Law Commons^™

Silent At Sentencing: Waiver Doctrine And A Capital Defendant's Right To Present Mitigating Evidence After Schriro V. Landrigan, Dale E. Ho

Dale E Ho

The consideration of mitigating evidence—evidence that weighs against the imposition of the death penalty in a capital defendant’s individual case—has been deemed a “constitutionally indispensable” feature of a valid capital sentencing scheme. And yet, Jeffrey Landrigan, like many capital defendants, was sentenced to death without the consideration of any mitigating evidence whatsoever. Landrigan’s trial counsel failed to uncover substantial evidence of Landrigan’s history of severe physical and sexual abuse as a child, and of the possible biological effects of his mother’s alcohol and drug abuse. Every member of the Ninth Circuit en banc panel considering his case deemed his counsel’s …

Discoverability Of Private Investigator Surveillance In South Carolina: Navigating The Work Product Doctrine Under Samples V. Mitchell, Bradford J. Gower

South Carolina Law Review

No abstract provided.

Should A Scintilla Be Enough - The Proper Standard For Summary Judgment In South Carolina, Aaron J. Hayes

South Carolina Law Review

No abstract provided.

Are We There Yet: Gatekeepers, Daubert, And An Analysis Of State V. White, Mark R. Nash

South Carolina Law Review

No abstract provided.

People V. Bermudez: Is A Freestanding Claim Of Actual, Factual Innocence A Ground For Reversal Under The New York State Constitution?, Gregory C. Rosenfeld

Gregory C Rosenfeld

No abstract provided.

The First Complaint: An Approach To The Admission Of Child-Hearsay Statements Under The Alaska Rules Of Evidence, John J. Gochnour

Alaska Law Review

No abstract provided.

Jesus: Dead Or Alive? A Lawyer’S View Of The Evidence For The Resurrection, Neil J. Foster

Neil J Foster

This paper considers whether the evidence for the resurrection of Jesus of Nazareth would be admissible under the principles of the Australian law of evidence. It concludes that it would be.

Allshouse V. Pennsylvania, Brief Of The National Association Of Criminal Defense Lawyers, The Pennsylvania Association Of Criminal Defense Lawyers, The Public Defender Association Of Pennsylvania, And The Defender Association Of Philadelphia, As Amici Curiae On Behalf Of Petitioner, Jules Epstein

Jules Epstein

No abstract provided.

Faint-Hearted Fidelity To The Common Law In Justice Scalia’S Confrontation Clause Trilogy, Ellen Yee

ellen yee

FAINT-HEARTED FIDELITY TO THE COMMON LAW IN JUSTICE SCALIA’S CONFRONTATION CLAUSE TRILOGY Ellen Liang Yee ABSTRACT In Giles v. California, 128 S.Ct. 2678 (2008), the Supreme Court issued the third Confrontation Clause opinion in its recent Crawford trilogy. In an opinion written by Justice Scalia, the Giles Court reiterated its interpretive approach in Crawford that the Confrontation Clause is “most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding.” The Court’s decision purports to hold that a defendant does not forfeit his Sixth Amendment confrontation …

Instrumentalizing Jurors: An Argument Against The Fourth Amendment Exclusionary Rule, Todd E. Pettys

Todd E. Pettys

In this symposium contribution, I argue that (1) courts infringe on jurors' deliberative autonomy in a morally problematic way whenever they refuse to admit evidence that is both relevant and reasonably available; (2) this infringement is especially problematic in the Fourth Amendment setting; and (3) although there are several ways in which these moral problems could be at least partially mitigated, the best approach might be to abandon the Fourth Amendment exclusionary rule entirely.

Evidence Verite And The Law Of Film, Jessica M. Silbey

Jessica Silbey

This paper explores a puzzle concerning the authority of certain images that increasingly find themselves at the center of legal disputes: surveillance or “real time” film images that purport to capture an event about which there is a dispute. Increasingly, this kind of “evidence verité” is used in United States courts of law as the best evidence of what happened. Film footage of arrests, criminal confessions, photographs of crime scenes (during and after) is routinely admitted into court as evidence. It tends to overwhelm all other evidence (e.g., testimonial or documentary) and be immune to critical analysis. Why would this …

To Testify Or Not To Testify: A Comparative Analysis Of Australian And American Approaches To A Parent-Child Testimonial Exemption, Hillary Farber

Hillary B. Farber

Among many legal systems there are certain relationships that are deemed to possess such societal worth that despite the evidentiary value a witness may possess, he is immune from being compelled to testify against the other party in the relationship. In the United States, courts have recognized an evidentiary privilege for spouses, lawyers and their clients, psychotherapists and their patients. Surprisingly, the United States has not adopted a federal common law or statutory parent-child privilege. Among the civil law countries in Europe and Asia, a majority of countries prohibit parents and children from testifying against one another. Australia is the …

Mohammed Jawad And The Failure Of The Guantanamo Military Commissions, David J. Frakt

David J Frakt

In order to justify outrageous treatment of detainees at Guantanamo during the early years of the “Global War on Terror” it was necessary to portray the detainees as hardened terrorist criminals. But it was not enough to simply label them as such; the Bush Administration knew that in order to maintain popular support for their detention policies, they would have to convict a critical mass of the detainees in some sort of legal proceedings.

