Law Commons^™

Self-Incrimination Doctrine Is Dead; Long Live Self-Incrimination Doctrine: Confessions, Scientific Evidence, And The Anxieties Of The Liberal State, Kenworthey Bilz

Kenworthey Bilz

Confessions have historically been the most compelling evidence the state could offer at a criminal trial. However, improvements in forensic technologies have led to increased use of scientific evidence, such as DNA typing, pattern-recognition software, location tracking devices, and the like, with very impressive rates of reliability. The reliability of these methods has become so impressive, in fact, that it should lead to a reduced reliance on confessions (and other nonscientific evidence, such as eyewitness identifications) in criminal prosecutions. However, this does not mean that the doctrine of self-incrimination, which regulates the acquisition and use of confessions, will no longer …

Direct Application Of International Commercial Law In Chinese Courts: Intellectual Property, Trade, And International Transportation, Jie Huang

Jie Huang

Different from scholarship that focuses on the relationship between China and International Law regarding territory, armed conflicts, human rights violations, this article explores the relationship between China and International Law in a commercial setting. It explores how Chinese courts apply international commercial law in adjudicating cases involving foreign factors. Moreover, this article goes beyond contemporary scholarship that concerns international commercial law and China but only focuses on the text of Chinese statutes and judicial interpretations: it elaborates how courts apply statutes and judicial interpretations in actual adjudications through cases studies. By covering cases decided by the Supreme People’s Court and …

The Meaning Of Race In The Dna Era: Science, History And The Law, Christian B. Sundquist

Christian B. Sundquist

The meaning of “race” has changed dramatically over time. Early theories of race assigned social, intellectual, moral and physical values to perceived physical differences among groups of people. The perception that race should be defined in terms of genetic and biologic difference fueled the “race science” of the Eighteenth and Nineteenth centuries, during which time geneticists, physiognomists, eugenicists, anthropologists and others purported to find scientific justification for denying equal treatment to non-white persons. Nazi Germany applied these understandings of race in a manner which shocked the world, and following World War II the concept of race increasingly came to be …

Forensic Genetics And The Ascendancy Of Modern “Race Science:” Establishing The Inadmissibility Of Dna Estimates Of Race, Christian B. Sundquist

Christian B. Sundquist

The meaning of “race” has been vigorously contested throughout history. Early theories of race assigned social, intellectual, moral and physical values to perceived physical differences among groups of people. The perception that race should be defined in terms of genetic and biologic difference fueled the “race science” of the Eighteenth and Nineteenth centuries, during which time geneticists, physiognomists, eugenicists, anthropologists and others purported to find scientific justification for denying equal treatment to non-white persons. Nazi Germany applied these understandings of race in a manner which shocked the world, and following World War II the concept of race increasingly came to …

Neuroscientific Evidence In The Law: Fascinating Science, But To Laymen It's Still Phrenology, John M. Mccarthy

John M McCarthy

ABSTRACT

Neuroscientific Evidence in the Law: Fascinating Science, But to Laymen It's Still Phrenology by John M. McCarthy J.D. Yale, 1977

Cognitive neuroscience is one of biology's most exciting specialties, but outside of laboratories, "neuroscience" is not "science" but something else. The article examines what it is. This bears on today's burgeoning "neuro-" applications in the law, including "neuroethics". The article argues that neuroscientific findings should be excluded today from legal contexts, because valid scientific findings do not exist concerning the complex mental performances pertinent to adjudication.

Laymen and neuroscientists embrace a theoretical paradigm that is over two centuries old: …

A Fighting Chance: An Analysis Of The Role Of Social Science Evidence In Higher Education Affirmative Action And K-12 Voluntary Desegregation Cases, Crystal Gafford Muhammad

Crystal Gafford Muhammad

The present inquiry focuses on the role of social science evidence contemporarily, using observations from judicial opinions in race conscious admissions cases. Using a set of judicial opinions from K-12 voluntary desegregation and higher education affirmative action in admissions, I use legal and statistical analysis to argue that social science data presented into evidence is of limited effect. In fact, I find judicial political philosophy is the greatest predictor of opinions in this area of law. However, the question is not whether social science evidence is influential or even persuasive, but whether it is useful in politically contentious cases. It …

Left Hand, Third Finger: The Wearing Of Wedding (Or Other) Rings As A Form Of Assertive Conduct Under The Hearsay Rule, Peter Nicolas

Peter Nicolas

In this manuscript, I examine the social phenomena of making use of what I call “ring evidence” to determine an individual’s marital status or sexual orientation. More specifically, I note the common practice of identifying people as married based on the presence of a ring on the ring finger of the left hand, as gay and in a committed relationship based on the presence of a ring on the ring finger of the right hand, and as single based on the absence of a ring.

