Law Commons^™

The Child Witness In Sexual Abuse Cases In Maine: Presentation, Impeachment, And Controversy, Kermit V. Lipez

Maine Law Review

In any sexual abuse trial, the entry of the child into the courtroom is a dramatic moment. The large door to the courtroom opens. A small child enters, accompanied by a victim advocate who walks with the child toward the witness stand. At the end of the public seats, the child is turned over to a court officer who escorts the child to the witness stand. In the typically high-ceilinged, expansive courtroom where we conduct our jury trials, the small child looks even smaller. Some children slouch in the witness chair, as if they were trying to hide. The jurors …

A Feedback Loop Of Exclusion: The Treatment Of Bilingualism In The Courtroom, Simone Stover

Northwestern University Law Review

In the 1991 case Hernandez v. New York, the United States Supreme Court characterized bilingualism as a race-neutral trait that can be used to exclude individuals from jury service. This Note proceeds by demonstrating how the current state of the law undermines the interests of bilingual individuals and then proposes a solution. Focusing specifically on Hispanic bilingual Spanish speakers, this Note first employs Professor Jennifer Lackey’s multi-directional credibility model to show that bilingual Spanish speakers suffer injustice in the courtroom due to both credibility deficits and excesses. Following this analysis, it proposes a possible solution to this issue: an …

The Incoherence Of Evidence Law, G. Alexander Nunn

Notre Dame Law Review

What is the purpose of evidence law? The answer might seem intuitive. Evidence law exists, of course, to foster verdict accuracy, legitimacy, and efficiency. But these kindred aims often come into conflict. Policy tradeoffs are inescapable in evidence law, meaning that an evidentiary regime must clarify how its normative objectives cohere. Do accuracy, legitimacy, and efficiency work together on equal footing, such that the goal of a code is to maximize each objective to the extent possible? Or does one of evidence law’s aims take precedence over the rest? And if one goal takes priority, what is the role of …

University Of The District Of Columbia Law Review, University Of The District Of Columbia Law Review

University of the District of Columbia Law Review

No abstract provided.

Rising Internet Shutdowns In India: A Legal Analysis, Shrutanjaya Bhardwaj, Nakul Nayak, Raja Venkata Krishna Dandamudi, Sarvjeet Singh, Veda Handa

Indian Journal of Law and Technology

The central theme of this paper is to critically study the interplay of internet shutdowns with the right to freedom of speech and expression. A study of this nature is necessitated by India’s abysmal record with inter- net shutdowns. We must hence begin examining Internet shutdowns seriously within the Indian constitutional framework. In the recent judgment of Anuradha Bhasin, the Supreme Court has accepted that Article 19(1)(a) protects the right to disseminate and receive information through the internet. Therefore, the constitutional validity of every internet shutdown would have to be tested (at least) against the three standards ordinarily applied …

Sharing Of Children’S Health Data By Health Professionals And Parents – A Consideration Of Legal Duties, Dr. Carolyn Johnston

Indian Journal of Law and Technology

Children’s health data such as blood pressure, X-rays and written notes of medical examinations are produced in a clinical setting through health professionals’ interaction with their minor patients. Health care practitioners owe legal and professional obligations not to disclose such information without consent or other legally recognised authorisation. With the increasing advent of data generated by patients themselves from wearable devices such as continuous glucose monitors and health apps, the patient, or parents, have initial control of the data and decide who to share it with. Where wearable devices have been provided to parents by the child’s health care provider …

Conceptualizing An International Framework For Active Private Cyber Defence, Arindrajit Basu, Elonnai Hickok

Indian Journal of Law and Technology

Private sector cyber defence mechanisms are emerging despite existing legislation outlawing use of active defence by individuals and non-state entities. Thus, a key window exists for policy-makers in the possibility of establishing a framework for existing APCD practices that would enable optimal utilisation of private sector capabilities for securing cyber-space at an organizational and national level. This must happen in consonance with circumscribing their operations within the boundaries of the rule of law, both in terms of domestic legislation and international law. This paper seeks to unpack the complexities that underscore each of these challenges and identify avenues towards resolving …

Facing Up To The Risks Of Automated Facial-Recognition Technologies In Indian Law Enforcement, Ameen Jauhar

Indian Journal of Law and Technology

Within the larger discourse of risk mitigation of emerging technologies, the ever-expanding deployment of automated facial recognition technology (‘AFRT’) has garnered much skepticism. In India too, there has been a reported rise of states and law enforcement officials enthusiastically resorting to the use of AFRT.

