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Full-Text Articles in Law

Law Library Blog (February 2024): Legal Beagle's Blog Archive, Roger Williams University School Of Law Feb 2024

Law Library Blog (February 2024): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.


Neuropsychological Malingering Determination: The Illusion Of Scientific Lie Detection, Chunlin Leonhard, Christoph Leonhard Jan 2024

Neuropsychological Malingering Determination: The Illusion Of Scientific Lie Detection, Chunlin Leonhard, Christoph Leonhard

Georgia Law Review

Humans believe that other humans lie, especially when stakes are high. Stakes can be very high in a courtroom, from substantial amounts of monetary damages in civil litigation to liberty or life in criminal cases. One of the most frequently disputed issues in U.S. courts is whether litigants are malingering when they allege physical or mental conditions for which they are seeking damages or which would allow them to avoid criminal punishment. Understandably, creating a scientific method to detect lies is very appealing to all persons engaged in lie detection. Neuropsychologists claim that they can use neuropsychological assessment tests (Malingering …


Anything You Say (Or Like, Repost, And Quote) Can Be Used Against You, Alexandra Heyl Jan 2024

Anything You Say (Or Like, Repost, And Quote) Can Be Used Against You, Alexandra Heyl

Catholic University Law Review

Social media allows users to exchange thoughts and ideas without saying a single word. Whether a user “likes” “reposts” or “quotes” third-party content, a user publicly interacts with content authored by someone else with the click of a button. Is this online activity more akin to a user making a statement, adopting a third-party’s statement, or not making a statement at all? Does it matter? Only certain statements can be used against you at trial. Federal Rule of Evidence (“Federal Rule”) 802(a) provides that “hearsay” is an out-of-court statement offered for the truth of the matter asserted. According to Federal …


The New People V. Collins: How Can Probabilistic Evidence Be Properly Admitted?, David Crump Jan 2024

The New People V. Collins: How Can Probabilistic Evidence Be Properly Admitted?, David Crump

Maine Law Review

The California Supreme Court’s decision in People v. Collins is a staple in Evidence casebooks. An innovative assistant district attorney in the trial court had presented a mathematician who applied probabilities to questions about the perpetrators’ characteristics. The state supreme court disapproved the injection of an equation featuring what mathematicians call the “product rule.” The opinion contains thank-goodness-we-escaped-that-disaster reasoning and condemnation of this use of mathematics with probabilities. But the court’s analysis probably would be different if the case were decided today, as the “new” People v. Collins. Therefore, this Article considers what the author calls the new People v. …


Rules & Laws For Civil Actions: 2024 Ed., Stella Burch Elias, Derek T. Muller, Jason Rantanen, Caroline Sheerin, Maya Steinitz Jan 2024

Rules & Laws For Civil Actions: 2024 Ed., Stella Burch Elias, Derek T. Muller, Jason Rantanen, Caroline Sheerin, Maya Steinitz

Books

2024 Edition

Rules and Laws for Civil Actions is an open-access resource for law students containing the U.S. Constitution, Federal Rules of Civil Procedure, Federal Rules of Evidence, Federal Rules of Appellate Procedure, and selected federal and state statutes. The book was created by a team of faculty members at the University of Iowa College of Law to supplement the study of Civil Procedure, Evidence, Constitutional Law, and other law school courses. In addition to containing the official text, each legal source found in Rules and Laws for Civil Actions is accompanied by an introductory section written by an Iowa …


Consent Searches And Underestimation Of Compliance: Robustness To Type Of Search, Consequences Of Search, And Demographic Sample, Roseanna Sommers, Vanessa K. Bohns Dec 2023

Consent Searches And Underestimation Of Compliance: Robustness To Type Of Search, Consequences Of Search, And Demographic Sample, Roseanna Sommers, Vanessa K. Bohns

