Open Access. Powered by Scholars. Published by Universities.®
- Keyword
-
- Federal Rules of Evidence (8)
- St. Mary’s University School of Law (8)
- Evidence (7)
- Dorie Klein (4)
- Hearsay (4)
-
- Character evidence (3)
- Courts (3)
- St. Mary’s Law Journal (3)
- Witness (3)
- Authentication (2)
- Competency of Witnesses (2)
- Damages (2)
- David Schlueter (2)
- Dora Klein (2)
- Dora W. Klein (2)
- Ethics (2)
- Expert testimony (2)
- Federal Rules of Evidence Manual (2)
- Fourth Amendment (2)
- H. Wendorf & D. Schlueter (2)
- Judicial Notice (2)
- Malpractice (2)
- Preservation of Error (2)
- Presumption of innocence (2)
- Public policy (2)
- Relevancy (2)
- Rule 404(b) (2)
- Rule 404(b)(2) (2)
- Rule 410 Rule 407 (2)
- St. Mary's University School of Law (2)
- Publication Year
- Publication
- Publication Type
Articles 1 - 30 of 35
Full-Text Articles in Law
The History Of Forensic-Science Evidence In Criminal Trials And The Role Of Early “Success” In Establishing Its Putative Reliability, Carrie Leonetti
The History Of Forensic-Science Evidence In Criminal Trials And The Role Of Early “Success” In Establishing Its Putative Reliability, Carrie Leonetti
St. Mary's Law Journal
This Article posits the history of forensic-science evidence plays a significant role in the unquestioning manner of its modern acceptance. It traces early high-profile forensic science “successes” and the public reactions to them. It argues the public perception of the “advances” of forensic science continues to play a role in the lack of scrutiny given to these disciplines in admissibility decisions today. It concludes, when it comes to forensic science, history should play a different role by serving as a critical warning rather than a congratulatory buttress.
Judicial Federalism And The Appropriate Role Of The State Supreme Courts: A 20-Year (2000–2020) Study Of These Courts’ Interest Evaluations Of The Fruits And The Attenuation Doctrines, Dannye R. Holley Mr.
Judicial Federalism And The Appropriate Role Of The State Supreme Courts: A 20-Year (2000–2020) Study Of These Courts’ Interest Evaluations Of The Fruits And The Attenuation Doctrines, Dannye R. Holley Mr.
St. Mary's Law Journal
The current composition of the United States Supreme Court increases the probability that the Court will be more likely to side with the government with respect to identifying, evaluating, and reconciling the interest of the government versus those of the people when issues of “policing” reach the high court. This opens the door for state supreme court to independently assess individually and collectively these seemingly competing interests and potentially provide greater protections to the interest of the people.
This Article is a twenty-year study of dozens of state supreme court decisions made during the period of 2000–2020. The decisions focused …
One Step Backward: The Ninth Circuit's Unfortunate Rule 404(B) Decision In United States V. Lague, Dora Klein
One Step Backward: The Ninth Circuit's Unfortunate Rule 404(B) Decision In United States V. Lague, Dora Klein
Faculty Articles
The federal courts' current approach to character evidence is widely recognized as problematic. Although Rule 404(b)(1) categorically prohibits the use of character evidence, Rule 404(b)(2) presents a list of examples of permitted purposes that has tempted courts to view the admission of other-acts evidence as proper so long as the evidence is merely relevant to a non-character purpose. Additionally, courts have misconstrued the inclusive structure of Rule 404(b) as creating a presumption
in favor of admissibility. Recent efforts to correct this mistakenly permissive view include decisions by several of the federal circuit courts of appeals recognizing that Rule 404(b) requires …
“Rule Of Inclusion" Confusion, Dora Klein
“Rule Of Inclusion" Confusion, Dora Klein
Faculty Articles
Some rules of evidence are complex. The federal rules governing the admissibility of hearsay statements,' for example, include at least forty different provisions. Numerous judges and scholars have commented on the complexity of the hearsay rules. Not all rules of evidence are complex, however. For example, the federal rules governing the admissibility of character evidence are relatively straightforward: evidence that is offered for the purpose of proving character is inadmissible, subject to a few well-defined exceptions. Despite this relative straightforwardness, many of the federal circuit courts of appeals have overlaid the rules regarding character evidence particularly Rule 404(b)--with unnecessary interpretive …
Must A Friend Indeed Reveal A Friend’S Misdeed? Exploring The Merits Of A Friendship Privilege, Michael D. Moberly
Must A Friend Indeed Reveal A Friend’S Misdeed? Exploring The Merits Of A Friendship Privilege, Michael D. Moberly
St. Mary's Law Journal
Abstract forthcoming.
