Evidence Commons^™

Gatekeeping Science: Using The Structure Of Scientific Research To Distinguish Between Admissibility And Weight In Expert Testimony, David L. Faigman, Christopher Slobogin, John Monahan

Northwestern University Law Review

Fundamental to all evidence rules is the division of responsibility between the judge, who determines the admissibility of evidence, and the jury, which gauges its weight. In most evidentiary contexts, such as those involving hearsay and character, threshold admissibility obligations are clear and relatively uncontroversial. The same is not true for scientific evidence. The complex nature of scientific inference, and in particular the challenges of reasoning from group data to individual cases, has bedeviled courts. As a result, courts vary considerably on how they define the judge’s gatekeeping task under Federal Rule of Evidence 702 and its state equivalents.

This …

Moving Beyond Miranda: Concessions For Confessions, Scott W. Howe

Northwestern University Law Review

The law governing police interrogation provides perverse incentives. For criminal suspects, the law rewards obstruction and concealment. For police officers, it honors deceit and psychological aggression. For the courts and the rest of us, it encourages blindness and rationalization. This Article contends that the law could help foster better behaviors. The law could incentivize criminals to confess without police trickery and oppression. It could motivate police officers involved in obtaining suspect statements to avoid chicanery and duress. And, it could summon courts and the rest of us to speak more truthfully about whether suspect admissions are the product of informed, …

Rescued From The Grave And Then Covered With Mud: Justice Scalia And The Unfinished Restoration Of The Confrontation Right, Richard D. Friedman

Articles

Some years before his death, when asked which was his favorite among his opinions, Antonin Scalia named Crawford v. Washington. It was a good choice. Justice Scalia's opinion in Crawford reclaimed the Confrontation Clause of the Sixth Amendment to the Constitution and restored it to its rightful place as one of the central protections of our criminal justice system. He must have found it particularly satisfying that the opinion achieved this result by focusing on the historical meaning of the text, and that it gained the concurrence of all but two members of the Court, from all ideological positions.

#Guilty? Sublet V. State And The Authentication Of Social Media Evidence In Criminal Proceedings, Elizabeth A. Flanagan

Villanova Law Review (1956 - )

No abstract provided.

Pennsylvania Stacks The Deck Against Defendants In Commonwealth V. Alicia, Leaving False Confession Assessments To The Jury, Katherine Reamy

Villanova Law Review (1956 - )

No abstract provided.

Protecting Public Employee Trial Testimony, Joseph Deloney

Chicago-Kent Law Review

In a number of jurisdictions around the United States, police officers and other public employees that regularly testify as part of their ordinary job duties can be placed in compromising positions. Because these types of employees regularly testify as part of their ordinary job duties, such testimony is considered “employee speech” and therefore unprotected by the First Amendment. Consequently, governmental employers can take adverse employment actions against an employee based on his or her truthful trial testimony without violating the employee’s First Amendment rights. Drawing from the Supreme Court’s 2014 decision in Lane v. Franks and other circuit court cases, …

Lost In A Maze Of Character Evidence: How The Federal Courts Lack A Cohesive Approach To Applying Federal Rule Of Evidence 404(B) In Drug Distribution Cases, Brian Byrne

Pace Law Review

The admission of a criminal defendant’s prior bad acts can be a powerful tool for attaining a conviction. The federal courts are currently divided as to whether the defendant’s prior drug use is admissible under Rule 404(b) of the Federal Rules of Evidence when the defendant is charged with distributing a controlled dangerous substance.

Part I of this Comment will briefly explore the historical roots of Rule 404(b). Part II will examine the permissible purposes for admitting prior bad acts under Rule 404(b). Part III will discuss the circuit split that has developed as to whether the defendant’s prior drug …

State V. Carroll, 132 Nev. Adv. Op. 23 (Apr. 7, 2016), Jessie Folkestad

Nevada Supreme Court Summaries

Defendant Deangelo Carroll appealed from a conviction for conspiracy to commit murder and first-degree murder with use of a deadly weapon. The Supreme Court of Nevada found the district court erred in denying Carroll’s motion to suppress his statements to police because the police subjected Carroll to a custodial interrogation, without advising him of his Miranda rights. The Court affirmed however, finding the error harmless beyond a reasonable doubt.

Ohio V. Clark , Peter M. Torstensen Jr.

Notre Dame Law Review Reflection

The heart of the debate over the purpose of the Confrontation Clause is the manner in which confrontation was intended to secure a defendant’s rights—either through procedural fairness or ensuring evidentiary reliability. The eventual direction the Supreme Court takes will depend, in large part, on which of these visions of the Confrontation Clause ultimately prevails. Michigan v. Bryant marked a potential step in the direction of the Ohio v. Roberts vision, and Ohio v. Clark does not appear to have departed from the course set in Bryant. Thus, while Crawford v. Washington marked a sea change in the Court’s confrontation …

Copwatching, Jocelyn Simonson

Faculty Scholarship

No abstract provided.

