Law Commons^™

Bullshit!: Why The Retroactive Application Of Federal Rules Of Evidence 413-414 And State Counterparts Violates The Ex Post Facto Clause, Colin Miller

Faculty Publications

In Calder v. Bull, the Supreme Court recognized four types of laws that cannot be applied retroactively consistent with the Ex Post Facto Clause, including “[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” But, in its opinion in Carmell v. Texas, the Court determined that ordinary rules of evidence do not violate the Clause because they (1) are “evenhanded, in the sense that they may benefit either the State or the defendant in a …

The Judicial Discretion To Exclude Relevant Evidence: Perspectives From An Indian Evidence Act Jurisdiction, Siyuan Chen

Research Collection Yong Pung How School Of Law

Stephen’s ground-breaking Indian Evidence Act contained ideas that appear unfamiliar in the context of modern rules of evidence. Singapore is an Indian Evidence Act jurisdiction which has retained those ideas, such as the non-distinction between relevance and admissibility, the framing of exclusionary rules in inclusionary terms, and the prohibition against relying on common law developments inconsistent with the Evidence Act. These peculiarities should have presented obstacles to the applicability of the common law concept of the judicial discretion to exclude relevant evidence, but this has not been the case. In this article, I first suggest why Singapore courts might have …

Reliability And Relevance As The Touchstones For Admissibility Of Evidence In Criminal Proceedings: Muhammad Bin Kadar V Pp [2011] 3 Slr 1205 [Case Note], Siyuan Chen

Research Collection Yong Pung How School Of Law

The Court of Appeal in Muhammad bin Kadar v PP [2011] 3 SLR 1205 (“Kadar”) formally recognised the judicial discretion to exclude evidence as an integral part of the law on criminal evidence in Singapore. This discretion, the court held, would help ensure that all evidence coming before the court would be as reliable as possible. While this commentary agrees that the foundational basis for the exclusionary discretion doctrine is desirable, it suggests that there are difficulties with the application of the doctrine. An alternative approach that works around the difficulties is canvassed for consideration.

Summary Of Tri-County Equipment & Leasing V. Klinke, 128 Nev. Adv. Op. No. 33, Daniella Labounty

Nevada Supreme Court Summaries

The court considered whether proof of workers’ compensation payments paid in California could be admitted into evidence in a personal injury action in Nevada. Because both states have statutes governing this issue, the Court decided that the Nevada statute shall govern. Applying Nevada law, the Court concluded that evidence of the actual amount of the benefits paid should be admitted and a clarifying jury instruction should have been given.

Summary Of Davis V. Beling, 128 Nev. Adv. Op. No. 28, Colin Seale

Nevada Supreme Court Summaries

The Court considered, on appeal, whether a court can admit evidence of compromise offers within real estate transactions for the purpose of demonstrating a failure to mitigate damages. Further, it considered whether real estate licensees are shielded from all forms of common law liability. Lastly, the Court considered whether compensatory damages should include diminution-in-value for a claim alleging fraud, whether carrying costs as consequential damages should be limited by the economic loss doctrine, and whether the district court erred in denying attorney’s fees provided for in listing and purchase agreements to the prevailing party.

The Embedded Epistemologist: Dispatches From The Legal Front, Susan Haack

Articles

In ordinary circumstances, we can assess the worth of evidence well enough without benefit of any theory; but when evidence is especially complex, ambiguous, or emotionally disturbing-as it often is in legal contexts-epistemological theory may be helpful. A legal fact-finder is asked to determine whether the proposition that the defendant is guilty, or is liable, is established to the required degree of proof by the [admissible] evidence presented; i.e., to make an epistemological appraisal. The foundherentist theory developed in Evidence and Inquiry can help us understand what this means; and reveals that degrees of proof cannot be construed as mathematical …

Flow Chart For Hearsay And The Confrontation Clause 'Crawford Through Bernadyn' (April 18, 2012). University Of Baltimore School Of Law Legal Studies Research Paper, Lynn Mclain

All Faculty Scholarship

A series of flowcharts outline the nuances of hearsay law and the Confrontation Clause.

Following The Rules: Exclusion Of Witness, Sequestration, And No-Consultation Orders, Richard H. Underwood

Law Faculty Scholarly Articles

In this Article, Professor Underwood discusses the varying application of Rule 615 of the Federal Rules of Evidence, which provides for the exclusion of witnesses. He explains that varying application of Rule 615 and state evidence rules following Rule 615's language creates misunderstandings at trial. Thus, it is important to know not only the federal and local rules but also the "way things are done" in a particular court.

Summary Of Bigpond Vs. Nevada, 128 Nev. Advanced Opinion No. 10, Emily Navasca

Nevada Supreme Court Summaries

The Court considered an appeal from a district court regarding admission of evidence of “other crimes, wrongs or acts” for non-propensity purposes not listed in NRS 48.045(2).

