Law Commons^™

The Role Of Demeanor Evidence In Determining Credibility Of Witnesses In Fact Finding: The Views Of Aljs, Gregory L. Ogden

Journal of the National Association of Administrative Law Judiciary

Prof. Ogden presents the views of administrative law judge’s on the role of demeanor evidence in determining the credibility of witnesses’ testimony in fact finding. The opinions of administrative law judges add an important new perspective on the issue of whether demeanor evidence increases the accuracy of credibility determinations. The views of administrative law judges were determined through the techniques of survey research, utilizing a questionnaire. After defining demeanor evidence for purposes of the study, Ogden explains the administrative law principle of judicial review that gives weight or deference to credibility determinations based on demeanor evidence. A statistical analysis of …

Death And Politics: The Role Of Demographic Characteristics And Testimony Type In Death Penalty Cases Involving Future Dangerousness Testimony, Amy Magnus, Miliaikeala Heen, Joel D. Lieberman

Graduate Research Symposium (2010 - 2017)

Past research examining expert future dangerousness prediction testimony in death penalty cases and civil confinement hearings for sex offenders has found that jurors tend to be more persuaded by less scientific “clinical” testimony and less influenced by “actuarial” based testimony. Jurors demonstrate greater receptivity for clinical testimony despite the fact that actuarial testimony has been shown to be a better predictor of future dangerousness. Research in this area has focused on identifying cognitive factors that can potentially be manipulated during a trial to increase the effectiveness of actuarial testimony on jurors. A mock jury study was conducted to extend these …

Juror Typologies And Dna Comprehension:Who Benefits From Jury Trial Innovations?, Mari Sakiyama, Joel D. Lieberman

Graduate Research Symposium (2010 - 2017)

When DNA evidence is presented in the courtroom, it is typically accompanied by complex testimony conveying information such as the method of generating population frequencies, match criteria and probabilities, as well as laboratory errors and error rates. Although this evidence may have high probative value, the legal community has expressed growing concern regarding jurors’ ability to comprehend it. However, courts have implemented a variety of jury trial innovations to facilitate jurors’ ability to process complex information. Although these innovations may have a positive effect on comprehension of complex trial evidence, it is unclear whether some jurors are more likely to …

From Gridlock To Groundbreaking: Realizing Reliability In Forensic Science, Jessica D. Gabel

Jessica Gabel Cino

In 2009, The National Academy of Sciences published a scathing report announcing that forensic science is broken and needs to be overhauled. Weaknesses have plagued forensic evidence for decades, and the resulting legal challenges have been hard fought but met with few victories. What we do know is a harsh truth: that faulty forensic science has contributed to the conviction of innocent people—and will continue to do so if the status quo persists.

In recent years, the reality of wrongful convictions has become mainstream through the work of the Innocence Project and other organizations. Out of the 305 DNA-based exonerations …

Modernizing Jury Instructions In The Age Of Social Media, David Aaronson, Sydney Patterson

David Aaronson

No abstract provided.

The Piranha Is As Deadly As The Shark: A Case For The Limitation On Deceptive Practices In Dna Collection, Brett A. Bauman

Brett A Bauman

Police deception tactics are utilized throughout the United States as a way to catch unsuspecting criminals. Although criticized in many respects, most deceptive police techniques are not only legal, but are actually encouraged. DNA collection and analysis is no exception—techniques are frequently used by law enforcement officers in an attempt to collect a suspect’s genetic specimen in the interest of solving crimes. While law enforcement officers typically have the best interests of society in mind, the current practices employed by officers to collect suspects’ DNA violate the Fourth Amendment. The Fourth Amendment provides protection against unreasonable searches and seizures, and …

Are People Probabilistically Challenged? Book Review Of Daniel Kahneman, Thinking, Fast And Slow (2011), Alex Stein

Alex Stein

Daniel Kahneman’s recent book, Thinking, Fast and Slow, is a must-read for any scholar and policymaker interested in behavioral economics. Thus far, behavioral economists did predominantly experimental work that uncovered discrete manifestations of people’s bounded rationality: representativeness, availability, anchoring, overoptimism, base-rate neglect, hindsight bias, loss aversion, and other misevaluations of probability and utility. This work has developed no causal explanations for these misevaluations. Kahneman’s book takes the discipline to a different level by developing an integrated theory of bounded rationality’s causes and characteristics. This theory holds that humans use two distinct modes of reasoning, intuitive (System 1) and deliberative (System …

Confronting The Confrontation Clause: Addressing The Unanswered Question Of Whether Autopsy Reports Are Testimonial Evidence - People V. Hall, Bailey Ince

Touro Law Review

No abstract provided.