The problem for the Bush Administration was that few of the detainees were actually involved in any terrorist criminal activity. Fewer still had committed any offenses …

The Constitution Guarantees Doctor-Patient Confidentiality In Criminal Cases, David E. Clark

David E Clark

Admitting medical records against a patient in a criminal case violates the fifth amendment because a patient is compelled to tell her doctor inculpatory information. Issuing a search warrant for confidential doctor-patient records violates the right to privacy in the fourth amendment. Warden v Hayden (1967) left open an important exception allowing a constitutional doctor-patient privilege in criminal cases.

Lefkoe V. Jos. A. Bank Clothiers, Inc., Joshua Bennett

South Carolina Law Review

No abstract provided.

The Dance Of Death Or (Almost) No One Here Gets Out Alive: The Fourth Circuit's Capital Punishment Jurisprudence, John H. Blume

South Carolina Law Review

No abstract provided.

United States V. Vankesteren, Stephen Wills Murphy

South Carolina Law Review

No abstract provided.

Where And How To Draw The Line Between Reasonable Corporal Punishment And Abuse, Doriane Lambelet Coleman, Kenneth A. Dodge, Sarah Keeton Campbell

Law and Contemporary Problems

No abstract provided.

Economics Perspective On The Exclusionary Rule And Deterrence, An, Michael D. Cicchini

Missouri Law Review

This Article will demonstrate that the exclusionary rule does not and cannot deter police misconduct. The reason is that the expected cost to the police of their own misconduct (p*C) is nearly always zero. More specifically, the probability that the evidence will be suppressed (p), even in cases of egregious police misconduct, is very close to zero. Additionally, even in the rare case that evidence is suppressed, the cost to the police of a lost conviction (C) is nearly always zero for several reasons: first, the police tend to value arrests, not convictions; second, even if they did value convictions, …

Clarifying Causation In Tort, Erik S. Knutsen

Dalhousie Law Journal

This article argues that there is nothing overly confusing about the law ofcausation in negligence. It attempts to define the current state of causation in Canadian negligence law with a simple goal in mind: to have a clearer more productive conversation about the law with the fundamental concepts clearly on the table. The author argues that while the leading decisions on causation are often couched in broad-based, universal terminology to refrain from inhibiting conceptual portability,the cases can be read as a sustained continuum of conversations about causation. A cohesive framework for the law is offered by taking a longitudinal perspective …

Finding The Error In Daubert, Mark G. Haug

mark g haug

This article proposes an alternative criterion to Daubert and its progeny—including the amended FRE 702 of 2000—for the admissibility of expert testimony. Relevant to our proposal is the theoretical and empirical difficulty of Daubert’s factor concerning the known or potential error rate. Lurking within this particular factor, however, is the key to a non-controversial criterion for admissibility that is relatively easy to implement. To support our proposal, we consider the error factor from a scientific viewpoint. Using the Daubert case, and a scientific sampling of cases relying upon Daubert for guidance, we endeavor to show how courts have struggled with …

Comparing Exceptions To Privilege And Confidentiality Relating To Crime, Fraud, And Harm -- Can Hard Cases Make Good Law?, Jean Fleming Powers

Jean F. Powers

The article begins by describing some scenarios – the hard cases – that illustrate the tension between the lawyer’s obligation to his client and what many would view as basic standards of decency and humanity. The cases include (1) the recent case of an innocent man who spent 26 years in jail for a crime he did not commit while the attorneys for the real perpetrator protected the information that their own client had committed the crime, (2) cases involving the extent of the exception to confidentiality to prevent death or substantial bodily harm, (3) a case in which attorneys …

Protecting “Any Child:” The Use Of The Confidential Marital Communications Privilege In Child Molestation Cases, Naomi Goodno

Naomi Harlin Goodno

Imagine a grandmother who wants to testify in a criminal trial that her husband confessed to her that he molested their two-year old grandson, but she is prevented from doing so. This is a true example of how a defendant can invoke the confidential martial communications privilege. Federal courts and half of the state legislatures have created exceptions to the confidential martial communications privilege in narrow situations. If a defendant has committed a crime against “the child of either” spouse, or against a “child residing in the home,” then the defendant cannot bar testimony based on the confidential marital communications …

Conley As A Special Case Of Twombly And Iqbal: Exploring The Intersection Of Evidence And Procedure And The Nature Of Rules, Ronald Allen

