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Articles 1 - 30 of 111
Full-Text Articles in Law
No Longer Innocent Until Proven Guilty: How Ohio Violates The Fourth Amendment Through Familial Dna Searches Of Felony Arrestees, Jordan Mason
Cleveland State Law Review
In 2013, the United States Supreme Court legalized DNA collection of all felony arrestees upon arrest through its decision in Maryland v. King. Since then, the State of Ohio has broadened the use of arrestee DNA by subjecting it to familial DNA searches. Ohio’s practice of conducting familial DNA searches of arrestee DNA violates the Fourth Amendment because arrestees have a reasonable expectation of privacy in the information that is extracted from a familial DNA search and it fails both the totality of the circumstances and the special needs tests. Further, these tests go against the intention of the …
Psychosocial Analysis Of An Ethnography At The Cuyahoga County Public Defenders Office, Ernest M. Oleksy
Psychosocial Analysis Of An Ethnography At The Cuyahoga County Public Defenders Office, Ernest M. Oleksy
The Downtown Review
Too often, social science majors become jaded with their field of study due to a misperception of the nature of many potential jobs which they are qualified for. Such discord is prevalent amongst undergraduates who strive for work in the criminal justice system. Hollywood misrepresentations become the archetypes of the aforementioned field, leaving out the necessity and ubiquity of accompanying desk work. Still other social science majors struggle to identify theoretical interpretations in praxis.
Hipaa As An Evidentiary Rule: An Analysis Of Miguel M. And Its Impact , Jennifer Clark
Hipaa As An Evidentiary Rule: An Analysis Of Miguel M. And Its Impact , Jennifer Clark
Journal of Law and Health
In New York suppression of evidence is only appropriate where constitutional, statutory, or decisional authority mandates it, even if obtained by unethical or unlawful means. The courts have been split on how to apply this standard to evidence obtained in violation of HIPAA. In the case In re Miguel M., the New York Court of Appeals addressed this question for the first time, finding that such evidence should be suppressed. Because it is the first authoritative case in New York addressing the evidentiary impact of a HIPAA violation, it is tempting to read Miguel M. as creating a new evidentiary …
Voluntary Client Testimony As A Privilege Waiver: Is Ohio's Law Caught In A Time Warp, David B. Alden, Matthew P. Silverstein
Voluntary Client Testimony As A Privilege Waiver: Is Ohio's Law Caught In A Time Warp, David B. Alden, Matthew P. Silverstein
Cleveland State Law Review
The question of whether Ohio should retain the waiver through voluntary testimony rule-assuming that is the current rule-is neither close nor difficult. The relevant statute dates back to the middle of the nineteenth century when Ohio enacted its first code of civil procedure, and if it in fact leads to a waiver, has been substantively unchanged in the intervening one hundred fifty plus years. The rule undermines the policies the attorney-client privilege was designed to further, and the policy on which the rule apparently was based-preventing perjured testimony-no longer has the primacy it did in the mid-nineteenth century and, in …
Evaluating Children's Competency To Testify: Developing A Rational Method To Assess A Young Child's Capacity To Offer Reliable Testimony In Cases Alleging Child Sex Abuse , Laurie Shanks
Cleveland State Law Review
This Article discusses the testimony of young children, the inadequacy of the traditional hearing used to determine the competency of such children to testify, and the ways in which the hearing might be changed to make it a meaningful process for determining the ability of a child to give reliable testimony.
