Evidence Commons^™

Sacrificing The Child To Convict The Defendant: Secondary Traumatization Of Child Witnesses By Prosecutors, Their Inherent Conflict Of Interest, And The Need For Child Witness Counsel, Tanya Asim Cooper

Cardozo Public Law, Policy & Ethics Journal

The article argues that the criminal justice system often fails to protect child witnesses, causing them further trauma and harm. It contends that current legal protections, such as accommodations for testimony, are insufficiently enforced and that child witnesses need independent legal representation to safeguard their interests. The author advocates for systemic reforms to prioritize the well-being of child witnesses and ensure their voices are heard in court without compromising their mental health.

The Association Of Adult Businesses With Secondary Effects: Legal Doctrine Social Theory, And Empirical Evidence, Alan C. Weinstein, Richard Mccleary

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Abolishing State Trademark Registrations, Lee Ann W. Lockridge

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Remodeling The Classified Information Procedures Act (Cipa), Afsheen John Radsan

Cardozo Law Review

No abstract provided.

"I'M Going To Dinner With Frank": Admissibility Of Nontestimonial Statements Of Intent To Prove The Actions Of Someone Other Than The Speaker - And The Role Of The Due Process Clause, Lynn Mclain

Cardozo Law Review

No abstract provided.

Confidential Witnesses: The Reform Act And The Battle At The Pleading Stage, Ariel S. Lichterman

Cardozo Public Law, Policy & Ethics Journal

The note examines the role of confidential witnesses in securities litigation under the Private Securities Litigation Reform Act (PSLRA) and the Supreme Court's Tellabs v. Makor Issues & Rights, Ltd. decision. It highlights the challenges courts face in evaluating confidential witness statements, advocating for a balanced approach that considers both the necessity of such evidence and the prevention of abusive litigation. The analysis emphasizes the need for courts to align their methods with the holistic review mandated by Tellabs while addressing the tension between protecting anonymity and assessing credibility.

Foreword: New Perspectives On Brady And Other Disclosure Obligations: What Really Works?, Ellen Yaroshefsky

Cardozo Law Review

No abstract provided.

Emotionally Charged: The Prosecutorial Charging Decision And The Innocence Revolution, Daniel S. Medwed

Cardozo Law Review

No abstract provided.

New Perspectives On Brady And Other Disclosure Obligations: Report Of The Working Groups On Best Practices

Cardozo Law Review

No abstract provided.

Professional And Conviction Integrity Programs: Why We Need Them, Why They Will Work, And Models For Creating Them, Barry Scheck

Cardozo Law Review

The best way to effectively prevent Brady violations and other forms of prosecutorial misconduct that cause wrongful convictions is internal regulation of the District Attorney's office. Civil liability, state or bar disciplinary action, the stigma of appellate reversal, and the threat of criminal prosecution have failed to provide effective deterrence against Brady violations as well as other forms of misconduct. However, the lack of alternatives is not the reason why internal regulation is the most promising way to prevent Brady violations, but rather because prosecutors themselves are in the best position to implement procedures that achieve this goal.

Prosecutorial offices, …

Description And The Evidentiary Production Of Images, Kyle J. Mcgee

Cardozo Law Review

No abstract provided.

Documentation, Documentary, And The Law: What Should Be Made Of Victim Impact Videos?, Regina Austin

Cardozo Law Review

No abstract provided.

Law And Humor In Johnnie To's Justice, My Foot!, Marco Wan

Cardozo Law Review

No abstract provided.

Evidence Verité And The Law Of Film, Jessica Silbey

Cardozo Law Review

No abstract provided.

