Evidence Commons^™

Hearsay In High Definition: Body-Worn Cameras And The Future Of Intimate Partner Violence Prosecutions, Kenechukwu Okocha

Working Papers

Technological advances in documenting police encounters with the public have outpaced evidentiary hearsay rules. Specifically, the rapid adoption of body-worn cameras (BWCs), fueled by racial justice and police reform advocates, has produced previously unavailable, vivid, and timely recordings of IPV victims’ accounts of abuse. Unfortunately, state and federal rules governing hearsay often prevent juries from considering these out-of-court statements. Such restrictions carry particular force in IPV cases, where victims frequently recant or decline to testify at trial due to abuser manipulation or distrust of the criminal justice system.

Courts and legislatures have eased some evidentiary restrictions in IPV cases in …

Misinformation And The Law, Gustavo Ribeiro

Scholarly Articles in Law Reviews & Journals

This Article bridges critical gaps between the growing body of social science research on misinformation and the persistent challenges jurors face in evaluating potentially unreliable evidence in courtrooms. Misinformation—a pervasive issue undermining decision-making in democratic societies—mirrors the difficulties jurors encounter in distinguishing truth from falsehood amid compelling but unreliable evidence. The consequences of such challenges are dire: wrongful convictions, racial disparities, and the erosion of public trust in the legal system.

This Article is the first piece of legal scholarship to provide a comprehensive discussion of current research on the psychological mechanisms underlying susceptibility to misinformation—such as the illusory truth …

Brief Of Amici Curiae Professors Of Constitutional And Criminal Law In Support Of Petitioner (Whitton V. Dixon - 25-580), Ira P. Robbins, Jeffrey Fagan, Michael Cassidy, Barbara O'Brien, Catherine Grosso, William W. Berry Iii, Ellen C. Yaroshefsky

Amicus Briefs & Court Filings

Brief in support of Petitioner.

SUMMARY OF ARGUMENT: This Court has “consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair” because it “involve[s] a corruption of the truth-seeking function of the trial process.” United States v. Agurs, 427 U.S. 97, 103–04 (1976). Here, the Eleventh Circuit acknowledged that the state committed a Giglio violation when it permitted a jailhouse informant to falsely testify at trial that he lacked a violent criminal record despite prosecutors knowing that he did. The Eleventh Circuit deemed this violation harmless, however, based on its erroneous consideration of …

Amicus Brief Of Legal Scholars Lee Kovarsky Et Al. In Support Of Petitioner, Ira P. Robbins

Amicus Briefs & Court Filings

QUESTION PRESENTED: Whether a second-in-time habeas claim filed while an appeal from the judgment on an initial habeas claim is still pending counts as a second or successive habeas petition under 28 U.S.C. § 2244(b)

INTEREST OF AMICI CURIAE: Amici curiae are law professors and legal scholars who study federal post-conviction law and civil procedure. Amici curiae have no personal interest in the outcome of this case. They all share an interest in seeing habeas law applied in a way that ensures the just and timely adjudication of claims while preserving the traditional and intended operation of the Federal Rules …

Is It Science Or Storytime? Expert Testimony Evaluating Child Witness Credibility In Sexual Assault Cases, Elizabeth I. Boals

American University Law Review

While jurors struggle with determining any witnesses’ credibility, an even more arduous task is determining the credibility of a child victim in a sexual assault case. Due to developmental immaturity, children lack important recall and communication skills, and the well-established procedures of direct and cross examination are ineffective at producing accurate and complete trial testimony. Despite the adversarial system being proven ineffective in these contexts, American courts remain hesitant to admit expert testimony based on established psychology tools. Specifically, courts have questioned the application of Statement Validity Assessments (“SVAs”), to assist jurors in evaluating witness credibility, as they believe such …

Digital Habit Evidence, Andrew Guthrie Ferguson

Scholarly Articles in Law Reviews & Journals

This Article explores how “habit evidence” will become a catalyst for a new form of digital proof based on the explosive growth of smart homes, smart cars, smart devices, and the Internet of Things. Habit evidence is the rule that certain sorts of semiautomatic, regularized responses to particular stimuli are trustworthy and thus admissible under the Federal Rules of Evidence (“FRE”) 406 “Habit; Routine Practice” and state equivalents.

