Evidence Commons^™

Amicus Brief Of Legal Scholars Lee Kovarsky Et Al. In Support Of Petitioner, Ira P. Robbins

Amicus Briefs & Court Filings

QUESTION PRESENTED: Whether a second-in-time habeas claim filed while an appeal from the judgment on an initial habeas claim is still pending counts as a second or successive habeas petition under 28 U.S.C. § 2244(b)

INTEREST OF AMICI CURIAE: Amici curiae are law professors and legal scholars who study federal post-conviction law and civil procedure. Amici curiae have no personal interest in the outcome of this case. They all share an interest in seeing habeas law applied in a way that ensures the just and timely adjudication of claims while preserving the traditional and intended operation of the Federal Rules …

Sotomayor Cites Maurer Faculty Member In Scotus’ Decline To Hear Alabama Bite Mark Case, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

The case of an Alabama man convicted of murdering his wife in 1985 will not be reviewed by the U.S. Supreme Court, despite evidence that, nearly 40 years later, has been “wholly discredited.”

The Supreme Court denied certiorari in the case of McCrory v. Alabama, but Justice Sonia Sotomayor cited research from Indiana University Maurer School of Law Professor Valena Beety in her concurring agreement with the court’s decision.

Charles M. McCrory was convicted for the murder of his wife, Julie Bonds, based in large part on expert testimony from an odontologist who matched McCrory’s teeth to two bite marks …

The Needless Search For A Founding-Era "Hearsay" Definition, Jeffrey Bellin

Faculty Publications

Modern Confrontation Clause doctrine permits only unconfronted “out-of-court statements that would have been admissible in a criminal case at the time of the founding.” To operationalize this concept, the Supreme Court identifies “testimonial hearsay” as the Clause’s primary concern. Its opinions regularly dive into the historical record to refine what counts as “testimonial” but ignore that record in defining “hearsay.” This omission cannot last. Cases in the lower courts, and one on the Court’s recent docket, concern testimonial but (arguably) non-hearsay statements. And while confrontation jurisprudence is supposed to be tied to founding-era evidence law, the “hearsay” definition, casually referenced …

Guess Who?: First-Time In-Court Identifications And Due Process, Natalie Beers

Washington and Lee Law Review

Juries believe eyewitnesses. When an identifying eyewitness takes the stand and points to a defendant in a courtroom, the jury is more likely to render a guilty verdict. But how reliable is that identification? What if the eyewitness is on the stand identifying a perpetrator for the first time, in the court room, rather than at the police station with a lineup or photo array? How do those suggestive circumstances implicate a criminal defendant’s due process rights?

First-time in-court identifications are inherently suggestive. While the Supreme Court has acknowledged the suggestive nature of similar identifications, it did not directly address …

Murder On The Hearsay Trail, Jeffrey Bellin

Faculty Publications

Judges, lawyers, and law students struggle to apply American evidence law’s most distinctive feature—the hearsay prohibition. The problem is that hearsay is difficult to master and somewhat dull. At the same time, hearsay evidence is ubiquitous and important. Every litigator has a story about a judge’s eccentric hearsay rulings; mine is the trial judge who waved his hand dismissively at hearsay objections, letting witnesses answer on the grounds that “I want to hear it.” And the case law is littered with appellate opinions scolding trial judges for erroneous hearsay rulings while introducing errors of their own.

That is just the …

The Needless Search For A Founding-Era "Hearsay" Definition, Jeffrey Bellin

University of Michigan Journal of Law Reform

Modern Confrontation Clause doctrine permits only unconfronted “out-of-court statements that would have been admissible in a criminal case at the time of the founding.” To operationalize this concept, the Supreme Court identifies “testimonial hearsay” as the Clause’s primary concern. Its opinions regularly dive into the historical record to refine what counts as “testimonial” but ignore that record in defining “hearsay.” This omission cannot last. Cases in the lower courts, and one on the Court’s recent docket, concern testimonial but (arguably) non-hearsay statements. And while confrontation jurisprudence is supposed to be tied to founding-era evidence law, the “hearsay” definition, casually referenced …

Authenticating Social Media Evidence In Chinese Criminal Procedure Law -- A Comparative Study, Yage Huang

Maurer Theses and Dissertations

Authentication requires the proponent to provide sufficient proof that the proposed social media evidence is, indeed, what it is claimed to be. The rapid proliferation of social media evidence has posed significant challenges for its authentication. This dissertation explores the authentication challenges for social media evidence in a comprehensive manner.

