Evidence Commons^™

Milstein V. Chief Military Prosecutor, Edna Arbel, Aharon Barak, Edmond E. Levy

Translated Opinions

Facts: The appellant was convicted of the offence of using dangerous drugs while he was serving in the IDF. During his interrogation by the police, he confessed to using the drugs, but in his trial he pleaded not guilty and exercised his right to remain silent and not to testify in his own defence.

Following the case law of the Supreme Court, a defendant cannot be convicted solely on the basis of a confession, even when it is freely and willingly given. ‘Something extra’ is required in order to convict him. The District Court Martial and the Appeals Court Martial …

Looking At The Overlooked: Portraits Of Law School Deans, Peter Goodrich

Articles

The article examines the role of portraits in law schools, arguing that these images are not merely decorative but serve as powerful symbols that shape institutional identity and the legal profession. Despite their ubiquity, these portraits are often overlooked, yet they function as megalographs, inscribing and disseminating the values, history, and authority of the institution. The author contends that these visual elements play a crucial role in the formation of legal identity and the symbolic order of law schools.

State Of Israel V. Beer-Sheba District Court, Dorit Beinisch, Ayala Procaccia, Edmond E. Levy, Aharon Barak, Eliezer Rivlin, Asher Grunis, Miriam Naor

Translated Opinions

Facts: In 1976 the Supreme Court held in Kinsey v. State of Israel that when two accomplices are prosecuted in separate trials, one (the ‘witness-accomplice’) should not be called to testify against the other (the ‘defendant’) until the witness-accomplice’s own trial has ended. This became known as the Kinsey rule. Thirty years later, the court is being requested to reconsider the Kinsey rule.

Held: The Kinsey rule, which was originally intended as a rule of proper practice, became over the years a binding rule from which the courts rarely departed. The court recognizes that the rule in its all-encompassing scope …

Panel Report: Beyond Article Iii Courts: Military Tribunals, Status Review Tribunals, And Immigration Courts, Robert M. Chesney

Cardozo Public Law, Policy & Ethics Journal

The article explores the tension between national security interests and procedural fairness in the use of secret evidence across non-Article III contexts, including military tribunals, Combatant Status Review Tribunals (CSRTs), and immigration courts. It examines the challenges of balancing government secrecy with individual rights, emphasizing the need for procedural safeguards to navigate this complex issue.

Keynote Address: Secret Evidence In The Age Of National Security, Adam Liptak

Cardozo Public Law, Policy & Ethics Journal

The article explores the tension between national security and the First Amendment, arguing that while the First Amendment remains a robust protection against government censorship, recent trends threaten press freedom, particularly in protecting confidential sources and accessing information. The author, drawing on personal experience as a media lawyer and reporter, emphasizes the importance of procedural safeguards and judicial oversight to prevent government overreach and ensure transparency.

Sword Or Shield? The Government's Selective Use Of Its Declassification Authority For Tactical Advantage In Criminal Prosecutions, Joshua L. Dratel

Cardozo Public Law, Policy & Ethics Journal

The article argues that the government's selective use of declassification authority under the Classified Information Procedures Act (CIPA) undermines the statute's intent to ensure fair trials. By declassifying inculpatory evidence while withholding exculpatory information, the government gains an unfair tactical advantage, particularly in terrorism cases where defendants often lack access to classified materials. The article advocates for reforms to CIPA, the Foreign Intelligence Surveillance Act (FISA), and Rule 16 of the Federal Rules of Criminal Procedure to restore balance and safeguard defendants' Fifth and Sixth Amendment rights.

Privileged Evidence And State Security Under The Israeli Law: Are We Doomed To Fail?, Ami Kobo

Cardozo Public Law, Policy & Ethics Journal

The article examines Israel's legal framework for handling privileged evidence in criminal proceedings, particularly in cases involving state security or public interest. It argues that while Israeli law establishes a balancing test to weigh the need for disclosure against security interests, practical implementation often fails, risking miscarriages of justice. The analysis highlights systemic flaws through cases like Livny and Abu Saada, where the failure to disclose critical evidence led to wrongful convictions. The author suggests procedural reforms to enhance the adversarial process and mitigate these risks.

Panel Report: Secret Evidence In The Investigative Stage: Fisa, Administrative Subpoenas, And Privacy, Jameel Jaffer

Cardozo Public Law, Policy & Ethics Journal

The article examines the increasing reliance on foreign intelligence surveillance tools, such as the Foreign Intelligence Surveillance Act (FISA) and National Security Letters (NSLs), highlighting the tension between national security and civil liberties. It argues that the expansion of these tools under the Patriot Act has raised significant privacy concerns and questions about the adequacy of judicial and public oversight.

