Evidence Commons^™

Cognitive Foundation Of The Impulse To Blame, Lawrence Solan

Faculty Scholarship

No abstract provided.

Fifteen Years After The Federal Sentencing Revolution: How Mandatory Minimums Have Undermined Effective And Just Narcotics Sentencing Perspectives On The Federal Sentencing Guidelines And Mandatory Sentencing, Ian Weinstein

Faculty Scholarship

Federal criminal sentencing has changed dramatically since 1988. Fifteen years ago, judges determined if and for how long a defendant would go to jail. Since that time, changes in substantive federal criminal statutes, particularly the passage of an array of mandatory minimum penalties and the adoption of the federal sentencing guidelines, have limited significantly judicial sentencing power and have remade federal sentencing and federal criminal practice. The results of these changes are significantly longer federal prison sentences, as was the intent of these reforms, and the emergence of federal prosecutors as the key players in sentencing. Yet, at the same …

Daubert On A Tilted Playing Field, Roger C. Park

Faculty Scholarship

No abstract provided.

Eyewitness Identification: Expert Witnesses Are Not The Only Solution, Roger C. Park

Faculty Scholarship

No abstract provided.

Dna Identification Databases: Legality, Legitimacy, And The Case For Population-Wide Coverage, David H. Kaye, Michael E. Smith

Faculty Scholarship

Over the past decade, law enforcement authorities have amassed huge collections of DNA samples and the identifying profiles derived from them. Large DNA databanks routinely help to identify the guilty and to exonerate the innocent, but as the databanks grow, so do fears about civil liberties. Perhaps the most controversial policy issue in the creation of these databases is the question of coverage: Whose DNA profiles should be stored in them? The possibilities extend from convicted violent sex offenders to all convicted felons, to everyone arrested, to the entire population. This Article questions the rationales for drawing the line at …

An Empirical Test Of Justice Scalia's Commitment To The Rule Of Law, Gary S. Lawson

Faculty Scholarship

On January 13, 2001, barely one month after the Supreme Court's decision in Bush v. Gore, a group of 554 legal academics calling themselves "Law Professors for the Rule of Law" took out a full-page ad in the New York Times that essentially accused the Court's majority of being faithless to the rule of law. In full, the advertisement read: BY STOPPING THE VOTE COUNT IN FLORIDA, THE U.S. SUPREME COURT USED ITS POWER To ACT AS POLITICAL PARTISANS, NOT JUDGES OF A COURT OF LAW We are Professors of Law at 120 American law schools, from every part of …

Visions Of Applying The Scientific Method To The Hearsay Rule, Roger C. Park

Faculty Scholarship

No abstract provided.

Expert Evidence In Flatland: The Geometry Of A World Without Scientific Culture, David L. Faigman

Faculty Scholarship

No abstract provided.

The Limits Of The Polygraph, David L. Faigman, Stephen E. Fienberg, Paul C. Stern

Faculty Scholarship

No abstract provided.

Sometimes What Everybody Thinks They Know Is True, Roger C. Park

Faculty Scholarship

No abstract provided.

Convictions Of Innocent Persons In Massachusetts: An Overview, Stanley Z. Fisher

Faculty Scholarship

Scholars documenting the incidence and causes of wrongful convictions in the United States have focused on cases arising all across the country. Because reform of the practices that lead to such errors of justice must largely take place on the state level, there is value in examining wrongful convictions in particular jurisdictions. This article attempts to identify and briefly describe all known cases of conviction of innocent persons in Massachusetts from 1800 to the present time. Part I discusses the criteria for identifying "the innocent." For the purpose of gaining support for needed reforms in the law, the most persuasive …

The Other Shoe Drops: Minnesota Rejects Daubert, Peter B. Knapp

Faculty Scholarship

In 1991, the United States Supreme Court handed decided Daubert v. Merrell Dow Pharmaceuticals, Inc., rejecting the long-standing federal test for the admissibility of scientific testimony articulated in Frye v. United States. Unlike many states, however, which embraced Daubert within years--or even months--of the federal decision, Minnesota declined to make Daubert the law of the jurisdiction. In a pair of cases decided in 2000, Goeb v. Tharaldson and Sentinel Mgmt. v. Aetna Casualty & Surety, the court held that Minnesota would retain the general acceptance test. The court's rejection of Daubert can be read as an attempt to give the …

Expanding The Evidentiary Frame For Cooperating Witnesses, Daniel C. Richman

Faculty Scholarship

One telling feature of this conference as a whole has been the extent to which speakers have focused on the cooperation dynamic outside the courtroom. Prosecutors should take more pains to avoid suborning or even unconsciously encouraging perjury by the cooperator who is looking for a lower sentence. Courts and disciplinary authorities should ensure that such pains are taken.

What's interesting is how little attention has been given to changing what happens in front of the jury. Since our assignment has been to think "outside of the box" (which usually means proposing something interesting but really wrong or dangerous), I'd …

Of Two Wrongs That Make A Right: Two Paradoxes Of The Evidence Law And Their Combined Economic Justification, Alex Stein

Faculty Scholarship

No abstract provided.

Two Fallacies About Dna Data Banks For Law Enforcement, David H. Kaye

Faculty Scholarship

This commentary on the article Legal and Policy Issues in Expanding the Scope of Law Enforcement DNA Data Banks, 67 Brook. L. Rev. 127 (2001), by Mark Rothstein and Sandra Carnahan, argues that the case for confining law enforcement DNA databases to noncoding loci and to samples from individuals convicted of violent crimes is quite weak.

