Evidence Commons^™

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 …

Hearsay Evidence: Legal Discourse, Circumstantiality, And The Woman In White, Matthew Finley

Global Tides

In Wilkie Collins’s The Woman in White, Walter Hartright begins the narrative by stating that, because “the Law is still … the pre-engaged servant of the long purse,” he has arranged the novel to reveal the truth (5). The author, then, puts the law on trial by engaging the interplay between legal questions of witness credibility and testimonial evidence and their impact on social factors such as class and gender. The law’s emphasis on externality leads the system to privilege the snakelike Fosco over the heroic Walter, Laura, and Marian, signaling the courts' capital offence. Although the novel is …

From Jones To Jones: Fifteen Years Of Incoherence In The Constitutional Law Of Sentencing Factfinding, Benjamin Priester

Journal Publications

For over 15 years, the United States Supreme Court has struggled to define the constitutional constraints upon a ubiquitous practice in contemporary American criminal justice: the exercise of factfinding authority by sentencing judges in the course of determining the specific punishment to be imposed upon an individual convicted of a criminal offense. While the Court has permitted much sentencing factfinding to continue unabated, its decisions have identified certain scenarios in which an offender's constitutional rights are violated when a fact found at sentencing creates particular impacts on the punishment. Unfortunately, from the beginning this new constitutional doctrine in criminal procedure …

Florida's "Brave New World": The Transition From Frye To Daubert Will Transform The Playing-Field For Litigants In Medical Causation Cases, Erica W. Rutner, Lara B. Bach

Barry Law Review

No abstract provided.

Response Of John Kulewicz To Professor Shanker, John J. Kulewicz

Akron Law Review

A glaring error in Professor Shanker's recent article proves the value of the parol evidence rule at least as effectively as the balance of his scholarly contribution to this journal. In reviewing the arguments of counsel in the Marion PCA v. Cochran case,' Professor Shanker claims that the Court "was led astray by the lawyers" and that" [m]isleading from the [l]awyers" caused the Court to undertake its analysis of the Statute of Frauds.2 He stakes this claim on his apparent belief that counsel did not ask the Court to apply the parol evidence rule to the facts of the case. …

Wiggins V. State: Receiving A Fair Trial Under The Specter Of Aids, Charles Zamora

Akron Law Review

Wiggins v. State presented two unique issues: (1) whether it was proper to authorize courtroom security personnel to use prophylactic apparel while escorting a defendant merely suspected of having acquired immunodeficiency syndrome (AIDS), and (2) the extent to which this handling procedure impacted the jury.

This Note will analyze the Wiggins decision, emphasizing the court's reasoning as it pertains to the following: (1) the guarantee of a fair and impartial jury trial for defendants either having or being suspected of having AIDS; (2) the permissible exercise of discretion by the trial judge in authorizing precautions during the course of the …

Evidentiary Use Of Prior Acquittals: When Analysis Exceeds Reality, Paul Harper

Akron Law Review

The purpose of this note is to assess the basis and propriety of that decision and to highlight some potential problems with the Court's conclusion. Additionally, this casenote will attempt to envision how this holding may affect future prosecutions.

Finally it will offer an alternative model which may more adequately address the tension between the government's legitimate prosecutorial interests and the defendant's interest in finality of judgment.

State V. Jenks Fails To Clarify Appellate Standards Of Evidence Review In Ohio, Kevin L. Leffel

Akron Law Review

The analysis that follows focuses on two points. First, many reviewing courts in Ohio have failed to discern between reversing a conviction because it was against the manifest weight of the evidence and reversing because the evidence was not sufficient to support the conviction. The concepts and associated standards of review are separate and distinct. Jenks failed to clarify the distinction and may actually add to the confusion. Second, the elimination of the circumstantial evidence rule has implications concerning the definition of reasonable doubt in Ohio.

Verbal Speech Versus Visual Art: Evidence Of Unequal First Amendment Protection In Right Of Publicity Jurisprudence, Daniel Forman

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Hijacking Justice: Assessing The Emergency Driven Analysis Of Confrontation Clause Jurisprudence, Steven C. Berlowitz

Cardozo Law Review

No abstract provided.

