Evidence Commons^™

We Have A "Purpose" Requirement If We Can Keep It, James F. Flanagan

Faculty Publications

The Supreme Court in Giles v. California held that a defendant forfeits the right to confront a witness only when he purposefully keeps the witness away. Many see the "purpose" requirement as an unjustified bar to the use of victim hearsay, particularly in domestic violence prosecutions where victims often refuse to appear. The author defends Giles as a correct reading of history, and independently justified by longstanding precedent that constitutional trial rights can only be lost by intentional manipulation of the judicial process. Moreover, the purpose requirement does not prevent prosecutions or convictions because the definition of testimonial hearsay is …

Testimonial Deficiencies And Evidentiary Uncertainties In International Criminal Trials, Nancy Amoury Combs

Faculty Publications

In this article, the author describes the flaws inherent in the process of international criminal tribunals which seek to punish the inhumane actions of dictators. The author first describes how international criminal trials confront severe impediments to accurate factfinding. It continues on to discuss the failure of witnesses in these tribunals to accurately convey the information needed to make a fully- informed decision. This problem is compounded by the fact that what clear information is provided during witness testimony often is inconsistent with the information that the witness previously provided in a pre-trial statement. The author also explores the causes …

Scientific Evidence And Prosecutorial Misconduct In The Duke Lacrosse Rape Case, Paul C. Giannelli

Faculty Publications

The need for pretrial discovery in criminal cases is critical. A defendant's right to confrontation, effective assistance of counsel, and due process often turns on pretrial disclosure. This essay discusses a case that demonstrates this point.

The Nrc Report And Its Implications For Criminal Litigation, Paul C. Giannelli

Faculty Publications

The National Research Council, an arm of the National Academy of Sciences, issued a landmark report on forensic science in February 2009. In the long run, the report’s recommendations, if adopted, would benefit law enforcement and prosecutors. The recommendations would allow forensic science to develop a strong scientific basis and limit evidentiary challenges regarding the reliability of forensic evidence. In keeping with its congressional charge, however, the NRC Committee did not directly address admissibility issues. Nevertheless, given its content, the report will inevitably be cited in criminal cases. Indeed, within months, the United States Supreme Court cited the report, noting …

The Future Of Neuroimaged Lie Detection And The Law, Joelle A. Moreno

Faculty Publications

No abstract provided.

Impeachable Offenses?: Why Civil Parties In Quasi-Criminal Cases Should Be Treated Like Criminal Defendants Under The Felony Impeachment Rule, Colin Miller

Faculty Publications

No abstract provided.

The Significance (If Any) For The Federal Criminal Justice System Of Advances In Lie Detector Technology, Jeffrey Bellin

Faculty Publications

Against a backdrop of accelerating developments in the science of lie detection certain to reopen the debate on the reliability and therefore admissibility of lie detector evidence in the federal courts, this Article examines whether the prohibition on hearsay evidence (or other evidentiary objections) will preclude admissibility of even scientifically reliable lie detector evidence. The Article concludes that the hearsay prohibition, which has been largely ignored by courts and commentators, is the primary obstacle to the future admission of scientifically valid lie detector evidence. The Article also suggests a potential solution to the hearsay problem that may allow admission of …

Improving The Reliability Of Criminal Trials Through Legal Rules That Encourage Defendants To Testify, Jeffrey Bellin

Faculty Publications

Reflecting a traditional bias against defendants' trial testimony, the modern American criminal justice system, which now recognizes a constitutional right to testify at trial, unabashedly encourages defendants to waive that right and remain silent. As a result, a large percentage of criminal defendants decline to testify, forcing juries to decide the question of the defendant's guilt without ever hearing from the person most knowledgeable on the subject.

This Article contends that the inflated percentage of silent defendants in the American criminal trial system is a needless, self-inflected wound, neither required by the Constitution nor beneficial to the search for truth. …

Pretrial Discovery Of Expert Testimony, Paul C. Giannelli

Faculty Publications

No abstract provided.

Tainted Provenance: When, If Ever, Should Torture Evidence Be Admissible, Michael P. Scharf

Faculty Publications

Written by a consultant to the United Nation's newly established Cambodia Genocide Tribunal, "Tainted Provenance" examines one of the most important legal questions that will face the Tribunal as it begins its trials next year -- whether evidence of the Khmer Rouge command structure that came from interrogation sessions at the infamous Tuol Sleng torture facility should be considered notwithstanding the international exclusionary rule for evidence procured by torture. The issue of whether there should be exceptions to the torture evidence exclusionary rule (and how those exceptions should be crafted to avoid abuse) has significant implications beyond the international tribunal, …

When Do Facts Persuade? Some Thoughts On The Market For “Empirical Legal Studies”, Elizabeth Chambliss

Faculty Publications

No abstract provided.

Nontestimonial Identification Orders For Dna Testing, Paul C. Giannelli

Faculty Publications

No abstract provided.

Brady And Jailhouse Snitches, Paul C. Giannelli

Faculty Publications

No abstract provided.

Daubert Challenges To Firearms (“Ballistics”) Identifications, Paul C. Giannelli

Faculty Publications

No abstract provided.

Prosecutors, Ethics, And Expert Witnesses, Paul C. Giannelli, Kevin C. Mcmunigal

Faculty Publications

Commentators who have examined the DNA exonerations have noted the disturbing role that prosecutors have played in these wrongful convictions. Another significant contributor to these miscarriages of justice is the misuse of expert testimony, a third of the cases according to some sources. This Article examines the intersection of these two factors - the prosecutor's role in using and presenting expert testimony.

