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Articles 1 - 30 of 78
Full-Text Articles in Evidence
Shielding Freedoms: State Noncooperation In Hunts For Evidence And People, Mary D. Fan
Shielding Freedoms: State Noncooperation In Hunts For Evidence And People, Mary D. Fan
Washington Law Review
The nation is fracturing into a patchwork of rights and punishment. What some states and localities safeguard as rights, other jurisdictions are criminalizing and punishing. As the divides in rights and punishment deepen, some states are becoming sanctuaries for freedoms penalized elsewhere and enacting shield laws prohibiting cooperation with criminalization and punishment states. A prime example is shield laws protecting people seeking to exercise reproductive rights or obtain gender-affirming care. Major jurisdictions for healthcare and technology-related businesses, such as Washington, California, New York, and Massachusetts, have enacted shield laws that prohibit law enforcement and companies from complying with subpoenas seeking …
The Objective Observer: The Washington State Supreme Court's Remedial Aspirations And Experience On The Ground, David B. Owens
The Objective Observer: The Washington State Supreme Court's Remedial Aspirations And Experience On The Ground, David B. Owens
Washington Law Review
The Washington State Supreme Court has adopted an “objective observer rule” for addressing whether race impacted jury selection and extended this rule to evaluating all aspects of Washington courts, including jury trials. The objective observer rule allows courts to evaluate whether decisions in those courtrooms could be viewed as the result of racial bias, even where there is no evidence of specific racial animus and in the absence of racial slurs. The rule, which covers a form of disparate impact, has now existed for over half a decade. This Article outlines the Washington State Supreme Court’s development of the objective …
Washington Civil Jury Trials Via Zoom: Perspectives From The Bench, Marisa Pasnick
Washington Civil Jury Trials Via Zoom: Perspectives From The Bench, Marisa Pasnick
Washington Law Review
Many professions have felt the impact of the coronavirus (COVID-19) pandemic, including the legal field. At the onset of COVID-19, many courthouses closed and trials halted, but as the pandemic continued, the need to resume judicial proceedings led courts to turn to virtual platforms to conduct civil jury trials. This Comment examines the response of judges in Washington State to the use of Zoom for conducting civil jury trials. Interviews with judges across Washington reveal a stark contrast in opinions among judges in different districts as well as within districts. This Comment answers the question of how judges feel about …
Marital Disharmony: Examining The Adverse Spousal Testimonial Privilege And Its Impact In Washington State, Sabrina Suen
Marital Disharmony: Examining The Adverse Spousal Testimonial Privilege And Its Impact In Washington State, Sabrina Suen
Washington Law Review
In Washington State, RCW 5.60.060(1) provides that “[a] spouse or domestic partner shall not be examined for or against his or her spouse or domestic partner, without the consent of the spouse or domestic partner.” This evidence rule, known as the adverse spousal testimonial privilege, allows a defendant to exclude witness testimony by their spouse under most circumstances. A product of common law tradition, this privilege stems from a time when the law treated women as chattel with no independent legal rights. Since Washington State codified the adverse spousal privilege, the United States Supreme Court amended the federal spousal testimonial …
The Dignitary Confrontation Clause, Erin Sheley
The Dignitary Confrontation Clause, Erin Sheley
Washington Law Review
For seventeen years, the Supreme Court’s Confrontation Clause jurisprudence has been confused and confusing. In Crawford v. Washington (2004), the Court overruled prior precedent and held that “testimonial” out-of-court statements could not be admitted at trial unless the defendant had an opportunity to cross-examine the declarant, even when the statement would be otherwise admissible as particularly reliable under an exception to the rule against hearsay. In a series of contradictory opinions over the next several years, the Court proceeded to expand and then seemingly roll back this holding, leading to widespread chaos in common types of cases, particularly those involving …
