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Articles 1 - 30 of 58
Full-Text Articles in Law
Can Judges Ignore Inadmissible Information? The Difficulty Of Deliberately Disregarding, Andrew J. Wistrich, Chris Guthrie, Jeffrey J. Rachlinski
Can Judges Ignore Inadmissible Information? The Difficulty Of Deliberately Disregarding, Andrew J. Wistrich, Chris Guthrie, Jeffrey J. Rachlinski
Jeffrey J. Rachlinski
Due process requires courts to make decisions based on the evidence before them without regard to information outside of the record. Skepticism about the ability of jurors to ignore inadmissible information is widespread. Empirical research confirms that this skepticism is well-founded. Many courts and commentators, however, assume that judges can accomplish what jurors cannot. This article reports the results of experiments we have conducted to determine whether judges can ignore inadmissible information. We found that the judges who participated in our experiments struggled to perform this challenging mental task. The judges had difficulty disregarding demands disclosed during a settlement conference, …
Burden Of Proof, Prima Facie Case And Presumption In Wto Dispute Settlement, John J. Barceló Iii
Burden Of Proof, Prima Facie Case And Presumption In Wto Dispute Settlement, John J. Barceló Iii
John J. Barceló III
The essay maintains that the WTO Appellate Body's concepts and terminology concerning a claimant's burden of proof-the concepts of prima facie case, presumption, and burden shifting-are disturbingly ambiguous and potentially misleading. This is so whether one thinks of these terms from either a common law or a civil law perspective. In the face of the current ambiguity, a future panel might understand the AB's prima facie case concept to require an overwhelming level of proof from the claimant. On the other hand, a different panel might allow a rather weak level of claimant's proof to meet the prima facie requirement, …
Say Sorry And Save: A Practical Argument For A Greater Role For Apologies In Medical Malpractice Law, Matthew Pillsbury
Say Sorry And Save: A Practical Argument For A Greater Role For Apologies In Medical Malpractice Law, Matthew Pillsbury
University of Massachusetts Law Review
This article examines both the potential benefits and detriments of the use of an apology in a legal setting. This article uses the specific environment surrounding a medical malpractice case to help illustrate how and why an apology should or should not be proffered by the Defendant. Ultimately, the reader of this article should have a solid understanding of how an apology can be admissible as evidence in the litigation of a medical malpractice lawsuit.
Strengths, Limitations, And Controversies Of Dna Evidence, Naseam Rachel Behrouzfard
Strengths, Limitations, And Controversies Of Dna Evidence, Naseam Rachel Behrouzfard
University of Massachusetts Law Review
This article explores the benefits of DNA evidence as well as the evidentiary problems associated with DNA. Part II discusses the history, development, and the emergence of DNA in the criminal justice system. Part III analyzes the significance of DNA evidence and its impact on recent cases. Part IV describes the disadvantages of DNA evidence in terms of efficiency, risks, human error, and its impact on jurors.
Dna In The Courtroom: The 21st Century Begins, James T. Griffith, Susan L. Leclair
Dna In The Courtroom: The 21st Century Begins, James T. Griffith, Susan L. Leclair
University of Massachusetts Law Review
DNA is one of the most significant discoveries in the field of forensic evidence yet it remains underutilized in the courtroom setting. This article provides an introduction to the scientific principles, structure and composition of DNA in an effort to make DNA more accessible to the judicial process.
Effective Use Of War Stories In Teaching Evidence, Michael L. Seigel
Effective Use Of War Stories In Teaching Evidence, Michael L. Seigel
Michael L Seigel
There are many ways to teach any law course successfully, including Evidence. It can be approached from a very theoretical perspective or a very practical one. Some professors still use the tried and true case method, while others have moved more toward a problem-oriented approach. Others use movie clips to illustrate important points. A minority of professors have even adopted a NITA approach, essentially teaching Evidence through Trial Practice. This Essay does not advocate any particular method for teaching Evidence. It does take the position, however, that if an Evidence professor has some practical experience, he or she would be …
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 …
Symposium On The Challenges Of Electronic Evidence, Panel Discussion
Symposium On The Challenges Of Electronic Evidence, Panel Discussion
Fordham Law Review
The Phillip D. Reed Lecture Series: Advisory Committee on Evidence Rules
Architects Of Justice: The Prosecutor’S Role And Resolving Whether Inadmissible Evidence Is Material Under The Brady Rule, Blaise Niosi
Architects Of Justice: The Prosecutor’S Role And Resolving Whether Inadmissible Evidence Is Material Under The Brady Rule, Blaise Niosi
Fordham Law Review
In Brady v. Maryland, the U.S. Supreme Court held that the prosecution has a constitutional duty to disclose evidence favorable to the defendant’s guilt or punishment upon request. The Court’s subsequent expansion of its holding in Brady has formed the “Brady rule,” which requires the prosecution to learn of and to disclose to the defendant all material exculpatory and impeachment information. The Court defined “material” as information that would cause a reasonable probability of a different trial outcome had it been disclosed.
