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Articles 1 - 30 of 32
Full-Text Articles in Law
Science In The Jury Box: Jurors' Views And Understanding Of Mitochondrial Dna Evidence, Valerie P. Hans, David H. Kaye, B. Michael Dann, Erin J. Farley, Stephanie Albertson
Science In The Jury Box: Jurors' Views And Understanding Of Mitochondrial Dna Evidence, Valerie P. Hans, David H. Kaye, B. Michael Dann, Erin J. Farley, Stephanie Albertson
Cornell Law Faculty Publications
This article describes parts of an unusually realistic experiment on the comprehension of expert testimony on mitochondrial DNA (mtDNA) sequencing in a criminal trial for robbery. Specifically, we examine how jurors who responded to summonses for jury duty evaluated portions of videotaped testimony involving probabilities and statistics. Although some jurors showed susceptibility to classic fallacies in interpreting conditional probabilities, the jurors as a whole were not overwhelmed by a 99.98% exclusion probability that the prosecution presented. Cognitive errors favoring the defense were more prevalent than ones favoring the prosecution. These findings lend scant support to the legal argument that mtDNA …
Fact, Fiction And Proof In The 21st Century: Evidence And Credibility For Fact Finding By Administrative Law Judges, Lynn Mclain
Fact, Fiction And Proof In The 21st Century: Evidence And Credibility For Fact Finding By Administrative Law Judges, Lynn Mclain
All Faculty Scholarship
Handout from a panel at the NAALJ Annual Conference covering credibility.
Hearsay Law: Recent Developments In Maryland And In The Supreme Court, Lynn Mclain
Hearsay Law: Recent Developments In Maryland And In The Supreme Court, Lynn Mclain
All Faculty Scholarship
Handout from an Anne Arundel County Bar Association CLE class concerning then-recent developments in Maryland hearsay rules.
Who Knew? The Admissibility Of Subsequent Remedial Measures When Defendants Are Without Knowledge Of The Injuries, Ryan G. Vacca
Who Knew? The Admissibility Of Subsequent Remedial Measures When Defendants Are Without Knowledge Of The Injuries, Ryan G. Vacca
Akron Law Faculty Publications
Federal Rule of Evidence 407 and equivalent state court rules prohibit the introduction of subsequent remedial measures for the purpose of demonstrating negligence, culpable conduct, or product defect. The rule breaks down, however, in application and purpose, when a defendant undertakes a new safety measure after the plaintiff's injury but before the defendant had knowledge of the loss. Such a situation is not uncommon. Would-be defendants frequently improve their products and product safety, whether in response to injuries incurred by other users, business pressures, or simply advances in the state of the art and scientific knowledge. Toxic exposure cases, where …
Judging Genes: Implications Of The Second Generation Of Genetic Tests In The Courtroom, Diane E. Hoffmann, Karen H. Rothenberg
Judging Genes: Implications Of The Second Generation Of Genetic Tests In The Courtroom, Diane E. Hoffmann, Karen H. Rothenberg
Faculty Scholarship
The use of DNA tests for identification has revolutionized court proceedings in criminal and paternity cases. Now, requests by litigants to admit or compel a second generation of genetic tests – tests to confirm or predict genetic diseases and conditions – threaten to affect judicial decision-making in many more contexts. Unlike DNA tests for identification, these second generation tests may provide highly personal health and behavioral information about individuals and their relatives and will pose new challenges for trial court judges. This article reports on an original empirical study of how judges analyze these requests and uses the study results …
Inadmissible, Eh?, Jocelyn Downie, Ronalda Murphy
Inadmissible, Eh?, Jocelyn Downie, Ronalda Murphy
Articles, Book Chapters, & Popular Press
In this commentary, we respond to Stacey Tovino's invitation to reflect further on specific legal issues she raises in relation to functional magnetic resonance imaging (fMRI) and the law (Tovino 2007). Specifically, we take up the issue of evidence law. We do this from a Canadian perspective because, unlike in the United States, this topic has not "been debated for almost 10 years" here (Tovino 2007, 44).
Credibility: A Fair Subject For Expert Testimony?, Anne Poulin
Credibility: A Fair Subject For Expert Testimony?, Anne Poulin
Working Paper Series
This article explores the ways in which experts can assist the jury to assess the credibility of other witnesses and suggests analytical approaches to such expert testimony. The article argues that the courts should be more receptive to expert testimony bearing on witness credibility and engage in a more nuanced consideration of the role played by proffered expert testimony and how the role of the evidence affects its admissibility. Doing so should lead the courts to embrace the promise of the modern rules of evidence and permit experts to assist juries as they assess credibility.
