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Touch Dna And Chemical Analysis Of Skin Trace Evidence: Protecting Privacy While Advancing Investigations, Mary Graw Leary

William & Mary Bill of Rights Journal

This Article addresses touch DNA, chemical analysis of skin traces, and the implications for crime scene investigation, arguing that changes in how trace evidence is analyzed require alterations in the law’s approach to its use. Part I discusses the history of traditional DNA analysis. Part II examines the emergence of touch DNA and related technologies and how they differ from traditional DNA analysis. Part III outlines the specific risks created by the collection and storing of results under the current outdated jurisprudence. Part IV focuses on specific risks to suspects and victims of crime. Part V proposes a legal framework …

Abid V. Abid, 133 Nev. Adv. Op. 94 (Dec. 7, 2017) (En Banc), Carmen Gilbert

Nevada Supreme Court Summaries

The Court held that the district court properly exercised its discretion in allowing illegally recorded conversations to be used by a court appointed child psychologist to evaluate a child’s welfare in a custody case.

Close Enough For Government Work: Proving Minimal Nexus In A Federal And Firearms Conviction: United States V. Corey, Barbara H. Taylor

Maine Law Review

In United States v. Corey, Alvin Scott Corey was found guilty of possessing a firearm as a felon. Although Corey's possession of a Smith and Wesson shotgun violated Maine law, Corey was prosecuted in the United States District Court under the federal statute 18 U.S.C. § 922(g)(1) and its penalty statute, § 924(e). On appeal, Corey argued that one of the requirements for his conviction, proof of the statute's jurisdictional element, had not been satisfied because that proof rested on expert testimony based, in part, on hearsay. The First Circuit Court of Appeals, in a split decision, affirmed Corey's conviction, …

Scientific Evidence And Forensic Science Since Daubert: Maine Decides To Sit Out On The Dance, Thomas L. Bohan

Maine Law Review

In 1993, the Supreme Court of the United States stated that with the federal adoption of statutory rules of evidence in 1975, the common law rule for determining admissibility of scientific testimony was superseded, and that thenceforth admissibility of scientific testimony was to be determined solely by Federal Rule of Evidence 702 (Rule 702). The Frye standard had been adopted in one form or another by most of the federal circuits and by many of the state courts during the 70 years preceding Daubert. Referred to as the “general acceptance” standard, the Frye standard--although adopted in a variety of forms--had …

Rus V Comcare: The Rules Of Evidence In The Aat, Nicholas Cardaci

The University of Notre Dame Australia Law Review

The Rus v Comcare cases arise from a claim for compensation by the widowed Ms Rus. The cases saw a highly contentious piece of evidence tendered. This evidence was hearsay of a lay opinion that answered the ultimate issue. The evidence was considered by the Administrative Appeals Tribunal (‘AAT’) and the Federal Court of Australia (‘Court’). These considerations demonstrate the uncertainty of how the rules of evidence are applicable in tribunals. Specifically, the cases raise applicability of the rules against opinion and hearsay evidence. Further, the relevance of delay and the parol evidence rule to these cases is raised. The …

Evidence, John E. Hall Jr., W. Scott Henwood, L. Witt Carmon Ii

Mercer Law Review

Following the adjustments to Georgia's Evidence Code on January 1, 2013, Georgia courts have developed significant case law interpreting various changes from the old code. This year's survey period marks the fourth year since the landmark alterations to the Georgia Evidence Code, Official Code of Georgia Annotated (O.C.G.A.) Title 24 took effect. Addressed in this year's Article are cases spanning from June 1, 2016 to May 31, 2017. Specifically, this Article addresses the following: (1) Significant developments regarding the admissibility of evidence ascertained by or maintained through technology; (2) Special rules of admissibility tied to crimes of sexual misconduct or …

Contemplating The Use Of Classified Or State Secret Information Obtained Ex Parte On The Merits In Civil Litigation: Bl(A)Ck Tea Society V. City Of Boston, Brian M. Tomney

Maine Law Review

In Bl(a)ck Tea Society v. City of Boston, the First Circuit Court of Appeals affirmed, without dissent, a district court's ruling denying protesters at the 2004 Democratic National Convention a preliminary injunction designed to force the City of Boston to modify its designated demonstration zone (DZ) and remove some of the draconian security measures surrounding the zone. The injunction was denied by Judge Woodlock after he personally inspected the DZ and determined that, given “constraints of time, geography, and safety,” there were no viable alternatives—to site location or construction of the DZ itself—that could reasonably occur before the convention started. …

