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Articles 1 - 30 of 45
Full-Text Articles in Law
(Partial) Clarity: Eliminating The Confusion About The Regulation Of The "Fact"Ual Bases For Expert Testimony Under The Federal Rules Of Evidence, Edward J. Imwinkelried
(Partial) Clarity: Eliminating The Confusion About The Regulation Of The "Fact"Ual Bases For Expert Testimony Under The Federal Rules Of Evidence, Edward J. Imwinkelried
William & Mary Law Review
Expert testimony is offered at the vast majority of trials in courts of general jurisdiction in the United States. Federal Rules of Evidence 702-06 govern the admissibility of such testimony. In its May 15, 2021, report accompanying the most recent proposed amendment to Rule 702, the Advisory Committee on the Evidence Rules asserts that “many courts” have misapplied Rule 702 by holding that questions as to whether “the expert has relied on sufficient facts or data ... are questions of weight and not admissibility.” Rule 702(b) states that to be admissible, an expert opinion must be “based on sufficient fact …
"The" Rule: Modernizing The Potent, But Overlooked, Rule Of Witness Sequestration, Daniel J. Capra, Liesa L. Richter
"The" Rule: Modernizing The Potent, But Overlooked, Rule Of Witness Sequestration, Daniel J. Capra, Liesa L. Richter
William & Mary Law Review
Starting with its illustration in the Apocrypha and continuing into the modern day both in courtrooms and in ubiquitous criminal procedurals, one evidence rule has proven so powerful that it has become known as “THE” Rule of Evidence. The rule of witness sequestration demands that multiple witnesses to the same events be examined separately from one another to prevent them from, consciously or subconsciously, tailoring their testimony to ensure that it remains consistent. Witness sequestration is conceptually simplistic and famously mighty. Yet, this bedrock protection against inaccurate trial testimony is imperiled by conflicting interpretations of Federal Rule of Evidence 615, …
Justice Begins Before Trial: How To Nudge Inaccurate Pretrial Rulings Using Behavioral Law And Economic Theory And Uniform Commercial Laws, Michael Gentithes
Justice Begins Before Trial: How To Nudge Inaccurate Pretrial Rulings Using Behavioral Law And Economic Theory And Uniform Commercial Laws, Michael Gentithes
William & Mary Law Review
Injustice in criminal cases often takes root before trial begins. Overworked criminal judges must resolve difficult pretrial evidentiary issues that determine the charges the State will take to trial and the range of sentences the defendant will face. Wrong decisions on these issues often lead to wrongful convictions. As behavioral law and economic theory suggests, judges who are cognitively busy and receive little feedback on these topics from appellate courts rely upon intuition, rather than deliberative reasoning, to resolve these questions. This leads to inconsistent rulings, which prosecutors exploit to expand the scope of evidentiary exceptions that almost always disfavor …
Goldilocks And The Rule 803 Hearsay Exceptions, Liesa L. Richter
Goldilocks And The Rule 803 Hearsay Exceptions, Liesa L. Richter
William & Mary Law Review
Criticism of the hearsay exceptions embodied in the Federal Rules of Evidence has reached a fever pitch in recent years. With scholars calling for the abrogation of the entire hearsay regime or of individual exceptions within it and the Advisory Committee on Evidence Rules exploring hearsay amendments, the time for genuine hearsay soul-searching may be at hand. This Article suggests that aggressive proposals to scuttle existing doctrine entirely in favor of alternative approaches to hearsay are overly broad, rejecting the benefits of significant portions of existing doctrine that are functioning well and threatening costly consequences that could make matters worse …
The Conjunction Problem And The Logic Of Jury Findings, David S. Schwartz, Elliott Sober
The Conjunction Problem And The Logic Of Jury Findings, David S. Schwartz, Elliott Sober
William & Mary Law Review
For several decades, evidence theorists have puzzled over the following paradox, known as the “conjunction paradox” or “conjunction problem.” Probability theory appears to tell us that the probability of a conjunctive claim is the product resulting from multiplying the probabilities of its separate conjuncts. In a three element negligence case (breach of duty, causation, damages), a plaintiff who proves each element to a 0.6 probability will have proven her overall claim to a very low probability of 0.216. Either the plaintiff wins the verdict based on this low probability (if the jury focuses on elements), or the plaintiff loses despite …
Defending Daubert: It's Time To Amend Federal Rule Of Evidence 702, David E. Bernstein, Eric G. Lasker
Defending Daubert: It's Time To Amend Federal Rule Of Evidence 702, David E. Bernstein, Eric G. Lasker
William & Mary Law Review
The 2000 amendments to Rule 702 sought to resolve the debate that had emerged in the courts in the 1990s over the proper meaning of Daubert by codifying the rigorous and structured approach to expert admissibility announced in the Daubert trilogy. Fifteen years later, however, the amendments have only partially accomplished this objective. Many courts continue to resist the judiciary’s proper gatekeeping role, either by ignoring Rule 702’s mandate altogether or by aggressively reinterpreting the Rule’s provisions.
