Law Commons^™

Vol. Xxiv, Tab 61 - Ex. 2 - Rosetta Stone's Answers To Google's First Set Of Interrogatories, Rosetta Stone

Rosetta Stone v. Google (Joint Appendix)

Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?

Summary Of Fields V. State,125 Nev. Adv. Op. No. 36, John F. Burns

Nevada Supreme Court Summaries

This case is an appeal from the Fourth Judicial District Court judgment of conviction of first-degree murder and conspiracy to commit murder. The appellant asserts error in admitting prior bad act evidence, error in excluding witness testimony as inadmissible extrinsic evidence, error in admitting telephone conversations subject to martial privilege, error in instructing the jury on specific intent, and improper argument by the prosecutor in closing argument.

Summary Of Fields V. State, 125 Nev. Adv. Op. No. 57, Kimberly Duque

Nevada Supreme Court Summaries

Whether the district court abused its discretion in admitting prior bad act evidence because (1) it did not fall within the common-plan-or-scheme exception or because (2) its probative value was substantially outweighed by the danger of unfair prejudice.

Book Review: Carl Cranor, Toxic Torts: Science, Law, And The Possibility Of Justice, David S. Caudill

Working Paper Series

Carl F. Cranor’s Toxic Torts: Science, Law, and the Possibility of Justice is a sustained, comprehensive argument that the Daubert gatekeeping regime has tilted the playing field against injured plaintiffs in toxic tort litigation. More generally, Cranor joins those who argue that the Daubert regime has not fared well in practice. Complex scientific evidence is not handled well in trials because scientific methods, data, and inferential reasoning are not well understood by gatekeeping judges. Cranor’s goal is to help solve this problem by offering a detailed description of the patterns of reasoning, evidence collection, and inference in nonlegal scientific settings. …

Repeating, Yet Evading Review: Admitting Reliable Expert Testimony In Criminal Cases Still Depends Upon Who Is Asking, Wes R. Porter

Publications

A trial court must find that the proponent of expert witness testimony has set forth adequate evidence that the testimony is based upon reliable methods and will be helpful to the trier of fact. Much has been written regarding the reliability prong since the Supreme Court’s decision in Daubert v. Merrell Dow Pharm., yet a severe prejudice to the criminally accused persists today in some trial courts’ analyses of the often overlooked helpfulness prong. Despite the straight-forward articulation of helpfulness, described as “fit” or mere relevance, some trial courts apply the helpfulness prong differently depending upon whether the expert testimony …

We Have A "Purpose" Requirement If We Can Keep It, James F. Flanagan

Faculty Publications

The Supreme Court in Giles v. California held that a defendant forfeits the right to confront a witness only when he purposefully keeps the witness away. Many see the "purpose" requirement as an unjustified bar to the use of victim hearsay, particularly in domestic violence prosecutions where victims often refuse to appear. The author defends Giles as a correct reading of history, and independently justified by longstanding precedent that constitutional trial rights can only be lost by intentional manipulation of the judicial process. Moreover, the purpose requirement does not prevent prosecutions or convictions because the definition of testimonial hearsay is …

Admissibility Of Scientific Evidence And Expert Testimony: One Potato, Two Potato, Daubert, Frye, Lynn Mclain

All Faculty Scholarship

This handout from a Maryland Judicial Institute presentation covers the Maryland Rules concerning expert testimony and the ways they differ from the Federal Rules of Evidence.

Summary Of Sonia F. Ex Rel. J.M. V. Dist. Ct., 125 Nev. Adv. Op. No. 38, Jason Vanmeetren

Nevada Supreme Court Summaries

Nevada’s rape shield law2 applies only to criminal proceedings and not civil cases. However, the district court may limit the discovery of an alleged victim’s sexual history to protect the victim’s privacy.

The Sixth Amendment And Expert Witnesses In Criminal Tax Cases, Steve R. Johnson

Scholarly Publications

Recently, in the Baxter case, a federal district court vacated the sentence imposed as a result of a guilty plea in a criminal tax case. The court held that the failure of defense counsel to retain the services of an expert in tax crimes sentencing violated the defendant’s Sixth Amendment right to effective representation.

This installment of the Tax Crimes column explores Baxter. Part A briefly notes the civil and criminal tax contexts in which tax experts are used. Part B describes Baxter and its holding. Part C asks whether defense counsel in criminal tax cases should always retain a …

Out-Of-Court Statements: The Concentric Hoops Of The Hearsay Rule And The Confrontation Clause, Lynn Mclain

All Faculty Scholarship

This 44 page booklet created for the Maryland Judicial Institute outlines hearsay evidence, how hearsay overlaps with the Confrontation Clause, and the exceptions to hearsay under Maryland law.