A Moving Bar Approach To Assessing The Admissibility Of Expert Causation Testimony, Aaron Katz
A Moving Bar Approach To Assessing The Admissibility Of Expert Causation Testimony, Aaron Katz
Cleveland State Law Review
This Article argues that the Supreme Court's decisions in Daubert and Joiner imply an approach to the reliability, and hence admissibility, of causation experts that conflicts with the way in which courts traditionally had determined whether to allow the jury to speculate on uncertain causation-in-fact questions. Largely moving past the debate of whether Daubert and Joiner set the admissibility bar too high or low, the Article instead criticizes the decisions on the ground that they suggest that the height of the reliability bar is static and should not be adjusted depending upon the circumstances of the defendant's possibly injurious conduct. …
Harnessing The Hired Guns: The Substantive Nature Of Ohio Revised Code 2743.43 Under Article Iv, Section 5(B) Of The Ohio Constitution, Patrick Vrobel
Harnessing The Hired Guns: The Substantive Nature Of Ohio Revised Code 2743.43 Under Article Iv, Section 5(B) Of The Ohio Constitution, Patrick Vrobel
Journal of Law and Health
Under Article IV, Section 5(B), rules of procedure that impact the substantive rights of Ohio citizens are considered far too important to be encroached upon by the judiciary. Rules affecting substantive rights, therefore, have been expressly delegated to the legislature. Because rules that regulate the competency of medical experts inevitably encroach upon the ability of a tort victim to seek redress in a court of law, such rules impact substantive rights in very real and tangible ways. As a result, the medical expert statute must control. To find otherwise would permit the judiciary to encroach upon the substantive rights of …
Testimonial Statements, Excited Utterances And The Confrontation Clause: Formulating A Precise Rule After Crawford And Davis, Gary M. Bishop
Testimonial Statements, Excited Utterances And The Confrontation Clause: Formulating A Precise Rule After Crawford And Davis, Gary M. Bishop
Cleveland State Law Review
This Article will analyze whether the post-Crawford decisions have been consistent in their treatment of statements that qualify as excited utterances in light of the Confrontation Clause principles and various definitions of testimonial in Crawford. Part II of this Article will provide a discussion of the Crawford decision itself and an analysis of Crawford's treatment of earlier cases in this area. Part III of this Article will provide a discussion and analysis of court decisions that have applied Crawford in the context of excited utterances. It will do this by examining the factors that these courts have considered and emphasized …
Removing The Roadblocks To Successful Domestic Violence Prosecutions: Prosecutorial Use Of Expert Testimony On The Battered Woman Syndrome In Ohio, Matthew P. Hawes
Removing The Roadblocks To Successful Domestic Violence Prosecutions: Prosecutorial Use Of Expert Testimony On The Battered Woman Syndrome In Ohio, Matthew P. Hawes
Cleveland State Law Review
This note contends that Ohio should join the modern trend and allow expert testimony on the battered woman syndrome in a limited form in domestic violence prosecutions. Part II of this note explores the syndrome and its origins. Part III provides background on the evidentiary uses of the syndrome in Ohio. It discusses the emergence of the battered woman syndrome in Ohio courts, and then examines the unsuccessful initial attempts by prosecutors in Ohio to use expert testimony on the syndrome.Part IV looks at how several jurisdictions outside of Ohio have addressed this issue. Part V presents the argument that …
Outdated Form Of Evidentiary Law: A Survey Of Dead Man's Statutes And A Proposal For Change, Ed Wallis
Outdated Form Of Evidentiary Law: A Survey Of Dead Man's Statutes And A Proposal For Change, Ed Wallis
Cleveland State Law Review
In order to understand why Dead Man's statutes should be amended by state legislatures, it is important to look at the historical context of Dead Man's statutes and how they have been handled, interpreted and applied in different states. Consequently, Part II of this paper presents an historical outline of Dead Man's statutes; Part III surveys nine states that currently have a common law Dead Man's statute; Part IV analyzes the weaknesses behind the Dead Man's statute; Part V presents three separate alternatives that states should consider adopting in lieu of their current Dead Man's statutes. Finally, part VI concludes …
The Proportionate Trading Model: Real Science Or Junk Science, Brian P. Murray
The Proportionate Trading Model: Real Science Or Junk Science, Brian P. Murray
Cleveland State Law Review
The PTM has all the hallmarks of "real" science, using either a scientists' definition or that of the Daubert Court. From a scientist's perspective, it is a functional paradigm, serving as a working model. The practitioners in the field are engaged in "clean-up," for example, deciding which acceleration factor best fits observed data. Under the Daubert test, the PTM will assist the trier of fact, has been subjected to peer review (unlike the major critique), and has acceptable rates of error and general acceptance. Testifying experts may disagree as to which acceleration factor to use, but that is merely fair …
