Law Commons^™

The Motion In Limine:Trial Without Jury - A Government's Weapon Against The Sanctuary Movement, Douglas L. Colbert

Douglas L. Colbert

No abstract provided.

Statistical String Theory For Courts: If The Data Don't Fit..., David F. Babbel

David F Babbel

The primary purpose of this article is to provide courts with an important new tool for applying the correct probability distribution to a given legal question. This tool is path-breaking and will have an extensive impact on how a wide variety of cases are decided. In areas as diverse as criminal prosecutions and civil lawsuits alleging securities fraud, courts must assess the relevance and reliability of statistical data and the inferences drawn therefrom. But, courts and expert witnesses often make mistaken assumptions about what probability distributions are appropriate for their analyses. Using the wrong probability distribution can lead to invalid …

Unchaste And Incredible: The Use Of Gendered Conceptions Of Honor In Impeachment, Julia Simon-Kerr

Julia Simon-Kerr

The American rules for impeaching witnesses developed against a cultural background that equated a woman's "honor," and thus her credibility, with her sexual virtue. The idea that a woman's chastity informs her credibility did not originate in rape trials and the confusing interplay between questions of consent and sexual history. Rather, gendered notions of honor so permeated American legal culture that attorneys routinely attempted to impeach female witnesses by invoking their sexual histories in cases involving such diverse claims as title to land, assault, arson, and wrongful death. But while many courts initially accepted the notion that an unchaste woman …

Eyes Wide Shut: How Ignorance Of The Common Interest Doctrine Can Compromise Informed Consent, Katharine Schaffzin

Katharine Traylor Schaffzin

The common interest doctrine offers many time and cost-saving advantages to clients. It also carries with it the consequence that counsel representing a party to a common interest group accept ethical or fiduciary responsibilities on behalf of the other members of that group. This pseudo-attorney-client relationship may limit an attorney's abilities to fulfill her ethical obligations to her client. This article explores the mechanisms for protecting the client and the attorney before entering a common interest arrangement.

From A Plane Crash To The Conviction Of An Innocent Person: A Call On Lawmakers To Establish That Forensic Evidence Is Inadmissible Unless Forensic Equipment Is Developed As A Safety-Critical System, Dr. Boaz Sangero, Dr. Mordechai Halpert

Prof. Boaz Sangero

According to existing law, a criminal conviction may be based on a single piece of scientific (forensic) evidence. Thus, for example, a DNA match could, on its own, lead to a conviction and a prolonged term of imprisonment, or even a death sentence. A testing error might result in the conviction of an innocent person. Therefore, the state has a duty to ensure that such evidence is as reliable as possible. This article protests an inconceivable situation: that the development of forensic equipment, which is designed to produce evidence that can be relied on in a criminal trial, is not …

Trial Tips: Structure In Direct Examination Wins Cases, J. Palmer Lockard Ii

J. Palmer Lockard II

The Trial-Time/Forum Principle And The Nature Of Evidence Rules, Alex Stein

Alex Stein

This Article examines two principles that settle temporal and jurisdictional conflicts between evidentiary rules: the trial-time principle and the forum principle. Under the trial-time principle, evidentiary rules that exist at the time of the trial override rules that existed before trial when the relevant action or transaction took place. Under the forum principle, evidentiary rules of the court’s jurisdiction override rules applicable in the jurisdiction in which the relevant action or transaction took place. These principles control the application of rules categorized as strictly evidentiary, as opposed to substantive. The Article explains, criticizes and refines this categorization.

The Right To Silence Helps The Innocent: A Response To Critics, Alex Stein

Alex Stein

This contribution to the Cardozo Law Review symposium on the future of the Fifth Amendment responds to the numerous critics of Daniel J. Seidmann & Alex Stein, The Right to Silence Helps the Innocent: A Game-Theoretic Analysis of the Fifth Amendment Privilege, 114 HARV. L. REV. 430 (2000).