The author will first delve into some of the controversial risks associated with AFRT, analysing them through the lens of Article 21 and the principle of due process under the Indian Constitution. The paper will then identify some of the regulatory solutions that are currently part of the discourse on minimising risks of AFRT and …

Guess Who?: First-Time In-Court Identifications And Due Process, Natalie Beers

Washington and Lee Law Review

Juries believe eyewitnesses. When an identifying eyewitness takes the stand and points to a defendant in a courtroom, the jury is more likely to render a guilty verdict. But how reliable is that identification? What if the eyewitness is on the stand identifying a perpetrator for the first time, in the court room, rather than at the police station with a lineup or photo array? How do those suggestive circumstances implicate a criminal defendant’s due process rights?

First-time in-court identifications are inherently suggestive. While the Supreme Court has acknowledged the suggestive nature of similar identifications, it did not directly address …

The Brain Is In Your Court: Evaluating Intellectual Property Infringement Audience Through The Lens Of Neuroscience, Madyson Kent

Washington and Lee Law Review

To protect creations of the mind, the law needs to understand the mind. Thankfully, the rapidly emerging field of neuroscience provides an invaluable glimpse into the inner workings of the human brain. Now that scientific instruments provide a window into the living brain, it is time to reexamine the way intellectual property law decides the outcomes of infringement lawsuits.

Critically examining neuroscience in the context of the law helps to answer the most fundamental question in an intellectual property lawsuit: Was there infringement? A judicial hesitancy to understand the thought processes of artists and creators results in relying on the …

Getting Around The Marking Requirement: Closing The Loophole On Damages, Ethan Buresh

UMKC Law Review

No abstract provided.

Washington Civil Jury Trials Via Zoom: Perspectives From The Bench, Marisa Pasnick

Washington Law Review

Many professions have felt the impact of the coronavirus (COVID-19) pandemic, including the legal field. At the onset of COVID-19, many courthouses closed and trials halted, but as the pandemic continued, the need to resume judicial proceedings led courts to turn to virtual platforms to conduct civil jury trials. This Comment examines the response of judges in Washington State to the use of Zoom for conducting civil jury trials. Interviews with judges across Washington reveal a stark contrast in opinions among judges in different districts as well as within districts. This Comment answers the question of how judges feel about …

The Modern Energizer Bunny - Hopping Into The Nuclear Energy Revolution: The Tenth Circuit's Analysis In New Mexico Ex Rel. Balderas V. U.S. Nuclear Regulatory Commission, Jack A. Mansur

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Virtual Confessions: Examining The Clergy Privilege’S Extension To Artificially Intelligent Religious Robots, Samuel N. Dick

The University of Cincinnati Intellectual Property and Computer Law Journal

Artificial Intelligence (AI) is fundamentally changing the world. AI’s rapid development is driving its integration into every industry, including those traditionally untouched by technology—such as religion. Today, faith groups in America and globally, are integrating AI-driven robots in roles traditionally held by human priests, clergy, or pastors. AI robots have begun giving sermons, conducting funerals/weddings, providing spiritual counseling, and conducting the sacrament of confession. Some faith groups have gone further claiming the worship of AI as an independent religion, and have received § 501(c)(3) tax-exempt status as a church. Whether thoughts of sacrileges, inevitability, or a science-fiction novel emerge, AI’s …

Gatekeeping & Class Certification: The Eleventh Circuit’S Stringent Approach To Admitting Expert Evidence In Support Of Class Certification, Pravin Patel, Mark Pinkert, Patrick Lyons

University of Miami Law Review

Federal Rule of Civil Procedure 23 is silent on whether evidence offered in support of a motion for class certification must be admissible under the Federal Rules of Evidence. The Supreme Court has not addressed this issue, and there is currently no authoritative framework for incorporating all or some of the federal evidentiary rules into the class certification process. Resultantly, circuit courts are split on this question and have coalesced among several different approaches. The Eleventh Circuit follows a rigorous evidentiary standard in which evidence offered in support of class certification generally must be admissible under the Federal Rules of …

