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Evidence

Series

2006

Institution
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Articles 1 - 30 of 46

Full-Text Articles in Law

Milstein V. Chief Military Prosecutor, Edna Arbel, Aharon Barak, Edmond E. Levy Dec 2006

Milstein V. Chief Military Prosecutor, Edna Arbel, Aharon Barak, Edmond E. Levy

Translated Opinions

Facts: The appellant was convicted of the offence of using dangerous drugs while he was serving in the IDF. During his interrogation by the police, he confessed to using the drugs, but in his trial he pleaded not guilty and exercised his right to remain silent and not to testify in his own defence.

Following the case law of the Supreme Court, a defendant cannot be convicted solely on the basis of a confession, even when it is freely and willingly given. ‘Something extra’ is required in order to convict him. The District Court Martial and the Appeals Court Martial …


Can Jury Trial Innovations Improve Juror Understanding Of Dna Evidence?, B. Michael Dann, Valerie P. Hans, David H. Kaye Nov 2006

Can Jury Trial Innovations Improve Juror Understanding Of Dna Evidence?, B. Michael Dann, Valerie P. Hans, David H. Kaye

Cornell Law Faculty Publications

A single spot of blood on a pink windowsill will tell investigators who broke a windowpane, turned a lock, and kidnapped 2-year-old Molly Evans from her bedroom in the middle of the night. An expert witness will testify that the DNA profile of the blood evidence recovered from the windowsill was entered into CODIS, an electronic database of DNA profiles. That process yielded a “hit,” identifying the defendant as the most likely source of the blood inside Molly’s room.

But will jurors be able to understand the expert’s intricate analysis and use it to reach a verdict? And what—if any—steps …


State Of Israel V. Beer-Sheba District Court, Dorit Beinisch, Ayala Procaccia, Edmond E. Levy, Aharon Barak, Eliezer Rivlin, Asher Grunis, Miriam Naor Oct 2006

State Of Israel V. Beer-Sheba District Court, Dorit Beinisch, Ayala Procaccia, Edmond E. Levy, Aharon Barak, Eliezer Rivlin, Asher Grunis, Miriam Naor

Translated Opinions

Facts: In 1976 the Supreme Court held in Kinsey v. State of Israel that when two accomplices are prosecuted in separate trials, one (the ‘witness-accomplice’) should not be called to testify against the other (the ‘defendant’) until the witness-accomplice’s own trial has ended. This became known as the Kinsey rule. Thirty years later, the court is being requested to reconsider the Kinsey rule.

Held: The Kinsey rule, which was originally intended as a rule of proper practice, became over the years a binding rule from which the courts rarely departed. The court recognizes that the rule in its all-encompassing scope …


Wishing Petitioners To Death: Factual Misrepresentations In Fourth Circuit Capital Cases, Sheri Lynn Johnson Jul 2006

Wishing Petitioners To Death: Factual Misrepresentations In Fourth Circuit Capital Cases, Sheri Lynn Johnson

Cornell Law Faculty Publications

No abstract provided.


It's Not Just About Miranda: Determining The Voluntariness Of Confessions In Criminal Prosecutions, Paul Marcus Jul 2006

It's Not Just About Miranda: Determining The Voluntariness Of Confessions In Criminal Prosecutions, Paul Marcus

Faculty Publications

No abstract provided.


Summary Of Bass-Davis V. Davis, 122 Nev. Adv. Op. 39, Charles R. Cordova, Jr. May 2006

Summary Of Bass-Davis V. Davis, 122 Nev. Adv. Op. 39, Charles R. Cordova, Jr.

Nevada Supreme Court Summaries

No abstract provided.


