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Articles 31 - 60 of 840
Full-Text Articles in Evidence
Introduction, Shari S. Diamond, Richard O. Lempert
Introduction, Shari S. Diamond, Richard O. Lempert
Articles
Experts bedeviled the legal system long before seventeenth-century Salem, when the town's good citizens relied on youthful accusers and witchcraft experts to identify the devil's servants in their midst. As in Salem, claims of expertise have often been questioned and objections raised about the bases of expert knowledge. Expertise, then and now, did not have to be based on science; but the importance of science and the testimony of scientific experts has since medieval times been woven into the fabric of the English jurisprudence that Americans inherited. In cases as long ago as 1299 we find examples of courts seeking …
The Persistence Of The Probabilistic Perspective, Richard D. Friedman
The Persistence Of The Probabilistic Perspective, Richard D. Friedman
Articles
The publication now of an essay written by Craig Callen nearly a decade ago is cause for wistful celebration. Even while we are reminded how suddenly and prematurely Craig’s life ended, it is good to have one more academic contribution from him, especially because it is marked by the erudition, thoroughness, gentleness, and humor that characterized him.
Controlling The Jury-Teaching Function, Richard D. Friedman
Controlling The Jury-Teaching Function, Richard D. Friedman
Articles
When evidence with a scientific basis is offered, two fundamental questions arise. First, should it be admitted? Second, if so, how should it be assessed? There are numerous participants who might play a role in deciding these questions—the jury (on the second question only), the parties (through counsel), expert witnesses on each side, the trial court, the forces controlling the judicial system (which include, but are not limited to, the appellate courts), and the scientific establishment. In this Article, I will suggest that together, the last two—the forces controlling the judicial system and the scientific establishment—have a large role to …
Cabining Judicial Discretion Over Forensic Evidence With A New Special Relevance Rule, Emma F.E. Shoucair
Cabining Judicial Discretion Over Forensic Evidence With A New Special Relevance Rule, Emma F.E. Shoucair
Michigan Law Review
Modern forensic evidence suffers from a number of flaws, including insufficient scientific grounding, exaggerated testimony, lack of uniform best practices, and an inefficacious standard for admission that regularly allows judges to admit scientifically unsound evidence. This Note discusses these problems, lays out the current landscape of forensic science reform, and suggests the addition of a new special relevance rule to the Federal Rules of Evidence (and similar rules in state evidence codes). This proposed rule would cabin judicial discretion to admit non-DNA forensic evidence by barring prosecutorial introduction of such evidence in criminal trials absent a competing defense expert or …
Neither Limited Nor Simplified: A Proposal For Reform Of Illinois Supreme Court Rule 222(B), Michael S. Smith
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 …
The Miranda Case Fifty Years Later, Yale Kamisar
The Miranda Case Fifty Years Later, Yale Kamisar
Articles
A decade after the Supreme Court decided Miranda v. Arizona, Geoffrey Stone took a close look at the eleven decisions the Court had handed down “concerning the scope and application of Miranda.” As Stone observed, “[i]n ten of these cases, the Court interpreted Miranda so as not to exclude the challenged evidence.” In the eleventh case, the Court excluded the evidence on other grounds. Thus, Stone noted, ten years after the Court decided the case, “the Court ha[d] not held a single item of evidence inadmissible on the authority of Miranda.” Not a single item. To use …
Digging Into The Foundations Of Evidence Law, David H. Kaye
Digging Into The Foundations Of Evidence Law, David H. Kaye
Michigan Law Review
Review of The Psychological Foundations of Evidence Law by Michael J. Saks and Barbara A. Spellman.
Short Fall Arguments In Court: A Probabilistic Analysis, Maria Cuellar
Short Fall Arguments In Court: A Probabilistic Analysis, Maria Cuellar
University of Michigan Journal of Law Reform
A discussion about how statistical arguments are used in court, specifically in cases of Abusive Head Trauma in which the defendant has claimed that an accidental short fall, and not shaking or child abuse, has caused the child’s injuries.
Bias, Subjectivity, And Wrongful Conviction, Katherine Judson
Bias, Subjectivity, And Wrongful Conviction, Katherine Judson
University of Michigan Journal of Law Reform
A talk about bias, subjectivity and wrongful convictions.
