Evidence Commons^™

Dickerson V. United States: The Case That Disappointed Miranda's Critics--And Then Its Supporters, Yale Kamisar

University of San Diego Public Law and Legal Theory Research Paper Series

It is difficult, if not impossible, to discuss Dickerson v. United States intelligently without discussing Miranda, whose constitutional status Dickerson reaffirmed (or, one might say, resuscitated). It is also difficult, if not impossible, to discuss the Dickerson case intelligently without discussing cases the Court has handed down in the five years since Dickerson was decided. The hard truth is that in those five years the reaffirmation of Miranda’s constitutional status has become less and less meaningful.

In this paper I want to focus on the Court’s characterization of statements elicited in violation of the Miranda warnings as not actually “coerced” …

Damaged Goods: Why, In Light Of The Supreme Court's Recent Punitive Damages Jurisprudence, Congress Must Amend The Federal Rules Of Evidence, Michael S. Vitale

Vanderbilt Law Review

Since the 1980s, a wide range of courts and commentators have expressed concern over large punitive damages awards handed out by civil juries against a wide array of tortfeasors. A late 2001 study revealed that from 1985 to 2001, eight multi-billion dollar punitive damages awards were granted, with four of them being handed down in the years 1999 to 2001 alone.' Not surprisingly, all but one of these verdicts were handed down against large corporations. Among the current members of the U.S. Supreme Court, Justice John Paul Stevens in particular has regularly noted the especially dangerous tendency the current punitive …

Tragedy Of The Scaffold, Tragedy Of The Trial: Tragedy, Representation Of The Public, Innermost Conviction, And Personal Judgments, Christian Biet

Cardozo Law Review

No abstract provided.

Securing A Journalist's Testimonial Privilege In The International Criminal Court, Anastasia Heeger

San Diego International Law Journal

This Article argues that given the unique and significant contribution of journalists to uncovering and documenting war crimes, the ICC should amend its evidentiary rules to recognize a qualified journalist's privilege. In doing so, the ICC should clearly identify who may benefit from such a privilege, clarify a procedure for balancing the need of reportorial testimony against prosecution and defense interests, and, lastly provide for mandatory consultations between the court and affected news organizations or journalists before allowing the issuance of a subpoena. Such clarity will benefit not only journalists working in war zones and the ICC, but will provide …

Holmes V. South Carolina: Brief Amicus Curiae Of Certain Professors Of Evidence Law In Support Of Petitioner, Samuel R. Gross

Appellate Briefs

This amicus curiae brief is submitted on behalf of Professors of Evidence Law at various United States Law Schools. Petitioner Bobby Lee Holmes and Respondent the State of South Carolina have consented to the filing of this brief.

Amici are professors of law with a particular interest in the application of state and federal rules of evidence. Their qualifications are set forth in the Appendix.

Petitioner was convicted of murder and sentenced to death. He proffered an abundance of evidence pointing to the guilt of another man, nearly all of which the trial court excluded. The South Carolina Supreme Court …

Can Judges Ignore Inadmissible Information? The Difficulty Of Deliberately Disregarding, Andrew J. Wistrich, Chris Guthrie, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Due process requires courts to make decisions based on the evidence before them without regard to information outside of the record. Skepticism about the ability of jurors to ignore inadmissible information is widespread. Empirical research confirms that this skepticism is well-founded. Many courts and commentators, however, assume that judges can accomplish what jurors cannot. This article reports the results of experiments we have conducted to determine whether judges can ignore inadmissible information. We found that the judges who participated in our experiments struggled to perform this challenging mental task. The judges had difficulty disregarding demands disclosed during a settlement conference, …

The Plight Of Putative Father: Public Policy V. Paternity Fraud, Maegan Padgett

West Virginia Law Review

No abstract provided.

Florida's Request For Admission Rule: 150 Years On The Road To Inconsistency, Ineffectiveness And Appellate Nullification, Mitchell J. Frank

Faculty Scholarship

No abstract provided.

Constitutional Law—The Fourth Amendment Challenge To Dna Sampling Of Arrestees Pursuant To The Justice For All Act Of 2004: A Proposed Modification To The Traditional Fourth Amendment Test Of Reasonableness, Kimberly A. Polanco

University of Arkansas at Little Rock Law Review

No abstract provided.

