Law Commons^™

Justice In A Brave New World?, Jean R. Sternlight

Scholarly Works

As science fiction has become reality, we should consider the implications of our new technologies for our system of justice. In addition to DNA, we are now regularly using cameras, geo-tracking, facial recognition software, brain scans, computers, and much more to discern and record our physical and mental surroundings. Existing technology and more we cannot yet imagine will increasingly take the place of often unreliable evidence, such as that provided by eyewitnesses. Yet, we have given far too little thought as to how these advances should impact our civil and criminal dispute resolution systems.

Historically, many justice systems have emphasized …

Crossing The Line: Daubert, Dual Roles, And The Admissibility Of Forensic Mental Health Testimony, Sara Gordon

Scholarly Works

Psychiatrists and other mental health professionals often testify as forensic experts in civil commitment and criminal competency proceedings. When an individual clinician assumes both a treatment and a forensic role in the context of a single case, however, that clinician forms a dual relationship with the patient—a practice that creates a conflict of interest and violates professional ethical guidelines. The court, the parties, and the patient are all affected by this conflict and the biased testimony that may result from dual relationships. When providing forensic testimony, the mental health professional’s primary duty is to the court, not to the patient, …

This Is Your Sword: How Damaging Are Prior Convictions To Plaintiffs In Civil Trials?, Kathryn M. Stanchi, Deirdre Bowen

Scholarly Works

The conventional wisdom in law is that a prior conviction is one of the most powerful and damaging pieces of evidence that can be offered against a witness or party. In legal lore, prior convictions seriously undercut the credibility of the witness and can derail the outcome of a trial. This Article suggests that may not always be true.

This Article details the results of an empirical study of juror decision-making that challenges the conventional wisdom about prior convictions. In our study, the prior conviction evidence did not have a direct impact on the outcome of the civil trial or …

Evidentiary Wisdom And Blinders In Perspective: Thoughts On Misjudging, Elaine W. Shoben

Scholarly Works

Empirical studies serve to enlighten the law, even when they simply confirm the wisdom of existing rules. Chris Guthrie's article, Misjudging, primarily serves that useful function—confirming the wisdom of existing rules—even though the author sought to establish something different. Guthrie's article applies insights from cognitive psychology to the resolution of legal disputes and presents some empirical proof of the effect of the application. He concludes that three sets of “blinders”—informational, cognitive, and attitudinal—affect the ability of judges to reach correct resolutions of disputes. He therefore recommends further appreciation of the ability of arbitration and mediation to avoid some of the …

On Parol: The Construction And Interpretation Of Written Agreements And The Role Of Extrinsic Evidence In Contract Litigation, Keith A. Rowley

Scholarly Works

As a general rule, extrinsic evidence, whether written or oral, is not admissible to prove either the intent of the parties to a contract or the meaning of contractual terms when the parties have executed an unambiguous, fully-integrated (i.e., final and all-inclusive) written agreement. The trial court may consider various types of extrinsic evidence, however, in determining whether a particular agreement is fully integrated or ambiguous, and even in choosing among rival interpretations of an agreement where ambiguity is not present. If the trial court determines that an agreement is not fully integrated, then the trier of fact may consider …

The Paradox Of The Fresh Complaint Rule, Kathryn M. Stanchi

Scholarly Works

This Article explores the paradox of the fresh complaint rule, evaluates the proposed solutions, and suggests a modified rule as an interim solution. Part II of this Article explores the fresh complaint rule, from its historical roots in the English common law to its evolution in the United States, with special attention to the rationale for the rule, the requirement of freshness, and the standards for the rule's application. Parts III and IV examine the paradox raised by the need for and effectiveness of the rule and its concurrent harmful effects. Part V describes proposed solutions to the paradox and …