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Articles 1 - 30 of 74
Full-Text Articles in Law
Authenticating Social Media Evidence In Chinese Criminal Procedure Law -- A Comparative Study, Yage Huang
Authenticating Social Media Evidence In Chinese Criminal Procedure Law -- A Comparative Study, Yage Huang
Maurer Theses and Dissertations
Authentication requires the proponent to provide sufficient proof that the proposed social media evidence is, indeed, what it is claimed to be. The rapid proliferation of social media evidence has posed significant challenges for its authentication. This dissertation explores the authentication challenges for social media evidence in a comprehensive manner.
This research employs a qualitative research methodology, including theoretical and analytical methods, to examine the theoretical approaches, statutory provisions, and recent judicial rulings related to the authentication of social media evidence within the legal frameworks of China and the United States. Through a comparative analysis, this study reveals significant commonalities …
Remarks On Manifesting Justice: Wrongly Convicted Women Reclaim Their Rights, Amber Baylor, Valena Beety, Susan Sturm
Remarks On Manifesting Justice: Wrongly Convicted Women Reclaim Their Rights, Amber Baylor, Valena Beety, Susan Sturm
Articles by Maurer Faculty
The following are remarks from a panel discussion co-hosted by the Columbia Journal of Gender and Law and the Center for Gender and Sexuality Law on the book Manifesting Justice: Wrongly Convicted Women Reclaim Their Rights.
The Incongruence Principle Of Evidence, Hillel Bavli
The Incongruence Principle Of Evidence, Hillel Bavli
Indiana Law Journal
Evidence law assumes that the meaning and value of information at trial is equal to the meaning and value of the same information in the real world. This premise underlies evidence policy, judicial applications of evidence law, and instructions to jurors for evaluating evidence. However, it is incorrect, and the law’s failure to recognize this hinders its aims of accuracy and equality.
In this article, I draw on fields outside of law—including Bayesian inference and cognitive psychology—to develop a model of evidence that describes how jurors combine new evidence with prior beliefs (or “priors”) to make inferences and judgments. I …
Can Speech Act Theory Save Notice Pleading?, Susan E. Provenzano
Can Speech Act Theory Save Notice Pleading?, Susan E. Provenzano
Indiana Law Journal
Countless scholars have debated—and lower courts have attempted to apply—the plausibility pleading regime that the Supreme Court introduced in Twombly and Iqbal. Iqbal took Twombly’s requirement that a complaint plead plausibly and turned it into a two-step test. Under that test, the life or death of a lawsuit rests on the distinction between “well-pleaded” and “conclusory” allegations. Only the former are assumed true on a motion to dismiss. Seven decades of pleading precedent had taken a sensible, if unstable, approach to the truth assumption, making a single cut between factual contentions (assumed true) and legal conclusions (ignored). But Iqbal redrew …
Internet (Re)Search By Judges, Jurors, And Lawyers, H. Albert Liou, Jasper L. Tran
Internet (Re)Search By Judges, Jurors, And Lawyers, H. Albert Liou, Jasper L. Tran
IP Theory
How can Internet research be used properly and reliably in law? This paper analyzes several key and very different issues affecting judges, jurors, and lawyers. With respect to judges, this paper discusses the rules of judicial conduct and how they guide the appropriate use of the Internet for research; the standards for judicial notice; and whether judges can consider a third category of non-adversarially presented, non-judicially noticed factual evidence. With respect to jurors, this paper discusses causes of and deterrents to jurors conducting Internet research during trials; and the recourse available to parties who are adversely impacted by such behavior. …
Assessment Of Federal Rule Of Evidence 609 And The Necessity Of A Deeper Collaboration With The Social Sciences For Racial Equality, Carta H. Robison
Assessment Of Federal Rule Of Evidence 609 And The Necessity Of A Deeper Collaboration With The Social Sciences For Racial Equality, Carta H. Robison
Indiana Journal of Law and Social Equality
No abstract provided.