Yissacharov V. Chief Military Prosecutor, Dorit Beinisch, Aharon Barak, Eliezer Rivlin, Ayala Procaccia, Edmond E. Levy, Miriam Naor, Salim Joubran, Mishael Cheshin, Asher Grunis May 2006

Yissacharov V. Chief Military Prosecutor, Dorit Beinisch, Aharon Barak, Eliezer Rivlin, Ayala Procaccia, Edmond E. Levy, Miriam Naor, Salim Joubran, Mishael Cheshin, Asher Grunis

Translated Opinions

Facts: While being admitted into prison for being absent from the army without leave, the appellant was found to have a dangerous drug in his possession. When he was interrogated about this, the interrogator failed to advise the appellant that he had a right to consult a lawyer. This omission, which was omitted by the prosecution, was held by the trial court to have been illegal and intentional. In the course of the interrogation, the appellant confessed that he had, on three occasions while he was a soldier, made use of dangerous drugs.

The appellant argued that the confession should …


What Do Snowmobiles, Mercury Emissions, Greenhouse Gases, And Runoff Have In Common?: The Controversy Over "Junk Science", Linda A. Malone Apr 2006

What Do Snowmobiles, Mercury Emissions, Greenhouse Gases, And Runoff Have In Common?: The Controversy Over "Junk Science", Linda A. Malone

Faculty Publications

No abstract provided.


Detailing Daubert, The Hon. E Richard Webber, Dana M. Malkus Apr 2006

Detailing Daubert, The Hon. E Richard Webber, Dana M. Malkus

All Faculty Scholarship

When Justice Blackmun wrote Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the assignment was to reconcile the standards governing the admissibility of expert testimony with Federal Rule of Evidence 702. As Justice Blackmun recognized, Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), had long served as the polestar for determining the admissibility of expert testimony in litigation. Although the test developed by the Frye court was ultimately rejected when the Supreme Court announced new rules regarding the admissibility of expert testimony, the Frye court’s recognition of the purpose behind admitting expert testimony remains instructional: …


Wrongful Convictions And Forensic Science: The Need To Regulate Crime Labs, Paul C. Giannelli Mar 2006

Wrongful Convictions And Forensic Science: The Need To Regulate Crime Labs, Paul C. Giannelli

Faculty Publications

DNA testing has exonerated over 200 convicts, some of whom were on death row. Studies show that a substantial number of these miscarriages of justice involved scientific fraud or junk science. This article documents the failures of crime labs and some forensic techniques, such as microscopic hair comparison and bullet lead analysis. Some cases involved incompetence and sloppy procedures, while others entailed deceit, but the extent of the derelictions - the number of episodes and the duration of some of the abuses, covering decades in several instances - demonstrates that the problems are systemic.

Paradoxically, the most scientifically sound procedure …


Gatekeeping After Gilbert: How Lawyers Should Address The Court's New Emphasis, Brian Benner, Ronald L. Carlson Mar 2006

Gatekeeping After Gilbert: How Lawyers Should Address The Court's New Emphasis, Brian Benner, Ronald L. Carlson

Popular Media

In the world of modern trials, expert witnesses are the coin of the realm. Lawyers know that most of the time, experts are case-breakers. Their demeanor, knowledge, and presentation ability are key qualities. Accordingly, their persuasive effect on modern lay jurors makes it incumbent on judges to ensure that an expert's opinions are appropriately directed. That means not allowing an economist to testify about the medical dynamics of bone disease, for example.


Questions About Forensic Science: Response, Jonathan Koehler Jan 2006

Questions About Forensic Science: Response, Jonathan Koehler

Faculty Working Papers

THE ESSENTIAL MESSAGE OF OUR REVIEW WAS that forensic individualization/identification science is on course for a "paradigm shift" in which its future will be more scientifically grounded than its past.

Harmon and Budowle take issue with the simple point that traditional forensic science assumes that markings produced by different people and objects are observably different. The notion of uniqueness is widespread in forensic science writing, thinking, and practice. We added the qualifier "discernible" to the uniqueness assumption to indicate that criminalists do not refer to uniqueness in the abstract or as a metaphysical property. They mean that conclusions about object …


The Preservation Obligation: Regulating And Sanctioning Pre-Litigation Spoliation In Federal Court, A. Benjamin Spencer Jan 2006

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 …


Confrontation Clause And Testimonial Evidence: After Two Supreme Court Decisions, Standard Remains Unclear., Alan Raphael Jan 2006

Confrontation Clause And Testimonial Evidence: After Two Supreme Court Decisions, Standard Remains Unclear., Alan Raphael

Faculty Publications & Other Works

No abstract provided.


