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Evidence

2000

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Articles 31 - 60 of 69

Full-Text Articles in Law

The Response To Brecheen V. Reynolds: Oklahoma’S System For Evaluating Extra-Record Constitutional Claims In Death Penalty Cased, Jeremy B. Lowrey Jan 2000

The Response To Brecheen V. Reynolds: Oklahoma’S System For Evaluating Extra-Record Constitutional Claims In Death Penalty Cased, Jeremy B. Lowrey

The Journal of Appellate Practice and Process

This article attempts to define the “abuse of discretion” standard of review. The article begins by distinguishing the three types of appellate review. It then focuses on review of discretion. Articles written by Professors Maurice Rosenburg, Robert C. Post, and Judge Henery J. Friendly are next analyzed in order to further evaluate judicial discretionary decisionmaking. Caselaw is next used to discuss how courts have attempted to define and apply the abuse of discretion standard. Primary cases considered include Chevron U.S.A. v. Natural Resources Defense Council, Pierce v. Underwood, Cooter & Gell v. Hartmarx Corp., and Koon v. United States. Finally, …


Balancing Hearsay And Criminal Discovery, John G. Douglass Jan 2000

Balancing Hearsay And Criminal Discovery, John G. Douglass

Law Faculty Publications

and prosecutors. Part I of this Article argues that the conventional theory of hearsaydiscovery balance does not reflect the reality of modem federal practice. An imbalance has arisen because, in the last quarter century, developments in the law of evidence and confrontation are at odds with developments-or one might say nondevelopments-in the law of criminal discovery. Since enactment of the Federal Rules of Evidence in 1975, both the law of evidence and modem Confrontation Clause doctrine have evolved toward broader admission of hearsay in criminal cases. Contrary to conventional theory, that evolution has at least matched-and probably has outpaced-the trend …


The Heuristics Of Intellectual Due Process: A Primer For Triers Of Science, Erica Beecher-Monas Jan 2000

The Heuristics Of Intellectual Due Process: A Primer For Triers Of Science, Erica Beecher-Monas

Law Faculty Research Publications

Scientific evidence is an inescapable facet of modern litigation. The Supreme Court; beginning with the seminal case of Daubert v. Merrell Dow Pharmaceuticals, Inc, and continuing with General Electric Co. v. Joiner and Kumho Tire Co. v. Carmichael, has instructed federal judges to evaluate the scientific validity of such evidence in determining the evidence's adinissibiliV. In this Article, Professor Erica Beecher-Monas argues that many judges ignore the science component of their "gatekeeping" duties, focusing instead on rules of convenience that have little scientific justification. As a result, size demonstrates that judges reject even scientifically uncontroversial evidence that would have litttlroeu …


Evidence: 1998-1999 Survey Of New York Law, Faust Rossi Jan 2000

Evidence: 1998-1999 Survey Of New York Law, Faust Rossi

Cornell Law Faculty Publications

No abstract provided.


Sender Beware: The Discoverability And Admissibility Of E-Mail, William Decoste Jan 2000

Sender Beware: The Discoverability And Admissibility Of E-Mail, William Decoste

Vanderbilt Journal of Entertainment & Technology Law

This Note will explore the current body of jurisprudence concerning the discoverability and admissibility of e-mail in both the civil and criminal contexts. Beginning with a brief explanation of the relevant forms of information technology and electronic communication, it will examine the common misconceptions that fuel the ongoing imprudent use of e-mail. It will then trace the development of the case law, from the foundational cases that first confronted electronic evidence to recent precedent specifically addressing the various forms of contemporary e-mail. Federal statutory law regulating the acquisition and use of electronic communications will also be discussed. This Note will …


Modifying The Kentucky Rules Of Evidence—A Separation Of Powers Issue, Robert G. Lawson Jan 2000

Modifying The Kentucky Rules Of Evidence—A Separation Of Powers Issue, Robert G. Lawson

Law Faculty Scholarly Articles

How do you modify laws that simultaneously exist as statutes and rules of court? For reasons that are described elsewhere and need not be repeated here, the Kentucky Rules of Evidence (K.R.E.) came into existence through concurrent enactment by the General Assembly and Kentucky Supreme Court and thus are endowed with all the attributes of both statutes and rules of court. So, how do you change them when the inevitable need to do so arises, a question made both interesting and difficult by the fact that there is no institutional mechanism for concurrent lawmaking by the General Assembly and supreme …


Modifying The Kentucky Rules Of Evidence--A Separation Of Powers Issue, Robert G. Lawson Jan 2000

Modifying The Kentucky Rules Of Evidence--A Separation Of Powers Issue, Robert G. Lawson

Kentucky Law Journal

No abstract provided.


