Evidence Commons^™

The Right To Silence Helps The Innocent: A Response To Critics, Alex Stein

Faculty Scholarship

No abstract provided.

Self-Incrimination Doctrine Is Dead; Long Live Self-Incrimination Doctrine: Confessions, Scientific Evidence, And The Anxieties Of The Liberal State, Kenworthey Bilz

Cardozo Law Review

Confessions have historically been the most compelling evidence the state could offer at a criminal trial. However, improvements in forensic technologies have led to increased use of scientific evidence, such as DNA typing, videotapes, pattern-recognition software, location tracking devices, and the like, with very impressive rates of reliability. The reliability of these methods has become so impressive, in fact, that it far outstrips confessions. This should lead to a reduced reliance on confessions (and other nonscientific evidence, such as eyewitness identifications) over time. However, this does not mean that the doctrine of self-incrimination, which regulates the acquisition and use of …

Corporate Confessions, Brandon L. Garrett

Cardozo Law Review

In corporate crime investigations, when prosecutors pursue charges against both employees and corporations, confessions raise several novel questions without clear answers in constitutional criminal procedure. First, corporations confess. The firm, a target of a criminal investigation, may itself admit to crimes by employees as part of a settlement agreement with prosecutors. While useful to study in their impact and form, as a constitutional matter such confessions can not be coerced, the Supreme Court has adopted a "collective entity rule" that corporate persons may not invoke Fifth Amendment privilege. Second, before itself confessing, the firm may encourage employees to provide statements …

Evidence, Marc T. Treadwell

Mercer Law Review

The most significant news during the current survey period, as in the past several survey periods, continued to be the judiciary's struggles with "tort reform" legislation enacted by the Georgia General Assembly in 2005, most notably Official Code of Georgia Annotated (O.C.G.A.) § 24-9-67.1 which purports to adopt, more or less, the United States Supreme Court's decision in Daubert v. Merrell-Dow Pharmaceuticals, Inc. If the Daubert decisions discussed in this survey are any indication, Georgia's appellate courts are far from reaching a consensus on the proper application and interpretation of Georgia's Daubert statute.

How The Courts Opened The Door To Impeaching Criminal Defendants With Prior Convictions, Jeffrey Bellin

Vanderbilt Law School Faculty Publications

This Article spotlights the flawed analytical framework at the heart of the federal courts' approach to one of the most controversial trial practices in American criminal jurisprudence - the admission of prior convictions to impeach the credibility of defendants who testify. As the Article explains, the flawed approach is a byproduct of the courts' reliance on a five-factor analytical framework to implement the governing legal standard enacted by Congress in Federal Rule of Evidence 609. Tracing the evolution of the five-factor framework from its roots in pre-Rule 609 case law, the Article demonstrates that the courts' reinterpretation of the framework …

Toward Ethical Plea Bargaining, Erica J. Hashimoto

Scholarly Works

Defendants in criminal cases are overwhelmingly more likely to plead guilty than to go to trial. Presumably, at least a part of the reason that most of them do so is that it is in their interest to plead guilty, i.e., they will receive a more favorable outcome if they plead guilty than if they go to trial. The extent to which pleas reflect fair or rational compromises in practice, however, depends upon a variety of factors, including the amount of information each of the parties has about the case. Some level of informational symmetry therefore is critical to the …

The Confessional Penalty, Talia Fisher, Issachar Rosen-Zvi

Cardozo Law Review

No abstract provided.