Due Process In Prison Disciplinary Hearings: How The “Some Evidence” Standard Of Proof Violates The Constitution, Emily Parker
Due Process In Prison Disciplinary Hearings: How The “Some Evidence” Standard Of Proof Violates The Constitution, Emily Parker
Washington Law Review
Prison disciplinary hearings have wide-reaching impacts on an incarcerated individual’s liberty. A sanction following a guilty finding is a consequence that stems from hearings and goes beyond mere punishment. Guilty findings for serious infractions, like a positive result on a drug test, can often result in a substantial increase in prison time. Before the government deprives an incarcerated individual of their liberty interest in a shorter sentence, it must provide minimum due process. However, an individual can be found guilty of serious infractions in Washington State prison disciplinary hearings under the “some evidence” standard of proof—a standard that allows for …
Limitations Of Washington Evidence Rule 413, Sarah Desautels
Limitations Of Washington Evidence Rule 413, Sarah Desautels
Washington Law Review
This Comment analyzes Washington State Evidence Rule 413 (ER 413). ER 413 renders evidence of the immigration status of criminal defendants, civil plaintiffs, and witnesses presumptively inadmissible at trial. The Washington State Supreme Court adopted ER413 in September 2018. It is the first of its kind in the nation. ER 413 provides a clear, uniform rule limiting the use of immigration evidence, an area where prior caselaw had created uncertainty. However, ER 413 falls short of its goal of promoting access to justice and protecting immigrants from jury bias without a supporting system that addresses (1) the dangers of implicit …
Regulating Bite Mark Evidence: Lesbian Vampires And Other Myths Of Forensic Odontology, Jennifer D. Oliva, Valena E. Beety
Regulating Bite Mark Evidence: Lesbian Vampires And Other Myths Of Forensic Odontology, Jennifer D. Oliva, Valena E. Beety
Washington Law Review
This is the third piece in a trilogy that examines and evaluates the standards that American courts apply to admit forensic “science” evidence proffered by prosecutors in criminal trials. The first two articles in the trilogy expose the criminal courts’ on-going practice of admitting false forensic evidence that is virtually always excluded in civil cases. They also advance a panoply of procedural and evidentiary solutions aimed at reforming this legally unviable discrepancy. Those solutions are court-centric insofar as they advocate for, among other things, open and early criminal discovery, pre-trial Daubert hearings to challenge evidence and experts, and court-appointment of …
Preserving Vawa's "Nonreport" Option: A Call For The Proper Storage Of Anonymous/Unreported Rape Kits, Gavin Keene
Preserving Vawa's "Nonreport" Option: A Call For The Proper Storage Of Anonymous/Unreported Rape Kits, Gavin Keene
Washington Law Review
The Violence Against Women Act (VAWA) requires participating states and the District of Columbia to pay for medical forensic exams for victims of rape and sexual assault, including the collection of evidence using “rape kits,” whether or not the victim chooses to pursue criminal charges. The chief statutory purpose of the requirement is to preserve evidence in the interest of justice without pressuring a traumatized victim to decide on the spot whether to activate a criminal investigation. Rape kits collected without an accompanying police report are called “anonymous rape kits,” “unreported rape kits,” or “Jane Doe rape kits.” This is …
The Legal Ethics Of Real Evidence: Of Child Porn On The Choirmaster's Computer And Bloody Knives Under The Stairs, Gregory C. Sisk
The Legal Ethics Of Real Evidence: Of Child Porn On The Choirmaster's Computer And Bloody Knives Under The Stairs, Gregory C. Sisk
Washington Law Review
With little guidance from the Model Rules of Professional Conduct and continuing confusion on professional obligations, questions about engagement with real evidence continue to bedevil criminal defense lawyers, incite prosecutors, generate disputes, and attract judicial attention. Where should we draw that line between what is demanded by the professional duties of zealous advocacy and client confidentiality and what constitutes obstruction of justice? When may a document or object that could conceivably be relevant in some future investigation or proceeding be destroyed, altered, or removed? May a criminal defense lawyer take possession of evidence of a crime for purposes of analysis, …
