Evidence Commons^™

Summary Of City Of Las Vegas V. Walsh, 121 Nev. Adv. Op. 85, 124 P.3d 203, Laura Deeter

Nevada Supreme Court Summaries

This case analyzes the scope of NRS 50.315(4), which allows the submission of an affidavit to prove specific facts about blood testing by experts. The scope of the affidavit was challenged as well as the Defendant’s Sixth Amendment right to confront witnesses against him.

Child's Play: Avoiding The Pitfalls Of Crawford V. Washington In Child Abuse Prosecution, Matthew M. Staab

West Virginia Law Review

No abstract provided.

Evidence, Marc T. Treadwell

Mercer Law Review

During its 2005 session, the Georgia General Assembly passed legislation, commonly known as Senate Bill 3, that will, if upheld by the courts, dramatically impact Georgia's civil justice system. Two provisions of Senate Bill 3 will change Georgia evidence law. The Official Code of Georgia Annotated ("O.C.G.A.") section 24-9-67.1(f), discussed in more detail below, purports to adopt Federal Rule of Evidence 702, the United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. , and create special rules for expert testimony in medical negligence actions. A new rule for the admission of mistake or error by medical providers …

Holmes V. South Carolina: Brief Amicus Curiae Of Forty Professors Of Evidence Law In Support Of Petitioner, Richard D. Friedman, Samuel R. Gross, Richard O. Lempert, David A. Moran

Appellate Briefs

This brief amicus curiae is submitted on behalf of forty professors of law who teach the law of evidence at various law schools across the United States. They are identified by name and position in the Appendix to this brief. Petitioner Bobby Lee Holmes and Respondent the State of South Carolina have consented to the filing of this brief.

Amici teach, study and write about the law of evidence as applied by the state and federal courts of the United States. They have a professional interest in the issues presented by this case.

Petitioner Bobby Lee Holmes was convicted of …

Detection Avoidance, Chris William Sanchirico

ExpressO

In practice, the problem of law enforcement is half a matter of what the government does to catch violators and half a matter of what violators do to avoid getting caught. In the theory of law enforcement, however, although the state’s efforts at "detection" play a decisive role, offenders’ efforts at "detection avoidance" are largely ignored. Always problematic, this imbalance has become critical in recent years as episodes of corporate misconduct spur new interest in punishing process crimes like obstruction of justice and perjury. This article adds detection avoidance to the existing theoretical frame with an eye toward informing the …

Criminal Law And Procedure, Marla G. Decker, Stephen R. Mccullough

University of Richmond Law Review

This article examines the most significant cases from the Supreme Court of Virginia and the Court of Appeals of Virginia over the past year. The article also outlines some of the most consequential changes to the law enacted by the Virginia General Assembly during the 2005 Session in the field of criminal law and procedure.

The Admissibility Of Expert Testimony In North Carolina After Howerton: Reconciling The Ruling With The Rules Of Evidence, William A. Woodruff

Campbell Law Review

Part II of this paper briefly describes the federal rule in order to appreciate the context of the North Carolina approach to expert testimony. Part III traces the development of North Carolina's expert testimony law from the common law to codification in the rules of evidence through the decision in Howerton and reveals that the North Carolina test for reliability is, essentially, an evaluation of the credibility of the testifying expert. Part IV argues that Howerton's adoption of a less stringent and credibility-based substantive test for reliability but retention of the Daubert procedural "gatekeeping" role of the judge in determining …

Post-Crawford: Time To Liberalize The Substantive Admissibility Of A Testifying Witness's Prior Consistent Statements, Lynn Mclain

All Faculty Scholarship

The United States Supreme Court's 1995 decision in Tome v. United States has read Federal Rule of Evidence 801(d)(1)(B) to prevent the prosecution's offering a child abuse victim's prior consistent statements as substantive evidence. As a result of that decision, the statements will also be inadmissible even for the limited purpose of helping to evaluate the credibility of a child, if there is a serious risk that the out-of-court statements would be used on the issue of guilt or innocence.