It describes alternative approaches, including the possibility of a population-wide database; the privacy implications of the loci now used in forensic identification; the law governing DNA dragnets; and the limits on DNA databases imposed by recent cases on searches and seizures. It notes the …

The Dynamics Of Daubert: Methodology, Conclusions, And Fit In Statistical And Econometric Studies, David H. Kaye

Faculty Scholarship

This paper reviews the development of the law governing the admissibility of statistical studies. It analyzes the leading cases on scientific evidence and suggests that both the "reliability" and the "general acceptance" standards raise two major difficulties - the "boundary problem" of identifying the type of evidence that warrants careful screening and the "usurpation problem" of keeping the trial judge from closing the gate on evidence that should be left for the jury to assess.

The paper proposes partial solutions to these problems, and it applies them to statistical and econometric proof, particularly in the context of a recent antitrust …

The Constitutionality Of Dna Sampling On Arrest, David H. Kaye

Faculty Scholarship

Every state now collects DNA from people convicted of certain offenses. Law enforcement authorities promote offender DNA databanking on the theory that it will identify offenders who commit additional crimes while or probation or parole, or after they have finished serving their sentences. Even relatively small databases have yielded such dividends. As these database searches uncover the perpetrators of rapes, murders, and other offenses, the pressure builds to expand the coverage of the databases.

Recent proposals call for extending not merely the scope of crimes for which DNA databanking would be used, but also the point at which the samples …

Convicting The Innocent Beyond A Reasonable Doubt: Some Lessons About Jury Instructions From The Sheppard Case, Lawrence Solan

Faculty Scholarship

No abstract provided.

Choice And Boundary Problems In Logerquist, Hummert, And Kumho Tire, David H. Kaye

Faculty Scholarship

This article, part of a symposium on the opinion of the Arizona Supreme Court in Logerquist v. McVey, questions that court’s rationales for refusing to apply heightened scrutiny to psychiatric testimony about the retrieval of repressed memories. It also challenges the court’s use of a “personal observations” exception to the heightened scrutiny standard of Frye v. United States. It proposes that a better solution to problems of scientific and expert evidence would be to adopt a sliding scale that attends to the use to which the evidence is put and the degree to which it has been shown to be …

Dna Typing: Emerging Or Neglected Issues, David H. Kaye, Edward J. Imwinkelried

Faculty Scholarship

DNA typing has had a major impact on the criminal justice system. There are hundreds of opinions and thousands of cases dealing with DNA evidence. Yet, at virtually every stage of the process, there are important issues that are just emerging or that have been neglected.

At the investigative stage, courts have barely begun to focus on the legal limitations on the power of the police to obtain samples directly from suspects and to use the data from DNA samples in various ways. Issues such as the propriety of "DNA dragnets" (in which large numbers of individuals in a geographic …

Making The Grade: A Modest Extension Of Bush V. Gore, Roger C. Park

Faculty Scholarship

No abstract provided.

Grand Perspectives On Evidence Law, Roger C. Park

Faculty Scholarship

No abstract provided.

How Good Is Good Enough?: Expert Evidence Under Daubert And Kuhmo, David H. Kaye, David L. Faigman, Michael J. Saks, Joseph Sanders

Faculty Scholarship

This essay is a response to Professor Edward Imwinkelried's article, "Should the Courts Incorporate a Best Evidence Rule into the Standard Determining the Admissibility of Scientific Testimony?: Enough is Enough When it is not the Best." The authors have two basic points. First, the authors wish to make it clear that they never proposed the "best evidence rule" that he so vigorously attacks, and they think his suggestion that they did so is strained. Second, they wish to reiterate that courts sometimes should do more than they have to ensure that expert testimony is reasonably sound. The important debate underway …

Keeping The Reformist Spirit Alive In Evidence Law Tribute, Stephen A. Saltzburg, Edward J. Imwinkelried

Faculty Scholarship

No abstract provided.

The Limits Of Privilege: The Developing Scope Of Federal Psychotherapist-Patient Privilege Law, Melissa Lee Nelken

Faculty Scholarship

No abstract provided.

How Good Is Good Enough? Expert Evidence Under Daubert And Kumho, David L. Faigman, David H. Kaye, Michael J. Saks, Joseph Sanders

Faculty Scholarship

No abstract provided.

Regulating The Market For Snitches , Ian Weinstein

Faculty Scholarship

These are boom times for the sellers and buyers of cooperation in the federal criminal justice system. While prosecutors have always welcomed the assistance of snitches, tougher federal sentencing laws have led to a significant increase in cooperation as more defendants try to provide "substantial assistance in the investigation or prosecution of another person," to have some chance of receiving a significant sentence reduction. In 1996 one of every five defendants sentenced in the federal courts won mitigation by providing substantial assistance. Many more defendants tried but failed to close the deal. The overheated cooperation market is creating serious problems …

Taking Notes: Subpoenas And Just Compensation, Gary S. Lawson

Faculty Scholarship

Few cases from the October 1997 Supreme Court term received as much public attention as Swidler & Berlin v United States, which held that the attorney-client privilege survives the death of the client in federal criminal proceedings. If one focuses solely on the issue actually decided in the case, that degree of attention is surprising. The issue had not generated a split among the federal circuits, and there were relatively few decisions-federal or state-squarely on point. The Court's holding was thus unlikely to have a major impact on American law; the paucity of prior case law demonstrates that the question …

Looking For Policy In All The Wrong Places: A Comment On The Strategies Of "The Race And Gender Crowd" Toward Evidence Law, David L. Faigman

Faculty Scholarship

No abstract provided.

Would A Market-Based Test Clarify Entrapment?, Roger C. Park

Faculty Scholarship

No abstract provided.