Articles

Most police searches today are authorized by citizens' consent, rather than probable cause or reasonable suspicion. The main constitutional limitation on so-called “consent searches” is the voluntariness test: whether a reasonable person would have felt free to refuse the officer's request to conduct the search. We investigate whether this legal inquiry is subject to a systematic bias whereby uninvolved decision-makers overstate the voluntariness of consent and underestimate the psychological pressure individuals feel to comply. We find evidence for a robust bias extending to requests, tasks, and populations that have not been examined previously. Across three pre-registered experiments, we approached participants …


Aequitas: Seeking Equilibrium In Title Ix, Raymond Trent Cromartie Dec 2023

Aequitas: Seeking Equilibrium In Title Ix, Raymond Trent Cromartie

Sturm College of Law: Faculty Scholarship

Over the past two decades, the scope of Title IX has expanded drastically and now includes the investigation and adjudication of sexual misconduct cases through campus tribunals. Beginning in 2011, the Obama Administration, through a “Dear Colleague Letter” and subsequent guidance, initiated this process by establishing guidelines that required schools to develop and implement policies and procedures for the handling of sexual misconduct cases. Following the publication of the Obama-era guidance, schools scrambled to ensure compliance with the federal guidance, which led to a myriad of applications by universities. Unfortunately, the fallout from the 2011 guidance was widespread litigation initiated …


Law Library Blog (November 2023): Legal Beagle's Blog Archive, Roger Williams University School Of Law Nov 2023

Law Library Blog (November 2023): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.


The Superfluous Rules Of Evidence, Jeffrey Bellin Nov 2023

The Superfluous Rules Of Evidence, Jeffrey Bellin

Faculty Publications

There are few American legal codifications as successful as the Federal Rules of Evidence. But this success masks the project’s uncertain beginnings. The drafters of the Federal Rules worried that lawmakers would not adopt the new rules and that judges would not follow them. As a result, they included at least thirty rules of evidence that do not, in fact, alter the admissibility of evidence. Instead, these rules: (1) market the rules project, and (2) guide judges away from anticipated errors in applying the (other) nonsuperfluous rules.

Given the superfluous rules’ covert mission, it should not be surprising that the …


Protecting Restorative Justice Participants: The Implications Of Implementing Restorative Justice Practices Without Proper Safeguards For Participants, Abigail Young Oct 2023

Protecting Restorative Justice Participants: The Implications Of Implementing Restorative Justice Practices Without Proper Safeguards For Participants, Abigail Young

University of Miami Race & Social Justice Law Review

No abstract provided.


Bending The Rules Of Evidence, Edward K. Cheng, G. Alexander Nunn, Julia Simon-Kerr Oct 2023

Bending The Rules Of Evidence, Edward K. Cheng, G. Alexander Nunn, Julia Simon-Kerr

Northwestern University Law Review

The evidence rules have well-established, standard textual meanings—meanings that evidence professors teach their law students every year. Yet, despite the rules’ clarity, courts misapply them across a wide array of cases: Judges allow past acts to bypass the propensity prohibition, squeeze hearsay into facially inapplicable exceptions, and poke holes in supposedly ironclad privileges. And that’s just the beginning.

The evidence literature sees these misapplications as mistakes by inept trial judges. This Article takes a very different view. These “mistakes” are often not mistakes at all, but rather instances in which courts are intentionally bending the rules of evidence. Codified evidentiary …


Private Police Regulation And The Exclusionary Remedy: How Washington Can Eliminate The Public/Private Distinction, Jared Rothenberg Oct 2023

Private Police Regulation And The Exclusionary Remedy: How Washington Can Eliminate The Public/Private Distinction, Jared Rothenberg

Washington Law Review

Private security forces such as campus police, security guards, loss prevention officers, and the like are not state actors covered by the Fourth Amendment’s prohibition against unreasonable searches and seizures nor the Fifth Amendment’s Miranda protections. As members of the umbrella category of “private police,” these private law enforcement agents often obtain evidence, detain individuals, and elicit confessions in a manner that government actors cannot, which can then be lawfully turned over to the government. Though the same statutory law governing private citizens (assault, false imprisonment, trespass, etc.) also regulates private police conduct, private police conduct is not bound by …


