Evidence Commons^™

Amending For Justice’S Sake: Codified Disclosure Rule Needed To Provide Guidance To Prosecutor’S Duty To Disclose, Nathan A. Frazier

Florida Law Review

This Note argues for the implementation of bright-line rules to guide prosecutorial discretion. It urges a solution that identifies the salient facts from the case law and enumerates those facts into a codified Strickler three-prong standard. A bright-line standard should exist requiring disclosure when any of the following scenarios are present: (1) Prior perjury or false testimony of a government witness; (2) Promises of immunity to a government witness; (3) Monetary rewards to key government witnesses; (4) Mental impairments of a government witness; (5) Information reflecting bias or prejudice of a government witness against defendant; (6) Confessions to the crime …

Drug Use And The Exclusionary Manque, Jerome A. Busch

Pepperdine Law Review

No abstract provided.

Admissibility Of Illegally Seized Evidence In Civil Cases: Could This Be The Path Out Of The Labyrinth Of The Exclusionary Rule?, Richard J. Hanscom

Pepperdine Law Review

The use of the exclusionary rule in criminal cases has been the subject of extensive debate since its inception. Although most efforts to modify the rule have been deemed unworkable, the author proposes a modification that is both workable and sensible. Modification would be accomplished by legislation which admits the results of illegal searches by law enforcement officers who acted in good faith, and, at the same time, provide fixed monetary sanctions against the governmental agencies whose officers conducted the search. The author proposes a good faith balancing test to determine evidence admissibility and administrative type proceedings to determine monetary …

The Use Of Aviation Accident Reports By Civil Litigants: The Historical Development Of 49 U.S.C. Section 1441(E), Walter A. T. Welch Jr., John E. Faulk

Pepperdine Law Review

When aviation accidents occur, the National Transportation Safety Board conducts an investigation to determine the conditions, circumstances, and ultimately the probable cause of the accident. There is a federal statutory privilege which renders these reports, as well as testimony from the attending investigator, inadmissible as evidence in any suit or action arising from the accident. However, certain judicially created exceptions have arisen which permit portions of the report and certain investigator testimony to be admitted into evidence. The authors delineate and analyze these exceptions as they discuss the trend toward increased report and testimony admissibility. The authors conclude with a …

Under The Influence Of California's New Drunk Driving Law: Is The Drunk Driver's Presumption Of Innocence On The Rocks? , Douglas Caiafa, A. Randall Farnsworth

Pepperdine Law Review

On January 1, 1982, the new California drunk driving law went into effect. This law makes it a crime to drive a motor vehicle where one's blood alcohol level is .10 or more. The law also marks a legislative attempt to curtail the practice of plea bargaining in drunk driving cases and significantly increases the penalties imposed upon those convicted of drunk driving. This Comment will discuss the provisions of the new drunk driving law and examine its constitutionality.

The Sanction Provision Of The New California Civil Discovery Act, Section 2023: Will It Make A Difference Or Is It Just Another "Paper Tiger"? , Timothy Michael Donovan

Pepperdine Law Review

No abstract provided.

Logic, Not Evidence, Supports A Change In Expert Testimony Standards: Why Evidentiary Standards Promulgated By The Supreme Court For Scientific Expert Testimony Are Inappropriate And Inefficient When Applied In Patent Infringement Suits, Claire R. Rollor

Journal of Business & Technology Law

No abstract provided.

Adult Survivors Of Childhood Sexual Abuse And The Statute Of Limitations: The Need For Consistent Application Of The Delayed Discovery Rule, Gregory G. Gordon

Pepperdine Law Review

No abstract provided.

How To Move Beyond The Exclusionary Rule: Structuring Judicial Response To Legislative Reform Efforts, Harold J. Krent

Pepperdine Law Review

No abstract provided.

Substance And Method In The Year 2000, Akhil Reed Amar

Pepperdine Law Review

No abstract provided.

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 …

State V. Harden: Muddying The Waters Of Self-Defense Law In West Virginia, Devin C. Daines

West Virginia Law Review

No abstract provided.

Professional And Conviction Integrity Programs: Why We Need Them, Why They Will Work, And Models For Creating Them, Barry Scheck

Cardozo Law Review

The best way to effectively prevent Brady violations and other forms of prosecutorial misconduct that cause wrongful convictions is internal regulation of the District Attorney's office. Civil liability, state or bar disciplinary action, the stigma of appellate reversal, and the threat of criminal prosecution have failed to provide effective deterrence against Brady violations as well as other forms of misconduct. However, the lack of alternatives is not the reason why internal regulation is the most promising way to prevent Brady violations, but rather because prosecutors themselves are in the best position to implement procedures that achieve this goal.

Prosecutorial offices, …

Photo Enforcement Programs: Are They Permissible Under The United States Constitution?, 43 J. Marshall L. Rev. 463 (2010), Paul Mcnaughton

UIC Law Review

No abstract provided.

Evidence Gained From Torture: Wishful Thinking, Checkability, And Extreme Circumstances, James Franklin

Cardozo Journal of International and Comparative Law

The article argues that while torture is morally abhorrent, its effectiveness in extracting reliable information should be evaluated separately from ethical considerations. It contends that torture can yield reliable information when the extracted details can be independently verified, challenging the common assumption that torture universally leads to false confessions. The analysis emphasizes the importance of understanding the factual reliability of torture-derived evidence before addressing its legal admissibility.

