Law Commons^™

Does Congress Find Facts Or Construct Them - The Ascendance Of Politics Over Reliability, Perfected In Gonzales V. Carhart, Elizabeth De Coux

Cleveland State Law Review

The disparity between the rules of courts and the rules of Congress gives rise to this question: is the rigor-or lack of it-with which Congress evaluates the reliability of evidence an appropriate factor for courts to consider in deciding whether to defer to a congressional finding? In this Article, I consider whether Congress should adopt rules to fill the void. In Part I, I give a brief summary of the development and use of Congressional Committees. In Part II, I analyze several modern-day congressional hearings in an effort to examine the degree to which Congress and its committees require that …

The Confrontation Right Across The Systemic Divide, Richard D. Friedman

Book Chapters

In his notable work, Evidence Law Adrift, Mirjan Damaška identified three pillars of the common law system of determining facts in adjudication, and examined these through a comparative lens: the organisation of the trial court; the phenomenon of temporally compressed trials; and a high degree of control by parties and their counsel. In reviewing the book, I suggested that a strong concept of individual rights was another critical feature of the common law system, especially in its American variant and especially with respect to criminal defendants.

In this essay, I will explore how these four features play out in the …

Minnesota's Distortion Of Rule 609, Ted Sampsell-Jones

Faculty Scholarship

Rule of Evidence 609, which governs the admission of prior convictions of a witness for purposes of impeachment, occupies an important place in the day to day operation of American criminal trials. The rule is a compromise that reflects these competing values. It admits some prior convictions but not all. Crimen falsi offenses such as perjury and fraud are automatically admissible under 609(a)(2). All other felonies are analyzed under the balancing test of 609(a)(1), which allows the admission of a defendant-witness's crimes if the “probative value of admitting this evidence outweighs its prejudicial effect to the accused.” The rule seeks …

Case Comment - People V. Nelson: A Tale Of Two Statistics, David H. Kaye

Faculty Scholarship

In recent years, defendants who were identified as a result of a search through a database of DNA profiles have argued that the probability that a randomly selected person would match a crime-scene stain overstates the probative value of the match. The statistical literature is divided, with most statisticians who have written on the subject rejecting this claim. In People v. Nelson, the Supreme Court of California held that when the random-match probability is so small as to make it exceedingly unlikely that any unrelated individual has the incriminating DNA profile, this statistic is admissible in a database-search case. …

Interpreting The Phrase "Newly Discovered Evidence": May Previously Unavailable Exculpatory Testimony Serve As The Basis For A Motion For A New Trial Under Rule 33?, Mary Ellen Brennan

Fordham Law Review

Rule 33 of the Federal Rules of Criminal Procedure permits a federal court to grant a new trial to a criminal defendant if the “interest of justice so requires,” specifying as one potential basis the availability of “newly discovered evidence.” The federal circuit courts have disagreed as to whether postconviction testimony proffered by a codefendant who had remained silent at trial may serve as the basis for a Rule 33 motion grounded on newly discovered evidence. A majority of the federal circuits, including, most recently, the U.S. Court of Appeals for the Second Circuit, have held that, while a codefendant’s …

Wrongly Accused Redux: How Race Contributes To Convicting The Innocent: The Informants Example, Andrew E. Taslitz

School of Law Faculty Publications

This article analyzes five forces that may raise the risk of convicting the innocent based upon the suspect's race: the selection, ratchet, procedural justice, bystanders, and aggressive-suspicion effects. In other words, subconscious forces press police to focus more attention on racial minorites, the ratchet makes this focus every-increasing, the resulting sense by the community of unfair treatment raises its involvment in crime while lowering its willingness to aid the police in resisting crime, innocent persons suffer when their skin color becomes associated with criminality, and the police use more aggressive techniques on racial minorities in a way that raises the …

It's About Time: The Need For A Uniform Approach To Using A Prior Conviction To Impact A Witness., Robert F. Holland

St. Mary's Law Journal

In Texas, no uniform approach exists in determining whether to admit evidence of a prior conviction as a technique to impeach a witness. This lack of uniformity leads to significant consequences for the parties and poses a potential prejudicial effect on the truthful character of a witness. Furthermore, there is currently no bright-line judicial standard when evaluating the admissibility of certain prior convictions. Although the Texas Court of Criminal Appeals in Theus v. State provided a non-exhaustive set of factors for trial judges to consider, the court has yet to clarify particular aspects of how to properly apply Texas Rule …

Nontestimonial Identification Orders For Dna Testing, Paul C. Giannelli

Faculty Publications

No abstract provided.

