Evidence Commons^™

On Demonstrative Evidence And Trial Graphics: What Works And What Doesn't, Ryan Flax

Criminal Law Practitioner

No abstract provided.

The Jury Wants To Take The Podium -- But Even With The Authority To Do So, Can It? An Interdisciplinary Examination Of Jurors' Questioning Of Witnesses At Trial, Mitchell J. Frank

Faculty Scholarship

No abstract provided.

Seeing Is Believing: The Anti-Inference Bias, Eyal Zamir Prof., Ilana Ritov, Doron Teichman

Indiana Law Journal

A large body of studies suggests that people are reluctant to impose liability on the basis of circumstantial evidence alone, even when this evidence is more reliable than direct evidence. Current explanations for this pattern of behavior focus on factors such as the tendency of fact finders to assign low subjective probabilities to circumstantial evidence, the statistical nature of such evidence, and the fact that direct evidence can rule out with greater ease any competing factual theory regarding liability. This Article describes a set of four new experiments demonstrating that even when these factors are controlled for, the disinclination to …

This Is Your Sword: How Damaging Are Prior Convictions To Plaintiffs In Civil Trials?, Kathryn M. Stanchi, Deirdre Bowen

Scholarly Works

The conventional wisdom in law is that a prior conviction is one of the most powerful and damaging pieces of evidence that can be offered against a witness or party. In legal lore, prior convictions seriously undercut the credibility of the witness and can derail the outcome of a trial. This Article suggests that may not always be true.

This Article details the results of an empirical study of juror decision-making that challenges the conventional wisdom about prior convictions. In our study, the prior conviction evidence did not have a direct impact on the outcome of the civil trial or …

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 …

Evidence, John E. Hall Jr., W. Scott Henwood, Alex Battey

Mercer Law Review

This year's Survey of evidence finds us in a unique position. The overhaul of the Georgia Evidence Code (Evidence Code) went into effect on January 1, 2013. Therefore, appellate cases continue to emerge that interpret and apply the former rules, providing insight and raising questions about how the new rules have changed the face of evidence in Georgia. This Survey highlights cases decided by the Georgia Court of Appeals and the Georgia Supreme Court between June 1, 2012 and May 31, 2013, that illustrate this tension between the old and new rules of evidence. These cases are presented alongside other …

Character, Liberalism, And The Protean Culture Of Evidence Law, Daniel D. Blinka

Seattle University Law Review

It is time to rethink character evidence. Long notorious as the most frequently litigated evidence issue, character doctrine plagues courts, trial lawyers, and law students with its infamously “grotesque” array of nonsensical rules, whimsical distinctions, and arcane procedures. Character is a calculation of social worth and value; it is the sum total of what others think of us, whether expressed as their own opinion or the collective opinions of many (reputation). Once we grasp that character is a social construct, we are in a better position to address some of the problems that plague evidence law. To provide needed clarity …

Is Expert Evidence Really Different?, Frederick Schauer, Barbara A. Spellman

Notre Dame Law Review

The problem with expert evidence is not the inappropriateness of the Daubert approach. The narrow focus on Daubert is misplaced. The real problem is with the more deeply entrenched view that expert evidence should be excluded under circumstances in which analogous non-expert evidence would be admitted. Daubert embodies the distinction between expert and non-expert evidence, but it is that very distinction, and not just Daubert, that is the problem. Daubert has indeed transformed modern evidence law, but perhaps it has awakened us to the need for a more profound transformation, one in which the very foundations of treating expert …

The Misbegotten Judicial Resistance To The Daubert Revolution, David E. Bernstein

Notre Dame Law Review

This Article reviews the history of the evolution of the rules for the admissibility of expert testimony since the 1980s, the revolutionary nature of what ultimately emerged, and the consistent efforts by recalcitrant judges to stop or roll back the changes, even after Rule 702 was amended to explicitly incorporate a strict interpretation of those changes.

Part I reviews the law of expert testimony through the Supreme Court’s Daubert decision. Critics had charged for decades that the adversarial system was a failure with regard to expert testimony. Parties to litigation, they argued, often presented expert testimony of dubious validity because …

Supplementing The Record In The Federal Courts Of Appeals: What If The Evidence You Need Is Not In The Record?, George C. Harris, Xiang Li

The Journal of Appellate Practice and Process

No abstract provided.

E-Discovery 2.0, Lumen N. Mulligan, Joyce Isaacs

Faculty Works

No abstract provided.

Testifying Minors: Pre-Trial Strategies To Reduce Anxiety In Child Witnesses, Dawn Hathaway Thoman

Nevada Law Journal

No abstract provided.