The (Futile) Search For A Common Law Right Of Confrontation: Beyond Brasier's Irrelevance To (Perhaps) Relevant American Cases, Randolph N. Jonakait
The (Futile) Search For A Common Law Right Of Confrontation: Beyond Brasier's Irrelevance To (Perhaps) Relevant American Cases, Randolph N. Jonakait
Articles & Chapters
After Crawford v. Washington asserted that the Confrontation Clause constitutionalized the common law right of confrontation, cases have been suggested that illustrate that right. This short essay considers whether the 1779 English case Rex v. Brasier is such a decision, as some contend. The essay concludes that Brasier says nothing about the right of confrontation and points to a comparable framing-era, American case that indicates that general rules about hearsay and confrontation were not at issue. The essay maintains that if the historical understandings of the right of confrontation and hearsay are to control the Confrontation Clause, then framing-era, American …
Confrontation As Constitutional Criminal Procedure: Crawford'S Birth Did Not Require That Roberts Had To Die, Robert P. Mosteller
Confrontation As Constitutional Criminal Procedure: Crawford'S Birth Did Not Require That Roberts Had To Die, Robert P. Mosteller
Faculty Publications
No abstract provided.
Police Deception Before Miranda Warnings: The Case For Per Se Prohibition Of An Entirely Unjustified Practice At The Most Critical Moment, Robert P. Mosteller
Police Deception Before Miranda Warnings: The Case For Per Se Prohibition Of An Entirely Unjustified Practice At The Most Critical Moment, Robert P. Mosteller
Faculty Publications
No abstract provided.
Softening Of The Formality And Formalism Of The "Testimonial" Statement Concept, Robert P. Mosteller
Softening Of The Formality And Formalism Of The "Testimonial" Statement Concept, Robert P. Mosteller
Faculty Publications
No abstract provided.
Testing The Testimonial Concept And Exceptions To Confrontation: "A Little Child Shall Lead Them", Robert P. Mosteller
Testing The Testimonial Concept And Exceptions To Confrontation: "A Little Child Shall Lead Them", Robert P. Mosteller
Faculty Publications
No abstract provided.
Out To Lunch: Saks & Koehler Reply To Rudin & Imman's Commentary, Jonathan Koehler
Out To Lunch: Saks & Koehler Reply To Rudin & Imman's Commentary, Jonathan Koehler
Faculty Working Papers
At several points in their comment on our article in Science (1), Rudin & Inman (2, 3) asserted or clearly implied that we had been dishonest in our presentation. In each of those instances Rudin & Inman's charges are groundless, as we demonstrate below.
Had Rudin & Inman examined the actual source [see Fig. 1, right], they would have discovered that the words were indeed those of Moenssens, that they were consistent with the context in which they appeared, that Moenssens was not quoting Zain or anyone else, and that Saks & Koehler had accurately attributed the statement to its …
Probability, Policy And The Problem Of Reference Class, Robert J. Rhee
Probability, Policy And The Problem Of Reference Class, Robert J. Rhee
Faculty Scholarship
This short paper focuses on the problem of reference class in evidentiary assessment as it relates to probability and weight of evidence. The reluctance to inject mathematical formalism into the factfinding function is justified. Objective probability requires a reference class from which a proportion is derived. Probability assessments change with the reference class. If a proposition is subject to proportional comparison against two or more different references, their selection is often an inductive process. The advantage of objectivity and methodological rigor is illusory. A legal dispute is the search for a plausible understanding of the truth, and an overtly mathematized …
The Science Of Dna Identification: From The Laboratory To The Courtroom (And Beyond), David H. Kaye
The Science Of Dna Identification: From The Laboratory To The Courtroom (And Beyond), David H. Kaye
Journal Articles
This article focuses on sequences of DNA base-pairs, which are becoming increasingly important in the field of law. These DNA sequences are used by forensic scientists to discover evidence such as blood stains, semen, saliva, and hair, and has become highly useful in the courtroom with regard to exonerating the innocent and convicting the guilty. Part I of the article examines how courts may (or may not) admit DNA evidence in court through four phases: uncritical acceptance; serious challenges to analytical methods and statistical interpretation of the results; renewed acceptance of DNA evidence; and acceptance of advance systems of DNA …
The Duke Lacrosse Case, Innocence, And False Identifications: A Fundamental Failure To "Do Justice", Robert P. Mosteller
The Duke Lacrosse Case, Innocence, And False Identifications: A Fundamental Failure To "Do Justice", Robert P. Mosteller
Faculty Publications
No abstract provided.