Computationally Assessing Suspicion, Wesley M. Oliver, Morgan A. Gray, Jaromir Savelka, Kevin D. Ashley

University of Cincinnati Law Review

Law enforcement officers performing drug interdiction on interstate highways have to decide nearly every day whether there is reasonable suspicion to detain motorists until a trained dog can sniff for the presence of drugs. The officers’ assessments are often wrong, however, and lead to unnecessary detentions of innocent persons and the suppression of drugs found on guilty ones. We propose a computational method of evaluating suspicion in these encounters and offer experimental results from early efforts demonstrating its feasibility. With the assistance of large language and predictive machine learning models, it appears that judges, advocates, and even police officers could …

Judges Should Be Discerning Consensus, Not Evaluating Scientific Expertise, David S. Caudill, Harry Collins, Robert Evans

University of Cincinnati Law Review

One of the most constructive critiques of the Daubert admissibility regime is Professor Edward Cheng’s recent proposal for a new Consensus Rule in the Federal Rules of Evidence. Rejecting the notion that judges and juries have the capacity to evaluate scientific expertise, Cheng’s proposal would eliminate Daubert hearings—and judicial gatekeeping concerning expert testimony—and require judges and juries, in their verdicts, to follow consensus in the relevant scientific community. Significantly, Cheng argues that judges and juries would have an easier time identifying consensus than they have in deciding between experts who disagree.

We find Cheng’s emphasis on consensus compelling, and …

Evidence, W. Randall Bassett

Mercer Law Review

In its 2023 term, the United States Court of Appeals for the Eleventh Circuit focused heavily on the role and admissibility of expert testimony under Rules 702–704 of the Federal Rules of Evidence. For example, in two opinions, the court considered the role of an expert’s qualifications and experience in supporting the admissibility of the expert’s opinions. In another case, they analyzed the scope of an expert’s ability to opine on an ultimate issue in a criminal case. The court also considered the role of lay witness opinion testimony compared to that of a retained expert and the admissibility of …

I’Ll Huff, And I’Ll Puff, And I’Ll Blow Your Parol Evidence Down: The Eleventh Circuit Explains Why The Plain Text Of An Insurance Policy Wins In The Face Of Contractual Ambiguity, Chloe E. Bonds

Mercer Law Review

Imagine that a small business in sunny, central Florida is evaluating its insurance policy. The business notices that the policy includes seemingly unnecessary coverage for losses caused by landslides. Before the end of the current year, the business contacts its insurance agency and successfully negotiates to remove the existing landslide coverage from next year’s policy. Following the negotiations, the agent issues an updated insurance binder reflecting the change. Although the insurance agency is aware that the business no longer wants landslide coverage, the principal policy issued after negotiations conspicuously does not include any language regarding the coverage or exclusion of …

Symposium On Scholars’ Suggestions For Amendments, And Issues Raised By Artificial Intelligence

Fordham Law Review

CHAIR SCHILTZ: As those of you who have been in the rules work for a while know, rules work is cyclical. During the time I’ve been Chair of the Advisory Committee on Evidence Rules, we’ve had two packages of amendments that have gone through. The first package will take effect on December 1, 2024, and that’s the package that is led by the amendment to Rule 702 on expert testimony. And then we have another package that was just approved by the Judicial Conference and sent to the U.S. Supreme Court, and that package is led by the new rule …

Deepfakes Reach The Advisory Committee On Evidence Rules, Daniel J. Capra

Fordham Law Review

A number of articles have been written in the last couple of years about the evidentiary challenges posed by “deepfakes”—inauthentic videos and audios generated by artificial intelligence (AI) in such a way as to appear to be genuine. You are probably aware of some of the widely distributed examples, such as: (1) Pope Francis wearing a Balenciaga jacket; (2) Jordan Peele’s video showing President Barack Obama speaking and saying things that President Obama never said; (3) Nancy Pelosi speaking while appearing to be intoxicated; and (4) Robert DeNiro’s de-aging in The Irishman.

The evidentiary risk posed by deepfakes is …

Impeaching With An Alleged Prior False Accusation, Erin Murphy

Fordham Law Review

The Court’s categorical recognition of bias as a constitutionally protected, and therefore rape-shield recognized, exception to the general bar on evidence of sexual history has led to questions about whether other forms of impeachment might also evade rape shield restrictions. In particular, courts have grappled with the admissibility of impeachment by evidence of a prior false accusation (PFA).

