Law Commons^™

Buck V. Davis: Anti-Discriminatory Principles In Habeas Corpus Cases, Daniella Rubin

Loyola of Los Angeles Law Review

No abstract provided.

A Forensic Analysis Of Pulmonary Embolism And Its Missing Link: Causation, William Price

Dissertations and Honors Papers

This paper explores the use of forensics outside of the criminal context, specifically in regard to pulmonary emboli. This paper will analyze what pulmonary embolism are, how they interact with the rest of the body, what causes them, and the legal considerations that arise because of them. Pulmonary embolism is common and deadly, making them a subject in a vast amount of medical malpractice litigation. This paper aims to educate the public and attorneys as to how this condition can be prevented and how to prove pulmonary embolism in civil suits regarding claims of malpractice.

2017 Symposium Discussion: The Life Of An Immigration Attorney, Cori Alonso-Yoder

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Microsoft Ireland, The Cloud Act, And International Lawmaking 2.0, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

On March 23, President Trump signed the CLOUD Act, 1 thereby mooting one of the most closely watched Supreme Court cases this term: the Microsoft Ireland case. 2 This essay examines these extraordinary and fast-moving developments, explaining how the Act resolves the Supreme Court case and addresses the complicated questions of jurisdiction over data in the cloud. The developments represent a classic case of international lawmaking via domestic regulation, as mediated by major multinational corporations that manage so much of the world's data.

How Daubert And Its Progeny Have Failed Criminalistics Evidence And A Few Things The Judiciary Could Do About It, David H. Kaye

Journal Articles

A recent report of the President’s Council of Advisors on Science and Technology questioned the validity of several types of criminalistics identification evidence and recommended “a best practices manual and an Advisory Committee note, providing guidance to Federal judges concerning the admissibility under Rule 702 of expert testimony based on forensic feature-comparison methods.” This article supplies information on why and how judicial bodies concerned with possible rules changes—and courts applying the current rules—can improve their regulation of criminalistics identification evidence. First, it describes how courts have failed to faithfully apply Daubert v. Merrell Dow Pharmaceutical’s criteria for scientific validity to …

Firearm-Mark Evidence: Looking Back And Looking Ahead, David H. Kaye

Journal Articles

This article, written as a contribution to a festschrift for Paul Giannelli, surveys the development of the law on one type of feature-matching evidence that repeatedly attracted Professor Giannelli’s attention — “firearm-mark evidence.” By inspecting toolmarks on bullets or spent cartridge cases, firearms examiners can supply valuable information on whether a particular gun fired the ammunition in question. But the limits on this information have not always been respected in court, and a growing number of opinions have tried to address this fact.

The article explains how the courts have moved from a position of skepticism of the ability of …

Petition For Writ Of Certiorari, Montana V. Tipton, Leslie C. Griffin, Marci A. Hamilton, Paul G. Cassell

Supreme Court Briefs

No abstract provided.

Hearsay And Abuse: Where Past Is Present, The Hon. Andrea M. Leahy, Jared A. Mclain Esq.

University of Baltimore Law Review

No abstract provided.

Common Sense On Standards Of Proof, Kevin M. Clermont

Cornell Law Faculty Publications

The law speaks clearly on the standards of proof, but listeners often misunderstand its words. This article tries, with some common sense and a modicum of multivalent logic, to explain how the law expects its standards to be applied, and then to show how the law thereby avoids such complications as the conjunction paradox.

