Digital Commons Network^™

Ultracrepidarianism In Forensic Science: The Hair Evidence Debacle, David H. Kaye

Washington and Lee Law Review Online

For over 130 years, scientific sleuths have inspected hairs under microscopes. Late in 2012, the FBI, the Innocence Project, and the National Association of Criminal Defense Lawyers joined forces to review thousands of microscopic hair comparisons performed by FBI examiners over several of those decades. The results have been astounding. Based on the first few hundred cases in which hairs were said to match, it appears that examiners exceeded the limits of science in over 90% of their reports or testimony. The disclosure of this statistic has led to charges that the FBI faked an entire field of forensic science, …

The Admissibility Of Polygraph ("Lie Detector") Evidence Pursuant To Stipulation In Criminal Proceedings, Bruce C. Heslop

Akron Law Review

American courts have traditionally held that evidence pertaining to the results of a lie-detector test is inadmissible in a criminal proceeding on behalf of either the prosecution or defense….In recent years, however, a few jurisdictions have withdrawn from the traditional approach and have admitted lie-detector evidence in limited situations, notwithstanding objection by the adverse party….The decision of whether or not to adopt the approach presented here must critically evaluate the potential value of polygraph evidence along with its potential dangers. In so doing, the courts of Ohio should determine whether a procedure may be devised to maximize the value and …

Ohio's New Rape Law: Does It Protect Complainant At The Expense Of The Rights Of The Accused?, Barbara Child

Akron Law Review

WITH THE ENACTMENT of Am. Sub. S.B. 144,1 Ohio has now joined the small group of states' that are revising their rape laws in measures significant enough to indicate that a trend may be underway. Ohio's new law is designed to protect victims of sex offenses: it contains major provisions affecting (1) the definition of rape itself; (2) new services for victims; (3) record suppression; (4) evidence rules; and (5) sentencing for certain offenders. The new law attempts to secure complainants' rights to privacy and equal protection together with defendants' rights to a fair trial and due process; however, the …

Wiggins V. State: Receiving A Fair Trial Under The Specter Of Aids, Charles Zamora

Akron Law Review

Wiggins v. State presented two unique issues: (1) whether it was proper to authorize courtroom security personnel to use prophylactic apparel while escorting a defendant merely suspected of having acquired immunodeficiency syndrome (AIDS), and (2) the extent to which this handling procedure impacted the jury.

This Note will analyze the Wiggins decision, emphasizing the court's reasoning as it pertains to the following: (1) the guarantee of a fair and impartial jury trial for defendants either having or being suspected of having AIDS; (2) the permissible exercise of discretion by the trial judge in authorizing precautions during the course of the …

Dna Storage Banks: The Importance Of Preserving Dna Evidence To Allow For Transparency And The Preservation Of Justice, Cristina Martin

Chicago-Kent Law Review

What is the duty to preserve information in today’s society? In order for humanity to evolve, change and flourish in the future, society needs to preserve its information from the past. In the criminal justice field, preservation of evidence has special significance. DNA evidence in particular has become a helpful aid for innocent defendants who have been improperly imprisoned. Over the past twenty years, the number of exonerations of imprisoned criminal defendants has increased dramatically. With the advancement of technology, old, previously untestable or improperly tested DNA evidence will need to be retested. However, most states do not have proper …

Fair Play And Criminal Justice: Drafting Proffer Agreements In Light Of Total Waiver Of Rule 410, Robert I. Smith Iii

South Carolina Law Review

No abstract provided.

After Rape Law: Will The Turn To Consent Normalize The Prosecution Of Sexual Assault?, Donald Dripps

Akron Law Review

This essay explores the new rape exceptionalism. My thesis holds that rape exceptionalism is rooted in a divide between elite opinion, reflected in statutes, court decisions, and academic commentary, and popular opinion, as reflected in jury verdicts. Elite opinion values sexual autonomy and suspects, when it does not despise, sexual aggression. Popular opinion supposes that sexual autonomy may be forfeited by female promiscuity or flirtation, and views male sexual aggression as natural, if not indeed admirable...pressions of consent,8 is an academic exercise. If we really want to normalize rape law, we must bypass the jury openly. We can’t conceal the …

Black Boxes: Fmri Detection And The Role Of The Jury, Julie Seaman

Akron Law Review

Before I offer some thoughts on that question, let me mention three real-life cases in which cutting-edge neuroscientific evidence either did – or conceivably might in a not-so-distant future – influence the outcome of a criminal prosecution. In the first case, reported last week in the New York Times, EEG brain-fingerprinting-type evidence was admitted against a woman on trial in India for murdering her husband. She was convicted. In the second case, in England recently, neuroscientists performed an fMRI lie-detection scan on a woman who had previously been convicted of poisoning a child in her care. She claimed that she …

"His Brain Has Been Mismanaged With Great Skill": How Will Jurors Respond To Neuromimaging Testimony In Insanity Defense Cases?, Michael L. Perlin