Under Seidmann and Stein’s theory, the right to silence protects innocents who find themselves unable to corroborate their self-exonerating accounts by verifiable evidence. Absent the right, guilty criminals would pool with innocents by making false self-exonerating statements. Factfinders would consequently discount the probative value of all uncorroborated exculpatory statements, at the expense …

Torts And Innovation, Alex Stein, Gideon Parchomovsky

Alex Stein

This Essay exposes and analyzes a hitherto overlooked cost of the current design of tort law: its adverse effect on innovation. Tort liability for negligence, defective products, and medical malpractice is determined by reference to custom. We demonstrate that courts’ reliance on custom and conventional technologies as the benchmark of liability chills innovation and distorts its path. Specifically, the recourse to custom taxes innovators and subsidizes replicators of conventional technologies. We explore the causes and consequences of this phenomenon and propose two possible ways to modify tort law in order to make it more welcoming to innovation.

To Speak Or Not To Speak? Navigating The Treacherous Waters Of Parallel Investigations Following The Amendment Of Federal Rule Of Evidence 408, Mikah K. Story Thompson

Mikah K. Story Thompson

This article is the first to explore the true impact of the recently amended Fed. R. Evid. 408 on parallel proceedings. Parallel proceedings exist where the government conducts both a civil and criminal investigation against a defendant for single instance of alleged misconduct. Prior to the rule’s amendment, a defendant facing parallel proceedings had the ability to negotiate settlement of the civil suit without fear that any incriminating statements made during settlement talks would later re-surface in the criminal case. However, the amendment to Rule 408 singles out defendants facing parallel proceedings by stating that the government may use any …

Miranda Is Not Enough: A New Justification For Demanding "Strong Corroboration" To A Confession, Boaz Sangero

Prof. Boaz Sangero

Following research conducted in recent years—some of it regarding evidence obtained through DNA testing—no doubt remains that, in reality, innocent persons are convicted of crimes and that, in a significant number of these cases, wrongful convictions are solely based on the out-of-court confessions of accused persons obtained by police interrogators.This Article discusses existing law regarding confessions and convictions based on confessions. While this body of law deals in a relatively satisfactory manner with the fear that the confession is involuntary (primarily, through Miranda rules), unfortunately, it does not adequately address the serious fear of false confessions.The Article is designed to …

Fear And Loathing In Insanity Law: Explaining The Otherwise Inexplicable Clark V. Arizona, Susan Rozelle

Seattle University

Eric Clark believed he was battling space aliens when he shot and killed Officer Jeffrey Moritz. Charged under a first-degree murder statute that requires knowledge the victim is a police officer, Clark should have been “not guilty” two ways: first, by reason of insanity, and second, because he did not satisfy the mens rea requirement. Instead, he was found guilty, and the United States Supreme Court’s decision upholding this result tortured insanity law jurisprudence. The only plausible explanation for the Court’s decision lies in society’s emotional reaction to mental illness. Fear and loathing have displaced not only care and compassion, …

The Individualization Fallacy In Forensic Science Evidence, Michael J. Saks, Jonathan J. Koehler

Michael J Saks

Forensic scientists across a broad array of sub-specialties have long maintained that they can link an unknown mark (e.g., a partial fingerprint or tireprint) to a unique source. Yet no scientific basis exists for this assertion, which is sustained largely by faulty probabilistic intuition that equates infrequency with uniqueness. This article traces the origins of the individualization claim and explicates the various failed lines of evidence and argument offered in its support. We conclude with suggestions for how to improve the scientific basis of the forensic identification sciences.

