Law Commons^™

Newsroom: Horwitz On The Role Of Grand Juries, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

The Case For Ehearsay, Jeffrey Bellin

Faculty Publications

No abstract provided.

Symposium On The Challenges Of Electronic Evidence, Daniel J. Capra, Sidney A. Fitzwater, Peter Pitegoff, Jeffrey S. Sutton, Paul Grimm, John Haried, Richard W. Vorder Bruegge, Jeffrey Bellin, Paul Scechtman, Deirdre M. Smith, Shira A. Scheindlin, David Shonka, Daniel Gelb, Andrew Goldsmith, George Paul, Paul Lippe

Faculty Publications

No abstract provided.

Jack Weinstein And The Missing Pieces Of The Hearsay Puzzle, Richard D. Friedman

Articles

For the first three quarters of the twentieth century, the Wigmore treatise was the dominant force in organizing, setting out, and explaining the American law of evidence. Since then, the first two of those roles have been taken over in large part by the Federal Rules of Evidence (Rules). And the third has been performed most notably by the Weinstein treatise. Judge Jack Weinstein was present at the creation of the Rules and before. Though he first made his name in Civil Procedure, while still a young man he joined two of the stalwarts of evidence law, Edmund Morgan and …

Yates V. United States: A Case Study In Overcriminalization, Stephen F. Smith

Journal Articles

In Yates v. United States, the Supreme Court will decide whether tossing undersized fish overboard can be prosecuted under the Sarbanes–Oxley Act of 2002, a law aimed at preventing massive frauds of the sort that led to the collapse of Enron and sent shock waves throughout the economy. Although the legal issue is narrow, the case has far-reaching significance. The Yates prosecution is a case study in the dangers posed by “overcriminalization”: the existence of multitudinous, often overlapping criminal laws that are so poorly defined that they sweep within their ambit conduct far afield from their intended target.

The …

What The Best Evidence Rule Is - And What It Isn't, Cynthia Ford

Faculty Journal Articles & Other Writings

No abstract provided.

Emotional Fact-Finding, Emily Spottswood

Scholarly Publications

No abstract provided.

Section 6: Criminal, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

On Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit, Brief Of Law Professors As Amici Curiae In Support Of Respondent, Gregory P. Warger, V. Randy D. Shauers, Susan Crump, Bennett Gershman, Victor Gold, Paul F. Rothstein, Ben Trachtenberg

U.S. Supreme Court Briefs

Petitioner asks this Court to interpret Fed. R. Evid. 606(b) as permitting statements made by jurors during deliberations to be admitted to support a motion for a new trial. The practical consequences of petitioner’s rule would be significant and problematic, not only fundamentally altering the purpose and practice of voir dire, but also providing a new, fact driven, basis for post-trial motions. These expanded proceedings would place substantial additional burdens of courts, lawyers and jurors alike. In light of existing mechanisms to ensure juror honesty and impartiality, petitioner’s rule would disrupt a well-functioning system for little to no benefit.

Death By Daubert: The Continued Attack On Private Antitrust, Christine P. Bartholomew

Journal Articles

In 2011, with five words of dicta, the Supreme Court opened Pandora’s box for private antitrust enforcement. By suggesting trial courts must evaluate the admissibility of expert testimony at class certification, the Court placed a significant obstacle in the path of antitrust class actions. Following the Supreme Court’s lead, most courts now permit parties to bring expert challenges far earlier than the traditional summary judgment or pretrial timing. Premature rejection of expert testimony dooms budding private antitrust suits — cases that play an essential role in modern antitrust enforcement. The dangers for private antitrust plaintiffs are compounded by the Court’s …

Dna Helps Clear Man's Name From Rape Charge After 24 Years, Colin Starger

All Faculty Scholarship

No abstract provided.

Summary Of Leavitt V. Siems, 130 Adv. Nev. Op. 54, Michael Paretti

Nevada Supreme Court Summaries

The Court concluded that: (1) expert alternative causation testimony is permissible; (2) ex parte communication, even when improper, only warrants a new trial when prejudice is established; and, (3) an employee’s default may not be used against an employer codefendant contesting liability.

The Religion Of Alcoholics Anonymous (Aa): Applying The Clergy Privilege To Certain Aa Communications, Ari J. Diaconis

Cornell Law Library Prize for Exemplary Student Research Papers

In the debate about AA’s status as a religion for clergy privilege purposes, there has been a lack of accurate information.315 AA originated from among the most evangelic of Christian movements, the Oxford Group. AA’s 12 Step program is so centered on a higher power as to preclude an atheist from moving beyond Step 2, let alone complete the entire 12 Step program.

AA’s historical origins and program of recovery are so faith based as to render it a religion under virtually any First Amendment definition.Indeed, courts have already defined AA as a religion in certain Establishment Clause contexts. To …

Singapore's New Discretionary Death Penalty For Drug Couriers: Public Prosecutor V Chum Tat Suan, Siyuan Chen

Research Collection Yong Pung How School Of Law

The article offers information on the history, evolution and significance of the new discretionary death penalty legislation for drug couriers in Singapore under the application of the Misuse of Drugs Act (MDA). It discusses the judicial decision of the Singaporean High Court in the case of Public Prosecutor v. Chum Tat Suan in which the Court convicted the accused with chareges of importing of more than 94.96g of diamorphine into Singapore that was punishable under section 33 of the MDA.

