Law Commons^™

56. Pragmatic Failure And Referential Ambiguity When Attorneys Ask Child Witnesses “Do You Know/Remember” Questions., Angela D. Evans, Stacia N. Stolzenberg, Thomas D. Lyon

Thomas D. Lyon

The Dual Meaning Of Evidence-Based Judicial Review Of Legislation, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

55. Challenging The Credibility Of Alleged Victims Of Child Sexual Abuse In Scottish Courts., Zsófia Szojka, Samantha J. Andrews, Michael E. Lamb, Stacia N. Stolzenberg, Thomas D. Lyon

Thomas D. Lyon

The New Pcast Report To The President Of The United States On Forensic Science, Robert M. Sanger

Robert M. Sanger

54. The Effects Of The Hypothetical Putative Confession And Negatively-Valenced Yes/No Questions On Maltreated And Non-Maltreated Children’S Disclosure Of A Minor Transgression., Stacia N. Stolzenberg, Kelly Mcwilliams, Thomas D. Lyon

Thomas D. Lyon

The Academy Standards Board For Firearms And Toolmarks, Robert M. Sanger

Robert M. Sanger

17. Investigative Interviewing Of The Child., Thomas D. Lyon

Thomas D. Lyon

The Rule In Hodge's Case: Rumours Of Its Death Are Greatly Exaggerated, Benjamin Berger

Benjamin L. Berger

Certain academic commentators and Canadian courts have announced the death of the rule in Hodge's Case. The author challenges this proclamation of death, observing that Hodge's rule is a particular manifestation of the epistemology that informs our law of evidence. He argues not only that the rule is doctrinally intact, but that the principles and spirit that animate Hodge's rule have broad influence in our law of evidence and have utility in the appellate review of unreasonable verdicts. Hodge's rule, Hodge-like reasoning, and the associated epistemology, are alive and well in Canada.

53. Relations Between Attorney Temporal Structure And Children's Response Productivity In Cases Of Alleged Child Sexual Abuse., J. Zoe Klemfuss, Kyndra C. Cleveland, Thomas D. Lyon, Jodi A. Quas

Thomas D. Lyon

52. Familial Influences On Recantation In Substantiated Child Sexual Abuse Cases., Lindsay C. Malloy, Allison P. Mugno, Jillian R. Rivard, Jodi A. Quas, Thomas D. Lyon

Thomas D. Lyon

Forward Progress: A New Pattern Criminal Jury Instruction For Impeachment With Prior Inconsistent Statements Will Ease The Court’S Burden By Emphasizing The Prosecutor’S, Hugh M. Mundy

Hugh Mundy

In this Article, I discuss the history of Rule 801(d)(1)(A), focusing on the origins and importance of the Rule’s restrictive language. In addition, I review the current federal landscape of pattern criminal jury instructions for witness impeachment with a prior inconsistent statement. Finally, I propose a revised jury instruction designed to clarify juror confusion while maintaining the critical safeguards for substantive admissibility of prior inconsistent statements.

51. Maltreated Children’S Ability To Make Temporal Judgments Using A Recurring Landmark Event., Kelly Mcwilliams, Thomas D. Lyon, Jodi A. Quas

Thomas D. Lyon

On The 'Considered Analysis' Of Collecting Dna Before Conviction, David H. Kaye

David Kaye

For nearly a decade, DNA-on-arrest laws eluded scrutiny in the courts. For another five years, they withstood a gathering storm of constitutional challenges. In Maryland v. King, however, Maryland's highest court reasoned that usually fingerprints provide everything police need to establish the true identity of an individual before trial and that the state's interest in finding the perpetrators of crimes by trawling databases of DNA profiles is too "generalized" to support "a warrantless, suspicionless search." The U.S. Supreme Court reacted forcefully. Chief Justice Roberts stayed the Maryland judgment, writing that "given the considered analysis of courts on the other side …

Please, Let's Bury The Junk: The Codis Loci And The Revelation Of Private Information, David H. Kaye

David Kaye

This Northwestern University Law Review Colloquy paper describes the four possible ways in which genetic loci could possess predictive or diagnostic value with regard to diseases and explains why these mechanisms have not led, and probably cannot lead, to useful screening tests with the Convicted Offender DNA Index System (CODIS) profiles in national, state, and local databases. It then considers the phenotypes and familial relationships that the CODIS STRs can be used to identify. The profiles carry limited information about an individual's race and familial relationships, and the article places the resulting privacy issues in perspective. Finally, the paper comments …

Paradoxes, Gedanken Experiments And The Burden Of Proof: A Response To Dr. Cohen's Reply, David H. Kaye

David Kaye

This article responds to L. Jonathan Cohen's critique of the author's position regarding the problem of naked statistical evidence. Cohen argues that the kind of probability at work in litigation does not conform to the axioms of mathematical probability. The author responds by suggesting that the familiar theory of probability needs no revision to account for the reluctance of a few courts to permit plaintiffs to prevail on the strength of background statistics alone. One need not adopt Dr. Cohen's esoteric mathematical structure to explain the burden of proof in civil cases. The article shows that whether or not one …

Plemel As A Primer On Proving Paternity, David H. Kaye

David Kaye

Although in the past courts only permitted genetic evidence in paternity suits to prove that an accused man was not the father, with the advent of new genetic tests, which easily can exclude ninety to nitey-five percent of the population in most cases, the supreme courts of Massachusetts, Oregon, and Utah have held that various genetic tests may be used to prove paternity. While a positive move, the admissibility of genetic proof of paternity raises serious questions as to the manner in which this evidence should be presented in court. In the interests of efficiency, some jurisdictions seem to dispense …

