Evidence Commons^™

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

Book Chapters

It is difficult, if not impossible, to discuss Dickerson1 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 chapter I focus on the Court's characterization of statements elicited in violation of the Miranda warnings as not actually "coerced" or "compelled" but obtained merely …

Using Graphics To Teach Evidence, Kevin C. Mcmunigal

Faculty Publications

As an Assistant United States Attorney in the general crimes unit of a metropolitan United States Attorney's Office, I regularly tried a variety of cases ranging from bank robberies and drug offenses to white collar crimes. Regardless of the type of crime, I frequently found various types of graphics useful in presenting the case. Examples included a chart providing a point by point comparison of modus operandi in two armed bank robberies and a map of the scene of a controlled purchase of cocaine showing the locations and movements of multiple defendants, an informant, and federal agents. Such graphics helped …

Expertise And Instinct In The Assessment Of Testamentary Capacity, Pamela Champine

Villanova Law Review (1956 - )

No abstract provided.

I Am Certain He Is The Man...I Think, Tim Harris

The Modern American

No abstract provided.

Clifford V. Commonwealth: Admission Of Racial Voice Identification Testimony, Regressive Or Progressive?, D. Christopher Robinson

Kentucky Law Journal

No abstract provided.

Confidentiality In Arbitration: Beyond The Myth, Richard C. Reuben

Faculty Publications

Many people assume that arbitration is private and confidential. But is that assumption accurate? This article is the first to explore that question in the important context of whether arbitration communications can be discovered and admitted into evidence in other legal proceedings - a question that is just beginning to show up in the cases. It first surveys the federal and state statutory and case law, finding that arbitration communications in fact are generally discoverable and admissible. It then considers the normative desirability of discovering and admitting arbitration communications evidence, concluding that the free discovery and admissibility of arbitration communications …

Procuring The Right To An Unfair Trial: Federal Rule Of Evidence 804(B)(6) And The Due Process Implications Of The Rule's Failure To Require Standards Of Reliability For Admissible Evidence, Kelly Rutan

American University Law Review

This Comment argues that though the doctrine of forfeiture by wrongdoing allows a court to forfeit both a defendant’s right to object to the admission of hearsay statements and the right of confrontation, the current state of the law requires all out-of-court statements admitted under Rule 804(b)(6) to possess some level of reliability in order to satisfy due process. Part I of this Comment discusses the doctrine of forfeiture by wrongdoing, the courts’ treatment of this principle prior to 1997, and its codification into the Federal Rules of Evidence. Part II looks at Confrontation Clause issues unique to hearsay exceptions …

From Undermining Child Protection Statutes To Creating Exceptions To Prohibitions Against Racial Discrimination In Public Accommodations: The Unsettling Consequences Of Mischaracterizing The Police Reporting Privilege, Peter Zablotsky

Scholarly Works

No abstract provided.

Admissibility Of Co-Conspirator Statements In A Post-Crawford World, Michael L. Seigel, Daniel Weisman

UF Law Faculty Publications

This Article takes the position that co-conspirator statements must be examined on a case-by-case basis to determine whether they are testimonial and thus subject to exclusion under the Confrontation Clause. Further, in light of the fact that the author of the majority opinions in Crawford and Davis was Justice Antonin Scalia, this Article examines whether interpreting the Sixth Amendment as a bar to the admission of certain coconspirator statements would violate an originalist interpretation of that provision. The conclusion reached is that it would not. In the current era of ever-narrowing rights for criminal defendants, reaffirming the law's commitment to …

Dna In The Legal System: The Benefits Are Clear, The Problems Aren't Always, Jason Borenstein

Cardozo Public Law, Policy & Ethics Journal

The article discusses the dual nature of DNA technology in the criminal justice system, highlighting its significant benefits, such as exonerating the wrongly convicted and solving cold cases, while also addressing its limitations and challenges. It emphasizes that DNA evidence, while powerful, is not infallible and should not overshadow other forms of evidence. The author underscores the need for cautious use of DNA evidence, proper legal standards, and addressing human fallibility to ensure justice.