Toward A Prudential And Credibility-Centered Parol Evidence Rule, Lawrence A. Cunningham Jan 2000

Toward A Prudential And Credibility-Centered Parol Evidence Rule, Lawrence A. Cunningham

Boston College Law School Faculty Papers

The most influential judicial voices on the parol evidence rule are Roger Traynor and Richard Posner. Traynor pieced together aspects of positions championed by the antipodal titans of contracts, Arthur Corbin and Samuel Williston. Posner cuts through tangled doctrinal webs to show how the unifying talisman of the doctrine is credibility. Everything in parol evidence rule doctrine, in this formulation, can be understood in terms of two categories of evidence: subjective and objective. While the Traynor composite blended aspects of the titans of contracts into an incoherent stew, the Posner composite unites the central theme of the titans' positions, holding …


Prejudice To The NTh Degree: The Introduction Of Uncharged Misconduct Admissible Only Against A Co-Defendant At A Megatrial, Edward J. Imwinkelried Jan 2000

Prejudice To The NTh Degree: The Introduction Of Uncharged Misconduct Admissible Only Against A Co-Defendant At A Megatrial, Edward J. Imwinkelried

Oklahoma Law Review

No abstract provided.


Federal Rules Of Evidence: Raising The Bar On Adminissibility Of Expert Testimony: Can Your Expert Make The Grade After Kumho Tire V. Carmichael, Douglas B. Maddock Jr. Jan 2000

Federal Rules Of Evidence: Raising The Bar On Adminissibility Of Expert Testimony: Can Your Expert Make The Grade After Kumho Tire V. Carmichael, Douglas B. Maddock Jr.

Oklahoma Law Review

No abstract provided.


When Science Is Too Daunting: Multiple Chemical Sensitivity, Federal Courts, And The Struggling Spirit Of Daubert, Carl H. Johnson Jan 2000

When Science Is Too Daunting: Multiple Chemical Sensitivity, Federal Courts, And The Struggling Spirit Of Daubert, Carl H. Johnson

Villanova Environmental Law Journal

No abstract provided.


Fishing For The Smoking Gun, Y. Daphne Coelho-Adam Jan 2000

Fishing For The Smoking Gun, Y. Daphne Coelho-Adam

Vanderbilt Journal of Transnational Law

Industry-wide tort litigation, such as tobacco and gun litigation, poses a new problem for extraterritorial discovery. These suits allege conspiracies on the part of the tobacco and gun industries to conceal the dangers of their products from the public. Much of the evidence needed to prove the industries' knowledge is in their possession. These industries are international with companies located in the United Kingdom. Under U.S. discovery law the evidence is discoverable, but such is not the case under British discovery law. Therefore, the evidence and witnesses located in the United Kingdom are outside the grasp of U.S. plaintiffs. The …


Are Prosecutorial Ethics Standards Different?, Kevin C. Mcmunigal Jan 2000

Are Prosecutorial Ethics Standards Different?, Kevin C. Mcmunigal

Faculty Publications

Once a prosecutor determines to employ an expert, a number of distinct decisions must be confronted-from choosing the expert, to complying with discovery obligations, to presenting the testimony at trial. Part I of this essay considers the selection of experts. Although improper selection of experts can be viewed as merely another aspect of presenting misleading testimony, we treat it separately in this essay because the literature typically ignores it. Part 1I examines the pretrial disclosure of scientific evidence. The issues that have arisen in this context include late disclosure, omitting information from laboratory reports, declining to have a report prepared, …


Kumho Tire Co. V. Carmichael: The Supreme Court Follows Up On The Daubert Test, Martin A. Schwartz Jan 2000

Kumho Tire Co. V. Carmichael: The Supreme Court Follows Up On The Daubert Test, Martin A. Schwartz

Touro Law Review

No abstract provided.


The Expert Witness Predicament: Determining "Reliable" Under The Gatekeeping Test Of Daubert, Kumho, And Proposed Amended Rule 702 Of The Federal Rules Of Evidence, Michael H. Graham Jan 2000

The Expert Witness Predicament: Determining "Reliable" Under The Gatekeeping Test Of Daubert, Kumho, And Proposed Amended Rule 702 Of The Federal Rules Of Evidence, Michael H. Graham

University of Miami Law Review

No abstract provided.


