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Articles 1 - 30 of 36
Full-Text Articles in Law
Replacing The Exclusionary Rule With Administrative Rulemaking, Francis A. Gilligan, Fredric I. Lederer
Replacing The Exclusionary Rule With Administrative Rulemaking, Francis A. Gilligan, Fredric I. Lederer
Fredric I. Lederer
No abstract provided.
The Exclusion Of Evidence In The United States, Paul Marcus
The Exclusion Of Evidence In The United States, Paul Marcus
Paul Marcus
No abstract provided.
Restrictions On Law Enforcement Investigation And Prosecution Of Crime, Paul Marcus
Restrictions On Law Enforcement Investigation And Prosecution Of Crime, Paul Marcus
Paul Marcus
No abstract provided.
Australia And The United States: Two Common Criminal Justice Systems Uncommonly At Odds, Paul Marcus, Vicki Waye
Australia And The United States: Two Common Criminal Justice Systems Uncommonly At Odds, Paul Marcus, Vicki Waye
Paul Marcus
At first glance the criminal justice systems of Australia and the United States look strikingly similar. With common law roots from England, they both emphasize the adversary system, the roleof the advocate, the presumption of innocence, and an appeals process. Upon closer reflection,however, they appear starkly different. From both Australian and U.S. perspectives, the authorsexplore those differences, examining important features such as the exclusion of evidence, rules regarding interrogation, the entrapment defense, and the open nature of trials. The Article concludes with an analysis of the reasons for those differences, reasons that heavily relate back to the founding of the …
Doing Away With The Exclusionary Rule, Francis A. Gilligan, Fredric I. Lederer
Doing Away With The Exclusionary Rule, Francis A. Gilligan, Fredric I. Lederer
Fredric I. Lederer
No abstract provided.
The Challenge Of Convicting Ethical Prosecutors That Their Profession Has A Brady Problem, Adam M. Gershowitz
The Challenge Of Convicting Ethical Prosecutors That Their Profession Has A Brady Problem, Adam M. Gershowitz
Adam M. Gershowitz
In recent decades, both the media and legal scholars have documented the widespread problem of prosecutors failing to disclose favorable evidence to the defense – so called Brady violations. Despite all of this documentation however, many ethical prosecutors reject the notion that the criminal justice system has a Brady problem. These prosecutors – ethical lawyers who themselves have not been accused of misconduct – believe that the scope of the Brady problem is exaggerated. Why do ethical prosecutors downplay the evidence that some of their colleagues have committed serious errors?
This essay, in honor of Professor Bennett Gershman, points to …
Promising Protection: 911 Call Records As Foundation For Family Violence Intervention, James G. Dwyer
Promising Protection: 911 Call Records As Foundation For Family Violence Intervention, James G. Dwyer
James G. Dwyer
No abstract provided.
Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky
Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky
Erwin Chemerinsky
No abstract provided.
Probability, Individualization, And Uniqueness In Forensic Science Evidence: Listening To The Academies, David H. Kaye
Probability, Individualization, And Uniqueness In Forensic Science Evidence: Listening To The Academies, David H. Kaye
David Kaye
Day in and day out, criminalists testify to positive, uniquely specific identifications of fingerprints, bullets, handwriting, and other trace evidence. A committee of the National Academy of Sciences, building on the writing of academic commentators, has called for sweeping changes in the presentation and production of evidence of identification. These include some form of circumscribed and standardized testimony. But the Academy report is short on the specifics of the testimony that would be legally and professionally allowable. This essay outlines possible types of testimony that might harmonize the testimony of criminalists with the actual state of forensic science. It does …
