Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Evidence

2015

Institution
Keyword
Publication
Publication Type
File Type

Articles 1 - 30 of 252

Full-Text Articles in Law

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

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 Dec 2015

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 ...


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

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.


Flaws In The Justice System: Examining The Angel Cordero Case, Rose C. Itzcovitz Dec 2015

Flaws In The Justice System: Examining The Angel Cordero Case, Rose C. Itzcovitz

Capstones

This article examines a case in criminal law that started 17 years ago and has yet to be resolved. Despite a plethora of mounting evidence, including a confession, more than a dozen witnesses, a proven false alibi, impeaching evidence against police and DNA evidence, Bronx-born Angel Cordero's conviction has yet to be overturned. The article breaks down what went wrong in the initial trial, discusses Cordero's multiple appeals and takes a broader look at what needs to change in today's judicial system.


48. Valence, Implicated Actor, And Children's Acquiescence To False Suggestions, Kyndra C. Cleveland, Jodi A. Quas, Thomas D. Lyon Dec 2015

48. Valence, Implicated Actor, And Children's Acquiescence To False Suggestions, Kyndra C. Cleveland, Jodi A. Quas, Thomas D. Lyon

Thomas D. Lyon

Although adverse effects of suggestive interviewing on children's accuracy are well documented, it remains unclear as to whether these effects vary depending on the valence of and the actor implicated in suggestions. In this study, 124 3-8-year-olds participated in a classroom activity and were later questioned about positive and negative false details. The interviewer provided positive reinforcement when children acquiesced to suggestions and negative feedback when they did not. Following reinforcement or feedback, young children were comparably suggestible for positive and negative details. With age, resistance to suggestions about negative details merged first, followed by resistance to suggestions about ...


The Hearsay Rule At Work: Has It Been Abolished De Facto By Judicial Decision, Eleanor Swift Dec 2015

The Hearsay Rule At Work: Has It Been Abolished De Facto By Judicial Decision, Eleanor Swift

Eleanor Swift

No abstract provided.


Amicus Brief: Kumho Tire V. Carmichael, Neil Vidmar, Richard Lempert, Shari Diamond, Valerie Hans, Stephan Landsman, Robert Maccoun, Joseph Sanders, Harmon Hosch, Saul Kassin, Marc Galanter, Theodore Eisenberg, Stephen Daniels, Edith Greene, Joanne Martin, Steven Penrod, James Richardson, Larry Heuer, Irwin Horowitz Dec 2015

Amicus Brief: Kumho Tire V. Carmichael, Neil Vidmar, Richard Lempert, Shari Diamond, Valerie Hans, Stephan Landsman, Robert Maccoun, Joseph Sanders, Harmon Hosch, Saul Kassin, Marc Galanter, Theodore Eisenberg, Stephen Daniels, Edith Greene, Joanne Martin, Steven Penrod, James Richardson, Larry Heuer, Irwin Horowitz

Robert MacCoun

This brief addresses the issue of jury performance and jury responses to expert testimony. It reviews and summaries a substantial body of research evidence about jury behavior that has been produced over the past quarter century. The great weight of that evidence challenges the view that jurors abdicate their responsibilities as fact finders when faced with expert evidence or that they are pro-plaintiff, anti-defendant, and anti-business.

The Petitioners and amici on behalf of petitioners make a number of overlapping, but empirically unsupported, assertions about jury behavior in response to expert testimony, namely that juries are frequently incapable of critically evaluation ...


Admissibility Of Scientific Evidence Under Daubert: The Fatal Flaws Of ‘Falsifiability’ And ‘Falsification’, Barbara P. Billauer Esq Dec 2015

Admissibility Of Scientific Evidence Under Daubert: The Fatal Flaws Of ‘Falsifiability’ And ‘Falsification’, Barbara P. Billauer Esq

barbara p billauer esq

Abstract: The Daubert mantra demands that judges, acting as gatekeepers, prevent para, pseudo or ‘bad’ science from infiltrating the courtroom. To do so, the Judges must first determine what “science” is? And then, what ‘good science’ is? It is submitted that Daubert is seriously polluted with the notions of Karl Popper who sets ‘falsifiability’ and ‘falsification’ as the demarcation line for that determination. This inapt philosophy has intractably infected case law, leading to bad decisions immortalized as stare decisis. Among other problems, is the intolerance of Popper’s system for multiple causation, a key component of toxic- torts. Thus, the ...