Full Disclosure: Cognitive Science, Informants, And Search Warrant Scrutiny, Mary Bowman

Mary N. Bowman

Full Disclosure: Cognitive Science, Informants, and Search Warrant Scrutiny

By Mary Nicol Bowman

This article posits that cognitive biases play a significant role in the gap between the rhetoric regarding Fourth Amendment protection and actual practices regarding search warrant scrutiny, particularly for search warrants based on informants’ tips. Specifically, this article examines the ways in which implicit bias, tunnel vision, priming, and hindsight bias can affect search warrants. These biases can affect each stage of the search warrant process, including targeting decisions, the drafting process, the magistrate’s decision whether to grant the warrant, and post-search review by trial and appellate …

Is It Safe? The Need For State Ethical Rules To Keep Pace With Technological Advances, Ann M. Murphy

Fordham Law Review

No abstract provided.

Making Horses Drink: Conceptual Change Theory And Federal Rule Of Evidence 502, Liesa L. Richter

Fordham Law Review

No abstract provided.

Panel Discussion: Reinvigorating Rule 502, Panel Discussion

Fordham Law Review

No abstract provided.

Evidence Rule 502: The Solution To The Privilege-Protection Puzzle In The Digital Era, John M. Barkett

Fordham Law Review

No abstract provided.

The Rulemakers’ Laments, Richard Marcus

Fordham Law Review

No abstract provided.

Model Draft Of A Rule 502(D) Order, Symposium Participants

Fordham Law Review

No abstract provided.

Enter The Order, Protect The Privilege: Considerations For Courts Entering Protective Orders Under Federal Rule Of Evidence 502(D), Edwin M. Buffmire

Fordham Law Review

No abstract provided.

Crawford, Confrontation And Mental States, Kevin C. Mcmunigal

Kevin C. McMunigal

This essay seeks to explain and help remedy the confusion generated by Crawford v. Washington, the landmark Supreme Court confrontation clause case. Many have taken the Crawford line of cases, the most recent of which came down this past June, to task for lack of clarity and coherence. My thesis is that the primary source of the Crawford cases’ ambiguity is their poor handling of four key mental state questions. I argue that clearer treatment of these is the way out of the current morass. I use criminal law’s treatment of mental state as a foil against which to compare …

Comments On Maryland V. King In 'U.S. Supreme Court To Hear Arguments Over Md. Dna Case: Justices' Decision Will Have National Implications On Future Crime-Fighting Procedures', Colin Starger

All Faculty Scholarship

No abstract provided.

Defying Dna: Rethinking The Role Of The Jury In An Age Of Scientific Proof Of Innocence, Andrea L. Roth

Andrea L Roth

In 1946, public outrage erupted after a jury ordered Charlie Chaplin to support a child who, according to apparently definitive blood tests, was not his. Half a century later, juries have again defied apparently definitive evidence of innocence, finding criminal defendants guilty based on a confession or eyewitness notwithstanding exculpatory DNA test results. One might expect judges in such cases to direct an acquittal, on grounds that the evidence is legally insufficient because no rational juror could find guilt beyond a reasonable doubt. Yet few if any do. Instead, courts defer to juries when they form an actual belief in …

Cipa V. State Secrets: How A Few Mistakes Confused Two Important National Security Privileges, Elisa Poteat

Elisa Poteat

No abstract provided.

United States V. Salvucci: The Problematic Absence Of Automatic Standing, William C. Bollard

Pepperdine Law Review

The United States Supreme Court recently abolished the automatic standing rule in United States v. Salvucci. The author analyzes the difficulties created for the criminal defendant charged with a possessory crime. In particular, this note focuses on the inequitable position the defendant is placed in when his suppression hearing testimony is used as a tool to impeach subsequent testimony offered at trial. The author continues by pointing out that the "prosecutorial self-contradiction," sought to be abolished in Salvucci, remains a part of our present judicial system. In conclusion, the author offers several considerations that will necessarily be an integral part …