From Standardization To Formality: Unintended Consequences Of Police Standardization Reform Of Law Enforcement In China, Lianhan Zhang
From Standardization To Formality: Unintended Consequences Of Police Standardization Reform Of Law Enforcement In China, Lianhan Zhang
Maurer Theses and Dissertations
According to social construction theory, cases are not objective entities waiting to be discovered or revealed; they cannot exist without case-makers. Construction of a case is a subjective process of choosing, increasing, decreasing, selecting, and reshaping. Therefore, a natural gap exists between the constructed and the real world. This dissertation delves into the gap, not from the existing angle of selectiveness, but from the angle of compliance. The study uses empirical data to try to answer the following question: Since the police standardization reform of law enforcement—at least parts of them—aim at controlling the evidence-collecting process and at improving the …
Evidence Struggles: Legality, Legitimacy, And Social Mobilizations In The Catalan Political Conflict, Susana Narotzky
Evidence Struggles: Legality, Legitimacy, And Social Mobilizations In The Catalan Political Conflict, Susana Narotzky
Indiana Journal of Global Legal Studies
Different kinds of evidence are put forward to make an argument and justify political action by agents situated in diverse social, cultural, and power positions. The Catalan political conflict is a case in point. The central Spanish government's arguments are mostly of a juridical nature and rest on the anti-constitutionality of the Catalan government and other civil society organizations' actions. Instead, most arguments of Catalan supporters of independence are based on historical interpretations of grievances referring to national institutions and identity. Supporters of independence, under the politically inspired actions of major civil society associations, have mobilized hundreds of thousands of …
Evidence On Fire, Valena Beety, Jennifer Oliva
Evidence On Fire, Valena Beety, Jennifer Oliva
Articles by Maurer Faculty
Fire science, a field largely developed by lay “arson investigators,” police officers, or similar first responders untrained in chemistry and physics, has been historically dominated by unreliable methodology, demonstrably false conclusions, and concomitant miscarriages of justice. Fire investigators are neither subject to proficiency testing nor required to obtain more than a high school education. Perhaps surprisingly, courts have largely spared many of the now debunked tenets of fire investigation any serious scientific scrutiny in criminal arson cases. This Article contrasts the courts’ ongoing lax admissibility of unreliable fire-science evidence in criminal cases with their strict exclusion of the same flimsy …
Discovering Forensic Fraud, Jennifer Oliva, Valena Beety
Discovering Forensic Fraud, Jennifer Oliva, Valena Beety
Articles by Maurer Faculty
This Essay posits that certain structural dynamics, which dominate criminal proceedings, significantly contribute to the admissibility of faulty forensic science in criminal trials. The authors believe that these dynamics are more insidious than questionable individual prosecutorial or judicial behavior in this context. Not only are judges likely to be former prosecutors, prosecutors are “repeat players” in criminal litigation and, as such, routinely support reduced pretrial protections for defendants. Therefore, we argue that the significant discrepancies between the civil and criminal pretrial discovery and disclosure rules warrant additional scrutiny.
In the criminal system, the near absence of any pretrial discovery means …
A Trail To Modernity: Observations On The New Developments Of China's Evidence Legislation Movement In A Global Context, Jia Li, Zhuhao Wang
A Trail To Modernity: Observations On The New Developments Of China's Evidence Legislation Movement In A Global Context, Jia Li, Zhuhao Wang
Indiana Journal of Global Legal Studies
China, like most other civil law countries, does not have a discrete evidence code. Rather, Chinese evidence rules are currently scattered among various procedural codes. Since the beginning of the twenty-first century, Chinese scholars and practitioners have advocated for specialized evidence legislation. As part of this movement, China issued numerous judicial interpretations of evidence law, amendments to existing procedural law, and experimental drafts of evidence statutes. For example, new amendments to the Civil Procedure Law and to the Criminal Procedure Law became effective on January 1, 2013. More recently, the Supreme People's Court led the efforts to create two experimental …
Delaware’S Balancing Act, John Armour, Bernard S. Black, Brian R. Cheffins
Delaware’S Balancing Act, John Armour, Bernard S. Black, Brian R. Cheffins
Indiana Law Journal
Delaware’s courts and well-developed case law are widely seen as integral elements of Delaware’s success in attracting incorporations. However, as we show using empirical evidence involving reported judicial decisions and filed cases concerning large mergers and acquisitions, leveraged buyouts, and options backdating, Delaware’s popularity as a venue for corporate litigation is under threat. Today, a majority of shareholder suits involving Delaware companies are being brought and decided elsewhere. We examine in this Article the implications of this “out-of-Delaware” trend, emphasizing a difficult balancing act that Delaware faces. If Delaware accommodates litigation too readily, companies, fearful of lawsuits, may incorporate elsewhere. …
Friends, Gangbangers, Custody Disputants, Lend Me Your Passwords, Aviva Orenstein
Friends, Gangbangers, Custody Disputants, Lend Me Your Passwords, Aviva Orenstein
Articles by Maurer Faculty
Whenever parties seek to introduce out-of-court statements, evidentiary issues of hearsay and authentication will arise. As methods of communication expand, the Rules of Evidence must necessarily keep pace. The rules remain essentially the same, but their application vary with new modes of communication. Evidence law has been very adaptable in some ways, and notoriously conservative, even stodgy, in others. Although statements on Facebook and other social media raise some interesting questions concerning the hearsay rule and its exceptions, there has been little concern about applying the hearsay doctrine to such forms of communication. By contrast, such new media have triggered …
Melendez-Diaz And The Right To Confrontation, Craig M. Bradley
Melendez-Diaz And The Right To Confrontation, Craig M. Bradley
Articles by Maurer Faculty
No abstract provided.
