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Articles 1 - 30 of 71
Full-Text Articles in Evidence
Mixed Signals On Summary Judgment, Howard Wasserman
Mixed Signals On Summary Judgment, Howard Wasserman
Faculty Publications
This essay examines three cases from the Supreme Court’s October Term 2013 addressing the standards for summary judgment. In one case, the Court affirmed summary judgment against a civil-rights plaintiff, in a continued erroneous over-reliance on the certainty of video evidence. In two other cases, the Court rejected the grant of summary judgment against civil-rights plaintiffs, arguably for the first time in quite a while. This essay unpacks the substance and procedure underlying all three decisions and considers the effect of the three cases and what signals they send to lower courts and litigants about the proper approach to summary …
Confrontation, Experts, And Rule 703, Paul C. Giannelli
Confrontation, Experts, And Rule 703, Paul C. Giannelli
Faculty Publications
The United States Supreme Court has decided several cases concerning expert testimony and the Confrontation Clause. This essay argues that confrontation issues are complicated by Federal Evidence Rules 73 and 75, which changed the common law rules. Altering the common law made sense in civil cases because civil rules of procedure provide extensive discovery, which ensures basic fairness. In contrast, discovery in criminal cases is quite limited, which undercuts an accused’s ability to meaningfully confront prosecution experts at trial.
The 2009 Nas Forensic Science Report: A Literature Review, Paul C. Giannelli
The 2009 Nas Forensic Science Report: A Literature Review, Paul C. Giannelli
Faculty Publications
In February 29, the National Academy of Sciences (NAS) released its report on forensic science: Strengthening Forensic Science in the United States: A Path Forward (29). The popular press immediately trumpeted the report’s release, with headlines such as (1) “Report Urges Overhaul of Crime Lab System,” (2) “Real-life Police Forensics Don’t Resemble ‘CSI’: Reliability is ‘Low or Non-existent,’ Report Finds” and (3) “Science Found Wanting in Nation’s Crime Labs.”
Within three months of its publication, Justice Scalia cited the report in a Supreme Court decision, writing: “Forensic evidence is not uniquely immune from the risk of manipulation. . . Serious …
The Preservation Obligation: Regulating And Sanctioning Pre-Litigation Spoliation In Federal Court, A. Benjamin Spencer
The Preservation Obligation: Regulating And Sanctioning Pre-Litigation Spoliation In Federal Court, A. Benjamin Spencer
Faculty Publications
The issue of discovery misconduct, specifically as it pertains to the prelitigation duty to preserve and sanctions for spoliation, has garnered much attention in the wake of decisions by two prominent jurists whose voices carry great weight in this area. In Pension Committee of University of Montreal Pension Plan v. Banc of America Securities LLC, Judge Shira A. Scheindlin-of the Zubulake v. UBS Warburg LLC2 e-discovery casespenned a scholarly and thorough opinion setting forth her views regarding the triggering of the duty to preserve potentially relevant information pending litigation and the standards for determining the appropriate sanctions for various breaches …
Forensic Science: Why No Research?, Paul C. Giannelli
Forensic Science: Why No Research?, Paul C. Giannelli
Faculty Publications
The National Academy of Sciences ground-breaking report on forensic science – Strengthening Forensic Science in the United States: A Path Forward – raised numerous issues. One dominant theme that runs throughout the Report is the failure of some forensic science disciplines to comport with fundamental scientific principles – in particular, to support claims with empirical research. The Report observed that “some forensic science disciplines are supported by little rigorous systematic research to validate the discipline’s basic premises and techniques. There is no evident reason why such research cannot be conducted.”
The Report went on to identify fingerprint examinations, firearms (ballistics) …
Scientific Evidence In Criminal Prosecutions - A Retrospective, Paul C. Giannelli
Scientific Evidence In Criminal Prosecutions - A Retrospective, Paul C. Giannelli
Faculty Publications
No abstract provided.
Scientific Fraud, Paul C. Giannelli
Scientific Fraud, Paul C. Giannelli
Faculty Publications
Although scientific fraud is rare, when it occurs, it needs to be identified and documented. This article discusses two of the most notorious cases in forensic science. Part I focuses on the misconduct of Fred Zain, a serologist with the West Virginia State Police crime laboratory and later with the County Medical Examiner’s laboratory in San Antonio, Texas. Part II examines the misconduct of Joyce Gilchrist, a forensic examiner with the Oklahoma City Police Department.
