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2005

Evidence

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Full-Text Articles in Law

Detection Avoidance, Chris William Sanchirico Nov 2005

Detection Avoidance, Chris William Sanchirico

ExpressO

In practice, the problem of law enforcement is half a matter of what the government does to catch violators and half a matter of what violators do to avoid getting caught. In the theory of law enforcement, however, although the state’s efforts at "detection" play a decisive role, offenders’ efforts at "detection avoidance" are largely ignored. Always problematic, this imbalance has become critical in recent years as episodes of corporate misconduct spur new interest in punishing process crimes like obstruction of justice and perjury. This article adds detection avoidance to the existing theoretical frame with an eye toward informing ...


Criminal Law And Procedure, Marla G. Decker, Stephen R. Mccullough Nov 2005

Criminal Law And Procedure, Marla G. Decker, Stephen R. Mccullough

University of Richmond Law Review

This article examines the most significant cases from the Supreme Court of Virginia and the Court of Appeals of Virginia over the past year. The article also outlines some of the most consequential changes to the law enacted by the Virginia General Assembly during the 2005 Session in the field of criminal law and procedure.


A Shock To The System: Analyzing The Conflict Among Courts Over Whether And When Excited Utterances May Follow Subsequent Startling Occurrences In Rape And Sexual Assault Cases, Colin Miller Oct 2005

A Shock To The System: Analyzing The Conflict Among Courts Over Whether And When Excited Utterances May Follow Subsequent Startling Occurrences In Rape And Sexual Assault Cases, Colin Miller

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.


Post-Crawford: Time To Liberalize The Substantive Admissibility Of A Testifying Witness's Prior Consistent Statements, Lynn Mclain Oct 2005

Post-Crawford: Time To Liberalize The Substantive Admissibility Of A Testifying Witness's Prior Consistent Statements, Lynn Mclain

All Faculty Scholarship

The United States Supreme Court's 1995 decision in Tome v. United States has read Federal Rule of Evidence 801(d)(1)(B) to prevent the prosecution's offering a child abuse victim's prior consistent statements as substantive evidence. As a result of that decision, the statements will also be inadmissible even for the limited purpose of helping to evaluate the credibility of a child, if there is a serious risk that the out-of-court statements would be used on the issue of guilt or innocence.

Moreover, after the Court's March 2004 decision in Crawford v. Washington, which redesigned ...


When Mohammed Goes To The Mountain: The Evidentiary Value Of A View, Layne S. Keele Oct 2005

When Mohammed Goes To The Mountain: The Evidentiary Value Of A View, Layne S. Keele

Indiana Law Journal

No abstract provided.


Using Suppression Hearing Testimony To Prove Good Faith Under United States V. Leon, John E. Taylor Oct 2005

Using Suppression Hearing Testimony To Prove Good Faith Under United States V. Leon, John E. Taylor

Law Faculty Scholarship

No abstract provided.


The Accuracy And Manipulability Of Lost Profits Damages Calculations: Should The Trier Of Fact Be "Reasonably Certain"?, Jonathan T. Tomlin, David Merrell Sep 2005

The Accuracy And Manipulability Of Lost Profits Damages Calculations: Should The Trier Of Fact Be "Reasonably Certain"?, Jonathan T. Tomlin, David Merrell

ExpressO

The accuracy and manipulability of calculations for lost profits damages are critical determinants of the ability of harmed parties to receive just compensation in a wide range of legal cases including antitrust, fraud, false advertising, intellectual property infringement, and breach of contract. They are also important determinants of the deterrent effects of the law. Using a sample of over 5,000 U.S. firms, we show that simple damages methods are capable of being substantially inaccurate. We also show that damages methods in general are highly susceptible to manipulation. In the absence of reasonable justifications for why particular data sets ...


Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor Sep 2005

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.


True Lies: The Constitutional And Evidentiary Bases For Admitting Prior False Accusation Evidence In Sexual Assault Prosecutions, Jules Epstein Aug 2005

True Lies: The Constitutional And Evidentiary Bases For Admitting Prior False Accusation Evidence In Sexual Assault Prosecutions, Jules Epstein

ExpressO

The admission of false accusation evidence in sexual assault prosecutions has been ruled on inconsistently by courts nationally. This article identifies the constitutional bases for admitting false accusation evidence as both impeachment and substantive (non-character) proof, and re-focuses Confrontation Clause analysis post-Crawford on the scope of the cross-examination right; offers a definition for what constitutes a false accusation and the level of proof requisite to its admission; and addresses social and policy concerns attendant to its presentation.