Currently, a circuit court split exists regarding whether evidence is material for purposes of the Brady …
The Case For Ehearsay, Jeffrey Bellin
The Adverse Inference Instruction After Revised Rule 37(E): An Evidence-Based Proposal, Shira A. Sheindlin, Natalie M. Orr
The Adverse Inference Instruction After Revised Rule 37(E): An Evidence-Based Proposal, Shira A. Sheindlin, Natalie M. Orr
Fordham Law Review
No abstract provided.
The Court As Gatekeeper: Preventing Unreliable Pretrial Ediscovery From Jeopardizing A Reliable Fact-Finding Process, Daniel K. Gelb
The Court As Gatekeeper: Preventing Unreliable Pretrial Ediscovery From Jeopardizing A Reliable Fact-Finding Process, Daniel K. Gelb
Fordham Law Review
No abstract provided.
Memorandum: Hearsay Exception For Electronic Communications Of Recent Perception, Daniel J. Capra
Memorandum: Hearsay Exception For Electronic Communications Of Recent Perception, Daniel J. Capra
Fordham Law Review
No abstract provided.
Contents May Have Shifted: Disentangling The Best Evidence Rule From The Rule Against Hearsay, Colin Miller
Contents May Have Shifted: Disentangling The Best Evidence Rule From The Rule Against Hearsay, Colin Miller
Washington and Lee Law Review Online
The rule against hearsay covers a statement offered to prove the truth of the matter asserted but does not cover a statement offered for another purpose. Meanwhile, the Best Evidence Rule states that a party seeking to prove the content of a writing, recording, or photograph must produce the original or account for its nonproduction. Does this mean that the Rule is inapplicable when a party seeks to prove something other than the truth of the matter asserted in a writing, recording or photograph? Most courts have answered this question in the affirmative. This essay argues these courts are wrong.
Court Of Appeals Of New York, In The Matter Of Nassau County Grand Jury Subpoena Duces Tecum Dated June 24, 2003 "Doe Law Firm" V. Spitzer, Christin Harris
Court Of Appeals Of New York, In The Matter Of Nassau County Grand Jury Subpoena Duces Tecum Dated June 24, 2003 "Doe Law Firm" V. Spitzer, Christin Harris
Touro Law Review
No abstract provided.
Supreme Court, New York County, People V. Vasquez, Jessica Goodwin
Supreme Court, New York County, People V. Vasquez, Jessica Goodwin
Touro Law Review
No abstract provided.
Appellate Division, First Department, People V. Bradley, Kathleen Egan
Appellate Division, First Department, People V. Bradley, Kathleen Egan
Touro Law Review
No abstract provided.
Evidentiary Use Of Photographic Identification: Is It Time For New York To Reevaluate Its Singular Exception?, Daniela Giordano
Evidentiary Use Of Photographic Identification: Is It Time For New York To Reevaluate Its Singular Exception?, Daniela Giordano
Touro Law Review
No abstract provided.
Evidence Of Lies And Rules Of Evidence: The Admissibility Of Fmri-Based Expert Opinion Of Witness Truthfulness, William A. Woodruff
Evidence Of Lies And Rules Of Evidence: The Admissibility Of Fmri-Based Expert Opinion Of Witness Truthfulness, William A. Woodruff
William A. Woodruff
No abstract provided.
