Law Commons^™

Evidence, John E. Hall Jr., W. Scott Henwood

Mercer Law Review

As you may know, July 11, 2010, marked the fiftieth anniversary of Harper Lee's Pulitzer Prize-winning classic, To Kill A Mockingbird, which anecdotally inspired many in the South and beyond to enter the legal profession. Therefore, it is fitting to open this Article with Atticus Finch's oft-quoted closing statement:

The state has not produced one iota of medical evidence ... that the crime Tom Robinson is charged with ever took place ... ...

I am confident that you gentlemen will review without passion the evidence you have heard, come to a decision, and restore this defendant to his family. …

Evidence, Joseph B. Harvey

Cal Law Trends and Developments

The principal developments and trends to be noted in the law of evidence appeared this year in appellate Court decisions. The legislative changes were few. Only one legislative change seems likely to be of any significance and will be felt primarily by drivers accused of being under the influence of intoxicating liquor. For lawyers, the notable developments appear in the case law; it is likely that the courts will remain the primary arena for the development of the law of evidence for some time to come.

Evidence, Joseph B. Harvey

Cal Law Trends and Developments

On January 1, 1967, the California Evidence Code began to govern trials held in California courts. Because of the delays necessarily incident to litigation, the appellate courts were not called upon to review trials held under the new rules in significant numbers until 1968. With the 1968 decisions, however, the impact of the Code upon California practice has become fairly apparent. At the same time, the courts have continued to develop rules of evidence designed to implement the various procedural guarantees found in the Constitution of the United States, and some of these court-developed rules have had significant effect, particularly …

Evidence, Ronan E. Degnan

Cal Law Trends and Developments

This survey is concerned with case law as well as with statutes, but the cases selected will be of primary interest because they shed some light on how California courts are apt to interpret the statutes. Somewhat paradoxically, this requires some preference for dictum over holding. The clear holdings from all but the very end of the calendar year were applications of the old law, because the appellate courts were still disposing of the cases that had gone to trial before January 1, 1967. But the appellate judges were alert to the new Code, and frequently they would consider how …

Limits Of The Inevitable Discovery Doctrine In United States V. Young: The Intersection Of Private Security Guards, Hotel Guests, And The Fourth Amendment, Lauren Young Epstein

Golden Gate University Law Review

This Note analyzes the Young court’s opinion and the potential consequences of the majority’s cursory rejection of the government’s inevitable discovery argument. This Note also reconciles the differing applications of the inevitable discovery doctrine by the Young majority and dissent and highlights the speculative nature of employing the inevitable discovery doctrine based on the facts of Young. Part I of this Note presents the background of the case and the historical development of Fourth Amendment jurisprudence, focusing on the inevitable discovery doctrine as articulated by the Supreme Court in Nix v. Williams. Part II outlines the Young decision and analyzes …

United States V. Payton: Redefining The Reasonableness Standard For Computer Searches And Seizures, Susan A. Rados

Golden Gate University Law Review

This Note examines United States v. Payton and the issue of when it is reasonable to search a computer if it is not expressly authorized on the search warrant. Part I discusses the background facts of Payton and the Fourth Amendment. Part II analyzes why the Ninth Circuit ultimately decided Payton correctly but focused on the wrong underlying reason in its holding. The reasonableness standard for computer searches should be whether the computer “could” contain the evidence, rather than the stricter standard of “would” contain the evidence announced in Payton. However, because computers are different from traditional containers, they should …

Possession Of Reading Material And Intent To Commit A Crime In United States V. Curtin, Anna L. Benvenue

Golden Gate University Law Review

The majority opinion in United States v. Curtin held that simple possession of reading material can be evidence of a defendant's criminal intent, even without proof that the accused ever read the materials. Circuit Judge Stephen S. Trott, who wrote the majority decision, overruled prior Ninth Circuit precedent that would have made such evidence inadmissible as irrelevant under Federal Rule of Evidence 401. However, the majority also found the district court judge's failure to properly analyze the evidence under Rule 403 warranted reversal and remand. As a result, the remaining seven judges on the panel filed or joined concurrences, rather …

To Download Or Not To Download: Is Mere Membership Enough To Justify A Search Of A Home Computer For Child Pornography Under United States V. Gourde?, Erin Frazor

Golden Gate University Law Review

In the nine to two decision by the en banc Ninth Circuit panel in United States v. Gourde, the court ruled that probable cause existed to search the defendant's home computer based in part on his two-month subscription to a website that offered child pornography. The majority opinion sought to conform to Supreme Court precedent in its probable cause analysis, while the dissenting opinions expressed great concern about the door being opened to this type of governmental invasion of privacy. Gourde has sparked reactions by commentators regarding the implications of the decision, and has influenced the analysis of subsequent child …

Reinforcing The Hague Convention On Taking Evidence Abroad After Blocking Statutes, Data Privacy Directives, And Aerospatiale, Brian Friederich