This research employs a qualitative research methodology, including theoretical and analytical methods, to examine the theoretical approaches, statutory provisions, and recent judicial rulings related to the authentication of social media evidence within the legal frameworks of China and the United States. Through a comparative analysis, this study reveals significant commonalities …

Standing And Criminal Law, F. Andrew Hessick, Sarah A. Benecky

BYU Law Review

According to the Supreme Court, the “irreducible constitutional minimum of Article III standing” is a concrete, particularized injury in fact that is traceable to the defendant and redressable by a favorable judgment. But this set of requirements does not apply in criminal cases. The federal government has authority to bring prosecutions for any violation of federal criminal law, regardless of whether the crime caused concrete harm to the United States or anyone else, and even though the punishment for the crime does not redress an injury in any conventional sense.

This Article argues that the difference in standing requirements between …

Computationally Assessing Suspicion, Wesley M. Oliver, Morgan A. Gray, Jaromir Savelka, Kevin D. Ashley

University of Cincinnati Law Review

Law enforcement officers performing drug interdiction on interstate highways have to decide nearly every day whether there is reasonable suspicion to detain motorists until a trained dog can sniff for the presence of drugs. The officers’ assessments are often wrong, however, and lead to unnecessary detentions of innocent persons and the suppression of drugs found on guilty ones. We propose a computational method of evaluating suspicion in these encounters and offer experimental results from early efforts demonstrating its feasibility. With the assistance of large language and predictive machine learning models, it appears that judges, advocates, and even police officers could …

Impeaching With An Alleged Prior False Accusation, Erin Murphy

Fordham Law Review

The Court’s categorical recognition of bias as a constitutionally protected, and therefore rape-shield recognized, exception to the general bar on evidence of sexual history has led to questions about whether other forms of impeachment might also evade rape shield restrictions. In particular, courts have grappled with the admissibility of impeachment by evidence of a prior false accusation (PFA).

The current treatment of PFAs is inconsistent and controversial for several reasons. First, as explained further in Part I, there is a lack of clear guidance in the rules about how such evidence should be treated. Second, of course, there are the …

Eliminating Rule 609 To Provide A Fair Opportunity To Defend Against Criminal Charges: A Proposal To The Advisory Committee On The Federal Rules Of Evidence, Jeffrey Bellin

Faculty Publications

Federal Rule of Evidence 609 authorizes the admission of prior convictions to impeach criminal defendants who testify. And in this important and uniquely damaging application, the [r]ule’s logic fails, distorting American trials and depriving defendants of a fair opportunity to defend against the charges. The Advisory Committee [on Evidence Rules (the “Advisory Committee”)] should propose the elimination of Rule 609 and prohibit cross-examination with specific instances of a criminal defendant’s past conduct when those instances are unrelated to the defendant’s testimony and unconnected to the case.

This short essay begins by setting out the proposed rule change alongside a proposed …

Prosecutorial Storytelling Through Intrinsic Evidence, Brian Chen

Pepperdine Law Review

Crimes make for compelling stories. So juries make for an eager audience. Jurors want to—indeed, expect to—learn what the defendant did, how they did it, and why they deserve punishment. Capable prosecutors know how to deliver. Trial narratives empower jurors to link discrete pieces of evidence and infer facts from circumstantial proof. Only then can they render a verdict consistent with their sense of justice. Federal courts thus afford wide leeway for prosecutors to present their case as they please, with the evidence at their disposal. The Federal Rules of Evidence delineates the scope of that discretion. Under Rule 404(b), …

Preview — State V. Wood. First Impressions On Accountability And Cell-Site Location Information, Sarah K. Yarlott

Public Land & Resources Law Review

No abstract provided.

The Brady Database, Brandon L. Garrett, Adam M. Gershowitz, Jennifer Teitcher

Faculty Publications

The Supreme Court’s landmark ruling in Brady v. Maryland turns sixty this year. The Brady doctrine, which requires the government to disclose favorable and material evidence to the defendant, is one of the most frequently litigated criminal procedure issues. Yet, despite decades of Brady cases in federal and state courts, we still know relatively little about how Brady claims are litigated, adjudicated, and what such claims can tell us about the criminal justice system writ large. Scholars are in the dark about how often Brady violations occur, whether it is primarily the fault of prosecutors or the police, whether violations …

What's Said In The Booth Never Stays In The Booth: A Comparative Analysis Of The Use Of Rap Lyrics In American And English Criminal Trials, Yekaterina Shrayber