Panel Report: National Security Secrecy In The Courts: A Comparative Perspective From Israel And Ireland, Peter Raven-Hansen

Cardozo Public Law, Policy & Ethics Journal

The article examines how democratic nations, including Israel, Ireland, and the United States, balance national security secrecy with the rule of law in terrorism prosecutions. It highlights the challenges of using secret evidence in criminal trials while maintaining fair procedures, comparing the legal frameworks and practices of these countries. The analysis reveals common issues, such as the tension between protecting sensitive information and ensuring defendants' rights, and underscores the need for transparency and procedural integrity in terrorism cases.

The Slow Erosion Of The Adversary System: Article Iii Courts, Fisa, Cipa And Ethical Dilemmas, Ellen C. Yaroshefsky

Cardozo Public Law, Policy & Ethics Journal

The article examines the increasing reliance on secret evidence in U.S. legal proceedings, particularly in post-9/11 national security and terrorism cases, facilitated by the Classified Information Procedures Act (CIPA) and the Foreign Intelligence Surveillance Act (FISA). This trend undermines the adversarial system by denying defendants access to relevant information, raising ethical concerns for defense attorneys, and potentially eroding constitutional rights. The author advocates for reforms to balance national security with civil liberties, emphasizing the need for judicial vigilance and legislative changes to address these issues.

Yissacharov V. Chief Military Prosecutor, Dorit Beinisch, Aharon Barak, Eliezer Rivlin, Ayala Procaccia, Edmond E. Levy, Miriam Naor, Salim Joubran, Mishael Cheshin, Asher Grunis

Translated Opinions

Facts: While being admitted into prison for being absent from the army without leave, the appellant was found to have a dangerous drug in his possession. When he was interrogated about this, the interrogator failed to advise the appellant that he had a right to consult a lawyer. This omission, which was omitted by the prosecution, was held by the trial court to have been illegal and intentional. In the course of the interrogation, the appellant confessed that he had, on three occasions while he was a soldier, made use of dangerous drugs.

The appellant argued that the confession should …

"Why Don't You Take Another Look At Number Three?": Investigator Knowledge And Its Effects On Eyewitness Confidence And Identification Decisions, Melissa B. Russano, Jason J. Dickinson, Sarah M. Greathouse, Margaret Bull Kovera

Cardozo Public Law, Policy & Ethics Journal

The article examines the impact of investigator knowledge on eyewitness identification and confidence, highlighting the potential for bias and the importance of implementing double-blind lineup procedures to mitigate such influences. It emphasizes the need for further research and policy changes to enhance the reliability of eyewitness testimony.

Eyewitness Identification, Democratic Deliberation, And The Politics Of Science, Andrew E. Taslitz

Cardozo Public Law, Policy & Ethics Journal

The article examines the intersection of social science and legal policy in eyewitness identification, focusing on the role of prosecutors and the American Bar Association (ABA) Eyewitness Resolution. It argues that while social science provides critical insights to improve identification accuracy, the translation of these insights into legal policy involves normative judgments that balance competing values, such as protecting the innocent and ensuring public safety. The author critiques the limitations of internal deliberative processes within law enforcement and prosecutorial offices, advocating for more transparent and inclusive deliberative structures to address systemic errors and promote justice.

Reforming Eyewitness Identification: Cautionary Lineup Instructions; Weighing The Advantages And Disadvantages Of Show-Ups Versus Lineups, Nancy K. Mehrkens Steblay

Cardozo Public Law, Policy & Ethics Journal

The article argues that the structure and instructions of eyewitness identification procedures significantly influence accuracy, with a focus on the advantages of cautious lineup instructions and the comparative effectiveness of lineups versus show-ups. It emphasizes that subtle changes in lineup instructions can reduce false identifications and improve reliability, while show-ups present unique challenges despite their practical benefits.

Improving Eyewitness Identifications: Hennepin County's Blind Sequential Lineup Pilot Project, Amy Klobuchar, Nancy K. Mehrkens Steblay, Hilary Lindell Caligiuri

Cardozo Public Law, Policy & Ethics Journal

The article examines the effectiveness of Hennepin County's blind sequential lineup pilot project in improving eyewitness identification accuracy. By implementing a protocol where photos are shown one at a time by an administrator unaware of the suspect, the study aims to reduce misidentifications and enhance the reliability of eyewitness testimony in criminal investigations.

Introduction, Barry Scheck

Cardozo Public Law, Policy & Ethics Journal

The symposium aims to reform eyewitness identification procedures by fostering dialogue between law enforcement, social scientists, and legal experts. It seeks to address the high rates of mistaken identifications and improve the accuracy and reliability of eyewitness testimony through scientific research and practical implementations. The event highlights the human impact of wrongful convictions and explores evidence-based solutions to prevent such injustices.