Latent Print Examination And Human Factors: Improving The Practice Through A Systems Approach: The Report Of The Expert Working Group On Human Factors In Latent Print Analysis, David H. Kaye, Thomas Busey, Melissa R. Gische, Gerry Laporte, Scott A. Shappell, Et Al.

Publications

Fingerprints have provided a valuable method of personal identification in forensic science and criminal investigations for more than 100 years. Fingerprints left at crime scenes generally are latent prints—unintentional reproductions of the arrangement of ridges on the skin made by the transfer of materials (such as amino acids, proteins, polypeptides, and salts) to a surface. Palms and the soles of feet also have friction ridge skin that can leave latent prints. The examination of a latent print consists of a series of steps involving a comparison of the latent print to a known (or exemplar) print. Courts have accepted latent …

Predators And Propensity: The Proper Approach For Determining The Admissibility Of Prior Bad Acts Evidence In Child Sexual Abuse Prosecutions, Basyle Tchividjian

Faculty Publications and Presentations

PREDATORS AND PROPENSITY: THE PROPER APPROACH FOR DETERMINING THE ADMISSIBILITY OF PRIOR BAD ACTS EVIDENCE IN CHILD SEXUAL ABUSE PROSECUTIONS

Basyle J. Tchividjian†

Abstract

The admissibility of prior bad act evidence in child sexual abuse prosecutions oftentimes makes the difference between a guilty and not guilty verdict. Recently, jurisdictions have growingly embraced the admission of such evidence for the purpose of establishing the defendant’s propensity to sexually victimize children. Due to the potentially high prejudicial effect of admitting propensity evidence, it is more critical than ever that courts carefully apply the decisive evidentiary gatekeeper, the probative value balancing test …

Persuasive Visions: Film And Memory, Jessica Silbey

Faculty Scholarship

This commentary takes a new look at law and film studies through the lens of film as memory. Instead of describing film as evidence and foreordaining its role in truth-seeking processes, it thinks instead of film as individual, institutional and cultural memory, placing it squarely within the realm of contestability. Paralleling film genres, the commentary imagines four forms of memory that film could embody: memorabilia (cinéma vérité), memoirs (autobiographical and biographical film), ceremonial memorials (narrative film monuments of a life, person or institution), and mythic memory (dramatic fictional film). Imagining film as memory resituates film’s role in law (procedural, substantive …

Implicit Bias In The Courtroom, David L. Faigman, Jerry Kang, Mark W. Bennett, Devon W. Carbado, Pamela Casey, Nilanjana Dasgupta, Rachel D. Godsil, Anthony G. Greenwarld, Justin D. Levinson, Jennifer Mnookin

Faculty Scholarship

No abstract provided.

Judicial Formalism And The State Secrets Privilege, Sudha Setty

Faculty Scholarship

Congress has, in the last few years, toyed with the idea of attempting to rein in the executive’s increasing reliance on the state secrets privilege as a means of escaping the possibility of accountability. The Author examines one high-profile case, that of Binyam Mohamed and other plaintiffs claiming that they had been subject to extraordinary rendition, torture, and prolonged detention. The Mohamed litigation offers evidence of a disturbing trend of U.S. courts retreating to formalistic reasoning to extend unwarranted deference to the executive branch in security-related contexts. In this essay the Author limits her analysis to the recent jurisprudence surrounding …

Finding The Original Meaning Of American Criminal Procedure Rights: Lessons From Reasonable Doubt's Development, Randolph N. Jonakait

Articles & Chapters

Lessons can be learned about finding the original meaning of American criminal procedure rights by an examination of the development of the reasonable doubt standard. This is for a number of reasons. First, the status of the reasonable doubt standard seems secure. No debate questions the constitutional requirement that an accused can only be convicted if the crime is proven beyond a reasonable doubt. The standard’s original meaning can be explored uncolored by the partisanship often engendered when present seekers of original meaning hope to define a new contour to a constitutional guarantee. Furthermore, serious scholars have studied the reasonable …

Ending Silence: Youth Speaking Up About Sexual Abuse In Custody - Carol’S Question, Brenda V. Smith, Stephanie A. Kinard, Jaime M. Yarussi, Michael J. Auger

Reports

focusing on sexual minority youth

Ending Silence: Youth Speaking Up About Sexual Abuse In Custody - Sheila’S Dilemma, Brenda V. Smith, Stephanie A. Kinard, Jaime M. Yarussi, Michael J. Auger

Reports

focusing on female youth age 14-18

Ending Silence: Youth Speaking Up About Sexual Abuse In Custody - Mary’S Friend, Brenda V. Smith, Stephanie A. Kinard, Jaime M. Yarussi, Michael J. Auger