Long-Term Solutions For Children In The Child Welfare System: Families For Teens, Alexandra Lowe

Cardozo Public Law, Policy & Ethics Journal

The article advocates for the Families for Teens Initiative, which focuses on engaging teenagers in the foster care system to identify and connect with family resources that are often overlooked. The initiative aims to prevent poor outcomes such as homelessness and incarceration by emphasizing the importance of maintaining family connections and providing normal developmental opportunities for teens.

A Blow To Domestic Violence Victims: Applying The "Testimonial Statements" Test In Crawford V. Washington, Melissa Moody

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

No abstract provided.

Reenvisioning Law Through The Dna Lens, Edward K. Cheng

Vanderbilt Law School Faculty Publications

In recent times, no development has transformed the practice of criminal justice as much as DNA evidence. In little over fifteen years, DNA profiling has produced nothing short of a paradigm shift.1 For police and prosecutors, DNA has become a potent weapon for identifying and convicting criminals. Trace biological material left at a crime scene now provides critical evidence for generating leads through "cold searches" of DNA databases and for convicting defendants at trial. At the same time, for defense attorneys, DNA has become an invaluable tool for seeking exonerations, because just as DNA can link defendants to crimes, it …

Expert Testimony On Sexually Abused Child Syndrome In A Child Protective Proceeding: More Hurtful Than Helpful, Mary Ellen Reilly

Cardozo Public Law, Policy & Ethics Journal

The note argues that Sexually Abused Child Syndrome (SACS) testimony is unreliable and should not be admitted as corroborating evidence in child protective proceedings. It contends that SACS lacks scientific validity, is not recognized as a medical diagnosis, and fails to meet evidentiary standards for reliability. The author asserts that allowing SACS testimony violates due process rights and risks wrongful outcomes, advocating for stricter standards for expert testimony and alternative methods of substantiating abuse allegations.

Mitochondrial Dna: Emerging Legal Issues, Edward K. Cheng

Vanderbilt Law School Faculty Publications

This article will briefly survey some of the current and emerging legal issues surrounding mtDNA evidence. Parts I and II discuss basic evidentiary questions, including mtDNA's reliability and admissibility under Daubert as well as the potential problem of jury confusion regarding the probative value of mtDNA. Part III considers the broader potential of mtDNA to supplant microscopic hair analysis, a technique often criticized for its subjectivity and high error rate. Finally, Part IV explores the unique privacy concerns raised by the maternal inheritance of mtDNA, specifically in the context of DNA databanks.

Does Frye Or Daubert Matter? A Study Of Scientific Admissibility Standards, Edward K. Cheng, Albert Yoon

Vanderbilt Law School Faculty Publications

Nearly every treatment of scientific evidence begins with a faithful comparison between the Frye and Daubert standards. Since 1993, jurists and legal scholars have spiritedly debated which standard is preferable and whether particular states should adopt one standard or the other. These efforts beg the question: Does a state's choice of scientific admissibility standard matter? A growing number of scholars suspect that the answer is no. Under this theory, the import of the Supreme Court's Daubert decision was not in its doctrinal standard, but rather in the general consciousness it raised about the problems of unreliable scientific evidence. This Article …

Under-Intervention Versus Over-Intervention, David Lansner

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Cross-Examining The Brain: A Legal Analysis Of Neural Imaging For Credibility Impeachment, Charles N. W. Keckler

ExpressO

The last decade has seen remarkable process in understanding ongoing psychological processes at the neurobiological level, progress that has been driven technologically by the spread of functional neuroimaging devices, especially magnetic resonance imaging, that have become the research tools of a theoretically sophisticated cognitive neuroscience. As this research turns to specification of the mental processes involved in interpersonal deception, the potential evidentiary use of material produced by devices for detecting deception, long stymied by the conceptual and legal limitations of the polygraph, must be re-examined. Although studies in this area are preliminary, and I conclude they have not yet satisfied …

Summary Of Rhymes V. State, 121 Nev. Adv. Op. 4 , Patrick Murch

Nevada Supreme Court Summaries

Appeal from a judgment of conviction, pursuant to a jury verdict, on charges of lewdness with a minor under the age of fourteen.

