Evidence Commons^™

Safety From Flawed Forensic Sciences Evidence, Boaz Sangero

Georgia State University Law Review

This article addresses the way to safety in the context of forensic sciences evidence. After presenting the current lack of safety, which I term “unsafety,” I raise some possible safety measures to contend with this. My suggestions are grounded on two bases: first, the specific analysis of each type of evidence in line with the most recent research on the subject; and second, modern safety theory and its application to the criminal justice system. It is important to stress that my proposals represent only some of the conceivable safety measures. Developing a comprehensive safety theory for the criminal justice system …

Georgia State Law Review Symposium Keynote Address: Uncovering Forensic Flaws - An Outside Perspective, Spencer S. Hsu

Georgia State University Law Review

This transcript is a reproduction of the Keynote Address by Spencer Hsu at the 2017–2018 Georgia State University Law Review Symposium — From the Crime Scene to the Court room: The Future of Forensic Science Reform — on April 6, 2018.

Spencer Hsu is an investigative reporter at the Washington Post, a two-time Pulitzer Prize finalist, and a national Emmy Award nominee.

Garbage In, Garbage Out: Revising Strickland As Applied To Forensic Science Evidence, Mark Loudon-Brown

Georgia State University Law Review

Sophisticated scientific evidence may be an undesirable subject matter for a judge to tackle anew, and it can be even more daunting for a defense attorney to confront, particularly one faced with a crushing caseload. It can be tempting to avoid a challenge to a vulnerable forensic science discipline—be it new, novel, or simply recently called into question—when a lawyer reasonably believes that the evidence will be admitted regardless.

Worse still, it may seem reasonable to disregard any adversarial challenge to incriminatory science altogether, and to opt instead for a different defense or to encourage a guilty plea. With hundreds …

The Uk Forensic Science Regulator: A Model For Forensic Science Regulation?, Carole Mccartney, Emmanuel N. Amoako

Georgia State University Law Review

The use of an array of scientific techniques and technologies is now considered customary within criminal justice, with technological developments and scientific advancements regularly added to the crime investigator’s arsenal. However, the scientific basis, reliability, and fallibility of the application of such “forensic science” (and the resulting scientific evidence) continues to come under intense scrutiny. In response to apparently irremediable problems with the quality of scientific evidence in the United Kingdom (UK), the government created the role of “Forensic Science Regulator” in 2007.

The introduction of a regulator was intended to establish quality standards for all forensic science providers in …

Deploying The Secret Police: The Use Of Algorithms In The Criminal Justice System, Jessica Gabel Cino

Georgia State University Law Review

Algorithms saturate our lives today; from curated song lists to recommending “friends” and news feeds, they factor into some of the most human aspects of decision-making, tapping into preferences based on an ever-growing amount of data. Regardless of whether the algorithm pertains to routing you around traffic jams or finding your next dinner, there is little regulation and even less transparency regarding just how these algorithms work. Paralleling this societal adoption, the criminal justice system now employs algorithms in some of the most important aspects of investigation and decision-making.

The lack of oversight is abundantly apparent in the criminal justice …

A Discouraging Omen: A Critical Evaluation Of The Approved Uniform Language For Testimony And Reports For The Forensic Latent Print Discipline, Simon A. Cole

Georgia State University Law Review

The theme of the 2018 Georgia State University Law Review symposium is the Future of Forensic Science Reform. In this Article, I will assess the prospects for reform through a critical evaluation of a document published in February 2018 by the United States Department of Justice (DOJ), the Approved Uniform Language for Testimony and Reports for the Forensic Latent Print Discipline (ULTR).

I argue that this document provides reason to be concerned about the prospects of forensic science reform. In Part I, I discuss the background of the ULTR. In Part II, I undertake a critical evaluation of the ULTR. …

Three Transformative Ideals To Build A Better Crime Lab, Nicole B. Cásarez, Sandra G. Thompson

Georgia State University Law Review

This Article proposes that policy makers should consider establishing their jurisdiction’s crime laboratories as government corporations independent of law enforcement as a means of improving their quality and efficiency. Simply building new buildings or seeking accreditation will not solve the endemic problems that crime laboratories have faced. Rather, we propose that crime laboratories be restructured with a new organizational framework comparable to the Houston Forensic Science Center's (HFSC) status as a local government corporation (LGC), which has proven to be conducive to creating a new institutional culture.