Reports

focusing on female youth age 10-13

Ending Silence: Youth Speaking Up About Sexual Abuse In Custody - Charlie’S Report, Brenda V. Smith, Stephanie A. Kinard, Jaime M. Yarussi, Michael J. Auger

Reports

focusing on male youth age 10-13

Ending Silence: Youth Speaking Up About Sexual Abuse In Custody - Billy Speaks Out, Brenda V. Smith, Stephanie A. Kinard, Jaime M. Yarussi, Michael J. Auger

Reports

focusing on male youth age 14-18

Do Bad Things Happen When Works Enter The Public Domain?: Empirical Tests Of Copyright Term Extension (With P. Heald), Christopher J. Buccafusco

All Faculty Scholarship

The international debate over copyright term extension for existing works turns on the validity of three empirical assertions about what happens to works when they fall into the public domain. Our study of the market for audio books and a related human subjects experiment suggest that all three assertions are suspect. We demonstrate that audio books made from public domain bestsellers (1913-22) are significantly more available than those made from copyrighted bestsellers (1923-32). We also demonstrate that recordings of public domain and copyrighted books are of equal quality. While a low quality recording seems to lower a listener's valuation of …

Making Sense Of Intellectual Property Law, Christopher J. Buccafusco

All Faculty Scholarship

Intellectual property (IP) scholars have long struggled to explain the boundaries of and differences between copyright and patent law. This Article proposes a novel explanation: copyright and patent can be fruitfully understood as establishing a dichotomy between the different human senses. Copyright has bracketed works addressed to the senses of sight and hearing, and it treats products appealing to touch, taste, and smell as functional and, thus, uncopyrightable. To the extent the latter receive IP protection, it is through the utility patent regime. The Article begins by establishing this descriptive proposition, and it shows how some of the most contested …

Valuing Attribution And Publication In Intellectual Property (With C. Sprigman And Z. Burns), Christopher J. Buccafusco

All Faculty Scholarship

This is the third in a series of articles focusing on the experimental economics of intellectual property. In earlier work, we have experimentally studied the ways in which creators assign monetary value to the things that they create. That research has suggested that creators are subject to a systematic bias that leads them to overvalue their work. This bias, which we have called the 'creativity effect,' potentially results in inefficient markets in IP, because creators may be unwilling to license their works for rational amounts.

Our prior research, however, like American IP law itself, focused exclusively on the monetary value …

Well-Being Analysis Vs. Cost-Benefit Analysis (With J. Bronsteen & J. Masur) (Symposium), Christopher J. Buccafusco

All Faculty Scholarship

Cost-benefit analysis is the primary tool used by policymakers to inform administrative decisionmaking. Yet its methodology of converting preferences (often hypothetical ones) into dollar figures, then using those dollar figures as proxies for quality of life, creates systemic errors so large as to deprive the tool of value. These problems have been lamented by many scholars, and recent calls have gone out from world leaders and prominent economists to find an alternative analytical device that would measure quality of life more directly. This Article proposes well-being analysis (WBA) as that alternative. Relying on data from the field of hedonic psychology …

Convicting Lennie: Mental Retardation, Wrongful Convictions, And The Right To A Fair Trial, John H. Blume, Sheri Lynn Johnson, Susan E. Millor

Cornell Law Faculty Publications

"Lennie" refers to Lennie Small, the intellectually disabled character in John Steinbeck's famous novella Of Mice and Men, which tells the story of two Depression-era wandering farmhands, George and Lennie, who dream of getting their own stake and living "off the fat of the land." Their dream dies hard when Lennie accidently kills the young, beautiful, and flirtatious wife of a ranch owner's son and then tries to cover it up because he realizes that he has "done a bad thing." George, in turn, kills Lennie to prevent him from being lynched or tried for murder.

Lennie was doomed …

Rethinking Voir Dire, Eric R. Carpenter

Faculty Publications

No abstract provided.

Reliable Science: Overcoming Public Doubts In The Climate Change Debate, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

This article will consider the case for instituting a domestic agency that would evaluate the findings from Intergovernmental Panel on Climate Change (IPCC) assessments to improve the credibility and legitimacy of those claims and conclusions for multiple purposes. The proposed agency would consider the robustness of an assessment's conclusions by construing the evidence through the lens of Daubert rather than Frye. Part I will outline the public debate about climate science-what the debate is about and why it exists. Part II will examine the current role of the IPCC-what it is and why it has not been successful in legitimating …

No Expertise Required: How Washington D.C. Has Erred In Expanding Its Expert Testimony Requirement, Colin Miller

Faculty Publications

No abstract provided.

Griffin V. State: Setting The Bar Too High For Authenticating Social Media Evidence, Brendan W. Hogan

Maryland Law Review Online

No abstract provided.

Coming To Terms With The Uniform Probate Code's Reformation Of Wills, Wayne M. Gazur

Publications

No abstract provided.