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Data Beyond Borders: Mutual Legal Assistance In The Internet Era, Andrew K. Woods

Law Faculty Scholarly Articles

The global nature of today’s Internet services presents a unique challenge to international law enforcement cooperation. On a daily basis, law enforcement agents in one country seek access to data that is beyond their jurisdictional reach; as one industry analyst put it, there has been, “an internationalization of evidence.” In order to gain lawful access to data that is subject to another state’s jurisdiction, law enforcement agents must request mutual legal assistance (MLA) from the country that can legally compel the data’s disclosure. But the MLA regime has not been updated to manage the enormous rise of requests for MLA. …

Trial By Google: Judicial Notice In The Information Age, Jeffrey Bellin, Andrew Guthrie Ferguson

Northwestern University Law Review

This Article presents a theory of judicial notice for the information age. It argues that the ease of accessing factual data on the Internet allows judges and litigants to expand the use of judicial notice in ways that raise significant concerns about admissibility, reliability, and fair process. State and federal courts are already applying the surprisingly pliant judicial notice rules to bring websites ranging from Google Maps to Wikipedia into the courtroom, and these decisions will only increase in frequency in coming years. This rapidly emerging judicial phenomenon is notable for its ad hoc and conclusory nature—attributes that have the …

Recent Development: Hailes V. State: The State May Appeal A Trial Court's Ruling Excluding A Dying Declaration; The Length Of Time Between A Declarant's Statement And Death Is Irrelevant In A Dying Declaration Analysis; The Confrontation Clause Is Inapplicable To Dying Declarations, Lauren A. Panfile

University of Baltimore Law Forum

The Court of Appeals of Maryland held that the State may appeal a trial court’s suppression of a victim’s dying declaration based on the legislative intent of Section 12-302(c)(4)(i) of the Maryland Code, Courts and Judicial Procedure Article (“section 12-302(c)(4)(i)”). Hailes v. State, 442 Md. 488, 497-98, 113 A.3d 608, 613-14 (2015). The court further held that a victim’s statement, made while on life support, was a dying declaration regardless of the fact that the victim died two years after making the statement. Id. at 506, 113 A.3d at 618. Finally, the court held that the Confrontation Clause of the …

Recent Development: Sublet V. State: Authentication Of Evidence From Social Networking Websites Requires A Trial Judge To Find Sufficient Proof From Which A Reasonable Juror Could Conclude That The Evidence Is What The Proponent Claims It To Be, Denise A. Blake

University of Baltimore Law Forum

The Court of Appeals of Maryland, in three consolidated cases, held that a trial judge must determine that evidence from a social networking website meets the “reasonable juror” standard of authentication as a condition precedent to admissibility. Sublet v. State, 442 Md. 632, 678, 113 A.3d 695, 722 (2015). This standard requires a preliminary determination by the trial judge that a reasonable juror could find the evidence is what the proponent claims it to be.

Recent Development: Allen V. State: Dna Evidence Of A Third Party Found At A Crime Scene Must Be Confirmed By Additional Testing To Permit Admission At Trial; Extra Testing Requirement Does Not Violate The Sixth Amendment, George Makris

University of Baltimore Law Forum

No abstract provided.

Striking A Balance: A Proposed Amendment To The Federal Rules Of Evidence Excluding Partial Apologies, Chandler Farmer

Belmont Law Review

Regarding evidentiary protection for apologies, this note seeks to strike a balance by advocating for the approach adopted by a majority of states: evidentiary protection for some, but not all apologies. Such an approach, while not perfect, aligns the competing interests of encouraging the legal, psychological, and emotional benefits that accompany apologies with preserving a plaintiff’s right to utilize probative evidence. By way of introduction, section one of this note briefly discusses the current legal treatment of apologies in United States jurisdictions. Section two compares the advantages of excluding apologetic statements from evidence with the disadvantages of such evidentiary protection …

Tell Us A Story But Don’T Make It A Good One: Embracing The Tension Regarding Emotional Stories And The Federal Rule Of Evidence 403, Cathren Koehlert-Page

Faculty Scholarship

No abstract provided.