Moreover, after the Court's March 2004 decision in Crawford v. Washington, which redesigned the landscape of Confrontation Clause analysis, other …

When Mohammed Goes To The Mountain: The Evidentiary Value Of A View, Layne S. Keele

Indiana Law Journal

No abstract provided.

Using Suppression Hearing Testimony To Prove Good Faith Under United States V. Leon, John E. Taylor

Law Faculty Scholarship

No abstract provided.

A Shock To The System: Analyzing The Conflict Among Courts Over Whether And When Excited Utterances May Follow Subsequent Startling Occurrences In Rape And Sexual Assault Cases, Colin Miller

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

The Enterprise Model Of Managing Conflicts Of Interest In The Tripartite Insurance Defense Relationship, Aviva Abramovsky

Cardozo Law Review

No abstract provided.

Numerical Comparative Law: Do We Need Statistical Evidence In Law In Order To Reduce Complexity?, Mathias M. Siems

Cardozo Journal of International and Comparative Law

The article explores the use of numerical methods in comparative law, questioning whether statistical approaches can effectively simplify legal complexity without oversimplification. It examines both the potential benefits and drawbacks of quantifying legal systems, arguing that while numerical methods can enhance practical utility, they must be used cautiously to avoid neglecting legal complexity and contextual factors.

Howerton V. Arai Helmet, Ltd. Last Dance With The Daubert-Kumho Decisions: One Step Forward From Two Steps Back, Lisa Alumbaugh Kamarchik

North Carolina Central Law Review

No abstract provided.

Testing Jury Reforms, Valerie P. Hans, B. Michael Dann, David H. Kaye, Erin J. Farley, Stephanie Albertson

Cornell Law Faculty Publications

DNA evidence has become a key law enforcement tool and is increasingly presented in criminal trials in Delaware and elsewhere. The integrity of the criminal trial process turns upon the jury's ability to understand DNA evidence and to evaluate properly the testimony of experts. How well do they do? Can we assist them in the process?

"Electronic Fingerprints": Doing Away With The Conception Of Computer-Generated Records As Hearsay, Adam Wolfson

Michigan Law Review

One night, in the hours just before daybreak, the computer servers at Acme Corporation's headquarters quietly hum in the silence of the office's darkened hallways. Suddenly, they waken to life and begin haphazardly sifting through their files. Several states away, a hacker sits in his room, searching through the mainframe via an internet connection. His attack is quick-lasting only a short five minutes-but the evidence of invasion is apparent to Acme's IT employees when they come in to work the next morning. Nearly a year later, federal prosecutors bring suit in the federal district court against the person they believe …

Furthering Consumer Safety Of Medical Devices: The Necessity Of A Device-Specific State Law As Required For Express Preemption Under The Mda, Rachel Mervis

Cardozo Law Review

No abstract provided.

The Accuracy And Manipulability Of Lost Profits Damages Calculations: Should The Trier Of Fact Be "Reasonably Certain"?, Jonathan T. Tomlin, David Merrell

ExpressO

The accuracy and manipulability of calculations for lost profits damages are critical determinants of the ability of harmed parties to receive just compensation in a wide range of legal cases including antitrust, fraud, false advertising, intellectual property infringement, and breach of contract. They are also important determinants of the deterrent effects of the law. Using a sample of over 5,000 U.S. firms, we show that simple damages methods are capable of being substantially inaccurate. We also show that damages methods in general are highly susceptible to manipulation. In the absence of reasonable justifications for why particular data sets and methods …

Taking Facts Seriously–Again, William Twining

Journal of Legal Education

No abstract provided.