Interdisciplinary Trends In Evidence Scholarship, Roger C. Park, Michael J. Saks Aug 2005

Interdisciplinary Trends In Evidence Scholarship, Roger C. Park, Michael J. Saks

ExpressO

Abstract In recent decades, evidence scholarship published in leading law reviews has become markedly interdisciplinary, while treatises and texts continue to fill the need for doctrinal analysis. The authors describe this trend and set forth its recent history. They review and critique scholarship that applies concepts and insights from psychology, probability theory, philosophy, feminism, and economics to the law of evidence. They also comment on the pitfalls, benefits and prospects of interdisciplinary evidence scholarship


Learning The Wrong Lessons From "An American Tragedy": A Critique Of The Berger-Twerski Informed Choice Proposal, David E. Bernstein Aug 2005

Learning The Wrong Lessons From "An American Tragedy": A Critique Of The Berger-Twerski Informed Choice Proposal, David E. Bernstein

George Mason University School of Law Working Papers Series

This paper is a critique of Margaret Berger and Aaron Twerski, “Uncertainty and Informed Choice: Unmasking Daubert”, forthcoming the Michigan Law Review. Berger and Twerski propose that courts recognize a cause of action that would allow plaintiffs who claim injury from pharmaceutical products, but who do not have sufficient evidence to prove causation, to recover damages for deprivation of informed choice. Berger and Twerski claim inspiration from the litigation over allegations that the morning sickness drug Bendectin caused birth defects. Considering the criteria Berger and Twerski suggest for their proposed cause of action in the context of Bendectin, it appears ...


The Lessons Of People V. Moscat: Confronting Judicial Bias In Domestic Violence Cases Interpreting Crawford V. Washington, David Jaros Jul 2005

The Lessons Of People V. Moscat: Confronting Judicial Bias In Domestic Violence Cases Interpreting Crawford V. Washington, David Jaros

All Faculty Scholarship

Crawford v. Washington was a groundbreaking decision that radically redefined the scope of the Confrontation Clause. Nowhere has the impact of Crawford and the debate over its meaning been stronger than in the context of domestic violence prosecutions. The particular circumstances that surround domestic violence cases 911 calls that record cries for help and accusations, excited utterances made to responding police officers, and the persistent reluctance of complaining witnesses to cooperate with prosecutors -- combine to make the introduction of "out-of-comment statements" a critical component of many domestic violence prosecutions. Because domestic violence cases are subject to a unique set of ...


Testimonial And The Formalistic Definition -- The Case For An "Accusatorial" Fix, Robert P. Mosteller Jul 2005

Testimonial And The Formalistic Definition -- The Case For An "Accusatorial" Fix, Robert P. Mosteller

Faculty Publications

No abstract provided.


Dickerson V. United States: The Case That Disappointed Miranda's Critics--And Then Its Supporters, Yale Kamisar Jun 2005

Dickerson V. United States: The Case That Disappointed Miranda's Critics--And Then Its Supporters, Yale Kamisar

University of San Diego Public Law and Legal Theory Research Paper Series

It is difficult, if not impossible, to discuss Dickerson v. United States intelligently without discussing Miranda, whose constitutional status Dickerson reaffirmed (or, one might say, resuscitated). It is also difficult, if not impossible, to discuss the Dickerson case intelligently without discussing cases the Court has handed down in the five years since Dickerson was decided. The hard truth is that in those five years the reaffirmation of Miranda’s constitutional status has become less and less meaningful.

In this paper I want to focus on the Court’s characterization of statements elicited in violation of the Miranda warnings as not ...


Girl Who Cried Wolf: Missouri's New Approach To Evidence Of Prior False Allegations, The, Jennifer Koboldt Bukowsky Jun 2005

Girl Who Cried Wolf: Missouri's New Approach To Evidence Of Prior False Allegations, The, Jennifer Koboldt Bukowsky

Missouri Law Review

After a trial by jury, Jeffrey D. Long was convicted of forcibly raping and sodomizing Debbie Flower. The Missouri Supreme Court reversed the conviction because the exclusion of evidence that Flower had falsely accused another person of making threats and assaulting her deprived Long of a full opportunity to present his defense. Previously, Missouri's rules of evidence dictated that, although a witness could be cross-examined about having made false allegations against persons other than the defendant, extrinsic evidence of such conduct was not admissible. The Missouri Supreme Court changed that rule by a 4-3 decision in State v. Long ...