Informed by this additional history of recalcitrance, the time has come for the Judicial Conference to return to the drafting table and finish …
Systemic Lying, Julia Simon-Kerr
Systemic Lying, Julia Simon-Kerr
William & Mary Law Review
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 …
Capping E-Discovery Costs: A Hybrid Solution To E-Discovery Abuse, Karel Mazanec
Capping E-Discovery Costs: A Hybrid Solution To E-Discovery Abuse, Karel Mazanec
William & Mary Law Review
No abstract provided.
Neuroscience In The Courtroom: An International Concern, Dominique J. Church
Neuroscience In The Courtroom: An International Concern, Dominique J. Church
William & Mary Law Review
No abstract provided.
The Restyled Federal Rules Of Evidence, Davison M. Douglas, Sidney A. Fitzwater, Daniel J. Capra, Robert A. Hinkle, Joseph Kimble, Joan N. Ericksen, Marilyn L. Huff, Reena A. Raggi, Geraldine Soat Brown, Edward H. Cooper, Kenneth S. Broun, Harris L. Hartz, Katharine Traylor Schaffzin, Roger C. Park, Deborah J. Merritt, Andrew D. Hurwitz, W. Jeremy Counseller, Paula Hannaford-Agor
The Restyled Federal Rules Of Evidence, Davison M. Douglas, Sidney A. Fitzwater, Daniel J. Capra, Robert A. Hinkle, Joseph Kimble, Joan N. Ericksen, Marilyn L. Huff, Reena A. Raggi, Geraldine Soat Brown, Edward H. Cooper, Kenneth S. Broun, Harris L. Hartz, Katharine Traylor Schaffzin, Roger C. Park, Deborah J. Merritt, Andrew D. Hurwitz, W. Jeremy Counseller, Paula Hannaford-Agor
William & Mary Law Review
A lightly edited transcript of the Symposium held at the William & Mary School of Law on October 28, 2011.
The Unrecognized Right Of Criminal Defendants To Admit Their Own Pretrial Statements, Stephen A. Saltzburg, Daniel J. Capra
The Unrecognized Right Of Criminal Defendants To Admit Their Own Pretrial Statements, Stephen A. Saltzburg, Daniel J. Capra
William & Mary Law Review
In Agard v. Portuondo, the United States Supreme Court held that a prosecutor did not violate a testifying defendant's constitutional rights by inviting the jury to infer from the defendant's presence at trial that the defendant altered his own version of events to accord with other witnesses' testimony. Justice Scalia's opinion for the Court emphasized that jurors might well draw the inference even without a prosecutor asking them to do so. Although Agard is viewed as giving an advantage in a criminal trial to the government, this Article considers how Agard might be used to allow defense counsel to introduce …
Killing Roger Coleman: Habeas, Finality, And The Innocence Gap, Todd E. Pettys
Killing Roger Coleman: Habeas, Finality, And The Innocence Gap, Todd E. Pettys
William & Mary Law Review
For the past fifteen years, the execution of Roger Coleman has served as perhaps the most infamous illustration of the U.S. Supreme Court's determination to help the states achieve finality in their criminal cases. Convicted of rape and murder in 1982, Coleman steadfastly maintained his innocence and drew many supporters to his cause. In its 1991 ruling in Coleman v. Thompson, however, the Court refused to consider the constitutional claims raised in Coleman's habeas petition. The Court ruled that Coleman had forfeited his right to seek habeas relief when, in prior state proceedings, his attorneys mistakenly filed their notice of …
"So I Says To "The Guy,' I Says...": The Constitutionality Of Neutral Pronoun Redaction In Multidefendant Criminal Trials, Bryan M. Shay
"So I Says To "The Guy,' I Says...": The Constitutionality Of Neutral Pronoun Redaction In Multidefendant Criminal Trials, Bryan M. Shay
William & Mary Law Review
No abstract provided.
