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Articles 31 - 60 of 76
Full-Text Articles in Law
Even Better Than The Real Thing: How Courts Have Been Anything But Liberal In Finding Genuine Questions Raised As To The Authenticity Of Originals Under Rule 1003, Colin Miller
Colin Miller
In the common law days, parties seeking to prove the contents of documents were required to produce the original documents or account for their nonproduction. Pursuant to the Best Evidence Rule, if such parties neither produced the originals nor accounted for their nonproduction, courts prevented them from proving their contents through secondary evidence such as handwritten copies or testimony. With the invention of new technologies such as the process of xerography, however, states in the twentieth century began enacting exceptions to the Best Evidence Rule which allowed for the admission of duplicates created without manual transcription even when proponents could …
The Phoenix From The Ash: Proving Discrimination By Comparators, Charles A. Sullivan
The Phoenix From The Ash: Proving Discrimination By Comparators, Charles A. Sullivan
Charles A. Sullivan
Hidden beneath judicial and scholarly obsession with formal proof structures for individual disparate treatment cases is a simpler, more direct method of establishing discrimination. Taking the “disparate treatment” label seriously, I argue that “comparator” proof requires merely that the plaintiff identify a similarly situated person of another race or the opposite sex who was treated more favorably than plaintiff. Such proof is increasingly driving litigation in the lower courts, which suggests that comparators should be moved to center stage in the antidiscrimination project However, like other efforts, the comparator approach risks falling victim to the general hostility of the courts …
Litigation Discovery Cannot Be Optimal But Could Be Better: The Economics Of Improving Discovery Timing In A Digital Age, Scott A. Moss
Litigation Discovery Cannot Be Optimal But Could Be Better: The Economics Of Improving Discovery Timing In A Digital Age, Scott A. Moss
Scott A Moss
Cases are won and lost in discovery, yet discovery draws surprisingly little academic attention. Most scholarship focuses on how much discovery to allow, not how courts decide discovery disputes – which, unlike trials, occur in most cases. Today, much evidence is “e-discovery” – imprudent emails or still-lingering “deleted” files – making costly discovery battles increasingly salient. But the e-discovery rules are not truly new, just a strengthening of old cost/benefit “proportionality” limits on discovery enacted when the spread of photocopiers similarly increased the amount of discovery. Proportionality limits are topic of broad consensus among civil procedure scholars as well as …
Race, Genes, And Justice: A Call To Reform The Presentation Of Forensic Dna Evidence In Criminal Trials, Jonathan Kahn
Race, Genes, And Justice: A Call To Reform The Presentation Of Forensic Dna Evidence In Criminal Trials, Jonathan Kahn
Jonathan Kahn
The article considers how and when, if at all, is it appropriate to use race in presenting forensic DNA evidence in a court of law? This relatively straightforward question has been wholly overlooked by legal scholars. By pursuing it, this article promises to transform fundamentally the presentation forensic DNA evidence. Currently, it is standard practice for prosecutors to use race in presenting the odds that a given defendant’s DNA matches DNA found at a crime scene. This article takes an interdisciplinary approach to question the validity of this widespread but largely uninterrogated practice. It examines how race came to enter …
Eyes Wide Shut: How Ignorance Of The Common Interest Doctrine Can Compromise Informed Consent, Katharine Schaffzin
Eyes Wide Shut: How Ignorance Of The Common Interest Doctrine Can Compromise Informed Consent, Katharine Schaffzin
Katharine Traylor Schaffzin
The common interest doctrine offers many time and cost-saving advantages to clients. It also carries with it the consequence that counsel representing a party to a common interest group accept ethical or fiduciary responsibilities on behalf of the other members of that group. This pseudo-attorney-client relationship may limit an attorney's abilities to fulfill her ethical obligations to her client. This article explores the mechanisms for protecting the client and the attorney before entering a common interest arrangement.
