Law Commons^™

Jury Trial Techniques In Complex Civil Litigation, Ronald S. Longhofer

University of Michigan Journal of Law Reform

Ronald Longhofer, an experienced litigator, discusses the challenges inherent in trying a complex civil case to a jury. He explores aspects of complex litigation that often impede jurors from effectively hearing such cases. In conclusion, he suggests litigation techniques which have proved successful in overcoming such obstacles and effectively translating complex evidence to jurors.

When Balance And Fairness Collide: An Argument For Execution Impact Evidence In Capital Trials, Wayne A. Logan

University of Michigan Journal of Law Reform

A central precept of death penalty jurisprudence is that only the "death worthy" should be condemned, based on a "reasoned moral response" by the sentencing authority. Over the past decade, however, the Supreme Court has distanced itself from its painstaking efforts in the 1970s to calibrate death decision making in the name of fairness. Compelling proof of this shift is manifest in the Court's decisions to permit victim impact evidence in capital trials, and to allow jurors to be instructed that sympathy for capital defendants is not to influence capital decisions. This Article examines a novel strategy now being employed …

Evidence, Marc T. Treadwell

Mercer Law Review

The survey period saw a number of cases raising significant evidentiary issues. Most notable is the continuing evolution of the necessity exception to the rule against hearsay. During the survey period, the Supreme Court added a third prong to the test for the admission of evidence pursuant to the necessity exception, and thus seemingly narrowed the scope of the exception. However, the court also expanded the circumstances that constitute the "unavailability" of a witness. The net effect seems to be an expansion of the necessity exception.

Admitting Expert Testimony On Battered Woman Syndrome In Virginia Courts: How Peeples Changed Virginia Self-Defense Law, Marybeth H. Lenkevich

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

How Much Justice Hangs In The Balance? A New Look At Hung Jury Rates, Paula Hannaford-Agor, Valerie P. Hans, G. Thomas Munsterman

Cornell Law Faculty Publications

Reports of apparent increases in the number of hung juries in some jurisdictions have caused concern among policy makers. A 1995 report by the California District Attorneys Association cited hung jury rates in 1994 that exceeded 15 percent in some jurisdictions (the rates varied from 3 to 23 percent across the nine counties for which data were available). In 1996, the District of Columbia Superior Court reported a higher-than-expected hung jury rate of 11 percent. Why juries hang at these rates isn't clear, but some commentators have claimed that hung juries are the product of eccentric or nullifying holdout jurors …

Unconscious Bias And Self-Critical Analysis: The Case For A Qualified Evidentiary Equal Employment Opportunity Privilege, Deana A. Pollard

Washington Law Review

Recent breakthroughs in social psychology have resulted in the ability to measure unconscious bias scientifically. Studies indicate that prejudiced responses are largely unconscious, the result of normal cognitive processing and stereotypical associations of which the prejudiced subject may be completely unaware. The studies also indicate that a subject's awareness of the discrepancy between her conscious, egalitarian value system and her unconscious prejudice is a critical step towards the convergence of her cognitive functioning and her egalitarian viewpoints. Antidiscrimination legislation requires a showing of intent to discriminate to obtain relief in all but a small percent of circumstances. The result is …

Between Rock And A Hard Place: Polygraph Prejudice Persists After Scheffer, Robin D. Barovick

Buffalo Law Review

No abstract provided.

Taslitz's Proposal For The Use Of Feminist Evidence Law In The Courtroom, Harvey Gee

Buffalo Women's Law Journal

Book review of Andrew Taslitz's Rape and the Culture of the Courtroom

Formal Legal Truth And Substantive Truth In Judicial Fact-Finding – Their Justified Divergence In Some Particular Cases, Robert S. Summers

Cornell Law Faculty Publications

Truth is a fundamental objective of adjudicative processes; ideally, ‘substantive’ as distinct from ‘formal legal’ truth. But problems of evidence, for example, may frustrate finding of substantive truth; other values may lead to exclusions of probative evidence, e.g., for the sake of fairness. ‘Jury nullification’ and ‘jury equity’. Limits of time, and definitiveness of decision, require allocation of burden of proof. Degree of truth-formality is variable within a system and across systems.

The Jury And Scientific Evidence, Richard O. Lempert

Articles

Read court decisions and commentaries from 100, or evenfive years ago, and you will find that experts and scientific evidence were causing problems then just as they are causing problems now. I do not think that Daubert, Kumho Tire, or any change in a rule of evidence will keep expert scientific testimony from being a difficult area for the legal system. Yet we must still ask: "What are the best terms on which to deal with scientific experts, and how can weimprove the system?"

2. Are Battered Women Bad Mothers? Rethinking The Termination Of Abused Women’S Parental Rights For Failure To Protect., Thomas D. Lyon

Thomas D. Lyon

The Law And The Brain: Judging Scientific Evidence Of Intent, Erica Beecher-Monas, Edgar Garcia-Rill

The Journal of Appellate Practice and Process

This essay addresses the issue of judges deciding what scientific evidence is admissible. The primary focus is the admissibility of expert mental state testimony in criminal cases. The issue is addressed by answering two questions: 1) how does science work and 2) how does the brain work?