Do We Need A Calculus Of Weight To Understand Proof Beyond A Reasonable Doubt?, David H. Kaye
Do We Need A Calculus Of Weight To Understand Proof Beyond A Reasonable Doubt?, David H. Kaye
David Kaye
The commentary on a paper by L.J. Cohen, prepared for a symposium on probability and inference in the law of evidence, shows that the legal requirement of proof beyond a reasonable doubt can be understood simply as demanding a sufficiently high probability that the prosecution's narrative or story of the facts, which captures all the elements of the offense, is true. No separate measure of the "weight" of the totality of the evidence is required to understand the burden of persuasion. Any incompleteness in the evidence can be accounted for by a conditional probability that includes the presence of any …
Case Comment - People V. Nelson: A Tale Of Two Statistics, David H. Kaye
Case Comment - People V. Nelson: A Tale Of Two Statistics, David H. Kaye
David Kaye
In recent years, defendants who were identified as a result of a search through a database of DNA profiles have argued that the probability that a randomly selected person would match a crime-scene stain overstates the probative value of the match. The statistical literature is divided, with most statisticians who have written on the subject rejecting this claim. In People v. Nelson, the Supreme Court of California held that when the random-match probability is so small as to make it exceedingly unlikely that any unrelated individual has the incriminating DNA profile, this statistic is admissible in a database-search case. …
'False But Highly Persuasive:' How Wrong Were The Probability Estimates In Mcdaniel V. Brown?, David H. Kaye
'False But Highly Persuasive:' How Wrong Were The Probability Estimates In Mcdaniel V. Brown?, David H. Kaye
David Kaye
In McDaniel v. Brown, the Supreme Court will review the use of DNA evidence in a 1994 trial for sexual assault and attempted murder. The Court granted certiorari to consider two procedural issues - the standard of federal postconviction review of a state jury verdict for sufficiency of the evidence, and the district court's decision to allow the prisoner to supplement the record of trials, appeals, and state postconviction proceedings with a geneticist's letter twelve years after the trial.
This essay clarifies the nature and extent of the errors in the presentation of the DNA evidence in Brown. It questions …
Bill Cosby, The Lustful Disposition Exception, And The Doctrine Of Chances, Wesley Oliver
Bill Cosby, The Lustful Disposition Exception, And The Doctrine Of Chances, Wesley Oliver
Wesley M Oliver
Equal Access To Evidence: The Case For The Defense Use Of Immunity For Essential Witnesses, Andrea Lyon
Equal Access To Evidence: The Case For The Defense Use Of Immunity For Essential Witnesses, Andrea Lyon
Andrea D. Lyon
No abstract provided.
The Importance Of Being Empirical, Michael Heise
The Importance Of Being Empirical, Michael Heise
Michael Heise
Legal scholarship is becoming increasingly empirical. Although empirical methodologies gain important influence within the legal academy, their application in legal research remains underdeveloped. This paper surveys and analyzes the state of empirical legal scholarship and explores possible influences on its production. The paper advances a normative argument for increased empirical legal scholarship.
Dualism And Doctrine, Alex Stein, Dov Fox
Dualism And Doctrine, Alex Stein, Dov Fox
Alex Stein
What kinds of harm among those that tortfeasors inflict are worthy of compensation? Which forms of self-incriminating evidence are privileged against government compulsion? What sorts of facts constitute a criminal defendant’s intent? Existing doctrine pins the answer to all of these questions on whether the injury, facts, or evidence at stake are “mental” or “physical.” The assumption that operations of the mind are meaningfully distinct from those of the body animates fundamental rules in our law.