First, in accordance with belief function theory, the factfinder should start at zero belief. Given imperfect evidence, the factfinder will end up retaining a fair amount of uncommitted belief. As evidence comes in, though, the factfinder will form a belief in the truth of the disputed …

User-Generated Evidence, Rebecca Hamilton

Articles in Law Reviews & Other Academic Journals

Around the world, people are using their smartphones to document atrocities. This Article is the first to address the implications of this important development for international criminal law. While acknowledging the potential benefits such user-generated evidence could have for international criminal investigations, the Article identifies three categories of concern related to its use: (i) user security; (ii) evidentiary bias; and (iii) fair trial rights. In the absence of safeguards, user-generated evidence may address current problems in international criminal justice at the cost of creating new ones and shifting existing problems from traditional actors, who have institutional backing, to individual users …

The Technologies Of Race: Big Data, Privacy And The New Racial Bioethics, Christian Sundquist

Articles

Advancements in genetic technology have resurrected long discarded conceptualizations of “race” as a biological reality. The rise of modern biological race thinking – as evidenced in health disparity research, personal genomics, DNA criminal forensics, and bio-databanking - not only is scientifically unsound but portends the future normalization of racial inequality. This Article articulates a constitutional theory of shared humanity, rooted in the substantive due process doctrine and Ninth Amendment, to counter the socio-legal acceptance of modern genetic racial differentiation. It argues that state actions that rely on biological racial distinctions undermine the essential personhood of individuals subjected to such taxonomies, …

A Tale Of Two Standards: Why Wyoming Courts Should Apply The Actual Substantial Evidence Standard When Reviewing Workers’ Compensation Cases, Michael C. Duff

All Faculty Scholarship

In Wyoming, as in almost all states, facts in contested workers’ compensation cases are developed within an administrative agency. When agency factual findings are challenged in court, the level of judicial deference applied to the agency is important and may be outcome determinative. Wyoming courts claim to apply the “substantial evidence” standard of review, often expressed as evidence that a “reasonable mind could accept” as supporting an agency determination. The Wyoming Supreme Court, however, also sometimes upholds workers’ compensation agency decisions that are deemed “not contrary to the overwhelming weight of the evidence.” It is unclear whether this latter formulation …

Touch Dna And Chemical Analysis Of Skin Trace Evidence: Protecting Privacy While Advancing Investigations, Mary Graw Leary

Scholarly Articles

Forensic science transforms criminal investigations by resolving previously unsolvable cases and bringing an increased sense of justice to communities. This application of scientific disciplines to legal questions aids investigators in solving crimes. While many sciences can be utilized—such as physics (pattern evidence), chemistry (toxicology), or biology (cause of death), to name a few—two aspects of scientific advancement have played an outsized role in responding to crime. Trace evidence analysis—specifically, deoxyribonucleic acid (DNA) analysis—is an essential component to an effective and accurate criminal justice system. DNA evidence has emerged as a powerful tool to identify perpetrators of unspeakable crimes and to …

Challenges Facing Judges Regarding Expert Evidence In Criminal Cases, Paul W. Grimm

Faculty Scholarship

No abstract provided.

Admissibility And Constitutional Issues Of The Concealed Information Test In American Courts: An Update, John B. Meixner Jr.

Scholarly Works

The use of physiological tools to detect incidentally acquired concealed knowledge about crime-related information has been a controversial and well-researched topic among scholars for well over 100 years. This chapter focuses on potential legal hurdles for courtroom use of concealed information tests, including admissibility issues and constitutional issues under the Fourth and Fifth Amendments to the US Constitution.

The "Primary Purpose" Of Children's Advocacy Centers: How Ohio V. Clark Revolutionized Children's Hearsay, Andrew Lentz

Roger Williams University Law Review

No abstract provided.

Deconstructing The Epistemic Challenges To Mass Atrocity Prosecutions, Nancy Amoury Combs

Faculty Publications

Mass atrocity prosecutions are credited with advancing a host of praiseworthy objectives. They are believed to impose much-needed retribution, deter future atrocities, and affirm the rule of law in previously lawless societies. However, mass atrocity prosecutions will accomplish none of these laudable ends unless they are able to find accurate facts. Convicting the appropriate individuals of the appropriate crimes is a necessary and foundational condition for the success of mass atrocity prosecutions. But it is a condition that is frequently difficult to meet, as mass atrocity prosecutions are often bedeviled by pervasive and invidious obstacles to accurate fact-finding. This Article …