Hyperbole And The Laws Of Evidence: Why Chicken Is Generally Wrong, A Ten Year Retrospective On Fre 413-415, Thomas A. Vogele
Hyperbole And The Laws Of Evidence: Why Chicken Is Generally Wrong, A Ten Year Retrospective On Fre 413-415, Thomas A. Vogele
Thomas A Vogele
The Federal Rules of Evidence 413 through 415 were hailed by their proponents as a critical tool in combating the scourge of rape and child sexual assault. The new rules' critics claimed that passage of such radical changes would be the death knell for due process, civil liberties, and the presumption of innocence.
As with so many hotly debated issues in our hyper-polarized society, the truth lay somewhere in between. This paper examines the rules, the hype in favor and against them, the objective statistics, and why the passage of the new rules was not so much a radical departure …
Exculpatory Evidence, Ethics, And The Road To The Disbarment Of Mike Nifong: The Critical Importance Of Full Open-File Discovery, Robert P. Mosteller
Exculpatory Evidence, Ethics, And The Road To The Disbarment Of Mike Nifong: The Critical Importance Of Full Open-File Discovery, Robert P. Mosteller
Faculty Publications
No abstract provided.
Coordinating In The Shadow Of The Law: Two Contextualized Tests Of The Focal Point Theory Of Legal Compliance, Richard H. Mcadams, Janice Nadler
Coordinating In The Shadow Of The Law: Two Contextualized Tests Of The Focal Point Theory Of Legal Compliance, Richard H. Mcadams, Janice Nadler
Faculty Working Papers
In situations where people have an incentive to coordinate their behavior, law can provide a framework for understanding and predicting what others are likely to do. According to the focal point theory of expressive law, the law's articulation of a behavior can sometimes create self-fulfilling expectations that it will occur. Existing theories of legal compliance emphasize the effect of sanctions or legitimacy; we argue that, in addition to sanctions and legitimacy, law can also influence compliance simply by making one outcome salient. We tested this claim in two experiments where sanctions and legitimacy were held constant. Experiment 1 demonstrated that …
Law, Psychology & Morality, Kenworthey Bilz, Janice Nadler
Law, Psychology & Morality, Kenworthey Bilz, Janice Nadler
Faculty Working Papers
In a democratic society, law is an important means to express, manipulate, and enforce moral codes. Demonstrating empirically that law can achieve moral goals is difficult. Nevertheless, public interest groups spend considerable energy and resources to change the law with the goal of changing not only morally-laden behaviors, but also morally-laden cognitions and emotions. Additionally, even when there is little reason to believe that a change in law will lead to changes in behavior or attitudes, groups see the law as a form of moral capital that they wish to own, to make a statement about society. Examples include gay …
An Uncertain Privilege: Implied Waiver And The Eviseration Of The Psychotherapist Patient Privilege In The Feral Courts, Deirdre M. Smith
An Uncertain Privilege: Implied Waiver And The Eviseration Of The Psychotherapist Patient Privilege In The Feral Courts, Deirdre M. Smith
Faculty Publications
Twelve years ago in Jaffee v. Redmond, 518 U.S. 1 (1996), the United States Supreme Court first recognized a federal common law psychotherapist-patient privilege and held that federal courts must protect confidential communications arising in psychotherapy despite the "likely evidentiary benefit" of such communications. This article examines the sharply conflicting authority in the federal courts that has developed since that landmark decision on the question of whether a plaintiff to a civil lawsuit waives the psychotherapist-patient privilege merely by seeking emotional distress damages. The federal courts' inconsistent and unprincipled approaches to this question renders the privilege itself nearly illusory and …
The Florida “Three Strikes Rule” For Medical Malpractice Claims: Using A Clear And Convincing Evidence Standard To Tighten The Strike Zone For Physician Licensure Revocation, Laura J. Spencer
Saint Louis University Public Law Review
No abstract provided.