Securing A Journalist's Testimonial Privilege In The International Criminal Court, Anastasia Heeger May 2005

Securing A Journalist's Testimonial Privilege In The International Criminal Court, Anastasia Heeger

San Diego International Law Journal

This Article argues that given the unique and significant contribution of journalists to uncovering and documenting war crimes, the ICC should amend its evidentiary rules to recognize a qualified journalist's privilege. In doing so, the ICC should clearly identify who may benefit from such a privilege, clarify a procedure for balancing the need of reportorial testimony against prosecution and defense interests, and, lastly provide for mandatory consultations between the court and affected news organizations or journalists before allowing the issuance of a subpoena. Such clarity will benefit not only journalists working in war zones and the ICC, but will ...


Can Judges Ignore Inadmissible Information? The Difficulty Of Deliberately Disregarding, Andrew J. Wistrich, Chris Guthrie, Jeffrey J. Rachlinski Apr 2005

Can Judges Ignore Inadmissible Information? The Difficulty Of Deliberately Disregarding, Andrew J. Wistrich, Chris Guthrie, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Due process requires courts to make decisions based on the evidence before them without regard to information outside of the record. Skepticism about the ability of jurors to ignore inadmissible information is widespread. Empirical research confirms that this skepticism is well-founded. Many courts and commentators, however, assume that judges can accomplish what jurors cannot. This article reports the results of experiments we have conducted to determine whether judges can ignore inadmissible information. We found that the judges who participated in our experiments struggled to perform this challenging mental task. The judges had difficulty disregarding demands disclosed during a settlement conference ...


A Blow To Domestic Violence Victims: Applying The "Testimonial Statements" Test In Crawford V. Washington, Melissa Moody Apr 2005

A Blow To Domestic Violence Victims: Applying The "Testimonial Statements" Test In Crawford V. Washington, Melissa Moody

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.


Examining The Repercussions Of Crawford: The Uncertain Future Of Hearsay Evidence In Missouri, Jon W. Jordan Apr 2005

Examining The Repercussions Of Crawford: The Uncertain Future Of Hearsay Evidence In Missouri, Jon W. Jordan

Missouri Law Review

While making a course correction in Confrontation Clause jurisprudence, the United States Supreme Court leaves much uncertainty in its wake. Some hearsay evidence previously admissible under a "firmly rooted hearsay exception" or because it possessed "particularized guarantees of trustworthiness" will no longer be allowed under the Court's new standard. However, the Court's failure to define its key terms leaves practitioners in desparate need of further clarification. This Note is intended to assist Missouri practitioners in understanding the Supreme court's new Confrontation Clause standard as stated in Crawford v. Washington and provide practical guidance for its application. The ...


Behavioral Science Evidence In The Age Of Daubert: Reflections Of A Skeptic, Mark S. Brodin Apr 2005

Behavioral Science Evidence In The Age Of Daubert: Reflections Of A Skeptic, Mark S. Brodin

Boston College Law School Faculty Papers

The piece briefly traces the history of the use of social science in the courtroom, and proceeds to critically measure this form of proof (particularly “syndrome” evidence) against both the reliability standards imposed by Daubert v. Merrell Dow Pharmaceuticals, Inc. and the traditional requirements for admission of expert testimony. Drawing upon empirical research concerning juries and decision-making as well as transcripts of the use of behavioral evidence at trial, I conclude that much of this testimony should be rejected. Rather than providing meaningful assistance to the jury, social science experts can distort the accuracy of the fact-finding process and imperil ...


Cross-Examining The Brain: A Legal Analysis Of Neural Imaging For Credibility Impeachment, Charles N. W. Keckler Mar 2005

Cross-Examining The Brain: A Legal Analysis Of Neural Imaging For Credibility Impeachment, Charles N. W. Keckler

ExpressO

The last decade has seen remarkable process in understanding ongoing psychological processes at the neurobiological level, progress that has been driven technologically by the spread of functional neuroimaging devices, especially magnetic resonance imaging, that have become the research tools of a theoretically sophisticated cognitive neuroscience. As this research turns to specification of the mental processes involved in interpersonal deception, the potential evidentiary use of material produced by devices for detecting deception, long stymied by the conceptual and legal limitations of the polygraph, must be re-examined. Although studies in this area are preliminary, and I conclude they have not yet satisfied ...


