Evidence Commons^™

Death By Daubert: The Continued Attack On Private Antitrust, Christine P. Bartholomew

Cardozo Law Review

In 2011, with five words of dicta, the Supreme Court opened Pandora's Box for private antitrust enforcement. By suggesting trial courts must evaluate the admissibility of expert testimony at class certification, the Court placed a significant obstacle in the path of antitrust class actions. Following the Supreme Court's lead, most courts now permit parties to bring expert challenges far earlier than the traditional summary judgment or pre-trial timing. Premature rejection of expert testimony dooms budding private antitrust suits - cases that play an essential role in modern antitrust enforcement. The dangers for private antitrust plaintiffs are compounded by the Court's …

Disparate Treatment Of Disparate Treatment: Harmonizing Title Vii Pretext And Mixed-Motive Jury Instruction Causation Standards In Light Of Staub V. Memorial Hospital, Eric Rosoff

Cardozo Law Review

No abstract provided.

Remaking Mexico: Law Reform As Foreign Policy, Deborah M. Weissman

Cardozo Law Review

No abstract provided.

An Uncertain Privilege: Reexamining Garner V. Wolfinbarger And Its Effect On Attorney-Client Privilege, Benjamin Cooper

Cardozo Law Review

No abstract provided.

Bridging The Cellular Divide: A Search For Consensus Regarding Law Enforcement Access To Historical Cell Data, Zachary Ross

Cardozo Law Review

No abstract provided.

We Are Never Ever Getting Back Together: Domestic Violence Victims, Defendants, And Due Process, Jessica Miles

Cardozo Law Review

No abstract provided.

Mock Trials And Real Justices And Judges, Richard A. Posner

Cardozo Law Review

No abstract provided.

"That's The Guy!": Federal Rule Of Evidence 801(D)(1)(C) And Out-Of-Court Statements Of Identification, Gilbert M. Rein

Cardozo Law Review

No abstract provided.

Neuroscience, Ptsd, And Sentencing Mitigation, Betsy J. Grey

Cardozo Law Review

No abstract provided.

Expertise, Lab Lit, And The Fantasy Of Science Free From Economics, David S. Caudill

Cardozo Law Review

No abstract provided.

Exile Without Process: The New York City Housing Authority's Unconstitutional Trespass Notice Program, Lauren J. Zimmerman

Cardozo Law Review

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.

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.

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 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 …

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.

Deregulating Guilt: The Information Culture Of The Criminal System, Alexandra Natapoff

Cardozo Law Review

The criminal system has an uneasy relationship with information. On the one hand, the criminal process is centrally defined by stringent evidentiary and information rules and a commitment to public transparency. On the other, largely due to the dominance of plea bargaining, criminal liability is determined by all sorts of unregulated, non-public information that never pass through the quality control of evidentiary, discovery, or other criminal procedure restrictions. The result is a process that generates determinations of liability that are often unmoored from systemic information constraints. This phenomenon is exemplified, and intensified, by the widespread use of criminal informants, or …

Self-Incrimination And The Epistemology Of Testimony, Michael S. Pardo

Cardozo Law Review

The Supreme Court's limitation of the privilege against self-incrimination to evidence of a testimonial nature has been controversial. The doctrinal reliance on a distinction between physical and testimonial evidence has proven difficult to apply in practice, and it has been criticized as being descriptively inaccurate, analytically incoherent, and normatively indefensible. This article offers a defense of the distinction on epistemological grounds. The philosophical focus on testimony as a source of knowledge provides some insight into what makes testimony distinct as an epistemic source. These considerations are used to provide a coherent and principled way to distinguish what evidence to treat …