The Perils Of Evidentiary Manipulation, Edward K. Cheng
The Perils Of Evidentiary Manipulation, Edward K. Cheng
Vanderbilt Law School Faculty Publications
The use of evidentiary rules to achieve substantive goals strikes me as a Faustian bargain, and, given Bierschbach and Stein's acknowledgedly tentative position, I hope to dissuade them of the virtues of the practice. My goal therefore is to explore briefly the potential dark side of specialized evidentiary rules. The concerns of injecting substantive goals into evidence law extend far beyond the narrow legitimacy concerns Bierschbach and Stein raise. It is not simply the question of whether we aspire to a pluralistic or majority-take-all democratic society. Rather, evidentiary manipulation threatens the legitimacy of criminal and evidence law... Bierschbach and Stein's …
Poetic (In)Justice? Rap Music Lyrics As Art, Life, And Criminal Evidence, Andrea L. Dennis
Poetic (In)Justice? Rap Music Lyrics As Art, Life, And Criminal Evidence, Andrea L. Dennis
Scholarly Works
Courts routinely admit defendant-authored rap music lyrics as substantive evidence in the adjudication of criminal cases. In doing so, courts fail to recognize that rap music lyrics are art. Rather, judges view the interpretation of rap music lyrics as a subject of common knowledge, interpret the defendant's lyrics literally, and characterize lyrics as autobiographical depictions of actual events. In making admissibility decisions, courts must give consideration to the social constraints and artistic conventions impacting the composition and interpretation of rap music lyrics. More particularly, they must understand the commercialized nature of the rap music industry, artist claims of authenticity, and …
Who Knew? Admissibility Of Subsequent Remedial Measures When Defendants Are Without Knowledge Of The Injuries, Mark G. Boyko, Ryan G. Vacca
Who Knew? Admissibility Of Subsequent Remedial Measures When Defendants Are Without Knowledge Of The Injuries, Mark G. Boyko, Ryan G. Vacca
Law Faculty Scholarship
Federal Rule of Evidence 407 prohibits the introduction of subsequent remedial measures for the purposes of demonstrating negligence, culpable conduct, or product defect. But the rule breaks down, in application and purpose, when a defendant undertakes the new safety measure after the plaintiff's injury, but before the defendant had knowledge of the loss. Such a situation is not uncommon. Would-be defendants frequently improve their products and product safety for a variety of reasons. Toxic exposure cases, where exposure often predates diagnosis of the injury by a decade or more, represent a prime example of cases where defendants are likely to …
Everything New Is Old Again: Brain Fingerprinting And Evidentiary Analogy, Alexandra J. Roberts
Everything New Is Old Again: Brain Fingerprinting And Evidentiary Analogy, Alexandra J. Roberts
Law Faculty Scholarship
Brain Fingerprinting uses electroencephalography to ascertain the presence or absence of information in a subject's brain based on his reaction to particular stimuli. As a new forensic tool, Brain Fingerprinting technology stands poised to exert a tremendous impact on the presentation and outcome of selected legal cases in the near future. It also provides a fertile case study to examine the role of analogical reasoning in the process by which lawyers, experts, judges, and the media influence how factjinders perceive and evaluate unfamiliar types of proof When juridical metaphor disguises, distorts, or destroys ideas, it ceases to serve as an …
'Impeaching' Cooperating Witnesses, Stephen A. Saltzburg
'Impeaching' Cooperating Witnesses, Stephen A. Saltzburg
GW Law Faculty Publications & Other Works
This article, discussing trial tactics, considers the scenario in which the government seeks to elicit testimony from a witness, involved in the criminal activity, that has entered into a plea agreement; the defendant offers to stipulate that the defense will make no effort to impeach the witness through the use of the plea agreement and moves to exclude it from evidence; yet the prosecutor insists upon using the agreement. The article discusses United States v. Richardson, 421 F.3d 17 (1st Cir. 2005), and United States v. McNeill, 728 F.2d 5 (1st Cir. 1984), and concludes that there is no sensible …
Nontestimonial Hearsay After Crawford, Davis And Bockting, Laird Kirkpatrick
Nontestimonial Hearsay After Crawford, Davis And Bockting, Laird Kirkpatrick
GW Law Faculty Publications & Other Works
The Sixth Amendment of the United States Constitution bars some hearsay from being introduced against criminal defendants on the ground that it would violate their right to confront the witnesses against them. In a recent series of decisions - Crawford, Davis and Bockting - the U.S. Supreme Court has narrowed the scope of the Confrontation Clause by interpreting it to govern only testimonial hearsay. This article criticizes the analysis and process by which the Court reached its conclusion that the Confrontation Clause has no application to nontestimonial hearsay and raises questions of history and policy about the possible dangers of …
Brady And Jailhouse Snitches, Paul C. Giannelli
Brady And Jailhouse Snitches, Paul C. Giannelli
Faculty Publications
No abstract provided.