When Is Lying Illegal? When Should It Be? A Critical Analysis Of The Federal False Statements Act, 43 J. Marshall L. Rev. 111 (2009), Steven R. Morrison

UIC Law Review

No abstract provided.

Shu'ubiyya Or Security? Preserving Civil Liberties By Limiting Fisa Evidence To National Security Prosecutions, William Pollak

University of Michigan Journal of Law Reform

Part I of this Note addresses the restrictions on intelligence gathering under FISA prior to 9/11 and the motivations underlying the Patriot Act's revisions to FISA. Part II discusses the problems with the "primary purpose" test, which was in effect prior to the Patriot Act's revisions to FISA. Part III reviews the various policy and constitutional arguments made against the Patriot Act's "significant purpose" test. Part IV proposes that Congress enact a new "inextricably intertwined" test to govern the admission of FISA material in criminal prosecutions. Specifically, this Part looks at sixty criminal cases in which FISA material was admitted …

"I'D Grab At Anything. And I'D Forget." Domestic Violence Victim Testimony After Davis V. Washington, 41 J. Marshall L. Rev. 937 (2008), Nancee Alexa Barth

UIC Law Review

No abstract provided.

Nontestimonial Declarations Against Penal Interest: Eschewing The Corroboration Requirement For Inculpatory Statements, 41 J. Marshall L. Rev. 969 (2008), Michael Duffy

UIC Law Review

No abstract provided.

Criminal Law And Procedure, Marla G. Decker, Stephen R. Mccullough Jr.

University of Richmond Law Review

The authors have endeavored to select from the many appellate cases those that have the most significant precedential value. The article also outlines some of the most consequential changes tothe law enacted by the Virginia General Assembly in the areas ofcriminal law and procedure.

Rethinking Dui Law In Virginia, Monte Kuligowski

University of Richmond Law Review

As the demand for safer roadways needs little supporting argument, I turn to the constitutional problem of strict criminal liability law, followed with a brief analysis of criminal intent and strict liability law within the criminal system, some examples of how other states have responded to the inherent tensions, and a few specific thoughts for the legislature to consider.

Expert Testimony Disclosure Under Federal Rule 26: A Proposed Amendment, 41 J. Marshall L. Rev. 117 (2007), Keith H. Beyler

UIC Law Review

No abstract provided.

Apology In The Context Of Wrongful Conviction: Why The System Should Say It's Sorry, Abigail Penzell

Cardozo Journal of Conflict Resolution

The first section of this Note will discuss apology as a psychological tool to heal victims, offenders, and the community. The second section will examine the use of apology in analogous contexts to that of wrongful conviction. The third section will explore the potential or perceived disadvantages of offering an apology in the criminal context. The fourth section will detail the desire for apology among the wrongfully convicted as well as give examples of situations - like Mr. Fuller's - in which an apology has been tendered and has helped victims reintegrate into society. Finally, I will conclude that the …

Criminal Law And Procedure, Marla G. Decker, Stephen R. Mccullough

University of Richmond Law Review

The authors have endeavored to select from the many appellate cases those that have the most significant precedential value. The article also outlines some of the most consequential changes enacted by the General Assembly in the areas of criminal law and procedure.

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Reassessing Damages In Securities Fraud Class Actions, Elizabeth C. Burch

ExpressO

No coherent doctrinal statement exists for calculating open-market damages for securities fraud class actions. Instead, courts have tried in vain to fashion common-law deceit and misrepresentation remedies to fit open-market fraud. The result is a relatively ineffective system with a hallmark feature: unpredictable damage awards. This poses a significant fraud deterrence problem from both a practical and a theoretical standpoint.

In 2005, the Supreme Court had the opportunity to clarify open-market damage principles and to facilitate earlier dismissal of cases without compensable economic losses. Instead, in Dura Pharmaceuticals v. Broudo, it further confused the damage issue by (1) perpetuating the …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Zoning And Eminent Domain Under The New Minimum Scrutiny, John H. Ryskamp

ExpressO

Recently the Supreme Court has made it clearer that minimum scrutiny is a factual analysis. Whether in any government action there is a rational relation to a legitimate interest is a matter of determining whether there is a policy maintaining important facts. This has come about in the Court’s emerging emphasis on developing fact-based criteria for determining government purpose. Thus, those who want to affect zoning and eminent domain outcomes should look to what the Court sees as important facts, and whether government action is maintaining those facts with its proposed land use or eminent domain action.

The False Dichotomy Of Rape Trauma Syndrome, Holly Hogan

Cardozo Journal of Equal Rights & Social Justice

The article critiques the legal system's distinction between offensive and defensive uses of Rape Trauma Syndrome (RTS) testimony, arguing that this dichotomy is flawed. It contends that even testimony categorized as defensive often functions offensively by influencing the jury's perception of the victim's credibility. The article proposes a functional approach to evaluating RTS testimony, focusing on whether it vouches for the victim's credibility or explains counterintuitive behaviors, rather than adhering to the formal offensive/defensive framework.

Criminal Law And Procedure, Marla G. Decker, Stephen R. Mccullough

University of Richmond Law Review

This article examines the most significant cases from the Supreme Court of Virginia and the Court of Appeals of Virginia over the past year. The article also outlines some of the most consequential changes to the law enacted by the Virginia General Assembly during the 2005 Session in the field of criminal law and procedure.