Digital Commons Network^™

Keynote Address: Secret Evidence In The Age Of National Security, Adam Liptak

Cardozo Public Law, Policy & Ethics Journal

The article explores the tension between national security and the First Amendment, arguing that while the First Amendment remains a robust protection against government censorship, recent trends threaten press freedom, particularly in protecting confidential sources and accessing information. The author, drawing on personal experience as a media lawyer and reporter, emphasizes the importance of procedural safeguards and judicial oversight to prevent government overreach and ensure transparency.

Privileged Evidence And State Security Under The Israeli Law: Are We Doomed To Fail?, Ami Kobo

Cardozo Public Law, Policy & Ethics Journal

The article examines Israel's legal framework for handling privileged evidence in criminal proceedings, particularly in cases involving state security or public interest. It argues that while Israeli law establishes a balancing test to weigh the need for disclosure against security interests, practical implementation often fails, risking miscarriages of justice. The analysis highlights systemic flaws through cases like Livny and Abu Saada, where the failure to disclose critical evidence led to wrongful convictions. The author suggests procedural reforms to enhance the adversarial process and mitigate these risks.

Panel Report: National Security Secrecy In The Courts: A Comparative Perspective From Israel And Ireland, Peter Raven-Hansen

Cardozo Public Law, Policy & Ethics Journal

The article examines how democratic nations, including Israel, Ireland, and the United States, balance national security secrecy with the rule of law in terrorism prosecutions. It highlights the challenges of using secret evidence in criminal trials while maintaining fair procedures, comparing the legal frameworks and practices of these countries. The analysis reveals common issues, such as the tension between protecting sensitive information and ensuring defendants' rights, and underscores the need for transparency and procedural integrity in terrorism cases.

The Slow Erosion Of The Adversary System: Article Iii Courts, Fisa, Cipa And Ethical Dilemmas, Ellen C. Yaroshefsky

Cardozo Public Law, Policy & Ethics Journal

The article examines the increasing reliance on secret evidence in U.S. legal proceedings, particularly in post-9/11 national security and terrorism cases, facilitated by the Classified Information Procedures Act (CIPA) and the Foreign Intelligence Surveillance Act (FISA). This trend undermines the adversarial system by denying defendants access to relevant information, raising ethical concerns for defense attorneys, and potentially eroding constitutional rights. The author advocates for reforms to balance national security with civil liberties, emphasizing the need for judicial vigilance and legislative changes to address these issues.

"So I Says To "The Guy,' I Says...": The Constitutionality Of Neutral Pronoun Redaction In Multidefendant Criminal Trials, Bryan M. Shay

William & Mary Law Review

No abstract provided.

Getting Control Of Waiver Of Privilege In The Federal Courts : A Proposal For A Federal Rule Of Evidence 502, Daniel J. Capra

ExpressO

No abstract provided.

Forgetting Freud: The Courts' Fear Of The Subconscious In Date Rape (And Other) Criminal Cases, Andrew E. Taslitz

ExpressO

Courts too often show a reluctance to learn the lessons taught by social science in criminal cases, especially where subconcious processes are involved. The subconscious is seen as rarely relevant and, in the unusual cases where it is relevant, it is viewed as a disease commandeering the conscious mind and thus helping to exculpate the accused. Drawing on the example of forensic linguistics in date rape cases as illustrative of a broader phenomenon, this article argues that the courts' misuse of social science stems from fear and misunderstanding of the workings of the subconscious mind. Accordingly, the piece contrasts the …

It's Not Just About Miranda: Determining The Voluntariness Of Confessions In Criminal Prosecutions, Paul Marcus

Faculty Publications

No abstract provided.

The “Csi Effect”: Better Jurors Through Television And Science?, Michael D. Mann

ExpressO

This Comment discusses how television shows such as CSI and Law & Order create heightened juror expectations. This will be published in the Buffalo Public Interest Law Journal's 2005-2006 issue.

