Evidence Commons^™

Sb 127 - Criminal Procedure, Adriana C. Heffley, Allison S. Kim

Georgia State University Law Review

The Act introduces procedure by which victims who were not provided notice criminal proceedings, after requesting notice, may file a motion to be acknowledged by the court. This Act is meant to create a means by which a victim’s rights, as introduced by the constitutional amendment in SR 146, may be raised or enforced.

Revenge Porn, Thomas Lonardo, Tricia P. Martland, Rhode Island Bar Journal

Life of the Law School (1993- )

No abstract provided.

A Discouraging Omen: A Critical Evaluation Of The Approved Uniform Language For Testimony And Reports For The Forensic Latent Print Discipline, Simon A. Cole

Georgia State University Law Review

The theme of the 2018 Georgia State University Law Review symposium is the Future of Forensic Science Reform. In this Article, I will assess the prospects for reform through a critical evaluation of a document published in February 2018 by the United States Department of Justice (DOJ), the Approved Uniform Language for Testimony and Reports for the Forensic Latent Print Discipline (ULTR).

I argue that this document provides reason to be concerned about the prospects of forensic science reform. In Part I, I discuss the background of the ULTR. In Part II, I undertake a critical evaluation of the ULTR. …

Three Transformative Ideals To Build A Better Crime Lab, Nicole B. Cásarez, Sandra G. Thompson

Georgia State University Law Review

This Article proposes that policy makers should consider establishing their jurisdiction’s crime laboratories as government corporations independent of law enforcement as a means of improving their quality and efficiency. Simply building new buildings or seeking accreditation will not solve the endemic problems that crime laboratories have faced. Rather, we propose that crime laboratories be restructured with a new organizational framework comparable to the Houston Forensic Science Center's (HFSC) status as a local government corporation (LGC), which has proven to be conducive to creating a new institutional culture.

From our experience with the HFSC, we also believe that crime laboratories are …

The Paragraph 20 Paradox: An Evaluation Of The Enforcement Of Ethical Rules As Substantive Law, Donald E. Campbell

St. Mary's Journal on Legal Malpractice & Ethics

This Article addresses an issue courts across the country continue to struggle with: When are ethics rules appropriately considered enforceable substantive obligations, and when should they only be enforceable through the disciplinary process? The question is complicated by the ethics rules themselves. Paragraph 20 of the Scope section of the Model Rules of Professional Conduct includes seemingly contradictory guidance; it states the Rules are not to be used to establish civil liability, but also that they can be “some evidence” of a violation of a lawyer’s standard of care. Most states have adopted this paradoxal Paragraph 20 language. Consequently, courts …

Causation And "Legal Certainty" In Legal Malpractice Law, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

A line of California cases holds that causation of damages in legal malpractice actions must be proven with “legal certainty.” This Article argues that judicial references to legal certainty are ambiguous and threaten to undermine the fairness of legal malpractice litigation as a means for resolving lawyer-client disputes. Courts should eschew the language of legal certainty and plainly state that damages are recoverable if a legal malpractice plaintiff proves, by a preponderance of the evidence, that those losses were factually and proximately caused by the defendant’s breach of duty.

Hearsay In The Smiley Face: Analyzing The Use Of Emojis As Evidence, Erin Janssen

St. Mary's Law Journal

Abstract forthcoming

Understanding The Sexual Assault Kit Backlog In Pennsylvania, Kallie Crawford, Lyndsie Ferrara

Graduate Student Research Symposium

According to the FBI, to date, there are more than 400,000 untested sexual assault kits nationwide. While this is a huge issue that cannot be solved overnight, continual improvements and changes are needed to reduce and hopefully eliminate the backlog.