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

Garrity Immunity And The U.S. Armed Forces, Bretton H. Laudeman, Gabriel J. Chin

BYU Law Review

The U.S. military is one of the nation’s largest and most important public employers. Given the unique nature of military service, the service branches have a strong interest in ensuring the integrity of their ranks. Yet the military lacks a critical force-management tool used by every other public employer to investigate workplace misconduct: the ability to demand answers to potentially incriminating questions under Garrity v. New Jersey, 385 U.S. 493 (1967). The Garrity solution, known as “Garrity immunity,” strikes a critical balance between the government’s interests in workplace oversight and accountability with the employee’s Fifth Amendment right against self-incrimination by …

The Automated Fourth Amendment, Maneka Sinha

Faculty Scholarship

Courts routinely defer to police officer judgments in reasonable suspicion and probable cause determinations. Increasingly, though, police officers outsource these threshold judgments to new forms of technology that purport to predict and detect crime and identify those responsible. These policing technologies automate core police determinations about whether crime is occurring and who is responsible. Criminal procedure doctrine has failed to insist on some level of scrutiny of—or skepticism about—the reliability of this technology. Through an original study analyzing numerous state and federal court opinions, this Article exposes the implications of law enforcement’s reliance on these practices given the weighty interests …

Henderson And The Objective Observer Standard: The Future Of Race-Conscious Standards Post-Students For Fair Admissions, Gabriela Dionisio

Seattle University Law Review

On June 29, 2023, the Supreme Court of the United States decided Students for Fair Admissions v. President & Fellows of Harvard College, which struck down race-conscious admissions policies. Within just a year after its ruling, Students for Fair Admissions has already had a sweeping impact, reaching beyond higher education. Although the Supreme Court did not indicate whether Students for Fair Admissions applies to sectors beyond higher education, law firms, and other employers have already modified their diversity policies and initiatives, erasing race and company diversity considerations. Given those dramatic changes, there is growing fear that Students for Fair Admissions …

Same Crime, Different Time: Sentencing Disparities In The Deep South & A Path Forward Under The Fourteenth Amendment, Hailey M. Donovan

Seattle University Law Review

The United States has the highest incarceration rate of any country in the world. The American obsession with crime and punishment can be tracked over the last half-century, as the nation’s incarceration rate has risen astronomically. Since 1970, the number of incarcerated people in the United States has increased more than sevenfold to over 2.3 million, outpacing both crime and population growth considerably. While the rise itself is undoubtedly bleak, a more troubling truth lies just below the surface. Not all states contribute equally to American mass incarceration. Rather, states have vastly different incarceration rates. Unlike at the federal level, …

Public Primacy In Corporate Law, Dorothy S. Lund

Seattle University Law Review

This Article explores the malleability of agency theory by showing that it could be used to justify a “public primacy” standard for corporate law that would direct fiduciaries to promote the value of the corporation for the benefit of the public. Employing agency theory to describe the relationship between corporate management and the broader public sheds light on aspects of firm behavior, as well as the nature of state contracting with corporations. It also provides a lodestar for a possible future evolution of corporate law and governance: minimize the agency costs created by the divergence of interests between management and …

Robo-Voting: Does Delegated Proxy Voting Pose A Challenge For Shareholder Democracy?, John Matsusaka, Chong Shu

Seattle University Law Review

Robo-voting is the practice by an investment fund of mechanically voting in corporate elections according to the advice of its proxy advisor— in effect fully delegating its voting decision to its advisor. We examined over 65 million votes cast during the period 2008–2021 by 14,582 mutual funds to describe and quantify the prevalence of robo-voting. Overall, 33% of mutual funds robo-voted in 2021: 22% with ISS, 4% with Glass Lewis, and six percent with the recommendations of the issuer’s management. The fraction of funds that robo-voted increased until around 2013 and then stabilized at the current level. Despite the sizable …

The Limits Of Corporate Governance, Cathy Hwang, Emily Winston

Seattle University Law Review

What is the purpose of the corporation? For decades, the answer was clear: to put shareholders’ interests first. In many cases, this theory of shareholder primacy also became synonymous with the imperative to maximize shareholder wealth. In the world where shareholder primacy was a north star, courts, scholars, and policymakers had relatively little to fight about: most debates were minor skirmishes about exactly how to maximize shareholder wealth.

