Law Commons^™

The Meaning Of A Misdemeanor In A Post-Ferguson World: Evaluating The Reliability Of Prior Conviction Evidence, John D. King

Scholarly Articles

Despite evidence that America’s low-level courts are overburdened, unreliable, and structurally biased, sentencing judges continue to uncritically consider a defendant’s criminal history in fashioning an appropriate punishment. Misdemeanor courts lack many of the procedural safeguards that are thought to ensure accuracy and reliability. As with other stages of the criminal justice system, people of color and poor people are disproportionately burdened with the inaccuracies of the misdemeanor system.

This Article examines instances in which sentencing courts have looked behind the mere fact of a prior conviction and assessed whether that prior conviction offered any meaningful insight for the subsequent sentence. …

An Erie Approach To Privilege Doctrine., Megan M. La Belle

Scholarly Articles

This short essay considers the HannStar and Silver cases and begins a discussion of the impact that the Erie doctrine has—and, more importantly, ought to have—on privilege law. While Erie is considered by many as “one of the modern cornerstones of our federalism,” the doctrine is important too for the change it can effect through the cross pollination of ideas among tribunals. Because privilege laws reflect deliberate policy choices by legislatures and courts, the Erie doctrine arguably plays a particularly vital role in developing this area of the law.

Touch Dna And Chemical Analysis Of Skin Trace Evidence: Protecting Privacy While Advancing Investigations, Mary Graw Leary

Scholarly Articles

Forensic science transforms criminal investigations by resolving previously unsolvable cases and bringing an increased sense of justice to communities. This application of scientific disciplines to legal questions aids investigators in solving crimes. While many sciences can be utilized—such as physics (pattern evidence), chemistry (toxicology), or biology (cause of death), to name a few—two aspects of scientific advancement have played an outsized role in responding to crime. Trace evidence analysis—specifically, deoxyribonucleic acid (DNA) analysis—is an essential component to an effective and accurate criminal justice system. DNA evidence has emerged as a powerful tool to identify perpetrators of unspeakable crimes and to …

Anti-Justice, Melanie D. Wilson

Scholarly Articles

This Article contends that, despite their unique, ethical duty to “seek justice,” prosecutors regularly fail to fulfill this ethical norm when removed from the traditional, adversarial courtroom setting. Examples abound. For instance, in 2013, Edward Snowden leaked classified information revealing a government-operated surveillance program known as PRISM. That program allows the federal government to collect metadata from phone companies and email accounts and to monitor phone conversations. Until recently, prosecutors relied on some of this covertly acquired intelligence to build criminal cases against American citizens without informing the accused. In failing to notify defendants, prosecutors violated the explicit statutory directives …

Dna – Intimate Information Or Trash For Public Consumption?, Melanie D. Wilson

Scholarly Articles

“Surreptitious sampling” may be police officers’ trump card in cracking otherwise unsolvable crimes as serious as murder, arson and rape. Law enforcement officers engage in surreptitious sampling when they covertly collect DNAsamples from unsuspecting people, who inadvertently leave behind hair, skin cells, saliva or other biological materials.Surreptitious sampling is a terrific crime-resolution tool. It allows diligent law enforcement officers to collect proof-positive evidence of guilt or innocence without the hassle of obtaining a warrant and absent probable cause or reasonable suspicion to believe that the contributor of the biological evidence committed a crime. Provided an officer has the energy and …

A Return To The Grand Jury To Promote A Zen Zeal In Prosecutors, Melanie D. Wilson

Scholarly Articles

DNA evidence has freed at least 209 convicted people. Sometimes DNA evidence exonerates a person. Other times, it does not. When it does not exonerate, a prosecutor must decide whether to persist in further prosecution of the defendant. I propose a fresh, but simple, solution for prosecutors who face such choices. To protect the interests of defendants and victims, and to assuage society’s need for fair and accurate outcomes, prosecutors should represent these cases to a grand jury. The grand jury is an easily convened neutral party that can dispassionately evaluate the evidence, old and new, and determine whether a …

Recordings, Transcripts And Translations As Evidence, Clifford S. Fishman

Scholarly Articles

Secretly recorded conversations often play a vital role in criminal trials. However, circumstances such as background noise, accidents, regional or national idioms, jargon, or code may make it difficult for a jury to hear or understand what was said--even if all participants were speaking English. Thus, a recording's value as evidence will often depend on whether an accurate transcript may be distributed to the jury. This Article discusses several legal issues, including: Who should prepare a transcript? What should it contain? How should its accuracy be determined, and by whom? Should the transcript be considered evidence, or only an "aid …

The Preservation Obligation: Regulating And Sanctioning Pre-Litigation Spoliation In Federal Court, A. Benjamin Spencer

Scholarly Articles

The issue of discovery misconduct, specifically as it pertains to the pre-litigation duty to preserve and sanctions for spoliation, has garnered much attention in the wake of decisions by two prominent jurists whose voices carry great weight in this area. In Pension Committee of University of Montreal Pension Plan v. Bank of America Securities, Judge Shira Scheindlin - of the Zubulake e-discovery cases - penned a scholarly and thorough opinion setting forth her views regarding the triggering of the duty to preserve potentially relevant information pending litigation and the standards for determining the appropriate sanctions for various breaches of that …

A Non-Romantic View Of Expert Testimony, Lewis H. Larue, David S. Caudill

Scholarly Articles

The Daubert trilogy as a whole deflects attention away from abstract identifications of scientific validity (including the demarcation controversy aimed at rooting out allegedly junk science from the courtroom), and toward the application of expertise to the particular case at hand. That emphasis on application is reflected as well in post-trilogy scholarship, wherein we see three patterns or contours that both help quiet the debates and provide useful guidance to judges and lawyers. First, there is a pragmatic recognition, in various forms, that the focus should be on how science is being used rather than on science in the abstract. …

Post-Trilogy Science In The Courtroom, Part Ii: What Are The Judges Still Doing?, David S. Caudill, Lewis H. Larue

Scholarly Articles

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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

Scholarly Articles

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 …

Treating Physicians As Expert Witnesses In Compensation Systems: The Public Health Connection, Brian C. Murchison

Scholarly Articles

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Post-Trilogy Science In The Courtroom: What Are The Judges Doing?, Lewis H. Larue, David S. Caudill

Scholarly Articles

Not available.

Consent, Credibility And The Constitution: Evidence Relating To A Sex Offense Complainant’S Prior Sexual Behavior, Clifford S. Fishman

Scholarly Articles

This article analyzes the theories cited by defendants, and occasionally prosecutors, to admit evidence of a rape complainant's prior sexual conduct. On the whole, courts have adequately balanced the conflicting interests presented by such evidence with concern for justice and equity. Substantial clarification, however, is required as to whether a judge is authorized, in deciding upon admissibility, to assess the credibility of the complainant, defendant, and other witnesses.

Stories Versus Theories At The Cardozo Evidence Conference: It's Just Another Metaphor To Me, Lewis H. Larue

Scholarly Articles

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Effective Instructions To The Federal Jury In Civil Cases: A Consideration In Microcosm, George P. Smith Ii

Scholarly Articles

One of the most intriguing topics of current conversation among today's experienced, as well as inexperienced, trial lawyers is the preparation and use of jury instructions. This interest is initiated within the law school setting, where professors teaching courses in evidence and procedure will invariably seek to impart in one lecture-or implicitly consider throughout the entire course-what they consider to be the rationale for effective and successful jury instructions. Yet it has only been recently that the federal bench has expressed itself with convincing clarity on this timely matter. Previously, unrecorded comments and ideas concerning the preparation of jury instructions …