Dna, Blue Bus, And Phase Changes, Edward K. Cheng, G. Alexander Nunn

Faculty Scholarship

In ‘Exploring the Proof Paradoxes’, Mike Redmayne comprehensively surveyed the puzzles at the intersection of law and statistics, the most famous of which is the Blue Bus problem, which prohibits legal actors from ascribing liability purely on the basis of probabilistic evidence. DNA evidence, however, is a longstanding exception to Blue Bus. Like Blue Bus, DNA presents probabilistic evidence of identity. Unlike Blue Bus, DNA is widely accepted as legitimate, even when it stands alone as so-called ‘naked’ statistical evidence. Observers often explain such DNA exceptionalism in two ways: either that people break down in extreme cases, or relatedly, that …

Sticks And Stones May Break My Bones, But Words Will Always Hurt Me: Why California Should Expand The Admissibility Of Prior Acts Of Child Abuse, Lindsay Gochnour

Pepperdine Law Review

This Comment seeks to explore the effect that the admissibility of prior bad acts evidence would have on child maltreatment cases and the benefits that would be afforded to child abuse victims if they were provided the same legal protections as victims of other crimes. This Comment argues that expanding the California Evidence Code to allow the admission of prior acts of psychological and emotional child maltreatment would make great progress for the protection of child abuse victims and the prosecution of their (often losing) cases.

Video: Adding To Your Case: Examining And Cross Examining Expert Witnesses, Michael J. Dale, Kathryn Webber, Valerie B. Barnhart Esq., Jack L. Harari M.D., J.D., F.A.A.E.M.

NSU Law Seminar Series

Learn skills for using expert witness testimony at trial: Developing strategy for selecting topics and order of presentation Using proper form of questioning on direct and cross Understanding rules of evidence, procedure, and ethics Two role play demonstrations help you learn techniques

Quisano V. State, 132 Nev. Adv. Op. 9 (February 18, 2016), Michael Hua

Nevada Supreme Court Summaries

This court affirmed an appeal from a judgment of conviction, pursuant to an Alford plea, of voluntary manslaughter and child abuse, neglect, or endangerment with substantial bodily harm holding:

(1) Brady violations do not occur when the evidence in question is not favorable to the defendant;

(2) Prosecutors have a strict duty to disclose under their own open-file policy until sentencing proceedings; and,

(3) Media outlets require a written by the district court to electronically cover proceedings unless nonconstitutional or harmless error results in such coverage.

Recent Development: Peterson V. State: Limitations On Defense Cross-Examination Are Permitted When The Testimony Lacks A Factual Foundation, Is Overly Prejudicial, Or Has Not Been Adequately Preserved, Meghan E. Ellis

University of Baltimore Law Forum

The Court of Appeals of Maryland held that the defendant’s right to confrontation was not violated when the defense was precluded from cross-examining a witness about hallucinations and his potential sentence prior to entering into a plea agreement. Peterson v. State, 444 Md. 105, 153-54, 118 A.3d 925, 952-53 (2015). The court found that the defendant failed to preserve the issue of a witness’s expectation of benefit with respect to pending charges, and failed to show sufficient factual foundation for a cross-examination regarding the expectation. Id. at 138-39, 118 A.3d at 944. In addition, the court found that, although not …

Sleuthing Scientific Evidence Information On The Internet, Diana Botluk

Faculty Scholarship

No abstract provided.

From Simple Statements To Heartbreaking Photographs And Videos: An Interdisciplinary Examination Of Victim Impact Evidence In Criminal Cases, Mitchell J. Frank

Faculty Scholarship

No abstract provided.

Enforcing Compliance With Constitutionally-Required Disclosures: A Proposed Rule, Emmet G. Sullivan

Cardozo Law Review de•novo

To provide a striking example of the need for a federal disclosure rule, in Part I, I briefly summarize a report on the discovery abuses that occurred in the case of United States v. Theodore F. Stevens. In Part II, I describe efforts beginning in 2003 to amend Rule 16. In Part III, I provide an overview of the local district court disclosure rules and standing orders nationwide. Part III also provides the proposed rule now being considered for adoption by the United States District Court for the District of Columbia.

A Domestic Consequence Of The Government Spying On Its Citizens: The Guilty Go Free, Mystica M. Alexander, William P. Wiggins

Brooklyn Law Review

In recent years, a seemingly endless stream of headlines have alerted people to the steady and relentless government encroachment on their civil liberties. Consider, for example, headlines such as “U.S. Directs Agents to Cover Up Program Used to Investigate Americans,” “DEA Admits to Keeping Secret Database of Phone Calls,” or “No Morsel Too Miniscule for All-Consuming N.S.A.” Of concern is not only the U.S. government’s collection of data on its citizens, but also how that information is aggregated, stored, and used. The Fourth Amendment protects citizens from unreasonable searches and seizures by the government. While the drafters of the Fourth …

Policing In The Era Of Permissiveness: Mitigating Misconduct Through Third-Party Standing, Julian A. Cook Iii