Akron Law Review

A review of the literature on neuroimaging, predictably, reveals a broad array of positions, promises and prophecies. Carter Snead argues that the ambition of cognitive neuroscientists is “to use the claims of their discipline and the new powers conferred by neuroimaging to overthrow retributive justice as a legitimate justification for criminal sanctions.” In this paper, I do not take sides on this debate. Rather, I discuss a related, but distinctly separate issue: which of these positions will jurors think is right, especially in the context of deciding insanity defense cases. The primary and robust debate that has taken place so …

Decision-Making In The Dark: How Pre-Trial Errors Change The Narrative In Criminal Jury Trials, Kara Mackillop, Neil Vidmar

Chicago-Kent Law Review

The jury trial plays a critical constitutional and institutional role in American jurisprudence. Jury service is, technically, the only constitutional requirement demanded of our citizens and, as such, places an important responsibility on those chosen to serve on any jury, especially within the criminal justice system. Jury research has established that, generally, jurors take their responsibilities seriously; they work with the evidence presented at trial and they reach verdicts that correlate to the narratives they develop throughout the trial. But with estimates of wrongful conviction rates as high as five percent in serious felony cases, how are juries getting it …

High Expectations And Some Wounded Hopes: The Policy And Politics Of A Uniform Statute On Videotaping Custodial Interrogations, Andrew E. Taslitz

School of Law Faculty Publications

Much has been written about the need to videotape the entire process of police interrogating suspects. Videotaping discourages abusive interrogation techniques, improves police training in proper techniques, reduces frivolous suppression motions because facts are no longer in dispute, and improves jury decision making about the voluntariness and accuracy of a confession. Despite these benefits, only a small, albeit growing, number of states have adopted legislation mandating electronic recording of the entire interrogation process. In the hope of accelerating legislative adoption of this procedure and of improving the quality of such legislation, the Uniform Law Commission (ULC), formerly the National Conference …

Full Disclosure: Cognitive Science, Informants, And Search Warrant Scrutiny, Mary Nicol Bowman

Akron Law Review

This article aims to improve the quality of evidence gathering and interpretation at one crucial phase of investigations: the evaluation of search warrant applications. Part II of this article provides background on the search warrant application process, including how courts evaluate such applications based on informants’ tips and how defendants can subsequently challenge those decisions. Part III then discusses the ways in which cognitive biases can affect each stage of the search warrant process. Part IV provides my suggested solutions to the problems identified, all of which fall under the general umbrella of full disclosure. That part argues that education …

Does Removing The Force Element Matter?: An Empirical Comparison Of Rape Statistics In Massachusetts And Colorado, Peter Landsman

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

No abstract provided.

Evaluating The Evaluation: Reliance Upon Mental Health Assessments In Cases Of Alleged Child Sexual Abuse, Sarah F. Shelton

Nevada Law Journal

No abstract provided.

Should The Medium Affect The Message? Legal And Ethical Implications Of Prosecutors Reading Inmate-Attorney Email, Brandon P. Ruben

Fordham Law Review

    The attorney-client privilege protects confidential legal communications between a party and her attorney from being used against her, thus encouraging full and frank attorney-client communication. It is a venerable evidentiary principle of American jurisprudence. Unsurprisingly, prosecutors may not eavesdrop on inmate-attorney visits or phone calls or read inmate-attorney postal mail. Courts are currently divided, however, as to whether or not they can forbid prosecutors from reading inmate- attorney email.

    This Note explores the cases that address whether federal prosecutors may read inmates’ legal email. As courts have unanimously held, because inmates know that the Bureau of Prisons (BOP) monitors all …

Policymakers' Perceptions On The Application Of Research Evidence In The Policymaking Process Within West Virginia's Higher Education System, Christopher Treadway

Theses, Dissertations and Capstones

The purpose of this descriptive, mixed-method study was to explore the role that research evidence plays in policy-related decision-making within West Virginia’s higher education system, policymakers’ perceptions on the reliability and usefulness of various sources of information, and their insights related to factors that facilitate and/or impede the use of research evidence. Using data obtained through an internet-based questionnaire administered to more than 100 higher education policymakers, the study resulted in several notable findings, many of which reinforced similar findings uncovered in the review of the literature.

Most researchers agree that the results of high-quality research can be a tremendous …

The Promises And Pitfalls Of State Eyewitness Identification Reforms, Nicholas A. Kahn-Fogel

Law Faculty Scholarship

This article provides a comprehensive analysis of state-based eyewitness identification reforms, including legislative directives, evidentiary rules, and judicial interpretations of state constitutions as providing greater protection against the use of unreliable eyewitness evidence than the United State Supreme Court offered in its 1977 decision in Manson v. Brathwaite. While previous scholarship has included thorough consideration of a single state's eyewitness law, state-by-state analysis of a sub-issue in eyewitness law, and brief general surveys of state approaches to eyewitness reform, this article adds to the current body of scholarship with an in-depth evaluation of eyewitness identification law in states that have …

The Implementation Of Judicial Policy In Crime Laboratories : An Examination Of The Impact Of Melendez-Diaz V. Massachusetts, Catherine L. Bonventre

Legacy Theses & Dissertations (2009 - 2024)