This research examines work going on nationwide and aims to better understand the backlog issues specifically in Pennsylvania. Furthermore, the research examines a program utilized by the law enforcement community that garnered necessary resources. First, a comprehensive review of improved practices in proactive jurisdictions of Ohio, Houston, Texas, and Detroit, Michigan was conducted to identify general policies and procedures that …

No Need For Cities To Despair After Bank Of America Corporation V. City Of Miami: How Patent Law Can Assist In Proving Predatory Loans Directly Cause Municipal Blight Under The Fair Housing Act, Jesse D.H. Snyder

Maine Law Review

Lack of sanguinity for cities was manifest after the Supreme Court’s May 1, 2017, opinion in Bank of America Corporation v. City of Miami. Although Bank of America recognized that cities have Article III standing to sue for economic injuries suffered from predatory lending, the Supreme Court rejected the Eleventh Circuit’s more lenient causation standard, favoring proof of “some direct relation between the injury asserted and the injurious conduct alleged.” Doubtless the result could have been worse for cities suing on the premise that racially discriminatory lending caused municipal blight. The courthouse doors could have closed if the Court had …

Neither Limited Nor Simplified: A Proposal For Reform Of Illinois Supreme Court Rule 222(B), Michael S. Smith

Michigan Law Review

A limited and simplified discovery system should broaden access to courts, resolve disputes quickly, and expedite relief to injured parties. It should not incentivize procedural gamesmanship or increase the system’s complexity. Regrettably, Illinois’s “limited and simplified” discovery system does both. The initiation procedure for the simplified system, Rule 222(b), creates procedural traps and perverse incentives for both plaintiffs and defendants, and conflicting appellate interpretations of the Rule intensify the problem. This Note examines the flaws underlying the current simplified discovery scheme and argues for reform. It examines simplified discovery schemes in other states to recommend a new system for initiating …

Hearsay And The Confrontation Clause (2017), Lynn Mclain

All Faculty Scholarship

This material is a part of a lecture delivered at the Maryland Judicial Center on May 11, 2017. It is an update of previous versions available at the following locations:

2016: http://scholarworks.law.ubalt.edu/all_fac/955/

2012: http://scholarworks.law.ubalt.edu/all_fac/924/

The material is a series of flowcharts that explain the nuances of hearsay law and the confrontation clause under Maryland law.

"A Middle Temperature Between The Two": Exploring Intermediate Remedies For The Failure To Comply With Maryland's Eyewitness Identification Statute, Marc A. Desimone Jr.

University of Baltimore Law Review

This article addresses what remedies should be available to a criminal defendant in Maryland who has been identified in an extrajudicial identification procedure that does not comply with the present statutory requirements. Part II of this article provides an overview of the present due process test for evaluating the admissibility of extrajudicial eyewitness identifications, the present Maryland iteration of that test, and alternatives to that approach that have been adopted in other jurisdictions. Part III reviews recent legislative reforms to extrajudicial identification procedures, which are required in Maryland as of January 1, 2016. Section IV.A of this article argues why …

Recent Development: Seley-Radtke V. Hosmane: The Standard Of Proof Requirement In A Purely Private Defamation Action For An Individual Asserting A Common Law Conditional Privilege Is Preponderance Of The Evidence, Makeda Curbeam

University of Baltimore Law Forum

The Court of Appeals of Maryland held that a party seeking to overcome a common law conditional privilege in a purely private defamation suit must do so by a preponderance of the evidence. Seley-Radtke v. Hosmane, 450 Md. 468, 474, 149 A.3d 573, 576 (2016). The court also held that evidentiary issues not addressed by the court of special appeals are not subject to review by the court of appeals. Id. at 510, 149 A.3d at 598 (citing Md. R. 8- 131(b)(1)). Further, the court held that prejudicial evidence irrelevant to a claim is not admissible at trial. Seley-Radtke, 450 …

Hearsay And The Confrontation Clause, Lynn Mclain

All Faculty Scholarship

This speech was delivered to the Wicomico Co. Bar Association on October 28th, 2016. It is an updated version of the 2012 speech, available at http://scholarworks.law.ubalt.edu/all_fac/924/ .