Bending The Rules Of Evidence, Edward K. Cheng, G. Alexander Nunn, Julia Simon-Kerr Oct 2023

Bending The Rules Of Evidence, Edward K. Cheng, G. Alexander Nunn, Julia Simon-Kerr

Faculty Scholarship

The evidence rules have well-established, standard textual meanings—meanings that evidence professors teach their law students every year. Yet, despite the rules’ clarity, courts misapply them across a wide array of cases: Judges allow past acts to bypass the propensity prohibition, squeeze hearsay into facially inapplicable exceptions, and poke holes in supposedly ironclad privileges. And that’s just the beginning.

The evidence literature sees these misapplications as mistakes by inept trial judges. This Article takes a very different view. These “mistakes” are often not mistakes at all, but rather instances in which courts are intentionally bending the rules of evidence. Codified evidentiary …


The Federal Rules Of Emojis: A Proposed Framework For Handling Emoji Evidence In Trial Contexts, Marilyn Hurzeler Oct 2023

The Federal Rules Of Emojis: A Proposed Framework For Handling Emoji Evidence In Trial Contexts, Marilyn Hurzeler

Fordham Law Review

Emojis are 3,633 ubiquitous symbols-as-communication used by 92 percent of internet users. These tiny yet influential pieces of evidence hold the power to complete, enhance, mitigate, and flip the meaning of surrounding text. Consequently, court references to emojis have grown exponentially in the last five years. As emojis have become a cornerstone of digital discourse, courts have increasingly encountered the significant impact of emojis on parties’ legal claims. A guide for handling of emoji evidence under the Federal Rules of Evidence (FRE), therefore, is important to afford proper treatment to this relatively new evidentiary form.

This Note discusses how the …


The History Of Forensic-Science Evidence In Criminal Trials And The Role Of Early “Success” In Establishing Its Putative Reliability, Carrie Leonetti Aug 2023

The History Of Forensic-Science Evidence In Criminal Trials And The Role Of Early “Success” In Establishing Its Putative Reliability, Carrie Leonetti

St. Mary's Law Journal

This Article posits the history of forensic-science evidence plays a significant role in the unquestioning manner of its modern acceptance. It traces early high-profile forensic science “successes” and the public reactions to them. It argues the public perception of the “advances” of forensic science continues to play a role in the lack of scrutiny given to these disciplines in admissibility decisions today. It concludes, when it comes to forensic science, history should play a different role by serving as a critical warning rather than a congratulatory buttress.


Future-Proofing U.S. Laws For War Crimes Investigations In The Digital Era, Rebecca Hamilton Jul 2023

Future-Proofing U.S. Laws For War Crimes Investigations In The Digital Era, Rebecca Hamilton

Articles in Law Reviews & Other Academic Journals

Advances in information technology have irrevocably changed the nature of war crimes investigations. The pursuit of accountability for the most serious crimes of concern to the international community now invariably requires access to digital evidence. The global reach of platforms like Facebook, YouTube, and Twitter means that much of that digital evidence is held by U.S. social media companies, and access to it is subject to the U.S. Stored Communications Act.

This is the first Article to look at the legal landscape facing international investigators seeking access to digital evidence regarding genocide, war crimes, crimes against humanity, and aggression. It …


Remarks On Manifesting Justice: Wrongly Convicted Women Reclaim Their Rights, Amber Baylor, Valena Beety, Susan Sturm Jun 2023

Remarks On Manifesting Justice: Wrongly Convicted Women Reclaim Their Rights, Amber Baylor, Valena Beety, Susan Sturm

Articles by Maurer Faculty

The following are remarks from a panel discussion co-hosted by the Columbia Journal of Gender and Law and the Center for Gender and Sexuality Law on the book Manifesting Justice: Wrongly Convicted Women Reclaim Their Rights.