19. Child Witnesses., Thomas D. Lyon, Kelly Mcwilliams, Shanna Williams

Thomas D. Lyon

Petition For A Writ Of Certiorari. Kirk V. Invesco, Limited, 138 S.Ct. 1164 (2018) (No. 17-762), 2017 U.S. S. Ct. Briefs Lexis 4618, 2017 Wl 5665441, Eric Schnapper, Nitin Sud

Court Briefs

QUESTION PRESENTED The Fair Labor Standards Act provides that covered employees who work more than 40 hours in a week must generally be paid overtime at a rate one and one-half times their regular rate. To assure compliance with that overtime rule, the Act and governing regulations require employers to maintain records of all hours worked by covered employees. If an employer has failed to keep the legally required records, the burden on the employee under Anderson v. Mt. Clemens Pottery Co. is simply to "produce[] sufficient evidence to show the amount and extent of that work as a matter …

Calling Crawford: Minnesota Declares A 911 Call Non-Testimonial In State V. Wright, Alistair Y. Raymond

Maine Law Review

In State v. Wright, 1 the State of Minnesota charged David Wright with possession of a firearm by a felon and two counts of second-degree assault against his girlfriend and her sister. A jury found Wright guilty on all charges and sentenced him to sixty months in jail for each crime, with sentences served concurrently. Wright’s girlfriend, R.R., and her sister, S.R., did not testify against him at trial. The prosecution, however, used the transcript of a 911 call placed by R.R. against Wright in the trial. Although the 911 call was hearsay, the court admitted it under Minnesota’s excited …

Morales V. Portuondo: Has The Seal Of The Confessional Sprung A Leak?, Jordan B. Woods

The Catholic Lawyer

No abstract provided.

61. The Relation Between Young Children’S False Statements And Response Latency, Executive Functioning, And Truth–Lie Understanding., Shanna Williams, Elizabeth C. Ahern, Thomas D. Lyon

Thomas D. Lyon

60. The Effects Of Promising To Tell The Truth, The Putative Confession, And Recall And Recognition Questions On Maltreated And Non-Maltreated Children’S Disclosure Of A Minor Transgression., Jodi A. Quas, Stacia N. Stolzenberg, Thomas D. Lyon

Thomas D. Lyon

Appendix: Conjunction-Problem V. Non-Conjunction-Problem Jurisdictions, David S. Schwartz, Elliott Sober

William & Mary Law Review Online

This appendix presents the relevant data from our survey of jury instructions in support of the article in the print edition of the William & Mary Law Review. The Conjunction Problem and the Logic of Jury Findings (59 Wm. & Mary L. Rev. 619, 673-87 (2017))

The Conjunction Problem And The Logic Of Jury Findings, David S. Schwartz, Elliott Sober

William & Mary Law Review

For several decades, evidence theorists have puzzled over the following paradox, known as the “conjunction paradox” or “conjunction problem.” Probability theory appears to tell us that the probability of a conjunctive claim is the product resulting from multiplying the probabilities of its separate conjuncts. In a three element negligence case (breach of duty, causation, damages), a plaintiff who proves each element to a 0.6 probability will have proven her overall claim to a very low probability of 0.216. Either the plaintiff wins the verdict based on this low probability (if the jury focuses on elements), or the plaintiff loses despite …

You Say Its Your Birthday... But Could You Prove It?, Cynthia Ford

Faculty Journal Articles & Other Writings

No abstract provided.

A Step Toward Robust Criminal Discovery Reform In Virginia: The Disclosure Of Witness Statements Before Trial, Jennifer Horan

University of Richmond Law Review

No abstract provided.