Judicial Anarchy: The Admission Of Convictions To Impeach -State Supreme Court Interpretive Standards, 1990-2004, Dannye Holley

ExpressO

This is the second and sequential national study of an important evidence and criminal justice issue - the admission of convictions to impeach. It is a longitudinal national study of how state supreme courts have recently, over the last decade and one-half, evaluated this issue. The longitudinal study period of 1990-2004 mirros the study period of state rules on this issue which was undertaken in the first article. The study period was chosen for an explicit substantive rationale that was explained in that article and is repeated in this article. Because both articles are decade and one-half studies they will …

To Catch A Sex Thief: The Burden Of Performance In Rape And Sexual Assault Trials, Corey Rayburn Yung

ExpressO

Despite decades of efforts to reform American rape law, prosecution and conviction rates remain low compared to similar crimes. While activists led legislatures to adopt important statutory changes for rape and sexual assault, only modest effects in the levels of sexual violence have been observed. Nonetheless, reform-minded scholars continue to focus on statutory and rule tinkering as a means to quell sexual violence.

This article argues against the commonly-held belief that the crucial factors in determining the outcome of rape trials are substantive and procedural in nature. Rather, the issues of performance, representation, and language often pre-determine the outcomes of …

The Case For Selective Abolition Of The Rules Of Evidence, David Crump

ExpressO

No abstract provided.

"Why Don't You Take Another Look At Number Three?": Investigator Knowledge And Its Effects On Eyewitness Confidence And Identification Decisions, Melissa B. Russano, Jason J. Dickinson, Sarah M. Greathouse, Margaret Bull Kovera

Cardozo Public Law, Policy & Ethics Journal

The article examines the impact of investigator knowledge on eyewitness identification and confidence, highlighting the potential for bias and the importance of implementing double-blind lineup procedures to mitigate such influences. It emphasizes the need for further research and policy changes to enhance the reliability of eyewitness testimony.

Eyewitness Identification, Democratic Deliberation, And The Politics Of Science, Andrew E. Taslitz

Cardozo Public Law, Policy & Ethics Journal

The article examines the intersection of social science and legal policy in eyewitness identification, focusing on the role of prosecutors and the American Bar Association (ABA) Eyewitness Resolution. It argues that while social science provides critical insights to improve identification accuracy, the translation of these insights into legal policy involves normative judgments that balance competing values, such as protecting the innocent and ensuring public safety. The author critiques the limitations of internal deliberative processes within law enforcement and prosecutorial offices, advocating for more transparent and inclusive deliberative structures to address systemic errors and promote justice.

Improving Eyewitness Identifications: Hennepin County's Blind Sequential Lineup Pilot Project, Amy Klobuchar, Nancy K. Mehrkens Steblay, Hilary Lindell Caligiuri

Cardozo Public Law, Policy & Ethics Journal

The article examines the effectiveness of Hennepin County's blind sequential lineup pilot project in improving eyewitness identification accuracy. By implementing a protocol where photos are shown one at a time by an administrator unaware of the suspect, the study aims to reduce misidentifications and enhance the reliability of eyewitness testimony in criminal investigations.

Introduction, Barry Scheck

Cardozo Public Law, Policy & Ethics Journal

The symposium aims to reform eyewitness identification procedures by fostering dialogue between law enforcement, social scientists, and legal experts. It seeks to address the high rates of mistaken identifications and improve the accuracy and reliability of eyewitness testimony through scientific research and practical implementations. The event highlights the human impact of wrongful convictions and explores evidence-based solutions to prevent such injustices.

A Sample Of Witness, Crime, And Perpetrator Characteristics Affecting Eyewitness Identification Accuracy, Brian L. Cutler

Cardozo Public Law, Policy & Ethics Journal

The article examines the impact of estimator variables on eyewitness identification accuracy, focusing on six key factors: own-race bias, exposure duration, masking of hair and hairline cues, weapon focus, eyewitness stress, and passage of time. It argues that these variables significantly influence identification accuracy and are not merely matters of common sense, emphasizing the need for expert testimony and education for legal professionals.

Keynote Address: Reforming Eyewitness Identification, Thomas P. Sullivan

Cardozo Public Law, Policy & Ethics Journal

The article addresses the critical issue of eyewitness identification errors in criminal investigations, highlighting their role in wrongful convictions. It advocates for reform through improved identification procedures, particularly the sequential lineup method, and emphasizes the need for public and professional education on the fallibility of eyewitness testimony.

He Said-She Said: On Credibility And The New Reason, Nancy Rourke

ExpressO

The traditional wisdom in the field of evidence holds that, if there is a direct contradiction in the testimony of two witnesses, one of them must be lying. The jury is to discover which version is more credible. The traditional wisdom is wrong. This article uses an actual criminal case to establish that a direct contradiction in testimony can arise from another source - a fundamental difference of conceptual frame. In this case, both witnesses were telling the truth as they knew it, but were talking past one another. Words that were 100% true in the victim's conceptual frame were …

Attorney-Client Privilege In The Public Sector: A Survey Of Government Attorneys, Nancy Leong

ExpressO

No abstract provided.