Distribution, I Presume: A Role For Presumptions In Establishing The "Making Available" Right, Joe Weissman

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Disordered And Discredited Plaintiff: Psychiatric Evidence In Civil Litigation, Deirdre M. Smith

Cardozo Law Review

This Article examines civil defendants' use of evidence of a plaintiff's alleged current or prior psychiatric diagnosis or treatment by analyzing and critiquing the three primary rationales offered in support of the relevancy of such evidence: (1) to suggest an alternative cause of the plaintiff's alleged psychological injuries; (2) to impeach the plaintiff's credibility by asserting that a mental illness interferes with the plaintiff's ability to recount or to perceive events accurately; and (3) to reveal certain propensities that inform how the plaintiff likely acted with respect to the events at issue in the litigation. While attaching a label of …

The Burden Of Establishing Patent Invalidity: Maintaining A Heightened Evidentiary Standard Despite Increasing "Verbal Variances", Etan S. Chatlynne

Cardozo Law Review

No abstract provided.

The Future For Collected Prosecutorial Evidence At The International Criminal Tribunal For Rwanda, Gerda Visser

Cardozo Public Law, Policy & Ethics Journal

The article focuses on the International Criminal Tribunal for Rwanda (ICTR) and its Office of the Prosecutor (OTP), emphasizing the need to balance the preservation of sensitive information with the public's right to access historical records. It highlights the ICTR's role in developing international criminal law standards and the challenges of managing its vast archive, particularly regarding witness protection, privacy, and future prosecutions. The article proposes establishing an international judicial archive with a legal reviewing body to oversee access to the OTP database, ensuring transparency while safeguarding sensitive data.

Evidence Gained From Torture: Wishful Thinking, Checkability, And Extreme Circumstances, James Franklin

Cardozo Journal of International and Comparative Law

The article argues that while torture is morally abhorrent, its effectiveness in extracting reliable information should be evaluated separately from ethical considerations. It contends that torture can yield reliable information when the extracted details can be independently verified, challenging the common assumption that torture universally leads to false confessions. The analysis emphasizes the importance of understanding the factual reliability of torture-derived evidence before addressing its legal admissibility.

Changing Language, Unchanging Standard: From 'Satisfied Conscience' To 'Moral Certainty' And 'Beyond Reasonable Doubt', Barbara Shapiro

Cardozo Journal of International and Comparative Law

The article explores the historical evolution of the "beyond reasonable doubt" standard in Anglo-American law, tracing its roots to earlier concepts such as "satisfied conscience" and "moral certainty." These ideas, influenced by Christian casuistry and Enlightenment thought, were integral to the development of legal evidence standards. The standard became a cornerstone of criminal jurisprudence, reflecting a shift from religious to secular language while maintaining a high threshold for conviction.

Absent Class Members: Are They Really Absent? The Relationship Between Absent Class Members And Class Counsel With Regards To The Attorney-Client And Work Product Privileges, Mindi Guttmann

Cardozo Public Law, Policy & Ethics Journal

The note argues that absent class members in class action litigation do not have the same attorney-client or work product privileges as traditional clients due to the fundamentally different nature of their relationship with class counsel. It critiques the ambiguity in defining "client" and proposes clearer distinctions to address judicial confusion and ensure effective legal representation while protecting sensitive information.

The Proper Interpretation Of The Federal Rules Of Evidence: Insights From Article Vi, Glen Weissenberger

Cardozo Law Review

No abstract provided.

Reality Bites: The Illusion Of Science In Bite-Mark Evidence, Erica Beecher-Monas

Cardozo Law Review

More than a decade after Daubert, years after the amendments to the Federal Rules of Evidence, and long after the courts in Frye jurisdictions started examining the empirical basis for expert claims before permitting such testimony in their courtrooms, judges are still evading their gatekeeping duties when it comes to criminal cases. A prime example of this can be found in bite-mark testimony. Although it comes dressed in the illusion of science, having experts with advanced degrees, a fancy name (forensic odontology), professional associations, and professional journals, that illusion belies the reality that bite-mark evidence utterly lacks empirical support …

Death To Child Erotica: How Mislabeling The Evidence Can Risk Inaccuracy In The Courtroom, Mary G. Leary

Cardozo Journal of Equal Rights & Social Justice

The article argues that the term "child erotica" is misleading and harmful as it incorrectly implies that sexually exploitative material has artistic or social value, thereby normalizing the sexual commodification of children. It advocates for the elimination of this term and suggests replacing it with more precise labels, such as "child exploitation paraphernalia" or "child sexual exploitation images," to ensure accurate legal analysis and prevent the elevation of such material to a protected status.