Next, I identify two problems with making use of ring evidence to draw conclusions about …

Impeachable Offenses?: Why Civil Parties In Quasi-Criminal Cases Should Be Treated Like Criminal Defendants Under The Felony Impeachment Rule, Colin Miller

Colin Miller

With one exception, every Federal Rule of Evidence dealing with propensity character evidence or evidence which can be misused as propensity character evidence makes it either: (a) as difficult to admit such evidence in civil trials as it is in criminal trials, or (b) more difficult to admit such evidence in civil trials than it is in criminal trials. The “mercy rule” falls into this latter category as it allows criminal defendants to inject the issue of character into their trials while a similar luxury is not afforded to civil parties. Before 2006, however, a substantial minority of courts extended …

Independent And Adequate, Carrie Leonetti

Carrie Leonetti

No abstract provided.

Computers, Search Warrants, And The Private Papers Exemption, David E. Clark

David E Clark

Police increasingly seek search warrants for information stored on personal computers. Georgia law, OCGA 17-5-21(a)(5) prohibits the issuance of a search warrant for "private papers," which include any documents subject to a recognized privilege (attorney-client, doctor-patient). This statute, and other technological factors, raise the risk of a computer search warrant being ruled overbroad unless it is carefully drafted. A constitutionally sound format for a computer search warrant application is given, along with guidelines for drafting and executing a warrant for digital property believed to be evidence of a crime.

Federal Courts As Constitutional Laboratories: The Rat's Point Of View, Maureen N. Armour

Maureen N Armour

This article examines the operation of the lower federal courts as constitutional laboratories where problems related to implementing the Supreme Court's problematic constitutional decisions are routinely addressed. By using the methodology of a detailed case study of Eighth Amendment litigation the author provides critical insights into the workings of the federal trial courts and three judge appellate panels and insights into the applied phenomenology of ajudicative discretion, the moving force of this judicial laboratory. The article also examines the problematic nature of the Supreme Court's constitutional decisions, their textual openness, doctrinal malleability,and prudential "errors," and how this effects the institutional …

Methinks The Lady Doth Protest Too Little: Reassessing The Probative Value Of Silence, Mikah K. Story Thompson

Mikah K. Story Thompson

This article takes a fresh look at why individuals remain silent in the face of accusations by law enforcement. Traditionally, many courts have found that a defendant’s failure to protest her innocence reflects one of three things: (1) that the defendant has manifested her assent to the accusation by not responding; (2) that the defendant’s silence is a prior statement inconsistent with any testimony proclaiming innocence at trial; or (3) that the silence is substantive evidence of the defendant’s guilt. This article posits that a defendant’s silence actually means very little. Social science research regarding the possible meanings of silence …

Loss Of Sixth Amendment Confrontation Rights: Forfeiture Triggered By Voluntary Wrongful Conduct, Ralph Ruebner, Eugene Goryunov

Ralph Ruebner

The hotly contested debate about the nature of confrontation rights of the criminally accused under the Sixth Amendment continues. The latest issue before the United States Supreme Court is whether intent to prevent live in-court testimony is a necessary element of the constitutional forfeiture analysis. A number of state courts, including the Supreme Court of California in People v. Giles, 152 P.3d 433, 440 (2007), cert. granted, 128 S.Ct. 976 (2008), have rejected the element of intent. Other courts, including the Illinois Supreme Court in People v. Stechly, 870 N.E.2d 333 (2007), have mandated the inclusion of the element of …

Even Better Than The Real Thing: How Courts Have Been Anything But Liberal In Finding Genuine Questions Raised As To The Authenticity Of Originals Under Rule 1003, Colin Miller

Colin Miller

In the common law days, parties seeking to prove the contents of documents were required to produce the original documents or account for their nonproduction. Pursuant to the Best Evidence Rule, if such parties neither produced the originals nor accounted for their nonproduction, courts prevented them from proving their contents through secondary evidence such as handwritten copies or testimony. With the invention of new technologies such as the process of xerography, however, states in the twentieth century began enacting exceptions to the Best Evidence Rule which allowed for the admission of duplicates created without manual transcription even when proponents could …