Schools Fail To Get It Right On Rap Music, Andrea L. Dennis Dec 2015

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.


Neuro Lie Detection And Mental Privacy, Madison Kilbride, Jason Iuliano Dec 2015

Neuro Lie Detection And Mental Privacy, Madison Kilbride, Jason Iuliano

Maryland Law Review

New technologies inevitably raise novel legal questions. This is particularly true of technologies, such as neuro lie detection, that offer new ways to investigate crime. Recently, a number of scholars have asked whether neuro lie detection testing is constitutional. So far, the debate has focused on the Fifth Amendment—specifically whether evidence gathered through neuro lie detection is constitutionally admissible because it is “physical” in nature or inadmissible because it is “testimonial” in nature. Under current Supreme Court doctrine, this Fifth Amendment debate is intractable. However, the more fundamental question of whether the government can compel individuals to undergo a ...


Evidence, John E. Hall Jr., W. Scott Henwood, Jacque Smith Clarke Dec 2015

Evidence, John E. Hall Jr., W. Scott Henwood, Jacque Smith Clarke

Mercer Law Review

This year represents only the second full survey period in which the "new" Georgia Evidence Code, Official Code of Georgia Annotated (O.C.G.A.) title 24, takes effect. These new rules took effect on January 1, 2013. The rules conform in large part to the Federal Rules of Evidence and continue to change the face of evidence law in Georgia. This Survey highlights cases decided by the Georgia Court of Appeals and the Georgia Supreme Court between June 1, 2014 and May 31, 2015 that have made an impact on evidence law in Georgia. This year's Article provides ...


The Ethical Limits Of Discrediting The Truthful Witness: How Modern Ethics Rules Fail To Prevent Truthful Witnesses From Being Discredited Through Unethical Means, Todd A. Berger Dec 2015

The Ethical Limits Of Discrediting The Truthful Witness: How Modern Ethics Rules Fail To Prevent Truthful Witnesses From Being Discredited Through Unethical Means, Todd A. Berger

Marquette Law Review

Whether the criminal defense attorney may ethically discredit the truthful witness on cross-examination and later during closing argument has long been an area of controversy in legal ethics. The vast majority of scholarly discussion on this important ethical dilemma has examined it in the abstract, focusing on the defense attorney’s dual roles in a criminal justice system that is dedicated to searching for the truth while simultaneously requiring zealous advocacy even for the guiltiest of defendants. Unlike these previous works, this particular Article explores this dilemma from the perspective of the techniques that criminal defense attorney’s use on ...


The Novel New Jersey Eyewitness Instruction Induces Skepticism But Not Sensitivity, Athan Papailiou, David Yokum, Christopher Robertson Dec 2015

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 ...


Bill Cosby, The Lustful Disposition Exception, And The Doctrine Of Chances, Wesley Oliver Nov 2015

Bill Cosby, The Lustful Disposition Exception, And The Doctrine Of Chances, Wesley Oliver

Wesley M Oliver

With the filing of criminal charges against Bill Cosby in a case involving one victim, the question attracting a great deal of attention is whether other victims will be allowed to testify for the prosecution. Yes is the likely answer but probably for the wrong reasons. Generally the prosecution is forbidden to introduce other bad acts by a defendant, but there are certain categorical exceptions. Under federal law, any prior sexual misconduct can be admitted in the prosecution of a sex crime case -- a notion that the drafters of the Federal Rules of Evidence borrowed from something called the Lustful ...


Beating The Prisoner At Prisoner's Dilemma: The Evidentiary Value Of A Witness's Refusal To Testify , Russell Dean Covey Nov 2015

Beating The Prisoner At Prisoner's Dilemma: The Evidentiary Value Of A Witness's Refusal To Testify , Russell Dean Covey

Russell D. Covey

No abstract provided.


