Law Commons^™

Voices On Innocence, Lucian E. Dervan, Richard A. Leo, Meghan J. Ryan, Valena Elizabeth Beety, Gregory M. Gilchrist, William W. Berry

Law Faculty Scholarship

In the summer of 2015, experts gathered from around the country to sit together and discuss one of the most pressing and important issues facing the American criminal justice system – innocence. Innocence is an issue that pervades various areas of research and influences numerous topics of discussion. What does innocence mean, particularly in a system that differentiates between innocence and acquittal at sentencing? What is the impact of innocence during plea bargaining? How should we respond to growing numbers of exonerations? What forces lead to the incarceration of innocents? Has an innocent person been put to death and, if …

Law And Politics, An Emerging Epidemic: A Call For Evidence-Based Public Health Law, Michael Ulrich

Faculty Scholarship

As Jacobson v. Massachusetts recognized in 1905, the basis of public health law, and its ability to limit constitutional rights, is the use of scientific data and empirical evidence. Far too often, this important fact is lost. Fear, misinformation, and politics frequently take center stage and drive the implementation of public health law. In the recent Ebola scare, political leaders passed unnecessary and unconstitutional quarantine measures that defied scientific understanding of the disease and caused many to have their rights needlessly constrained. Looking at HIV criminalization and exemptions to childhood vaccine requirements, it becomes clear that the blame cannot be …

Reducing Wasteful Incarcerations, Christopher Robertson, Jamie Cox Robertson

Faculty Scholarship

Prisons are essential to a safe and civil society. Prisons are also costly for the taxpayers whose government houses, feeds, medicates, and supervises millions of people underlock and key.This expense is compounded by errors in the u.S. legal system that produces both false guilty verdicts and overly harsh penalties. It’stime forthe united States to take a closer look at these unnecessary incarcerations. By working to release prisoners who don’t belong in prison, we can lower the costs of the prison system—not to mention restore freedom to people who are wrongly being deprived of it. unfortunately, it is difficult to identify …

Law Enforcement Access To Data Across Borders: The Evolving Security And Rights Issues, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

No abstract provided.

G2i Knowledge Brief: A Knowledge Brief Of The Macarthur Foundation Research Network On Law And Neuroscience, David L. Faigman, Anthony Wagner, Richard J. Bonnie, Bj Casey, Andre Davis, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim Taylor-Thompson, Gideon Yaffe

Faculty Scholarship

Courts are daily confronted with admissibility issues – such as in cases involving neuroscientific testimony – that sometimes involve both the existence of a general phenomenon (i.e., “G”) and the question of whether a particular case represents a specific instance of that general phenomenon (i.e., “i”).

Unfortunately, courts have yet to carefully consider the implications of “G2i” for their admissibility decisions. In some areas, courts limit an expert’s testimony to the general phenomenon. They insist that whether the case at hand is an instance of that phenomenon is exclusively a jury question, and thus not an appropriate subject of expert …

Is Courtesy No Longer Contagious, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Paddling In Mr. Potter's Backyard: Navigating New York's Navigable-In-Fact Doctrine, Matthew Ingber

Touro Law Review

No abstract provided.

Barber V. State, 131 Nev. Adv, Op. 103 (December 31, 2015), Ronni N. Boscovich

Nevada Supreme Court Summaries

The Court considered an appeal from a district court conviction. The Court reversed the Eighth Judicial District Court’s judgment of conviction, pursuant to a jury verdict of burglary and grand larceny. The juvenile court retains jurisdiction over Barber because the legislation did not include language regarding jurisdiction stripping or dismissal requirements. However, the Court reversed the judgment because the prosecution presented insufficient evidence to support Barber’s conviction.

Schools Fail To Get It Right On Rap Music, Andrea L. Dennis

Popular Media

School officials treat rap music as a serious threat to the school environment. Fear and misunderstanding of, as well as bias against, this highly popular and lucrative musical art form negatively shape their perspectives on this vital aspect of youth culture.

As a result, students who express themselves through rap music in a way that challenges the schoolhouse setting risk the possibility of suspension, permanent exclusion and referral to the criminal justice system.

The ongoing case of Taylor Bell is the latest and most complex battleground on which this issue is playing out.

Valenti V. Nev. Dep’T Of Motor Vehicles, 131 Nev. Adv. Op. 87 (Nov. 5, 2015), Shannon Diaz

Nevada Supreme Court Summaries

The Court determined that a “chemist” as defined by NRS § 50.320must be qualified as an expert in a Nevada court of record prior to the admission of his or her affidavit attesting to an individual’s blood-alcohol concentration in a driver’s license revocation hearing

From The Editors: Ferguson And Its Impact On Legal Education Symposium, Marc Spindelman, Thomas D. Cobb, Kellye Testy, Kate O'Neill

Journal of Legal Education

No abstract provided.