Deregulating Guilt: The Information Culture Of The Criminal System, Alexandra Natapoff

Cardozo Law Review

The criminal system has an uneasy relationship with information. On the one hand, the criminal process is centrally defined by stringent evidentiary and information rules and a commitment to public transparency. On the other, largely due to the dominance of plea bargaining, criminal liability is determined by all sorts of unregulated, non-public information that never pass through the quality control of evidentiary, discovery, or other criminal procedure restrictions. The result is a process that generates determinations of liability that are often unmoored from systemic information constraints. This phenomenon is exemplified, and intensified, by the widespread use of criminal informants, or …

Self-Incrimination And The Epistemology Of Testimony, Michael S. Pardo

Cardozo Law Review

The Supreme Court's limitation of the privilege against self-incrimination to evidence of a testimonial nature has been controversial. The doctrinal reliance on a distinction between physical and testimonial evidence has proven difficult to apply in practice, and it has been criticized as being descriptively inaccurate, analytically incoherent, and normatively indefensible. This article offers a defense of the distinction on epistemological grounds. The philosophical focus on testimony as a source of knowledge provides some insight into what makes testimony distinct as an epistemic source. These considerations are used to provide a coherent and principled way to distinguish what evidence to treat …

The Right To Silence Helps The Innocent: A Response To Critics, Alex Stein

Cardozo Law Review

This Article responds to the numerous critics of Daniel J Seidmann & Alex Stein, The Right to Silence Helps the Innocent: A Game-Theoretic Analysis of the Fifth Amendment Privilege, 114 HARV. L. REV. 430 (2000). Under Seidmann and Stein's theory, the right to silence protects innocents who find themselves unable to corroborate their self-exonerating accounts by verifiable evidence. Absent the right, guilty criminals would pool with innocents by making false self-exonerating statements. Factfinders would consequently discount the probative value of all uncorroborated exculpatory statements, at the expense of those innocents who cannot corroborate their true accounts. The right to …

Introduction: Wherefor The Privilege?, Kate Stith

Cardozo Law Review

No abstract provided.

Theorizing About Self-Incrimination, Ronald J. Allen

Cardozo Law Review

No abstract provided.

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

University of Richmond Law Review

No abstract provided.

Torts And Innovation, Gideon Parchomovsky, Alex Stein

Michigan Law Review

This Essay exposes and analyzes a hitherto overlooked cost of tort law: its adverse effect on innovation. Tort liability for negligence, defective products, and medical malpractice is determined by reference to custom. We demonstrate that courts' reliance on custom and conventional technologies as the benchmark of liability chills innovation and distorts its path. Specifically, recourse to custom taxes innovators and subsidizes replicators of conventional technologies. We explore the causes and consequences of this phenomenon and propose two possible ways to modify tort law in order to make it more welcoming to innovation.

Shu'ubiyya Or Security? Preserving Civil Liberties By Limiting Fisa Evidence To National Security Prosecutions, William Pollak

University of Michigan Journal of Law Reform

Part I of this Note addresses the restrictions on intelligence gathering under FISA prior to 9/11 and the motivations underlying the Patriot Act's revisions to FISA. Part II discusses the problems with the "primary purpose" test, which was in effect prior to the Patriot Act's revisions to FISA. Part III reviews the various policy and constitutional arguments made against the Patriot Act's "significant purpose" test. Part IV proposes that Congress enact a new "inextricably intertwined" test to govern the admission of FISA material in criminal prosecutions. Specifically, this Part looks at sixty criminal cases in which FISA material was admitted …

Eyes Wide Shut: How Ignorance Of The Common Interest Doctrine Can Compromise Informed Consent, Katharine Traylor Schaffzin

University of Michigan Journal of Law Reform

This Article addresses the novel ethical problems presented by the common interest doctrine that implicate an attorney's duties of diligence, confidentiality, and loyalty to his or her client. These adverse effects of informal aggregation are not always fully considered before engaging a client in a common interest arrangement, but they should be. In Part II, this Article first explains the potential advantages that the common interest doctrine presents as an evidentiary tool, but then recognizes that exercise of the doctrine creates an undefined duty on the part of the attorney to the party with whom a client exchanges confidential information. …

Confessing In The Human Voice: A Defense Of The Privilege Against Selfincrimination, Andrew E. Taslitz

Cardozo Public Law, Policy & Ethics Journal

The Fifth Amendment privilege against self-incrimination is a cornerstone of American constitutional law, yet it faces erosion through recent Supreme Court rulings and scholarly critiques. The article presents a novel defense of this privilege, focusing on the protection of the "literal voice" and "metaphorical voice," arguing that compelled speech uniquely harms dignity, identity, and autonomy. It critiques existing justifications as insufficient and proposes a framework rooted in social science and linguistic compulsion, emphasizing the privilege's role in preventing state overreach and safeguarding individual autonomy.

