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Articles 31 - 60 of 98
Full-Text Articles in Law
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
The History Of Children's Hearsay: From Old Bailey To Post-Davis, Thomas D. Lyon, Raymond Lamagna
The History Of Children's Hearsay: From Old Bailey To Post-Davis, Thomas D. Lyon, Raymond Lamagna
Thomas D. Lyon
The papers in this symposium were originally prepared for the Section on Evidence of the 2007 Annual Meeting of the Association of American Law Schools.
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.
Systemic Lying, Julia Simon-Kerr
Systemic Lying, Julia Simon-Kerr
Julia Simon-Kerr
This Article offers the foundational account of systemic lying from a definitional and theoretical perspective. Systemic lying involves the cooperation of multiple actors in the legal system who lie or violate their oaths across cases for a consistent reason that is linked to their conception of justice. It becomes a functioning mechanism within the legal system and changes the operation of the law as written. By identifying systemic lying, this Article challenges the assumption that all lying in the legal system is the same. It argues that systemic lying poses a particular threat to the legal system. This means that …
Inefficient Evidence, Alex Stein
Inefficient Evidence, Alex Stein
Alex Stein
Why set up evidentiary rules rather than allow factfinders to make decisions by considering all relevant evidence? This fundamental question has been the subject of unresolved controversy among scholars and policymakers since it was raised by Bentham at the beginning of the nineteenth century. This Article offers a surprisingly straightforward answer: An economically minded legal system must suppress all evidence that brings along a negative productivity-expense balance and is therefore inefficient. Failure to suppress inefficient evidence will result in serious diseconomies of scale. To operationalize this idea, I introduce a “signal-to-noise” method borrowed from statistics, science, and engineering. This method …
The New Doctrinalism: Implications For Evidence Theory, Alex Stein
The New Doctrinalism: Implications For Evidence Theory, Alex Stein
Alex Stein
This Article revisits and refines the organizing principles of evidence law: case specificity, cost minimization, and equal best. These three principles explain and justify all admissibility and sufficiency requirements of the law of evidence. The case-specificity principle requires that factfinders base their decisions on the relative plausibility of the stories describing the parties’ entitlement–accountability relationship. The cost-minimization principle demands that factfinders minimize the cost of errors and the cost of avoiding errors as a total sum. The equal-best principle mandates that factfinders afford every person the maximal feasible protection against risk of error while equalizing that protection across the board. …
Law, Science, And The Economy: One Domain?, David S. Caudill
Law, Science, And The Economy: One Domain?, David S. Caudill
David S Caudill
In an effort to explore the theoretical and practical promise of ignoring or erasing conventional boundaries and distinctions—such as law/society or inside/outside—in accounts of legal processes and institutions, I consider the problem of financial bias in scientific expertise. I first draw an analogy with science studies, and particularly Latour’s notion of science as a coproduction, which challenges the boundaries (i) between science and society, and (ii) between natural and social influences on the production of scientific knowledge. I then acknowledge the efforts of Philip Mirowski, in his concern that privatization trends degrade science, to overcome an individualistic perspective on financial …
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, …
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 …
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 …
Painful Disparities, Painful Realities, Amanda C. Pustilnik
Painful Disparities, Painful Realities, Amanda C. Pustilnik
Amanda C Pustilnik
Legal doctrines and decisional norms treat chronic claims pain differently than other kinds of disability or damages claims because of bias and confusion about whether chronic pain is real. This is law’s painful disparity. Now, breakthrough neuroimaging can make pain visible, shedding light on these mysterious ills. Neuroimaging shows these conditions are, as sufferers have known all along, painfully real. This Article is about where law ought to change because of innovations in structural and functional imaging of the brain in pain. It describes cutting-edge scientific developments and the impact they should make on evidence law and disability law, and, …