Ambiguous-Purpose Statements Of Children And Other Victims Of Abuse Under The Confrontation Clause, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The author examines in this paper two kinds of ambiguous-purpose out-of-court statements that are especially problematic under current Confrontation law--problematic in ways that we hope will be solved directly or indirectly by the Supreme Court when it renders its decision in Ohio v. Clark. The statements he examines are:

(1) Statements made by abused children concerning their abuse, for example to police, physicians, teachers, welfare workers, baby sitters, or family members, some of whom may be under a legal duty to report suspected abuse to legal authorities. At least some of these statements will be directly addressed by the …

Biometric Passwords And The Privilege Against Self-Incrimination, Kara Goldman

Cardozo Arts & Entertainment Law Journal

No abstract provided.

This Book Is Not Yet Rated: Age Ratings In The Literary Market Vs. Minors' First Amendment Right To Receive Information, Nathalie De Choudens Baez

Cardozo Arts & Entertainment Law Journal

No abstract provided.

When Skeletons Come Out Of The Closet: Implications Of The Bosnian Genocide Decision For Serbia's Eventual Eu Accession, Edina Slomic

Georgia Journal of International & Comparative Law

No abstract provided.

Remaking Mexico: Law Reform As Foreign Policy, Deborah M. Weissman

Cardozo Law Review

No abstract provided.

Congressional Policy For Work Product Protection In Congressional Investigations, Jay Brody

Cardozo Public Law, Policy & Ethics Journal

The note examines the conflict between congressional investigative powers and the work product doctrine, advocating for a balanced approach that considers the nature of the investigation. It argues that the type of congressional investigation—legislative, oversight, or investigative—should determine the level of work product protection applied, ensuring both effective governance and legal fairness.

There But For The Grace Of God Go I: The Right Of Cross-Examination In Social Security Disability Hearings , Bradley S. Dixon

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

United States V. Salvucci: The Problematic Absence Of Automatic Standing, William C. Bollard

Pepperdine Law Review

The United States Supreme Court recently abolished the automatic standing rule in United States v. Salvucci. The author analyzes the difficulties created for the criminal defendant charged with a possessory crime. In particular, this note focuses on the inequitable position the defendant is placed in when his suppression hearing testimony is used as a tool to impeach subsequent testimony offered at trial. The author continues by pointing out that the "prosecutorial self-contradiction," sought to be abolished in Salvucci, remains a part of our present judicial system. In conclusion, the author offers several considerations that will necessarily be an integral part …

New York V. Belton: The Scope Of Warrantless Searches Extended, Glenn D. Forcucci

Pepperdine Law Review

The United States Supreme Court, in New York v. Belton, expanded the area in which a policeman may search after he has made a lawful custodial arrest. In so ruling, the Supreme Court dramatically departed from its previous holding in Chimel v. California. While Chimel limited the area of the search to the area "within the immediate control of the arrestee," Belton allowed a search outside of that established boundary, as the Supreme Court allowed the search to include the passenger compartment of an automobile which the arrestee had not occupied.

Coy V. Iowa: A Constitutional Right Of Intimidation, John A. Mayers

Pepperdine Law Review

No abstract provided.

The Promise And Pitfalls Of Empiricism In Educational Equality Jurisprudence, Lia Epperson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Incredible Shrinking Confrontation Clause, Jeffrey Bellin

Vanderbilt Law School Faculty Publications

Sharp turns in the Supreme Court's recent Confrontation Clause jurisprudence have left scholars reeling from conflicting emotions: exhilaration, despair, denial, and soon, perhaps, cynical acceptance. While most commentators celebrated the demise of the incoherent Ohio v. Roberts framework, their excitement largely faded as the Court's decisions in Davis v. Washington and Bryant v. Michigan revealed nascent flaws in the evolving doctrine and sharply curtailed the newly revitalized confrontation right.