Forensic Evidence And The Court Of Appeal For England And Wales, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

The Criminal Division of the Court of Appeal has extensively analyzed the role of forensic evidence. In doing so, the court has grappled with the admissibility and reliability of a broad range of forensic evidence, from DNA and computer forensics to medical and psychological proof, to more outlying subjects like facial mapping, fiber analysis, or voice identification. The court has analyzed these subjects from two perspectives: the admissibility of such evidence in the lower courts and the admissibility of such evidence as fresh evidence on appeal. In both contexts, the court has taken a practical approach to admitting forensic proof …

The Compensation Conundrum In Partial Takings Cases And The Consequences Of Borough Of Harvey Cedars, Brittany Harrison

Cardozo Law Review de•novo

This Note suggests that the goals the Harvey Cedars court sought to achieve—including reduced windfalls and greater certainty in the law—would best be achieved by applying the market value rule as adopted in California, which follows a value plus damages approach and requires payment for the part taken. Part I of this Note introduces the Harvey Cedars case. Part II provides a historical background to partial takings cases and a discussion of the special benefits doctrine, a type of compensation method that emerged as a compromise position to compensation to better protect condemnees. Part III surveys the various compensation methods …

Data Breach (Regulatory) Effects, David Thaw

Cardozo Law Review de•novo

Breach notification laws have been a major driver of data protection efforts in U.S. organizations for more than a decade. This form of disclosure-based regulation exists in 47 of 50 U.S. states, as well as four other U.S. jurisdictions, but has yet to be adopted as a law of general applicability at the federal level.

This Essay considers the effects the structure of existing disclosure-based cybersecurity regulation has on the efficacy of U.S. firms’ cybersecurity measures. Drawing on previous empirical work and analysis of firm incentives, it suggests two modest conclusions about the most efficacious legal structures: (1) that any …

The Promises And Pitfalls Of State Eyewitness Identification Reforms, Nicholas A. Kahn-Fogel

Law Faculty Scholarship

This article provides a comprehensive analysis of state-based eyewitness identification reforms, including legislative directives, evidentiary rules, and judicial interpretations of state constitutions as providing greater protection against the use of unreliable eyewitness evidence than the United State Supreme Court offered in its 1977 decision in Manson v. Brathwaite. While previous scholarship has included thorough consideration of a single state's eyewitness law, state-by-state analysis of a sub-issue in eyewitness law, and brief general surveys of state approaches to eyewitness reform, this article adds to the current body of scholarship with an in-depth evaluation of eyewitness identification law in states that have …

The Implementation Of Judicial Policy In Crime Laboratories : An Examination Of The Impact Of Melendez-Diaz V. Massachusetts, Catherine L. Bonventre

Legacy Theses & Dissertations (2009 - 2024)

In Melendez-Diaz v. Massachusetts (2009), the United States Supreme Court held that the Sixth Amendment right to confront adverse witnesses includes the right to confront forensic analysts who produce affidavits certifying the results of forensic examinations used against defendants at trial. The decision thus invalidated the practice of substituting forensic laboratory reports for live testimony in criminal trials. Melendez-Diaz was a divided decision in which four dissenting Justices predicted onerous practical consequences for the practice of forensic science in the United States. Through a web-based survey and semi-structured interviews, this dissertation explored the practical impact of the decision on crime …

Panel 4: Translational Expectations And Issues: Making It Work In Practice, Stacey A. Tovino

Other Faculty Publications

No abstract provided.

The Texas Rules Of Evidence: Something Old, Something New, And Something Changed, David A. Schlueter

Faculty Articles

On November 19, 2014, the Texas Supreme Court issued an Order amending all of the Texas Rules of Evidence, effective April 1, 2015. In its Order, the Court explained that the amendments were part of an effort to “restyle” the Rules, to make them as consistent as possible with the Federal Rules of Evidence, and to make them easier to understand.

The 2015 amendments to the Texas Rules of Evidence are a commendable step toward making the Rules more user-friendly. It is clear to even the casual reader that the reformatting of the Rules, through the use of consistent and …

Storming The Castle: Fernandez V. California And The Waning Warrant Requirement, Joshua Bornstein

Loyola of Los Angeles Law Review

No abstract provided.

Using The Dna Testing Of Arrestees To Reevaluate Fourth Amendment Doctrine, Steven P. Grossman

All Faculty Scholarship

With the advent of DNA testing, numerous issues have arisen with regard to obtaining and using evidence developed from such testing. As courts have come to regard DNA testing as a reliable method for linking some people to crimes and for exonerating others, these issues are especially significant. The federal government and most states have enacted statutes that permit or direct the testing of those convicted of at least certain crimes. Courts have almost universally approved such testing, rejecting arguments that obtaining and using such evidence violates the Fourth Amendment.