Restoring The Presumption Of Innocence: Protecting A Defendant’S Right To A Fair Trial By Closing The Door On 404(B) Evidence, Aaron Diaz
St. Mary's Law Journal
Congress enacted the Federal Rules of Evidence to govern evidentiary procedures and “eliminate unjustifiable expense and delay.” In criminal cases, for example, Federal Rule of Evidence 404(b) seeks to prevent prosecutors from improperly introducing a defendant’s past misdeeds. Nevertheless, prosecutors often attempt to introduce a defendant’s past misconduct to suggest that a defendant has a propensity to commit crimes, which is improper character evidence. Unsurprisingly, 404(b) is one of the most litigated evidence rules and has generated more published opinions than any other subsections of the Rules. And despite efforts to amend Rule 404(b), the rule has remained virtually untouched. …
Standards Of Review In Texas, W. Wendell Hall, Ryan G. Anderson
Standards Of Review In Texas, W. Wendell Hall, Ryan G. Anderson
St. Mary's Law Journal
Abstract forthcoming
Causation And "Legal Certainty" In Legal Malpractice Law, Vincent R. Johnson
Causation And "Legal Certainty" In Legal Malpractice Law, Vincent R. Johnson
St. Mary's Journal on Legal Malpractice & Ethics
A line of California cases holds that causation of damages in legal malpractice actions must be proven with “legal certainty.” This Article argues that judicial references to legal certainty are ambiguous and threaten to undermine the fairness of legal malpractice litigation as a means for resolving lawyer-client disputes. Courts should eschew the language of legal certainty and plainly state that damages are recoverable if a legal malpractice plaintiff proves, by a preponderance of the evidence, that those losses were factually and proximately caused by the defendant’s breach of duty.
"Dirty" Experts: Ethical Challenges Concerning, And A Comparative Perspective On, The Use Of Consulting Experts, David S. Caudill
"Dirty" Experts: Ethical Challenges Concerning, And A Comparative Perspective On, The Use Of Consulting Experts, David S. Caudill
St. Mary's Journal on Legal Malpractice & Ethics
U.S. attorneys often hire consulting experts who potentially never get named as testifying experts. The same practice is evident in Australia, where the colloquial distinction is between a “clean” and a “dirty” expert, the latter being in the role of a consultant who is considered a member of the client’s “legal team.” A “clean” expert named as a witness is then called “independent,” signaling that he or she is not an advocate. In contrast to the U.S. discourse concerning consulting and testifying experts, focused on discovery issues, the conversation in Australia betrays immediate ethical concerns that both (i) explain why …
The Paragraph 20 Paradox: An Evaluation Of The Enforcement Of Ethical Rules As Substantive Law, Donald E. Campbell
The Paragraph 20 Paradox: An Evaluation Of The Enforcement Of Ethical Rules As Substantive Law, Donald E. Campbell
St. Mary's Journal on Legal Malpractice & Ethics
This Article addresses an issue courts across the country continue to struggle with: When are ethics rules appropriately considered enforceable substantive obligations, and when should they only be enforceable through the disciplinary process? The question is complicated by the ethics rules themselves. Paragraph 20 of the Scope section of the Model Rules of Professional Conduct includes seemingly contradictory guidance; it states the Rules are not to be used to establish civil liability, but also that they can be “some evidence” of a violation of a lawyer’s standard of care. Most states have adopted this paradoxal Paragraph 20 language. Consequently, courts …
Hearsay In The Smiley Face: Analyzing The Use Of Emojis As Evidence, Erin Janssen
Hearsay In The Smiley Face: Analyzing The Use Of Emojis As Evidence, Erin Janssen
St. Mary's Law Journal
Abstract forthcoming
The (Mis)Application Of Rule 404(B) Heuristics, Dora W. Klein
The (Mis)Application Of Rule 404(B) Heuristics, Dora W. Klein
Faculty Articles
In all of the federal circuit courts of appeals, application of Rule 404(b) of the Federal Rules of Evidence has been distorted by judicially-created "tests" that, while intended to assist trial courts in properly admitting or excluding evidence, do not actually test for the kind of evidence prohibited by this rule. Rule 404(b) prohibits evidence of "crimes, wrongs, or other acts" if the purpose for admitting the evidence is to prove action in accordance with a character trait. This evidence is commonly referred to as "propensity" evidence, or "once a drug dealer, always a drug dealer" evidence.