From our experience with the HFSC, we also believe that crime laboratories are …

The Overdose/Homicide Epidemic, Valena E. Beety

Georgia State University Law Review

This Article explores the lack of regulation of coroners, concerns within the forensic science community on the reliability of coroner determinations, and ultimately, how elected laypeople serving as coroners may influence the rise in drug-induced homicide prosecutions in the midst of the opioid epidemic.

This Article proposes that the manner of death determination contributes to overdoses being differently prosecuted; that coroners in rural counties are more likely to determine the manner of death for an illicit substance overdose is homicide; and that coroners are provided with insufficient training on interacting with the criminal justice system, particularly on overdose deaths. Death …

The Confrontation Clause: Employing The "Greatest Legal Engine Ever Invented For The Discovery Of Truth" To Promote Justice In Criminal Courts, Ani Oganesian

Loyola of Los Angeles Law Review

No abstract provided.

The Institutions Of Innocence Review: A Comparative Sociological Perspective, Jessica A. Roth

Articles

The last three decades have seen the rise of an international innocence movement that has forced participants in diverse criminal justice systems to confront their systems’ fallibility, previously thought more theoretical than real. The public acknowledgment of that fallibility has led to the creation of new institutional mechanisms to re-examine old convictions. This short essay prepared for a symposium issue of the Rutgers University Law Review on the theory of criminal law reform compares the error correction institutions created in the United Kingdom, Canada, and the United States, three English-speaking countries with common law roots and an adversarial structure, through …

Narrowing The Legrand Test In New York State: A Necessary Limit On Judicial Discretion, Katherine I. Higginbotham

Brooklyn Law Review

The admission of expert testimony on eyewitness identification evidence is an effective means of ensuring that juries and judges will weigh eyewitness identification evidence appropriately. The fallibility of such evidence is an increasingly well-researched and documented phenomenon in criminal law. Despite publicity of the frequency with which eyewitness identification evidence leads to wrongful convictions, studies show that jurors are often unable to properly assess the probative value of such testimony. Judges are also often unfamiliar with the factors that affect the reliability of eyewitness identification evidence. A 2016 Court of Appeals of New York case, People v. McCullough, represented a …

Hearsay In The Smiley Face: Analyzing The Use Of Emojis As Evidence, Erin Janssen

St. Mary's Law Journal

Abstract forthcoming

Federal Criminal Defendants Out Of The Frying Pan And Into The Fire? Brady And The United States Attorney’S Office, Vida B. Johnson

Catholic University Law Review

The Supreme Court decided Brady v. Maryland in an effort to ensure fair trials and fair outcomes. The Brady decision requires prosecutors to disclose exculpatory evidence regarding guilt of the defendant. The Brady rule is meant to ensure innocent defendants are not convicted for crimes they did not commit. This rule should have unanimous support from both prosecution and defense teams, and yet Brady violations continue to occur within prosecutor offices around the country.

No offender highlights the short comings of the current system more so than the United States Attorney’s Office. Since the Brady decision, the USAO has repeated …

Sniffing Out The Fourth Amendment: United States V. Place-Dog Sniffs-Ten Years Later, Hope Walker Hall

Maine Law Review

In the endless and seemingly futile government war against drugs, protections afforded by the Fourth Amendment of the United States Constitution may have fallen by the wayside as courts struggle to deal with drug offenders. The compelling government interest in controlling the influx of drugs all too often results in a judicial attitude that the ends justify the means. Judges can be reluctant to exclude evidence of drugs found in an unlawful search pursuant to the exclusionary rule, which provides that illegally obtained evidence may not be used at trial. The exclusion of drugs as evidence in drug cases often …

Termination Of Hospital Medical Staff Privileges For Economic Reasons: An Appeal For Consistency, June D. Zellers, Michael R. Poulin

Maine Law Review

The relationship between physicians and hospitals is undergoing significant change. Historically, a physician maintained a private practice in the community and looked to the local hospital for ancillary support when his or her patients were too ill to remain at home. This community-based physician gained access to the hospital by obtaining medical staff privileges. These privileges allowed the physician to admit patients to the hospital, treat patients while they were there, and use the hospital's staff and equipment. The physician generally enjoyed the use of the privileges throughout his or her active career, losing them only if found incompetent. Today, …