Why Courts Fail To Protect Privacy: Race, Age, Bias, And Technology, Bernard Chao, Catherine Durso, Ian Farrell, Christopher Robertson

Sturm College of Law: Faculty Scholarship

The Fourth Amendment protects against unreasonable “searches and seizures,” but in the digital age of stingray devices and IP tracking, what constitutes a search or seizure? The Supreme Court has held that the threshold question depends on and reflects the “reasonable expectations” of ordinary members of the public concerning their own privacy. For example, the police now exploit the “third party” doctrine to access data held by email and cell phone providers, without securing a warrant, on the Supreme Court’s intuition that the public has no expectation of privacy in that information. Is that assumption correct? If judges’ intuitions about …

Unlocking The Fifth Amendment: Passwords And Encrypted Devices, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

Each year, law enforcement seizes thousands of electronic devices — smartphones, laptops, and notebooks — that it cannot open without the suspect’s password. Without this password, the information on the device sits completely scrambled behind a wall of encryption. Sometimes agents will be able to obtain the information by hacking, discovering copies of data on the cloud, or obtaining the password voluntarily from the suspects themselves. But when they cannot, may the government compel suspects to disclose or enter their password?

This Article considers the Fifth Amendment protection against compelled disclosures of passwords — a question that has split and …

Fleeing The Rat’S Nest: Title Vii Jurisprudence After Ortiz V. Werner Enterprises, Inc., Zachary J. Strongin

Brooklyn Law Review

In 2016, the Seventh Circuit issued an opinion that may be a harbinger for an important shift in the federal judiciary’s long-standing employment discrimination jurisprudence. In Ortiz v. Werner Enterprises, Judge Easterbrook reiterated the frustration with the existing “rat’s nest” of tests and standards used in Title VII discrimination and retaliation claims. The note contains two overarching arguments. First, the Supreme Court’s employment discrimination and “rat’s nest” of tests and standards has led to an untenable situation in which federal district courts apply different standards at different stages of litigations. This in turn has caused confusion amongst the various federal …

Mitochondrial Dna Replacement: Moral And Halakhic Concerns, J. David Bleich

Articles

Mitochondrial DNA (mtDNA), transmitted from mother to child, have their own genetic code that may cause debilitating genetic diseases. To prevent such unfortunate occurrences, researchers have developed a process enabling them to completely replace an ovum’s mitochondria with mitochondria contributed by a donor. Children born by use of this method have genetic material from both the mitochondrial donor and the birth mother; they are “three-parent babies.” Resultant medical, ethical, legal and theological problems are obvious.

Moreover, this technology may pose significant risks to neonates born of such procedures. Certainly no person has the right to cause harm to a fellow …

Racial Character Evidence In Police Killing Cases, Jasmine Gonzales Rose

Faculty Scholarship

The United States is facing a twofold crisis: police killings of people of color and unaccountability for these killings in the criminal justice system. In many instances, the officers’ use of deadly force is captured on video and often appears clearly unjustified, but grand and petit juries still fail to indict and convict, leaving many baffled. This Article provides an explanation for these failures: juror reliance on “racial character evidence.” Too often, jurors consider race as evidence in criminal trials, particularly in police killing cases where the victim was a person of color. Instead of focusing on admissible evidence, jurors …

Federal Rule 26(A)(2) Expert Witness Disclosures: Strategies For Composing And Attacking Expert Disclosures, Douglas B. Bates, Chelsea R. Stanley, James L. Burt Iii

Journal of Air Law and Commerce

Federal Rule of Civil Procedure 26(A)(2) governs disclosure of expert testimony. The rule purports to create a clear delineation between experts that must provide a written report and those that do not. The rule then outlines the disclosure requirements that must be satisfied as to each type of expert. This article focuses on the implications of Rule 26(A)(2) in practice, with an emphasis on the field of aviation litigation. The article begins by discussing the general difference between non-retained experts and retained experts and the disclosure requirements associated with each. The article then progresses into a series of practice pointers …