This Is Your Sword: How Damaging Are Prior Convictions To Plaintiffs In Civil Trials?, Kathryn Stanchi, Deirdre Bowen
This Is Your Sword: How Damaging Are Prior Convictions To Plaintiffs In Civil Trials?, Kathryn Stanchi, Deirdre Bowen
Washington Law Review
The conventional wisdom in law is that a prior conviction is one of the most powerful and damaging pieces of evidence that can be offered against a witness or party. In legal lore, prior convictions seriously undercut the credibility of the witness and can derail the outcome of a trial. This Article suggests that may not always be true. This Article details the results of an empirical study of juror decision-making that challenges the conventional wisdom about prior convictions. In our study, the prior conviction evidence did not have a direct impact on the outcome of the civil trial or …
Addressing The Costs And Comity Concerns Of International E-Discovery, John T. Yip
Addressing The Costs And Comity Concerns Of International E-Discovery, John T. Yip
Washington Law Review
The volume of electronically stored information (ESI) is expanding rapidly. Under the Federal Rules of Civil Procedure, litigants may request electronic discovery (ediscovery) of many different forms of ESI. In 1978, the U.S. Supreme Court held that the party responding to an e-discovery request presumptively pays all e-discovery costs, including the costs of preserving, producing, and reviewing the requested ESI. Therefore, the rapidly increasing volume of ESI has substantially increased the costs of e-discovery for producing parties. In the 2003 case, Zubulake v. UBS Warburg LLC, the U.S. District Court for the Southern District of New York established a …
Balancing Interests Under Washington's Statute Governing The Admissibility Of Extraneous Sex-Offense Evidence, Blythe Chandler
Balancing Interests Under Washington's Statute Governing The Admissibility Of Extraneous Sex-Offense Evidence, Blythe Chandler
Washington Law Review
American courts traditionally exclude evidence that a defendant has committed crimes other than the crime with which the defendant is charged. This rule, with exceptions, is codified as Federal Rule of Evidence 404(b) and Washington Evidence Rule 404(b). However, courts and legislatures have increasingly adopted the view that evidence of other sex offenses should be admissible in sex-offense prosecutions. The Washington State Legislature recently adopted a statute, RCW 10.58.090, which governs the admissibility of evidence of other sex offenses. This Comment argues that Washington courts should use precedent applying Rule 404(b) as a guide in applying robust Rule 403 balancing …
Swiss Cheese That's All Hole: How Using Reading Material To Prove Criminal Intent Threatens The Propensity Rule, Jessica Murphy
Swiss Cheese That's All Hole: How Using Reading Material To Prove Criminal Intent Threatens The Propensity Rule, Jessica Murphy
Washington Law Review
In United States v. Curtin, the Ninth Circuit, sitting en banc, held that Federal Rule of Evidence 404(b) permits a defendant’s reading material to be introduced as evidence of his intent to commit a crime. The decision expressly overruled Guam v. Shymanovitz, an earlier Ninth Circuit opinion that called the admissibility of reading material into question. This Note argues that the Curtin decision failed to appreciate the extent to which reading material may reveal only a defendant’s propensity to commit a charged crime, rather than his or her intent to do so. To reduce the possibility that impermissible …
Recordings, Transcripts, And Translations As Evidence, Clifford S. Fishman
Recordings, Transcripts, And Translations As Evidence, Clifford S. Fishman
Washington Law Review
Secretly recorded conversations often play a vital role in criminal trials. However, circumstances such as background noise, accidents, regional or national idioms, jargon, or code may make it difficult for a jury to hear or understand what was said—even if all participants were speaking English. Thus, a recording's value as evidence will often depend on whether an accurate transcript may be distributed to the jury. This Article discusses several legal issues, including: Who should prepare a transcript? What should it contain? How should its accuracy be determined, and by whom? Should the transcript be considered evidence, or only an "aid …