The New Black's, Peter Tiersma

Journal of Legal Education

No abstract provided.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

True Lies: The Constitutional And Evidentiary Bases For Admitting Prior False Accusation Evidence In Sexual Assault Prosecutions, Jules Epstein

ExpressO

The admission of false accusation evidence in sexual assault prosecutions has been ruled on inconsistently by courts nationally. This article identifies the constitutional bases for admitting false accusation evidence as both impeachment and substantive (non-character) proof, and re-focuses Confrontation Clause analysis post-Crawford on the scope of the cross-examination right; offers a definition for what constitutes a false accusation and the level of proof requisite to its admission; and addresses social and policy concerns attendant to its presentation.

Interdisciplinary Trends In Evidence Scholarship, Roger C. Park, Michael J. Saks

ExpressO

Abstract In recent decades, evidence scholarship published in leading law reviews has become markedly interdisciplinary, while treatises and texts continue to fill the need for doctrinal analysis. The authors describe this trend and set forth its recent history. They review and critique scholarship that applies concepts and insights from psychology, probability theory, philosophy, feminism, and economics to the law of evidence. They also comment on the pitfalls, benefits and prospects of interdisciplinary evidence scholarship

Summary Of Bass-Davis V. Davis, 122 Nev. Adv. Op. 39, Charles R. Cordova, Jr.

Nevada Supreme Court Summaries

No abstract provided.

Learning The Wrong Lessons From "An American Tragedy": A Critique Of The Berger-Twerski Informed Choice Proposal, David E. Bernstein

George Mason University School of Law Working Papers Series

This paper is a critique of Margaret Berger and Aaron Twerski, “Uncertainty and Informed Choice: Unmasking Daubert”, forthcoming the Michigan Law Review. Berger and Twerski propose that courts recognize a cause of action that would allow plaintiffs who claim injury from pharmaceutical products, but who do not have sufficient evidence to prove causation, to recover damages for deprivation of informed choice. Berger and Twerski claim inspiration from the litigation over allegations that the morning sickness drug Bendectin caused birth defects. Considering the criteria Berger and Twerski suggest for their proposed cause of action in the context of Bendectin, it appears …

Overenforcement, Alex Stein, Richard Bierschbach

Faculty Scholarship

No abstract provided.

Evidence, Marc T. Treadwell

Mercer Law Review

This year's survey must begin, as have most recent surveys, with a lament over the decreasing number of noteworthy Eleventh Circuit decisions addressing evidentiary issues. In stark contrast to the days when the Eleventh Circuit rigorously examined district court evidentiary decisions and freely reversed those decisions, the Eleventh Circuit now studiously defers to district court judges. The abuse of discretion standard, which has always been the standard of review of a district court's evidentiary rulings, has become the standard of review in practice as well as in name.

Not "Voluntary" But Still Reasonable: A New Paradigm For Understanding The Consent Searches Doctrine, Ric Simmons

Indiana Law Journal

No abstract provided.

In Search Of A Theory Of Public Memory: The State, The Individual, And Marcel Proust, Brian F. Havel

Indiana Law Journal

This Article posits the existence and pervasiveness of an official public (or State) memory that is primarily constructed using public law devices and statements of official policy. While official public memory serves the purposes of social control and stability, it also seeks to mask contestation and is, accordingly, neither complete nor authentic. Using philosophical, scientific, and literary sources, this Article demonstrates how the affective (emotional) memory that is unique to individuals creates a permanent potential for contestation and authenticity and therefore sets a natural conceptual limit to the power of officially managed memory to contrive the past. To help establish …

Bayes' Law, Sequential Uncertainties, And Evidence Of Causation In Toxic Tort Cases, Neal C. Stout, Peter A. Valberg

University of Michigan Journal of Law Reform

Judges are the gatekeepers of evidence. Arguably, the most difficult duty for a judicial gatekeeper is to screen the reliability of expert opinions in scientific fields such as medicine that are beyond the ken of most judges. Yet, judges have a duty to scrutinize such expert opinion evidence to determine its reliability and admissibility. In toxic tort cases, the issue of causation-whether the alleged exposures actually caused the plaintiffs injury-is nearly always the central dispute, and determining admissibility of expert causation opinion is a daunting challenge for most judges. We present a comprehensive review of the courts' struggles with the …