Police Interrogations, False Confessions, And Alleged Child Abuse Cases, Richard Leo
Police Interrogations, False Confessions, And Alleged Child Abuse Cases, Richard Leo
University of Michigan Journal of Law Reform
A discussion on false confession cases in the United States.
Evidence Of Child Abuse: Inferring The Causes Of Effects, Stephen E. Fienberg
Evidence Of Child Abuse: Inferring The Causes Of Effects, Stephen E. Fienberg
University of Michigan Journal of Law Reform
A statistician's take on evidence of child abuse.
Child Abuse--Nonaccidental Injury (Nai) And Abusive Head Trauma (Aht)--Medical Imaging: Issues And Controversies In The Era Of Evidence-Based Medicine, Patrick Barnes
University of Michigan Journal of Law Reform
A look at nonaccidental injury and abusive head trauma in children with a focus on Shaken Baby Syndrome.
Reliability Of Expert Evidence In International Disputes, Matthew W. Swinehart
Reliability Of Expert Evidence In International Disputes, Matthew W. Swinehart
Michigan Journal of International Law
Part I of this article traces the historical trends in the use of expert evidence in international disputes, from the scattered reliance on experts in the nineteenth and early twentieth centuries to the ubiquity of experts in modern disputes. With that perspective, Part II examines how decision makers have attempted to ensure reliability of the expert evidence that is flooding the evidentiary records of international disputes, while Part III outlines the many problems that still remain. Finally, Part IV proposes a non-exhaustive and nonbinding checklist of questions for analyzing the reliability of any type of expert evidence.
Child Abuse Evidence: New Perspectives From Law, Medicine, Psychology & Statistics: Introduction, Anna Kirkland, David Moran, Angela K. Perone
Child Abuse Evidence: New Perspectives From Law, Medicine, Psychology & Statistics: Introduction, Anna Kirkland, David Moran, Angela K. Perone
University of Michigan Journal of Law Reform
Introduction to the University of Michigan Journal of Law Reform Symposium, Child Abuse Evidence: New Perspectives from Law, Medicine, Psychology & Statistics.
Implicit Bias In Daily Perceptions And Legal Judgments, Keith B. Maddox, Samuel R. Sommers
Implicit Bias In Daily Perceptions And Legal Judgments, Keith B. Maddox, Samuel R. Sommers
University of Michigan Journal of Law Reform
In today’s demonstration, we explored the audience’s positive and negative associations with blacks and whites. The demonstration is an adaptation of the Implicit Association Test (www.projectimplicit.net), a computer-based task designed to explore mental connections between various concepts. Participants were presented with a list of concepts (stereotypically black and white names, pleasant and unpleasant concepts) in a column down the middle of a screen along with the response categories (black/white or Pleasant/Unpleasant) along the left and right sides. When reading a word, participants were asked to categorize it by slapping the knee (left or right) that corresponds to the category displayed …
Child Abuse Evidence: New Perspectives From Law, Medicine, Psychology & Statistics: Question And Answer Session, Kimberly Thomas, Keith B. Maddox, Samuel R. Sommers, Patrick Barnes, Richard Leo
Child Abuse Evidence: New Perspectives From Law, Medicine, Psychology & Statistics: Question And Answer Session, Kimberly Thomas, Keith B. Maddox, Samuel R. Sommers, Patrick Barnes, Richard Leo
University of Michigan Journal of Law Reform
A transcript of the Question and Answer session during the University of Michigan Journal of Law Reform Symposium, Child Abuse Evidence: New Perspectives from Law, Medicine, Psychology & Statistics.
Keynote Address: Can A Sign Or Occult Finding Predict A Causal Relationship?: How To Reason About Possible Child Abuse, Peter Aspelin
Keynote Address: Can A Sign Or Occult Finding Predict A Causal Relationship?: How To Reason About Possible Child Abuse, Peter Aspelin
University of Michigan Journal of Law Reform
Keynote Address for the University of Michigan Journal of Law Reform Symposium, Child Abuse Evidence: New Perspectives from Law, Medicine, Psychology & Statistics.