Lyrics For Lockups: Using Rap Lyrics To Prosecute In America, Briana Carter

Mercer Law Review

Bob Marley once sang, "I shot the sheriff, but I did not shoot the deputy." Yet, he never went to jail for shooting that sheriff (possibly because he did not shoot the deputy). Instead, this line became known as the starting phrase of one of his most popular songs. While it may make sense to some why Marley's lyrics were art and not a confession to shooting his hometown sheriff, in some states, an artist's lyrics can be used as evidence to prosecute. More specifically, states have differed on the admissibility of a rap artist's lyrics as evidence for prosecution. …

Framed By Forensics: Fulfilling Daubert's Gatekeeping Function By Segregating Science From The Adversarial Model, Kayla Marie Mannucci

Cardozo Law Review

The note argues that flawed forensic expert testimony significantly contributes to wrongful convictions, undermining the criminal justice system's objective to acquit the innocent. It highlights how partisan bias, lack of scientific validation, and inadequate judicial gatekeeping under Daubert v. Merrell Dow Pharmaceuticals, Inc. have led to the admission of unreliable forensic evidence. The note proposes a reform: requiring neutral, court-appointed experts in high-stakes forensic cases to ensure objective testimony and prevent partisan bias.

Life After Daubert V. Merrell Dow: Maine As A Case Law Laboratory For Evidence Rule 702 Without Frye, Leigh Stephens Mccarthy

Maine Law Review

In reaching its recent decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court grappled not with case law but with fundamental questions about the nature of science and its role in law. The court in Daubert addressed the problematic issue of admissibility of expert scientific testimony. In the end the Court rejected as an exclusionary rule the venerable standard set in 1923 by Frye v. United States. Frye held that scientific testimony was to be excluded unless it had gained “general acceptance” in its field. Daubert held that Rule 702 of the Federal Rules of Evidence …

Prosecutorial Summation: Where Is The Line Between "Personal Opinion" And Proper Argument?, James W. Gunson

Maine Law Review

Prosecutorial forensic misconduct has become front page news in Maine. Since April of 1993, the Maine Supreme Judicial Court, sitting as the Law Court, has reversed convictions in three highly publicized cases based on remarks made by the prosecutor. In State v. Steen, the prosecutor asked the defendant to give his opinion concerning the veracity of other witnesses and suggested in closing argument that the favorable testimony given by the defense's expert witness resulted from the fee he had received. The Law Court vacated the gross sexual assault conviction, finding that the prosecutor's questions and closing argument “clearly suggested” to …

Litigation Academy Helps Lawyers Hone Skills 4-30-2018, Katie Mulvaney, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

State V. Nelson: Determining "Reasonable Suspicion" For Investigatory Stops In Maine, Sandra Denison Shannon

Maine Law Review

In 1994 the Maine Supreme Judicial Court, sitting as the Law Court, held in State v. Nelson that a police officer's observation of motorist Theodore Nelson consuming a single can of beer over a one-hour time period did not, by itself, give rise to a reasonable suspicion that Nelson thereafter illegally operated the vehicle under the influence of alcohol. This Note analyzes the Law Court's decision in Nelson. In its analysis, this Note compares Nelson to several other Maine opinions and recommends that, if the Maine Law Court is to continue to adhere to both objective and subjective standards in …

Trammel V. United States: Bad History, Bad Policy, And Bad Law, Michael W. Mullane

Maine Law Review

In 1980 the United States Supreme Court decided Trammel v. United States. The opinion changed the Spouses' Testimonial Privilege, overturning centuries of consistent case decisions. The Court based its decision on the history and effect of privilege and a straw poll of state legislative and court decisions on the issue. The Court concluded its decision would permit the admission of more spousal testimony without impairing the benefits the privilege was supposed to confer on spouses. The Court's decision in Trammel was wrong on three counts. The first was bad history overlaid with questionable analysis. The survey of the state's treatment …

Privileging Public Defense Research, Janet Moore, Ellen Yaroshefsky, Andrew L. Davies

Faculty Articles and Other Publications

Empirical research on public defense is a new and rapidly growing field in which the quality of attorney-client communication is emerging as a top priority. For decades, law has lagged behind medicine and other professions in the empirical study of effective communication. The few studies of attorney-client communication focus mainly on civil cases. They also tend to rely on role-playing by non-lawyers or on post hoc inquiries about past experiences. Direct observation by researchers of real-time defendant-defender communication offers advantages over those approaches, but injecting researchers into the attorney-client dyad is in tension with legal and ethical precepts that protect …

The Limits Of Law In The Evaluation Of Mitigating Evidence, Emad H. Atiq, Erin L. Miller