Why Judges Applying The Daubert Trilogy Need To Know About The Social, Institutional, And Rhetorical -- And Not Just The Methodological Aspects Of Science, Lewis H. Larue, David S. Caudill
Why Judges Applying The Daubert Trilogy Need To Know About The Social, Institutional, And Rhetorical -- And Not Just The Methodological Aspects Of Science, Lewis H. Larue, David S. Caudill
David S Caudill
In response to the claim that many judges are deficient in their understanding of scientific methodology, this Article identifies in recent cases (i) a pragmatic perspective on the part of federal appellate judges when they reverse trial judges who tend to idealize science (i.e., who do not appreciate the local and practical goals and limitations of science), and (ii) an educational model of judicial gatekeeping that results in reversal of trial judges who defer to the social authority of science (i.e., who mistake authority for reliability). Next, this Article observes that courts (in the cases it analyzes) are not interested …
Section 6: Criminal, Institute Of Bill Of Rights Law, William & Mary Law School
Section 6: Criminal, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
The Use And Misuse Of Econometric Evidence In Employment Discrimination Cases, Joni Hersch, Blair Druhan Bullock
The Use And Misuse Of Econometric Evidence In Employment Discrimination Cases, Joni Hersch, Blair Druhan Bullock
Washington and Lee Law Review
Statistical analyses play an important role in employment discrimination cases, as the Supreme Court has long recognized. Regression analysis can help a plaintiff establish a claim of discrimination under Title VII of the Civil Rights Act of 1964 by showing that, even when controlling for relevant characteristics, individuals of a certain class were treated differently than other employees or applicants. It can also help a defendant rebut such a claim by showing that differential treatment was due to characteristics other than being a member of a protected class. Yet, too often, opposing experts present invalid rebuttal evidence that the jury …
Litigation Technology For The Modern Practitioner, Jonathan H. Lomurro Esq. Llm, Christopher T. Campbell Esq, Matthew K. Blaine Esq, Stephanie L. Lomurro Esq, Christina V. Harvey Esq
Litigation Technology For The Modern Practitioner, Jonathan H. Lomurro Esq. Llm, Christopher T. Campbell Esq, Matthew K. Blaine Esq, Stephanie L. Lomurro Esq, Christina V. Harvey Esq
Jonathan H. Lomurro Esq. LLM
No abstract provided.
Death By Daubert: The Continued Attack On Private Antitrust, Christine P. Bartholomew
Death By Daubert: The Continued Attack On Private Antitrust, Christine P. Bartholomew
Journal Articles
In 2011, with five words of dicta, the Supreme Court opened Pandora’s box for private antitrust enforcement. By suggesting trial courts must evaluate the admissibility of expert testimony at class certification, the Court placed a significant obstacle in the path of antitrust class actions. Following the Supreme Court’s lead, most courts now permit parties to bring expert challenges far earlier than the traditional summary judgment or pretrial timing. Premature rejection of expert testimony dooms budding private antitrust suits — cases that play an essential role in modern antitrust enforcement. The dangers for private antitrust plaintiffs are compounded by the Court’s …
Dna Helps Clear Man's Name From Rape Charge After 24 Years, Colin Starger
Dna Helps Clear Man's Name From Rape Charge After 24 Years, Colin Starger
All Faculty Scholarship
No abstract provided.
Breaking The Ice: How Plaintiffs May Establish Premises Liability In "Black Ice" Cases Where The Dangerous Condition Is By Definition Not Visible Or Apparent To The Property Owner, Hon. Mark Dillon
Hon. Mark C. Dillon
Plaintiffs that are injured as a result of encounters with "black ice," as distinguished from regular ice, face peculiar difficulties in establishing liability against property owners for the dangerous icy conditions on their premises. Black ice results from a unique process under certain conditions by which air bubbles are expelled from water during the freezing process, rendering the ice virtually invisible to the naked eye. Property owners therefore are not typically on actual or constructive notice of black ice conditions as to become subject to the legal requirement of undertaking measures to remedy the conditions. This article explores the law …
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 …
Trial By Google: Judicial Notice In The Information Age, Jeffrey Bellin, Andrew Guthrie Ferguson
Trial By Google: Judicial Notice In The Information Age, Jeffrey Bellin, Andrew Guthrie Ferguson
Faculty Publications
This Article presents a theory of judicial notice for the information age. It argues that the ease of accessing factual data on the Internet allows judges and litigants to expand the use of judicial notice in ways that raise significant concerns about admissibility, reliability, and fair process. State and federal courts are already applying the surprisingly pliant judicial notice rules to bring websites ranging from Google Maps to Wikipedia into the courtroom, and these decisions will only increase in frequency in coming years. This rapidly emerging judicial phenomenon is notable for its ad hoc and conclusory nature—attributes that have the …
State V. Pierce: Refining The Standard For The Admission Of Polygraph Evidence, Anton L. Jackson
State V. Pierce: Refining The Standard For The Admission Of Polygraph Evidence, Anton L. Jackson
Tennessee Journal of Law and Policy
Although the inadmissibility of polygraph evidence in the course of a criminal trial has been well-established law in Tennessee for almost fifty years, the quandary presented itself two years ago in State v. Pierce.' This case forced the Tennessee Supreme Court to balance the need to protect state citizens against sexual predators with the wellestablished rules of evidence which hold that "polygraph evidence is inherently unreliable, and therefore irrelevant and inadmissible. ' In Pierce, the issue before the court was whether polygraph test results, which were performed as part of a sex offender risk assessment and encouraged by leading psychosexual …
The Mother's Day Column: Parent-Child Evidentiary Privilege In Montana, Cynthia Ford
The Mother's Day Column: Parent-Child Evidentiary Privilege In Montana, Cynthia Ford
Faculty Journal Articles & Other Writings
In this article the author examines the lack of parent-child evidentiary privilege in Montana.