Adaptation And The Courtroom: Judging Climate Science, Kirsten Engel, Jonathan Overpeck

Michigan Journal of Environmental & Administrative Law

Climate science is increasingly showing up in courtroom disputes over the duty to adapt to climate change. While judges play a critical role in evaluating scientific evidence, they are not apt to be familiar with the basic methods of climate science nor with the role played by peer review, publication, and training of climate scientists. This Article is an attempt to educate the bench and the bar on the basics of the discipline of climate science, which we contend is a distinct scientific discipline. We propose a series of principles to guide a judge’s evaluation of the reliability and weight …

Counsel's Control Over The Presentation Of Mitigating Evidence During Capital Sentencing, James Michael Blakemore

Michigan Law Review

The Sixth Amendment gives a defendant the right to control his defense and the right to a lawyer's assistance. A lawyer's assistance, however, sometimes interferes with a defendant's control over his case. As a result, the Supreme Court, over time, has had to delineate the spheres of authority that pertain to counsel and defendant respectively. The Court has not yet decisively assigned control over mitigating evidence to either counsel or defendant. This Note argues that counsel should control the presentation of mitigating evidence during capital sentencing. First, and most importantly, decisions concerning the presentation of mitigating evidence are best characterized …

Argument And Courtroom Theatrics, Larry Geller, Peter Hemenway

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Impeachment In Administrative Cases, Calvin William Sharpe

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Discovery And Use Of Computerized Information: An Examination Of Current Approaches, Richard M. Long

Pepperdine Law Review

In recent years, the legal profession has run head on into the increasing use of computers and computerized information. Discovery and evidentiary rules developed to deal with written documentation may not be flexible enough to adequately cover this relatively new method of storing information. This comment examines various methods by which courts have attempted to deal with discovery and evidentiary problems involving computerized information, and suggests certain areas that should be explored in supporting or attacking the credibility of such information.

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.

Rule 408: Maintaining The Sheild For Negotiation In Federal And Bankruptcy Courts, Leslie T. Gladstone

Pepperdine Law Review

No abstract provided.

Survey Of Illinois Law: Waiver Of The Attorney-Client Privilege And Work Product Protection, 37 S. Ill. U. L.J. 825 (2013), Ralph Ruebner, Katarina Durcova

UIC Law Open Access Faculty Scholarship

Effective January 1, 2013, two new Illinois Supreme Court rules clarify and limit the waiver of the attorney-client privilege and work product protection rule. Illinois Rule of Evidence 502 ("IRE 502"), which spells out the limitations on waiver, is accompanied by a "clawback provision" in Illinois Supreme Court Rule 201(p) ("Rule 201(p)") that details the procedural steps a disclosing party should take to successfully assert the privilege following an inadvertent discovery disclosure. Additionally, these changes clarify the mandatory duty of the receiving party. IRE 502 was modeled on Federal Rule of Evidence 502 ("FRE 502") and Rule 201(p) was modeled …

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.

Educating For The Future: Teaching Evidence In The Technological Age, Denise H. Wong

Research Collection Yong Pung How School Of Law

The advent of the technological age has had significant effect on litigation practice, none more so than in the area of evidence gathering and presentation in court. A significant proportion of evidence that is gathered for both criminal and civil matters is now electronic in nature, and this necessitates a change in the way that lawyers think and advise on evidential issues. It is argued here that rather than simply focusing on principles relating to the admissibility of evidence in court, the traditional course on evidence law should be modified to equip students with an intellectual framework that conceives of …

Narrative, Truth, And Trial, Lisa Kern Griffin

Faculty Scholarship

This Article critically evaluates the relationship between constructing narratives and achieving factual accuracy at trials. The story model of adjudication— according to which jurors process testimony by organizing it into competing narratives—has gained wide acceptance in the descriptive work of social scientists and currency in the courtroom, but it has received little close attention from legal theorists. The Article begins with a discussion of the meaning of narrative and its function at trial. It argues that the story model is incomplete, and that “legal truth” emerges from a hybrid of narrative and other means of inquiry. As a result, trials …

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.

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.

Scientific Evidence In The Age Of Daubert: A Proposal For A Dual Standard Of Admissibility In Civil And Criminal Cases , William P. Haney Iii

Pepperdine Law Review

No abstract provided.

Smoking Out Big Tobacco: Some Lessons About Academic Freedom, The World Wide Web, Media Conglomeration, And Public Service Pedagogy From The Battle Over The Brown & Williamson Documents, Clay Calvert

Pepperdine Law Review

No abstract provided.

Misapplication Of The Attorney Malpractice Paradigm To Litigation Services: "Suit Within A Suit" Shortcomings Compel Witness Immunity For Experts, Adam J. Myers Iii

Pepperdine Law Review

No abstract provided.

Substance And Method In The Year 2000, Akhil Reed Amar

Pepperdine Law Review

No abstract provided.

Testimony For Sale: The Law And Ethics Of Snitches And Experts, George C. Harris

Pepperdine Law Review

No abstract provided.