Evidence Commons^™

Silencing Tory Bowen: The Legal Implications Of Word Bans In Rape Trials, 43 J. Marshall L. Rev. 215 (2009), Randah Atassi

UIC Law Review

No abstract provided.

Wanting The Truth: Comparing Prosecutions Of Investigative And Institutional Deception, Lisa Kern Griffin

Faculty Scholarship

Defensive dishonesty in criminal investigations has increasingly been prosecuted without standards for identifying harmful deception or other meaningful checks on prosecutorial discretion. Although they are often grouped together statistically and evaluated as comparable crimes, there is a clear distinction between investigative lies and in-court perjury. The differences between the offenses—including the standards for prosecution, the perceived victim, and the purposes of bringing charges—suggest reasons to reconsider the current approach to investigative lies such as false statements. More truth is produced, and arguably more cooperation results, when the government focuses on the quality of the information flow. The structural protections in …

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.

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 …

Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler

Faculty Scholarship

Crawford v. Washington’s historical approach to the confrontation clause establishes that testimonial hearsay inadmissible without confrontation at the founding is similarly inadmissible today, despite whether it fits a subsequently developed hearsay exception. Consequently, the requirement of confrontation depends upon whether an out-of-court statement is hearsay, testimonial, and, if so, whether it was nonetheless admissible without confrontation at the founding. A substantial literature has developed about whether hearsay statements are testimonial or were, like dying declarations, otherwise admissible at the founding. In contrast, this article focuses on the first question – whether statements are hearsay – which scholars have thus far …

A Matter Of Context: Social Framework Evidence In Employment Discrimination Class Actions, Melissa Hart, Paul M. Secunda

Publications

In litigation disputes over the certification of employment discrimination class actions, social scientists have come to play a central, yet controversial, role. Organizational behavioralists and social psychologists regularly testify for the plaintiffs, offering what is commonly referred to as social framework testimony. These experts explain the general social science research on the operation of stereotyping and bias in decision making and examine the challenged workplace to identify those policies and practices that research has shown will tend to increase and those that will tend to limit the likely impact of these factors. Defendants fight hard against the admission of social …

Analysis Of Videotape Evidence In Police Misconduct Cases, Martin A. Schwartz, Jessica Silbey, Jack Ryan, Gail Donoghue

Faculty Scholarship

Many evidentiary issues arise with respect to the admission of videotape evidence and computer generated simulations at trial, and the authors of this Article address these issues as they arise in police misconduct cases. Professor Schwartz provides insight into and analysis of the evidentiary principles that govern the use of video and computer simulation evidence at trial in cases where police misconduct is at issue. His discussion first addresses the issues that concern the admissibility of videotape evidence, then discusses the role of a videotape on summary judgment, and lastly, analyzes evidentiary issues with respect to computer generated simulations.

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

University of Richmond Law Review

No abstract provided.

Eyes Wide Shut: How Ignorance Of The Common Interest Doctrine Can Compromise Informed Consent, Katharine Traylor Schaffzin

University of Michigan Journal of Law Reform

This Article addresses the novel ethical problems presented by the common interest doctrine that implicate an attorney's duties of diligence, confidentiality, and loyalty to his or her client. These adverse effects of informal aggregation are not always fully considered before engaging a client in a common interest arrangement, but they should be. In Part II, this Article first explains the potential advantages that the common interest doctrine presents as an evidentiary tool, but then recognizes that exercise of the doctrine creates an undefined duty on the part of the attorney to the party with whom a client exchanges confidential information. …

Science On Trial, Valerie P. Hans

Cornell Law Faculty Publications

The increasing complexity of both criminal and civil jury trials raises a host of issues for lawyers and judges. For the litigator, the first question is whether a jury can be trusted with a case that turns on highly technical evidence. For the trial judge, there are decisions about the admissibility of expert testimony, whether it is based on sound science, and whether a jury is likely to be misled by scientific claims. Should the judge permit jury innovations such as note taking, question asking, and juror discussions of evidence during the trial, hoping to increase jury comprehension of the …

"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.

Goldberg V. Boone: Getting Away With “Murder”— An Attempt To Exploit The Arbitrary Limits On Cross-Examination Questioning, Brigham J. Lundberg

Maryland Law Review

No abstract provided.

Pretrial Discovery Of Expert Testimony, Paul C. Giannelli

Faculty Publications

No abstract provided.

Asymmetrical Warfare: The Cost Of Electronic Discovery In Employment Litigation, Rodney A. Satterwhite, Matthew J. Quatrara

Richmond Journal of Law & Technology

A fundamental tenet of the 2006 Amendments to the Federal Rules of Civil Procedure (the “2006 Amendments”) is the notion that parties can agree and cooperate on issues relating to electronic discovery. Many of the rule changes now either require parties to meet and confer about electronic discovery or presuppose a certain level of dialogue between the parties regarding such issues.

Nontestimonial Identification Orders For Dna Testing, Paul C. Giannelli

Faculty Publications

No abstract provided.