If You (Re)Build It They Will Come: Contracts To Remake The Rules Of Litigation In Arbitration's Image, Henry S. Noyes

Henry S. Noyes

The Supreme Court describes the right to trial by jury in a civil action as a "basic and fundamental" right that is "sacred to the citizen" and therefore "should be jealously guarded by the court." But parties to a contract may agree that, in the event a dispute arises, they waive their right to a jury. If this dispute resolution right - which is fundamental, constitutional, and set forth in the Federal Rules of Civil Procedure - may be used as a bargaining chip, are there any limits on parties' ability to modify the rules of litigation in their ex …

Magistrates’ Examinations, Police Interrogations, And Miranda—Like Warnings In The Nineteenth Century, Wesley M. Oliver

Wesley M Oliver

The New York legislature in the early-nineteenth century began to require interrogators to warn suspects of their right to silence and counsel. The Warren Court, in Miranda v. Arizona, did not invent the language of the warnings; rather, it resurrected the warnings that were no longer given in New York after the latter half of the nineteenth century. The confessions rule, a judicially created rule of evidence much like the modern voluntariness rule, excluded many statements if any threat or inducement was made to the suspect. Courts in the early-nineteenth century, however, were willing to accept confessions notwithstanding an improper …

Why A Conviction Should Not Be Based On A Single Piece Of Evidence: A Proposal For Reform, Boaz Sangero, Mordechai Halpert

Prof. Boaz Sangero

This article illustrates a serious flaw in the conventional legal approach enabling a conviction based solely on one piece of evidence. This flaw derives from a cognitive illusion referred to as “the fallacy of the transposed conditional.” People might assume a low error rate in evidence only leads to a small percentage of wrongful convictions. We show that, counterintuitively, even a very low error rate might lead to a wrongful conviction in most cases where the conviction is based on a single piece of evidence. Case law has indicated some awareness of this fallacy, primarily when considering the random match …

A Liberal Challenge To Behavioral Economics: The Case Of Probability, Alex Stein

Alex Stein

THE "BLUE CAB" EXPERIMENT: ARE LAY FACT-FINDERS "PROBABILISTICALLY CHALLENGED"? No, they are not. The experiment is methodologically deficient, as is the behavioral economics' assumption that one needs to conceptualize probabilities in the Pascalian way in order to be rational.

Mediating Rules In Criminal Law, Alex Stein, Richard A. Bierschbach

Alex Stein

This Article challenges the conventional divide between substantive criminal law theory, on the one hand, and evidence law, on the other, by exposing an important and unrecognized function of evidence rules in criminal law. Throughout the criminal law, special rules of evidence work to mediate conflicts between criminal law’s deterrence and retributivist goals. They do this by skewing errors in the actual application of the substantive criminal law to favor whichever theory has been disfavored by the substantive rule itself. The mediating potential of evidentiary rules is particularly strong in criminal law because the substantive law’s dominant animating theories—deterrence and …

Preparing Your Witness: Do’S And Don’Ts, J. Palmer Lockard Ii

J. Palmer Lockard II

Ambiguity Aversion And The Criminal Process, Alex Stein, Uzi Segal

Alex Stein

Ambiguity aversion is a person's rational attitude towards probability's indeterminacy. When a person is averse towards such ambiguities, he increases the probability of the unfavorable outcome to reflect that fear. This observation is particularly true about a criminal defendant who faces a jury trial. Neither the defendant nor the prosecution knows whether the jury will convict the defendant. Their best estimation relies on a highly generalized probability that attaches to a broad category of similar cases. The prosecution, as a repeat player, is predominantly interested in the conviction rate that it achieves over a long series of cases. It therefore …

Forensic Science: Grand Goals, Tragic Flaws, And Judicial Gatekeeping, Jane Campbell Moriarty

Jane Campbell Moriarty

In the last decade, a number of scientists have published articles and testified in court, explaining the ways in which they believe that some of the forensic sciences do not meet reliability standards and that laboratories make errors. The explosion of exonerations resulting from DNA technology has raised questions about the accuracy of many forensic sciences and the quality of some laboratory testing. A substantial number of these defendants can point to erroneous forensic science as a contributing cause of their wrongful convictions. In the courts, increasingly, the parties have substantial and serious disagreements about the quality of forensic science. …