Authenticity And Admissibility Of Social Media Website Printouts, Wendy Angus-Anderson Nov 2015

Authenticity And Admissibility Of Social Media Website Printouts, Wendy Angus-Anderson

Duke Law & Technology Review

Social media posts and photographs are increasingly denied admission as evidence in criminal trials. Courts often cite issues with authentication when refusing to admit social media evidence. Cases and academic writings separate recent case law into two approaches: The Maryland Approach and the Texas Approach. The first method is often seen as overly skeptical of social media evidence, setting the bar too high for admissibility. The second approach is viewed as more lenient, declaring that any reasonable evidence should be admitted in order for a jury to weigh its sufficiency. This Brief addresses the supposed differences between the two sets ...


Discovery And Adequate Plea Colloquys, R. Michael Cassidy Nov 2015

Discovery And Adequate Plea Colloquys, R. Michael Cassidy

R. Michael Cassidy

Presentation at a conference sponsored by Fair Trials International in Washington, D.C.


Economic Authority And The Limits Of Expertise In Antitrust Cases, John E. Lopatka, William H. Page Nov 2015

Economic Authority And The Limits Of Expertise In Antitrust Cases, John E. Lopatka, William H. Page

William H. Page

In antitrust litigation, the factual complexity and economic nature of the issues involved require the presentation of economic expert testimony in all but a few cases. This dependence on economics has increased in recent years because of the courts' narrowing of per se rules of illegality and the courts' expansion of certain areas of factual inquiry. At the same time, however, courts have limited the scope of allowable expert testimony through the methodological strictures of Daubert and its progeny and through heightened sufficiency requirements. In this Article, Professors Page and Lopatka make four important points about these judicially imposed constraints ...


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

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


46. Wrongful Acquittals Of Sexual Abuse., Thomas D. Lyon, Stacia N. Stolzenberg, Kelly Mcwilliams Nov 2015

46. Wrongful Acquittals Of Sexual Abuse., Thomas D. Lyon, Stacia N. Stolzenberg, Kelly Mcwilliams

Thomas D. Lyon

Ross Cheit’s book The Witch-Hunt Narrative highlights the difficulties of prosecuting child sexual abuse. Drawing examples from a single case, Alex A., we examine the ways in which false acquittals of sexual abuse are likely to occur. First, prosecutors tend to question children in ways that undermine their productivity and credibility. Second, prosecutors have difficulty in explaining to juries the dynamics of sexual abuse and disclosure, making children’s acquiescence to abuse and their failure to disclose when abuse first occurs incredible. Third, attorneys undermine children’s credibility by pushing them to provide difficult to estimate temporal and numerical ...


The History Of Children's Hearsay: From Old Bailey To Post-Davis, Thomas D. Lyon, Raymond Lamagna Nov 2015

The History Of Children's Hearsay: From Old Bailey To Post-Davis, Thomas D. Lyon, Raymond Lamagna

Thomas D. Lyon

The papers in this symposium were originally prepared for the Section on Evidence of the 2007 Annual Meeting of the Association of American Law Schools.


The Productivity Of Wh- Prompts In Child Forensic Interviews, Elizabeth C, Ahern, Samantha J. Andrews, Stacia N. Stolzenberg, Thomas D. Lyon Nov 2015

The Productivity Of Wh- Prompts In Child Forensic Interviews, Elizabeth C, Ahern, Samantha J. Andrews, Stacia N. Stolzenberg, Thomas D. Lyon

Thomas D. Lyon

Child witnesses are often asked wh- prompts (what, how, why, who, when, where) in forensic interviews. However, little research has examined the ways in which children respond to different wh- prompts and no previous research has investigated productivity differences among wh- prompts in investigative interviews. This study examined the use and productivity of wh- prompts in 95 transcripts of 4- to 13-year-olds alleging sexual abuse in child investigative interviews. What-how questions about actions elicited the most productive responses during both the rapport building and substantive phases. Future research and practitioner training should consider distinguishing among different wh- prompts.


45. The Productivity Of Wh- Prompts In Child Forensic Interviews., Elizabeth C, Ahern, Samantha J. Andrews, Stacia N. Stolzenberg, Thomas D. Lyon Nov 2015

45. The Productivity Of Wh- Prompts In Child Forensic Interviews., Elizabeth C, Ahern, Samantha J. Andrews, Stacia N. Stolzenberg, Thomas D. Lyon

Thomas D. Lyon

Child witnesses are often asked wh- prompts (what, how, why, who, when, where) in forensic interviews. However, little research has examined the ways in which children respond to different wh- prompts and no previous research has investigated productivity differences among wh- prompts in investigative interviews. This study examined the use and productivity of wh- prompts in 95 transcripts of 4- to 13-year-olds alleging sexual abuse in child investigative interviews. What-how questions about actions elicited the most productive responses during both the rapport building and substantive phases. Future research and practitioner training should consider distinguishing among different wh- prompts.