A tort victim cannot recover for mental harm on its own because the law presumes that he is able to unfeel any suffering arising …
Admissibility Of Co-Conspirator Statements In A Post-Crawford World, Michael L. Seigel, Daniel Weisman
Admissibility Of Co-Conspirator Statements In A Post-Crawford World, Michael L. Seigel, Daniel Weisman
Michael L Seigel
This Article takes the position that co-conspirator statements must be examined on a case-by-case basis to determine whether they are testimonial and thus subject to exclusion under the Confrontation Clause. Further, in light of the fact that the author of the majority opinions in Crawford and Davis was Justice Antonin Scalia, this Article examines whether interpreting the Sixth Amendment as a bar to the admission of certain coconspirator statements would violate an originalist interpretation of that provision. The conclusion reached is that it would not. In the current era of ever-narrowing rights for criminal defendants, reaffirming the law's commitment to …
The Privilege Against Self-Incrimination In Bankruptcy And The Plight Of The Debtor, Timothy R. Tarvin
The Privilege Against Self-Incrimination In Bankruptcy And The Plight Of The Debtor, Timothy R. Tarvin
Timothy R Tarvin
Accounting For Federalism In State Courts - Exclusion Of Evidence Obtained Lawfully By Federal Agents, Robert M. Bloom, Hillary J. Massey
Accounting For Federalism In State Courts - Exclusion Of Evidence Obtained Lawfully By Federal Agents, Robert M. Bloom, Hillary J. Massey
Robert Bloom
After the terrorist attacks on September 11th, Congress greatly enhanced federal law enforcement powers through enactment of the U.S.A. Patriot Act. The Supreme Court also has provided more leeway to federal officers in the past few decades, for example by limiting the scope of the exclusionary rule. At the same time, many states have interpreted their constitutions to provide greater individual protections to their citizens than provided by the federal constitution. This phenomenon has sometimes created a wide disparity between the investigatory techniques available to federal versus state law enforcement officers. As a result, state courts sometimes must decide whether …
"Introduction" (Chapter 1) Of Stories About Science In Law: Literary And Historical Images Of Acquired Expertise (Ashgate 2011), David S. Caudill
"Introduction" (Chapter 1) Of Stories About Science In Law: Literary And Historical Images Of Acquired Expertise (Ashgate 2011), David S. Caudill
David S Caudill
This is the introductory chapter of Stories About Science in Law: Literary and Historical Images of Acquired Expertise (Ashgate, 2011), explaining that the book presents examples of how literary accounts can provide a supplement to our understanding of science in law. Challenging the view that law and science are completely different, I focus on stories that explore the relationship between law and science, and identify cultural images of science that prevail in legal contexts. In contrast to other studies on the transfer and construction of expertise in legal settings, the book considers the intersection of three interdisciplinary projects-- law and …
The Admissibility Of Hypnotically Enhanced Testimony In Criminal Trials, Gary Shaw
The Admissibility Of Hypnotically Enhanced Testimony In Criminal Trials, Gary Shaw
Gary M. Shaw
No abstract provided.
From Gridlock To Groundbreaking: Realizing Reliability In Forensic Science, Jessica D. Gabel
From Gridlock To Groundbreaking: Realizing Reliability In Forensic Science, Jessica D. Gabel
Jessica Gabel Cino
In 2009, The National Academy of Sciences published a scathing report announcing that forensic science is broken and needs to be overhauled. Weaknesses have plagued forensic evidence for decades, and the resulting legal challenges have been hard fought but met with few victories. What we do know is a harsh truth: that faulty forensic science has contributed to the conviction of innocent people—and will continue to do so if the status quo persists.
In recent years, the reality of wrongful convictions has become mainstream through the work of the Innocence Project and other organizations. Out of the 305 DNA-based exonerations …
Full Disclosure: Cognitive Science, Informants, And Search Warrant Scrutiny, Mary Bowman
Full Disclosure: Cognitive Science, Informants, And Search Warrant Scrutiny, Mary Bowman
Mary N. Bowman
Full Disclosure: Cognitive Science, Informants, and Search Warrant Scrutiny
By Mary Nicol Bowman
This article posits that cognitive biases play a significant role in the gap between the rhetoric regarding Fourth Amendment protection and actual practices regarding search warrant scrutiny, particularly for search warrants based on informants’ tips. Specifically, this article examines the ways in which implicit bias, tunnel vision, priming, and hindsight bias can affect search warrants. These biases can affect each stage of the search warrant process, including targeting decisions, the drafting process, the magistrate’s decision whether to grant the warrant, and post-search review by trial and appellate …
Defying Dna: Rethinking The Role Of The Jury In An Age Of Scientific Proof Of Innocence, Andrea L. Roth
Defying Dna: Rethinking The Role Of The Jury In An Age Of Scientific Proof Of Innocence, Andrea L. Roth
Andrea L Roth