Childist Objections, Youthful Relevance, And Evidence Reconceived, Mae C. Quinn Apr 2023

Childist Objections, Youthful Relevance, And Evidence Reconceived, Mae C. Quinn

Dickinson Law Review (2017-Present)

Evidence rules are written by and for adults. As a result, they largely lack the vantage point of youth and are rooted in arm’s-length assumptions about the lives and legal interests of young people. Moreover, because children have been mostly treated as evidentiary afterthoughts, they have been patched into the justice system and its procedures in a piecemeal fashion. Yet, to date, there has been no comprehensive scholarly critique of evidence principles and practices for failing to meaningfully account for youth. And the evidentiary intersection of youth and race has been almost entirely overlooked in legal scholarship. This Article, in …


The Evidentiary Implications Of Interpreting Black-Box Algorithms, Varun Bhatnagar Apr 2023

The Evidentiary Implications Of Interpreting Black-Box Algorithms, Varun Bhatnagar

Northwestern Journal of Technology and Intellectual Property

Biased black-box algorithms have drawn increasing levels of scrutiny from the public. This is especially true for those black-box algorithms with the potential to negatively affect protected or vulnerable populations.1 One type of these black-box algorithms, a neural network, is both opaque and capable of high accuracy. However, neural networks do not provide insights into the relative importance, underlying relationships, structures of the predictors or covariates with the modelled outcomes.2 There are methods to combat a neural network’s lack of transparency: globally or locally interpretable post-hoc explanatory models.3 However, the threat of such measures usually does not bar an actor …


Prior Racist Acts And The Character Evidence Ban In Hate Crime Prosecutions, Paul F. Rothstein, Ronald J. Coleman Feb 2023

Prior Racist Acts And The Character Evidence Ban In Hate Crime Prosecutions, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

The killing of unarmed African-American Ahmaud Arbery and others ignited a wave of public outrage and re-focused attention on race and the criminal justice system. During the recent federal hate crimes proceedings for Arbery’s death, the prosecution introduced evidence relating to the alleged past racist acts of the defendants. This type of evidence may be seen as highly probative and desperately needed to do justice in hate crimes cases. On its face, however, such type of evidence appears to be inadmissible owing to the well-known—but little understood— evidentiary ban on character evidence prescribed in Federal Rule of Evidence 404(b) and …


The Intersections Among Science, Technology, Policy And Law: In Between Truth And Justice, Paolo Davide Farah, Justo Corti Varela Jan 2023

The Intersections Among Science, Technology, Policy And Law: In Between Truth And Justice, Paolo Davide Farah, Justo Corti Varela

Book Chapters

Different visions on the interaction between science, technology, policy and law have been presented. As common axe, we can detect the continuous search for truth and justice. Science and Law as social constructs, the distinction between truths and opinions through procedural method based on evidence and rationality, or how natural science “things” became facts, and consequently “truth”, are examples of this search. The evidence-gathering process that integrates scientific evidence into trial (sometimes by procedure and other times by a more substantive approach) is another possible approach. Of course, that the game of mutual influence among the four elements creates contradictions …


Digital Habit Evidence, Andrew Guthrie Ferguson Jan 2023

Digital Habit Evidence, Andrew Guthrie Ferguson

Articles in Law Reviews & Other Academic Journals

This Article explores how “habit evidence” will become a catalyst for a new form of digital proof based on the explosive growth of smart homes, smart cars, smart devices, and the Internet of Things. Habit evidence is the rule that certain sorts of semiautomatic, regularized responses to particular stimuli are trustworthy and thus admissible under the Federal Rules of Evidence (“FRE”) 406 “Habit; Routine Practice” and state equivalents.

While well established since the common law, “habit” has made only an inconsistent appearance in reported cases and has been underutilized in trial practice. But intriguingly, once applied to the world of …


The Incongruence Principle Of Evidence, Hillel Bavli Jan 2023

The Incongruence Principle Of Evidence, Hillel Bavli

Indiana Law Journal

Evidence law assumes that the meaning and value of information at trial is equal to the meaning and value of the same information in the real world. This premise underlies evidence policy, judicial applications of evidence law, and instructions to jurors for evaluating evidence. However, it is incorrect, and the law’s failure to recognize this hinders its aims of accuracy and equality.