Crying Wolf Or An Excited Utterance - Allowing Reexcited Statements To Qualify Under The Excited Utterance Exception, Jone Tran
Cleveland State Law Review
It is clear that the reexcitement analysis has both benefits and detriments. Reexcitement may be a basis for admission of evidence in cases where the danger of influencing during the calm period is somehow obviated-as in the recent Crawford opinion. Because of the heightened danger of undue influence in reexcitement cases, the courts should require corroborating evidence that the declarant did not confide in anyone during the intervening period of calm, to reduce the chance of outside pressures and influences. Congress should provide an amendment to the Federal Rules of Evidence expressly allowing for reexcitement, but also requiring either physical …
Use Of Secret Evidence By Government Lawyers: Balancing Defendants' Rights With National Security Concerns, Tracy L. Conn
Use Of Secret Evidence By Government Lawyers: Balancing Defendants' Rights With National Security Concerns, Tracy L. Conn
Cleveland State Law Review
The ability to use secret evidence in trials involving national security matters is an extremely controversial power of the government lawyer. Although the use of secret evidence was a divisive issue before September 11, 2001, the terrorist attacks that day sparked the passage of new legislation that increased the power of the government lawyer to use classified evidence. By examining the cases involving secret evidence both before and after September 11, in particular the case of Zacarias Moussaoui, it becomes apparent that what is at stake is the appropriate balance between national security concerns and the constitutional rights of defendants. …
Lingering Questions Of A Supreme Court Decision: The Confines Of The Psychotherapist-Patient Privilege, Jennifer L. Odrobina
Lingering Questions Of A Supreme Court Decision: The Confines Of The Psychotherapist-Patient Privilege, Jennifer L. Odrobina
Cleveland State Law Review
The United States Supreme Court "in light of [its] reason and experience"' has recognized a psychotherapist-patient privilege. The Court has, however, left lingering questions for the lower courts to determine regarding possible exceptions to the privilege. The lower courts have used their own reason and experience to develop exceptions to the privilege. Such exceptions include the crime-fraud exception, waiver exception, and the dangerous-patient exception. Inevitably other exceptions will follow. The Supreme Court should recognize a dangerous patient exception to the psychotherapist-patient privilege to allow a psychotherapist to testify in court when there is "a serious threat of harm to the …
Ohio's Patient-Physician Privilege: Whether Planned Parenthood Is A Protected Party, Melissa O'Neill
Ohio's Patient-Physician Privilege: Whether Planned Parenthood Is A Protected Party, Melissa O'Neill
Journal of Law and Health
This article will suggest that under Ohio's patient-physician privilege, the results of pregnancy tests that are administered at Planned Parenthood clinics will not be considered privileged or confidential information, unless the test is administered by a physician and is later used by a physician in treatment of the woman. In particular, this article will briefly examine the history of a right to medical privacy, the development of the patient-physician privilege and the origin of Planned Parenthood . The notion of very intimate details of a person's health, including diseases, conditions, diagnoses and prognoses being readily available to whoever would like …
Merging Technology With Justice: How Electronic Courtrooms Shape Evidentiary Concerns, Nicole J. De Sario
Merging Technology With Justice: How Electronic Courtrooms Shape Evidentiary Concerns, Nicole J. De Sario
Cleveland State Law Review
This Note will explore the evidentiary issues raised by the Electronic Courtroom, state how they are presently handled, and highlight the need for the adaptation of the Rules to allow for the smooth integration of such technology into the courtroom. Part I explains why the Administrative Office of the U.S. Courts began funding Electronic Courtrooms and how they have grown in numbers. Part II gives details about the type of equipment typically employed in the Electronic Courtroom, using Courtroom 575 as a case study. The observable impacts of technology on a trial also will be noted. Part III contains an …
Introduction Symposium: Toward More Reliable Jury Verdicts - Law, Technology, And Media Development Since The Trials Of Dr. Sam Sheppard , Patricia J. Falk
Introduction Symposium: Toward More Reliable Jury Verdicts - Law, Technology, And Media Development Since The Trials Of Dr. Sam Sheppard , Patricia J. Falk
Cleveland State Law Review