Cornell Law Faculty Publications

Capital sentencers are constitutionally required to "consider" any mitigating evidence presented by the defense. Under Lockett v. Ohio and its progeny, neither statutes nor common law can exclude mitigating factors from the sentencer's consideration or place conditions on when such factors may be considered. We argue that the principle underlying this line of doctrine is broader than courts have so far recognized. A natural starting point for our analysis is judicial treatment of evidence that the defendant suffered severe environmental deprivation ("SED"), such as egregious child abuse or poverty. SED has played a central role in the Court's elaboration of …

Whren V. United States: An Abrupt End To The Debate Over Pretextual Stops, Brian J. O'Donnell

Maine Law Review

In Whren v. United States, the United States Supreme Court held that a traffic stop is reasonable under the Fourth Amendment if a police officer has probable cause to believe that a traffic violation has occurred, even if the stop is a pretext for the investigation of a more serious offense. The Court affirmed the convictions of Michael A. Whren and James L. Brown, who had been arrested on federal drug charges after Washington, D.C., police stopped Brown for minor traffic infractions. The Court's unanimous opinion, delivered by Justice Scalia, brought an end to a long-running debate over the proper …

A Call For Consistency: State V. Caouette Is No Longer Viable In Light Of Colorado V. Connelly And State V. Eastman, Donald W. Macomber

Maine Law Review

This Article challenges the Law Court's expansive interpretation in State v. Caouette of the scope of the privilege against self-incrimination embodied in Article I, section 6 of the Maine Constitution in the context of reviewing claims of the involuntariness of a confession. The court's declaration that a reliable confession must be suppressed on state constitutional grounds based solely on a suspect's internal factors, and in the absence of any police overreaching in obtaining the confession, contradicted two centuries of constitutional jurisprudence requiring some form of government action to implicate the protections of the Bill of Rights and the Declaration of …

Standing Under State Search And Seizure Provision: Why The Minnesota Supreme Court Should Have Rejected The Federal Standards And Instead Invoked Greater Protection Under Its Own Constitution In State V. Carter, Rebecca C. Garrett

Maine Law Review

In State v. Carter, the Minnesota Supreme Court considered whether a criminal defendant had “standing” to challenge an alleged search under the Fourth Amendment and Article 1, Section 10 of the Minnesota Constitution. The defendant moved to suppress evidence obtained by a police officer who had peered in the window of an apartment where the defendant was participating in a drug-packaging operation with the apartment's leaseholder. A divided court held that the defendant had a legitimate expectation of privacy in the apartment. Therefore, the defendant had standing to challenge the legality of the police officer's observations pursuant to the Fourth …

Identifying And Preventing Improper Prosecutorial Comment In Closing Argument, Robert W. Clifford

Maine Law Review

In recent years, several decisions of the Maine Supreme Judicial Court sitting as the Law Court have addressed the comments of prosecutors in final argument before criminal juries. Three of those decisions in particular have caused concern among prosecutors and have stirred discussion in the Maine legal community. In vacating convictions in State v. Steen, State v. Casella, and State v. Tripp, the Law Court focused on the language used by the prosecutors during closing argument and concluded that those prosecutors impermissibly expressed personal opinion concerning the credibility of the defendants, or witnesses called by the defendants. This Article examines …

State V. Brackett: Does The State Have A Right Of Appeal?, Theodore A. Small

Maine Law Review

In State v. Brackett, the defendant was charged with kidnapping, gross sexual assault, burglary, and criminal threatening with the use of a dangerous weapon. The State of Maine filed an in limine motion to exclude any evidence relating to the victim's past sexual behavior, including evidence that the victim may have been a prostitute sometime prior to the incident in dispute. Although evidence of a victim's past sexual behavior is generally inadmissible. The State appealed. A divided Maine Supreme Judicial Court, sitting as the Law Court, declined to rule on the merits of the appeal, holding that the appeal was …

Unlocking The Fifth Amendment: Passwords And Encrypted Devices, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

Each year, law enforcement seizes thousands of electronic devices — smartphones, laptops, and notebooks — that it cannot open without the suspect’s password. Without this password, the information on the device sits completely scrambled behind a wall of encryption. Sometimes agents will be able to obtain the information by hacking, discovering copies of data on the cloud, or obtaining the password voluntarily from the suspects themselves. But when they cannot, may the government compel suspects to disclose or enter their password?

This Article considers the Fifth Amendment protection against compelled disclosures of passwords — a question that has split and …