Trial By Google: Judicial Notice In The Information Age, Jeffrey Bellin, Andrew Guthrie Ferguson

Faculty Publications

This Article presents a theory of judicial notice for the information age. It argues that the ease of accessing factual data on the Internet allows judges and litigants to expand the use of judicial notice in ways that raise significant concerns about admissibility, reliability, and fair process. State and federal courts are already applying the surprisingly pliant judicial notice rules to bring websites ranging from Google Maps to Wikipedia into the courtroom, and these decisions will only increase in frequency in coming years. This rapidly emerging judicial phenomenon is notable for its ad hoc and conclusory nature—attributes that have the …

Summary Of L.V. Dev. Assocs. V. Eighth Jud. Dist. Ct., 130 Nev. Adv. Op. 37, Ryan Becklean

Nevada Supreme Court Summaries

The Court determined whether NRS 50.125 applies to depositions.

The Mother's Day Column: Parent-Child Evidentiary Privilege In Montana, Cynthia Ford

Faculty Journal Articles & Other Writings

In this article the author examines the lack of parent-child evidentiary privilege in Montana.

Summary Of Coleman V. State, 130 Nev. Adv. Op. 26, Ryan Becklean

Nevada Supreme Court Summaries

The Court determined three issues: (1) whether there was sufficient evidence to support a conviction of first-degree murder by child abuse; (2) whether NRS 51.345 is constitutional; and (3) whether NRS 51.345 was properly applied by the trial court to exclude testimony in this case.

Introduction To The Symposium On Child Witnesses In Sexual Abuse Cases, Carl T. Bogus

Law Faculty Scholarship

No abstract provided.

Unconstitutionality And The Rule Of Wide-Open Cross-Examination: Encroaching On The Fifth Amendment When Examining The Accused, Ronald L. Carlson, Michael S. Carlson

Scholarly Works

When Georgia adopted a new evidence code on January 1, 2013, it embraced the rule on scope of cross-examination which local courts have traditionally followed. This is the wide-open rule which permits the cross-examiner to range across the entire case, no matter how limited the direct exam. Subjects foreign to the direct can be freely explored, limited only by the rule of relevancy.

Commentators have associated the majority, more limited cross-examination methodology with American jurisprudence and the wide-ranging approach with English courts. Reflecting this divide, the Supreme Court of South Dakota recognized "two principal schools of thought" when it comes …

"Not Just A Common Criminal": The Case For Sentencing Mitigation Videos, Regina Austin

All Faculty Scholarship

Sentencing mitigation or sentencing videos are a form of visual legal advocacy that is produced on behalf of defendants for use in the sentencing phases of criminal cases (from charging to clemency). The videos are typically short (5 to 10 minutes or so) nonfiction films that explore a defendant’s background, character, and family situation with the aim of raising factual and moral issues that support the argument for a shorter or more lenient sentence. Very few examples of mitigation videos are in the public domain and available for viewing. This article provides a complete analysis of the constituent elements of …

Catalogs, Gideon Parchomovsky, Alex Stein

All Faculty Scholarship

It is a virtual axiom in the world of law that legal norms come in two prototypes: rules and standards. The accepted lore suggests that rules should be formulated to regulate recurrent and frequent behaviors, whose contours can be defined with sufficient precision. Standards, by contrast, should be employed to address complex, variegated, behaviors that require the weighing of multiple variables. Rules rely on an ex ante perspective and are therefore considered the domain of the legislator; standards embody a preference for ex post, ad-hoc, analysis and are therefore considered the domain of courts. The rules/standards dichotomy has become a …

Painful Disparities, Painful Realities, Amanda C. Pustilnik

Faculty Scholarship

Legal doctrines and decisional norms treat chronic claims pain differently than other kinds of disability or damages claims because of bias and confusion about whether chronic pain is real. This is law’s painful disparity. Now, breakthrough neuroimaging can make pain visible, shedding light on these mysterious ills. Neuroimaging shows these conditions are, as sufferers have known all along, painfully real. This Article is about where law ought to change because of innovations in structural and functional imaging of the brain in pain. It describes cutting-edge scientific developments and the impact they should make on evidence law and disability law, and, …

Impeachment By Unreliable Conviction, Anna Roberts

Faculty Scholarship

No abstract provided.

He Loves Me? He Loves Me Not? He Wants To Keep Me From Testifying?, Cynthia Ford

Faculty Journal Articles & Other Writings

This article discusses spousal privilege as it exists in Montana.

Women As Expert Witnesses: A Review Of The Literature, Tess M. S. Neal

University of Nebraska Public Policy Center: Publications

This review of women’s participation in the legal system as expert witnesses examines the empirical literature on the perceived credibility and persuasiveness of women compared with men experts. The effects of expert gender are complex and sometimes depend on the circumstances of the case. Some studies find no differences, some find favorable effects for women and others for men, and still others find that expert gender interacts with other circumstances of the case. The findings are interpreted through social role theory and the role incongruity theory of prejudice. Future directions for research are identified and implications are considered for attorneys …

"Testilying" In Family Court, John E.B. Myers

McGeorge School of Law Scholarly Articles

No abstract provided.

The Expanding Use Of Genetic And Psychological Evidence: Finding Coherence In The Criminal Law?, Michael Vitiello

McGeorge School of Law Scholarly Articles

No abstract provided.

Cipa Creep: The Classified Information Procedures Act And Its Drift Into Civil National Security Litigation, Ian Macdougall

National Security Law Program

This Note documents an incipient trend in the courts and Congress, which I call "CIPA creep," and investigates its implications for civil national security litigation. CIPA – the Classified Information Procedures Act – governs the use of classified information in federal criminal cases. No comparable statute exists in the civil context, where the judge-made state secrets privilege determines whether litigants may use sensitive government information. The prevailing scholarly and popular accounts hold that this privilege, in the tense post-9/11 security environment, transformed from a narrow evidentiary rule into a non-justiciability doctrine that cedes to executive branch officials the power to …

Evidence Of Lies And Rules Of Evidence: The Admissibility Of Fmri-Based Expert Opinion Of Witness Truthfulness, William A. Woodruff

Scholarly Works

No abstract provided.