Bosnia V. Serbia: Lessons From The Encounter Of The International Court Of Justice With The International Criminal Tribunal For The Former Yugoslavia, Rebecca Hamilton, Richard J. Goldstone
Bosnia V. Serbia: Lessons From The Encounter Of The International Court Of Justice With The International Criminal Tribunal For The Former Yugoslavia, Rebecca Hamilton, Richard J. Goldstone
Articles in Law Reviews & Other Academic Journals
This article uses the recent judgment of the ICJ in Bosnia v. Serbia to highlight the potential problems that arise when international courts have to adjudicate on overlapping situations. It describes the dispute between the ICJ and the ICTY on the appropriate legal standard for the attribution of state responsibility, and finds that the ICJ’s approach in this case suggests that those keen to minimize the fragmentation of international law between adjudicative bodies should not overlook the need for consistency within those bodies.With regard to fact finding, this article raises serious concerns about the manner in which the ICJ relied …
More Views From The Ivory Tower: The Kiss Principle - Keep It Simple, Solicitor, David Spratt
More Views From The Ivory Tower: The Kiss Principle - Keep It Simple, Solicitor, David Spratt
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Revisiting The Application Of The Exclusionary Rule To The Good Faith Exceptions In Light Of Hudson V.Michigan, Shenequa L. Grey
Revisiting The Application Of The Exclusionary Rule To The Good Faith Exceptions In Light Of Hudson V.Michigan, Shenequa L. Grey
University of San Francisco Law Review
This Article examines other instances where the Supreme Court has historically held evidence inadmissible to determine whether such evidence should now be admissible in light of the Hudson v. Michigan analysis.
Why We Should Abandon The Balance Metaphor: A New Approach To Counterterrorism Policy, Stuart Macdonald
Why We Should Abandon The Balance Metaphor: A New Approach To Counterterrorism Policy, Stuart Macdonald
ILSA Journal of International & Comparative Law
One of the central objectives in counterterrorism policy is commonly said to be to balance the competing demands of security and liberty.
The Immoral Application Of Exclusionary Rules, Todd E. Pettys
The Immoral Application Of Exclusionary Rules, Todd E. Pettys
Todd E. Pettys
In both civil and criminal cases today, judges routinely withhold relevant evidence from jurors, fearing that jurors would use it in an irrational or legally impermissible manner. Forcing jurors to take responsibility for a verdict based upon a government-screened pool of evidence stands in sharp contrast to the way we ordinarily think about government efforts to withhold potentially useful information from citizens faced with important decisions. The First Amendment’s guarantee of the freedom of speech, for example, reflects a moral judgment that the government offends its citizens’ deliberative autonomy when it restricts speech based upon fears about what that speech …
The Curious Appellate Judge: Ethical Limits On Independent Research, Beth Thornburg
The Curious Appellate Judge: Ethical Limits On Independent Research, Beth Thornburg
Beth Thornburg
Appellate judges in the twenty-first century find themselves in a world in which litigation – both civil and criminal -- involves a vast array of complex and technical factual disputes. These lawsuits, in turn, may cause judges to seek a greater level of expertise in order to deal competently with the evidence that will be relevant to the disputes. At the same time, advances in communication technology have brought the world’s library to the courthouse, requiring no onerous trips across town or index searches but only the click of a mouse. When judges feel the need for additional information, the …
Wrongly Accused Redux: How Race Contributes To Convicting The Innocent: The Informants Example, Andrew E. Taslitz
Wrongly Accused Redux: How Race Contributes To Convicting The Innocent: The Informants Example, Andrew E. Taslitz
Andrew E. Taslitz
This article analyzes five forces that may raise the risk of convicting the innocent based upon the suspect's race: the selection, ratchet, procedural justice, bystanders, and aggressive-suspicion effects. In other words, subconscious forces press police to focus more attention on racial minorites, the ratchet makes this focus every-increasing, the resulting sense by the community of unfair treatment raises its involvment in crime while lowering its willingness to aid the police in resisting crime, innocent persons suffer when their skin color becomes associated with criminality, and the police use more aggressive techniques on racial minorities in a way that raises the …
Case Comment - People V. Nelson: A Tale Of Two Statistics, David H. Kaye
Case Comment - People V. Nelson: A Tale Of Two Statistics, David H. Kaye
Journal Articles
In recent years, defendants who were identified as a result of a search through a database of DNA profiles have argued that the probability that a randomly selected person would match a crime-scene stain overstates the probative value of the match. The statistical literature is divided, with most statisticians who have written on the subject rejecting this claim. In People v. Nelson, the Supreme Court of California held that when the random-match probability is so small as to make it exceedingly unlikely that any unrelated individual has the incriminating DNA profile, this statistic is admissible in a database-search case. …