Child Abuse Evidence: New Perspectives From Law, Medicine, Psychology & Statistics: Opening Remarks, November 6, 2015, Bridget M. Mccormack
Child Abuse Evidence: New Perspectives From Law, Medicine, Psychology & Statistics: Opening Remarks, November 6, 2015, Bridget M. Mccormack
University of Michigan Journal of Law Reform
Opening remarks by Justice Bridget McCormack, Michigan Supreme Court on November 6, 2015.
The Crime Lab In The Age Of The Genetic Panopticon, Brandon L. Garrett
The Crime Lab In The Age Of The Genetic Panopticon, Brandon L. Garrett
Michigan Law Review
Review of Unfair: The New Science of Criminal Injustice by Adam Benforado, Inside the Cell: The Dark Side of Forensic DNA by Erin E. Murphy, and Cops in Lab Coats: Curbing Wrongful Convictions Through Independent Forensic Laboratories by Sandra Guerra Thompson.
Rescued From The Grave And Then Covered With Mud: Justice Scalia And The Unfinished Restoration Of The Confrontation Right, Richard D. Friedman
Rescued From The Grave And Then Covered With Mud: Justice Scalia And The Unfinished Restoration Of The Confrontation Right, Richard D. Friedman
Articles
Some years before his death, when asked which was his favorite among his opinions, Antonin Scalia named Crawford v. Washington. It was a good choice. Justice Scalia's opinion in Crawford reclaimed the Confrontation Clause of the Sixth Amendment to the Constitution and restored it to its rightful place as one of the central protections of our criminal justice system. He must have found it particularly satisfying that the opinion achieved this result by focusing on the historical meaning of the text, and that it gained the concurrence of all but two members of the Court, from all ideological positions.
Milkovich V. Lorain Journal Twenty-Five Years Later: The Slow, Quiet, And Troubled Demise Of Liar Libel, Leonard Niehoff, Ashley Messenger
Milkovich V. Lorain Journal Twenty-Five Years Later: The Slow, Quiet, And Troubled Demise Of Liar Libel, Leonard Niehoff, Ashley Messenger
University of Michigan Journal of Law Reform
In Milkovich v. Lorain Journal Co., the Supreme Court held that there is no separate constitutional protection for statements of opinion. It also held that an accusation that an individual lied is a statement of fact actionable in defamation. Lower courts have, correctly in our view, essentially ignored both holdings. In Part I we discuss Milkovich and the infirmities in its reasoning. In Part II we discuss the complex nature of lies and accusations of lies and argue that Milkovich failed to account for that complexity. In Part III we discuss the strategies the lower courts have used to …
Face-To-Face With Facial Recognition Evidence: Admissibility Under The Post-Crawford Confrontation Clause, Joseph Clarke Celentino
Face-To-Face With Facial Recognition Evidence: Admissibility Under The Post-Crawford Confrontation Clause, Joseph Clarke Celentino
Michigan Law Review
In Crawford v. Washington, the Supreme Court announced a major change in Confrontation Clause doctrine, abandoning a decades-old framework that focused on the common law principles of hearsay analysis: necessity and reliability. The new doctrine, grounded in an originalist interpretation of the Sixth Amendment, requires courts to determine whether a particular statement is testimonial. But the Court has struggled to present a coherent definition of the term testimonial. In its subsequent decisions, the Court illustrated that its new Confrontation Clause doctrine could be used to bar forensic evidence, including laboratory test results, if the government failed to produce the …
Cross-Racial Identifications: Solutions To The "They All Look Alike" Effect, Laura Connelly
Cross-Racial Identifications: Solutions To The "They All Look Alike" Effect, Laura Connelly
Michigan Journal of Race and Law
On a late summer evening in August of 1997, Nathan Brown was in his apartment rocking his young daughter to sleep when the police knocked on his door. The police sought Brown, one of a few Black men in his apartment complex, after a young White woman said she had been assaulted by a shirtless Black man wearing black shorts with strong body odor walking through the complex’s courtyard. Minutes later the police took Brown outside and put him in the patrol car for a one-on-one “showup.” They brought him out by himself to see the victim wearing black shorts …
The Future Of Confession Law: Toward Rules For The Voluntariness Test, Eve Brensike Primus
The Future Of Confession Law: Toward Rules For The Voluntariness Test, Eve Brensike Primus
Michigan Law Review