While well established since the common law, “habit” has made only an inconsistent appearance in reported cases and has been underutilized in trial practice. But intriguingly, once applied to the world of …

Are The Federal Rules Of Evidence Unconstitutional?, Ethan J. Leib

American University Law Review

The Federal Rules of Evidence (FRE) rest on an unacceptably shaky constitutional foundation. Unlike other regimes of federal rulemaking—for Civil Procedure, for Criminal Procedure, and for Appellate Procedure—the FRE rulemaking process contemplated by the Rules Enabling Act is both formally and functionally defective because Congress enacted the FRE as a statute first but purports to permit the Supreme Court to revise, repeal, and amend those laws over time, operating as a kind of supercharged administrative agency with the authority to countermand congressional statutes. Formally, this system violates the constitutionally-delineated separation of powers as announced in Chadha, Clinton, and the non-delegation …

Liberty And Justice For All?: A Pathfinder On The Use Of Lyrics As Evidence In Civil And Criminal Trial, Stephanie Washington

Upper Level Writing Requirement Research Papers

No abstract provided.

[Marked Confidential]: Negative Externalities Of Discovery Secrecy, Gustavo Ribeiro

Scholarly Articles in Law Reviews & Journals

Current unprecedented levels of secrecy in civil discovery create significant negative externalities by preventing our adversary system from measuring up to the broad public goals that justify it. First, excessive discovery secrecy undermines the courts and the public’s ability to correct distortions of the truth-seeking function of the adversary system caused by excessive partisanship and confirmation bias. Second, it weakens the adversary system’s promotion of liberal democratic values, such as transparency and self-government. Third, it threatens the adversary system’s role in upholding human dignity, understood either as respect or status. To correct the negative externalities caused by excessive discovery secrecy, …

Stereotyping Evidence: The Civil Exception To The Federal Rape Shield Law And Its Embedded Sexual Stereotypes, Ramona Albin

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Euclid Proviso, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

This Article argues that the Euclid Proviso, which allows regional concerns to trump local zoning when required by the general welfare, should play a larger role in zoning's second century. Traditional zoning operates to severely limit the construction of additional housing. This locks in the advantages of homeowners but at tremendous cost, primarily in the form of unaffordable housing, to those who would like to join the community. State preemption of local zoning defies traditional categorization; it is at once both radically destabilizing and market-responsive. But, given the ways in which zoning is a foundational part of the racial and …

The Decline And Fall Of Circumstantial Evidence In Antitrust Law, Christopher R. Leslie

American University Law Review

No abstract provided.

A Break From Reality: Modernizing Authentication Standards For Digital Video Evidence In The Era Of Deepfakes, John P. Lamonaga

American University Law Review

The legal standard for authenticating photographic and video evidence in court has remained largely static throughout the evolution of media technology in the twentieth century. The advent of “deepfakes,” or fake videos created using artificial intelligence programming, renders outdated many of the assumptions that the Federal Rules of Evidence are built upon.

Rule 901(b)(1) provides a means to authenticate evidence through the testimony of a “witness with knowledge.” Courts commonly admit photographic and video evidence by using the “fair and accurate portrayal” standard to meet this Rule’s intent. This standard sets an extremely low bar—the witness need only testify that …

Sexual Contact Between A Suspect And Police Officers: How Far Should Police Go To Prove Prostitution?, Paula Del Valle Torres

American University Journal of Gender, Social Policy & the Law

No abstract provided.

International Arbitration And Attorney-Client Privilege — A Conflict Of Laws Approach, Susan Franck

Scholarly Articles in Law Reviews & Journals

Privilege determinations in international arbitration are currently the equivalent of the “wild west,” with minimal predictability and massive pockets of tribunal discretion. Yet protecting privilege in international arbitration — when the same document or communications with lawyers that is protected by United States law may receive no protection under another law — is fundamental to safeguarding attorney-client relationships within a global environment, incentivizing procedural integrity of dispute resolution, and ensuring that justice is done. As it is not clear what law applies to privilege and client confidentiality (let alone how the law is determine), this Essay begins to bridge the …

Immigration Unilateralism And American Ethnonationalism, Robert Tsai

Scholarly Articles in Law Reviews & Journals

This paper arose from an invited symposium on "Democracy in America: The Promise and the Perils," held at Loyola University Chicago School of Law in Spring 2019. The essay places the Trump administration’s immigration and refugee policy in the context of a resurgent ethnonationalist movement in America as well as the constitutional politics of the past. In particular, it argues that Trumpism’s suspicion of foreigners who are Hispanic or Muslim, its move toward indefinite detention and separation of families, and its disdain for so-called “chain migration” are best understood as part of an assault on the political settlement of the …

Privacy And Security Across Borders, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

Three recent initiatives -by the United States, European Union, and Australiaare opening salvos in what will likely be an ongoing and critically important debate about law enforcement access to data, the jurisdictional limits to such access, and the rules that apply. Each of these developments addresses a common set of challenges posed by the increased digitalization of information, the rising power of private companies delimiting access to that information, and the cross-border nature of investigations that involve digital evidence. And each has profound implications for privacy, security, and the possibility of meaningful democratic accountability and control. This Essay analyzes the …

The Bb Gun: A Harmless Toy Or Deadly Weapon? Practical Guidance For Objective Fact Finding In A Criminal Case, Steven N. Gosney, John Zak

Criminal Law Practitioner

No abstract provided.