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 …

Maryland V. King: Per Se Unreasonableness, The Golden Rule, And The Future Of Dna Databases, David H. Kaye

David Kaye

In Maryland v. King, the Supreme Court applied a balancing test to uphold a Maryland statute mandating preconviction collection and analysis of DNA from individuals charged with certain crimes. The DNA profiles are limited to an inherited set of DNA sequences that are not known to be functional and that are tokens of individual identity. This invited online essay examines two aspects of an article on the case by Professor Erin Murphy. I question the claim that the case is pivotal in a conceivable abandonment of the per se rule that warrantless, suspicionless searches are unconstitutional unless they fall …

Identification, Individualization, Uniqueness, David H. Kaye

David Kaye

Criminalists and many forensic scientists concerned with the identification of trace evidence have distinguished between identification and individualization, but they have not distinguished as precisely between individualization and uniqueness. This paper clarifies these terms and discusses the relationships among identification, individualization, and uniqueness in forensic-science evidence.

Mathematical Models And Legal Realities: Some Comments On The Poisson Model Of Jury Behavior, David H. Kaye

David Kaye

While a mathematical model cannot reflect all the elements of reality, modeling involves drastic simplifications, and those expounding the mathematical model would recognize the complexity of the elements. This article illuminates this cause with a mathematical model that seems to be in vogue, developed by the renowned mathematician Simeon Poisson. It reviews the Poisson model in order to enucleate its many assumptions. It also explains why these assumptions may introduce serious errors into the probabilities calculated according to the model. It also indicates one reason that even a relatively error free model would have limited usefulness in resolving the constitutional …

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

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. …

Dna Evidence: Probability, Population Genetics, And The Courts, David H. Kaye

David Kaye

To help meet the challenge of presenting properly performed DNA tests within the post-Daubert legal framework, this article outlines the statistical procedures that have been employed or proposed to provide judges and juries with quantitative measures of probative value, describes more fully how the courts have dealt with these procedures, and evaluates the opinions and the statistical analyses from the standpoint of the law of evidence.

Specifically, the article outlines the procedure used to declare whether two samples of DNA "match," and how shrinking the size of the "match window," as some defendants have urged, will decrease the risk of …

Is Proof Of Statistical Significance Relevant?, David H. Kaye

David Kaye

The classic treatises on evidence note that the court or jury must weigh the evidence, and upon weighing it, determine whether the plaintiff or the defendant prevails. Some courts, however, have indicated that statistical evidence should not be admitted unless it is subjected to a procedure known as 'hypothesis testing.' There are many rather mechanical procedures for performing these tests and a number of judges, attorneys, and law professors have suggested that hypothesis testing provides an objective, scientific means of settling disputed questions on which statistical evidence is brought to bear. Yet, many circumstances arise in which courts or administrators …

Behavioral Genetics Research And Criminal Dna Databanks, David H. Kaye

David Kaye

This article examines the current concerns about whether DNA databases may be used for actions other than to apprehend criminals, such as genetic research, in particular, searching for a "crime gene". Part II considers the perspective that these databases may be useful for research. The information within a DNA sample consists of a limited number of DNA base-pair variations, which are important to identification, but not necessarily to genetic research. However, while it may be difficult to conduct genetic research, it is not impossible. Part III examines state and federal database legislation. There are examples of three states' statutes and …

A Fourth Amendment Theory For Arrestee Dna And Other Biometric Databases, David H. Kaye

David Kaye

Routine DNA sampling following a custodial arrest process is now the norm in many jurisdictions, but is it consistent with the Fourth Amendment? The few courts that have addressed the question have disagreed on the answer, but all of them seem to agree on two points: (1) the reasonableness of the practice turns on a direct form of balancing of individual and governmental interests; and (2) individuals who are convicted — and even those who are merely arrested — have a greatly diminished expectation of privacy in their identities. This Article disputes these propositions and offers an improved framework for …

Ultracrepidarianism In Forensic Science: The Hair Evidence Debacle, David H. Kaye

David Kaye

For over 130 years, scientific sleuths have been inspecting hairs under microscopes. Late in 2012, the FBI, the Innocence Project, and the National Association of Criminal Defense Lawyers joined forces to review thousands of microscopic hair comparisons performed by FBI examiners over several of those decades. The results have been astounding. Based on the first few hundred cases in which hairs were said to match, it appears that examiners “exceeded the limits of science” in over 90% of their reports or testimony. The disclosure of this statistic has led to charges that the FBI “faked an entire field of forensic …

'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 …

Credal Probability, David H. Kaye

David Kaye

This article responds to Paul Bergman and Al Moore's doubt that ideal triers of facts would be Bayesians. They argue that Bayes' rule, and probability theory in general, fails as a theoretical factfinding model. While probability has long been an accepted measure of belief in empirical propositions and the validity of inductive arguments, this articles addresses Bergman and Moore's doubts directly. It shows how their examples demonstrating the "frequentist" character of Bayesian methodology or the fallacies in Bayesian analysis are easily handled without a frequentist interpretation of probability. Then it shows that an ideal juror's partial beliefs will conform to …

Dna Database Trawls And The Definition Of A Search In Boroian V. Mueller, David H. Kaye

David Kaye

As a general matter, once the government acquires information from a permissible search or seizure, it can use this information in later criminal investigations. Courts have applied this simple rule to uphold the indefinite reuse of DNA samples acquired from convicted offenders. This essay describes the First Circuit Court of Appeals’ reliance on the rule in rejecting a convicted offender’s claim that his DNA sample and profile had to be removed from the federal DNA databank after he completed his sentence. Acknowledging that the rule permitting reuse should not be applied mechanically, I argue that the rule's application to DNA …