Law Commons^™

Barber V. State, 131 Nev. Adv, Op. 103 (December 31, 2015), Ronni N. Boscovich

Nevada Supreme Court Summaries

The Court considered an appeal from a district court conviction. The Court reversed the Eighth Judicial District Court’s judgment of conviction, pursuant to a jury verdict of burglary and grand larceny. The juvenile court retains jurisdiction over Barber because the legislation did not include language regarding jurisdiction stripping or dismissal requirements. However, the Court reversed the judgment because the prosecution presented insufficient evidence to support Barber’s conviction.

Moultrie V. State, 131 Nev. Adv. Op. 93 (Dec. 24, 2015), Cassandra Ramey

Nevada Supreme Court Summaries

The Court of Appeals determined that the district court did not abuse its discretion by allowing the State to file an information by affidavit more than 15 days after the preliminary examination concluded, when the justice court committed an “egregious error,” and “the defendant was discharged but not prejudiced by the delay.” Further, the Court defines “egregious error” as when “a charge was erroneously dismissed or a defendant was erroneously discharged based on a magistrate’s error.” Due to the justice court’s egregious errors in the preliminary examination that resulted in appellant’s discharge, the Court found that the district court was …

Berry V. State, 131 Nev. Adv. Op. No. 96 (Dec. 24, 2015), Brittany L. Shipp

Nevada Supreme Court Summaries

The issue before the Court was an appeal from a district court order dismissing a post-conviction petition for writ of habeas corpus. The Court reversed and remanded holding that the district court improperly discounted the declarations in support of the appellant’s petition, which included a confession of another suspect, whom the petitioner implicated as the real perpetrator at trial. The Court held that these declarations were sufficient to merit discovery, and an evidentiary hearing on Petitioner Berry’s gateway actual innocence claim.

Schools Fail To Get It Right On Rap Music, Andrea L. Dennis

Popular Media

School officials treat rap music as a serious threat to the school environment. Fear and misunderstanding of, as well as bias against, this highly popular and lucrative musical art form negatively shape their perspectives on this vital aspect of youth culture.

As a result, students who express themselves through rap music in a way that challenges the schoolhouse setting risk the possibility of suspension, permanent exclusion and referral to the criminal justice system.

The ongoing case of Taylor Bell is the latest and most complex battleground on which this issue is playing out.

The Novel New Jersey Eyewitness Instruction Induces Skepticism But Not Sensitivity, Athan Papailiou, David Yokum, Christopher Robertson

Faculty Scholarship

In recent decades, social scientists have shown that the reliability of eyewitness identifications is much worse than laypersons tend to believe. Although courts have only recently begun to react to this evidence, the New Jersey judiciary has reformed its jury instructions to notify jurors about the frailties of human memory, the potential for lineup administrators to nudge witnesses towards suspects that they police have already identified, and the advantages of alternative lineup procedures, including blinding of the administrator. This experiment tested the efficacy of New Jersey’s jury instruction. In a 2×2 between-subjects design, mock jurors (N = 335) watched a …

Valenti V. Nev. Dep’T Of Motor Vehicles, 131 Nev. Adv. Op. 87 (Nov. 5, 2015), Shannon Diaz

Nevada Supreme Court Summaries

The Court determined that a “chemist” as defined by NRS § 50.320must be qualified as an expert in a Nevada court of record prior to the admission of his or her affidavit attesting to an individual’s blood-alcohol concentration in a driver’s license revocation hearing

The Importance Of Being Dismissive: The Efficiency Role Of Pleading Stage Evaluation Of Shareholder Litigation, Lawrence A. Hamermesh, Michael L. Wachter

All Faculty Scholarship

It has been claimed that the risk/reward dynamics of shareholder litigation have encouraged quick settlements with substantial attorneys’ fee awards but no payment to shareholders, regardless of the merits of the case. Fee-shifting charter and bylaw provisions may be too blunt a tool to control agency costs associated with excessive shareholder litigation, and are in any event now prohibited by Delaware statute. We claim, however, that active judicial supervision of public company shareholder litigation at an early stage reduces the costs of frivolous litigation to shareholders by separating meritorious from unmeritorious litigation before the full costs of discovery are incurred. …

Implicit Bias And Capital Decision-Making: Using Narrative To Counter Prejudicial Psychiatric Labels, Sean O'Brien, Kathleen Wayland

Faculty Works

Overreliance on psychiatric diagnostic labels in the defense of death penalty cases risks triggering prejudicial associations in the minds of decision-makers. This article emphasizes the importance of developing a mitigating counter-narrative of the defendant’s life story, based on an extensive longitudinal and developmental investigation of the defendant and his family’s life trajectory. It is the client’s life story, not diagnostic labels, that reveals his humanity. Cognitive psychology provides a useful framework for explaining human perceptions, and how implicit or explicit biases can interfere with the objective interpretation of data in ways that affect judgment and behavior.