Finding A Happy And Ethical Medium Between A Prosecutor Who Believes The Defendant Didn't Do It And The Boss Who Says That He Did, Melanie D. Wilson
Finding A Happy And Ethical Medium Between A Prosecutor Who Believes The Defendant Didn't Do It And The Boss Who Says That He Did, Melanie D. Wilson
Scholarly Articles
The increasing prevalence of DNA testing has proven that, at times, our criminal justice system renders wrongful convictions. Extrapolating from such significant errors, we can infer that smaller mistakes also occur. Because criminal prosecution is not an exact science, like DNA evidence, prosecutors can disagree about aspects of a case-whether to reward a cooperating defendant with a sentence reduction, whether to indict a defendant under a mandatory minimum statute, and even whether a defendant is guilty of a crime. This Essay examines the tension that arises when the prosecutor handling a case disagrees with her boss about one or more …
The Individualization Fallacy In Forensic Science Evidence, Michael J. Saks, Jonathan J. Koehler
The Individualization Fallacy In Forensic Science Evidence, Michael J. Saks, Jonathan J. Koehler
Vanderbilt Law Review
Forensic identification science involves two fundamental steps. The first step is to compare a questioned item of evidence to an exemplar from a known source and judge whether they appear so alike that they can be said to match. The second step is to assess the meaning of that reported match: What is the probability that the questioned and the known originated from the same source?
Different risks of error are present at each step. The risk of error in the first step is that a reported match between a questioned and a known sample might not really match. Even …
Bad Character Evidence And Reprehensible Behaviour, James Goudkamp
Bad Character Evidence And Reprehensible Behaviour, James Goudkamp
Faculty of Law - Papers (Archive)
The Criminal Justice Act 2003 ushered in a new system for determining the admissibility of bad character evidence in criminal proceedings. Unfortunately, this system is riddled with anomalies and plagued by obscurity. These problems contaminate its core as it is unclear what constitutes 'bad character' evidence. This uncertainty is in large part due to the fact that the Act offers little clue as to the meaning of the words 'reprehensible behaviour', evidence of which is 'bad character' evidence. Accordingly, this article asks whether the decisions in which the expression 'reprehensible behaviour' has fallen for consideration shed light on its content. …
Minnesota's Distortion Of Rule 609, Ted Sampsell-Jones
Minnesota's Distortion Of Rule 609, Ted Sampsell-Jones
Faculty Scholarship
Rule of Evidence 609, which governs the admission of prior convictions of a witness for purposes of impeachment, occupies an important place in the day to day operation of American criminal trials. The rule is a compromise that reflects these competing values. It admits some prior convictions but not all. Crimen falsi offenses such as perjury and fraud are automatically admissible under 609(a)(2). All other felonies are analyzed under the balancing test of 609(a)(1), which allows the admission of a defendant-witness's crimes if the “probative value of admitting this evidence outweighs its prejudicial effect to the accused.” The rule seeks …
Interpreting The Phrase "Newly Discovered Evidence": May Previously Unavailable Exculpatory Testimony Serve As The Basis For A Motion For A New Trial Under Rule 33?, Mary Ellen Brennan
Interpreting The Phrase "Newly Discovered Evidence": May Previously Unavailable Exculpatory Testimony Serve As The Basis For A Motion For A New Trial Under Rule 33?, Mary Ellen Brennan
Fordham Law Review
Rule 33 of the Federal Rules of Criminal Procedure permits a federal court to grant a new trial to a criminal defendant if the “interest of justice so requires,” specifying as one potential basis the availability of “newly discovered evidence.” The federal circuit courts have disagreed as to whether postconviction testimony proffered by a codefendant who had remained silent at trial may serve as the basis for a Rule 33 motion grounded on newly discovered evidence. A majority of the federal circuits, including, most recently, the U.S. Court of Appeals for the Second Circuit, have held that, while a codefendant’s …
Assessing Fourth Amendment Challenges To Dna Extraction Statutes After Samson V. California, Charles J. Nerko
Assessing Fourth Amendment Challenges To Dna Extraction Statutes After Samson V. California, Charles J. Nerko
Fordham Law Review
DNA plays an indespensable role in modern law enforcement, and courts uniformly find that DNA extraction statutes targeting criminals satisfy the Fourth Amendment. Courts differ on which Fourth Amendment test--totality of the circumstances or special needs--ought to be employed in this context. This Note concludes the courts should apply Samson v. California's less stringent totality of the circumstances test to analyze DNA extraction statutes in order to maintain the integrity of the special needs test.