Behavioral Genetics Research And Criminal Dna Databanks, David H. Kaye

Faculty Scholarship

This article examines the current concerns about whether DNA databases may be used for actions other than to apprehend criminals, such as genetic research, in particular, searching for a "crime gene". Part II considers the perspective that these databases may be useful for research. The information within a DNA sample consists of a limited number of DNA base-pair variations, which are important to identification, but not necessarily to genetic research. However, while it may be difficult to conduct genetic research, it is not impossible. Part III examines state and federal database legislation. There are examples of three states' statutes and …

The Impact Of The Proposed Federal E-Discovery Rules, Thomas Y. Allman

Richmond Journal of Law & Technology

Because of a conviction that e-discovery presents unique issues requiring uniform national rules, the Judicial Conference of the United States (“Judicial Conference”) has recommended and the Supreme Court has approved a number of amendments to the Federal Rules of Civil Procedure (“Proposed Rules”), which are scheduled to go into effect at the end of 2006.

A Duty Everlasting: The Perils Of Applying Traditional Doctrines Of Spoliation To Electronic Discovery, Michael R. Nelson, Mark H. Rosenberg

Richmond Journal of Law & Technology

Amendments to the Federal Rules of Civil Procedure regarding electronic discovery are expected to take effect on December 1, 2006. These amendments are designed to alleviate the burden, expense and uncertainty that has resulted from the application of traditional discovery principles in the electronic age. These principles worked well in an era where discovery was primarily limited to the production of paper documentation, but have proved unworkable when applied to the discovery of electronic data, particularly in the “corporate world,” where even the most routine business discussions are captured in electronic format.5

Shifting Burdens And Concealing Electronic Evidence: Discovery In The Digital Era, Rebecca Rockwood

Richmond Journal of Law & Technology

In the twenty-first century, persons involved in the legal profession will be forced to confront technological issues. Computers and technology have pervaded every aspect of society, and the legal system is no exception. The discovery process is a dramatic example of how lawyers and courts strain to keep up with technological advances. Traditional discovery practices have been severely overhauled as electronic information becomes increasingly prevalent. What was once a simple discovery request can now become an overwhelming task, as defendants must wade through a plethora of electronic documents in an attempt to comply with the court’s discovery orders.

Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Neal H. Lewis

Richmond Journal of Law & Technology

Welcome to the fourth issue and final of the Richmond Journal of Law & Technology for the 2005-2006 academic year. Volume 12, Issue 4 is the second publication of the Journal’s Annual Survey on Electronic Discovery. The topic of Electronic Discovery is particularly relevant considering the impending applicability of the proposed amendments to the Federal Rules of Civil Procedure. The Annual Survey Editor has worked extensively to bring together different commentary on Electronic Discovery.

Waiving The Privilege In A Storm Of Data: An Argument For Uniformity And Rationality In Dealing With The Inadvertent Production Of Privileged Materials In The Age Of Electronically Stored Information, Dennis R. Kiker

Richmond Journal of Law & Technology

At the point where one of the most venerable principles of common law and the reality of modern information management collide, even the most diligent attorneys may become victims of the resulting fallout.

Confrontation Clause And Testimonial Evidence: After Two Supreme Court Decisions, Standard Remains Unclear., Alan Raphael

Faculty Publications & Other Works

No abstract provided.

Filmmaking In The Precinct House And The Genre Of Documentary Film, Jessica Silbey

Faculty Scholarship

This Article explores side-by-side two contemporary and related film trends: the recent popular enthusiasm over the previously arty documentary film and the mandatory filming of custodial interrogations and confessions.

The history and criticism of documentary film, indeed contemporary movie-going, understands the documentary genre as political and social advocacy (recent examples are Michael Moore's Farenheit 9/11 and Errol Morris's Fog of War). Judges, advocates, and legislatures, however, assume that films of custodial interrogations and confessions reveal a truth and lack a distorting point of view. As this Article explains, the trend at law, although aimed at furthering venerable criminal justice principles, …

Teaching The Rules Of "Truth", Jane H. Aiken

Georgetown Law Faculty Publications and Other Works

This Essay offers a few examples of ways in which Evidence professors can engage students in critical analysis of how deeply a point of view can influence the way the Rules apply. My hope is that through this understanding the students will no longer think of the Federal Rules of Evidence as a neutral body of procedural rules that if faithfully applied will result in “truth.” I believe this insight is one of the most critical that a law student can gain in law school. It will make students more thoughtful in their analysis and application of the Rules, but …