Time For Final Action On 18 U.S.C. § 3292, Abraham Abramovsky, Jonathan I. Edelstein Jan 2000

Time For Final Action On 18 U.S.C. § 3292, Abraham Abramovsky, Jonathan I. Edelstein

Michigan Journal of International Law

18 U.S.C. § 3292 was enacted in order to meet a compelling prosecutorial need-the increasing necessity of obtaining evidence from abroad via procedures which are frequently time-consuming. However, the statute contains numerous ambiguities, as well as built-in disadvantages both to prosecutors and defendants, which diminish its value as a prosecutorial evidence-gathering device while increasing the possibility that defendants' rights and expectations will be violated. However, it is possible to interpret the statute in a manner which is consistent with its terms and purpose and which concomitantly preserves the rights of the Government and of grand jury targets.


The Confrontation Clause: Statements Against Penal Interest As A Firmly Rooted Hearsay Exception, Amy N. Loth Jan 2000

The Confrontation Clause: Statements Against Penal Interest As A Firmly Rooted Hearsay Exception, Amy N. Loth

Cleveland State Law Review

This Article will explore why these types of confessions, called self-inculpatory statements, should be admissible under the Confrontation Clause of the Sixth Amendment. Part IIA of this Article will discuss the two-part test set forth in Ohio v. Roberts. Part IIB will address Lilly v. Virginia, the Supreme Court's first attempt to resolve whether statements against penal interest are sufficiently reliable to be admissible under the Confrontation Clause. Part IIB will also explore the distinction between self-inculpatory and non-self-inculpatory statements, what constitutes a "firmnly rooted" hearsay exception, and also the policy concerns behind creating a "firmly rooted" hearsay exception. Part …


Here Today, Gone Tomorrow - Three Common Mistakes Courts Make When Police Lose Or Destroy Evidence With Apparent Exculpatory, Elizabeth A. Bawden Jan 2000

Here Today, Gone Tomorrow - Three Common Mistakes Courts Make When Police Lose Or Destroy Evidence With Apparent Exculpatory, Elizabeth A. Bawden

Cleveland State Law Review

Part I of this Article examines the first question, what does it mean for evidence to have "apparent exculpatory value?" Part II of this Article answers the second question, when does Youngblood's bad faith requirement apply in failure to preserve evidence cases? Part III then seeks to determine the substance of Youngblood's bad faith requirement and identify the best approach to defining it. Ultimately, this Article argues that there are three common mistakes that courts make when applying Trombetta and Youngblood.


New Developments In Scientific Evidence, Paul C. Giannelli Jan 2000

New Developments In Scientific Evidence, Paul C. Giannelli

Faculty Publications

No abstract provided.


Expert Qualifications: Traps For The Unwary, Paul C. Giannelli Jan 2000

Expert Qualifications: Traps For The Unwary, Paul C. Giannelli

Faculty Publications

No abstract provided.


How Good Is Good Enough?: Expert Evidence Under Daubert And Kuhmo, David H. Kaye, David L. Faigman, Michael J. Saks, Joseph Sanders Jan 2000

How Good Is Good Enough?: Expert Evidence Under Daubert And Kuhmo, David H. Kaye, David L. Faigman, Michael J. Saks, Joseph Sanders

Journal Articles

This essay is a response to Professor Edward Imwinkelried's article, "Should the Courts Incorporate a Best Evidence Rule into the Standard Determining the Admissibility of Scientific Testimony?: Enough is Enough When it is not the Best." The authors have two basic points. First, the authors wish to make it clear that they never proposed the "best evidence rule" that he so vigorously attacks, and they think his suggestion that they did so is strained. Second, they wish to reiterate that courts sometimes should do more than they have to ensure that expert testimony is reasonably sound. The important debate underway …


Evidence Issues In Domestic Violence Civil Cases, Jane C. Murphy, Jane H. Aiken Jan 2000

Evidence Issues In Domestic Violence Civil Cases, Jane C. Murphy, Jane H. Aiken

All Faculty Scholarship

New laws and policies aimed at protecting victims of domestic violence have been adopted across the country over the last twenty years.The legal approaches taken to protect battered women and control family violence have resulted in significant changes in family law. New laws include statutes permitting civil protection or restraining orders, and laws requiring that domestic violence be considered in custody and/or visitation decisions. Both of these types of statutory reforms can provide protection to adult victims of domestic violence and their children. Evaluating a parent's fitness by considering past acts of violence to other family members results in decisions …


Insurance-Weight Of Evidence-Construction Of Policy-Proximate Cause Jan 2000

Insurance-Weight Of Evidence-Construction Of Policy-Proximate Cause

Indiana Law Journal

No abstract provided.