Sex, Threats, And Absent Victims: The Lessons Of Regina V. Bedingfield For Modern Confrontation And Domestic Violence Cases, Aviva A. Orenstein
Sex, Threats, And Absent Victims: The Lessons Of Regina V. Bedingfield For Modern Confrontation And Domestic Violence Cases, Aviva A. Orenstein
Articles by Maurer Faculty
In 2004, Crawford v. Washington, authored by Justice Antonin Scalia, revolutionized the law of confrontation by requiring that, aside from two discrete exceptions, all testimonial statements (those made with the expectation that they will serve to prosecute the accused) be subject to cross-examination. This new interpretation of the Sixth Amendment confrontation clause has profoundly affected domestic violence cases, making it much harder to prosecute them successfully.
Although Justice Scalia’s approach to confrontation is new, it is strikingly similar to the analysis in Regina v. Bedingfield, a notorious English murder case, which excluded from the evidence an alleged statement by the …
The Role Of Theory And Evidence In Media Regulation And Law: A Response To Baker And A Defense Of Empirical Legal Studies, Daniel E. Ho, Kevin M. Quinn
The Role Of Theory And Evidence In Media Regulation And Law: A Response To Baker And A Defense Of Empirical Legal Studies, Daniel E. Ho, Kevin M. Quinn
Federal Communications Law Journal
We thank Professor Baker for a stimulating response to an Article in which we offered empirical evidence of editorial viewpoint diversity in the face of media consolidation. We appreciate his praise of the Article as "apply[ing] innovative statistical techniques" and as "far superior methodologically to most empirical studies" he has seen. At the same time, Baker "denies the policy relevance" to our Article because empirical evidence is "entirely irrelevant" to the field of media regulation under his preferred normative theory. Baker argues sweepingly that the legal academy's increased willingness to consider the perspectives of quantitative empiricists and positive theorists is …
The Unabomber Revisited: Reexamining The Use Of Mental Disorder Diagnoses As Evidence Of The Mental Condition Of Criminal Defendants, Adam K. Magid
The Unabomber Revisited: Reexamining The Use Of Mental Disorder Diagnoses As Evidence Of The Mental Condition Of Criminal Defendants, Adam K. Magid
Indiana Law Journal
This Article revisits a longstanding debate concerning the appropriateness of diagnostic evidence in criminal cases in which a defendant’s mental condition is at issue. As illustrated through a case study of Theodore Kaczynski, more widely known as the “Unabomber,” a diagnosis of paranoid schizophrenia poses a risk of confounding a judge or jury attempting to ascertain an accurate picture of the mental state of a criminal defendant, specifically by (i) suggesting symptoms not actually present, (ii) creating a distorted picture of symptoms that are present, and (iii) suggesting organic, determinative factors as the mechanism behind a defendant’s actions, even where …
Propensity Or Stereotype?: A Bad Evidence Experiment In Indian Country, Aviva Orenstein
Propensity Or Stereotype?: A Bad Evidence Experiment In Indian Country, Aviva Orenstein
Articles by Maurer Faculty
In a significant break with traditional evidence rules and policies, the Federal Rules of Evidence concerning rape and child abuse, Rules 413 and 414, permit the government to admit the accused’s prior sexual misconduct as evidence of character and propensity. Although these rules have been roundly criticized, insufficient attention has been paid to the fact that in allowing propensity evidence for federal sex offenses (as opposed to offenses under state law), these rules disproportionately affect one distinct civilian population: Indians.