Experts, Statistics, Science & Bad Science, Curtis E.A. Karnow Nov 2015

Experts, Statistics, Science & Bad Science, Curtis E.A. Karnow

Curtis E.A. Karnow

Articles, books, and other online resources relating to expert testimony with a specific focus on problems with peer review, bad science, and statistics


Posnerian Hearsay: Slaying The Discretion Dragon, Liesa L. Richter Oct 2015

Posnerian Hearsay: Slaying The Discretion Dragon, Liesa L. Richter

Liesa L. Richter

Distinguished jurist and scholar, Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit penned a concurrence in United States v. Boyce, 742 F.3d 792 (7th Cir. 2014), in which he launched a scathing attack on the scheme of categorical hearsay exceptions embodied in the Federal Rules of Evidence. After characterizing the existing hearsay regime as bad “folk psychology,” Judge Posner called for the repeal of categorical hearsay exceptions in favor of case-by-case determinations about the “reliability” of particular hearsay statements by trial judges. Prior to adoption of the Federal Rules, evidence experts debated whether ...


Toward A Textualist Paradigm For Interpreting Emoticons, John Ehrett Oct 2015

Toward A Textualist Paradigm For Interpreting Emoticons, John Ehrett

John Ehrett

I evaluate the dimensions of courts’ current interpretive dilemma, and subsequently sketch a possible framework for extending traditional statutory interpretation principles into this new domain: throughout the following analysis, I describe the process of attaching cognizable linguistic referents to emoticons and emojis throughout as symbolical reification, and propose a normative way forward for those tasked with deriving meaning from emoji-laden communications.


The Increasing Use Of Challenges To Expert Evidence Under Daubert And Rule 702 In Patent Litigation, Douglas G. Smith Oct 2015

The Increasing Use Of Challenges To Expert Evidence Under Daubert And Rule 702 In Patent Litigation, Douglas G. Smith

Journal of Intellectual Property Law

No abstract provided.


Ensuring Protection Of Juveniles' Rights: A Better Way Of Obtaining A Voluntary Miranda Waiver, Yekaterina Berkovich Oct 2015

Ensuring Protection Of Juveniles' Rights: A Better Way Of Obtaining A Voluntary Miranda Waiver, Yekaterina Berkovich

St. John's Law Review

(Excerpt)

Part I provides background information about the evolution of judicial treatment of juveniles and the admissibility of confessions. Part II analyzes the different approaches applied by federal and state courts to determine whether a juvenile's waiver of rights was voluntary and examines the flaws in those approaches. Part III proposes a new approach to remedy the problems courts have faced with the existing approaches and to provide consistent outcomes at the federal level.


Defending Daubert: It's Time To Amend Federal Rule Of Evidence 702, David E. Bernstein, Eric G. Lasker Oct 2015

Defending Daubert: It's Time To Amend Federal Rule Of Evidence 702, David E. Bernstein, Eric G. Lasker

William & Mary Law Review

The 2000 amendments to Rule 702 sought to resolve the debate that had emerged in the courts in the 1990s over the proper meaning of Daubert by codifying the rigorous and structured approach to expert admissibility announced in the Daubert trilogy. Fifteen years later, however, the amendments have only partially accomplished this objective. Many courts continue to resist the judiciary’s proper gatekeeping role, either by ignoring Rule 702’s mandate altogether or by aggressively reinterpreting the Rule’s provisions.

Informed by this additional history of recalcitrance, the time has come for the Judicial Conference to return to the drafting ...


Defending The Black Sheep Of The Forensic Dna Family: The Case For Implementing Familial Dna Searches In Minnesota, Amy Liberty Oct 2015

Defending The Black Sheep Of The Forensic Dna Family: The Case For Implementing Familial Dna Searches In Minnesota, Amy Liberty

Hamline Law Review

*