The three Sheppard cases, spread over almost half a century, serve as a point of departure to explore how the multiple forces of law, science, and the media have interacted in criminal trials and in later challenges to the reliability of those trials. The Sheppard cases have resulted in five enduring legacies. Perhaps the most obvious legacy of the Sheppard cases is the new law the case made when it was heard by the United States Supreme Court on a federal habeas corpus appeal. In Sheppard v. Maxwell, the Court created a new legal standard regarding the effects of pretrial …
A Distant Mirror: The Sheppard Case From The Next Millennium, James Robertson
A Distant Mirror: The Sheppard Case From The Next Millennium, James Robertson
Cleveland State Law Review
My own vantage point is that of a trial judge, and for me, revisiting the Sheppard case is a chance to ruminate on the relationship between judges and the media and how judges deal with high profile cases. I will consider that subject, and then meander a little farther along and share a few thoughts about what I call hermetically sealed justice - our modem insistence that judges say nothing and juries know nothing. Finally, I will have a few words to say about DNA evidence and the "reliable verdict" ideal that appears to be one of the propositions to …
Scientific Evidence And The Ethical Obligations Of Attorneys, Michael J. Saks
Scientific Evidence And The Ethical Obligations Of Attorneys, Michael J. Saks
Cleveland State Law Review
This article considers the question: "What are the legal and ethical responsibilities of attorneys when offering scientific expert evidence to courts?" To a lesser extent it considers the responsibilities of attorneys to challenge such evidence when proffered and the ethical dimensions of the working relationship of lawyers and experts. Although the most prominent discussions of such issues have concerned so-called junk science in civil trials, the legal context upon which this article will focus is the criminal trial, where dubious science is more common, less questioned, and has even become institutionalized. The rules and practices of civil cases are provided …
Are Forensic Locksmiths Really Qualified To Testify As Experts In Cases Of Insurance Fraud: An Examination Of The Admissibility Of Forensic Locksmith Opinions Under Rule 702, Chad A. Hester
Cleveland State Law Review
This Note will argue that while forensic locksmiths may be qualified as experts under Rule 702, they should not necessarily be qualified to testify as to which key started a vehicle last. Part I of this note will discuss the basic history and case law which has established the requirements necessary to qualify an expert to testify under the Rule 702. In addition, Part I will discuss the recently enacted amendments to Rule 702 and how the amended Rule 702 has expanded the admissibility of expert witnesses. Part II of this note will discuss the generally accepted procedures of forensic …
Scientific Evidence In The Sam Sheppard Case , Paul C. Giannelli
Scientific Evidence In The Sam Sheppard Case , Paul C. Giannelli
Cleveland State Law Review
My panel is discussing reliable jury verdicts, and my topic is "scientific" evidence. One way to approach this issue is to compare scientific evidence with other methods of proof. The trial lawyers that I worked with viewed cases as falling primarily into one of three categories: eyewitness cases, confession cases, and "scientific" evidence cases. In this scheme, anything that was not an eyewitness, confession, or snitch case was a "scientific evidence" case. These categories, of course, are neither exhaustive nor mutually exclusive; often two and sometimes all three are involved. Nevertheless, these categories are helpful because they present trial attorneys …
Personal Reflections On The Reliability Of Jury Verdicts, Sam Reese Sheppard
Personal Reflections On The Reliability Of Jury Verdicts, Sam Reese Sheppard
Cleveland State Law Review
The symposium presentation given by Dr. Sheppard’s son discussed the impact of the trial on his entire family, as well as the idea of a failed trial. He went through the different juries encountered by his father. He also listed his hopes for the symposium: “What would I hope to come out of a conference like this? First, selfishly, I would hope that it would help us with our new legal endeavor. Second, I hope that we can contribute to serious legal work that deals on realistic and dignified grounds on the problem, both federally and statewide, of wrongful incarceration. …
Here Today, Gone Tomorrow - Three Common Mistakes Courts Make When Police Lose Or Destroy Evidence With Apparent Exculpatory, Elizabeth A. Bawden
Here Today, Gone Tomorrow - Three Common Mistakes Courts Make When Police Lose Or Destroy Evidence With Apparent Exculpatory, Elizabeth A. Bawden
Cleveland State Law Review
Part I of this Article examines the first question, what does it mean for evidence to have "apparent exculpatory value?" Part II of this Article answers the second question, when does Youngblood's bad faith requirement apply in failure to preserve evidence cases? Part III then seeks to determine the substance of Youngblood's bad faith requirement and identify the best approach to defining it. Ultimately, this Article argues that there are three common mistakes that courts make when applying Trombetta and Youngblood.