A Sample Of Witness, Crime, And Perpetrator Characteristics Affecting Eyewitness Identification Accuracy, Brian L. Cutler

Cardozo Public Law, Policy & Ethics Journal

The article examines the impact of estimator variables on eyewitness identification accuracy, focusing on six key factors: own-race bias, exposure duration, masking of hair and hairline cues, weapon focus, eyewitness stress, and passage of time. It argues that these variables significantly influence identification accuracy and are not merely matters of common sense, emphasizing the need for expert testimony and education for legal professionals.

Keynote Address: Reforming Eyewitness Identification, Thomas P. Sullivan

Cardozo Public Law, Policy & Ethics Journal

The article addresses the critical issue of eyewitness identification errors in criminal investigations, highlighting their role in wrongful convictions. It advocates for reform through improved identification procedures, particularly the sequential lineup method, and emphasizes the need for public and professional education on the fallibility of eyewitness testimony.

The Myths Of Thane Rosenbaum, Daniel J. Kornstein

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Dna In The Legal System: The Benefits Are Clear, The Problems Aren't Always, Jason Borenstein

Cardozo Public Law, Policy & Ethics Journal

The article discusses the dual nature of DNA technology in the criminal justice system, highlighting its significant benefits, such as exonerating the wrongly convicted and solving cold cases, while also addressing its limitations and challenges. It emphasizes that DNA evidence, while powerful, is not infallible and should not overshadow other forms of evidence. The author underscores the need for cautious use of DNA evidence, proper legal standards, and addressing human fallibility to ensure justice.

The Priestly Class: Reflections On A Journalist's Privilege, William E. Lee

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Leakers, Bloggers, And Fourth Estate Inmates: The Misguided Pursuit Of A Reporter's Privilege, Randall D. Eliason

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The False Dichotomy Of Rape Trauma Syndrome, Holly Hogan

Cardozo Journal of Equal Rights & Social Justice

The article critiques the legal system's distinction between offensive and defensive uses of Rape Trauma Syndrome (RTS) testimony, arguing that this dichotomy is flawed. It contends that even testimony categorized as defensive often functions offensively by influencing the jury's perception of the victim's credibility. The article proposes a functional approach to evaluating RTS testimony, focusing on whether it vouches for the victim's credibility or explains counterintuitive behaviors, rather than adhering to the formal offensive/defensive framework.

The Enterprise Model Of Managing Conflicts Of Interest In The Tripartite Insurance Defense Relationship, Aviva Abramovsky

Cardozo Law Review

No abstract provided.

Numerical Comparative Law: Do We Need Statistical Evidence In Law In Order To Reduce Complexity?, Mathias M. Siems

Cardozo Journal of International and Comparative Law

The article explores the use of numerical methods in comparative law, questioning whether statistical approaches can effectively simplify legal complexity without oversimplification. It examines both the potential benefits and drawbacks of quantifying legal systems, arguing that while numerical methods can enhance practical utility, they must be used cautiously to avoid neglecting legal complexity and contextual factors.

Furthering Consumer Safety Of Medical Devices: The Necessity Of A Device-Specific State Law As Required For Express Preemption Under The Mda, Rachel Mervis

Cardozo Law Review

No abstract provided.

Tragedy Of The Scaffold, Tragedy Of The Trial: Tragedy, Representation Of The Public, Innermost Conviction, And Personal Judgments, Christian Biet

Cardozo Law Review

No abstract provided.

Long-Term Solutions For Children In The Child Welfare System: Families For Teens, Alexandra Lowe

Cardozo Public Law, Policy & Ethics Journal

The article advocates for the Families for Teens Initiative, which focuses on engaging teenagers in the foster care system to identify and connect with family resources that are often overlooked. The initiative aims to prevent poor outcomes such as homelessness and incarceration by emphasizing the importance of maintaining family connections and providing normal developmental opportunities for teens.

Expert Testimony On Sexually Abused Child Syndrome In A Child Protective Proceeding: More Hurtful Than Helpful, Mary Ellen Reilly

Cardozo Public Law, Policy & Ethics Journal

The note argues that Sexually Abused Child Syndrome (SACS) testimony is unreliable and should not be admitted as corroborating evidence in child protective proceedings. It contends that SACS lacks scientific validity, is not recognized as a medical diagnosis, and fails to meet evidentiary standards for reliability. The author asserts that allowing SACS testimony violates due process rights and risks wrongful outcomes, advocating for stricter standards for expert testimony and alternative methods of substantiating abuse allegations.

Under-Intervention Versus Over-Intervention, David Lansner

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.