Aedpa Deference And The Undeveloped State Factual Record: Monroe V. Angelone And New Evidence, Rachel E. Wheeler Mar 2005

Aedpa Deference And The Undeveloped State Factual Record: Monroe V. Angelone And New Evidence, Rachel E. Wheeler

William & Mary Law Review

No abstract provided.


Cross-Examining The Brain: A Legal Analysis Of Neural Imaging For Credibility Impeachment, Charles N. W. Keckler Feb 2005

Cross-Examining The Brain: A Legal Analysis Of Neural Imaging For Credibility Impeachment, Charles N. W. Keckler

George Mason University School of Law Working Papers Series

The last decade has seen remarkable process in understanding ongoing psychological processes at the neurobiological level, progress that has been driven technologically by the spread of functional neuroimaging devices, especially magnetic resonance imaging, that have become the research tools of a theoretically sophisticated cognitive neuroscience. As this research turns to specification of the mental processes involved in interpersonal deception, the potential evidentiary use of material produced by devices for detecting deception, long stymied by the conceptual and legal limitations of the polygraph, must be re-examined. Although studies in this area are preliminary, and I conclude they have not yet satisfied ...


Dramatic Moments In The Pursuit Of Justice, Ronald L. Carlson Jan 2005

Dramatic Moments In The Pursuit Of Justice, Ronald L. Carlson

Presentations and Speeches

Callaway Chair of Law Emeritus Ronald L. Carlson talks about significant turning points in several high profile cases at the University of Georgia's annual Founders' Day Lecture.


Witness Impeachment: Its Art And Rationales, Jules Epstein Jan 2005

Witness Impeachment: Its Art And Rationales, Jules Epstein

Jules Epstein

No abstract provided.


Admitting The Accused’S Criminal History: The Trouble With Rule 404(B), Thomas J. Reed Jan 2005

Admitting The Accused’S Criminal History: The Trouble With Rule 404(B), Thomas J. Reed

Thomas J Reed

No abstract provided.


The Fall Of The Confession Era, Kenworthey Bilz Jan 2005

The Fall Of The Confession Era, Kenworthey Bilz

Kenworthey Bilz

This book review-essay of Solan & Tiersma’s SPEAKING OF CRIME argues that with the advent of new technologies such as improvements in DNA identification, fMRI ‘lie detector’ tests, and the like, courts will rely less and less on confessions altogether, rendering obsolete much of the doctrine that currently surrounds linguistic interpretation (and other markers) of consent and coercion.


The Tricky Nature Of Proving Genocide Against Saddam Hussein Before The Iraqi Special Tribunal, Michael J. Kelly Jan 2005

The Tricky Nature Of Proving Genocide Against Saddam Hussein Before The Iraqi Special Tribunal, Michael J. Kelly

Cornell International Law Journal

In this article in the Symposium on Milosevic & Hussein on Trial, the author discusses procedural challenges to proving genocide in the trial of Saddam Hussein to argue that the legitimacy of the Iraqi Special Tribunal (IST) & the proof of genocide rest on a sense of fairness, transparency, & completion of trials on a reasonable schedule. The Geneva Convention definition of genocide is discussed in terms of the impact of general verses specific intent in the International Criminal Tribunal for the former Yugoslavia (ICTY). A historical analysis of the colonial creation of Iraq relates Saddam's style of government control to his ...


Evidence—Sixth Amendment And The Confrontation Clause—Testimonial Trumps Reliable: The United States Supreme Court Reconsiders Its Approach To The Confrontation Clause. Crawford V. Washington, 541 U.S. 36 (2004)., Kristen Sluyter Jan 2005

Evidence—Sixth Amendment And The Confrontation Clause—Testimonial Trumps Reliable: The United States Supreme Court Reconsiders Its Approach To The Confrontation Clause. Crawford V. Washington, 541 U.S. 36 (2004)., Kristen Sluyter

University of Arkansas at Little Rock Law Review

No abstract provided.


Circumstantial Evidence Of Doping: Balco And Beyond, James A.R. Nafziger Jan 2005

Circumstantial Evidence Of Doping: Balco And Beyond, James A.R. Nafziger

Marquette Sports Law Review

No abstract provided.