The Legality And Practicality Of Remote Witness Testimony, Fredric Lederer

Popular Media

No abstract provided.

Managing The Unmanageable: A Brief Accounting Of A Special Master’S Thirty Years Of Experience In Complex Litigation, Paul Rice

Articles in Law Reviews & Other Academic Journals

Managing an efficient, but fair, pretrial process in a large and complex case has always been a challenge. With the advent of electronic communications and the corresponding explosion of privilege claims, this challenge has become significantly more difficult. Indeed, it is not uncommon for corporate parties to assert tens of thousands, if not hundreds of thousands, of privilege claims. Furthermore, the resolution of these privilege questions is often compounded by difficult choice of law questions that can have the result of different substantive principles being applied to identical discovery demands originating in different jurisdictions. Additionally, before addressing the increasingly voluminous …

The Dna Of An Argument: A Case Study In Legal Logos, Colin Starger

All Faculty Scholarship

This Article develops a framework for analyzing legal argument through an in-depth case study of the debate over federal actions for post-conviction DNA access. Building on the Aristotelian concept of logos, this Article maintains that the persuasive power of legal logic depends in part on the rhetorical characteristics of premises, inferences, and conclusions in legal proofs. After sketching a taxonomy that distinguishes between prototypical argument logo (formal, empirical, narrative, and categorical), the Article applies its framework to parse the rhetorical dynamics at play in litigation over post-conviction access to DNA evidence under 42 U.S.C. § 1983, focusing in particular on …

Arsenic And Old Chemistry: Images Of Mad Alchemists, Experts Attacking Experts, And The Crisis In Forensic Science, David S. Caudill

Working Paper Series

Drawing on research into the use of experts in early 19th-century criminal trials, the image of mad alchemists in popular culture representations of science, and the distinction between empirical and contingent “interpretive repertoires” in the discourse of scientific controversies, this article explores the controversy over arsenic-detection technologies prior to the Marsh test. In addition to noting the predictable criticism of incompetent expertise in the service of law, this article highlights implied accusations of hubris and amorality on the part of over-confident experts, both in the early 19th-century and in today's crisis of forensic science.

Vol. Ix, Tab 43 - Google Memorandum In Support Of Its Motion To Exclude Expert Report And Opinion Of Dr. Kent Van Liere, Google

Rosetta Stone v. Google (Joint Appendix)

Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?

Saving Face: The Benefits Of Not Saying I'M Sorry, Brent T. White

Publications

No abstract provided.

Standards Of Proof Revisited, Kevin M. Clermont

Cornell Law Faculty Publications

This Essay focuses not on how fact-finders process evidence but on how they apply the specified standard of proof to their finding. The oddity that prompts speculation is that, in noncriminal cases, the common law asks only that the fact appear more likely than not, while the Civil Law seems to apply the same high standard in these cases as it does in criminal cases. As a psychological explanation of the cognitive processes involved, some theorists posit that the bulk of fact-finding is an unconscious process, powerful but dangerous, which generates a level of confidence against which the fact-finder could …

Confronting Scientific Reports Under Crawford V. Washington, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

In People v. Rawlins and People v. Meekins, the New York Court of Appeals addressed, for the first time, the admissibility of scientific reports prepared by non-testifying forensic experts for use by the prosecution in a criminal trial under the Sixth Amendment's Confrontation Clause. Rawlins involved a fingerprint comparison report prepared by a police forensic expert, and Meekins involved a DNA profile prepared by a technician in a private laboratory. The constitutional issue in both cases was whether these reports were “testimonial” statements within the meaning of the Confrontation Clause, as interpreted by the Supreme Court in Crawford v. Washington, …

Testimonial Deficiencies And Evidentiary Uncertainties In International Criminal Trials, Nancy Amoury Combs

Faculty Publications

In this article, the author describes the flaws inherent in the process of international criminal tribunals which seek to punish the inhumane actions of dictators. The author first describes how international criminal trials confront severe impediments to accurate factfinding. It continues on to discuss the failure of witnesses in these tribunals to accurately convey the information needed to make a fully- informed decision. This problem is compounded by the fact that what clear information is provided during witness testimony often is inconsistent with the information that the witness previously provided in a pre-trial statement. The author also explores the causes …

Does Anyone Get Stopped At The Gate? An Empirical Assessment Of The Daubert Trilogy In The States, Eric Helland, Jonathan Klick

