Law Commons^™

Reply To Miriam Baer And Michael Doucette’S Reviews Of Two Models Of Pre-Plea Discovery In Criminal Cases, Jenia I. Turner, Allison D. Redlich

Washington and Lee Law Review Online

No abstract provided.

Introduction To The West Virginia Law Review Flawed Forensics And Innocence Symposium, Valena E. Beety

West Virginia Law Review

No abstract provided.

Scandal, Fraud, And The Reform Of Forensic Science: The Case Of Fingerprint Analysis, Simon A. Cole

West Virginia Law Review

No abstract provided.

Folklore And Forensics: The Challenges Of Arson Investigation And Innocence Claims, Parisa Dehghani-Tafti, Paul Bieber

West Virginia Law Review

No abstract provided.

An Uncivil Action: Criminalizating Daubert In Procedure And Practice To Avoid Wrongful Convictions, Jessica G. Cino

West Virginia Law Review

No abstract provided.

Building The Infrastructure For "Justice Through Science": The Texas Model, Sandra Guerra Thompson, Nicole Bremner Cásarez

West Virginia Law Review

No abstract provided.

Forensics And Fallibility: Comparing The Views Of Lawyers And Jurors, Brandon L. Garrett, Gregory Mitchell

West Virginia Law Review

No abstract provided.

Innocent Suffering: The Unavailability Of Post-Conviction Relief In Virginia Courts, Kaitlyn Potter

University of Richmond Law Review

This comment examines actual innocence in Virginia: the progress it has made, the problems it still faces, and the possibilities for reform. Part I addresses past reform to the system, spurred by the shocking tales of Thomas Haynesworth and others. Part II identifies three of the most prevalent systemic challenges marring Virginia's justice system: (1) flawed scientific evidence; (2) the premature destruction of evidence; and (3) false confessions and guilty pleas. Part III suggests ways in which Virginia can, and should, address these challenges to ensure that the justice system is actually serving justice.

Recording A New Frontier In Evidence-Gathering: Police Body-Worn Cameras And Privacy Doctrines In Washington State, Katie Farden

Seattle University Law Review

This Note contributes to a growing body of work that weighs the gains that communities stand to make from police body-worn cameras against the tangle of concerns about how cameras may infringe on individual liberties and tread on existing privacy laws. While police departments have quickly implemented cameras over the past few years, laws governing the use of the footage body-worn cameras capture still trail behind. Notably, admissibility rules for footage from an officer’s camera, and evidence obtained with the help of that footage, remain on the horizon. This Note focuses exclusively on Washington State’s laws. It takes a clinical …

Virginia Prosecutors’ Response To Two Models Of Pre-Plea Discovery In Criminal Cases: An Empirical Comparison, Michael R. Doucette

Washington and Lee Law Review Online

No abstract provided.

Lost In Translation? The Difference Between Hearsay Rule's Historical Rationale And Practical Application, Christopher Lloyd Sewrattan

LLM Theses

An examination of the difference between the hearsay rules historical rationale and current application. The analysis occurs in three steps. In section 1, the historical rationale of the hearsay rule is identified through a reconciliation of competing theories. Section 2 analyses the difference between the hearsay rules historical rationale and the application of the exclusionary hearsay rule. Section 3 analyses the difference between the hearsay rules historical rationale and the application of some categorical hearsay exceptions.

Overall, the thesis finds that the hearsay rules historical rationale has three aspects: concern with the inherent reliability of hearsay evidence, concern with procedural …

Newsroom: Good Reason For Secrecy On 38 Studios 8/12/2016, Niki Kuckes, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Newsroom: Goldstein On Drug Databases 6-27-2016, Sheri Qualters, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Gatekeeping Science: Using The Structure Of Scientific Research To Distinguish Between Admissibility And Weight In Expert Testimony, David L. Faigman, Christopher Slobogin, John Monahan

Northwestern University Law Review

Fundamental to all evidence rules is the division of responsibility between the judge, who determines the admissibility of evidence, and the jury, which gauges its weight. In most evidentiary contexts, such as those involving hearsay and character, threshold admissibility obligations are clear and relatively uncontroversial. The same is not true for scientific evidence. The complex nature of scientific inference, and in particular the challenges of reasoning from group data to individual cases, has bedeviled courts. As a result, courts vary considerably on how they define the judge’s gatekeeping task under Federal Rule of Evidence 702 and its state equivalents.