Confession law is in a state of collapse. Fifty years ago, three different doctrines imposed constitutional limits on the admissibility of confessions in criminal cases: Miranda doctrine under the Fifth Amendment, Massiah doctrine under the Sixth Amendment, and voluntariness doctrine under the Due Process Clauses of the Fifth and Fourteenth Amendments. But in recent years, the Supreme Court has gutted Miranda and Massiah, effectively leaving suspects with only voluntariness doctrine to protect them during police interrogations. The voluntariness test is a notoriously vague case-by-case standard. In this Article, I argue that if voluntariness is going to be the framework for …
Blackness As Character Evidence, Mikah K. Thompson
Blackness As Character Evidence, Mikah K. Thompson
Michigan Journal of Race and Law
Federal Rule of Evidence 404 severely limits the government’s ability to offer evidence of a defendant’s character trait of violence to prove action in conformity with that trait on the occasion in question. The Rule states that such character evidence is generally inadmissible when offered to prove propensity. The Rule also allows the government to offer evidence of an alleged victim’s character for peacefulness in homicide cases where the defendant asserts the self-defense privilege. Although criminal defendants may offer character evidence under limited circumstances, Rule 404 creates a significant disincentive for doing so. Where a defendant offers evidence of an …
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 …
Proving Personal Use: The Admissibility Of Evidence Negating Intent To Distribute Marijuana, Stephen Mayer
Proving Personal Use: The Admissibility Of Evidence Negating Intent To Distribute Marijuana, Stephen Mayer
Michigan Law Review
Against the backdrop of escalating state efforts to decriminalize marijuana, U.S. Attorneys’ Offices continue to bring drug-trafficking prosecutions against defendants carrying small amounts of marijuana that are permitted under state law. Federal district courts have repeatedly barred defendants from introducing evidence that they possessed this marijuana for their own personal use. This Note argues that district courts should not exclude three increasingly common kinds of “personal use evidence” under Federal Rules of Evidence 402 and 403 when that evidence is offered to negate intent to distribute marijuana. Three types of personal use evidence are discussed in this Note: (1) a …
A Simple Theory Of Complex Valuation, Anthony J. Casey, Julia Simon-Kerr
A Simple Theory Of Complex Valuation, Anthony J. Casey, Julia Simon-Kerr
Michigan Law Review
Complex valuations of assets, companies, government programs, damages, and the like cannot be done without expertise, yet judges routinely pick an arbitrary value that falls somewhere between the extreme numbers suggested by competing experts. This creates costly uncertainty and undermines the legitimacy of the court. Proposals to remedy this well-recognized difficulty have become increasingly convoluted. As a result, no solution has been effectively adopted and the problem persists. This Article suggests that the valuation dilemma stems from a misconception of the inquiry involved. Courts have treated valuation as its own special type of inquiry distinct from traditional fact-finding. We show …
Spies In The Skies: Dirtboxes And Airplane Electronic Surveillance, Brian L. Owsley
Spies In The Skies: Dirtboxes And Airplane Electronic Surveillance, Brian L. Owsley
Michigan Law Review First Impressions
Electronic surveillance in the digital age is essentially a cat-and-mouse game between governmental agencies that are developing new techniques and technologies for surveillance, juxtaposed against privacy rights advocates who voice concerns about such technologies. In November 2014, there was a discovery of a new twist on a relatively old theme. Recently, the Wall Street Journal reported that the U.S. Marshals Service was running a surveillance program employing devices—dirtboxes—that gather all cell phone numbers in the surrounding area. Other federal agencies, including the Drug Enforcement Agency, Immigration and Custom Enforcement, and the Department of Homeland Security, are also documented to have …
Jack Weinstein And The Missing Pieces Of The Hearsay Puzzle, Richard D. Friedman
Jack Weinstein And The Missing Pieces Of The Hearsay Puzzle, Richard D. Friedman
Articles
For the first three quarters of the twentieth century, the Wigmore treatise was the dominant force in organizing, setting out, and explaining the American law of evidence. Since then, the first two of those roles have been taken over in large part by the Federal Rules of Evidence (Rules). And the third has been performed most notably by the Weinstein treatise. Judge Jack Weinstein was present at the creation of the Rules and before. Though he first made his name in Civil Procedure, while still a young man he joined two of the stalwarts of evidence law, Edmund Morgan and …