This Article examines …
Exemplary And Exceptional Confusion Under The Federal Rules Of Evidence, Dora W. Klein
Exemplary And Exceptional Confusion Under The Federal Rules Of Evidence, Dora W. Klein
Faculty Articles
This Article proposes that the final provisions of Rule 407 and 411, which provide a list of examples of permitted purposes for which a court may admit evidence, are asking for trouble--specifically, the trouble that courts will interpret the list not as examples, but as a specially enumerated, exhaustive list of exceptions.
Network Investigation Techniques: Government Hacking And The Need For Adjustment In The Third-Party Doctrine, Eduardo R. Mendoza
Network Investigation Techniques: Government Hacking And The Need For Adjustment In The Third-Party Doctrine, Eduardo R. Mendoza
St. Mary's Law Journal
Modern society is largely dependent on technology, and legal discovery is no longer limited to hard-copy, tangible documents. The clash of technology and the law is an exciting, yet dangerous phenomena; dangerous because our justice system desperately needs technological progress. The clash between scientific advancement and the search for truth has recently taken an interesting form—government hacking. The United States Government has increasingly used Network Investigation Techniques (NITs) to target suspects in criminal investigations. NITs operate by identifying suspects who have taken affirmative steps to conceal their identity while browsing the Internet. The hacking technique has become especially useful to …
Filming The Police: An Interference Or A Public Service, Aracely Rodman
Filming The Police: An Interference Or A Public Service, Aracely Rodman
St. Mary's Law Journal
Abstract forthcoming.
The Texas Rules Of Evidence: Something Old, Something New, And Something Changed, David A. Schlueter
The Texas Rules Of Evidence: Something Old, Something New, And Something Changed, David A. Schlueter
Faculty Articles
On November 19, 2014, the Texas Supreme Court issued an Order amending all of the Texas Rules of Evidence, effective April 1, 2015. In its Order, the Court explained that the amendments were part of an effort to “restyle” the Rules, to make them as consistent as possible with the Federal Rules of Evidence, and to make them easier to understand.
The 2015 amendments to the Texas Rules of Evidence are a commendable step toward making the Rules more user-friendly. It is clear to even the casual reader that the reformatting of the Rules, through the use of consistent and …
Evidence, David A. Schlueter
Evidence, David A. Schlueter
Faculty Articles
This article addresses some of the more significant evidence cases decided by the Fifth Circuit during the survey period.' Before turning to the cases themselves, it is important to note at the outset that like other federal courts, the Fifth Circuit is generally not inclined to reverse a case on an evidentiary error. It should not be surprising then that in most of the cases which follow, the court implicitly deferred to the decision of the trial judge in deciding whether a certain piece of evidence was admissible.