Filmmaking In The Precinct House And The Genre Of Documentary Film, Jessica Silbey Jan 2006

Filmmaking In The Precinct House And The Genre Of Documentary Film, Jessica Silbey

Faculty Scholarship

This Article explores side-by-side two contemporary and related film trends: the recent popular enthusiasm over the previously arty documentary film and the mandatory filming of custodial interrogations and confessions.

The history and criticism of documentary film, indeed contemporary movie-going, understands the documentary genre as political and social advocacy (recent examples are Michael Moore's Farenheit 9/11 and Errol Morris's Fog of War). Judges, advocates, and legislatures, however, assume that films of custodial interrogations and confessions reveal a truth and lack a distorting point of view. As this Article explains, the trend at law, although aimed at furthering venerable criminal justice principles, …


Videotaped Confessions And The Genre Of Documentary, Jessica Silbey Jan 2006

Videotaped Confessions And The Genre Of Documentary, Jessica Silbey

Faculty Scholarship

This essay begins the exploration of two contemporary and related film trends: the recent popular enthusiasm over the previously arty documentary film and the mandatory filming of custodial interrogations and confessions.

The history and criticism of documentary film, indeed contemporary movie-going, understands the documentary genre as political and social advocacy (recent examples are Michael Moore's Farenheit 9/11 and Errol Morris's Fog of War). Judges, advocates, and legislatures, however, assume that films of custodial interrogations and confessions reveal a truth and lack a distorting point of view. As this Article explains, the trend at law, although aimed at furthering venerable criminal …


Issues In Article Iii Courts, Debra A. Livingston Jan 2006

Issues In Article Iii Courts, Debra A. Livingston

Faculty Scholarship

Cases implicating classified information can pose difficult legal issues for Article III courts, and these issues may well grow more complicated and arise more frequently as the global war on terror continues. The manner in which these issues are resolved has profound implications for the national security, for the procedural rights of litigants, and for the public's ability to scrutinize legal proceedings. Indeed, the expanded use of secret evidence in Article III courts may raise questions about the very character of the courts themselves. Is there a point at which the demands placed upon these courts, pushing them in the …


Recordings, Transcripts And Translations As Evidence, Clifford S. Fishman Jan 2006

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 …


Reconsidering The Medical Expert Witness System, Yunwei Jiang Jan 2006

Reconsidering The Medical Expert Witness System, Yunwei Jiang

LLM Theses and Essays

The expert witness is indispensable in a medical malpractice case. However, there are three main defects in the currently existing expert witness system. One is incompetence of expert witnesses. Another is professional negligence of expert witnesses. The other is dishonesty of expert witnesses. To make the expert witness system more efficient, this article examines currently existing rules and offers some proposals regarding the three issues. For the first one, the suggestion of this article is to rely on the standards of expert qualification and admitting expert testimony. For the second one, this article distinguishes expert witnesses from lay witnesses, and …


Case Comment, Sanchez-Llamas V. Oregon, Curtis A. Bradley Jan 2006

Case Comment, Sanchez-Llamas V. Oregon, Curtis A. Bradley

Faculty Scholarship

No abstract provided.


Behavioral Genetics Research And Criminal Dna Databanks, David H. Kaye Jan 2006

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

Journal Articles

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 …


Evolving Evidentiary Needs: A Neglected Responsibility, Paul Rice Jan 2006

Evolving Evidentiary Needs: A Neglected Responsibility, Paul Rice

Articles in Law Reviews & Other Academic Journals

No abstract provided.