Economic Authority And The Limits Of Expertise In Antitrust Cases, John E. Lopatka, William H. Page

UF Law Faculty Publications

In antitrust litigation, the factual complexity and economic nature of the issues involved require the presentation of economic expert testimony in all but a few cases. This dependence on economics has increased in recent years because of the courts' narrowing of per se rules of illegality and the courts' expansion of certain areas of factual inquiry. At the same time, however, courts have limited the scope of allowable expert testimony through the methodological strictures of Daubert and its progeny and through heightened sufficiency requirements. In this Article, Professors Page and Lopatka make four important points about these judicially imposed constraints …

Aedpa Deference And The Undeveloped State Factual Record: Monroe V. Angelone And New Evidence, Rachel E. Wheeler

William & Mary Law Review

No abstract provided.

Can Judges Ignore Inadmissible Information? The Difficulty Of Deliberately Disregarding, Chris Guthrie, Andrew J. Wistrich

Vanderbilt Law School Faculty Publications

Due process requires courts to make decisions based on the evidence before them without regard to information outside of the record. Skepticism about the ability of jurors to ignore inadmissible information is widespread. Empirical research confirms that this skepticism is well founded. Many courts and commentators, however, assume that judges can accomplish what jurors cannot. This Article reports the results of experiments we have conducted to determine whether judges can ignore inadmissible information. We found that the judges who participated in our experiments struggled to perform this challenging mental task. The judges had difficulty disregarding demands disclosed during a settlement …

Toward A New Theory Of Notice And Deterrence, Dru Stevenson

Cardozo Law Review

No abstract provided.

Cross-Examining The Brain: A Legal Analysis Of Neural Imaging For Credibility Impeachment, Charles N. W. Keckler

George Mason University School of Law Working Papers Series

The last decade has seen remarkable process in understanding ongoing psychological processes at the neurobiological level, progress that has been driven technologically by the spread of functional neuroimaging devices, especially magnetic resonance imaging, that have become the research tools of a theoretically sophisticated cognitive neuroscience. As this research turns to specification of the mental processes involved in interpersonal deception, the potential evidentiary use of material produced by devices for detecting deception, long stymied by the conceptual and legal limitations of the polygraph, must be re-examined. Although studies in this area are preliminary, and I conclude they have not yet satisfied …

The Best Scientific Evidence Available: The Whaling Moratorium And Divergent Interpretations Of Science, A. W. Harris

William & Mary Environmental Law and Policy Review

No abstract provided.

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 …

Crawford V. Washington: A Small Advantage For Criminal Defense In Cases Where Prosecution Seeks To Introduce Hearsay Evidence, Jason W. Eldridge

William Mitchell Law Review

This article will examine the Crawford holding and its effects on hearsay law in criminal trials in Minnesota. First, it will attempt to explain the Crawford holding and the Supreme Court’s analysis. Next, it will examine Crawford’s general effect on the Minnesota Rules of Evidence concerning hearsay. Then, this article will consider Crawford’s effect upon criminal cases and some of the arguments it presents for criminal defense attorneys and prosecutors. Finally, this article will conclude that the Crawford decision is a small boon for criminal defense attorneys.

Is Poetry A War Crime? Reckoning For Radovan Karadzic The Poet-Warrior, Jay Surdukowski

Michigan Journal of International Law

This Note will suggest that the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY) can use Karadzic's texts and affectations to warrior poetry in the pretrial brief and in admitted evidence, if and when Karadzic ultimately appears for trial. The violent nationalism of radio broadcasts, political journals, speeches, interviews, and manifestos have been fair game for the Office of the Prosecutor to make their cases in the last decade in both the Yugoslavia and Rwanda Tribunals. Why should poetry, perhaps the most powerful maker of myth and in the Yugoslavia context, a great mover …

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.

Rules Of Or Substantive Law: Who Controls An Individual's Right To Choose A Lawyer In Today's Corporate Environment, 38 J. Marshall L. Rev. 1265 (2005), Joan Colson

UIC Law Review

No abstract provided.