The de facto concentration of Rules 413-414 cases in Indian Country raises troubling questions regarding what it means to have …
Comments On Child Abuse Litigation In A "Testimonial" World: The Intersection Of Competency, Hearsay, And Confrontation, Myrna S. Raeder
Comments On Child Abuse Litigation In A "Testimonial" World: The Intersection Of Competency, Hearsay, And Confrontation, Myrna S. Raeder
Indiana Law Journal
The papers in this symposium were originally prepared for the Section on Evidence of the 2007 Annual Meeting of the Association of American Law Schools.
The History Of Children's Hearsay: From Old Bailey To Post-Davis, Thomas D. Lyon, Raymond Lamagna
The History Of Children's Hearsay: From Old Bailey To Post-Davis, Thomas D. Lyon, Raymond Lamagna
Indiana Law Journal
The papers in this symposium were originally prepared for the Section on Evidence of the 2007 Annual Meeting of the Association of American Law Schools.
When Mohammed Goes To The Mountain: The Evidentiary Value Of A View, Layne S. Keele
When Mohammed Goes To The Mountain: The Evidentiary Value Of A View, Layne S. Keele
Indiana Law Journal
No abstract provided.
Deviance, Due Process, And The False Promise Of Federal Rule Of Evidence 403, Aviva A. Orenstein
Deviance, Due Process, And The False Promise Of Federal Rule Of Evidence 403, Aviva A. Orenstein
Articles by Maurer Faculty
In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413 and 414 (concerning rape and child abuse, respectively) allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity. Courts have rejected due process challenges to the new rules, holding that Federal Rule of Evidence 403 serves as a check on any fairness concerns. However, courts' application of Rule 403 in cases involving these sexual propensity rules is troubling. Relying on the legislative history of the new rules and announcing a presumption of admissibility, courts have forsaken the traditional operation of …
The Ethics Of Evidence, J. Alexander Tanford
The Ethics Of Evidence, J. Alexander Tanford
Articles by Maurer Faculty
Professor J. Alexander Tanford offers a unique perspective on the ethics of evidence, illustrated by examples of his own personal experiences as well as excerpts from film and literature. This Article is a must read for any litigator as it addresses the issue of where the line is to be drawn regarding evidence in the courtroom.
Mapp Goes Abroad, Craig M. Bradley
Insurance-Weight Of Evidence-Construction Of Policy-Proximate Cause
Insurance-Weight Of Evidence-Construction Of Policy-Proximate Cause
Indiana Law Journal
No abstract provided.
The In/Into Controversy: Lubet Misses The Point, J. Alexander Tanford
The In/Into Controversy: Lubet Misses The Point, J. Alexander Tanford
Articles by Maurer Faculty
No abstract provided.
Experts, Liars, And Guns For Hire: A Different Perspective On The Qualification Of Technical Expert Witnesses, Christopher P. Murphy
Experts, Liars, And Guns For Hire: A Different Perspective On The Qualification Of Technical Expert Witnesses, Christopher P. Murphy
Indiana Law Journal
No abstract provided.
Novel Scientific Evidence Of Intoxication: Acoustic Analysis Of Voice Recordings From The Exxon Valdez, J. Alexander Tanford, David B. Pisoni, Keith Johnson
Novel Scientific Evidence Of Intoxication: Acoustic Analysis Of Voice Recordings From The Exxon Valdez, J. Alexander Tanford, David B. Pisoni, Keith Johnson
Articles by Maurer Faculty
Part of this article reports original research conducted under the direction of the second and third authors. The initial re search was supported by a contract to Indiana University from General Motors Research Laboratories. The specific analyses of voice recordings of Captain Joseph Hazelwood were conducted by them at the re quest of the National Transportation Safety Board, and are based on tapes and data supplied by the NTSB. The second author may be called as a witness in some of the lawsuits pending against the Exxon Corporation. The opinions expressed in this article concerning whether this evidence meets the …
Enforcing The Rules Of Criminal Procedure: An American Perspective, Craig M. Bradley
Enforcing The Rules Of Criminal Procedure: An American Perspective, Craig M. Bradley
Articles by Maurer Faculty
No abstract provided.
Don't Be Cowed By Scientific Evidence: A Pretrial Primer For Prosecutors And Defense Attorneys, F. Thomas Schornhorst
Don't Be Cowed By Scientific Evidence: A Pretrial Primer For Prosecutors And Defense Attorneys, F. Thomas Schornhorst
Articles by Maurer Faculty
No abstract provided.