Clearly Unconvincing: How Heightened Evidentiary Standards In Judicial Bypass Hearings Create An Undue Burden Under Whole Woman's Health, Haley Hawkins

American University Law Review

No abstract provided.

User-Generated Evidence, Rebecca Hamilton

Scholarly Articles in Law Reviews & Journals

Around the world, people are using their smartphones to document atrocities. This Article is the first to address the implications of this important development for international criminal law. While acknowledging the potential benefits such user-generated evidence could have for international criminal investigations, the Article identifies three categories of concern related to its use: (i) user security; (ii) evidentiary bias; and (iii) fair trial rights. In the absence of safeguards, user-generated evidence may address current problems in international criminal justice at the cost of creating new ones and shifting existing problems from traditional actors, who have institutional backing, to individual users …

Microsoft Ireland, The Cloud Act, And International Lawmaking 2.0, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

On March 23, President Trump signed the CLOUD Act, 1 thereby mooting one of the most closely watched Supreme Court cases this term: the Microsoft Ireland case. 2 This essay examines these extraordinary and fast-moving developments, explaining how the Act resolves the Supreme Court case and addresses the complicated questions of jurisdiction over data in the cloud. The developments represent a classic case of international lawmaking via domestic regulation, as mediated by major multinational corporations that manage so much of the world's data.

2017 Symposium Discussion: The Life Of An Immigration Attorney, Cori Alonso-Yoder

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Blog: Without Rhyme Or Reason, Meikhel M. Philogene

The Modern American

No abstract provided.

Notice And Standing In The Fourth Amendment: Searches Of Personal Data, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

In at least two recent cases, courts have rejected service providers' capacity to raise Fourth Amendment claims on behalf of their customers. These holdings rely on longstanding Supreme Court doctrine establishing a general rule against third parties asserting the Fourth Amendment rights of others. However, there is a key difference between these two recent cases and those cases on which the doctrine rests. The relevant Supreme Court doctrine stems from situations in which someone could take action to raise the Fourth Amendment claim, even if the particular thirdparty litigant could not. In the situations presented by the recent cases, by …

Is Courtesy No Longer Contagious, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

International Arbitration: Demographics, Precision And Justice, Susan Franck, James Freda, Kellen Lavin, Tobias A. Lehmann, Anne Van Aaken

Contributions to Books

ICCA Congress Series No. 18 comprises the proceedings of the twenty-second Congress of the International Council for Commercial Arbitration (ICCA), held in Miami in 2014. The articles by leading arbitration practitioners and scholars from around the world address the challenges, both perceived and real, to the legitimacy of international arbitration.

The volume focusses on the twin pillars of legitimacy: justice, in procedure and outcome, and precision at every phase of the proceedings. Contributions on justice explore issues related to diversity, fairness and whether arbitral institutions can do more to foster legitimacy – based on the responses of nine international arbitral …

Visualizing Dna Proof, Nicholas L. Georgakopoulos

Criminal Law Practitioner

No abstract provided.

Panel 3: Chronic Pain, Psychogenic Pain, And Emotion, Robert Dinerstein

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Negotiator's Nook: The Ins And Outs Of Effective Negotiation, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Unspringing The Witness Memory And Demeanor Trap: What Every Judge And Juror Needs To Know About Cognitive Psychology And Witness Credibility, Mark W. Bennett

American University Law Review

The soul of America's civil and criminal justice systems is the ability of jurors and judges to accurately determine the facts of a dispute. This invariably implicates the credibility of witnesses. In making credibility determinations, jurors and judges necessarily decide the accuracy of witnesses' memories and the effect of the witnesses' demeanor on their credibility. Almost all jurisdictions' pattern jury instructions about witness credibility explain nothing about how a witness's memories for events and conversations work-and how startlingly fallible memories actually are. They simply instruct the jurors to consider the witness's "memory" with no additional guidance. Similarly, the same pattern …