Law Commons^™

Shaky Science: Shaken Baby Syndrome And Its Disproportionate Impact On False Convictions Of Women Of Color, Shae A. Woodburn

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

Shaken Baby Syndrome (SBS) is a controversial diagnosis and an even more controversial basis for conviction. The syndrome is questioned by scientists and doctors who have yet to come to a consensus on its diagnosis. Courts have permitted SBS evidence to be admitted in criminal trials, and many people have been convicted solely on the basis of this controversial diagnosis. This Note seeks to analyze the history of SBS, the conflicts in the medical and scientific community, standards of evidence that permit its admission in court, and how all of these factors converge in a way that disproportionately impacts women …

(Partial) Clarity: Eliminating The Confusion About The Regulation Of The "Fact"Ual Bases For Expert Testimony Under The Federal Rules Of Evidence, Edward J. Imwinkelried

William & Mary Law Review

Expert testimony is offered at the vast majority of trials in courts of general jurisdiction in the United States. Federal Rules of Evidence 702-06 govern the admissibility of such testimony. In its May 15, 2021, report accompanying the most recent proposed amendment to Rule 702, the Advisory Committee on the Evidence Rules asserts that “many courts” have misapplied Rule 702 by holding that questions as to whether “the expert has relied on sufficient facts or data ... are questions of weight and not admissibility.” Rule 702(b) states that to be admissible, an expert opinion must be “based on sufficient fact …

Trauma And Memory In The Prosecution Of Sexual Assault, Cynthia V. Ward

Faculty Publications

Part I of this article traces the history of the recovered memory movement in the criminal prosecution of sexual assault, discussing some prominent cases and their consequences for wrongly convicted defendants. Part II asks why the criminal law was so vulnerable to claims of sexual assault, and other violent crimes, that were often wildly improbable on their face. The article concludes that the structure of recovered memory theory had the effect of disabling checks in the criminal process which are designed to prevent unjust convictions. Part III applies that conclusion to the theory of Trauma-informed Investigation (TII) and the "Neurobiology …

Climate Change Science And The Daubert Standard, Fred K. Morrison, Craig Manson, Matthew C. Wickersham

William & Mary Environmental Law and Policy Review

Climate change science attempts to predict the future based on complex modeling of potential levels of CO2, other greenhouse gases, manmade conditions, and naturally occurring events. Even the most widely cited analysis of climate change studies expressly acknowledges the limitations on accurately predicting the effects of climate change on anything other than a macro basis.1 These studies acknowledge substantial uncertainty in the prediction of climate change and its effects on a regional level, much less on a local level.2 Recent lawsuits brought by the State of Rhode Island; the counties of King (Washington), Marin (California), and San Mateo (California); the …

Scientific Evidence - An Introduction, Fredric I. Lederer

Fredric I. Lederer

No abstract provided.

Reading Together And Apart: Juries, Courts, And Substantial Similarity In Copyright Law, Laura A. Heymann

Laura A. Heymann

No abstract provided.

Reading Together And Apart: Juries, Courts, And Substantial Similarity In Copyright Law, Laura A. Heymann

Faculty Publications

No abstract provided.

Defending Daubert: It's Time To Amend Federal Rule Of Evidence 702, David E. Bernstein, Eric G. Lasker

William & Mary Law Review

The 2000 amendments to Rule 702 sought to resolve the debate that had emerged in the courts in the 1990s over the proper meaning of Daubert by codifying the rigorous and structured approach to expert admissibility announced in the Daubert trilogy. Fifteen years later, however, the amendments have only partially accomplished this objective. Many courts continue to resist the judiciary’s proper gatekeeping role, either by ignoring Rule 702’s mandate altogether or by aggressively reinterpreting the Rule’s provisions.

Informed by this additional history of recalcitrance, the time has come for the Judicial Conference to return to the drafting table and finish …

The True Legacy Of Atkins And Roper: The Unreliability Principle, Mentally Ill Defendants, And The Death Penalty’S Unraveling, Scott E. Sundby

William & Mary Bill of Rights Journal

In striking down the death penalty for intellectually disabled and juvenile defendants, Atkins v. Virginia and Roper v. Simmons have been understandably heralded as important holdings under the Court’s Eighth Amendment jurisprudence that has found the death penalty “disproportional” for certain types of defendants and crimes. This Article argues, however, that the cases have a far more revolutionary reach than their conventional understanding. In both cases the Court went one step beyond its usual two-step analysis of assessing whether imposing the death penalty violated “evolving standards of decency.” This extra step looked at why even though intellectual disability and youth …

Challenges Of Conveying Intellectual Disabilities To Judge And Jury, Caroline Everington

William & Mary Bill of Rights Journal

No abstract provided.