San Diego International Law Journal

There has always been tension between European countries and the United States on the topic of evidence gathering. Much of that tension stems from the inherent differences between common and civil policies and methods. Until the Hague Convention, the process for obtaining evidence abroad was cumbersome and unreliable. The Hague Convention sought to change that by providing signatory countries more effective methods of cooperating with each other in international litigation. However, the Hague Convention has not been able to achieve its purpose, at least not in the United States. U.S. courts have interpreted the Hague Convention as optional, meaning it …

The Admissibility Of Electronic Business Records, Ken Chasse

Canadian Journal of Law and Technology

The business record provisions of the Evidence Acts determine a record’s admissibility by evidence of its history, which must be the product of “the usual and ordinary course of business” (or comparable “business activity” wording). The electronic record provisions determine a record’s admissibility by the, “integrity of the electronic records system in which it is recorded or stored.” The difference is, records management (RM) based on “paper records concepts” versus “electronic records systems concepts.” The former is subjective — each business determines its own “usual and ordinary course of business”; the latter, objective — in accor- dance with authoritative standards …

Technology - Konop V. Hawaiian Airlines, Inc., Patricia Defonte

Golden Gate University Law Review

In Konop v. Hawaiian Airlines Inc., the United States Court of Appeals for the Ninth Circuit held that the unauthorized access of the content of a secure website is a violation of the Wiretap Act and the Stored Communications Act. This is the first case to determine whether unauthorized accessing of a secure private website is a violation of the Wiretap Act. This decision is contrary to an earlier decision by the Fifth Circuit in United. States v. Turk, which held that the Wiretap Act required contemporaneous transmission and acquisition of the communication. The Ninth Circuit concluded that the scope …

A Hearsay Exception For Physical Abuse, Karleen F. Murphy

Golden Gate University Law Review

This Comment will trace the history of the hearsay rule under both common law and California law. It examines the early use of the common law state of mind hearsay exception regarding statements of fear and physical abuse. It will also discuss the enactment of the California Evidence Code (hereinafter "Code") and the later codification of the state of mind hearsay exception. In addition, it will examine People v. Ruiz, a case which applied the Code's state of mind hearsay exception to prohibit statements regarding the victims' fear of the defendant and the physical abuse which the defendant inflicted on …

Making The Crucial Connection: A Proposed Threat Hearsay Exception, Donna Meredith Matthews

Golden Gate University Law Review

This article discusses how courts admit and exclude threat hearsay in the domestic homicide context and suggests an approach for admission of such evidence. After analyzing the current evidentiary status of the victim's statements regarding threats in homicide cases in which an apparently abusive spouse/partner is accused, I argue for adoption of a new hearsay exception that permits systematic admission of victims' statements concerning threats and violence by the accused. The victim can no longer speak for herself because she has been killed, often because the law is apparently helpless to intervene on her behalf, even when asked. Consequently, the …

California's Newsgatherer's Shield: Inconsistent Interpretation Means Inadequate Protection, Nora Linda Rousso

Golden Gate University Law Review

This Comment will initially discuss the history of the shield law in California and examine how it has been defined by the courts in the leading cases. It will also discuss New York Times, Delaney and Hallissy in terms of the courts' application of the shield law to those cases. The analyses of New York Times and Hallissy will be contrasted with that of Delaney. This Comment will attempt to show how the New York Times/Hallissy analysis could have been applied to the facts of Delaney and still have yielded the same result. Recommendations will be made with respect to …

Raising The Standard For Expert Testimony: An Unwarranted Obstacle In Proving Claims Of Child Sexual Abuse In Dependency Hearings, Matthew J. Dulka

Golden Gate University Law Review

This comment will examine the Amber B. court's decision to characterize evidence provided by the mental health professionals as scientific evidence and not as expert opinion. Secondly, this comment will explore the desirability of imposing the scientific evidence standard, usually applied in criminal cases, to dependency hearings. Finally, this comment will discuss the implications of the Amber B. decision in light of the already present evidentiary difficulties of proving child sexual abuse claims and the social policy of protecting the welfare of the abused child.

Problems At Daubert: Expert Testimony In Title Vii Sex Discrimination And Sexual Harassment Litigation, Harriet M. Antczak

Buffalo Journal of Gender, Law & Social Policy

No abstract provided.

The French Huissier As A Model For U.S. Civil Procedure Reform, Robert W. Emerson

University of Michigan Journal of Law Reform

Huissiers de justice serve multiple roles in the French legal system. One is that of a court officer who compiles dossiers (reports). In that role, the huissier is d'audiencier (literally translated as "hearing" or "assisting") and works directly for the court system itself.

The huissier's report remains alien to the American lawyer, who is steeped in notions of procedure and "testimonialism" and in principles of fairness which appear ancient, but are rather modern dissimulations of law and equity's rich history in the American tradition. An important aspect of most legal processes, the collection of data in preparation for litigation is …

Evidence, Marc T. Treadwell

Mercer Law Review

I. INTRODUCTION

During the survey year from January 1, 2009 to December 31, 2009, the United States Court of Appeals for the Eleventh Circuit continued its recent trend of limiting the number of its published opinions, a trend discussed in more detail in a previous survey. This Survey will address several unpublished-yet noteworthy-decisions. However, readers should bear in mind Eleventh Circuit Rule 36-2, which provides that "[u~npublished opinions are not considered binding precedent, but they may be cited as persuasive authority." Also note that the court's internal operating procedures suggest an even more limited role for unpublished opinions:

The court …

The Anatomy Of A Search: Intrusiveness And The Fourth Amendment, Renée Mcdonald Hutchins

University of Richmond Law Review

In this essay, I contend that when evaluating the constitutionality of enhanced surveillance devices, the existing test for assessing the occurrence of a Fourth Amendment search should be modified. Specifically, I suggest that intrusiveness should be unambiguously adopted by the Court as the benchmark for assessing and defining the existence of a search under the Fourth Amendment. Moreover, intrusiveness should be clearly defined to require an examination of two factors: the functionality of a challenged form of surveillance and the potential for disclosure created by the device.