Videotaping Investigative Interviews Of Children In Cases Of Child Sexual Abuse: One Community's Approach, Frank E. Vandervort

Articles

Legal scholars have long debated the efficacy and necessity of videotaping investigative interviews with children when allegations of child sexual abuse have surfaced. This debate has been advanced from the perspectives of adversaries in the criminal justice system, prosecutors and defense advocates. Absent from this debate has been the perspective of the broader community. This debate has failed to consider how other investigative tools might be used in conjunction with videotaping to advance the interests of the community. Moreover, the debate about videotaping has taken place with little actual data. This Article seeks to accomplish two goals. First, it seeks …

Improving Criminal Jury Decision Making After The Blakely Revolution, J. J. Prescott, Sonja B. Starr

Articles

The shift in sentencing fact-finding responsibility triggered in many states by Blakely v. Washington may dramatically change the complexity and type of questions that juries will be required to answer. Among the most important challenges confronting legislatures now debating the future of their sentencing regimes is whether juries are prepared to handle this new responsibility effectively - and, if not, what can be done about it. Yet neither scholars addressing the impact of Blakely nor advocates of jury reform have seriously explored these questions. Nonetheless, a number of limitations on juror decision making seriously threaten the accuracy of verdicts in …

We Really (For The Most Part) Mean It!, Richard D. Friedman

Articles

I closed my petition for certiorari in Hammon v. Indiana by declaring, “ ‘We really mean it!’ is the message that lower courts need to hear, and that decision of this case can send.” The prior year, Crawford v. Washington had transformed the law of the Confrontation Clause, holding that an out-ofcourt statement that is testimonial in nature may be admitted against an accused only if the maker of the statement is unavailable and the accused has had an opportunity to cross-examine her. But Crawford deliberately left undetermined what the term “testimonial” meant. Many lower courts gave it a grudging …

The Trial Of Bigger Thomas: Race, Gender, And Trespass, Bennett Capers

Faculty Scholarship

No abstract provided.

Police Can Be More Aggressive When Gathering Evidence, Court Says, Tim Kerrigan

Public Interest Law Reporter

No abstract provided.

Where Does Blaming Come From?, Lawrence Solan

Faculty Scholarship

No abstract provided.

"Particular Intentions": The Hillmon Case And The Supreme Court, Marianne Wesson

Publications

The case of Mutual Life Insurance Company v. Hillmon is one of the most influential decisions in the law of evidence. Decided by the Supreme Court in 1892, it invented an exception to the hearsay rule for statements encompassing the intentions of the declarant. But this exception seems not to rest on any plausible theory of the categorical reliability of such statements. This article suggests that the case turned instead on the Court's attachment to a particular narrative about the events that gave rise to the case, events that produced a corpse of disputed identity. The author's investigations into newspaper …

Issues In Article Iii Courts, Debra A. Livingston

Faculty Scholarship

Cases implicating classified information can pose difficult legal issues for Article III courts, and these issues may well grow more complicated and arise more frequently as the global war on terror continues. The manner in which these issues are resolved has profound implications for the national security, for the procedural rights of litigants, and for the public's ability to scrutinize legal proceedings. Indeed, the expanded use of secret evidence in Article III courts may raise questions about the very character of the courts themselves. Is there a point at which the demands placed upon these courts, pushing them in the …

The Electronic Recording Of Criminal Interrogations, Roberto Iraola

University of Richmond Law Review

Should law enforcement officers be required to record, by video or audiotape, custodial interrogations of suspects? If so, how much, the entire interrogation or just the confession? Many prosecutors and police departments maintain that a recording requirement will hamper law enforcement and discourage suspects from talking. Proponents of this measure argue that the recording of interrogations protects against false confessions, augments the effective administration of justice, and serves to improve the relationship between the public and the police.

This article generally examines the developing case law on this question. Because of the incriminating nature of confessions, the article, by way …

The Priestly Class: Reflections On A Journalist's Privilege, William E. Lee

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Leakers, Bloggers, And Fourth Estate Inmates: The Misguided Pursuit Of A Reporter's Privilege, Randall D. Eliason

Cardozo Arts & Entertainment Law Journal

No abstract provided.