Admissibility Of Illegally Seized Evidence In Civil Cases: Could This Be The Path Out Of The Labyrinth Of The Exclusionary Rule?, Richard J. Hanscom

Pepperdine Law Review

The use of the exclusionary rule in criminal cases has been the subject of extensive debate since its inception. Although most efforts to modify the rule have been deemed unworkable, the author proposes a modification that is both workable and sensible. Modification would be accomplished by legislation which admits the results of illegal searches by law enforcement officers who acted in good faith, and, at the same time, provide fixed monetary sanctions against the governmental agencies whose officers conducted the search. The author proposes a good faith balancing test to determine evidence admissibility and administrative type proceedings to determine monetary …

The Use Of Aviation Accident Reports By Civil Litigants: The Historical Development Of 49 U.S.C. Section 1441(E), Walter A. T. Welch Jr., John E. Faulk

Pepperdine Law Review

When aviation accidents occur, the National Transportation Safety Board conducts an investigation to determine the conditions, circumstances, and ultimately the probable cause of the accident. There is a federal statutory privilege which renders these reports, as well as testimony from the attending investigator, inadmissible as evidence in any suit or action arising from the accident. However, certain judicially created exceptions have arisen which permit portions of the report and certain investigator testimony to be admitted into evidence. The authors delineate and analyze these exceptions as they discuss the trend toward increased report and testimony admissibility. The authors conclude with a …

Understanding Admissibility Of Prior Bad Acts: A Diagrammatic Approach, William Roth

Pepperdine Law Review

One of the most misunderstood areas of evidence in criminal cases is the admissibility of a defendant's prior bad acts. This article discusses both the practical and theoretical perspectives of prior bad acts and presents a diagram of the different admissibility theories. This visual aid is a great step forward in simplifying this problematic area.

Mediation Confidentiality: For California Litigants, Why Should Mediation Confidentiality Be A Function Of The Court In Which The Litigation Is Pending?, Rebecca Callahan

Pepperdine Dispute Resolution Law Journal

The article presents information on mediation confidentiality. Confidentiality protections are available to California litigants depending on whether the litigants are in state or federal court. It depicts that California courts provide protection only when disputants utilize mediation for resolving their differences and also focuses on the evidence exclusion provision in which the privilege held by participant acts as bar to compel discovery without everyone's consent.

Timeless Trial Strategies And Tactics: Lessons From The Classic Claus Von Bülow Case, Daniel M. Braun

Daniel M Braun

In this new Millennium -- an era of increasingly complex cases -- it is critical that lawyers keep a keen eye on trial strategy and tactics. Although scientific evidence today is more sophisticated than ever, the art of effectively engaging people and personalities remains prime. Scientific data must be contextualized and presented in absorbable ways, and attorneys need to ensure not only that they correctly understand jurors, judges, witnesses, and accused persons, but also that they find the means to make their arguments truly resonate if they are to formulate an effective case and ultimately realize justice. A decades-old case …

The System Of Modern Criminal Conspiracy, Steven R. Morrison

Steven R Morrison

Something has changed in the modern system of American criminal conspiracy law compared to its prior iterations. This article explores that change, arguing that the system of modern criminal conspiracy now gives to the government such great discretion to charge and prove a conspiracy that unpopular ideas and the speech that expresses them have become ready subjects of prosecution. At its center, this article defines the system of modern conspiracy law, which is one of uniformity rather than dynamism. Where dynamic systems of law contain distinct components that perform different tasks (proving actus reus and mens rea, for example), the …

The Discovery And Use Of Computerized Information: An Examination Of Current Approaches, Richard M. Long

Pepperdine Law Review

In recent years, the legal profession has run head on into the increasing use of computers and computerized information. Discovery and evidentiary rules developed to deal with written documentation may not be flexible enough to adequately cover this relatively new method of storing information. This comment examines various methods by which courts have attempted to deal with discovery and evidentiary problems involving computerized information, and suggests certain areas that should be explored in supporting or attacking the credibility of such information.

Child Witnesses In Sexual Abuse Criminal Proceedings: Their Capabilities, Special Problems, And Proposals For Reform, Dominic J. Fote

Pepperdine Law Review

No abstract provided.

To Testify Or Not To Testify: The Dilemma Facing Children With Multiple Cases Before The Same Judge In Delinquency Court, Katherine I. Puzone

Faculty Scholarship

No abstract provided.