When The Lawyer Knows The Client Is Guilty: Client Confessions In Legal Ethics, Popular Culture, And Literature, Michael Asimow, Richard H. Weisberg

Articles

The article explores the ethical dilemma faced by criminal defense lawyers when they know their client is factually guilty but the client insists on a vigorous defense. It examines the tension between the lawyer’s duty of zealous representation and the duty of candor toward the court, proposing a compromise that allows lawyers discretion to choose between strong or weak adversarial approaches based on the context. The analysis draws on historical cases, such as the Courvoisier case of 1840 and the modern case of Steven Feldman, as well as insights from popular culture and literary sources, to argue that the discretionary …

Business Courts And The Future Of Arbitration, Christopher R. Drahozal

Cardozo Journal of Conflict Resolution

This article examines the extent to which competition from business courts is likely to impact the future of arbitration. Part II provides a brief overview of the growth of business courts in recent years. Part III sets out a structural comparison of arbitration with business courts, highlighting the similarities and differences between the two. Part IV provides empirical evidence on the relationship between the availability of business courts and the use of arbitration clauses. Overall, the evidence provides little indication that parties are switching from arbitration to business courts. The evidence is far from definitive, however, and highlights the need …

Judges Gone Wild: Why Breaking The Mediation Confidentiality Privilege For Acting In "Bad Faith" Should Be Reevaluated In Court-Ordered Mandatory Mediation, Samara Zimmerman

Cardozo Journal of Conflict Resolution

This Note focuses on the reasons why a good faith requirement or a bad faith exception for breaking mediation confidentiality is objectionable and offers an alternative for the Florida court system that, if implemented, could mitigate such disadvantages. I will discuss "the intersection between [a] court-ordered mediation, the confidentiality of which is mandated by law ... and the power of a court to control proceedings," and persons who appear before it by sanctioning conduct that taking place in mediation. Part II of this Note will begin by providing a background to the Doe v. Francis civil case. It will highlight …

Self-Incrimination Doctrine Is Dead; Long Live Self-Incrimination Doctrine: Confessions, Scientific Evidence, And The Anxieties Of The Liberal State, Kenworthey Bilz

Cardozo Law Review

Confessions have historically been the most compelling evidence the state could offer at a criminal trial. However, improvements in forensic technologies have led to increased use of scientific evidence, such as DNA typing, videotapes, pattern-recognition software, location tracking devices, and the like, with very impressive rates of reliability. The reliability of these methods has become so impressive, in fact, that it far outstrips confessions. This should lead to a reduced reliance on confessions (and other nonscientific evidence, such as eyewitness identifications) over time. However, this does not mean that the doctrine of self-incrimination, which regulates the acquisition and use of …

Corporate Confessions, Brandon L. Garrett

Cardozo Law Review

In corporate crime investigations, when prosecutors pursue charges against both employees and corporations, confessions raise several novel questions without clear answers in constitutional criminal procedure. First, corporations confess. The firm, a target of a criminal investigation, may itself admit to crimes by employees as part of a settlement agreement with prosecutors. While useful to study in their impact and form, as a constitutional matter such confessions can not be coerced, the Supreme Court has adopted a "collective entity rule" that corporate persons may not invoke Fifth Amendment privilege. Second, before itself confessing, the firm may encourage employees to provide statements …

The Confessional Penalty, Talia Fisher, Issachar Rosen-Zvi

Cardozo Law Review

No abstract provided.