In 1946, public outrage erupted after a jury ordered Charlie Chaplin to support a child who, according to apparently definitive blood tests, was not his. Half a century later, juries have again defied apparently definitive evidence of innocence, finding criminal defendants guilty based on a confession or eyewitness notwithstanding exculpatory DNA test results. One might expect judges in such cases to direct an acquittal, on grounds that the evidence is legally insufficient because no rational juror could find guilt beyond a reasonable doubt. Yet few if any do. Instead, courts defer to juries when they form an actual belief in …
Opposing Mr. Big In Principle, David Milward
Taking A Stand On Taking The Stand: The Effect Of A Prior Criminal Record On The Decision To Testify And On Trial Outcomes, Theodore Eisenberg, Valerie P. Hans
Taking A Stand On Taking The Stand: The Effect Of A Prior Criminal Record On The Decision To Testify And On Trial Outcomes, Theodore Eisenberg, Valerie P. Hans
Valerie P. Hans
This article uses unique data from over 300 criminal trials in four large counties to study the relations between the existence of a prior criminal record and defendants testifying at trial, between testifying at trial and juries' learning about a criminal record, and between juries' learning about a criminal record and their decisions to convict or acquit. Sixty percent of defendants without criminal records testified compared to 45 percent with criminal records. For testifying defendants with criminal records, juries learned of those records in about half the cases. Juries rarely learned about criminal records unless defendants testified. After controlling for …
Legally Blind: Hyperadversarialism, Brady Violations, And The Prosecutorial Organizational Culture, Hadar Aviram
Legally Blind: Hyperadversarialism, Brady Violations, And The Prosecutorial Organizational Culture, Hadar Aviram
Hadar Aviram
Recently, in Connick v. Thompson (2011), the Supreme Court held that the failure of several prosecutors to disclose to the defense the blood type of the perpetrator, which did not match the defendant’s blood type, was not a systematic defect that required training of staff. According to the Court the prosecutors’ misconduct, and lack of training in Brady discovery duties, did not constitute “deliberate indifference” by the municipality, which would have entitled the exonerated defendant to relief under §1983. This Article criticizes the decision--and Brady policies in general—for their narrowness and excessive reliance on indications of intent or bad faith. …
Where Did My Privilege Go? Congress And Its Discretion To Ignore The Attorney-Client Privilege, Don Berthiaume, Jeffrey Ansley
Where Did My Privilege Go? Congress And Its Discretion To Ignore The Attorney-Client Privilege, Don Berthiaume, Jeffrey Ansley
Don R Berthiaume
“The right to counsel is too important to be passed over for prosecutorial convenience or executive branch whimsy. It has been engrained in American jurisprudence since the 18th century when the Bill of Rights was adopted... However, the right to counsel is largely ineffective unless the confidential communications made by a client to his or her lawyer are protected by law.”[1] So said Senator Arlen Specter on February 13, 2009, just seven months before Congress chose to ignore the very privilege he lauded. Why then, if the right to counsel is as important as Senator Specter articulated, does Congress maintain …
Standing Mute At Arrest As Evidence Of Guilt: The 'Right To Silence' Under Attack, Frank R. Herrmann S.J., Brownlow M. Speer
Standing Mute At Arrest As Evidence Of Guilt: The 'Right To Silence' Under Attack, Frank R. Herrmann S.J., Brownlow M. Speer
Frank R. Herrmann, S.J.
It is commonly understood that an arrested person has a right to remain silent and that the government may not use his or her silence to prove guilt at trial. Three Circuit Courts of Appeal, however, reject this understanding. They allow the prosecution to use an arrested person's pre-Miranda silence as direct evidence of guilt. This article argues that those Circuits are wrong. The article, first, demonstrates the historical antiquity of the Common Law principle that a detained person has the right to stand mute. Though the right was limited by statutory incursion and in tension, at times, with the …
Accounting For Federalism In State Courts - Exclusion Of Evidence Obtained Lawfully By Federal Agents, Robert M. Bloom, Hillary J. Massey
Accounting For Federalism In State Courts - Exclusion Of Evidence Obtained Lawfully By Federal Agents, Robert M. Bloom, Hillary J. Massey
Robert M. Bloom
After the terrorist attacks on September 11th, Congress greatly enhanced federal law enforcement powers through enactment of the U.S.A. Patriot Act. The Supreme Court also has provided more leeway to federal officers in the past few decades, for example by limiting the scope of the exclusionary rule. At the same time, many states have interpreted their constitutions to provide greater individual protections to their citizens than provided by the federal constitution. This phenomenon has sometimes created a wide disparity between the investigatory techniques available to federal versus state law enforcement officers. As a result, state courts sometimes must decide whether …