Using Graphics To Teach Evidence, Kevin C. Mcmunigal Jan 2006

Using Graphics To Teach Evidence, Kevin C. Mcmunigal

Faculty Publications

As an Assistant United States Attorney in the general crimes unit of a metropolitan United States Attorney's Office, I regularly tried a variety of cases ranging from bank robberies and drug offenses to white collar crimes. Regardless of the type of crime, I frequently found various types of graphics useful in presenting the case. Examples included a chart providing a point by point comparison of modus operandi in two armed bank robberies and a map of the scene of a controlled purchase of cocaine showing the locations and movements of multiple defendants, an informant, and federal agents. Such graphics helped …


From Undermining Child Protection Statutes To Creating Exceptions To Prohibitions Against Racial Discrimination In Public Accommodations: The Unsettling Consequences Of Mischaracterizing The Police Reporting Privilege, Peter Zablotsky Jan 2006

From Undermining Child Protection Statutes To Creating Exceptions To Prohibitions Against Racial Discrimination In Public Accommodations: The Unsettling Consequences Of Mischaracterizing The Police Reporting Privilege, Peter Zablotsky

Scholarly Works

No abstract provided.


Dangerousness And Expertise Redux, Christopher Slobogin Jan 2006

Dangerousness And Expertise Redux, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Civil commitment, confinement under sexual predator laws, and many capital and noncapital sentences depend upon proof of a propensity toward violence. This Article discusses the current state of prediction science, in particular the advantages and disadvantages of clinical and actuarial prediction, and then analyzes how the rules of evidence should be interpreted in deciding whether opinions about propensity should be admissible. It concludes that dangerousness predictions that are not based on empirically derived probability estimates should be excluded from the courtroom unless the defense decides otherwise. This conclusion is not bottomed on the usual concern courts and commentators raise about …


Same Old, Same Old: Scientific Evidence Past And Present, Edward K. Cheng Jan 2006

Same Old, Same Old: Scientific Evidence Past And Present, Edward K. Cheng

Vanderbilt Law School Faculty Publications

For over twenty years, and particularly since the Supreme Court's Daubert' decision in 1993, much ink has been spilled debating the problem of scientific evidence in the courts. Are jurors or, in the alternative, judges qualified to assess scientific reliability? Do courts really need to be concerned about "junk science"? What mechanisms can promote better decision making in scientific cases? Even a cursory scan of the literature shows the recent explosion of interest in these issues, precipitating new treatises, hundreds of articles, and countless conferences for judges, practitioners, and academics.


Evidence History, The New Trace Evidence And Rumblings In The Future Of Proof, Robert P. Mosteller Jan 2006

Evidence History, The New Trace Evidence And Rumblings In The Future Of Proof, Robert P. Mosteller

Faculty Scholarship

This paper is in two parts. The first part is about developments in the rules of evidence and particularly about developments in the federal rules of evidence, which has had a major impact on evidence rules in many states. This part turns out to be largely about the past because my sense is that the impact of changes in the formal rules of evidence, which were substantial, are largely historic. To be sure future changes in the formal rules, particularly those that may be made as a result of the Supreme Court’s decision in Crawford v. Washington (2004) that dramatically …


The Trial Of Bigger Thomas: Race, Gender, And Trespass, Bennett Capers Jan 2006

The Trial Of Bigger Thomas: Race, Gender, And Trespass, Bennett Capers

Faculty Scholarship

No abstract provided.


Confidentiality In Arbitration: Beyond The Myth, Richard C. Reuben Jan 2006

Confidentiality In Arbitration: Beyond The Myth, Richard C. Reuben

Faculty Publications

Many people assume that arbitration is private and confidential. But is that assumption accurate? This article is the first to explore that question in the important context of whether arbitration communications can be discovered and admitted into evidence in other legal proceedings - a question that is just beginning to show up in the cases. It first surveys the federal and state statutory and case law, finding that arbitration communications in fact are generally discoverable and admissible. It then considers the normative desirability of discovering and admitting arbitration communications evidence, concluding that the free discovery and admissibility of arbitration communications …


Daubert Challenges To Fingerprints, Paul C. Giannelli Jan 2006

Daubert Challenges To Fingerprints, Paul C. Giannelli

Faculty Publications

No abstract provided.