The current treatment of PFAs is inconsistent and controversial for several reasons. First, as explained further in Part I, there is a lack of clear guidance in the rules about how such evidence should be treated. Second, of course, there are the …

Prosecutorial Storytelling Through Intrinsic Evidence, Brian Chen

Pepperdine Law Review

Crimes make for compelling stories. So juries make for an eager audience. Jurors want to—indeed, expect to—learn what the defendant did, how they did it, and why they deserve punishment. Capable prosecutors know how to deliver. Trial narratives empower jurors to link discrete pieces of evidence and infer facts from circumstantial proof. Only then can they render a verdict consistent with their sense of justice. Federal courts thus afford wide leeway for prosecutors to present their case as they please, with the evidence at their disposal. The Federal Rules of Evidence delineates the scope of that discretion. Under Rule 404(b), …

Preview — State V. Wood. First Impressions On Accountability And Cell-Site Location Information, Sarah K. Yarlott

Public Land & Resources Law Review

No abstract provided.

Machines Like Me: A Proposal On The Admissibility Of Artificially Intelligent Expert Testimony, Andrew W. Jurs, Scott Devito

Pepperdine Law Review

With the rapidly expanding sophistication of artificial intelligence systems, their reliability, and cost-effectiveness for solving problems, the current trend of admitting testimony based on artificially intelligent (AI) systems is only likely to grow. In that context, it is imperative for us to ask what rules of evidence judges today should use relating to such evidence. To answer that question, we provide an in-depth review of expert systems, machine learning systems, and neural networks. Based on that analysis, we contend that evidence from only certain types of AI systems meet the requirements for admissibility, while other systems do not. The break …

"Hired Guns": Establishing The Scope Of The Proper Cross-Examination And Argument Relating To Expert Witness' Compensation In Criminal Trials, Michael C. Kovac

Georgia Criminal Law Review

The outcomes of criminal cases can turn on the credibility of the parties’ expert witnesses. The compensation such experts receive in exchange for their work on cases can undermine their credibility, as it provides the experts with a financial incentive that might bias them in favor of the parties who retain them. While concerns with such bias have existed for decades, courts have been inconsistent in the defining the permissible scope of cross-examination and argument on the issue. Some courts have unduly curtailed such cross-examination and argument. Courts have also been inconsistent in their views of whether calling such expert …

All Eyez On Rap & Hip-Hop: Analyzing How Black Expression Is Criminalized And The Language Of The Rap Act Of 2022, Maia Young

Washington Journal of Law, Technology & Arts

The Black existence, in the United States of America, has always been regarded as a conditional right. Conventionally, Blackness must always be nonviolent and non-disruptive to safely exist. Because of this, Blackness cannot be confined to restraints and disrupts these conventions with acts of joy and creative expression. Black creativity is both unconventional and sacred. Black creative expression documents, preserves, and unifies cultural lived experiences, from a first-hand lens of those oppressed. Creative and artistic expression celebrates the myriad of stories that are a part of the collective Black experience. Yet, Black creative expression is now being weaponized by prosecutors …

What's Said In The Booth Never Stays In The Booth: A Comparative Analysis Of The Use Of Rap Lyrics In American And English Criminal Trials, Yekaterina Shrayber

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

Transparency In Forensic Exams, Dorothy Sims, Chris Dove, Richard Frederick

Nevada Law Journal

No abstract provided.

Neuropsychological Malingering Determination: The Illusion Of Scientific Lie Detection, Chunlin Leonhard, Christoph Leonhard

Georgia Law Review

Humans believe that other humans lie, especially when stakes are high. Stakes can be very high in a courtroom, from substantial amounts of monetary damages in civil litigation to liberty or life in criminal cases. One of the most frequently disputed issues in U.S. courts is whether litigants are malingering when they allege physical or mental conditions for which they are seeking damages or which would allow them to avoid criminal punishment. Understandably, creating a scientific method to detect lies is very appealing to all persons engaged in lie detection. Neuropsychologists claim that they can use neuropsychological assessment tests (Malingering …