Law Commons^™

Short Fall Arguments In Court: A Probabilistic Analysis, Maria Cuellar

University of Michigan Journal of Law Reform

A discussion about how statistical arguments are used in court, specifically in cases of Abusive Head Trauma in which the defendant has claimed that an accidental short fall, and not shaking or child abuse, has caused the child’s injuries.

Bias, Subjectivity, And Wrongful Conviction, Katherine Judson

University of Michigan Journal of Law Reform

A talk about bias, subjectivity and wrongful convictions.

Evidence Of Child Abuse: Inferring The Causes Of Effects, Stephen E. Fienberg

University of Michigan Journal of Law Reform

A statistician's take on evidence of child abuse.

Police Interrogations, False Confessions, And Alleged Child Abuse Cases, Richard Leo

University of Michigan Journal of Law Reform

A discussion on false confession cases in the United States.

Child Abuse--Nonaccidental Injury (Nai) And Abusive Head Trauma (Aht)--Medical Imaging: Issues And Controversies In The Era Of Evidence-Based Medicine, Patrick Barnes

University of Michigan Journal of Law Reform

A look at nonaccidental injury and abusive head trauma in children with a focus on Shaken Baby Syndrome.

Implicit Bias In Daily Perceptions And Legal Judgments, Keith B. Maddox, Samuel R. Sommers

University of Michigan Journal of Law Reform

In today’s demonstration, we explored the audience’s positive and negative associations with blacks and whites. The demonstration is an adaptation of the Implicit Association Test (www.projectimplicit.net), a computer-based task designed to explore mental connections between various concepts. Participants were presented with a list of concepts (stereotypically black and white names, pleasant and unpleasant concepts) in a column down the middle of a screen along with the response categories (black/white or Pleasant/Unpleasant) along the left and right sides. When reading a word, participants were asked to categorize it by slapping the knee (left or right) that corresponds to the category displayed …

Child Abuse Evidence: New Perspectives From Law, Medicine, Psychology & Statistics: Question And Answer Session, Kimberly Thomas, Keith B. Maddox, Samuel R. Sommers, Patrick Barnes, Richard Leo

University of Michigan Journal of Law Reform

A transcript of the Question and Answer session during the University of Michigan Journal of Law Reform Symposium, Child Abuse Evidence: New Perspectives from Law, Medicine, Psychology & Statistics.

Keynote Address: Can A Sign Or Occult Finding Predict A Causal Relationship?: How To Reason About Possible Child Abuse, Peter Aspelin

University of Michigan Journal of Law Reform

Keynote Address for the University of Michigan Journal of Law Reform Symposium, Child Abuse Evidence: New Perspectives from Law, Medicine, Psychology & Statistics.

Child Abuse Evidence: New Perspectives From Law, Medicine, Psychology & Statistics: Opening Remarks, November 6, 2015, Bridget M. Mccormack

University of Michigan Journal of Law Reform

Opening remarks by Justice Bridget McCormack, Michigan Supreme Court on November 6, 2015.

Milkovich V. Lorain Journal Twenty-Five Years Later: The Slow, Quiet, And Troubled Demise Of Liar Libel, Leonard Niehoff, Ashley Messenger

University of Michigan Journal of Law Reform

In Milkovich v. Lorain Journal Co., the Supreme Court held that there is no separate constitutional protection for statements of opinion. It also held that an accusation that an individual lied is a statement of fact actionable in defamation. Lower courts have, correctly in our view, essentially ignored both holdings. In Part I we discuss Milkovich and the infirmities in its reasoning. In Part II we discuss the complex nature of lies and accusations of lies and argue that Milkovich failed to account for that complexity. In Part III we discuss the strategies the lower courts have used to …

Federal Discovery Stays, Gideon Mark

University of Michigan Journal of Law Reform

In federal civil litigation, unless a discretionary stay is granted, discovery often proceeds while motions to dismiss are pending. Plaintiffs with non-meritorious cases can compel defendants to spend massively on electronic discovery before courts ever rule on such motions. Defendants who are unable or unwilling to incur the huge up-front expense of electronic discovery may be forced to settle non-meritorious claims. To address multiple electronic discovery issues, Congress amended the Federal Rules of Civil Procedure in 2006 and the Federal Rules of Evidence in 2008. However, the amendments failed to significantly reduce costs and failed to address the critical issue …

Shu'ubiyya Or Security? Preserving Civil Liberties By Limiting Fisa Evidence To National Security Prosecutions, William Pollak

University of Michigan Journal of Law Reform

Part I of this Note addresses the restrictions on intelligence gathering under FISA prior to 9/11 and the motivations underlying the Patriot Act's revisions to FISA. Part II discusses the problems with the "primary purpose" test, which was in effect prior to the Patriot Act's revisions to FISA. Part III reviews the various policy and constitutional arguments made against the Patriot Act's "significant purpose" test. Part IV proposes that Congress enact a new "inextricably intertwined" test to govern the admission of FISA material in criminal prosecutions. Specifically, this Part looks at sixty criminal cases in which FISA material was admitted …

Title Vii Quid Pro Quo And Hostile Environment Sexual Harassment Claims: Changing The Legal Framework Courts Use To Determine Whether Challenged Conduct Is Unwelcome, Elsie Mata

University of Michigan Journal of Law Reform

In examining the nature of sexual harassment claims, the author challenges the use of the "unwelcomeness" element to distinguish actionable conduct from nonactionable conduct. The author contends that the "unwelcomeness" element demeans women in two ways: (1) it assumes the male perspective and presumes that the plaintiff appreciated the challenged conduct unless she proves otherwise; and (2) it allows the defense to engage in intrusive, irrelevant, and damaging inquiries as it attempts to refute the plaintiff's allegation that the challenged conduct was unwelcome.