Repercussions Of Crawford V. Washington: A Child's Statement To A Washington State Child Protective Services Worker May Be Inadmissible, Heather L. Mckimmie
Repercussions Of Crawford V. Washington: A Child's Statement To A Washington State Child Protective Services Worker May Be Inadmissible, Heather L. Mckimmie
Washington Law Review
Before the landmark United States Supreme Court case of Crawford v. Washington, Washington State courts often admitted statements of unavailable alleged child abuse victims through the hearsay testimony of Washington State Child Protective Services (CPS) workers. In Crawford, the U.S. Supreme Court announced a new "testimonial" standard for the admissibility of out-of-court statements. The Court held that the Confrontation Clause of the Sixth Amendment bars testimonial out-of-court statements unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. The Court did not clearly define the term testimonial, which left the matter open …
Reverse Presumptions: Guillen V. Pierce County Disregards Reasonable Constitutional Interpretations Of 23 U.S.C. § 409, Megan Walseth
Reverse Presumptions: Guillen V. Pierce County Disregards Reasonable Constitutional Interpretations Of 23 U.S.C. § 409, Megan Walseth
Washington Law Review
To prove that dangerous roadways caused their traffic accidents, plaintiffs often seek discovery of highway information from state and local governments. Title 23 U.S.C. § 409 bars discovery of some of that information; it creates an evidentiary privilege for materials and data collected for certain federal highway safety funding programs. For example, state and local governments receiving funds through the federal hazard elimination program codified at 23 U.S.C. § 152 must maintain an engineering survey of all state public roads. Section 409, in turn, makes certain data and materials compiled or collected for § 152 exempt from discovery and inadmissible …
Fire Sale? The Admissibility Of Evidence Of Environmental Contamination To Determine Just Compensation In Washington Eminent Domain Proceedings, Paul W. Moomaw
Fire Sale? The Admissibility Of Evidence Of Environmental Contamination To Determine Just Compensation In Washington Eminent Domain Proceedings, Paul W. Moomaw
Washington Law Review
Jurisdictions across the United States are split on the issue of whether evidence of environmental contamination should be admissible to determine just compensation in an eminent domain proceeding. Jurisdictions that admit this evidence reason that environmental contamination is a property characteristic that necessarily affects the value of the property. Those that exclude the evidence cite procedural due process concerns and the risk of extra liability for the landowner. Washington's Model Toxics Control Act (MTCA) establishes a system of assigning liability and recovering cleanup costs for environmental contamination. No Washington court has addressed whether evidence of environmental contamination should be admissible …
Dna Typing: Emerging Or Neglected Issues, Edward J. Imwinkelried, D.H. Kaye
Dna Typing: Emerging Or Neglected Issues, Edward J. Imwinkelried, D.H. Kaye
Washington Law Review
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 …
Impeaching Lying Parties With Their Statements During Negotiation: Demysticizing The Public Policy Rationale Behind Evidence Rule 408 And The Mediation-Privilege Statutes, Lynne H. Rambo
Washington Law Review
Virtually all American jurisdictions have laws—either rules of evidence or mediation-privilege statutes or both—that exclude from evidence statements that parties make during negotiations and mediations. The legislatures (and sometimes courts) that have adopted these exclusionary rules have invoked a public policy rationale: that parties must be able to speak freely to settle disputes, and they will not speak freely if their statements during negotiation can later be admitted against them. This rationale is so widely revered that many courts have relied on it to prohibit the use of negotiation statements to impeach, even when the inconsistency of the negotiation statement …
One Crime, Many Convicted: Dissociative Identity Disorder And The Exclusion Of Expert Testimony In State V. Greene, Mary Eileen Crego
One Crime, Many Convicted: Dissociative Identity Disorder And The Exclusion Of Expert Testimony In State V. Greene, Mary Eileen Crego
Washington Law Review