Evidence, Marc T. Treadwell

Mercer Law Review

Daubert inspired appeals again occupied much of the Eleventh Circuit's time during the survey period. As discussed in detail below, the Eleventh Circuit held in Carmichael v. Samyang Tire, Inc. that Daubert applies only to witnesses claiming scientific expertise, a decision which sent parties scrambling as they sought to avoid or to invoke Daubert. However, after the survey period, the Supreme Court reversed the Eleventh Circuit's decision in Carmichael. In Kumho Tire Co. v. Carmichael, the Supreme Court held that Daubert applies to all expert testimony and is not limited to "scientific" testimony. The Court also …

Whether The Federal Rules Of Evidence Should Be Conceived As A Perpetual Index Code: Blindness Is Worse Than Myopia, Edward J. Imwinkelried

William & Mary Law Review

No abstract provided.

Evidence Myopia: The Failure To See The Federal Rules Of Evidence As A Codification Of The Common Law, Glen Weissenberger

William & Mary Law Review

No abstract provided.

The Elusive Identity Of The Federal Rules Of Evidence, Glen Weissenberger

William & Mary Law Review

No abstract provided.

Conflicts Of Interest In Scientific Expert Testimony, Mark R. Patterson

William & Mary Law Review

No abstract provided.

Reconceiving The Right To Present Witnesses, Richard A. Nagareda

Michigan Law Review

Modem American law is, in a sense, a system of compartments. For understandable curricular reasons, legal education sharply distinguishes the law of evidence from both constitutional law and criminal procedure. In fact, the lines of demarcation between these three subjects extend well beyond law school to the organization of the leading treatises and case headnotes to which practicing lawyers routinely refer in their trade. Many of the most interesting questions in the law, however, do not rest squarely within a single compartment; instead, they concern the content and legitimacy of the lines of demarcation themselves. This article explores a significant, …

Text, Context And The Problem With Rape, Katharine K. Baker

All Faculty Scholarship

No abstract provided.

Text, Context And The Problem With Rape, Katharine K. Baker

Katharine K. Baker

No abstract provided.

The Standard Of Appellate Review For Scientific Evidence: Beyond Joiner And Scheffer, Randolph N. Jonakait

Articles & Chapters

No abstract provided.

Looking For Policy In All The Wrong Places: A Comment On The Strategies Of "The Race And Gender Crowd" Toward Evidence Law, David L. Faigman

Faculty Scholarship

No abstract provided.

The Antiquated "Slight Evidence Rule" In Federal Conspiracy Cases, Brent E. Newton

The Journal of Appellate Practice and Process

This article addresses the risk of wrongful convictions in federal conspiracy cases. The article points out how conspiracy cases rely heavily on circumstantial evidence and the slight evidence rule. The risk of over assigning liability to parties with minor involvement is also discussed.

Some Thoughts On The Conduct/Status Distinction, Sherry F. Colb

Cornell Law Faculty Publications

No abstract provided.

The Arizona Jury Reform Permitting Civil Jury Trial Discussions: The View Of Trial Participants, Judges, And Jurors, Valerie P. Hans, Paula Hannaford-Agor, G. Thomas Munsterman

Cornell Law Faculty Publications

In 1995, the Arizona Supreme Court reformed the jury trial process by allowing civil jurors to discuss the evidence presented during trial prior to their formal deliberations. This Article examines the theoretical, legal, and policy issues raised by this reform and presents the early results of a field experiment that tested the impact of trial discussions. Jurors, judges, attorneys, and litigants in civil jury trials in Arizona were questioned regarding their observations, experiences, and reactions during trial as well as what they perceived to be the benefits and drawback of juror discussions. The data revealed that the majority of judges …

Play It Again, Counsel: The Admission Of Videotaped Interviews In Prosecutions For Criminal Sexual Assault Of A Child, Elizabeth J.M. Strobel

Loyola University Chicago Law Journal

No abstract provided.

Trial And Error, Harry D. Saunders, Joshua G. Genser

Harry D. Saunders

The vagueness of the reasonable doubt standard, and jurors' interpretation of it, creates serious inconsistencies in the criminal justice system that call for creating a more objective standard of proof.

Defense Discovery In White Collar Criminal Prosecutions, Peter J. Henning

Law Faculty Research Publications

No abstract provided.

Guarding The Gate To The Courthouse: How Trial Judges Are Using Their Evidentiary Screening Role To Remake Tort Causation Rules, Lucinda M. Finley

Journal Articles

The article looks at what trial judges are actually doing in toxic tort cases in the post-Daubert world; it reviews and critiques cases in which judges have in effect adopted a new rule of causation law that requires plaintiffs to rely on epidemiology, and in particular epidemiology that demonostrates an increase in relative risk of 2.0 or greater; the article considers the substantive as well as the normative implications of this legal treatment of epidemiology.

Evidence: 1997-1998 Survey Of New York Law, Faust Rossi

Cornell Law Faculty Publications

No abstract provided.