Law Commons^™

Canudo On Evidence: Laws Of New York, Gary Shaw

Gary M. Shaw

No abstract provided.

Bullets, Bad Florins, And Old Boots: A Report Of The Indiana Trial Judges Seminar On The Judge's Control Over Demonstrative Evidence, Thomas Shaffer

Thomas L. Shaffer

No abstract provided.

Hear Me Now: The Admission Of Expert Testimony On Battered Women's Syndrome—An Evidentiary Approach, Matthew Fine

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

No abstract provided.

"Santa Baby, Just Slip A Sable Under The Tree For Me:" Or At Least A Catchall Exception To The Hearsay Rule?, Cynthia Ford

Faculty Journal Articles & Other Writings

This article examines Montana's two rule-based "catchall" or "residual" hearsay exceptions, and a statutory exception that applies only to child declarants in criminal cases.

Promising Protection: 911 Call Records As Foundation For Family Violence Intervention, James G. Dwyer

Faculty Publications

No abstract provided.

Character, Liberalism, And The Protean Culture Of Evidence Law, Daniel D. Blinka

Seattle University Law Review

It is time to rethink character evidence. Long notorious as the most frequently litigated evidence issue, character doctrine plagues courts, trial lawyers, and law students with its infamously “grotesque” array of nonsensical rules, whimsical distinctions, and arcane procedures. Character is a calculation of social worth and value; it is the sum total of what others think of us, whether expressed as their own opinion or the collective opinions of many (reputation). Once we grasp that character is a social construct, we are in a better position to address some of the problems that plague evidence law. To provide needed clarity …

"As I Lay Dying:" A Halloween Meditation On The Use Of Dying Declarations In Montana, Cynthia Ford

Faculty Journal Articles & Other Writings

This article discusses the Montana hearsay exception for "dying declarations."

Ehearsay, Jeffrey Bellin

Faculty Publications

No abstract provided.

Rape Shield Laws And The Social Media Revolution: Discoverability Of Social Media--It's Not Private, Seth I. Koslow

Touro Law Review

No abstract provided.

Accounting For Federalism In State Courts - Exclusion Of Evidence Obtained Lawfully By Federal Agents, Robert M. Bloom, Hillary J. Massey

Robert Bloom

After the terrorist attacks on September 11th, Congress greatly enhanced federal law enforcement powers through enactment of the U.S.A. Patriot Act. The Supreme Court also has provided more leeway to federal officers in the past few decades, for example by limiting the scope of the exclusionary rule. At the same time, many states have interpreted their constitutions to provide greater individual protections to their citizens than provided by the federal constitution. This phenomenon has sometimes created a wide disparity between the investigatory techniques available to federal versus state law enforcement officers. As a result, state courts sometimes must decide whether …

Crawford & Its Progeny In Texas & The Nation's Other State Supreme Courts, Dannye Holley

Dannye Holley

CRAWFORD & ITS PROGENY IN TEXAS & THE

NATION’S OTHER STATE SUPREME COURTS

This article is designed to track three major conceptual themes. First, the elusive pursuit of scholarship which engages both the practicing bar and academics. Second, how our federalism is shaped by the interaction of the “Supreme Courts”. Finally, identifying metrics upon which to base a principled assessment of whether a United States Supreme Court decision is a “watershed” decision.

The article documents that Crawford and its progeny have created a powerful convergence of the interests of academics and the practicing bar. It does so by making reference …

Evaluating Oral Histories: The Evidentiary Standard In Cases Involving The Repatriation Of Pre-Historic Human Remains, Sylvia St. Clair

Sylvia B. St. Clair

Ms. St. Clair explores the use of oral histories to prove cultural affiliation and examines how the laws of evidence must be adapted in order to accommodate this type of evidence. In cases involving the repatriation of Native American human remains, proving cultural affiliation becomes especially problematic when traditional evidence is scarce and tribal claimants rely on oral histories to prove affiliation. This type of evidence is subject to heavy skepticism, consistently challenged by science and technological advances, and examination of the court’s treatment of cases over the last decade has left confusion on the applicable standard. In face of …

Understanding The Law Of Evidence Through The Lens Of Signal-To-Noise, Alex Stein

Alex Stein

No abstract provided.

"Introduction" (Chapter 1) Of Stories About Science In Law: Literary And Historical Images Of Acquired Expertise (Ashgate 2011), David S. Caudill

David S Caudill

This is the introductory chapter of Stories About Science in Law: Literary and Historical Images of Acquired Expertise (Ashgate, 2011), explaining that the book presents examples of how literary accounts can provide a supplement to our understanding of science in law. Challenging the view that law and science are completely different, I focus on stories that explore the relationship between law and science, and identify cultural images of science that prevail in legal contexts. In contrast to other studies on the transfer and construction of expertise in legal settings, the book considers the intersection of three interdisciplinary projects-- law and …

Lawyers Judging Experts: Oversimplifying Science And Undervaluing Advocacy To Construct An Ethical Duty?, David S. Caudill

David S Caudill

My focus is on an apparent trend at the intersection of the fields of evidentiary standards for expert admissibility and professional responsibility, namely the eagerness to place more ethical responsibilities on lawyers to vet their proffered expertise to ensure its reliability. My reservations about this trend are not only based on its troubling implications for the lawyer’s duty as a zealous advocate, which already has obvious limitations (because of lawyers’ conflicting duties to the court), but are also based on the problematic aspects of many reliability determinations. To expect attorneys - and this is what the proponents of a duty …