In State v. Greene, the Supreme Court of Washington held that expert testimony about Dissociative Identity Disorder (DID) was not admissible to support an insanity or diminished-capacity defense. Even though the court acknowledged DID as a generally accepted medical disorder, the court reasoned that such testimony would not be helpful to the trier of fact, as required by Washington Evidence Rule (ER) 702, because the court has not established a specific standard for determining the legal responsibility of a defendant with multiple personalities. This Note argues that the Greene court had sufficient scientific evidence to establish a legal standard …
Beating Again And Again And Again: Why Washington Needs A New Rule Of Evidence Admitting Prior Acts Of Domestic Violence, Linell A. Letendre
Beating Again And Again And Again: Why Washington Needs A New Rule Of Evidence Admitting Prior Acts Of Domestic Violence, Linell A. Letendre
Washington Law Review
Batterers in Washington who use violence to control their intimate partners routinely avoid conviction and punishment due to the difficulties of prosecuting domestic violence cases. Prosecutors often face complex problems, such as recanting victims, lack of other witnesses, and juries inherently biased against battered women. Although some Washington prosecutors have found ways to introduce evidence of prior domestic violence in certain limited circumstances, Washington Rule of Evidence 404(b) generally precludes the use of evidence showing prior domestic violence. This Comment argues that this evidence rule prevents the admission of highly probative evidence of prior abuse against current or past victims …
Unconscious Bias And Self-Critical Analysis: The Case For A Qualified Evidentiary Equal Employment Opportunity Privilege, Deana A. Pollard
Unconscious Bias And Self-Critical Analysis: The Case For A Qualified Evidentiary Equal Employment Opportunity Privilege, Deana A. Pollard
Washington Law Review
Recent breakthroughs in social psychology have resulted in the ability to measure unconscious bias scientifically. Studies indicate that prejudiced responses are largely unconscious, the result of normal cognitive processing and stereotypical associations of which the prejudiced subject may be completely unaware. The studies also indicate that a subject's awareness of the discrepancy between her conscious, egalitarian value system and her unconscious prejudice is a critical step towards the convergence of her cognitive functioning and her egalitarian viewpoints. Antidiscrimination legislation requires a showing of intent to discriminate to obtain relief in all but a small percent of circumstances. The result is …
Novel Scientific Evidence After Reese V. Stroh: The Washington Supreme Court's Love Affair With Frye, Robert D. Leinbach
Novel Scientific Evidence After Reese V. Stroh: The Washington Supreme Court's Love Affair With Frye, Robert D. Leinbach
Washington Law Review
In Reese v. Stroh, the Washington Supreme Court upheld the use of the Frye test as a threshold inquiry in civil cases involving novel scientific evidence. By affirming the decision of the court of appeals, but not its reasoning, the Washington Supreme Court side-stepped the court of appeals's argument for adoption of the Daubert standard in civil cases analyzing ER 702. This Note examines the decision in Reese v. Stroh and concludes that the Washington Supreme Court failed to determine clearly the proper analysis of ER 702 in cases involving novel scientific evidence. It further agrees with Justice Johnson's …
Washington's Expansion Of The "Plan" Exception After State V. Lough, Jeannie Mayre Mar
Washington's Expansion Of The "Plan" Exception After State V. Lough, Jeannie Mayre Mar
Washington Law Review
In State v. Lough, the Washington Supreme Court ignored strong case law limiting the admission of an accused's prior misconduct under the plan exception to evidence rule 404(b) and upheld the admission of unproved wrongs against the accused. The plan exception to Washington Rule of Evidence 404(b) prohibits using misconduct evidence to show propensity, but admits such evidence if used to establish a defendant's overall design or plan to commit the charged offense. This Note analyzes the Washington Supreme Court decision to uphold admission of a defendant's uncharged misconduct under the plan exception. Moreover, this Note argues that the …
The Presumption Of Innocence Imperiled: The New Federal Rules Of Evidence 413-415 And The Use Of Other Sexual-Offense Evidence In Washington, Jeffrey G. Pickett
The Presumption Of Innocence Imperiled: The New Federal Rules Of Evidence 413-415 And The Use Of Other Sexual-Offense Evidence In Washington, Jeffrey G. Pickett
