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The Politics Of Law And Film Study: An Introduction To The Symposium On Legal Outsiders In American Film, Jessica Silbey Jan 2009

The Politics Of Law And Film Study: An Introduction To The Symposium On Legal Outsiders In American Film, Jessica Silbey

Faculty Scholarship

The articles collected in this Symposium Issue on Legal Outsiders in American Film are examples of a turn in legal scholarship toward the analysis of culture. The cultural turn in law takes as a premise that law and culture are inextricably intertwined. Common to the project of law and culture is how legal and cultural discourse challenge or sustain communities, identities and relations of power. In this vein, each of the articles in this Symposium Issue look closely at a film or a set of films as cultural objects which, when engaged critically, help us think about law as an …


A Witness To Justice, Jessica Silbey Jan 2009

A Witness To Justice, Jessica Silbey

Faculty Scholarship

In the 1988 film The Accused, a young woman named Sarah Tobias is gang raped on a pinball machine by three men while a crowded bar watches. The rapists cut a deal with the prosecutor. Sarah's outrage at the deal convinces the assistant district attorney to prosecute members of the crowd that cheered on and encouraged the rape. This film shows how Sarah Tobias, a woman with little means and less experience, intuits that according to the law rape victims are incredible witnesses to their own victimization. The film goes on to critique what the right kind of witness would …


Analysis Of Videotape Evidence In Police Misconduct Cases, Martin A. Schwartz, Jessica Silbey, Jack Ryan, Gail Donoghue Jan 2009

Analysis Of Videotape Evidence In Police Misconduct Cases, Martin A. Schwartz, Jessica Silbey, Jack Ryan, Gail Donoghue

Faculty Scholarship

Many evidentiary issues arise with respect to the admission of videotape evidence and computer generated simulations at trial, and the authors of this Article address these issues as they arise in police misconduct cases. Professor Schwartz provides insight into and analysis of the evidentiary principles that govern the use of video and computer simulation evidence at trial in cases where police misconduct is at issue. His discussion first addresses the issues that concern the admissibility of videotape evidence, then discusses the role of a videotape on summary judgment, and lastly, analyzes evidentiary issues with respect to computer generated simulations.


Secret Evidence And The Due Process Of Terrorist Detentions, Daphne Barak-Erez, Matthew C. Waxman Jan 2009

Secret Evidence And The Due Process Of Terrorist Detentions, Daphne Barak-Erez, Matthew C. Waxman

Faculty Scholarship

Courts across many common law democracies have been wrestling with a shared predicament: proving cases against suspected terrorists in detention hearings requires governments to protect sensitive classified information about intelligence sources and methods, but withholding evidence from suspects threatens fairness and contradicts a basic tenet of adversarial process. This Article examines several models for resolving this problem, including the "special advocate" model employed by Britain and Canada, and the 'Judicial management" model employed in Israel. This analysis shows how the very different approaches adopted even among democracies sharing common legal foundations reflect varying understandings of 'fundamental fairness" or "due process," …


Back To The Future: Lorraine V. Markel American Insurance Co. And New Findings On The Admissibility Of Electronically Stored Information, Paul W. Grimm, Michael V. Ziccardi, Alexander W. Major Jan 2009

Back To The Future: Lorraine V. Markel American Insurance Co. And New Findings On The Admissibility Of Electronically Stored Information, Paul W. Grimm, Michael V. Ziccardi, Alexander W. Major

Faculty Scholarship

No abstract provided.


The Right To Silence Helps The Innocent: A Response To Critics, Alex Stein Dec 2008

The Right To Silence Helps The Innocent: A Response To Critics, Alex Stein

Faculty Scholarship

No abstract provided.