Independent Crime Laboratories: The Problem Of Motivational And Cognitive Bias, Paul C. Giannelli
Independent Crime Laboratories: The Problem Of Motivational And Cognitive Bias, Paul C. Giannelli
Faculty Publications
One of the most controversial recommendations in the National Academy of Sciences report on forensic science — Strengthening Forensic Science in the United States: The Path Forward — concerns the removal of crime laboratories from the administrative control of law enforcement agencies. For decades scholars have commented on the “inbred bias of crime laboratories affiliated with law enforcement agencies.” Some commentators have proposed independent laboratories as the remedy for this problem, and in 22, the Illinois Governor’s Commission on Capital Punishment proposed the establishment of an independent state crime laboratory. This essay documents the problems that triggered the NAS Report’s …
Adverse Inference About Adverse Inferences: Restructuring Juridical Roles For Responding To Evidence Tampering By Parties To Litigation, Dale A. Nance
Adverse Inference About Adverse Inferences: Restructuring Juridical Roles For Responding To Evidence Tampering By Parties To Litigation, Dale A. Nance
Faculty Publications
For at least two centuries, Anglo-American courts have responded to a party's evidence tampering by allowing the opponent to argue to jurors that they should draw an adverse inference against the offending party in deciding the merits of the case. This Article argues that the use of such inferences, and invitations to draw them, should be radically curtailed, not only because of the ambiguities and risks of prejudice that such inferences entail, but more importantly because they reflect and contribute to a confusion of roles in which the jury is enlisted to participate in the management of the pre-trial conduct …
Comparative Bullet Lead Analysis: A Retrospective, Paul C. Giannelli
Comparative Bullet Lead Analysis: A Retrospective, Paul C. Giannelli
Faculty Publications
For over thirty years, FBI experts testified about comparative bullet lead analysis (CBLA), a technique that was first used in the investigation into President Kennedy’s assassination. CBLA compares trace chemicals found in bullets at crime scenes with ammunition found in the possession of a suspect. This technique was used by the FBI when firearms (“ballistics”) identification could not be employed – for example, if the weapon was not recovered or the bullet was too mutilated to compare striations. Although the FBI eventually ceased using CBLA, the Bureau’s conduct in first employing the technique and then defending it after it was …
The Nrc Report And Its Implications For Criminal Litigation, Paul C. Giannelli
The Nrc Report And Its Implications For Criminal Litigation, Paul C. Giannelli
Faculty Publications
The National Research Council, an arm of the National Academy of Sciences, issued a landmark report on forensic science in February 2009. In the long run, the report’s recommendations, if adopted, would benefit law enforcement and prosecutors. The recommendations would allow forensic science to develop a strong scientific basis and limit evidentiary challenges regarding the reliability of forensic evidence. In keeping with its congressional charge, however, the NRC Committee did not directly address admissibility issues. Nevertheless, given its content, the report will inevitably be cited in criminal cases. Indeed, within months, the United States Supreme Court cited the report, noting …
Scientific Evidence And Prosecutorial Misconduct In The Duke Lacrosse Rape Case, Paul C. Giannelli
Scientific Evidence And Prosecutorial Misconduct In The Duke Lacrosse Rape Case, Paul C. Giannelli
Faculty Publications
The need for pretrial discovery in criminal cases is critical. A defendant's right to confrontation, effective assistance of counsel, and due process often turns on pretrial disclosure. This essay discusses a case that demonstrates this point.
Pretrial Discovery Of Expert Testimony, Paul C. Giannelli
Pretrial Discovery Of Expert Testimony, Paul C. Giannelli
Faculty Publications
No abstract provided.
Nontestimonial Identification Orders For Dna Testing, Paul C. Giannelli
Nontestimonial Identification Orders For Dna Testing, Paul C. Giannelli
Faculty Publications
No abstract provided.