The Confrontation Clause: Statements Against Penal Interest As A Firmly Rooted Hearsay Exception, Amy N. Loth
The Confrontation Clause: Statements Against Penal Interest As A Firmly Rooted Hearsay Exception, Amy N. Loth
Cleveland State Law Review
This Article will explore why these types of confessions, called self-inculpatory statements, should be admissible under the Confrontation Clause of the Sixth Amendment. Part IIA of this Article will discuss the two-part test set forth in Ohio v. Roberts. Part IIB will address Lilly v. Virginia, the Supreme Court's first attempt to resolve whether statements against penal interest are sufficiently reliable to be admissible under the Confrontation Clause. Part IIB will also explore the distinction between self-inculpatory and non-self-inculpatory statements, what constitutes a "firmnly rooted" hearsay exception, and also the policy concerns behind creating a "firmly rooted" hearsay exception. Part …
The Parent-Child Testimonial Privilege - Has The Time For It Finally Arrived, Amee A. Shah
The Parent-Child Testimonial Privilege - Has The Time For It Finally Arrived, Amee A. Shah
Cleveland State Law Review
Academics and courts in the United States have been grappling with the issue of compelled parent or child testimony for more than twenty-five years. This article uses the bills of the late-1990s proposed in the House and Senate to analyze the parent-child privilege debate. First, this article will discuss the history of the parent-child privilege. Next, the proposed bills will be evaluated to determine their effectiveness in achieving their goals and in resolving the debate. This article will then discuss the effects that the passage or nonpassage of these bills (particularly the House bill) would have. Finally, this article proposes …
The Admissibility Of Medical Testimony In Ohio: Daubert, Joiner And Ohio's Relevance-Reliability Standard, Gerald J. Todaro
The Admissibility Of Medical Testimony In Ohio: Daubert, Joiner And Ohio's Relevance-Reliability Standard, Gerald J. Todaro
Cleveland State Law Review
This article specifically examines the reliability standard imposed under Rule 702 of the Ohio Rules of Evidence and its application to medical expert testimony in Ohio. Section II reviews Daubert, its progeny, and Ohio law. This analysis reveals tension between Ohio's flexible relevance/reliability standard and the more exacting demands of Daubert. Section III examines the scientific basis of clinical diagnosis and treatment of illness and disease. This section argues that judges should take judicial notice of the conventional methodology underlying the clinical practice of medicine, and thus the preliminary question of reliability of medical expert testimony should rarely require a …
Rape Shield Statutes And The Admissibility Of Evidence Tending To Show A Motive To Fabricate 1998 John M. Manos Writing Competition On Evidence, Regan Kreitzer Latesta Clerk For United States Bankruptcy Court For The District Of Maryland
Rape Shield Statutes And The Admissibility Of Evidence Tending To Show A Motive To Fabricate 1998 John M. Manos Writing Competition On Evidence, Regan Kreitzer Latesta Clerk For United States Bankruptcy Court For The District Of Maryland
Cleveland State Law Review
Rape shield statutes were enacted in order to protect the rape victim from embarrassment and humiliation at the trial of the accused by restricting the admission of sexual conduct evidence. While these statutes, for the most part, succeed in protecting the victim and encouraging her to report the rape, they can have the effect of limiting the accused's ability to defend himself. Part II of this article discusses the advent of rape shield statutes in the United States. Part III examines case law construing the statutes with regard to prior sexual conduct as evidence of a motive to fabricate. Finally, …
Shaken Baby Syndrome: Who Are The True Experts, Joseph D. Hatina
Shaken Baby Syndrome: Who Are The True Experts, Joseph D. Hatina
Cleveland State Law Review
Shaken baby syndrome is a serious form of child maltreatment, often involving infants younger than six months of age. It commonly occurs, yet it is frequently overlooked in its most chronic form and underdiagnosed in its most serious expression. Section II of this article will discuss the symptoms, presentation, and clinical findings of shaken baby syndrome. It will conclude by looking at recommendations from the U.S. Advisory Board on Child Abuse and Neglect. Section III delves into the history, function and statistics of Child Death Review Teams on a national level. The discussion ends by examining Ohio's proposed legislation concerning …
Seeing Is Believing: A Practitioner's Guide To The Admissibility Of Demonstrative Computer Evidence, 1998 John M. Manos Writing Competition On Evidence , Karen D. Butera
Seeing Is Believing: A Practitioner's Guide To The Admissibility Of Demonstrative Computer Evidence, 1998 John M. Manos Writing Competition On Evidence , Karen D. Butera
Cleveland State Law Review
As computer equipment itself becomes more financially accessible, more experts are using computer simulations as demonstrative evidence during their trial testimony. However, this use of computer simulations presents several novel, complex issues. Part II will explore the backgrounds of demonstrative evidence, computerization, and the use of computer simulation for demonstrative evidence. Part III will discuss and analyze several relevant issues, including attorney training, expert knowledge, judicial confusion, additional evidentiary issues, and the possible prejudicial influence of demonstrative computer simulations. This discussion concludes with some general thoughts regarding the use of demonstrative computer simulation to illustrate expert testimony.
Courts' Evolving Roles In Daubert Decisions, Susan J. Becker
Courts' Evolving Roles In Daubert Decisions, Susan J. Becker
Law Faculty Articles and Essays
In Daubert, the Supreme Court interpreted Federal Rule of Evidence 702 to permit an arguably more-relaxed standard for the admission of expert scientific evidence than previously allowed under the popular Frye test.