Eyewitness Identification Reform In Massachusetts, Stanley Z. Fisher Jul 2008

Eyewitness Identification Reform In Massachusetts, Stanley Z. Fisher

Faculty Scholarship

This article traces the impact of the new scientific learning upon police eyewitness identification procedures in the Commonwealth of Massachusetts. Over the past 25 years, experimental psychologists have devised more reliable techniques for gathering eyewitness identification evidence than have been traditionally used by police. Massachusetts has over 350 autonomous municipal police departments, plus approximately 39 college campus police departments, the state police, and the MBTA (transit) Police Department. The decision how to investigate crime rests principally with the police chief responsible for each department. How does such a system of policing absorb new, scientifically superior methods of investigation?


Softening The Formality And Formalism Of The “Testimonial” Statement Concept, Robert P. Mosteller Mar 2008

Softening The Formality And Formalism Of The “Testimonial” Statement Concept, Robert P. Mosteller

Faculty Scholarship

In Crawford v. Washington (2004), the United States Supreme Court ruled that “testimonial” statements are the core, perhaps exclusive, concern of the Confrontation Clause. The Court began a process of defining the testimonial-statement concept but did not develop a comprehensive definition. In Crawford, the Court concluded that a statement was testimonial, which was tape recorded and obtained from a criminal suspect who was in police custody, had been given warnings under Miranda v. Arizona (1966), and was being interrogated by known governmental agents using what the Court termed “structured” questioning. One of the definitions the Court explicitly presented as a …


Crime, Legitimacy, And Testilying, Bennett Capers Jan 2008

Crime, Legitimacy, And Testilying, Bennett Capers

Faculty Scholarship

No abstract provided.


Constitutional Evidence Law, Alex Stein Jan 2008

Constitutional Evidence Law, Alex Stein

Faculty Scholarship

No abstract provided.


The Constable Blunders But Isnt Punished Does Hudson V Michigans Abolition Of The Exclusionary Rule Extend Beyond Knockandannounce Violations, Mark A. Summers Jan 2008

The Constable Blunders But Isnt Punished Does Hudson V Michigans Abolition Of The Exclusionary Rule Extend Beyond Knockandannounce Violations, Mark A. Summers

Faculty Scholarship

No abstract provided.


Proportionality In The Post-Hoc Analysis Of Pre-Litigation Preservation Decisions, Paul W. Grimm, Michael D. Berman, Conor R. Crowley, Leslie Wharton Jan 2008

Proportionality In The Post-Hoc Analysis Of Pre-Litigation Preservation Decisions, Paul W. Grimm, Michael D. Berman, Conor R. Crowley, Leslie Wharton

Faculty Scholarship

No abstract provided.


Addressing The Evidentiary Sources Of Wrongful Convictions: Categorical Exclusion Of Evidence In Capital Statutes, Rory K. Little Jan 2008

Addressing The Evidentiary Sources Of Wrongful Convictions: Categorical Exclusion Of Evidence In Capital Statutes, Rory K. Little

Faculty Scholarship

No abstract provided.


Case Comment - People V. Nelson: A Tale Of Two Statistics, David H. Kaye Jan 2008

Case Comment - People V. Nelson: A Tale Of Two Statistics, David H. Kaye

Faculty Scholarship

In recent years, defendants who were identified as a result of a search through a database of DNA profiles have argued that the probability that a randomly selected person would match a crime-scene stain overstates the probative value of the match. The statistical literature is divided, with most statisticians who have written on the subject rejecting this claim. In People v. Nelson, the Supreme Court of California held that when the random-match probability is so small as to make it exceedingly unlikely that any unrelated individual has the incriminating DNA profile, this statistic is admissible in a database-search case. …


Fixing The Fatal Flaws In Oui Implied Consent Laws, Tina Wescott Cafaro Jan 2008

Fixing The Fatal Flaws In Oui Implied Consent Laws, Tina Wescott Cafaro

Faculty Scholarship

This Article explores the use of implied consent laws as a method of deterring and punishing alcohol-impaired driving. Part I introduces the history and purpose of implied consent laws. Part II discusses the inadequacies of current statutory implied consent provisions and their failure to effectively attain their designed purpose. This section also highlights two particularly detrimental aspects of the law as currently implemented: (1) the lack of uniformity in the application of the laws by individual states; and (2) the disparate treatment of persons who refuse to submit to BAC testing, both in terms of consequences of refusal to submit …


Cross Dressing And The Criminal, Bennett Capers Jan 2008

Cross Dressing And The Criminal, Bennett Capers

Faculty Scholarship

No abstract provided.