Reverse Broken Windows, Christopher R. Green

Journal of Legal Education

No abstract provided.

Civil Practice And Procedure, John R. Walker, Jaime B. Wisegarver

University of Richmond Law Review

No abstract provided.

Prejudicial Character Evidence: How The Circuits Apply Old Chief To Federal Rule Of Evidence 403, Hannah J. Goldman

Fordham Law Review

    It is a fundamental principle of the American justice system that a defendant should be judged on the facts of the case at issue and not for the defendant's general character or past indiscretions. Federal Rule of Evidence 404, which prohibits character evidence, addresses this issue. Rule 403 represents another principle of the justice system: the legal system favors admissibility of evidence over its exclusion. There are some exceptions to this principle, including when evidence is so highly prejudicial that it outweighs the benefits of its admission. As 404(b) character evidence is almost always highly prejudicial to the defendant, trial …

Preservation Rules In The Federal Courts Of Appeals, Ian S. Speir, Nima H. Mohebbi

The Journal of Appellate Practice and Process

No abstract provided.

The Incompatibility Of Due Process And Naked Statistical Evidence, G. Alexander Nunn

Faculty Scholarship

Numerous articles and commentaries have grappled with an undeniable feeling of injustice that comes from wrestling with naked statistical evidence. Even if, from a purely quantitative standpoint, the weight of the evidence supports the imposition of liability on a defendant, the sole use of probabilities to assess this liability seems innately unfair. This tension has spawned a great debate that questions the role of naked statistical evidence in today’s legal system. Contributing to this discourse, this Note argues that, in certain circumstances, the use of naked statistical evidence constitutes a due process violation. United States circuit courts have held that …

Ultracrepidarianism In Forensic Science: The Hair Evidence Debacle, David H. Kaye

Washington and Lee Law Review Online

For over 130 years, scientific sleuths have inspected hairs under microscopes. Late in 2012, the FBI, the Innocence Project, and the National Association of Criminal Defense Lawyers joined forces to review thousands of microscopic hair comparisons performed by FBI examiners over several of those decades. The results have been astounding. Based on the first few hundred cases in which hairs were said to match, it appears that examiners exceeded the limits of science in over 90% of their reports or testimony. The disclosure of this statistic has led to charges that the FBI faked an entire field of forensic science, …

Florida's "Brave New World": The Transition From Frye To Daubert Will Transform The Playing-Field For Litigants In Medical Causation Cases, Erica W. Rutner, Lara B. Bach

Barry Law Review

No abstract provided.

Privilege Against Self-Incrimination - Right To Compel A Suspect To Perform Physical Acts; City Of Piqua V. Hinger, Charles P. Brumbach

Akron Law Review

The writer respectfully disagrees with the Ohio Supreme Court's interpretation of Schmerber as standing for the proposition that such compelled evidence is admissible under the Fifth Amendment to the Constitution. In Schmerber the court merely recognized the evidential distinction between real and testimonial or communicative evidence and ruled that the distinction was determinative in that case. The court acknowledged that there are many possible situations in which the distinction could not so readily be applied. It is submitted that the facts of the instant case present one of those situations.

The Admissibility Of Polygraph ("Lie Detector") Evidence Pursuant To Stipulation In Criminal Proceedings, Bruce C. Heslop

Akron Law Review

American courts have traditionally held that evidence pertaining to the results of a lie-detector test is inadmissible in a criminal proceeding on behalf of either the prosecution or defense….In recent years, however, a few jurisdictions have withdrawn from the traditional approach and have admitted lie-detector evidence in limited situations, notwithstanding objection by the adverse party….The decision of whether or not to adopt the approach presented here must critically evaluate the potential value of polygraph evidence along with its potential dangers. In so doing, the courts of Ohio should determine whether a procedure may be devised to maximize the value and …

Evidence - Admissibility Of Statements To Parole Officer - Miranda Warnings; State V. Gallagher, Thomas A. Treadon

Akron Law Review

The opinion handed down in this recent decision from the Montgomery County Court of Appeals examined a question of first impression in the courts of Ohio. The issue presented was "whether a parole or probation officer is a law enforcement officer within the contemplation of Miranda and thus subject to the Miranda requirements of constitutional warnings to suspects during custodial interrogation...."