This …

Actions Speak Louder Than Images: The Use Of Neuroscientific Evidence In Criminal Cases, Stephen J. Morse

All Faculty Scholarship

This invited commentary for Journal of Law & the Biosciences considers four empirical studies previously published in the journal of the reception of neuroscientific evidence in criminal cases in the United States, Canada, England and Wales, and the Netherlands. There are conceded methodological problems with all, but the data are nonetheless instructive and suggestive. The thesis of the comment is that the courts are committing the same errors that have bedeviled the reception of psychiatric and psychological evidence. There is insufficient caution about the state of the science, and more importantly, there is insufficient understanding of the relevance of the …

Constitutional Regulation Of Forensic Evidence, Brandon L. Garrett

Washington and Lee Law Review

No abstract provided.

Causation In Cases Of Evidential Uncertainty: Juridical Techniques And Fundamental Issues, Ken Oliphant

Chicago-Kent Law Review

This paper reviews from a comparative legal perspective the range of juridical techniques that have been developed in different legal systems to address perceived problems of uncertain alternative causation. It finds that the process of development has generally proceeded in an ad hoc and unprincipled fashion, without regard for overall coherence. It argues for a more principled legal approach in which the appropriate legal response (full liability, proportional liability or no liability) is adopted on the basis of a ranking of the different categories of cases in which problems of causal uncertainty can arise, reflecting the strength (or weakness) of …

Louisiana Rapper’S Case Speaks To Bigger Problems In The Criminal Justice System, Andrea L. Dennis, Erik Nelson, Michael Render

Popular Media

This article published on April 25, 2016 at the Huffington Post examines the case of McKinley Phipps. He was sentenced to thirty years of hard labor for a crime that, to this day, he insists he did not commit. During the trial prosecutors used Phipps’s rap persona and lyrics - remixed for special effect - to carefully construct a story of Phipps’s guilt. The article discusses how Phipps lyrics and persona contributed to his conviction and the progress of his appeals.

Lost In A Maze Of Character Evidence: How The Federal Courts Lack A Cohesive Approach To Applying Federal Rule Of Evidence 404(B) In Drug Distribution Cases, Brian Byrne

Pace Law Review

The admission of a criminal defendant’s prior bad acts can be a powerful tool for attaining a conviction. The federal courts are currently divided as to whether the defendant’s prior drug use is admissible under Rule 404(b) of the Federal Rules of Evidence when the defendant is charged with distributing a controlled dangerous substance.

Part I of this Comment will briefly explore the historical roots of Rule 404(b). Part II will examine the permissible purposes for admitting prior bad acts under Rule 404(b). Part III will discuss the circuit split that has developed as to whether the defendant’s prior drug …

Billy Joel: The Minstrel Testifies Or How The Rules Of Evidence Handcuff The Piano Man, Hon. Richard A. Dollinger

Touro Law Review

No abstract provided.

State V. Carroll, 132 Nev. Adv. Op. 23 (Apr. 7, 2016), Jessie Folkestad

Nevada Supreme Court Summaries

Defendant Deangelo Carroll appealed from a conviction for conspiracy to commit murder and first-degree murder with use of a deadly weapon. The Supreme Court of Nevada found the district court erred in denying Carroll’s motion to suppress his statements to police because the police subjected Carroll to a custodial interrogation, without advising him of his Miranda rights. The Court affirmed however, finding the error harmless beyond a reasonable doubt.

Epigenetics And Toxic Torts: How Epidemiological Evidence Informs Causation, Kerriann Laubach

Washington and Lee Law Review

No abstract provided.

How Sound Is The Science? Applying Daubert To Biomechanical Experts’ Injury Causation Opinions, Loren Peck

Washington and Lee Law Review

No abstract provided.