Aedpa Deference And The Undeveloped State Factual Record: Monroe V. Angelone And New Evidence, Rachel E. Wheeler
Aedpa Deference And The Undeveloped State Factual Record: Monroe V. Angelone And New Evidence, Rachel E. Wheeler
William & Mary Law Review
No abstract provided.
Meaning, Intention, And The Hearsay Rule, Paul F. Kirgis
Meaning, Intention, And The Hearsay Rule, Paul F. Kirgis
William & Mary Law Review
No abstract provided.
Whether The Federal Rules Of Evidence Should Be Conceived As A Perpetual Index Code: Blindness Is Worse Than Myopia, Edward J. Imwinkelried
Whether The Federal Rules Of Evidence Should Be Conceived As A Perpetual Index Code: Blindness Is Worse Than Myopia, Edward J. Imwinkelried
William & Mary Law Review
No abstract provided.
Evidence Myopia: The Failure To See The Federal Rules Of Evidence As A Codification Of The Common Law, Glen Weissenberger
Evidence Myopia: The Failure To See The Federal Rules Of Evidence As A Codification Of The Common Law, Glen Weissenberger
William & Mary Law Review
No abstract provided.
The Elusive Identity Of The Federal Rules Of Evidence, Glen Weissenberger
The Elusive Identity Of The Federal Rules Of Evidence, Glen Weissenberger
William & Mary Law Review
No abstract provided.
Conflicts Of Interest In Scientific Expert Testimony, Mark R. Patterson
Conflicts Of Interest In Scientific Expert Testimony, Mark R. Patterson
William & Mary Law Review
No abstract provided.
Psychiatric Evidence In Criminal Trials: To Junk Or Not To Junk?, Christopher Slobogin
Psychiatric Evidence In Criminal Trials: To Junk Or Not To Junk?, Christopher Slobogin
William & Mary Law Review
No abstract provided.
Using Impartial Experts In Valuations: A Forum-Specific Approach, Andrew Macgregor Smith
Using Impartial Experts In Valuations: A Forum-Specific Approach, Andrew Macgregor Smith
William & Mary Law Review
No abstract provided.
Dna Fingerprinting: The Virginia Approach, James P. O'Brien Jr.
Dna Fingerprinting: The Virginia Approach, James P. O'Brien Jr.
William & Mary Law Review
No abstract provided.
Impeachment With An Unsworn Prior Inconsistent Statement As Subterfuge, Dan Johnson
Impeachment With An Unsworn Prior Inconsistent Statement As Subterfuge, Dan Johnson
William & Mary Law Review
No abstract provided.
Application Problems Arising From The Good Faith Exception To The Exclusionary Rule, Robert C. Gleason
Application Problems Arising From The Good Faith Exception To The Exclusionary Rule, Robert C. Gleason
William & Mary Law Review
No abstract provided.
Judge Versus Jury: Who Should Decide Questions Of Preliminary Facts Conditioning The Admissibility Of Scientific Evidence?, Edward J. Imwinkelried
Judge Versus Jury: Who Should Decide Questions Of Preliminary Facts Conditioning The Admissibility Of Scientific Evidence?, Edward J. Imwinkelried
William & Mary Law Review
No abstract provided.
Jurisprudence Or "Juriscience"?, Howard T. Markey
Jurisprudence Or "Juriscience"?, Howard T. Markey
William & Mary Law Review
No abstract provided.
Capabilities Of Modern Forensic Laboratories, Irving C. Stone
Capabilities Of Modern Forensic Laboratories, Irving C. Stone
William & Mary Law Review
No abstract provided.
Seeing Can Be Deceiving: Photographic Evidence In A Visual Age - How Much Weight Does It Deserve?, Benjamin V. Madison Iii
Seeing Can Be Deceiving: Photographic Evidence In A Visual Age - How Much Weight Does It Deserve?, Benjamin V. Madison Iii
William & Mary Law Review
No abstract provided.
Scientific Evidence - An Introduction, Fredric I. Lederer
Scientific Evidence - An Introduction, Fredric I. Lederer
William & Mary Law Review
No abstract provided.
Applying Lawyers' Expertise To Scientific Experts: Some Thoughts About Trial Court Analysis Of The Prejudicial Effects Of Admitting And Excluding Expert Scientific Testimony, James M. Doyle
William & Mary Law Review
No abstract provided.