Wrongful Convictions And Forensic Science: The Need To Regulate Crime Labs, Paul C. Giannelli

Faculty Publications

DNA testing has exonerated over 200 convicts, some of whom were on death row. Studies show that a substantial number of these miscarriages of justice involved scientific fraud or junk science. This article documents the failures of crime labs and some forensic techniques, such as microscopic hair comparison and bullet lead analysis. Some cases involved incompetence and sloppy procedures, while others entailed deceit, but the extent of the derelictions - the number of episodes and the duration of some of the abuses, covering decades in several instances - demonstrates that the problems are systemic.

Paradoxically, the most scientifically sound procedure …

Fixing The Constable's Blunder: Can One Trial Judge In One County In One State Nudge A Nation Beyond The Exclusionary Rule?, H. Mitchell Caldwell

BYU Law Review

No abstract provided.

Dangerousness And Expertise Redux, Christopher Slobogin

ExpressO

Civil commitment, confinement under sexual predator laws, and many capital and noncapital sentences depend upon proof of a propensity toward violence. This article discusses the current state of prediction science, in particular the advantages and disadvantages of clinical and actuarial prediction, and then analyzes how the rules of evidence should be interpreted in deciding whether opinions about propensity should be admissible. It concludes that dangerousness predictions that are not based on empirically-derived probability estimates should be excluded from the courtroom unless the defense decides otherwise. This conclusion is not bottomed on the usual concern courts and commentators raise about expert …

Balancing The Scales Of Confidential Justice: Civil Mediation Privileges In The Criminal Arena - Indispensable, Impracticable, Or Merely Unconstitutional, Shawn P. Davisson

McGeorge Law Review

No abstract provided.

Daubert Challenges To Fingerprints, Paul C. Giannelli

Faculty Publications

No abstract provided.

A Study Of Juror Expectations And Demands Concerning Scientific Evidence: Does The "Csi Effect" Exist?, Hon. Donald E. Shelton, Young S. Kim, Gregg Barak

Vanderbilt Journal of Entertainment & Technology Law

This article is the first empirical study of jurors designed to investigate the existence and extent of the "CSI effect." The authors conducted a survey of 1027 persons who had been called for jury duty in a Michigan state court during a nine-week period in June, July and August, 2006. This survey examined the summoned jurors' demographic information, television viewing habits, their expectations that the prosecutor would produce scientific evidence and whether they would demand scientific evidence as a condition of a guilty verdict.

This study of juror expectations and demands about scientific evidence in relationship to other types of …

Manson V. Brathwaite: The Supreme Court's Misunderstanding Of Eyewitness Identification, 39 J. Marshall L. Rev. 539 (2006), Ruth Yacona

UIC Law Review

No abstract provided.

Dostoyevsky And The Therapeutic Jurisprudence Confession, 40 J. Marshall L. Rev. 41 (2006), Amy D. Ronner

UIC Law Review

No abstract provided.

The Story Of Crawford, Richard D. Friedman

Book Chapters

Michael Crawford had been charged with assault. At his trial, the prosecution offered a statement made in the police station on the night of the incident by Crawford's wife Sylvia, who did not testify at trial. He objected, in part on the ground that this violated his right under the Confrontation Clause. The trial court nevertheless admitted the statement, and Crawford was convicted. The Washington Supreme Court ultimately affirmed the judgment. In rejecting the Confrontation Clause challenge, that court purported to apply the then governing doctrine of Ohio v. Roberts, under which the Clause posed no obstacle to admissibility if …

Dickerson V. United States: The Case That Disappointed Miranda's Critics - And Then Its Supporters, Yale Kamisar

Book Chapters

It is difficult, if not impossible, to discuss Dickerson1 intelligently without discussing Miranda whose constitutional status Dickerson reaffirmed (or, one might say, resuscitated). It is also difficult, if not impossible, to discuss the Dickerson case intelligently without discussing cases the Court has handed down in the five years since Dickerson was decided. The hard truth is that in those five years the reaffirmation of Miranda's constitutional status has become less and less meaningful. In this chapter I focus on the Court's characterization of statements elicited in violation of the Miranda warnings as not actually "coerced" or "compelled" but obtained merely …