"Anything You Say May Be Used Against You": A Proposed Seminar On The Lawyer’S Duty To Warn Of Confidentiality’S Limits In Today's Post-Enron World, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

In light of recent developments, the confidence that one's communications with a lawyer will remain sacrosanct today may be badly misplaced. This raises important questions concerning the duty of lawyers: When, to what extent, and in what detail, does an attorney communicating with someone who may expect confidentiality, have a duty to explain in advance the circumstances under which the information gained may subsequently be revealed pursuant to these or other confidentiality loopholes? Will the interviewee “clam up” in the face of such Miranda-like warnings? If so, what does this do to the premise of Upjohn and the Model Rule …

Revisiting The Application Of The Exclusionary Rule To The Good Faith Exceptions In Light Of Hudson V.Michigan, Shenequa L. Grey

University of San Francisco Law Review

This Article examines other instances where the Supreme Court has historically held evidence inadmissible to determine whether such evidence should now be admissible in light of the Hudson v. Michigan analysis.

Assessing Fourth Amendment Challenges To Dna Extraction Statutes After Samson V. California, Charles J. Nerko

Fordham Law Review

DNA plays an indespensable role in modern law enforcement, and courts uniformly find that DNA extraction statutes targeting criminals satisfy the Fourth Amendment. Courts differ on which Fourth Amendment test--totality of the circumstances or special needs--ought to be employed in this context. This Note concludes the courts should apply Samson v. California's less stringent totality of the circumstances test to analyze DNA extraction statutes in order to maintain the integrity of the special needs test.

More Views From The Ivory Tower: The Kiss Principle - Keep It Simple, Solicitor, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Proving Causation: The Holism Of Warrant And The Atomism Of Daubert, Susan Haack

Articles

No abstract provided.

Teaching Evidence, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

This article was published as part of the 2006 teaching issue of the Saint Louis University Law Journal. The teaching series was created as a forum for scholars, judges, and students to discuss methods for the effective teaching and learning of particular law school courses. In this essay, Professor Rothstein describes his philosophy and methods for teaching evidence.

Exculpatory Evidence, Ethics, And The Road To The Disbarment Of Mike Nifong: The Critical Importance Of Full Open-File Discovery, Robert P. Mosteller

Faculty Publications

No abstract provided.

Science In The Jury Box: Jurors' Views And Understanding Of Mitochondrial Dna Evidence, Valerie P. Hans, David H. Kaye, B. Michael Dann, Erin J. Farley, Stephanie Albertson

Cornell Law Faculty Publications

This article describes parts of an unusually realistic experiment on the comprehension of expert testimony on mitochondrial DNA (mtDNA) sequencing in a criminal trial for robbery. Specifically, we examine how jurors who responded to summonses for jury duty evaluated portions of videotaped testimony involving probabilities and statistics. Although some jurors showed susceptibility to classic fallacies in interpreting conditional probabilities, the jurors as a whole were not overwhelmed by a 99.98% exclusion probability that the prosecution presented. Cognitive errors favoring the defense were more prevalent than ones favoring the prosecution. These findings lend scant support to the legal argument that mtDNA …

Fact, Fiction And Proof In The 21st Century: Evidence And Credibility For Fact Finding By Administrative Law Judges, Lynn Mclain

All Faculty Scholarship

Handout from a panel at the NAALJ Annual Conference covering credibility.

Hearsay Law: Recent Developments In Maryland And In The Supreme Court, Lynn Mclain

All Faculty Scholarship

Handout from an Anne Arundel County Bar Association CLE class concerning then-recent developments in Maryland hearsay rules.

The History Of Children's Hearsay: From Old Bailey To Post-Davis, Thomas D. Lyon, Raymond Lamagna

Indiana Law Journal

The papers in this symposium were originally prepared for the Section on Evidence of the 2007 Annual Meeting of the Association of American Law Schools.

Comments On Child Abuse Litigation In A "Testimonial" World: The Intersection Of Competency, Hearsay, And Confrontation, Myrna S. Raeder

Indiana Law Journal

The papers in this symposium were originally prepared for the Section on Evidence of the 2007 Annual Meeting of the Association of American Law Schools.