The Phoenix From The Ash: Proving Discrimination By Comparators, Charles A. Sullivan

Charles A. Sullivan

Hidden beneath judicial and scholarly obsession with formal proof structures for individual disparate treatment cases is a simpler, more direct method of establishing discrimination. Taking the “disparate treatment” label seriously, I argue that “comparator” proof requires merely that the plaintiff identify a similarly situated person of another race or the opposite sex who was treated more favorably than plaintiff. Such proof is increasingly driving litigation in the lower courts, which suggests that comparators should be moved to center stage in the antidiscrimination project However, like other efforts, the comparator approach risks falling victim to the general hostility of the courts …

Litigation Discovery Cannot Be Optimal But Could Be Better: The Economics Of Improving Discovery Timing In A Digital Age, Scott A. Moss

Scott A Moss

Cases are won and lost in discovery, yet discovery draws surprisingly little academic attention. Most scholarship focuses on how much discovery to allow, not how courts decide discovery disputes – which, unlike trials, occur in most cases. Today, much evidence is “e-discovery” – imprudent emails or still-lingering “deleted” files – making costly discovery battles increasingly salient. But the e-discovery rules are not truly new, just a strengthening of old cost/benefit “proportionality” limits on discovery enacted when the spread of photocopiers similarly increased the amount of discovery. Proportionality limits are topic of broad consensus among civil procedure scholars as well as …

Race, Genes, And Justice: A Call To Reform The Presentation Of Forensic Dna Evidence In Criminal Trials, Jonathan Kahn

Jonathan Kahn

The article considers how and when, if at all, is it appropriate to use race in presenting forensic DNA evidence in a court of law? This relatively straightforward question has been wholly overlooked by legal scholars. By pursuing it, this article promises to transform fundamentally the presentation forensic DNA evidence. Currently, it is standard practice for prosecutors to use race in presenting the odds that a given defendant’s DNA matches DNA found at a crime scene. This article takes an interdisciplinary approach to question the validity of this widespread but largely uninterrogated practice. It examines how race came to enter …

Hyperbole And The Laws Of Evidence: Why Chicken Is Generally Wrong, A Ten Year Retrospective On Fre 413-415, Thomas A. Vogele

Thomas A Vogele

The Federal Rules of Evidence 413 through 415 were hailed by their proponents as a critical tool in combating the scourge of rape and child sexual assault. The new rules' critics claimed that passage of such radical changes would be the death knell for due process, civil liberties, and the presumption of innocence.

As with so many hotly debated issues in our hyper-polarized society, the truth lay somewhere in between. This paper examines the rules, the hype in favor and against them, the objective statistics, and why the passage of the new rules was not so much a radical departure …

The Immoral Application Of Exclusionary Rules, Todd E. Pettys

Todd E. Pettys

In both civil and criminal cases today, judges routinely withhold relevant evidence from jurors, fearing that jurors would use it in an irrational or legally impermissible manner. Forcing jurors to take responsibility for a verdict based upon a government-screened pool of evidence stands in sharp contrast to the way we ordinarily think about government efforts to withhold potentially useful information from citizens faced with important decisions. The First Amendment’s guarantee of the freedom of speech, for example, reflects a moral judgment that the government offends its citizens’ deliberative autonomy when it restricts speech based upon fears about what that speech …

The Curious Appellate Judge: Ethical Limits On Independent Research, Beth Thornburg

Beth Thornburg

Appellate judges in the twenty-first century find themselves in a world in which litigation – both civil and criminal -- involves a vast array of complex and technical factual disputes. These lawsuits, in turn, may cause judges to seek a greater level of expertise in order to deal competently with the evidence that will be relevant to the disputes. At the same time, advances in communication technology have brought the world’s library to the courthouse, requiring no onerous trips across town or index searches but only the click of a mouse. When judges feel the need for additional information, the …

Wrongly Accused Redux: How Race Contributes To Convicting The Innocent: The Informants Example, Andrew E. Taslitz

Andrew E. Taslitz

This article analyzes five forces that may raise the risk of convicting the innocent based upon the suspect's race: the selection, ratchet, procedural justice, bystanders, and aggressive-suspicion effects. In other words, subconscious forces press police to focus more attention on racial minorites, the ratchet makes this focus every-increasing, the resulting sense by the community of unfair treatment raises its involvment in crime while lowering its willingness to aid the police in resisting crime, innocent persons suffer when their skin color becomes associated with criminality, and the police use more aggressive techniques on racial minorities in a way that raises the …