Exculpatory Evidence, Ethics, And The Road To The Disbarment Of Mike Nifong: The Critical Importance Of Full Open-File Discovery, Robert P. Mosteller Jan 2008

Exculpatory Evidence, Ethics, And The Road To The Disbarment Of Mike Nifong: The Critical Importance Of Full Open-File Discovery, Robert P. Mosteller

Faculty Scholarship

Mike Nifong, the prosecutor in the Duke lacrosse rape case, was disbarred by the North Carolina State Bar in June 2007 principally for withholding exculpatory DNA evidence and for making false statements about his conduct. This article relates the central details of his actions and the process that led to disbarment. Its key overall insight is that full open-file discovery was the figurative workhorse and hero in the Nifong disbarment saga. That saga was itself strongly affected by two earlier death penalty cases where prosecutors also failed to provide exculpatory information to the defense. The constitutional doctrine in Brady v. …


Ethical Issues Associated With Preserving, Accessing, Discovering, And Using Electronically Stored Information, Paul W. Grimm Jan 2008

Ethical Issues Associated With Preserving, Accessing, Discovering, And Using Electronically Stored Information, Paul W. Grimm

Faculty Scholarship

No abstract provided.


Discovery About Discovery: Does The Attorney-Client Privilege Protect All Attorney-Client Communications Relating To The Preservation Of Potentially Relevant Information?, Paul W. Grimm, Michael D. Berman, Leslie Wharton, Jenna Beck, Conor R. Crowley Jan 2008

Discovery About Discovery: Does The Attorney-Client Privilege Protect All Attorney-Client Communications Relating To The Preservation Of Potentially Relevant Information?, Paul W. Grimm, Michael D. Berman, Leslie Wharton, Jenna Beck, Conor R. Crowley

Faculty Scholarship

No abstract provided.


Impeachment With Evidence Of Prior Convictions, Roger C. Park Jan 2008

Impeachment With Evidence Of Prior Convictions, Roger C. Park

Faculty Scholarship

No abstract provided.


Signature Identification In The Light Of Science And Experience, Roger C. Park Jan 2008

Signature Identification In The Light Of Science And Experience, Roger C. Park

Faculty Scholarship

No abstract provided.


Science, Intersubjective Validity, And Judicial Legitimacy, Richard B. Katskee Jan 2008

Science, Intersubjective Validity, And Judicial Legitimacy, Richard B. Katskee

Faculty Scholarship

No abstract provided.


Mediating Rules In Criminal Law, Alex Stein, Richard A. Bierschbach Sep 2007

Mediating Rules In Criminal Law, Alex Stein, Richard A. Bierschbach

Faculty Scholarship

No abstract provided.


Probability, Policy And The Problem Of Reference Class, Robert J. Rhee Jan 2007

Probability, Policy And The Problem Of Reference Class, Robert J. Rhee

Faculty Scholarship

This short paper focuses on the problem of reference class in evidentiary assessment as it relates to probability and weight of evidence. The reluctance to inject mathematical formalism into the factfinding function is justified. Objective probability requires a reference class from which a proportion is derived. Probability assessments change with the reference class. If a proposition is subject to proportional comparison against two or more different references, their selection is often an inductive process. The advantage of objectivity and methodological rigor is illusory. A legal dispute is the search for a plausible understanding of the truth, and an overtly mathematized …


Chimeras: Double The Dna - Double The Fun For Crime Scene Investigators, Prosecutors, And Defense Attorneys?, Catherine Arcabascio Jan 2007

Chimeras: Double The Dna - Double The Fun For Crime Scene Investigators, Prosecutors, And Defense Attorneys?, Catherine Arcabascio