The author argues for three reforms. First, courts should shift the burden of proving that the challenged …

The Big Chill: Third-Party Documents And The Reporter's Privilege, Bradley S. Miller

University of Michigan Journal of Law Reform

In the wake of Philip Morris' multi-billion dollar libel suit against ABC, a Virginia court has sanctioned a new method of discovery that promises to have an unsettling impact on the reporter's privilege to protect confidential sources. In Philip Morris Cos. v. American Broadcasting Cos., the tobacco giant moved to compel disclosure of the identity of a former R.J. Reynolds manager who suggested on ABC's Day One news program that tobacco companies add nicotine to the cigarettes they manufacture. At the same time, Philip Morris issued subpoenas for the expense records of two ABC employees who wrote and produced …

The Admission Of Criminal Histories At Trial, Department Of Justice Office Of Legal Policy

University of Michigan Journal of Law Reform

As part of a continuing series of studies on impediments to the search for truth in criminal investigation and adjudication, the Office of Legal Policy has carried out a review of the law governing the admission of the criminal records of defendants and other persons at trial. The results of this review are set out in this Report.

The Search And Seizure Exclusionary Rule, Department Of Justice Office Of Legal Policy

University of Michigan Journal of Law Reform

The fourth amendment guarantees the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." This guaranty is not self-executing, however, and the courts and criminal justice systems in this country have long been bedeviled by questions concerning appropriate methods of ensuring its observance. As a result of the Supreme Court's decisions in Weeks v. United States and Mapp v. Ohio, the method principally relied upon today is a judicially created rule excluding from criminal trials evidence obtained in violation of the defendant's fourth amendment rights.

The search and seizure …

Rape Shield Laws--Is It Time For Reinforcement?, Catherine L. Kello

University of Michigan Journal of Law Reform

This Note takes a critical look at civil suits arising from allegations of rape, particularly from the perspective of how these actions run counter to the spirit of rape reform and rape shield legislation. The analysis begins with a brief history of the Rape Shield Law and its intended purposes. Part II then utilizes two cases to outline the current dilemma posed by civil suits that are filed during a pending criminal sexual conduct prosecution. After presenting these cases, Part III considers whether a legislative remedy is required and determines that it is. Part IV then proposes a Model Statute. …

Government Compensation For The Costs Of Producting Subpoenaed Documents: A Proposal For Legislative Reform, Norman Gross

University of Michigan Journal of Law Reform

Current statutory and case law provide for the compensation of select categories of persons and entities that provide evidence to the federal government. This compensation scheme is inequitable insofar as it treats similarly situated persons and entities dissimilarly. This Note advocates the adoption of a blanket statutory provision to compensate all third party custodians for incurred costs in producing documents in compliance with a subpoena duces tecum issued on behalf of a federal authority. Part I describes the current federal reimbursement scheme. Part II examines the inequities that the current statutory scheme imposes upon similarly situated entities and argues for …

Parent-Child Incest: Proof At Trial Without Testimony In Court By The Victim, Dustin P. Ordway

University of Michigan Journal of Law Reform

This Note argues that the incest victim should not testify personally at trial. Rather, the child's testimony should be replaced with tape-recorded pretrial examinations of the victim by an expert, supplemented by the in-court testimony of the examining expert. Part I discusses how the present system of requiring in-court testimony by the victim harms the child, fails to correct the incest problem, and produces unreliable evidence. Part II outlines and discusses the merits of the proposed reform. Part ill examines the proposed reform in light of the defendant's constitutional rights to due process and to confront witnesses against him. The …

Title Iii - Recalcitrant Witnesses, Jeffrey J. Greenbaum

University of Michigan Journal of Law Reform

This title represents a congressional attempt to codify the court-developed civil contempt practice. When a witness is granted immunity and still refuses to answer the question presented to him he can be ordered by a court to answer the specific question. Upon his continued refusal, a court can have him confined summarily until he complies with such order, or until he is no longer able to comply. Such confinement is not intended to be punitive in nature, but rather to coerce compliance with the court's order by imposing imprisonment as an alternative to answering the question. The witness will be …

Title Iv - False Declarations, Jeffrey J. Greenbaum

University of Michigan Journal of Law Reform

Title IV was designed to facilitate the bringing of federal perjury prosecutions, thereby strengthening the deterrent value of the perjury penalties and acting as a greater incentive for truthful testimony. It establishes a new false declarations statute applicable to court and grand jury proceedings, with maximum penalty slightly increased over that allowable under the previously controlling perjury statute.

Title Vi - Depositions, Peter A. Kelly

University of Michigan Journal of Law Reform

Title VI expands Rule 15 of the Federal Rules of Criminal Procedure to permit the Government to depose its witnesses in certain limited classes of cases. Previously only the defendant had been accorded this right. Upon the motion of either party at any time after a criminal indictment or information has been filed, the court may order that the testimony of the party's witnesses be taken by deposition if "due to exceptional circumstances it is in the interest of justice" that such testimony be taken and preserved. Such exceptional circumstances were intended by Congress to include the existence of a …

Title Vii - Litigation Concerning Sources Of Evidence, Peter A. Kelly

University of Michigan Journal of Law Reform

There are two operative provisions of title VII, both of which mitigate previous judicially imposed restrictions on governmental collection and presentation of evidence in "any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, or other authority of the United States.” The first purports to set aside the Supreme Court's holding in the 1968 case of Alderman v. United States, in which the Court held that, in cases involving unlawful electronic surveillance, the government must make full disclosure to the defendant of all records in its possession which contain any of …