The Daryl Atkins Story, Mark E. Olive

William & Mary Bill of Rights Journal

No abstract provided.

Does Atkins Make A Difference In Non-Capital Cases? Should It?, Paul Marcus

William & Mary Bill of Rights Journal

No abstract provided.

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 …

Misapplication Of The Attorney Malpractice Paradigm To Litigation Services: "Suit Within A Suit" Shortcomings Compel Witness Immunity For Experts, Adam J. Myers Iii

Pepperdine Law Review

No abstract provided.

The Impact Of Daubert On Forensic Science, Henry F. Fradella, Lauren O'Neill, Adam Fogarty

Pepperdine Law Review

No abstract provided.

On The Theory Class's Theories Of Asbestos Litigation: The Disconnect Between Scholarship And Reality?, Lester Brickman

Pepperdine Law Review

More than 100,000 new asbestos claims were filed in 2003, the most ever in one year. Asbestos litigation thus continues to thrive even though 80-90% of claimants have no illness recognized by medical science, let alone suffer any lung impairment. To explain how this disconnect between medical science and tort litigation has come about, I cover the following subjects: 1) medical consequences of exposure to asbestos-containing materials; 2) the phenomenon of the unimpaired claimant; 3) medical evidence with regard to the incidence of asbestosis; 4) the effect on asbestos litigation of the failure of the Manville Trust audit to be …

Keeping Junk Science Out Of Asbestos Litigation, David E. Bernstein

Pepperdine Law Review

No abstract provided.

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

Pepperdine Law Review

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 …

Judicial Gatekeeping And The Seventh Amendment: How Daubert Infringes Upon The Constitutional Right To A Civil Jury Trial, Brandon L. Boxler

W&M Law Student Publications

This Article begins by reviewing the history, purpose, and function of the Seventh Amendment within the American constitutional system. It then discusses the Supreme Court‘s analytical framework for preserving the fundamental features of the right to a civil jury trial while simultaneously permitting rational legal development of the jury system. Next, the Article provides a brief overview of the Court‘s Daubert jurisprudence, and argues that the creation of judicial gatekeeping has caused an institutional shift of adjudicatory authority away from juries and into the hands of judges in violation of the Seventh Amendment. The Article concludes by suggesting three legal …

Ake V. Oklahoma And An Indigent Defendant's 'Right' To An Expert Witness: A Promise Denied Or Imagined?, Carlton Bailey

William & Mary Bill of Rights Journal

Since the Supreme Court's decision in Ake v. Oklahoma, it has attempted to determine and clarify the rights of an indigent defendant. Over the past sixteen years, many questions concerning an indigent defendant's access to expert witnesses have been answered, but many questions still remain. In this article, Professor Carlton Bailey attempts to clarify the Ake decision by arguing that an indigent defendant should be able to secure, upon a proper showing, psychiatric and non-psychiatric assistance at state expense.

Admitting Expert Testimony On Battered Woman Syndrome In Virginia Courts: How Peeples Changed Virginia Self-Defense Law, Marybeth H. Lenkevich

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

No abstract provided.

Conflicts Of Interest In Scientific Expert Testimony, Mark R. Patterson

William & Mary Law Review

No abstract provided.

Psychiatric Evidence In Criminal Trials: To Junk Or Not To Junk?, Christopher Slobogin

William & Mary Law Review

No abstract provided.

Section 3: Business, Commerce, And Property, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Using Impartial Experts In Valuations: A Forum-Specific Approach, Andrew Macgregor Smith

William & Mary Law Review

No abstract provided.

Judge Versus Jury: Who Should Decide Questions Of Preliminary Facts Conditioning The Admissibility Of Scientific Evidence?, Edward J. Imwinkelried

William & Mary Law Review

No abstract provided.

Jurisprudence Or "Juriscience"?, Howard T. Markey

William & Mary Law Review

No abstract provided.

Scientific Evidence - An Introduction, Fredric I. Lederer

William & Mary Law Review

No abstract provided.

Applying Lawyers' Expertise To Scientific Experts: Some Thoughts About Trial Court Analysis Of The Prejudicial Effects Of Admitting And Excluding Expert Scientific Testimony, James M. Doyle

William & Mary Law Review

No abstract provided.

Capabilities Of Modern Forensic Laboratories, Irving C. Stone

William & Mary Law Review

No abstract provided.