Confrontation Clause for hearsay, but left many specific questions unanswered. Two years later in Davis v. Washington (2006), it revisited the subject and answered a few of the unresolved issues, but again left much in doubt, apparently reorienting the focus of the testimonial definition from that of the party making the statement to that of the person receiving it. One of the areas where the new doctrine has greatest potential importance is in cases involving children, particularly cases involving physical and sexual abuse. The importance derives …

Litigating Brady V. Maryland: Games Prosecutors Play, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

By any measure, Brady v. Maryland has not lived up to its expectations. Brady's announcement of a constitutional duty on prosecutors to disclose exculpatory evidence to defendants embodies, more powerfully than any other constitutional rule, the core of the prosecutor's ethical duty to seek justice rather than victory. Nevertheless, prosecutors over the years have not accorded Brady the respect it deserves. Prosecutors have violated its principles so often that it stands more as a landmark to prosecutorial indifference and abuse than a hallmark of justice. Moreover, as interpreted by the judiciary, Brady actually invites prosecutors to bend, if not break, …

Bite Mark Analysis, Paul C. Giannelli

Faculty Publications

Courts have admitted bite mark comparison evidence in homicide, rape, and child abuse cases. By the 1980s, the technique had gained widespread judicial acceptance. Hundreds of cases have admitted this type of evidence, and no reported case has rejected it. Moreover, some courts speak of bite mark comparison as a "science." Indeed, its acceptance is so well-established that several courts have taken judicial notice of its reliability, implying that the validity of the technique is not subject to reasonable dispute.

Yet, the scientific foundations for bite mark comparisons has never been demonstrated. Such basic issues as the uniqueness of the …

An Argument For Original Intent: Restoring Rule 801(D)(1)(A) To Protect Domestic Violence Victims In A Post-Crawford World, Andrew King-Ries

Pace Law Review

No abstract provided.

Doctrinal Issues In Evidence And Proof, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The word evidence ordinarily means the statements, events, items, or sensory perceptions that suggest the existence or nonexistence of, or truth or falsity of, another fact. Thus, one may say, “hoofbeats are evidence a horse may be passing.” Proof is similar in meaning but may connote more certainty.

Evidence can also mean the study of either (1) how people make such inferences (especially when conjoined with the word proof) or (2) how law regulates information admissibility in the judicial context. Evidence in the latter sense is the name of a standard law school course in common law countries and a …

Innocence, Race, And The Death Penalty, Barry Scheck

Articles

The article argues that the death penalty in the United States is deeply flawed due to systemic issues such as wrongful convictions, racial disparities, and procedural failures. It emphasizes the critical role of DNA exonerations in revealing these injustices and advocates for reforms to address the root causes of wrongful convictions, including inadequate legal representation and flawed forensic science. The article also highlights the moral and financial costs of capital punishment, urging its abolition.

Unrecognized Right Of Criminal Defendants To Admit Their Own Pretrial Statements, The , Stephen A. Saltzburg, Daniel J. Capra

Faculty Scholarship

In Agard v. Portuondo, the United States Supreme Court held that a prosecutor did not violate a testifying defendant's constitutional rights by inviting the jury to infer from the defendant's presence at trial that the defendant altered his own version of events to accord with other witnesses' testimony. Justice Scalia's opinion for the Court emphasized that jurors might well draw the inference even without a prosecutor asking them to do so. Although Agard is viewed as giving an advantage in a criminal trial to the government, this Article considers how Agard might be used to allow defense counsel to introduce …

Crawford, Davis, And Way Beyond, Richard D. Friedman

Articles

Until 1965, the Confrontation Clause of the Sixth Amendment to the United States Constitution hardly mattered. It was not applicable against the states, and therefore had no role whatsoever in the vast majority of prosecutions. Moreover, if a federal court was inclined to exclude evidence of an out-of-court statement, it made little practical difference whether the court termed the statement hearsay or held that the evidence did not comply with the Confrontation Clause.

Apology In The Context Of Wrongful Conviction: Why The System Should Say It's Sorry, Abigail Penzell

Cardozo Journal of Conflict Resolution

The first section of this Note will discuss apology as a psychological tool to heal victims, offenders, and the community. The second section will examine the use of apology in analogous contexts to that of wrongful conviction. The third section will explore the potential or perceived disadvantages of offering an apology in the criminal context. The fourth section will detail the desire for apology among the wrongfully convicted as well as give examples of situations - like Mr. Fuller's - in which an apology has been tendered and has helped victims reintegrate into society. Finally, I will conclude that the …

The Irrelevance, And Central Relevance, Of The Boundary Between Science And Non-Science In The Evaluation Of Expert Witness Reliability, D. Michael Risinger

Villanova Law Review (1956 - )

No abstract provided.