Book Review: Carl Cranor, Toxic Torts: Science, Law, And The Possibility Of Justice, David Caudill

David S Caudill

Carl F. Cranor’s Toxic Torts: Science, Law, and the Possibility of Justice is a sustained, comprehensive argument that the Daubert gatekeeping regime has tilted the playing field against injured plaintiffs in toxic tort litigation. More generally, Cranor joins those who argue that the Daubert regime has not fared well in practice. Complex scientific evidence is not handled well in trials because scientific methods, data, and inferential reasoning are not well understood by gatekeeping judges. Cranor’s goal is to help solve this problem by offering a detailed description of the patterns of reasoning, evidence collection, and inference in nonlegal scientific settings. …

Arsenic And Old Chemistry: Images Of Mad Alchemists, Experts Attacking Experts, And The Crisis In Forensic Science, David S. Caudill

David S Caudill

Drawing on research into the use of experts in early 19th-century criminal trials, the image of mad alchemists in popular culture representations of science, and the distinction between empirical and contingent “interpretive repertoires” in the discourse of scientific controversies, this article explores the controversy over arsenic-detection technologies prior to the Marsh test. In addition to noting the predictable criticism of incompetent expertise in the service of law, this article highlights implied accusations of hubris and amorality on the part of over-confident experts, both in the early 19th-century and in today's crisis of forensic science.

Legal Ethics And Scientific Testimony: In Defense Of Manufacturing Uncertainty, Deconstructing Expertise And Other Trial Strategies, David Caudill

David S Caudill

No abstract provided.

Ringers Revisited, Richard H. Underwood

Law Faculty Scholarly Articles

In this short essay, Professor Underwood addresses an important development in the law dealing with eyewitness testimony and the New Jersey case of State v. Henderson. He gets at the subject by looking back to a 1950s television play starring fellow Kentucky resident, William Shatner. However, in this particular instance, William Shatner would not change the world.

Text Messages And The Hearsay Rule In The Aaron Hernandez Case, Jeffrey Bellin

Popular Media

No abstract provided.

Fifth Amendment Protection For Public Employees: Garrity And Limited Constitutional Protections From Use Of Employer Coerced Statements In Internal Investigations And Practical Considerations, J. Michael Mcguinness

Touro Law Review

No abstract provided.

Limited Admissibility And Its Limitations, Lisa Dufraimont

Articles & Book Chapters

Among the challenges facing juries and judges in adjudicating cases is the obligation to use evidence for limited purposes. Evidence inadmissible for one purpose is frequently admissible for other purposes, a situation known as "limited admissibility". Where limited admissibility arises in jury trials, courts generally deliver limiting instructions outlining the inferences that can legitimately be drawn from the evidence and identifying prohibited lines of reasoning to be avoided. Limiting instructions represent an expedient solution to limited-admissibility problems, but they create obvious problems of their own. A thoughtful observer might suspect-as psychological studies confirm-that limiting instructions are likely to fail in …

The Admissibility Of Hypnotically Enhanced Testimony In Criminal Trials, Gary Shaw

Gary M. Shaw

No abstract provided.

Introduction: Persecution Through Prosecution: Revisiting Touro Law Center’S Conference In Paris On The Dreyfus Affair And The Leo Frank Trial, Rodger D. Citron

Rodger Citron

This piece provides the introduction for the Dreyfus affair. It gives a brief overview of the actual Dreyfus affair and outlines the articles in this volume.

The Military Trial At Rennes: Text And Subtext Of The Dreyfus Affair, Vivian G. Curran

Touro Law Review

Discusses the Dreyfus affair and how the outside world viewed France's conduct. This article provides insight into how the trial was conducted and the evidence that was offered.

The Admissibility Of Cell Site Location Information In Washington Courts, Ryan W. Dumm

Seattle University Law Review

This Comment principally explores when and how a party can successfully admit cell cite location information into evidence. Beginning with the threshold inquiry of relevance, Part III examines when cell site location information is relevant and in what circumstances the information, though relevant, could be unfairly prejudicial, cumulative, or confusing. Part IV provides the bulk of the analysis, which centers on the substantive foundation necessary to establish the information’s credibility and authenticity. Part V looks at three ancillary issues: hearsay, a criminal defendant’s Sixth Amendment confrontation rights, and the introduction of a summary of voluminous records. Finally, Part VI offers …

The Duty Of The Prosecutor To Disclose Unrequested Evidence: United States V. Agurs, Christian F. Dubia Jr

Pepperdine Law Review

No abstract provided.

Civil Litigation In Spain: How To Practice Evidence In Civil Procedure, Elena Martinez

Elena Martinez

Evidence Law and Practice is the key to succeed on a civil procedure. It is possible to have some rights, but if they cannot be proved the desired legal consequences will not be obtained and the proceedings will not finish in a satisfactory manner. In this article we will explain that civil procedure evidence is governed by the dispositive principle and all the principles arising out of it. The rights disputed in civil procedure are private rights, that is, available to the parties. In this regard the parties are entitled to take action and therefore bring a claim, which means …

Not For The Truth Of The Matter: Defendant's Hearsay And The Necessity Of Limiting Instructions In Psychological Defenses, Brian A. Ford

Brian A Ford

This paper presents a thorough discussion of the use of a defendant's hearsay statements to a psychological expert as the basis of the expert's opinion at trial, under California Law.

Why Federal Rule Of Evidence 403 Is Unconstitutional, And Why That Matters, Kenneth S. Klein

University of Richmond Law Review

No abstract provided.