Why Modern Evidence Law Lacks Credibility, Daniel D. Blinka

Buffalo Law Review

No abstract provided.

Appealing To The Legislature: A Comparative Analysis Of The Georgia Statutes Regarding Evidence Preservation And Access To Post-Conviction Dna Testing, Joy D. Aceves-Amaya

University of the District of Columbia Law Review

DNA evidence testing is the leading cause of exonerations in criminal cases throughout the United States.2 Yet, without the preservation of evidence in these cases and the ability to subject this evidence to advancing technology in DNA testing, many claims of innocence go unheard and defendants remain incarcerated while the real perpetrators of crime go unpunished. As of September 2009, seven Georgia men have been exonerated by post-conviction DNA testing.3 Such exonerations should be considered "victories for our criminal justice system: they free the innocent, correct miscarriages of justice that undermine public confidence in our criminal justice system, and allow …

No Longer The Right To Remain Silent: Cross-Examining Forensic Analyst Testimony, Casey Unwin

BYU Law Review

No abstract provided.

Juror Testimony Of Racial Bias In Jury Deliberations: United States V. Benally And The Obstacle Of Federal Rule Of Evidence 606(B) , Brandon C. Pond

BYU Law Review

No abstract provided.

No Witness? No Admission: The Tale Of Testimonial Statements And Melendez-Diaz V. Massachusetts, Jody L. Sellers

Mercer Law Review

In Melendez-Diaz v. Massachusetts, the United States Supreme Court held that the Massachusetts trial court's admission into evidence of forensic "certificates of analysis" violated the Confrontation Clause of the Sixth Amendment. Following Crawford v. Washington, the Supreme Court held that the accused has a right to be confronted with the forensic analysts at trial unless "the analysts [are] unavailable to testify at trial" and the accused "had a prior opportunity to cross-examine" the analysts. Melendez-Diaz will have an important impact on criminal evidence procedure, specifically in regard to the potential growth of notice-and-demand statutes.

Herring V. United States: The Continued Erosion Of The Exclusionary Rule, Robert W. Smith

Mercer Law Review

At its inception, the exclusionary rule was relatively straightforward: The use at trial of evidence obtained from a search or seizure that violated a defendant's Fourth Amendment rights was itself a violation of the defendant's constitutional rights. But throughout the exclusionary rule's history, its source, scope, purpose, and applicability have all seen changes, ultimately limiting the situations in which evidence obtained through a Fourth Amendment violation would be suppressed. The key to the limitation of the exclusionary rule was the United States Supreme Court's eventual conclusion that the use at trial of illegally seized evidence does not always violate the …

Expanding The Scope Of The Good-Faith Exception To The Exclusionary Rule To Include A Law Enforcement Officer's Reasonable Reliance On Well-Settled Case Law That Is Subsequently Overruled , Ross M. Oklewicz

American University Law Review

No abstract provided.

The Expanding Duties Of Esi And In-House Counsel: Providing Defensible Preservation And Production Efforts After Swofford V. Eslinger, David W. Degnan

Richmond Journal of Law & Technology

As a general rule, companies and government agencies should plan for preservation and production before litigation is probable. This means having a document retention program. These programs ensure that documents are retained or deleted in an orderly fashion. If a company properly follows its policies and procedures, this retention program acts as a “shield” against the incomplete preservation of relevant (or “hot”) documents deleted before the proper initiation of a litigation hold. If parties do not follow, or inconsistently follow, such a program, they might have to explain what happened to a missing relevant document. Thus, a retention program might …

A Hedgehog On The Witness Stand-What's The Big Idea?: The Challenges Of Using Daubert To Assess Social Science And Nonscientific Testimony, Maxine D. Goodman

American University Law Review

No abstract provided.

The Case For Semi-Strong-Form Corporate Scienter In Securities Fraud Actions, Paul B. Maslo

Michigan Law Review First Impressions

The mental state of scienter - intent to defraud - is a required element of a securities fraud claim. The scienter inquiry is fairly straightforward when the defendant is an individual. It is more complex when a corporate entity is involved because a corporation can only act through its agents; it has no mind of its own. This article compares the three approaches courts have used to impute scienter to corporate defendants in the securities fraud context and concludes by recommending the approach which strikes an appropriate balance between several dueling public policy concerns.

The Process Is The Problem: Lessons Learned From United States Drug Sentencing Reform, Erik S. Siebert

University of Richmond Law Review

No abstract provided.