Unconstitutional Asymmetry Or A Rational Basis For Inconsistency? The Admissibility Of Medical Malpractice Prelitigation Screening Panel Findings Before And After Smith V. Hawthorne I And Ii, Matthew Asnault Morris

Maine Law Review

Pre-litigation screening panels have been instrumental in streamlining medical malpractice litigation in the State of Maine by culling claims from superior court dockets, encouraging settlements, and providing findings of fact that could prove useful for a jury if the case proceeds to trial. In enacting one particular provision governing the confidentiality and the admissibility of the screening panel process, however, the legislature may have sacrificed the constitutional rights of medical malpractice claimants in favor of a lighter docket. Two recent cases before the Law Court, Smith I and II, have challenged the constitutionality of Maine’s unique statutory approach to the …

The Excited Utterance Paradox, Steven Baicker-Mckee

Seattle University Law Review

Based on nothing more than John Henry Wigmore’s personal belief that a witness under the throes of excitement is unable to fabricate an untruthful statement, the excited utterance exception allows parties to present out-of-court statements to the jury or judge without any of the safeguards the judicial system uses to promote honest and accurate testimony. This Article collects and examines much of the scientific evidence bearing on Wigmore’s premise and identifies two paradoxical conclusions that undermine the exception. First, the premise itself is unfounded; science absolutely does not support the notion that a witness is incapable of lying while emotionally …

Opportunity Lost, Opportunity Found: A Proposal To Amend Maine's Rule Of Evidence 404 To Admit "Prior Acts" Evidence In Domestic Violence Prosecutions, Tina Heather Nadeau

Maine Law Review

In 2008, thirty-one people were the victims of homicide in the state of Maine. Even more startling: nineteen of these homicides stemmed from domestic violence, possibly the largest number of domestic-violence-related killings in the state's history. This means that nearly 70 percent of Maine's homicides in 2008 were the result of domestic violence. Amendments made in 2007 (and implemented in February 2008) to Maine's Criminal Code have criminalized particular instances of domestic violence as “enhanced” crimes of violence. This allows prosecutors to consider “prior acts” of domestic abuse when deciding how to charge a criminal defendant accused of a domestic-violence-related …

Racism, Juries, And Justice: Addressing Post-Verdict Juror Testimony Of Racial Prejudice During Deliberations, Andrew C. Helman

Maine Law Review

From the beginning, race played a role in the prosecution of Christopher McCowen for the rape and murder of well-known fashion writer Christa Worthington. To some, the trial was even a spectacle and treated as “one of the most spectacular homicide cases in [Massachusetts'] history.” It quickly became a “made-for-cable-news tale of the heiress fashion writer and her lowly Portuguese fisherman lover, illicit sex, and an out-of-wedlock child,” all set in a seaside village. McCowen, an African-American garbage man, was right in the middle of it; police and prosecutors did not believe his assertions that he had consensual sex with …

"Another Day" Has Dawned: The Maine Supreme Judicial Court Holds Laboratory Evidence Subject To The Confrontation Clause In State V. Mangos, Reid Hayton-Hull

Maine Law Review

The Sixth Amendment's Confrontation Clause guarantees criminal defendants the right to “confront witnesses against them.” Specifically, the Clause ensures a criminal defendant's right to confront witnesses who testify against him by the unique medium, or “crucible,” of cross-examination. Although federal and state rules of evidence prohibiting hearsay and the Confrontation Clause are designed to protect similar interests, whether or not admission of a piece of evidence violates a defendant's rights under the Confrontation Clause is a separate analysis than whether that same piece of evidence is admissible under a rule of evidence. In 2004, the United States Supreme Court held …

The Supreme Court's Long And Perhaps Unnecessary Struggle To Find A Standard Of Culpability To Regulate The Federal Exclusionary Remedy For Fourth/Fourteenth Amendment Violations, Melvyn H. Zarr

Maine Law Review

On January 14, 2009, the United States Supreme Court decided Herring v. United States. In Herring, the defendant moved to suppress evidence that he alleged was seized as a result of an arrest that violated the Fourth and Fourteenth Amendments to the U.S. Constitution. The Supreme Court approved the decision below to deny suppression of the evidence. The decision set off a flurry of speculation that the Fourth Amendment exclusionary rule would not see its 100th birthday in 2014. A headline in the New York Times of January 31 declared: “Supreme Court Edging Closer to Repeal of Evidence Ruling.” Another …

State V. Thurston: An Examination Of Assualt, Self-Defense, And Trespass In Relation To Domestic Violence, Megan E. Magoon

Maine Law Review

Darrell Thurston and Suzanne Harmon were romantically involved on an intermittent basis for five years and had one child together. As a result of an altercation that took place at Harmon’s home in Sullivan, Maine, on September 27, 2007, between Thurston and Harmon, Thurston was charged with assault, criminal mischief, and obstructing report of crime or injury. The testimony during the trial illuminated the major factual differences between Thurston’s and Harmon’s accounts of the night the incident took place. Thurston requested a self defense jury instruction based on his version of what had happened, which the trial court ultimately denied. …