Judicial Decision-Making, Social Science Evidence, And Equal Educational Opportunity: Uneasy Relations And Uncertain Futures, Michael Heise
Judicial Decision-Making, Social Science Evidence, And Equal Educational Opportunity: Uneasy Relations And Uncertain Futures, Michael Heise
Seattle University Law Review
The full extent of what the Court decided in Grutter and Parents Involved remains in some dispute. What is far more certain is that both cases continue to stir deeply held passions that help frame public and legal debates about the Court and its role in affirmative action and school desegregation disputes. Amid these increasingly raucous debates, this Article expressly side steps the many questions (and controversies) about what the Court decided in those cases and seeks to escape from the frequently politically charged and volatile context of governmental uses of race. This Article instead focuses on how the Court …
It's About Time: The Need For A Uniform Approach To Using A Prior Conviction To Impact A Witness., Robert F. Holland
It's About Time: The Need For A Uniform Approach To Using A Prior Conviction To Impact A Witness., Robert F. Holland
St. Mary's Law Journal
In Texas, no uniform approach exists in determining whether to admit evidence of a prior conviction as a technique to impeach a witness. This lack of uniformity leads to significant consequences for the parties and poses a potential prejudicial effect on the truthful character of a witness. Furthermore, there is currently no bright-line judicial standard when evaluating the admissibility of certain prior convictions. Although the Texas Court of Criminal Appeals in Theus v. State provided a non-exhaustive set of factors for trial judges to consider, the court has yet to clarify particular aspects of how to properly apply Texas Rule …
"Anything You Say May Be Used Against You": A Proposed Seminar On The Lawyer’S Duty To Warn Of Confidentiality’S Limits In Today's Post-Enron World, Paul F. Rothstein
"Anything You Say May Be Used Against You": A Proposed Seminar On The Lawyer’S Duty To Warn Of Confidentiality’S Limits In Today's Post-Enron World, Paul F. Rothstein
Georgetown Law Faculty Publications and Other Works
In light of recent developments, the confidence that one's communications with a lawyer will remain sacrosanct today may be badly misplaced. This raises important questions concerning the duty of lawyers: When, to what extent, and in what detail, does an attorney communicating with someone who may expect confidentiality, have a duty to explain in advance the circumstances under which the information gained may subsequently be revealed pursuant to these or other confidentiality loopholes? Will the interviewee “clam up” in the face of such Miranda-like warnings? If so, what does this do to the premise of Upjohn and the Model Rule …
The Confrontation Right Across The Systemic Divide, Richard D. Friedman
The Confrontation Right Across The Systemic Divide, Richard D. Friedman
Book Chapters
In his notable work, Evidence Law Adrift, Mirjan Damaška identified three pillars of the common law system of determining facts in adjudication, and examined these through a comparative lens: the organisation of the trial court; the phenomenon of temporally compressed trials; and a high degree of control by parties and their counsel. In reviewing the book, I suggested that a strong concept of individual rights was another critical feature of the common law system, especially in its American variant and especially with respect to criminal defendants.
In this essay, I will explore how these four features play out in the …
The Constable Blunders But Isnt Punished Does Hudson V Michigans Abolition Of The Exclusionary Rule Extend Beyond Knockandannounce Violations, Mark A. Summers
The Constable Blunders But Isnt Punished Does Hudson V Michigans Abolition Of The Exclusionary Rule Extend Beyond Knockandannounce Violations, Mark A. Summers
Faculty Scholarship
No abstract provided.