Faculty Scholarship

This article first explores the mythological origins of the term "chimera." It then explores the causes and scientific explanations of chimerism and the various conditions covered by the term chimera in the area of genetics. Although this article will discuss the various chimeric conditions that are thought to exist, its primary focus is on chimerism that is the result of the fusing of embryos in utero. Next, the article will discuss recent cases of chimerism - and of alleged chimerism - and how the genetic differences between chimeras and the general population came to light. It also will discuss …


Please, Let's Bury The Junk: The Codis Loci And The Revelation Of Private Information, David H. Kaye Jan 2007

Please, Let's Bury The Junk: The Codis Loci And The Revelation Of Private Information, David H. Kaye

Faculty Scholarship

This Northwestern University Law Review Colloquy paper describes the four possible ways in which genetic loci could possess predictive or diagnostic value with regard to diseases and explains why these mechanisms have not led, and probably cannot lead, to useful screening tests with the Convicted Offender DNA Index System (CODIS) profiles in national, state, and local databases. It then considers the phenotypes and familial relationships that the CODIS STRs can be used to identify. The profiles carry limited information about an individual's race and familial relationships, and the article places the resulting privacy issues in perspective. Finally, the paper comments …


Finding The Golden Mean With Daubert: An Elusive, Perhaps An Impossible, Goal, Robert P. Mosteller Jan 2007

Finding The Golden Mean With Daubert: An Elusive, Perhaps An Impossible, Goal, Robert P. Mosteller

Faculty Scholarship

No abstract provided.


A Suspicionless Search And Seizure Quagmire: The Supreme Court Revives The Pretext Doctrine And Creates Another Fine Fourth Amendment Mess, Edwin J. Butterfoss Jan 2007

A Suspicionless Search And Seizure Quagmire: The Supreme Court Revives The Pretext Doctrine And Creates Another Fine Fourth Amendment Mess, Edwin J. Butterfoss

Faculty Scholarship

This Article contends the Supreme Court's use of a primary purpose test to regulate suspicionless searches and seizures by the government is misguided and will provide little or no protection against the evils that apparently led the Court to strike down recent schemes by government officials. The evil of the government schemes is less the purpose of the schemes than their expansion into areas and activities in which citizens should be protected from government intrusion in the absence of any suspicion of wrongdoing. Rather than facing this head on and carefully assessing whether the government schemes infringe on such areas …


Revisiting 'Dreyfus': A More Complete Account Of A Trial By Mathematics, David H. Kaye Jan 2007

Revisiting 'Dreyfus': A More Complete Account Of A Trial By Mathematics, David H. Kaye

Faculty Scholarship

Legal literature and case law depicts the infamous conviction of Alfred Dreyfus for treason and espionage in 1899 as a prime example of the irresistible power of even grossly fallacious mathematical demonstrations to overwhelm a legal tribunal. This essay shows that Dreyfus is not a case of mathematics run amok, unchecked and uncomprehended. To the contrary, the defects in the mathematical proof were dramatically exposed, and this evidence did not lead Dreyfus's judges to condemn him. This history undercuts the reliance of modern courts and commentators on Dreyfus as an indication or illustration of the alleged dangers of probability evidence …


The Science Of Dna Identification: From The Laboratory To The Courtroom (And Beyond), David H. Kaye Jan 2007

The Science Of Dna Identification: From The Laboratory To The Courtroom (And Beyond), David H. Kaye

Faculty Scholarship

This article focuses on sequences of DNA base-pairs, which are becoming increasingly important in the field of law. These DNA sequences are used by forensic scientists to discover evidence such as blood stains, semen, saliva, and hair, and has become highly useful in the courtroom with regard to exonerating the innocent and convicting the guilty. Part I of the article examines how courts may (or may not) admit DNA evidence in court through four phases: uncritical acceptance; serious challenges to analytical methods and statistical interpretation of the results; renewed acceptance of DNA evidence; and acceptance of advance systems of DNA …