The Use And Misuse Of High-Tech Evidence By Prosecutors: Ethical And Evidentiary Issues, Robert Aronson, Jacqueline Mcmurtrie

Articles

This essay first addresses the ethical and evidentiary standards for the emerging use of high-tech computer-generated animations and computer-assisted closing arguments. Next, this essay considers the same questions within the context of forensic DNA evidence. Third, this essay considers the ethics of prosecutors' use of such evidence and the consequences for the misuse of this evidence. Finally, this essay suggests remedies to ethical problems facing prosecutors in their use of this kind of evidence.

An Agument For Original Intent: Restoring Rule 801 (D) (1) (A) To Protect Domestic Violence Victims In A Post-Crawford World., Andrew King-Ries

Faculty Law Review Articles

Prosecution of domestic violence is extremely difficult, largely due to the fact that defendants are successfully pressuring victims to refuse to testify or to recant their testimony at trial. With its decision in Crawford, the Supreme Court eliminated the ability of prosecutors to use hearsay exceptions to place the domestic violence victim's statements before the jury for their substantive consideration. The Supreme Court also closed this avenue to combat defendants' efforts to avoid liability through coercive pressure on victims. Therefore, the Court's change in the Confrontation Clause law limits the prosecution's arsenal for combating witness intimidation and, at the same …

Special Issues Raised By Rape Trials, Aviva A. Orenstein

Articles by Maurer Faculty

Rape cases reveal core conflicts in the space where evidence, law, and ethics intersect. Such conflicts include the tension between victim protection and the rights of the accused, the challenges attorneys face trying to negotiate the demands of sensitive and emotionally difficult cases, and the role of the law in counteracting stereotypes and bias.

In this essay, I will begin by presenting the cultural milieu surrounding rape allegations, briefly reviewing attitudes towards perpetrators and victims. Next, I will attempt to capture the legal zeitgeist concerning rape, focusing on two recent phenomena: the reversal of false rape convictions based on DNA …

Milstein V. Chief Military Prosecutor, Edna Arbel, Aharon Barak, Edmond E. Levy

Translated Opinions

Facts: The appellant was convicted of the offence of using dangerous drugs while he was serving in the IDF. During his interrogation by the police, he confessed to using the drugs, but in his trial he pleaded not guilty and exercised his right to remain silent and not to testify in his own defence.

Following the case law of the Supreme Court, a defendant cannot be convicted solely on the basis of a confession, even when it is freely and willingly given. ‘Something extra’ is required in order to convict him. The District Court Martial and the Appeals Court Martial …

Child Statements In A Post-Crawford World: What The United States Supreme Court Failed To Consider With Regard To Child Victims And Witnesses, Allie Phillips

ExpressO

With the issuance of Crawford v. Washington, 514 U.S. 36 (2004), by the United States Supreme Court on March 8, 2004, wide spread confusion and concern swept through the nation’s prosecutorial community. The new rule announced in Crawford created too many questions and provided few answers by the Court. In particular, anxiety arose from the child protection community in regard to one primary issue: Are forensic interviews of child victims and witnesses, and other statements made by children, considered “testimonial statements” according to Crawford, thus requiring the child to take the witness stand? The Court further confused the new rule …

Looking At The Overlooked: Portraits Of Law School Deans, Peter Goodrich

Articles

The article examines the role of portraits in law schools, arguing that these images are not merely decorative but serve as powerful symbols that shape institutional identity and the legal profession. Despite their ubiquity, these portraits are often overlooked, yet they function as megalographs, inscribing and disseminating the values, history, and authority of the institution. The author contends that these visual elements play a crucial role in the formation of legal identity and the symbolic order of law schools.

Can Jury Trial Innovations Improve Juror Understanding Of Dna Evidence?, B. Michael Dann, Valerie P. Hans, David H. Kaye

Cornell Law Faculty Publications

A single spot of blood on a pink windowsill will tell investigators who broke a windowpane, turned a lock, and kidnapped 2-year-old Molly Evans from her bedroom in the middle of the night. An expert witness will testify that the DNA profile of the blood evidence recovered from the windowsill was entered into CODIS, an electronic database of DNA profiles. That process yielded a “hit,” identifying the defendant as the most likely source of the blood inside Molly’s room.

But will jurors be able to understand the expert’s intricate analysis and use it to reach a verdict? And what—if any—steps …

The Cognitive Psychology Of Circumstantial Evidence, Kevin Jon Heller

Michigan Law Review

Empirical research indicates that jurors routinely undervalue circumstantial evidence (DNA, fingerprints, and the like) and overvalue direct evidence (eyewitness identifications and confessions) when making verdict choices, even though false-conviction statistics indicate that the former is normally more probative and more reliable than the latter The traditional explanation of this paradox, based on the probability-threshold model of jury decision-making, is that jurors simply do not understand circumstantial evidence and thus routinely underestimate its effect on the objective probability of the defendant's guilt. That may be true in some situations, but it fails to account for what is known in cognitive psychology …