Findings Of Fact Vs. Conclusions Of Law: How The Law Court Complicated The Case Of State V. Connor, Christopher S. Boulos

Maine Law Review

In State v. Connor, the Maine Supreme Judicial Court, sitting as the Law Court, upheld a trial judge’s denial of a motion to suppress evidence. Although the evidence presented in the suppression hearing seemed adequate to support the denial of the motion, the trial judge failed to clearly state his conclusions of law when denying the motion. However, the Law Court mistook the ambiguous conclusions of law as ambiguous findings of fact. Because the findings of fact were ambiguous in the court’s view, the majority and dissenting opinions spent the bulk of their energies discussing how the court should review …

Enough Is Enough: The Law Court's Decision To Functionally Raise The "Reasonable Connection" Relevancy Standard In State V. Mitchell, Robert P. Hayes

Maine Law Review

In State v. Mitchell, the Maine Supreme Judicial Court, sitting as the Law Court, affirmed a jury verdict finding Thomas Mitchell guilty of a 1983 murder. In doing so, the Law Court examined two issues: First, whether the trial court “abused its discretion in excluding evidence of an alternative suspect”; and second, whether the trial court’s decision to admit evidence stemming from an autopsy performed two decades before the trial violated the Confrontation Clause of the United States Constitution. In reaching the alternative suspect decision, the Law Court held that the evidence proffered by Mitchell did not establish a reasonable …

Discharging State V. Hurd: Maine Rule Of Evidence 606(B) Should Not Be Used To Prevent A Jury From Fully Reporting Its Verdict, William I. Olver

Maine Law Review

In State v. Hurd, the Maine Supreme Judicial Court, sitting as the Law Court, was asked to decide if a jury may correct a mistake in the reporting of its verdict, mere moments after leaving the courtroom, once the court had declared that the jury was “discharged.” Ryan Hurd was charged with aggravated OUI, among other things, as a result of a crash involving Hurd’s car, which tragically resulted in one person losing his life. During the trial, because there was a dispute regarding whether Hurd was driving the car himself or asked a second person to drive the car, …

The Prolonged Arm Of The Law: Fourth Amendment Principles, The Maynard Decision, And The Need For A New Warrant For Electronic Tracking, R. Reeve Wood Iii

Maine Law Review

This article examines the decision in United States v. Maynard as well as the simultaneous emergence of a vocal set of magistrate judges advocating for Fourth Amendment protection for cell phone location information. It argues that, even if the Maynard rationale is widely adopted and the use of tracking devices is found to be a search, the Fourth Amendment principles of specificity and limited discretion on the part of government officers mean that the warrant frameworks currently in use will not provide adequate protection from the threat of government officers obtaining information for which they have not demonstrated a need. …

Trial By Numbers, Rebecca K. Helm, Valerie P. Hans, Valerie F. Reyna

Cornell Journal of Law and Public Policy

Legal cases often require jurors to use numerical information. They may need to evaluate the meaning of specific numbers, such as the probability of match between a suspect and a DNA sample, or they may need to arrive at a sound numerical judgment, such as a money damage award. Thus, it is important to know how jurors understand numerical information, and what steps can be taken to increase juror comprehension and appropriate application of numerical evidence. In this Article, we examine two types of juror decisions involving numbers--decisions in which jurors must convert numbers into meaning (such as by understanding …

Cross-Examination, College Sexual-Assault Adjudications, And The Opportunity For Tuning Up The "Greatest Legal Engine Ever Invented", H. Hunter Bruton

Cornell Journal of Law and Public Policy

With its reputation as the "greatest legal engine ever invented" cross-examination rarely receives critical evaluation. This Article seeks to narrow that academic gap and offer pragmatic advice to policymakers and judges considering the in-the-trenches issues of cross-examination. Despite a great body of empirical and interdisciplinary work on cross-examination, legal scholarship often relegates discussion of cross-examination's benefits and costs to an errant footnote or a short paragraph. But cross-examination's efficacy should not be an afterthought or aside to doctrinal exegesis. Answers to the hardest questions about the presence, scope, and format of cross-examination rely on assumptions about the benefits and costs …