Dangerous Diagnoses, Risky Assumptions, And The Failed Experiment Of "Sexually Violent Predator" Commitment, Deirdre M. Smith

Faculty Publications

In its 1997 opinion, Kansas v. Hendricks, the U.S. Supreme Court upheld a law that reflected a new model of civil commitment. The targets of this new commitment law were dubbed “Sexually Violent Predators” (SVPs), and the Court upheld indefinite detention of these individuals on the assumption that there is a psychiatrically distinct class of individuals who, unlike typical recidivists, have a mental condition that impairs their ability to refrain from violent sexual behavior. And, more specifically, the Court assumed that the justice system could reliably identify the true “predators,” those for whom this unusual and extraordinary deprivation of liberty …

New Hardware And Software Innovations (For Volumetric Modeling), A. Keith Turner

Uncovering the Hidden Resource: Groundwater Law, Hydrology, and Policy in the 1990s (Summer Conference, June 15-17)

19 pages (includes illustrations and maps).

The New Doctrinalism: Implications For Evidence Theory, Alex Stein

Faculty Scholarship

No abstract provided.

Summary Of Guitron (Miguel) V. State, 131 Nev. Adv. Op. 27 (May 21, 2015), Aleem Dhalla

Nevada Supreme Court Summaries

The Court determined that (1) the State presented sufficient evidence for a jury to convict Guitron of incest and sexual assault, (2) the district court did err by not allowing Guitron to introduce evidence of the victims sexual knowledge, but this error was harmless, (3) the district court did err refusing to give the jury Guitron’s requested inverse elements instruction, but this error was also harmless, and (4) Guitron could not show that the district court erred by denying his Batson challenge.

Dna By The Entirety, Natalie Ram

All Faculty Scholarship

The law fails to accommodate the inconvenient fact that an individual’s identifiable genetic information is involuntarily and immutably shared with her close genetic relatives. Legal institutions have established that individuals have a cognizable interest in controlling genetic information that is identifying to them. The Supreme Court recognized in Maryland v. King that the Fourth Amendment is implicated when arrestees’ DNA is analyzed, and the Genetic Information Nondiscrimination Act protects individuals from genetic discrimination in the employment and health-insurance markets. But genetic information is not like other forms of private or personal information because it is shared — immutably and involuntarily …

Summary Of Mitchell V. Eighth Jud. Dist. Ct., 131 Nev. Adv. Op. 63076 (Apr. 30 2015), Stacy Newman

Nevada Supreme Court Summaries

Original petition for a writ of mandamus directing the district court to sustain the privileges asserted by a defendant doctor in a medical malpractice case to his personal counseling and treatment records was granted and denied in part. The court determined 1) Mitchell’s family and marital therapy records were privileged 2) Mitchell’s doctor-patient records were subject to NRS 49.245(3) patient-litigation exception, but 3) the doctor-patient records should have been reviewed in camera by the district court before discovery.

Burris V. State: Suggestions For The Continued Development Of The Rule For Admitting The Testimony Of Gang Experts, Michael Jacko

Maryland Law Review Online

No abstract provided.

Newsroom: Waters '98 Testifies For Innocence Project, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Montana Rules Of Evidence: Essential Accessory In Any Court, Cynthia Ford

Faculty Journal Articles & Other Writings

No abstract provided.

Testing Tribe’S Triangle, Justin Sevier

Scholarly Publications

Since its inception, evidence policymakers have vacillated with respect to whether the rule barring hearsay evidence at trial is a doctrine designed to promote decisional accuracy or a doctrine designed to promote procedural justice.

To the extent that policymakers view the rule barring hearsay evidence as promoting decisional accuracy, the rationale for this view stems from the “testimonial triangle” promulgated by Professor Laurence Tribe, which conceptualizes the objections to hearsay evidence at common law. Tribe’s testimonial triangle states that (1) several infirmities lurk behind all testimony provided in court, and (2) testimony based on hearsay is subject to two sets …

Tribal Courts Part Ii: Crow, Ft. Belknap, Fort Peck And Northern Cheyenne, Cynthia Ford

Faculty Journal Articles & Other Writings

No abstract provided.