Prosecutors, Ethics, And Expert Witnesses, Paul C. Giannelli, Kevin C. Mcmunigal
Prosecutors, Ethics, And Expert Witnesses, Paul C. Giannelli, Kevin C. Mcmunigal
Faculty Publications
Commentators who have examined the DNA exonerations have noted the disturbing role that prosecutors have played in these wrongful convictions. Another significant contributor to these miscarriages of justice is the misuse of expert testimony, a third of the cases according to some sources. This Article examines the intersection of these two factors - the prosecutor's role in using and presenting expert testimony.
Prosecutorial misconduct may occur during most stages of a trial, beginning with the selection of witnesses, including the improper "shopping" for experts. Additional abuses occur when prosecutors fail to abide by rules governing the pretrial disclosure of scientific …
Bite Mark Analysis, Paul C. Giannelli
Bite Mark Analysis, Paul C. Giannelli
Faculty Publications
Courts have admitted bite mark comparison evidence in homicide, rape, and child abuse cases. By the 1980s, the technique had gained widespread judicial acceptance. Hundreds of cases have admitted this type of evidence, and no reported case has rejected it. Moreover, some courts speak of bite mark comparison as a "science." Indeed, its acceptance is so well-established that several courts have taken judicial notice of its reliability, implying that the validity of the technique is not subject to reasonable dispute.
Yet, the scientific foundations for bite mark comparisons has never been demonstrated. Such basic issues as the uniqueness of the …
Daubert Challenges To Firearms (“Ballistics”) Identifications, Paul C. Giannelli
Daubert Challenges To Firearms (“Ballistics”) Identifications, Paul C. Giannelli
Faculty Publications
No abstract provided.
Daubert Challenges To Fingerprints, Paul C. Giannelli
Daubert Challenges To Fingerprints, Paul C. Giannelli
Faculty Publications
No abstract provided.
Empirical Evidence And Malpractice Litigation, Philip G. Peters Jr.
Empirical Evidence And Malpractice Litigation, Philip G. Peters Jr.
Faculty Publications
Critics of medical malpractice litigation believe that expert testimony is often anecdotal and biased. To remedy this problem, several have recently suggested that attorneys should provide and courts should seek reliable empirical evidence of actual clinical norms. Their suggestion should be welcomed. If our expectations are realistic and the design pitfalls are avoided, greater use of use of empirical research will improve the fairness of malpractice adjudication. At least in theory, it could be useful in both the "easy" cases (where it reveals that a consensus standard of care exists) and also some of the harder cases (where clinical practices …
Character Evidence, Paul C. Giannelli
“Other Acts” Evidence: Part Ii, Paul C. Giannelli
“Other Acts” Evidence: Part Ii, Paul C. Giannelli
Faculty Publications
No abstract provided.
Scientific Evidence In Civil And Criminal Cases, Paul C. Giannelli
Scientific Evidence In Civil And Criminal Cases, Paul C. Giannelli
Faculty Publications
No abstract provided.
Expert Qualifications: Traps For The Unwary, Paul C. Giannelli
Expert Qualifications: Traps For The Unwary, Paul C. Giannelli
Faculty Publications
No abstract provided.
New Developments In Scientific Evidence, Paul C. Giannelli
New Developments In Scientific Evidence, Paul C. Giannelli
Faculty Publications
No abstract provided.
Impeachment: Evidence Amendments, Paul C. Giannelli
Impeachment: Evidence Amendments, Paul C. Giannelli
Faculty Publications
No abstract provided.
Hearsay: Traps & Problem Issues, Paul C. Giannelli
Hearsay: Traps & Problem Issues, Paul C. Giannelli
Faculty Publications
No abstract provided.
The After-Acquired Evidence Rule: The Best Of All Possible Worlds?, Sharona Hoffman
The After-Acquired Evidence Rule: The Best Of All Possible Worlds?, Sharona Hoffman
Faculty Publications
No abstract provided.
Polygraph Evidence: Part I, Paul C. Giannelli
Polygraph Evidence: Part I, Paul C. Giannelli
Faculty Publications
No abstract provided.
Confrontation Issues In Child Abuse Cases, Paul C. Giannelli
Confrontation Issues In Child Abuse Cases, Paul C. Giannelli
Faculty Publications
No abstract provided.
Junk Science, Daubert, And Ohio Rule 702, Paul C. Giannelli
Junk Science, Daubert, And Ohio Rule 702, Paul C. Giannelli
Faculty Publications
No abstract provided.