In Melendez-Diaz v. Massachusetts (2009), the United States Supreme Court held that the Sixth Amendment right to confront adverse witnesses includes the right to confront forensic analysts who produce affidavits certifying the results of forensic examinations used against defendants at trial. The decision thus invalidated the practice of substituting forensic laboratory reports for live testimony in criminal trials. Melendez-Diaz was a divided decision in which four dissenting Justices predicted onerous practical consequences for the practice of forensic science in the United States. Through a web-based survey and semi-structured interviews, this dissertation explored the practical impact of the decision on crime …

The Myth Of The Double- Edged Sword: An Empirical Study Of Neuroscience Evidence In Criminal Cases, Deborah W. Denno

Faculty Scholarship

This Article presents the results of my unique study of 800 criminal cases addressing neuroscience evidence over the past two decades (1992–2012). Many legal scholars have theorized about the impact of neuroscience evidence on the criminal law, but this is the first empirical study of its kind to systematically investigate how courts assess the mitigating and aggravating strength of such evidence. My analysis reveals that neuroscience evidence is usually offered to mitigate punishments in the way that traditional criminal law has always allowed, especially in the penalty phase of death penalty trials. This finding controverts the popular image of neuroscience …

Temporal Arbitrariness: A Back To The Future Look At A Twenty-Five-Year-Old Death Penalty Trial, Mary Kelly Tate

Law Faculty Publications

his essay grapples with a previously unexamined feature of the death penalty: temporal arbitrariness. How does the circumstance of time affect capital defendants? What might this mean for the stability of our notions of justice? I explore these questions using a 25-year-old death penalty trial as a case study, examining the procedural and factual highlights of the case and situating it in its temporal milieu. I then explore how the roles of doctrine, policy, and cultural attitudes would dramatically alter the nature and probable outcome of the case today, illustrating how temporal arbitrariness further exposes the death penalty’s unsteady administration …

The Case For Evidence-Based Free Exercise Accommodation: Why The Religious Freedom Restoration Act Is Bad Public Policy, Marci A. Hamilton

Articles

No abstract provided.

Sentencing Complexities In National Security Cases, Chris Jenks

Faculty Journal Articles and Book Chapters

Military national security courts-martial infrequently occur. When they do occur, military counsel, judges, and court personnel endeavor to perform their function at a high level. Unfortunately, the process by which the U.S. government conducts classification reviews and the military’s inexperience in national security cases often results in the form of safeguarding classified information trumping the substantive function of the underlying trial process. And by the time the sentencing phase is reached, understandable but unfortunate focus is placed on simply concluding the trial without mishandling classified information.

This article examines the sentencing complexities in military national security cases, first defining a …

Sentencing Complexities In National Security Cases, Chris Jenks

Faculty Journal Articles and Book Chapters

Military national security courts-martial infrequently occur. When they do occur, military counsel, judges, and court personnel endeavor to perform their function at a high level. Unfortunately, the process by which the U.S. government conducts classification reviews and the military’s inexperience in national security cases often results in the form of safeguarding classified information trumping the substantive function of the underlying trial process. And by the time the sentencing phase is reached, understandable but unfortunate focus is placed on simply concluding the trial without mishandling classified information.

This article examines the sentencing complexities in military national security cases, first defining a …

Using The Dna Testing Of Arrestees To Reevaluate Fourth Amendment Doctrine, Steven P. Grossman

All Faculty Scholarship

With the advent of DNA testing, numerous issues have arisen with regard to obtaining and using evidence developed from such testing. As courts have come to regard DNA testing as a reliable method for linking some people to crimes and for exonerating others, these issues are especially significant. The federal government and most states have enacted statutes that permit or direct the testing of those convicted of at least certain crimes. Courts have almost universally approved such testing, rejecting arguments that obtaining and using such evidence violates the Fourth Amendment.

More recently governments have enacted laws permitting or directing the …

The Court As Gatekeeper: Preventing Unreliable Pretrial Ediscovery From Jeopardizing A Reliable Fact-Finding Process, Daniel K. Gelb

Fordham Law Review

No abstract provided.

The Case For Ehearsay, Jeffrey Bellin

Fordham Law Review

No abstract provided.

Architects Of Justice: The Prosecutor’S Role And Resolving Whether Inadmissible Evidence Is Material Under The Brady Rule, Blaise Niosi

Fordham Law Review

In Brady v. Maryland, the U.S. Supreme Court held that the prosecution has a constitutional duty to disclose evidence favorable to the defendant’s guilt or punishment upon request.  The Court’s subsequent expansion of its holding in Brady has formed the “Brady rule,” which requires the prosecution to learn of and to disclose to the defendant all material exculpatory and impeachment information.  The Court defined “material” as information that would cause a reasonable probability of a different trial outcome had it been disclosed.

Currently, a circuit court split exists regarding whether evidence is material for purposes of the Brady …

Trending@Rwulaw: Professor Larry Ritchie's Post: Representing The Indigent, Roger Williams University School Of Law

Law School Blogs

No abstract provided.

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

Journal of Legal Education

No abstract provided.

The Wire As A Gap-Filling Class On Criminal Law And Procedure, Adam M. Gershowitz

Journal of Legal Education

No abstract provided.