Washington Law Review
The U.S. Congress has provisionally enacted three new federal rules of evidence (FRE). In cases of sexual assault or child molestation, FRE 413-415 allow the use, for any relevant purpose, of sexual assault or child molestation evidence not charged in the indictment or information. The new rules would operate in contravention of the traditional prohibition against using evidence of other misconduct for the purpose of proving that the defendant acted in conformity with a particular character trait on the occasion in question. This Comment surveys the arguments for and against the proposed changes. It concludes that Washington should not elect …
The Admissibiity Of Inculpatory Statements In Washington Under The Rule For Declarations Against Interest After Williamson V. United States, Julianna Gortner
The Admissibiity Of Inculpatory Statements In Washington Under The Rule For Declarations Against Interest After Williamson V. United States, Julianna Gortner
Washington Law Review
Washington courts hold that where a statement by an unavailable declarant, offered in the trial of a third party inculpated by the statement, is predominantly disserving to the declarant's penal interest, the statement is admissible under the hearsay exception for declarations against interest. Federal courts have split on the admissibility of such declarations, with some courts holding that any non-disserving portions must be severed and excluded. In Williamson v. United States, the United States Supreme Court narrowed the scope of Federal Rule of Evidence 804(b)(3) on declarations against interest and held that only the individual portions of such statements that …
Toward Uniform Application Of A Federal Psychotherapist-Patient Privilege, Catherine M. Baytion
Toward Uniform Application Of A Federal Psychotherapist-Patient Privilege, Catherine M. Baytion
Washington Law Review
In federal courts, Federal Rule of Evidence 501 governs all privileges, including the psychotherapist-patient privilege. Unlike many state statutes that explicitly recognize the psychotherapist-patient privilege and define its scope through exceptions, Rule 501 merely directs courts to use their reason and experience to interpret common law principles. Under this vague standard, the federal circuits lack uniformity in their treatment of the psychotherapist-patient privilege. This Comment suggests that Congress should explicitly recognize the privilege and define its scope through exceptions. To support this conclusion, this Comment discusses the justifications for recognizing a psychotherapist-patient privilege, uses the paradigm of formal versus nonformal …
Out Of The Twilight Zone: The Implications Of Daubert V. Merrill Dow Pharmaceuticals, Inc., Diana K. Sheiness
Out Of The Twilight Zone: The Implications Of Daubert V. Merrill Dow Pharmaceuticals, Inc., Diana K. Sheiness
Washington Law Review
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court held that the Federal Rules of Evidence had not implicitly incorporated the general acceptance, or Frye, test for scientific evidence. Instead, the Court interpreted Rule 702 to mean that judges should admit challenged scientific testimony only after determining that its underlying method or theory is scientifically valid. This Note argues that the essence of the Daubert decision is that judges must ascertain whether or not the studies underlying proffered testimony have been performed in accordance with sound scientific principles. The Note analyzes several cases to illustrate appropriate and …
The Admissibility Of Dna Evidence In Washington After State V. Cauthron, Elizabeth A. Allen
The Admissibility Of Dna Evidence In Washington After State V. Cauthron, Elizabeth A. Allen
Washington Law Review
In State v. Cauthron, the Washington Supreme Court issued its first opinion concerning forensic DNA evidence. The court clearly held that the principles underlying DNA evidence and the restricted fragment length polymorphism (RFLP) method of DNA typing are generally accepted in the scientific community and are therefore admissible under the Frye test. The court refused to find that the trial court had properly admitted DNA evidence, however, because testimony that the suspect's DNA "matched" the perpetrator's was not supported by probability statistics. This Note demonstrates that the court was unclear in its discussion of when probability statistics meet the Frye …