Brooklyn Law Review

On April 4, 2015, Walter L. Scott was driving his vehicle when he was stopped by Officer Michael T. Slager of the North Charleston, South Carolina, police department for a broken taillight. A dash cam video from the officer’s vehicle showed the two men engaged in what appeared to be a rather routine verbal exchange. Sometime after Slager returned to his vehicle, Scott exited his car and ran away from Slager, prompting the officer to pursue him on foot. After he caught up with Scott in a grassy field near a muffler establishment, a scuffle between the men ensued, purportedly …

Sampling And Reliability In Class Action Litigation, Hillel J. Bavli

Cardozo Law Review de•novo

In this Article, I explain my conclusions in Aggregating for Accuracy in non-mathematical terms, and underscore certain implications with respect to class action litigation and considerations in light of the U.S. Supreme Court’s recent decision in Tyson Foods, Inc. v. Bouaphakeo. I begin by describing the building blocks of my analysis—the concepts of reliability and accuracy in the law.

The Use Of False Dna Evidence To Gain A Confession During Interrogation Is Classic Coercion: Why Such Coerced Confessions Should Not Be Admissible In A Criminal Trial, Andrea Reed

Kentucky Law Journal

No abstract provided.

Crossing The Line: Daubert, Dual Roles, And The Admissibility Of Forensic Mental Health Testimony, Sara Gordon

Scholarly Works

Psychiatrists and other mental health professionals often testify as forensic experts in civil commitment and criminal competency proceedings. When an individual clinician assumes both a treatment and a forensic role in the context of a single case, however, that clinician forms a dual relationship with the patient—a practice that creates a conflict of interest and violates professional ethical guidelines. The court, the parties, and the patient are all affected by this conflict and the biased testimony that may result from dual relationships. When providing forensic testimony, the mental health professional’s primary duty is to the court, not to the patient, …

Miranda'S Truth: The Importance Of Adversarial Testing And Dignity In Confession Law, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The landmark decision of Miranda v. Arizona focuses on the important values of adversarial testing and human dignity. These values can be found among a constellation of values ordinarily aligned with constitutional criminal procedure cases like Miranda. The constellation also includes values such as truth-finding and equality. With the regularization of DNA analysis and the realization that a large number of innocent people have been convicted, however, there has been a recent fixation on truth-finding. Other values have been overshadowed. The myopic pursuit of truth-finding may be somewhat misguided, as certainty of truth is generally impossible. This is recognized by …

Restoring The Character Evidence Rule: Reconsidering Evidence Of Crimes, Wrongs, And Other Acts In Rhode Island, Edward Pare Iii

Roger Williams University Law Review

No abstract provided.

Evidence Laundering In A Post-Herring World, Kay L. Levine, Jenia I. Turner, Ronald F. Wright

Faculty Journal Articles and Book Chapters

The Supreme Court’s decision in Herring v. United States authorizes police to defeat the Fourth Amendment’s protections through a process we call evidence laundering. Evidence laundering occurs when one police officer makes a constitutional mistake when gathering evidence and then passes that evidence along to a second officer, who develops it further and then delivers it to prosecutors for use in a criminal case. When courts admit the evidence based on the good faith of the second officer, the original constitutional taint disappears in the wash.

In the years since Herring was decided, courts have allowed evidence laundering in a …

2015 Survey Of Rhode Island Law: Cases And Public Laws Of Note, Roger Williams University Law Review Staff

Roger Williams University Law Review

No abstract provided.

Is There Really A Sex Bureaucracy?, Suzanne B. Goldberg

Faculty Scholarship

This essay identifies several features of the higher-education context that can enrich The Sex Bureaucracy‘s account of why colleges and universities have adopted new policies and trainings to address sexual assault on their campuses. These features include: 1) schools’ preexisting systems for addressing student conduct; 2) the shared interest of schools in reducing impediments to education, including nonconsensual sexual contact; and 3) the pedagogical challenges of developing trainings that are engaging and effective. Taking these three factors into account, we can see that while federal Title IX intervention has had a profound effect, it is also important not to …

Criminal Adjudication, Error Correction, And Hindsight Blind Spots, Lisa Kern Griffin

Faculty Scholarship

Concerns about hindsight in the law typically arise with regard to the bias that outcome knowledge can produce. But a more difficult problem than the clear view that hindsight appears to provide is the blind spot that it actually has. Because of the conventional wisdom about error review, there is a missed opportunity to ensure meaningful scrutiny. Beyond the confirmation biases that make convictions seem inevitable lies the question whether courts can see what they are meant to assess when they do look closely for error. Standards that require a retrospective showing of materiality, prejudice, or harm turn on what …

Brief Of Amici Curiae Professors Of Law In Support Of Petitioner, Barbara Allen Babcock, Jeffrey Bellin, Darryl K. Brown, Robert P. Burns, James E. Coleman Jr., Lisa Kern Griffin, Robert P. Mosteller, Deborah Tuerkheimer, Neil Vidmar, Jessica L. West

Faculty Scholarship

No abstract provided.