Surprise Vs. Probability As A Metric For Proof, Edward K. Cheng, Matthew Ginther

Vanderbilt Law School Faculty Publications

In this Symposium issue celebrating his career, Professor Michael Risinger in Leveraging Surprise proposes using "the fundamental emotion of surprise" as a way of measuring belief for purposes of legal proof. More specifically, Professor Risinger argues that we should not conceive of the burden of proof in terms of probabilities such as 51%, 95%, or even "beyond a reasonable doubt." Rather, the legal system should reference the threshold using "words of estimative surprise" -asking jurors how surprised they would be if the fact in question were not true. Toward this goal (and being averse to cardinality), he suggests categories such …

Debunked, Discredited, But Still Defended: Why Prosecutors Resist Challenges To Bad Science And Some Suggestions For Crafting Remedies For Wrongful Conviction Based On Changed Science, Aviva A. Orenstein

Articles by Maurer Faculty

Flawed science has significantly contributed to wrongful convictions. Courts struggle with how to address such convictions when the mistaken science (such as bogus expert claims about the differences between accidental fires and intentionally set ones) significantly affected the guilty verdict but there is no DNA evidence to directly exonerate the accused. My short piece explores why prosecutors often defend bad science. Mistakes in science tend to serve the prosecution, but there are other more subtle factors that explain prosecutors’ reluctance to address flawed forensic testimony. Such reluctance may arise from fondness for the status quo and a resistance to subverting …

What Humility Isn’T: Responsibility And The Judicial Role, Benjamin Berger

Articles & Book Chapters

In recent years, academic literature has given some attention to humility as an important adjudicative principle or virtue. Drawing inspiration from a Talmudic tale, this chapter suggests that the picture of judicial humility painted in this literature is not only incomplete, but even potentially dangerous so. Seeking to complete the picture of what this virtue might entail, this piece explores the idea that humility is found in awareness of one’s position and role in respect of power, and a willingness to accept the burdens of responsibility that flow from this. The chapter examines elements of Chief Justice McLachlin’s criminal justice …

Forensics, Chicken Soup, And Meteorites: A Tribute To Michael Risinger, Edward K. Cheng

Vanderbilt Law School Faculty Publications

Michael Risinger's scholarship has had a profound impact on our field. And while his work has run the gamut in evidence law, I think it is clear that Michael's true love has always been expert evidence, and more specifically, forensics. So let me take a moment to revisit "an oldie but a goodie": his 1989 article entitled Exorcism of Ignorance as a Proxy for Rational Knowledge: The Lessons of Handwriting Identification "Expertise," published in the University of Pennsylvania Law Review, and co-authored with Mark Denbeaux and Michael Saks.' For those of you who have not read the article, you should. …

Why Not Believe Women In Sexual Assault Cases?: An Engagement With Professors Tuerkheimer, Colb, And Many Others, Dan Subotnik

Touro Law Review

No abstract provided.

Whether The Bright-Line Cut-Off Rule And The Adversarial Expert Explanation Of Adaptive Functioning Exacerbates Capital Juror Comprehension Of The Intellectual Disability, Leona Deborah Jochnowitz

Touro Law Review

No abstract provided.

When Discretion To Record Becomes Assertive: Body Camera Footage As Hearsay, Natalie P. Pike

Vanderbilt Journal of Entertainment & Technology Law

As police body camera footage pervades courtrooms across the country as evidence in criminal trials, courts must reevaluate whether, and under which evidentiary frameworks, they will admit the footage to prove that what the footage depicts is true. This Note analyzes the frameworks under which courts have historically admitted filmic evidence: namely, through authentication and as demonstrative evidence. It concludes that body camera footage is distinct from evidence traditionally admitted through those frameworks because body camera footage is akin to an officer's assertive statement--the officer has discretion to activate and aim the body camera. Courts should therefore exclude the footage …