Rish V. Simao, 132 Nev. Adv. Op. 17 (Mar. 17, 2016), Heather Caliguire

Nevada Supreme Court Summaries

The Nevada Supreme Court held that the District Court wrongly excluded evidence of low-impact defense when it required a biomechanical expert testify about the nature of the accident, erroneously interpreting Hallmark v. Eldgridge Instead, Hallmark requires sufficient foundation for admission of testimony and evidence, specifically excluding a biomechanical expert’s testimony under NRS 50.275. The Court additionally held that the District Court erred when it ultimately struck the defendant’s answer for violations of the pretrial order precluding defendant from raising a minor or low impact defense.

Probability, Individualization, And Uniqueness In Forensic Science Evidence: Listening To The Academies, David H. Kaye

David Kaye

Day in and day out, criminalists testify to positive, uniquely specific identifications of fingerprints, bullets, handwriting, and other trace evidence. A committee of the National Academy of Sciences, building on the writing of academic commentators, has called for sweeping changes in the presentation and production of evidence of identification. These include some form of circumscribed and standardized testimony. But the Academy report is short on the specifics of the testimony that would be legally and professionally allowable. This essay outlines possible types of testimony that might harmonize the testimony of criminalists with the actual state of forensic science. It does …

Do We Need A Calculus Of Weight To Understand Proof Beyond A Reasonable Doubt?, David H. Kaye

David Kaye

The commentary on a paper by L.J. Cohen, prepared for a symposium on probability and inference in the law of evidence, shows that the legal requirement of proof beyond a reasonable doubt can be understood simply as demanding a sufficiently high probability that the prosecution's narrative or story of the facts, which captures all the elements of the offense, is true. No separate measure of the "weight" of the totality of the evidence is required to understand the burden of persuasion. Any incompleteness in the evidence can be accounted for by a conditional probability that includes the presence of any …

Case Comment - People V. Nelson: A Tale Of Two Statistics, David H. Kaye

David Kaye

In recent years, defendants who were identified as a result of a search through a database of DNA profiles have argued that the probability that a randomly selected person would match a crime-scene stain overstates the probative value of the match. The statistical literature is divided, with most statisticians who have written on the subject rejecting this claim. In People v. Nelson, the Supreme Court of California held that when the random-match probability is so small as to make it exceedingly unlikely that any unrelated individual has the incriminating DNA profile, this statistic is admissible in a database-search case. …

'False But Highly Persuasive:' How Wrong Were The Probability Estimates In Mcdaniel V. Brown?, David H. Kaye

David Kaye

In McDaniel v. Brown, the Supreme Court will review the use of DNA evidence in a 1994 trial for sexual assault and attempted murder. The Court granted certiorari to consider two procedural issues - the standard of federal postconviction review of a state jury verdict for sufficiency of the evidence, and the district court's decision to allow the prisoner to supplement the record of trials, appeals, and state postconviction proceedings with a geneticist's letter twelve years after the trial.

This essay clarifies the nature and extent of the errors in the presentation of the DNA evidence in Brown. It questions …

Third Annual Lecture On Legal Education With Jennifer L. Mnookin Of Ucla Law Part Ii, "Constructing Evidence And Educating Juries: The Case For Modular, Made-In-Advance Expert Evidence About Eyewitness Identifications And False Confessions", Jennifer L. Mnookin

Faculty Workshops

Professor Jennifer L. Mnookin, now affiliated with The University of Wisconsin Law School, presented her work Constructing Evidence and Educating Juries: The Case for Modular, Made-in-Advance Expert Evidence About Eyewitness Identifications and False Confessions. This work examines the comparison of the idea of modular testimony to several alternative methods for trying to reduce the dangers of inaccurate eyewitness identifications and false confessions.

Evidence Engendered, Kit Kinports

Kit Kinports

Part I of this article briefly describes feminist legal theory and its evolution. Part II then discusses the extent to which evidence as a whole is a gendered topic that reflects predominantly male traits and ideals, and Part III analyzes various specific evidentiary doctrines from a feminist perspective. Finally, Part IV examines way of incorporating feminist theories in teaching an evidence course.