Part I of this Essay discusses the shortcomings of shareholder primacy and stakeholder governance, arguing that neither of these modes of governance provides an adequate framework for incentivizing corporations to do good. …

The Pioneers, Waves, And Random Walks Of Securities Law In The Supreme Court, Elizabeth Pollman

Seattle University Law Review

After the pioneers, waves, and random walks that have animated the history of securities laws in the U.S. Supreme Court, we might now be on the precipice of a new chapter. Pritchard and Thompson’s superb book, A History of Securities Law in the Supreme Court, illuminates with rich archival detail how the Court’s view of the securities laws and the SEC have changed over time and how individuals have influenced this history. The book provides an invaluable resource for understanding nearly a century’s worth of Supreme Court jurisprudence in the area of securities law and much needed context for …

Three Stories: A Comment On Pritchard & Thompson’S A History Of Securities Laws In The Supreme Court, Harwell Wells

Seattle University Law Review

Adam Pritchard and Robert Thompson’s A History of Securities Laws in the Supreme Court should stand for decades as the definitive work on the Federal securities laws’ career in the Supreme Court across the twentieth century.1 Like all good histories, it both tells a story and makes an argument. The story recounts how the Court dealt with the major securities laws, as well the agency charged with enforcing them, the Securities and Exchange Commission (SEC), and the rules it promulgated, from the 1930s into the twenty-first century. But the book does not just string together a series of events, “one …

On The Value Of History: A Review Of A.C. Pritchard & Robert B. Thompson’S A History Of Securities Law In The Supreme Court, Joel Seligman

Seattle University Law Review

A.C. Pritchard and Bob Thompson have written a splendid history of securities law decisions in the Supreme Court. Their book is exemplary because of its detailed use of the long unpublished papers of Supreme Court justices, including those of Harry Blackmun, William O. Douglas, Felix Frankfurter and Lewis F. Powell, primary sources which included correspondence with other Justices and law clerks as well as interviews with law clerks. The use of these primary sources recounted throughout the text and 67 pages of End Notes deepens our understanding of the intentions of the Justices and sharpens our understanding of the conflicts …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Memories Of An Affirmative Action Activist, Margaret E. Montoya

Seattle University Law Review

Some twenty-five years ago, the Society of American Law Teachers (SALT) led a march supporting Affirmative Action in legal education to counter the spate of litigation and other legal prohibitions that exploded during the 1990s, seeking to limit or abolish race-based measures. The march began at the San Francisco Hilton Hotel, where the Association of American Law Schools (AALS) was having its annual meeting, and proceeded to Union Square. We, the organizers of the march, did not expect the march to become an iconic event; one that would be remembered as a harbinger of a new era of activism by …

Defeat Fascism, Transform Democracy: Mapping Academic Resources, Reframing The Fundamentals, And Organizing For Collective Actions, Francisco Valdes

Seattle University Law Review

The information we gathered during 2021–2023 shows that critical faculty and other academic resources are present throughout most of U.S. legal academia. Counting only full-time faculty, our limited research identified 778 contacts in 200 schools equating to nearly four contacts on average per school. But no organized critical “core” had coalesced within legal academia or, more broadly, throughout higher education expressly dedicated to defending and advancing critical knowledge and its production up to now. And yet, as the 2021–2022 formation of the Critical (Legal) Collective (“CLC”) outlined below demonstrates, many academics sense or acknowledge the need for greater cohesion among …

Sffa V. Harvard College: Closing The Doors Of Equality In Education, Ediberto Roman

Seattle University Law Review

The United States Supreme Court’s recent combined decision ending affirmative action in Students for Fair Admissions v. Harvard College and Students for Fair Admissions v. University of North Carolina was hailed in conservative circles as the beginning of “the long road” towards racial equality. Others declared that “the opinion may begin the restoration of our nation’s constitutional colorblind legal covenant.” Another writer pronounced, “Affirmative action perpetuated racial discrimination. Its end is a huge step forward.” A Washington-based opinion page even declared: “[T]he demise of race-based affirmative action should inspire renewed commitment to the ideal of equal opportunity in America.” Despite …

Religious Freedom And Diversity Missions: Insights From Jesuit Law Deans, Anthony E. Varona, Michèle Alexandre, Michael J. Kaufman, Madeleine M. Landrieu

Seattle University Law Review

This Article is a transcript of a panel moderated by Anthony E. Varona, Dean of Seattle University School of Law. During the panel, Jesuit and religious law school deans discussed what law schools with religious missions have to add to the conversation around SFFA and the continuing role of affirmative action in higher education.