Ohio's New Rape Law: Does It Protect Complainant At The Expense Of The Rights Of The Accused?, Barbara Child

Akron Law Review

WITH THE ENACTMENT of Am. Sub. S.B. 144,1 Ohio has now joined the small group of states' that are revising their rape laws in measures significant enough to indicate that a trend may be underway. Ohio's new law is designed to protect victims of sex offenses: it contains major provisions affecting (1) the definition of rape itself; (2) new services for victims; (3) record suppression; (4) evidence rules; and (5) sentencing for certain offenders. The new law attempts to secure complainants' rights to privacy and equal protection together with defendants' rights to a fair trial and due process; however, the …

Ohio's "Similar Acts Statute": Its Uses And Abuses, David L. Herbert, Dick W. Mount Jr.

Akron Law Review

Notwithstanding the lack of uniform analysis of the Act, this article should isolate the main areas of confusion and hopefully provide some "food for thought" which may in itself help to resolve the ambiguities of the statute. Moreover, the discussion offered herein may prompt the recently established Ohio Evidence Rules Committee to devote some time to the formulation of a clearer evidentiary statement on prosecutorial use of "other acts" testimony in criminal cases.

Admissibility Of Voiceprints Not Limited To "Corroborative Purposes" Unted States V. Franks, R. Brent Chapman

Akron Law Review

ON FEBRUARY 12, 1975, the United States Court of Appeals for the Sixth Circuit decided United States v. Franks,' affirming a district court ruling, which permitted the use of voiceprints for purposes of identification and marking the first occasion in which a circuit court had held such evidence admissible.

Affirmative Defenses; Defendant's Burden Of Proof: Defense Of Extreme Emotional Disturbance; Due Process; Patteron V. New York, Lee Ann Johnson

Akron Law Review

The United States Supreme Court in Patterson v. New York upheld the constitutionality of a New York murder statute which places on the defendant the burden of proving extreme emotional disturbance. The Court thereby determined that New York courts in applying the statute against defendant Gordon Patterson had not violated his right to due process of law

Motor Vehicles; Driving While Intoxicated; Section 4511.19; Implied Consent; Aurora V. Kepley, Amie Bruggeman

Akron Law Review

With the constant problem of accidents caused by drinking drivers and the fairly reliable results of breathalyzer tests established, judicial decisions have upheld the statutory scheme providing for its use through an era when rights of an accused have been greatly expanded. It has been held that the breathalyzer test results are not testimonial but physical evidence and therefore not protected by the Fifth Amendment privilege against self-incrimination. Thus, the accused has no constitutional right to refuse to take the test, and the prosecutor may comment at the trial on his refusal relying on its' probative value as to whether …

Sixth Amendment; Right Of Confrontation Limitations On The Bruton Rule; Parker V. Randolph, Edward P. Mazak

Akron Law Review

In some joint criminal trials the right of one defendant to refrain from self incrimination may come into conflict with the right of another defendant to confront the witnesses against him. The problem arises when one defendant refuses to testify at trial after having made a voluntary, out of court statement which tends to implicate a second defendant. The rules of evidence allow the statement to be introduced at trial only against the party making it; its use against the implicated defendant is excluded as hearsay.' The rules also provide for the court to instruct the jury on the limited …

The Use Of Prior Inconsistent Statements Of Opinion To Impeach: Ohio's Position, Richard Milligan

Akron Law Review

The purpose of this article is to examine prior inconsistent statements of opinion and point out why their exclusion, when offered to impeach, is improper. Ohio's three leading cases on this point will serve to exemplify the improper characterization and exclusion of these statements.

Presumptions And Modal Logic: A Hohfeldian Approach, John P. Finan

Akron Law Review

The difficulty of distinguishing between an inference and a presumption, a difficulty that bedevils tort and evidence teachers, (see Appendix I) among others, may be dispelled by a study of the deontic nature of permissible inferences and presumptions. Using scholastic terminology, an inference is a function of the intellect, not the will. Therefore, deontic notions of permission and duty seem foreign to inference. However, deontic notions are legitimate, because the law, in assigning a fact finding function to judge and jury, uses deontic notions in assigning fact finding competence. Thus, the statement that an inference is not permissible means that …

Hypnosis In Our Legal System: The Status Of Its Acceptance In The Trial Setting, Joel R. Hlavaty

Akron Law Review

Hypnosis is a method of therapy which has been utilized by society for quite some time. Recently, it has gained popularity as a new device to be used in the trial setting. Although it is a legitimate method of therapy in the medical and psychological professions, in the hands of attorneys and the legal system it takes on a whole new life. This new life is plagued with questions of admissibility, reliability and suggestibility. This comment will examine these questions and the use of hypnosis in the various stages of trial. This paper will show that some courts hold such …