Recent scholarship strives to reanimate the jurisprudence by expanding the doctrinal definition of "testimonial" statements - the sole form of evidence Associate Professor, William & Mary Law School. I would like …

Musical Copyright Infringement: The Replacement Of Arnstein V. Porter - A More Comprehensive Use Of Expert Testimony And The Implementation Of An "Actual Audience" Test , Michelle V. Francis

Pepperdine Law Review

No abstract provided.

The Embedded Epistemologist: Dispatches From The Legal Front, Susan Haack

Articles

In ordinary circumstances, we can assess the worth of evidence well enough without benefit of any theory; but when evidence is especially complex, ambiguous, or emotionally disturbing-as it often is in legal contexts-epistemological theory may be helpful. A legal fact-finder is asked to determine whether the proposition that the defendant is guilty, or is liable, is established to the required degree of proof by the [admissible] evidence presented; i.e., to make an epistemological appraisal. The foundherentist theory developed in Evidence and Inquiry can help us understand what this means; and reveals that degrees of proof cannot be construed as mathematical …

Georgia's New Evidence Code - An Overview, Paul S. Milich

Georgia State University Law Review

On May 3, 2011, Governor Nathan Deal signed into law House Bill 24 (HB 24) bringing a new set of evidence rules to the State of Georgia.

The new rules went into effect on January 1, 2013. The author of this article was the Reporter for the State Bar Evidence Study Committee when new rules were first proposed back in the mid-1980s, and again throughout the recent, successful effort to reform the rules.

Part I of this article will give a brief history of the twenty-six-year effort to bring new evidence rules to Georgia. Part II will provide a structural …

California's Opportunity To Create Historical Precedent Regarding A Mediated Settlement Agreement's Effect On Mediation Confidentiality And Arbitrability , Susan Nauss Exon

Pepperdine Dispute Resolution Law Journal

Confidentiality serves as a cornerstone of mediation. The public policy underlying confidentiality is the promotion of candid communications between disputing parties. As explained in this article, mediation confidentiality affects more than just communication. It affects other important mediation values, such as party self-determination and mediator impartiality. Mediation confidentiality affects parties' ability to enforce their mediated agreements. Finally, confidentiality affects multiple dispute resolution processes, as seen by the interrelated nature of mediation and arbitration in the seminal case of Fair v. Bakhtiari.

Waiving Rights Goodbye: Class Action Waivers In Arbitration Agreements After Stolt-Nielsen V. Animalfeeds International , Diana M. Link, Richard A. Bales

Pepperdine Dispute Resolution Law Journal

This article first argues that to determine the enforceability of a class action waiver, courts should take a "totality of the circumstances" approach rather than adopting a bright-line rule. A set of defined factors that also allows courts to consider real-world issues facing litigants will provide a substantial framework for courts to interpret this area of the law and will lead to more consistent and well-reasoned outcomes in the future. These factors include: the probable size of each class member's individual recovery, the potential for retaliation against class members, the awareness of potential class members that their rights have been …

Response Essay: Some Observations On Professor Schwartz's "Foundation" Theory Of Evidence, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

Professor David Schwartz's A Foundation Theory of Evidence posits an intriguing new way to look at Evidence. It asserts that offered evidence must meet a tripartite requirement before it can be relevant. The tripartite requirement is that the evidence must be "case-specific, assertive, and probably true." His shorthand for the tripartite requirement is that evidence must be "well founded." Hence, he calls his theory the "foundation theory of evidence" and claims this foundation notion is so central to evidence law that it eclipses in importance even relevance itself. The tripartite requirement inheres in the very concept of evidence and relevancy, …

What Will We Lose If The Trial Vanishes?, Robert P. Burns

Faculty Working Papers

The number of trials continues to decline andfederal civil trials have almost completely disappeared. This essay attempts to address the significance of this loss, to answer the obvious question, "So what?" It argues against taking a resigned or complacent attitude toward an important problem for our public culture. It presents a short description of the trial's internal structure, recounts different sorts of explanations, and offers an inventory of the kinds of wounds this development would inflict.

"I'M Going To Dinner With Frank": Admissibility Of Nontestimonial Statements Of Intent To Prove The Actions Of Someone Other Than The Speaker - And The Role Of The Due Process Clause, Lynn Mclain

Cardozo Law Review

No abstract provided.