Overenforcement, Alex Stein, Richard A. Bierschbach

Alex Stein

Overenforcement of the law is widespread, but underinvestigated. Overenforcement occurs when the total sanction suffered by the violator of a legal rule exceeds the amount optimal for deterrence. Overenforcement sometimes generates overdeterrence that cannot be remedied through the adjustment of substantive liability standards or penalties ex ante. When that happens, the legal system can counteract the effects of overenforcement by adjusting evidentiary or procedural rules to make liability less likely. This framework, which we call the overenforcement paradigm, illuminates previously unnoticed features of various evidentiary and procedural arrangements. It also provides a useful analytical and prescriptive tool for creating optimal …

Njc Deskbook On Evidence For Administrative Law Judges, Chris Mcneil

Christopher B. McNeil, J.D., Ph.D.

Provides summaries of frequently-encountered evidence rules, with checklists for ALJs and others working in administrative adjudications.

Between "Merit Inquiry" And "Rigorous Analysis": Using Daubert To Navigate The Gray Areas Of Federal Class Action Certification, Elizabeth C. Burch

Elizabeth Chamblee Burch

In recent years, the class action certification hearing has become the latest forum for disputes over the reliability of expert testimony. Since these hearings may involve complex technical matters, litigants frequently try to introduce expert testimony to either establish or challenge the basic requirements for class certification. Yet, most courts do not conduct a Daubert analysis before admitting expert testimony during certification, evaluate the evidence according to a uniform standard, or adequately weigh opposing expert opinions. Even though the Federal Rules of Evidence codify procedures to ensure the reliability of expert testimony, courts have been reluctant to employ them during …

Truth-Bonding And Other Truth-Revealing Mechanisms For Courts, Robert D. Cooter, Winand Emons

Robert Cooter

Evidence And The One Liner: A Beginning Evidence Professor’S Exploration Of The Use Of Humor In The Law School Classroom, John J. Capowski

John J. Capowski

No abstract provided.

Indeterminate Causation And Apportionment Of Damages, Alex Stein, Ariel Porat

Alex Stein

This Article analyzes the problem of indeterminate causation in torts and develops a system of compensating plaintiffs that responds to both optimal deterrence and corrective justice criteria. Under this system, the plaintiff’s award should equal her harm multiplied by the ex post probability of causation. Any other system, including that of recovery for lost chances that many courts have adopted, would either under-compensate or over-compensate the plaintiff. The Article’s approach is presently recommended by the Third Restatement of Torts.

This Article derives from the general theory developed in my book with Ariel Porat, Tort Liability under Uncertainty (Oxford University Press, …

Notas Sobre El Desarrollo De Normas De La Prueba Para El Ecuador, Thomas J. Reed

Thomas J Reed

No abstract provided.

Wonders Of The Invisible World: Prosecutorial Syndrome And Profile Evidence In The Salem Witchcraft Trials, Jane Campbell Moriarty

Jane Campbell Moriarty

The primary aims of this Article are to deconstruct the evidence from the Salem witchcraft trials and to determine whether those prosecutions relied upon syndrome and profile evidence, and whether such evidence played a substantial role in the convictions. The secondary aim is to determine whether modern cases employ evidentiary methods sufficiently similar to the Salem cases such that we should reconsider prosecutorial syndrome and profile evidence. This Article concludes that prosecutorial syndrome evidence and, to a lesser degree, prosecutorial profile evidence, were relied upon in the Salem cases and were important to the convictions. Moreover, in modern cases, which …

The Right To Silence Helps The Innocent: A Game-Theoretic Analysis Of The Fifth Amendment Privilege, Alex Stein, Daniel Seidmann

Alex Stein

This Article develops a consequentialist game-theoretic perspective for understanding the right to silence. By applying this perspective, the Article reveals that the conventional perception of the right to silence, as impeding the search for truth and thus helping criminals alone, is mistaken. The Article demonstrates that the right to silence can help triers of fact to distinguish between factually innocent and guilty suspects and defendants. This is achieved by an important feature of the right to silence which this Article brings to the fore: a criminal's self-interested response to questioning can impose externalities (in the form of wrongful conviction) on …