Evidence Rules In Montana's Tribal Courts, Part I Of Ii, Cynthia Ford

Faculty Journal Articles & Other Writings

No abstract provided.

Signal Vs. Noise: Some Comments On Professor Stein's Theory Of Evidential Efficiency, Emily Spottswood

Scholarly Publications

In this Essay, I examine Professor Stein's intriguing new theory of evidential efficiency, which posits that judges should admit evidence whenever it has a sufficiently high "signal-to-noise ratio." I explore a slightly different definition of the concepts of "signal" and "noise" than Stein, based upon likelihood ratio values rather than the underlying probabilities of events, and I explain why these altered concepts may be analytically superior. Additionally, I call into question the strength of the connection between the signal-to-noise ratio of a piece of evidence and the costs of admitting it at trial. Nevertheless, Stein's project is worthy of great …

Tell Us A Story But Don’T Make It A Good One: Embracing The Tension Regarding Emotional Stories And The Federal Rule Of Evidence 403, Cathren Koehlert-Page

Faculty Scholarship

No abstract provided.

Sonic Jihad — Muslim Hip Hop In The Age Of Mass Incarceration, Spearit

Articles

This essay examines hip hop music as a form of legal criticism. It focuses on the music as critical resistance and “new terrain” for understanding the law, and more specifically, focuses on what prisons mean to Muslim hip hop artists. Losing friends, family, and loved ones to the proverbial belly of the beast has inspired criticism of criminal justice from the earliest days of hip hop culture. In the music, prisons are known by a host of names like “pen,” “bing,” and “clink,” terms that are invoked throughout the lyrics. The most extreme expressions offer violent fantasies of revolution and …

Proportionality And The Social Benefits Of Discovery: Out Of Sight And Out Of Mind?, Stephen B. Burbank

All Faculty Scholarship

In this short essay, based on remarks delivered at the 2015 meeting of the AALS Section of Litigation, I use a recent paper by Gelbach and Kobayashi to highlight the risk that, in assessing the proportionality of proposed discovery under the 2015 amendments to Rule 26 of the Federal Rules of Civil Procedure, federal judges will privilege costs over benefits, and private over public interests. The risk arises from the temptation to focus on (1) the interests of those who are present to the detriment of the interests of those who are absent (“the availability heuristic”), and (2) variables that …

Saving An Old Friend From Extinction: A Proposal To Amend Rather Than To Abrogate The Ancient Documents Hearsay Exception, Peter Nicolas

Articles

This Essay critically assesses a pending, proposed amendment to the Federal Rules of Evidence—slated to take effect in December 2017—that would abrogate Federal Rule of Evidence 803(16), the hearsay exception for ancient documents. The proposed amendment was motivated largely by a fear that large quantities of potentially unreliable, stockpiled, electronically stored information (ESI) are approaching the threshold age for being deemed "ancient" and could thus be swept into evidence via the exception.

In Part I of this Essay, I provide an overview of the proposed amendment. In Part II, I contend that although the proposal is a well-intentioned effort to …

Wrongful Confictions And Due Process Violations, Cheryl Page

Journal Publications

This analytical essay looks at the myriad of ways innocent people are wrongfully convicted and how the criminal justice system fails to truly reach a fair and equitable result. The article looks at how at the initial stages of a criminal proceeding, a defendant can be prejudiced to the point of sufficient harm to his chances at being given a fair and impartial judicial proceeding. This article examines how fatal mistakes can be made and reveals that there can be flaws in the science of DNA testing, including fraud, criminologist bias, improper laboratory procedures, and human error. This article seeks …

Exporting The Hearsay Provisions Of The Federal Rules Of Evidence,, Roger C. Park

Faculty Scholarship

No abstract provided.

Imaging Brains, Changing Minds: How Pain Neuroimaging Can Inform The Law, Amanda C. Pustilnik

Faculty Scholarship

What would the law do differently if it could see into the black box of the mind? One of the most valuable things it might do is reform the ways it deals with pain. Pain is ubiquitous in law, from tort to torture, from ERISA to expert evidence. Yet legal doctrines grapple with pain poorly, embodying concepts that are generations out of date and that cast suspicion on pain sufferers as having a problem that is “all in their heads.”

Now, brain-imaging technologies are allowing scientists to see the brain in pain—and to reconceive of many types of pain as …

Panel 3: Chronic Pain, Psychogenic Pain, And Emotion, Robert Dinerstein

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Negotiator's Nook: The Ins And Outs Of Effective Negotiation, David Spratt

Articles in Law Reviews & Other Academic Journals

No abstract provided.