Overview: Only an out-of-court statement ("OCS") offered for the truth of the matter that was being asserted by the out-of-court declarant ("declarant") at the time when s/he made the OCS ("TOMA") = hearsay ("HS"). If evidence is not HS, the HS rule cannot exclude it. The Confrontation Clause also applies only to HS, but even then, only to its subcategory comprising "testimonial hearsay." Cross-references to "MD-EV" are to section numbers of L. MCLAIN, …

Recent Development: Peterson V. State: Limitations On Defense Cross-Examination Are Permitted When The Testimony Lacks A Factual Foundation, Is Overly Prejudicial, Or Has Not Been Adequately Preserved, Meghan E. Ellis

University of Baltimore Law Forum

The Court of Appeals of Maryland held that the defendant’s right to confrontation was not violated when the defense was precluded from cross-examining a witness about hallucinations and his potential sentence prior to entering into a plea agreement. Peterson v. State, 444 Md. 105, 153-54, 118 A.3d 925, 952-53 (2015). The court found that the defendant failed to preserve the issue of a witness’s expectation of benefit with respect to pending charges, and failed to show sufficient factual foundation for a cross-examination regarding the expectation. Id. at 138-39, 118 A.3d at 944. In addition, the court found that, although not …

Filming The Police: An Interference Or A Public Service, Aracely Rodman

St. Mary's Law Journal

Abstract forthcoming.

Motor Vehicles; Driving While Intoxicated; Section 4511.19; Implied Consent; Aurora V. Kepley, Amie Bruggeman

Akron Law Review

With the constant problem of accidents caused by drinking drivers and the fairly reliable results of breathalyzer tests established, judicial decisions have upheld the statutory scheme providing for its use through an era when rights of an accused have been greatly expanded. It has been held that the breathalyzer test results are not testimonial but physical evidence and therefore not protected by the Fifth Amendment privilege against self-incrimination. Thus, the accused has no constitutional right to refuse to take the test, and the prosecutor may comment at the trial on his refusal relying on its' probative value as to whether …

The Use Of Prior Inconsistent Statements Of Opinion To Impeach: Ohio's Position, Richard Milligan

Akron Law Review

The purpose of this article is to examine prior inconsistent statements of opinion and point out why their exclusion, when offered to impeach, is improper. Ohio's three leading cases on this point will serve to exemplify the improper characterization and exclusion of these statements.

The Courtroom Status Of The Polygraph, John A. Turlik

Akron Law Review

This comment will inform the reader of the status and various uses of the polygraph available to the criminal attorney, with an emphasis on Ohio law.

Culpability Evaluations In The State Supreme Courts From 1977 To 1999: A "Model" Assessment, Dannye Holley

Akron Law Review

A key premise of this article is that a fair assessment of the performance of state supreme court judges with regard to culpability evaluations must begin by differentiating among the states based upon the relative quality of statutory guidance available to each court on this crucial substantive criminal law issue. In light of the above discussion defining culpability evaluation and legislative action with regard thereto, this article categorizes states based on relative improvement in their statutory culpability evaluation scheme: first are those states with a set of hierarchical culpability concepts, which are specifically defined in relation to types of objective …

Calculating Credibility: State V. Sharma And The Future Of Polygraph Admissibility In Ohio And Beyond, Vincent V. Vigluicci

Akron Law Review

Almost a century after its inception, the polygraph test remains one of the most fascinating forms of evidence. Firmly entrenched in popular mythology, the polygraph offers the promise of calculating truth and credibility with scientific certainty, a proposition that continues to capture the public’s imagination. At the same time, the polygraph has also been viewed with great trepidation as a flawed and dangerous instrument of oppression. Commonly called a “lie detector,” the polygraph does not actually detect lying; it measures subtle changes in blood pressure, pulse, respiration, and the skin’s resistance to electricity that are thought to result from the …

Disentangling Michigan Court Rule 6.502(G)(2): The "New Evidence" Exception To The Ban On Successive Motions For Relief From Judgment Does Not Contain A Discoverability Requirement, Claire V. Madill

Michigan Law Review

Michigan courts are engaging in a costly interpretative mistake. Confused by the relationship between two distinct legal doctrines, Michigan courts are conflating laws in a manner that precludes convicted defendants from raising their constitutional claims in postconviction proceedings. In Michigan, a convicted defendant who wishes to collaterally attack her conviction must file a 6.500 motion. The Michigan Court Rules generally prohibit “second or subsequent” motions. Nonetheless, section 6.502(G)(2) permits a petitioner to avoid this successive motion ban if her claim relies on “new evidence that was not discovered” before her original postconviction motion. Misguided by the similarity between the language …