Ronald Allen

Two recent Supreme Court cases, Iqbal and Twombly, have caused a storm of criticism from civil proceduralists to the effect that the cases have changed the meaning of FRCP 8 outside of the Rules Enabling Act process; undercut the transsubstantive aspirations of the procedural system; breached the procedure-evidence divide inappropriately; will result in idiosyncratic trial court judgments based on bias and caprice; and have imposed an unworkable if not incomprehensible standard of plausibility on pleadings. The storm of criticism is fueled in no small part because of the awkwardness of the Court’s opinions. These cases look considerably different if viewed …

The Case For Candor - Application Of The Self-Critical Analysis Privilege To Corporate Diversity Documents, Pam Jenoff

Pam Jenoff

The Case For Candor: Application Of The Self-Critical Analysis Privilege To Corporate Diversity Initiatives Pam Jenoff Diversity has become an increasingly important part of American corporate culture in the past several decades, with companies devoting significant resources to the assessment of diversity and the implementation of plans to improve demographics, employee relations and morale. Attempts to undertake these diversity initiatives are greatly limited, however, by concerns over potential legal liability. Counsel, apprehensive that documents and other information regarding diversity issues and corrective measures may subsequently be used as evidence by plaintiffs in discrimination lawsuits, often discourage or veto outright the …

Conley As A Special Case Of Twombly And Iqbal: Exploring The Intersection Of Evidence And Procedure And The Nature Of Rules, Ronald Allen

Ronald Allen

Two recent Supreme Court cases, Iqbal and Twombly, have caused a storm of criticism from civil proceduralists to the effect that the cases have changed the meaning of FRCP 8 outside of the Rules Enabling Act process; undercut the transsubstantive aspirations of the procedural system; breached the procedure-evidence divide inappropriately; will result in idiosyncratic trial court judgments based on bias and caprice; and have imposed an unworkable if not incomprehensible standard of plausibility on pleadings. The storm of criticism is fueled in no small part because of the awkwardness of the Court’s opinions. These cases look considerably different if viewed …

Sex, Threats, And Absent Victims: The Lessons Of Regina V. Bedingfield For Modern Confrontation And Domestic Violence Cases, Aviva A. Orenstein

Aviva A. Orenstein

In 2004, Crawford v. Washington, authored by Justice Antonin Scalia, revolutionized the law of confrontation by requiring that, aside from two discrete exceptions, all testimonial statements (those made with the expectation that they will serve to prosecute the accused) be subject to cross-examination. This new interpretation of the Sixth Amendment confrontation clause has profoundly affected domestic violence cases, making it much harder to prosecute them successfully.

Although Justice Scalia’s approach to confrontation is new, it is strikingly similar to the analysis in Regina v. Bedingfield, a notorious English murder case, which excluded from the evidence an alleged statement by the …

Hearings, Mark Spottswood

Mark Spottswood

This article explores a constantly recurring procedural question: When is fact-finding improved by a live hearing, and when would it be better to rely on a written record? Unfortunately, when judges, lawyers, and rulemakers consider this issue, they are led astray by the widely shared—but false—assumption that a judge can best determine issues of credibility by viewing the demeanor of witnesses while they are testifying. In fact, a large body of scientific evidence indicates that judges are more likely to be deceived by lying or mistaken witnesses when observing their testimony in person than if the judges were to review …

An Unsettling Outcome: Why The Florida Supreme Court Was Wrong To Ban All Settlement Evidence In Saleeby V. Rocky Elson Construction, Inc., 3 So. 3d 1078 (Fla. 2009), Michael L. Seigel, Robert J. Hauser, Allison D. Sirica

Michael L Seigel

It is rare that a court as sophisticated as the Florida Supreme Court casually makes a fundamental mistake in an important area of the law. Unfortunately, Saleeby v. Rocky Elson Construction, Inc., 3 So. 3d 1078 (Fla. 2009), represents one of these unusual instances. The Court was faced with a simple question: may evidence pertaining to a prior settlement be offered at trial when it is relevant to something other than liability or the invalidity or amount of the pending claim. The universal answer under both federal law and the law of other states is yes, as long as the …

Reconcilable Difference: A Critical Assessment Of The International Court Of Justice’S Treatment Of Circumstantial Evidence, Michael P. Scharf, Margaux Day

Michael P Scharf

This article examines a vexing evidentiary question that the International Court of Justice has struggled with in several cases over the years, namely: what should the Court do when one of the parties has exclusive access to critical evidence and refuses to produce it for security or other reasons? In its first case, Corfu Channel, the Court decided to apply liberal inferences of fact against the non-producing party, but in the more recent Bosnia Genocide case, the Court declined to do so under seemingly similar circumstances. By carefully examining the treatment of evidence in these and other international cases in …