Evidence, Fifth Circuit Symposium, David A. Schlueter
Evidence, Fifth Circuit Symposium, David A. Schlueter
Faculty Articles
This article reviews decisions by the United States Court of Appeals for the Fifth Circuit on evidence issues and concludes that if an attorney has any hopes of obtaining appellate relief on an evidentiary issue, it is essential that the issues be presented concisely and completely to the trial court. The appellate courts will not reverse an evidentiary ruling of a trial court, even if the trial court has erred. This deference to the trial court is in recognition of the hundreds of rulings on evidence that the trial court must conduct within the course of a trial. In order …
Authentication And Identification Under Article Ix Of The Texas Rules Of Evidence., Olin Guy Wellborn Iii
Authentication And Identification Under Article Ix Of The Texas Rules Of Evidence., Olin Guy Wellborn Iii
St. Mary's Law Journal
Abstract Forthcoming.
State Of The Art Evidence Admissible To Rebut Evidence Of Feasible Design Alternatives., Patricia Mary Mcentee
State Of The Art Evidence Admissible To Rebut Evidence Of Feasible Design Alternatives., Patricia Mary Mcentee
St. Mary's Law Journal
Abstract Forthcoming.
Cross-Examination Of An Expert Witness., C.L. Mike Schmidt
Cross-Examination Of An Expert Witness., C.L. Mike Schmidt
St. Mary's Law Journal
Abstract Forthcoming.
Failure To Relate Exculpatory Story At Pretrial Hearings May Be Used By Prosecution To Impeach Defendant's Testimony At Trial., Stephen F. White
Failure To Relate Exculpatory Story At Pretrial Hearings May Be Used By Prosecution To Impeach Defendant's Testimony At Trial., Stephen F. White
St. Mary's Law Journal
Abstract Forthcoming.
The Coconspirator's Statement: Evaluating Preliminary Questions Of Admissibility Under Rule 801(D)(2)(E)., William S. Sessions, Betsy Hall
The Coconspirator's Statement: Evaluating Preliminary Questions Of Admissibility Under Rule 801(D)(2)(E)., William S. Sessions, Betsy Hall
St. Mary's Law Journal
Abstract Forthcoming.
Proof Of Theft Of Bailed Goods Does Not Of Itself Rebut Presumption Of Bailee's Negligence., Robert E. Corlew Iii
Proof Of Theft Of Bailed Goods Does Not Of Itself Rebut Presumption Of Bailee's Negligence., Robert E. Corlew Iii
St. Mary's Law Journal
Abstract Forthcoming.
Testimony Of Accessory After The Fact Need Not Be Corroborated., Claude M. Mcquarrie Iii
Testimony Of Accessory After The Fact Need Not Be Corroborated., Claude M. Mcquarrie Iii
St. Mary's Law Journal
Abstract Forthcoming.
Exclusion Of Depositions From The Jury Room: An Anachronism In Texas Rule 281., George H. Spencer Jr.
Exclusion Of Depositions From The Jury Room: An Anachronism In Texas Rule 281., George H. Spencer Jr.
St. Mary's Law Journal
Abstract Forthcoming.
Evidence Of Indictment Is Admissible To Show Motive, Bias Or Interest Of A Witness Not A Party To The Prosecution., Jess C. Rickman
Evidence Of Indictment Is Admissible To Show Motive, Bias Or Interest Of A Witness Not A Party To The Prosecution., Jess C. Rickman
St. Mary's Law Journal
Abstract Forthcoming.
Evidence Admissible During The Punishment Stage Of A Criminal Trial., Joseph F. Smith
Evidence Admissible During The Punishment Stage Of A Criminal Trial., Joseph F. Smith
St. Mary's Law Journal
Abstract Forthcoming.
Evidence Of Post-Accident Failures, Modifications And Design Changes In Products Liability Litigation., Don L. Davis
Evidence Of Post-Accident Failures, Modifications And Design Changes In Products Liability Litigation., Don L. Davis
St. Mary's Law Journal
Abstract Forthcoming.
Accused May Be Compelled To Provide Handwriting Exemplars, Voice, Blood, And Urine Samples Without Violating The Constitutional Safeguards Against Self-Incrimination., David Brian Armbrust
Accused May Be Compelled To Provide Handwriting Exemplars, Voice, Blood, And Urine Samples Without Violating The Constitutional Safeguards Against Self-Incrimination., David Brian Armbrust
St. Mary's Law Journal
Abstract Forthcoming.