Who Knew? The Admissibility Of Subsequent Remedial Measures When Defendants Are Without Knowledge Of The Injuries, Ryan G. Vacca

Akron Law Faculty Publications

Federal Rule of Evidence 407 and equivalent state court rules prohibit the introduction of subsequent remedial measures for the purpose of demonstrating negligence, culpable conduct, or product defect. The rule breaks down, however, in application and purpose, when a defendant undertakes a new safety measure after the plaintiff's injury but before the defendant had knowledge of the loss. Such a situation is not uncommon. Would-be defendants frequently improve their products and product safety, whether in response to injuries incurred by other users, business pressures, or simply advances in the state of the art and scientific knowledge. Toxic exposure cases, where …

Judging Genes: Implications Of The Second Generation Of Genetic Tests In The Courtroom, Diane E. Hoffmann, Karen H. Rothenberg

Faculty Scholarship

The use of DNA tests for identification has revolutionized court proceedings in criminal and paternity cases. Now, requests by litigants to admit or compel a second generation of genetic tests – tests to confirm or predict genetic diseases and conditions – threaten to affect judicial decision-making in many more contexts. Unlike DNA tests for identification, these second generation tests may provide highly personal health and behavioral information about individuals and their relatives and will pose new challenges for trial court judges. This article reports on an original empirical study of how judges analyze these requests and uses the study results …

Inadmissible, Eh?, Jocelyn Downie, Ronalda Murphy

Articles, Book Chapters, & Popular Press

In this commentary, we respond to Stacey Tovino's invitation to reflect further on specific legal issues she raises in relation to functional magnetic resonance imaging (fMRI) and the law (Tovino 2007). Specifically, we take up the issue of evidence law. We do this from a Canadian perspective because, unlike in the United States, this topic has not "been debated for almost 10 years" here (Tovino 2007, 44).

Credibility: A Fair Subject For Expert Testimony?, Anne Poulin

Working Paper Series

This article explores the ways in which experts can assist the jury to assess the credibility of other witnesses and suggests analytical approaches to such expert testimony. The article argues that the courts should be more receptive to expert testimony bearing on witness credibility and engage in a more nuanced consideration of the role played by proffered expert testimony and how the role of the evidence affects its admissibility. Doing so should lead the courts to embrace the promise of the modern rules of evidence and permit experts to assist juries as they assess credibility.

Hope For The Best And Prepare For The Worst: The Capital Defender's Guide To Reciprocal Discovery In The Sentencing Phase Of Georgia Death Penalty Trials, Adam Levin

Georgia State University Law Review

No abstract provided.

Misjudging, Chris Guthrie

Nevada Law Journal

No abstract provided.

Independent Judicial Research In The Daubert Age, Edward K. Cheng

Duke Law Journal

The Supreme Court's Daubert trilogy places judges in the unenviable position of assessing the reliability of often unfamiliar and complex scientific expert testimony. Over the past decade, scholars have therefore explored various ways of helping judges with their new gatekeeping responsibilities. Unfortunately, the two dominant approaches, which focus on doctrinal tests and external assistance mechanisms, have been largely ineffective. This Article advocates for a neglected but important method for improving scientific decisionmaking--independent judicial research. It argues that judges facing unfamiliar and complex scientific admissibility decisions can and should engage in independent library research to better educate themselves about the underlying …

Hudson And Samson: The Roberts Court Confronts Privacy, Dignity, And The Fourth Amendment, John D. Castiglione

ExpressO

This article critically analyzes Samson v. California and Hudson v. Michigan, which were the Roberts Court's first major Fourth Amendment decisions. In Samson, the Court upheld a California law allowing government officials to search parolees without any suspicion of wrongdoing. In Hudson, to the surprise of almost every observer, the Court held that knock-and-announce violations do not carry with them a remedy of exclusion. What was most notable about Hudson was not only that it rejected what every state and every federal court, save one, believed to be the proper remedy for knock-and-announce violations, but that it called into question …

Is Silence Sacred? The Vulnerability Of Griffin V. California In A Terrorist World, Lissa Griffin

William & Mary Bill of Rights Journal

No abstract provided.

Here Is The Church, Now Who Owns The Steeple? A Revised Approach To Church Property Disputes, Adam E. Lyons

William & Mary Bill of Rights Journal

This Article reviews two approaches to the implementation of neutral principles of law--the constitutionally permissible method of resolving property disputes between bodies in a religious hierarchy. Though both approaches may be valid, the formal title approach, as implemented by the Pennsylvania Supreme Court in Presbytery of Beaver- Butler v. Middlesex Presbyterian Church, leads to problems in application that have been rectified by that court's more recent decision in In re Church of St. James the Less. It is the contention of this Article that future courts and practitioners facing church property disputes can draw guidance from the St. James decision …