All Faculty Scholarship

The Supreme Court’s trilogy of evidence cases, Daubert, Joiner, and Kumho Tire appear to mark a significant departure in the way scientific and expert evidence is handled in federal court. By focusing on the underlying methods used to generate the experts’ conclusions, Daubert has the potential to impose a more rigorous standard on experts. Given this potential, some individuals have called for states to adopt the Daubert standards to purge “junk science” from state courts. However, there is relatively little empirical support for the notion that Daubert affects the quality of expert evidence. Using a large dataset of state court …

Sealed Documents To Prevent “Perfectly Legitimate” Review And Dissemination Of Privileged Confidential Information, Bridget Hoy, Dana M. Malkus

All Faculty Scholarship

A recent federal district court case serves as a reminder that when filing documents through an electronic filing system, the information contained in the documents is immediately available to anyone “through perfectly legitimate means: by reading a public filing.” The January 6, 2009 opinion in E-Smart Technologies, Inc., et al. v. Wayne Drizin, et al., 2009 U.S. Dist. LEXIS 272 (N.D. Ca Jan. 6, 2009), demonstrates that when caution is not taken at the onset to seal documents that contain privileged or confidential information, there might be little recourse for immediate distribution of information that one might later determine …

Policing, Place, And Race, Bennett Capers

Faculty Scholarship

No abstract provided.

Revisiting The Crime-Fraud Exception To The Attorney-Client Privilege: A Proposal To Remedy The Disparity In Protections For Civil And Criminal Privilege Holders, Cary Bricker

McGeorge School of Law Scholarly Articles

No abstract provided.

The Work Product Doctrine And Tax Accrual Workpapers, Steve R. Johnson

Scholarly Publications

In its rehearing of Textron, the First Circuit has an opportunity to rectify an error and curb unwise recent expansion of work product protection for tax accrual workpapers. In August 2007, a district court denied the government’s petition for enforcement of an IRS summons on Textron Inc. and its subsidiaries for tax accrual workpapers in connection with IRS examinations of the taxpayers’ 1998 to 2001 income tax returns. A divided panel of the First Circuit affirmed in January 2009. In March 2009, the First Circuit withdrew the panel opinion and dissent, and it set the case for en banc hearing …

Reality Bites: The Illusion Of Science In Bite-Mark Evidence, Erica Beecher-Monas

Law Faculty Research Publications

No abstract provided.

Notes On Minority Report, Bennett Capers

Faculty Scholarship

No abstract provided.

Vol. Xiv, Tab 51 - Google's Objection To Evidence And Motion To Strike, Google

Rosetta Stone v. Google (Joint Appendix)

Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?

Happiness And Punishment (With J. Bronsteen & J. Masur), Christopher J. Buccafusco

All Faculty Scholarship

This article continues our project to apply groundbreaking new literature on the behavioral psychology of human happiness to some of the most deeply analyzed questions in law. Here we explain that the new psychological understandings of happiness interact in startling ways with the leading theories of criminal punishment. Punishment theorists, both retributivist and utilitarian, have failed to account for human beings' ability to adapt to changed circumstances, including fines and (surprisingly) imprisonment. At the same time, these theorists have largely ignored the severe hedonic losses brought about by the post-prison social and economic deprivations (unemployment, divorce, and disease) caused by …

Taking A Stand On Taking The Stand: The Effect Of A Prior Criminal Record On The Decision To Testify And On Trial Outcomes, Theodore Eisenberg, Valerie P. Hans

Cornell Law Faculty Publications

This article uses unique data from over 300 criminal trials in four large counties to study the relations between the existence of a prior criminal record and defendants testifying at trial, between testifying at trial and juries' learning about a criminal record, and between juries' learning about a criminal record and their decisions to convict or acquit. Sixty percent of defendants without criminal records testified compared to 45 percent with criminal records. For testifying defendants with criminal records, juries learned of those records in about half the cases. Juries rarely learned about criminal records unless defendants testified. After controlling for …

Burden Of Proof, Prima Facie Case And Presumption In Wto Dispute Settlement, John J. Barceló Iii

Cornell Law Faculty Publications

The essay maintains that the WTO Appellate Body's concepts and terminology concerning a claimant's burden of proof-the concepts of prima facie case, presumption, and burden shifting-are disturbingly ambiguous and potentially misleading. This is so whether one thinks of these terms from either a common law or a civil law perspective. In the face of the current ambiguity, a future panel might understand the AB's prima facie case concept to require an overwhelming level of proof from the claimant. On the other hand, a different panel might allow a rather weak level of claimant's proof to meet the prima facie requirement, …