Prosecutorial misconduct may occur during most stages of a trial, beginning with the selection of witnesses, including the improper "shopping" for experts. Additional abuses occur when prosecutors fail to abide by rules governing the pretrial disclosure of scientific …

Bite Mark Analysis, Paul C. Giannelli

Faculty Publications

Courts have admitted bite mark comparison evidence in homicide, rape, and child abuse cases. By the 1980s, the technique had gained widespread judicial acceptance. Hundreds of cases have admitted this type of evidence, and no reported case has rejected it. Moreover, some courts speak of bite mark comparison as a "science." Indeed, its acceptance is so well-established that several courts have taken judicial notice of its reliability, implying that the validity of the technique is not subject to reasonable dispute.

Yet, the scientific foundations for bite mark comparisons has never been demonstrated. Such basic issues as the uniqueness of the …

Who Knew - The Admissibility Of Subsequent Remedial Measures When Defendants Are Without Knowledge Of The Injuries, Ryan Vacca, Mark G. Boyko

Faculty Publications

Federal Rule of Evidence 407 and equivalent state court rules prohibit the introduction of subsequent remedial measures for the purpose of demonstrating negligence, culpable conduct, or product defect. The rule breaks down, however, in application and purpose, when a defendant undertakes a new safety measure after the plaintiff's injury but before the defendant had knowledge of the loss. Such a situation is not uncommon. Would-be defendants frequently improve their products and product safety, whether in response to injuries incurred by other users, business pressures, or simply advances in the state of the art and scientific knowledge. Toxic exposure cases, where …

Seizures Without Searches: Defining Property Seizures And Developing A Property Seizure Model, Eric R. Carpenter

Faculty Publications

No abstract provided.

It's Not Just About Miranda: Determining The Voluntariness Of Confessions In Criminal Prosecutions, Paul Marcus

Faculty Publications

No abstract provided.

What Do Snowmobiles, Mercury Emissions, Greenhouse Gases, And Runoff Have In Common?: The Controversy Over "Junk Science", Linda A. Malone

Faculty Publications

No abstract provided.

Wrongful Convictions And Forensic Science: The Need To Regulate Crime Labs, Paul C. Giannelli

Faculty Publications

DNA testing has exonerated over 200 convicts, some of whom were on death row. Studies show that a substantial number of these miscarriages of justice involved scientific fraud or junk science. This article documents the failures of crime labs and some forensic techniques, such as microscopic hair comparison and bullet lead analysis. Some cases involved incompetence and sloppy procedures, while others entailed deceit, but the extent of the derelictions - the number of episodes and the duration of some of the abuses, covering decades in several instances - demonstrates that the problems are systemic.

Paradoxically, the most scientifically sound procedure …

Daubert Challenges To Fingerprints, Paul C. Giannelli

Faculty Publications

No abstract provided.

Using Graphics To Teach Evidence, Kevin C. Mcmunigal

Faculty Publications

As an Assistant United States Attorney in the general crimes unit of a metropolitan United States Attorney's Office, I regularly tried a variety of cases ranging from bank robberies and drug offenses to white collar crimes. Regardless of the type of crime, I frequently found various types of graphics useful in presenting the case. Examples included a chart providing a point by point comparison of modus operandi in two armed bank robberies and a map of the scene of a controlled purchase of cocaine showing the locations and movements of multiple defendants, an informant, and federal agents. Such graphics helped …

Confidentiality In Arbitration: Beyond The Myth, Richard C. Reuben

Faculty Publications

Many people assume that arbitration is private and confidential. But is that assumption accurate? This article is the first to explore that question in the important context of whether arbitration communications can be discovered and admitted into evidence in other legal proceedings - a question that is just beginning to show up in the cases. It first surveys the federal and state statutory and case law, finding that arbitration communications in fact are generally discoverable and admissible. It then considers the normative desirability of discovering and admitting arbitration communications evidence, concluding that the free discovery and admissibility of arbitration communications …

Faith-Based Miranda: Why The New Missouri V. Seibert Police Bad Faith Test Is A Terrible Idea, Joelle A. Moreno

Faculty Publications

No abstract provided.

Strategies For Challenging Police Drug Jargon Testimony, Joelle A. Moreno

Faculty Publications

No abstract provided.

Like Migratory Birds- Latin American Claimants In U.S. Courts And The Ford-Firestone Rollover Litigation, Manuel A. Gómez

Faculty Publications

No abstract provided.

Ake V. Oklahoma: The Right To Expert Assistance In A Post-Daubert, Post-Dna World, Paul C. Giannelli

Faculty Publications

Although securing the services of defense experts to examine evidence, to advise counsel, and to testify at trial is frequently critical in modern criminal litigation, it was not until 1985 that the United States Supreme Court in Ake v. Oklahoma, 470 U.S. 68 (1985), recognized, for the first time, a constitutional right to expert assistance. In a system in which an overwhelming majority of criminal defendants are indigent, Ake was a landmark case. Nevertheless, the Ake Court could not have anticipated how the advent of DNA evidence would revolutionize forensic science or how the Daubert trilogy would alter the judicial …

What Happens When Dirty Harry Becomes An [Expert] Witness For The Prosecution?, Joelle A. Moreno

Faculty Publications

No abstract provided.

Reliability And The Admissibility Of Experts, Dale A. Nance

Faculty Publications

Modern law on expert testimony insists, as a condition of admissibility, that the asserted expertise be determined by the trial judge to be reliable. Reliability is usually characterized as a dichotomous attribute of evidence, as if expertise were either reliable or unreliable. This article argues that making progress in the development of meaningful and appropriate restrictions on the admissibility of expert testimony requires that we abandon this conceptualization and understand the implications of endorsing a gradational notion of reliability in which evidence can be more or less reliable and in which a comparative assessment of reliability is prominent. Consistent with …