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
Tell Us A Story, But Don't Make It A Good One: Resolving The Confusion Regarding Emotional Stories And Federal Rule Of Evidence 403, Cathren Page
Cathren Page
Abstract: Tell Us a Story, But Don’t Make It A Good One: Resolving the Confusion Regarding Emotional Stories and Federal Rule of Evidence 403 by Cathren Koehlert-Page Courts need to reword their opinions regarding Rule 403 to address the tension between the advice to tell an emotionally evocative story at trial and the notion that evidence can be excluded if it is too emotional. In the murder mystery Mystic River, Dave Boyle is kidnapped in the beginning. The audience feels empathy for Dave who as an adult becomes one of the main suspects in the murder of his friend Jimmy’s …
A Simple Theory Of Complex Valuation, Julia Simon-Kerr, Anthony Casey
A Simple Theory Of Complex Valuation, Julia Simon-Kerr, Anthony Casey
Julia Simon-Kerr
Complex valuations of assets, companies, government programs, damages, and the like cannot be done without expertise, yet judges routinely pick an arbitrary value that falls somewhere between the extreme numbers suggested by competing experts. This creates costly uncertainty and undermines the legitimacy of the court. Proposals to remedy this well-‐‑recognized difficulty have become increasingly convoluted. As a result, no solution has been effectively adopted and the problem persists. This article suggests that the valuation dilemma stems from a misconception of the inquiry involved. Courts have treated valuation as its own special type of inquiry distinct from traditional fact finding. We …
Beyond Resqnet: Clarifying The Standard For The Use Of Patent Settlements, Tejas N. Narechania, Jackson Taylor Kirklin
Beyond Resqnet: Clarifying The Standard For The Use Of Patent Settlements, Tejas N. Narechania, Jackson Taylor Kirklin
Tejas N. Narechania
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 …
Understanding The Law Of Evidence Through The Lens Of Signal-To-Noise, Alex Stein
Understanding The Law Of Evidence Through The Lens Of Signal-To-Noise, Alex Stein
Alex Stein
No abstract provided.
"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 …
Lawyers Judging Experts: Oversimplifying Science And Undervaluing Advocacy To Construct An Ethical Duty?, David S. Caudill
Lawyers Judging Experts: Oversimplifying Science And Undervaluing Advocacy To Construct An Ethical Duty?, David S. Caudill
David S Caudill
My focus is on an apparent trend at the intersection of the fields of evidentiary standards for expert admissibility and professional responsibility, namely the eagerness to place more ethical responsibilities on lawyers to vet their proffered expertise to ensure its reliability. My reservations about this trend are not only based on its troubling implications for the lawyer’s duty as a zealous advocate, which already has obvious limitations (because of lawyers’ conflicting duties to the court), but are also based on the problematic aspects of many reliability determinations. To expect attorneys - and this is what the proponents of a duty …
Arsenic And Old Chemistry: Images Of Mad Alchemists, Experts Attacking Experts, And The Crisis In Forensic Science, David S. Caudill
Arsenic And Old Chemistry: Images Of Mad Alchemists, Experts Attacking Experts, And The Crisis In Forensic Science, David S. Caudill
David S Caudill
Drawing on research into the use of experts in early 19th-century criminal trials, the image of mad alchemists in popular culture representations of science, and the distinction between empirical and contingent “interpretive repertoires” in the discourse of scientific controversies, this article explores the controversy over arsenic-detection technologies prior to the Marsh test. In addition to noting the predictable criticism of incompetent expertise in the service of law, this article highlights implied accusations of hubris and amorality on the part of over-confident experts, both in the early 19th-century and in today's crisis of forensic science.
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.
Introduction: Persecution Through Prosecution: Revisiting Touro Law Center’S Conference In Paris On The Dreyfus Affair And The Leo Frank Trial, Rodger D. Citron
Introduction: Persecution Through Prosecution: Revisiting Touro Law Center’S Conference In Paris On The Dreyfus Affair And The Leo Frank Trial, Rodger D. Citron
Rodger Citron
This piece provides the introduction for the Dreyfus affair. It gives a brief overview of the actual Dreyfus affair and outlines the articles in this volume.