More recently governments have enacted laws permitting or directing the …

Negotiator's Nook: The Ins And Outs Of Effective Negotiation, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Temporal Arbitrariness: A Back To The Future Look At A Twenty-Five-Year-Old Death Penalty Trial, Mary Kelly Tate

Law Faculty Publications

his essay grapples with a previously unexamined feature of the death penalty: temporal arbitrariness. How does the circumstance of time affect capital defendants? What might this mean for the stability of our notions of justice? I explore these questions using a 25-year-old death penalty trial as a case study, examining the procedural and factual highlights of the case and situating it in its temporal milieu. I then explore how the roles of doctrine, policy, and cultural attitudes would dramatically alter the nature and probable outcome of the case today, illustrating how temporal arbitrariness further exposes the death penalty’s unsteady administration …

Panel 3: Chronic Pain, Psychogenic Pain, And Emotion, Robert Dinerstein

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Myth Of The Double- Edged Sword: An Empirical Study Of Neuroscience Evidence In Criminal Cases, Deborah W. Denno

Faculty Scholarship

This Article presents the results of my unique study of 800 criminal cases addressing neuroscience evidence over the past two decades (1992–2012). Many legal scholars have theorized about the impact of neuroscience evidence on the criminal law, but this is the first empirical study of its kind to systematically investigate how courts assess the mitigating and aggravating strength of such evidence. My analysis reveals that neuroscience evidence is usually offered to mitigate punishments in the way that traditional criminal law has always allowed, especially in the penalty phase of death penalty trials. This finding controverts the popular image of neuroscience …

The Case For Evidence-Based Free Exercise Accommodation: Why The Religious Freedom Restoration Act Is Bad Public Policy, Marci A. Hamilton

Articles

No abstract provided.

Sentencing Complexities In National Security Cases, Chris Jenks

Faculty Journal Articles and Book Chapters

Military national security courts-martial infrequently occur. When they do occur, military counsel, judges, and court personnel endeavor to perform their function at a high level. Unfortunately, the process by which the U.S. government conducts classification reviews and the military’s inexperience in national security cases often results in the form of safeguarding classified information trumping the substantive function of the underlying trial process. And by the time the sentencing phase is reached, understandable but unfortunate focus is placed on simply concluding the trial without mishandling classified information.

This article examines the sentencing complexities in military national security cases, first defining a …

Sentencing Complexities In National Security Cases, Chris Jenks

Faculty Journal Articles and Book Chapters

Military national security courts-martial infrequently occur. When they do occur, military counsel, judges, and court personnel endeavor to perform their function at a high level. Unfortunately, the process by which the U.S. government conducts classification reviews and the military’s inexperience in national security cases often results in the form of safeguarding classified information trumping the substantive function of the underlying trial process. And by the time the sentencing phase is reached, understandable but unfortunate focus is placed on simply concluding the trial without mishandling classified information.

This article examines the sentencing complexities in military national security cases, first defining a …

First Amendment Decisions - 2002 Term, Joel Gora

Touro Law Review

No abstract provided.

The Adverse Inference Instruction After Revised Rule 37(E): An Evidence-Based Proposal, Shira A. Sheindlin, Natalie M. Orr

Fordham Law Review

No abstract provided.

Contents May Have Shifted: Disentangling The Best Evidence Rule From The Rule Against Hearsay, Colin Miller

Washington and Lee Law Review Online

The rule against hearsay covers a statement offered to prove the truth of the matter asserted but does not cover a statement offered for another purpose. Meanwhile, the Best Evidence Rule states that a party seeking to prove the content of a writing, recording, or photograph must produce the original or account for its nonproduction. Does this mean that the Rule is inapplicable when a party seeks to prove something other than the truth of the matter asserted in a writing, recording or photograph? Most courts have answered this question in the affirmative. This essay argues these courts are wrong.

Symposium On The Challenges Of Electronic Evidence, Panel Discussion

Fordham Law Review

The Phillip D. Reed Lecture Series: Advisory Committee on Evidence Rules

The Court As Gatekeeper: Preventing Unreliable Pretrial Ediscovery From Jeopardizing A Reliable Fact-Finding Process, Daniel K. Gelb

Fordham Law Review

No abstract provided.

The Case For Ehearsay, Jeffrey Bellin

Fordham Law Review

No abstract provided.

Memorandum: Hearsay Exception For Electronic Communications Of Recent Perception, Daniel J. Capra

Fordham Law Review

No abstract provided.