Lilly V. Virginia Glimmers Of Hope For The Confrontation Clause?, Richard D. Friedman Jan 2000

Lilly V. Virginia Glimmers Of Hope For The Confrontation Clause?, Richard D. Friedman

Articles

In 1662, in The Case of Thomas Tong and Others, which involved charges of treason against several defendants, the judges of the King's Bench conferred on a crucial set of points of procedure. As reported by one of the judges, Sir John Kelyng, the judges agreed unanimously that a pretrial confession made to the authorities was evidence against the Party himself who made the Confession, and indeed, if adequately proved could support a conviction of that party without additional witnesses to the treason itself. But -- again unanimously, and quite definitively -- the judges also agreed that the confession cannot …


Congress' Arrogance, Yale Kamisar Jan 2000

Congress' Arrogance, Yale Kamisar

Articles

Does Dickerson v. U.S., reaffirming Miranda and striking down §3501 (the federal statute purporting to "overrule" Miranda), demonstrate judicial arrogance? Or does the legislative history of §3501 demonstrate the arrogance of Congress? Shortly after Dickerson v. U.S. reaffirmed Miranda and invalidated §3501, a number of Supreme Court watchers criticized the Court for its "judicial arrogance" in peremptorily rejecting Congress' test for the admissibility of confessions. The test, pointed out the critics, had been adopted by extensive hearings and debate about Miranda's adverse impact on law enforcement. The Dickerson Court did not discuss the legislative history of §3501 at all. However, …


Dna As Evidence: Viewing Science Through The Prism Of The Law, Peter Donnelly, Richard D. Friedman Jan 2000

Dna As Evidence: Viewing Science Through The Prism Of The Law, Peter Donnelly, Richard D. Friedman

Articles

In this article, we analyze a problem related to DNA evidence that is likely to be of great and increasing significance in the near future. This is the problem of whether, and how, to present evidence that the suspect has been identified through a DNA database search. In our view, the two well-known reports on DNA evidence issued by the National Research Council (NRC) have been badly mistaken in their analysis of this problem. The mistakes are significant because the reports have carried great authority with American courts; moreover, the DNA Advisory Board of the FBI has endorsed the second …


The Suggestibility Of Children: Scientific Research And Legal Implications, Stephen J. Ceci, Richard D. Friedman Jan 2000

The Suggestibility Of Children: Scientific Research And Legal Implications, Stephen J. Ceci, Richard D. Friedman

Articles

In this Article, Professors Ceci and Friedman analyze psychological studies on children's suggestibility and find a broad consensus that young children are suggestible to a significant degree. Studies confirm that interviewers commonly use suggestive interviewing techniques that exacerbate this suggestibility, creating a significant risk in some forensic contexts-notably but not exclusively those of suspected child abuse-that children will make false assertions of fact. Professors Ceci and Friedman address the implications of this difficulty for the legal system and respond to Professor Lyon's criticism of this view recently articulated in the Cornell Law Review. Using Bayesian probability theory, Professors Ceci and …


A Presumption Of Innocence, Not Of Even Odds, Richard D. Friedman Jan 2000

A Presumption Of Innocence, Not Of Even Odds, Richard D. Friedman

Articles

Now I know how the Munchkins felt. Here I have been, toiling in the fields of Evidenceland for some years, laboring along with others to show how use of Bayesian probability theory can assist in the analysis and understanding of evidentiary problems.' In doing so, we have had to wage continuous battle against the Bayesioskeptics-the wicked witches who deny much value, even heuristic value, for probability theory in evidentiary analysis.2 Occasionally, I have longed for law-and-economics scholars to help work this field, which should be fertile ground for them.3 So imagine my delight when the virtual personification of law and …


The Limits Of Privilege: The Developing Scope Of Federal Psychotherapist-Patient Privilege Law, Melissa Lee Nelken Jan 2000

The Limits Of Privilege: The Developing Scope Of Federal Psychotherapist-Patient Privilege Law, Melissa Lee Nelken

Faculty Scholarship

No abstract provided.


How Good Is Good Enough? Expert Evidence Under Daubert And Kumho, David L. Faigman, David H. Kaye, Michael J. Saks, Joseph Sanders Jan 2000

How Good Is Good Enough? Expert Evidence Under Daubert And Kumho, David L. Faigman, David H. Kaye, Michael J. Saks, Joseph Sanders

Faculty Scholarship

No abstract provided.