Recent Development: Hailes V. State: The State May Appeal A Trial Court's Ruling Excluding A Dying Declaration; The Length Of Time Between A Declarant's Statement And Death Is Irrelevant In A Dying Declaration Analysis; The Confrontation Clause Is Inapplicable To Dying Declarations, Lauren A. Panfile

University of Baltimore Law Forum

The Court of Appeals of Maryland held that the State may appeal a trial court’s suppression of a victim’s dying declaration based on the legislative intent of Section 12-302(c)(4)(i) of the Maryland Code, Courts and Judicial Procedure Article (“section 12-302(c)(4)(i)”). Hailes v. State, 442 Md. 488, 497-98, 113 A.3d 608, 613-14 (2015). The court further held that a victim’s statement, made while on life support, was a dying declaration regardless of the fact that the victim died two years after making the statement. Id. at 506, 113 A.3d at 618. Finally, the court held that the Confrontation Clause of the …

Recent Development: Sublet V. State: Authentication Of Evidence From Social Networking Websites Requires A Trial Judge To Find Sufficient Proof From Which A Reasonable Juror Could Conclude That The Evidence Is What The Proponent Claims It To Be, Denise A. Blake

University of Baltimore Law Forum

The Court of Appeals of Maryland, in three consolidated cases, held that a trial judge must determine that evidence from a social networking website meets the “reasonable juror” standard of authentication as a condition precedent to admissibility. Sublet v. State, 442 Md. 632, 678, 113 A.3d 695, 722 (2015). This standard requires a preliminary determination by the trial judge that a reasonable juror could find the evidence is what the proponent claims it to be.

Why Illinois Should Adopt Federal Rule Of Evidence 803(18) To Allow The Learned Treatise Exception To The Hearsay Rule, 39 S. Ill. U. L.J. 275 (2015), Ralph Ruebner, Katarina Durcova, Amy Taylor

UIC Law Open Access Faculty Scholarship

Illinois still adheres to a rigid and outdated common law principle that treats a learned treatise as hearsay. This principle stands at odds with the adoption of Federal Rules of Evidence 703 ("FRE 703")' and 705 ("FRE 705") by the Illinois Supreme Court. Illinois courts have developed clever ways to get around the common law prohibition thereby creating an incoherent and inconsistent jurisprudence that at times yields bizarre outcomes.

Adopting the federal learned treatise exception to the hearsay rule would set out a consistent standard in Illinois for admitting learned treatises and allowing them as substantive evidence. Now that Illinois …

Virginia's Gap Between Punishment And Culpability: Re-Examining Self-Defense Law And Battered Women's Syndrome, Kendall Hamilton

University of Richmond Law Review

No abstract provided.

Singapore's New Discretionary Death Penalty For Drug Couriers: Public Prosecutor V Chum Tat Suan, Siyuan Chen

Research Collection Yong Pung How School Of Law

The article offers information on the history, evolution and significance of the new discretionary death penalty legislation for drug couriers in Singapore under the application of the Misuse of Drugs Act (MDA). It discusses the judicial decision of the Singaporean High Court in the case of Public Prosecutor v. Chum Tat Suan in which the Court convicted the accused with chareges of importing of more than 94.96g of diamorphine into Singapore that was punishable under section 33 of the MDA.

On Professionalism, Civility, & Discovery, Kathryn Todryk

Criminal Law Practitioner

No abstract provided.

Survey Of Washington Search And Seizure Law: 2013 Update, Justice Charles W. Johnson, Justice Debra L. Stephens

Seattle University Law Review

This survey is intended to serve as a resource to which Washington lawyers, judges, law enforcement officers, and others can turn as an authoritative starting point for researching Washington search and seizure law. In order to be useful as a research tool, this Survey requires periodic updates to address new cases interpreting the Washington constitution and the U.S. Constitution and to reflect the current state of the law. Many of these cases involve the Washington State Supreme Court’s interpretation of the Washington constitution. Also, as the U.S. Supreme Court has continued to examine Fourth Amendment search and seizure jurisprudence, its …

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.