The Principled Exception And The Forgotten Criterion, Steve Coughlan
The Principled Exception And The Forgotten Criterion, Steve Coughlan
Articles, Book Chapters, & Popular Press
The principled exception to the hearsay rule is routinely described as being settled by the "twin criteria" of necessity and reliability. In fact a third criterion is also — or at least ought to be — at play: that admitting the evidence through hearsay would not undermine any other rule of evidence. The Court has made reference to this third criterion in the past, but it has largely been ignored in both Supreme Court and lower court decisions. The recent judgement in Couture depends in a limited way on that question, and so it marks an opportunity to articulate the …
Daubert Challenges To Firearms (“Ballistics”) Identifications, Paul C. Giannelli
Daubert Challenges To Firearms (“Ballistics”) Identifications, Paul C. Giannelli
Faculty Publications
No abstract provided.
"Remarkable Stratagems And Conspiracies": How Unscrupulous Lawyers And Credulous Judges Created An Exception To The Hearsay Rule, Marianne Wesson
"Remarkable Stratagems And Conspiracies": How Unscrupulous Lawyers And Credulous Judges Created An Exception To The Hearsay Rule, Marianne Wesson
Publications
This paper, a companion piece to the author's earlier exploration of the case of Mutual Life Insurance Company v. Hillmon, describes the remarkable record of unethical conduct compiled by the eminent and respectable attorneys for the insurance companies in the course of that litigation. When married with the Supreme Court Justices' uncritical willingness to accept the false narrative thus contrived, these attorneys' misconduct led to the creation of an important rule of evidence - a rule of questionable merit. This article aims to remind us that lawyers who are willing to distort the process of litigation have the power …
Evidentiary Wisdom And Blinders In Perspective: Thoughts On Misjudging, Elaine W. Shoben
Evidentiary Wisdom And Blinders In Perspective: Thoughts On Misjudging, Elaine W. Shoben
Scholarly Works
Empirical studies serve to enlighten the law, even when they simply confirm the wisdom of existing rules. Chris Guthrie's article, Misjudging, primarily serves that useful function—confirming the wisdom of existing rules—even though the author sought to establish something different. Guthrie's article applies insights from cognitive psychology to the resolution of legal disputes and presents some empirical proof of the effect of the application. He concludes that three sets of “blinders”—informational, cognitive, and attitudinal—affect the ability of judges to reach correct resolutions of disputes. He therefore recommends further appreciation of the ability of arbitration and mediation to avoid some of the …
On The Fortieth Anniversary Of The Miranda Case: Why We Needed It, How We Got It--And What Happened To It, Yale Kamisar
On The Fortieth Anniversary Of The Miranda Case: Why We Needed It, How We Got It--And What Happened To It, Yale Kamisar
Articles
Last year (the year I gave the talk on which this article is based) marked the fortieth anniversary of Miranda v. Arizona,' one of the most praised, most maligned-and probably one of the most misunderstood-Supreme Court cases in American history. It is difficult, if not impossible, to evaluate Miranda without looking back at the test for the admissibility of confessions that preceded it.
Doctrinal Issues In Evidence And Proof, Paul F. Rothstein
Doctrinal Issues In Evidence And Proof, Paul F. Rothstein
Georgetown Law Faculty Publications and Other Works
The word evidence ordinarily means the statements, events, items, or sensory perceptions that suggest the existence or nonexistence of, or truth or falsity of, another fact. Thus, one may say, “hoofbeats are evidence a horse may be passing.” Proof is similar in meaning but may connote more certainty.
Evidence can also mean the study of either (1) how people make such inferences (especially when conjoined with the word proof) or (2) how law regulates information admissibility in the judicial context. Evidence in the latter sense is the name of a standard law school course in common law countries and a …
A History Of Representations Of Justice: Coincident Preoccupations Of Law And Film, Jessica Silbey
A History Of Representations Of Justice: Coincident Preoccupations Of Law And Film, Jessica Silbey
Faculty Scholarship
The American trial and the art of cinema share certain epistemological tendencies. Both stake claims to an authoritative form of knowledge based on the indubitable quality of observable phenomena. Both are preoccupied (sometimes to the point of self-defeat) with sustaining the authority that underlies the knowledge produced by visual perception. The American trial and art of cinema also increasingly share cultural space. Although the trial film (otherwise known as the courtroom drama) is as old as the medium of film the recent spate of popular trial films, be they fictional such as Runaway Jury or documentary such as Capturing the …