Access To Information, Access To Justice: The Role Of Presuit Investigatory Discovery, Lonny Sheinkopf Hoffman

University of Michigan Journal of Law Reform

What is the relationship between access to information and access to justice? Private parties obviously have many publicly available points of access to the information they seek in order to file a lawsuit. Lawyers can talk to their clients and other willing witnesses. Documents can be gathered. Specific statutes may sometimes permit information to be obtained before a formal lawsuit is brought. On other occasions, however, information needed or desired will lie solely within the exclusive knowledge and control of another The ability of private parties to compel the production of information, documents, or testimony before litigation rarely has been …

Crawford V. Washington And Davis V. Washington'S Originalism: Historical Arguments Showing Child Abuse Victims' Statements To Physicians Are Nontestimonial And Admissible As An Exception To The Confrontation Clause, Tom Harbinson

Mercer Law Review

Under Crawford v. Washington and Davis v. Washington, the Supreme Court has created a new interpretation of the right of confrontation that holds out-of-court testimonial statements inadmissible without cross-examination. In order to determine if statements for purposes of medical diagnosis and treatment should continue to be an exception to confrontation, this Article reviews the historical evidence cited by the Court. The Court's originalist analysis holds that the only exception for what the Court refers to as "testimonial statements" is the exception for dying declarations. This Article establishes that a significant number of confrontation exceptions existed for testimonial statements in …

A Proposal To Amend Rule 407 Of The Federal Rules Of Evidence To Conform With The Underlying Relevancy Rationale For The Rule In Negligence And Strict Liability Actions, Ralph Ruebner, Eugene Goryunov

ExpressO

The current version of FRE 407 prevents the use of evidence of remedial measures taken after an event that caused an injury or harm in order to prove negligence, culpable conduct, or strict product liability. Our proposal is that the language of Rule 407 be amended to preclude the admissibility of remedial measures which are taken both before and after an injury. This change will implement the relevancy rationale for the rule.

Prosecutors: Factors To Aid Your Filing Decisions With Respect To Fatal Traffic Collisions, Kimberly Rebecca Bird

ExpressO

As you may know, on a fairly regular basis, prosecutors are faced with filing decisions with respect to fatal traffic collisions. Many of them, of course, do not involve criminal negligence and are not prosecuted as crimes. Sometimes, on the other hand, the circumstances are egregious and the decision to be made is whether to file a case as a vehicular manslaughter or as a murder, on an implied malice theory. There are a finite number of California Supreme Court and Court of Appeal cases (beginning with People v. Watson (1981) 30 Cal.3d 290) that have addressed the sufficiency of …

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.

Should Statements Made By Patients During Psychotherapy Fall Within The Medical Treatment Hearsay Exception? An Interdisciplinary Critique, 41 J. Marshall L. Rev. 1 (2007), Philip K. Hamilton

UIC Law Review

No abstract provided.

Daubert Challenges To Firearms (“Ballistics”) Identifications, Paul C. Giannelli

Faculty Publications

No abstract provided.

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

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 …

Doctors & Juries, Philip G. Peters Jr.

Michigan Law Review

Physicians widely believe that jury verdicts are unfair. This Article tests that assumption by synthesizing three decades of jury research. Contrary to popular belief the data show that juries consistently sympathize more with doctors who are sued than with patients who sue them. Physicians win roughly half of the cases that expert reviewers believe physicians should lose and nearly all of the cases that experts feel physicians should win. Defendants and their hired experts, it turns out, are more successful than plaintiffs and their hired experts at persuading juries to reach verdicts contrary to the opinions of independent reviewers.

Daubert And The Disappearing Jury Trial, Allan Kanner

ExpressO

Since being decided by the Supreme Court in 1993, Daubert v. Merrell Dow Pharmaceuticals has earned its place as one of the most misinterpreted and misapplied decisions in modern history. Meant to liberalize the standards for admissions of proof, the decision has had the opposite effect. The gatekeeper powers given to judges via Daubert, coupled with the internal and external incentives to prevent jury trials, has placed our entire civil justice system at risk.

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.

Learning The Wrong Lessons From "An American Tragedy": A Critique Of The Berger-Twerski Informed Choice Proposal, David E. Bernstein

Michigan Law Review

Margaret Berger and Aaron Twerski are among the leading scholars in their respective fields of Evidence and Products Liability. I have benefited from their work on many occasions. Precisely because of the deserved respect and esteem in which Berger and Twerski are held-not to mention the prominence of their forum, the Michigan Law Review-their proposal to create a new "informed choice" cause of action in pharmaceutical litigation is likely to receive sympathetic attention. Because I believe that their proposal is ill-conceived and dangerous, I feel compelled (with some trepidation) to write this response. Berger and Twerski propose that courts recognize …

From The Wrong End Of The Telescope: A Response To Professor David Bernstein, Margaret A. Berger, Aaron D. Twerski

Michigan Law Review

On the pages of this law review, in an article entitled Uncertainty and Informed Choice: Unmasking Daubert, the authors argued for the recognition of a new product liability cause of action when drug companies fail to warn about uncertain risks attendant to the use of non-therapeutic drugs whose purpose is to enhance lifestyle. We noted that in the post-Daubert era, plaintiffs have faced increasing difficulty in proving that a given toxic agent was causally responsible for the injuries suffered after ingesting a drug. That plaintiffs cannot overcome the barriers to proving injury causation does not mean that defendants have met …