In this article, I draw on fields outside of law—including Bayesian inference and cognitive psychology—to develop a model of evidence that describes how jurors combine new evidence with prior beliefs (or “priors”) to make inferences and judgments. I …


Reforming Eyewitness Identification Processes: Challenges And Recommendations For Successful Implementation, Daniel Manley Jan 2023

Reforming Eyewitness Identification Processes: Challenges And Recommendations For Successful Implementation, Daniel Manley

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.


The Incongruence Principle Of Evidence, Hillel Bavli Jan 2023

The Incongruence Principle Of Evidence, Hillel Bavli

Faculty Journal Articles and Book Chapters

Evidence law assumes that the meaning and value of information at trial is equal to the meaning and value of the same information in the real world. This premise underlies evidence policy, judicial applications of evidence law, and instructions to jurors for evaluating evidence. However, it is incorrect, and the law’s failure to recognize this hinders its aims of accuracy and equality.

In this article, I draw on fields outside of law - including Bayesian inference and cognitive psychology - to develop a model of evidence that describes how jurors combine new evidence with prior beliefs (or “priors”) to make …


Fuoco V. Polisena, 244 A.3d 124 (R.I. 2021), David Marks Jan 2023

Fuoco V. Polisena, 244 A.3d 124 (R.I. 2021), David Marks

Roger Williams University Law Review

No abstract provided.


State V. Hudgen¸ 272 A.3d 1069 (R.I. 2022)., Judd W. Krasher Jan 2023

State V. Hudgen¸ 272 A.3d 1069 (R.I. 2022)., Judd W. Krasher

Roger Williams University Law Review

No abstract provided.


Race, Gatekeeping, Magical Words, And The Rules Of Evidence, I. Bennett Capers Jan 2023

Race, Gatekeeping, Magical Words, And The Rules Of Evidence, I. Bennett Capers

Faculty Scholarship

Although it might not be apparent from the Federal Rules of Evidence themselves, or the common law that preceded them, there is a long history in this country of tying evidence—what is deemed relevant, what is deemed trustworthy—to race. And increasingly, evidence scholars are excavating that history. Indeed, not just excavating, but showing how that history has racial effects that continue into the present.

One area that has escaped racialized scrutiny—at least of the type I am interested in—is that of expert testimony. In this brief Essay written for the Vanderbilt Law Review Symposium, Reimagining the Rules of Evidence at …


Binding Hercules: A Proposal For Bench Trials, Maggie Wittlin Jan 2023

Binding Hercules: A Proposal For Bench Trials, Maggie Wittlin

Faculty Scholarship

Should the Federal Rules of Evidence apply at bench trials? By their own terms, they apply, but courts have been reluctant to enforce them on themselves with the same rigor that they enforce them on juries. Scholarship on the issue has been mixed. Although McCormick deemed the rules of evidence "absurdly inappropriate" outside of the jury context, more recently, scholars have suggested that many reasons for imposing exclusionary rules on jurors also apply to judges. Yet practical problems persist. For one, once judge evaluate the admissibility of evidence, they can’t “unring the bell” and ignore evidence they've decided to exclude. …


Theorizing Corroboration, Maggie Wittlin Jan 2023

Theorizing Corroboration, Maggie Wittlin

Faculty Scholarship

A child makes an out-of-court statement accusing an adult of abuse. That statement is important proof, but it also presents serious reliability concerns. When deciding whether it is sufficiently reliable to be admitted, should a court consider whether the child’s statement is corroborated—whether, for example, there is medical evidence of abuse? More broadly, should courts consider corroboration when deciding whether evidence is reliable enough to be admitted at trial? Judges, rule-makers, and scholars have taken significantly divergent approaches to this question and come to different conclusions.

This Article argues that there is a key problem with using corroboration to evaluate …