Maintaining The Presumption Of Innocence In Date Rape Trials Through The Use Of Language Orders: State V. Safi And The Banning Of The Word "Rape", Jason Wool

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

This note evaluates the use of language orders in date rape trials in which the defense is consent through a case study of State v. Safi, in which Tory Bowen claims that Pamir Safi date raped her. In that case, the trial judge granted a motion by the defense to prevent the prosecution and any of their witnesses from using words such as "rape" and "sexual assault." Using State v. Safi as a starting point, the author examines the use of such trial orders from the perspective of both defendants and victims. The author concludes that a modified version of …

Prosecutors' New Ethical Duty Relating To Wrongful Convictions, Niki Kuckes

Law Faculty Scholarship

No abstract provided.

The Significance (If Any) For The Federal Criminal Justice System Of Advances In Lie Detector Technology, Jeffrey Bellin

Faculty Publications

Against a backdrop of accelerating developments in the science of lie detection certain to reopen the debate on the reliability and therefore admissibility of lie detector evidence in the federal courts, this Article examines whether the prohibition on hearsay evidence (or other evidentiary objections) will preclude admissibility of even scientifically reliable lie detector evidence. The Article concludes that the hearsay prohibition, which has been largely ignored by courts and commentators, is the primary obstacle to the future admission of scientifically valid lie detector evidence. The Article also suggests a potential solution to the hearsay problem that may allow admission of …

Dna – Intimate Information Or Trash For Public Consumption?, Melanie D. Wilson

Scholarly Articles

“Surreptitious sampling” may be police officers’ trump card in cracking otherwise unsolvable crimes as serious as murder, arson and rape. Law enforcement officers engage in surreptitious sampling when they covertly collect DNAsamples from unsuspecting people, who inadvertently leave behind hair, skin cells, saliva or other biological materials.Surreptitious sampling is a terrific crime-resolution tool. It allows diligent law enforcement officers to collect proof-positive evidence of guilt or innocence without the hassle of obtaining a warrant and absent probable cause or reasonable suspicion to believe that the contributor of the biological evidence committed a crime. Provided an officer has the energy and …

Summary Of Hallmark V. Eldridge, 124 Nev. Adv. Op. 48, Barbra E. Zess

Nevada Supreme Court Summaries

Appeal from a district court judgment on a jury verdict in a personal injury action and an order denying a motion for a new trial. Plaintiff seeks a more favorable damage award alleging that the district court abused its discretion in allowing prejudicial expert testimony under NRS 50.275.

Vol. Xx, Tab 57 - Ex. 16 - Plaintiff's Opposition To Defendant's Motion For Clarification And Brief In Support (American Airlines V. Google), American Airlines

Rosetta Stone v. Google (Joint Appendix)

Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?

Evidence, Marc T. Treadwell

Mercer Law Review

During the survey year, according to a Westlaw search, the United States Court of Appeals for the Eleventh Circuit rendered 2252 opinions. However, only 375 of these opinions were "published," which is consistent with the Eleventh Circuit's recent trend of sharply limiting the number of published decisions. The court's view on this issue is illustrated by Internal Operating Procedure ("IOP") 5 in Eleventh Circuit Rule 36-2:

The unlimited proliferation of published opinions is undesirable because it tends to impair the development of the cohesive body of law. To meet this serious problem it is declared to be the basic policy …

Eyewitness Identification Reform In Massachusetts, Stanley Z. Fisher

Faculty Scholarship

This article traces the impact of the new scientific learning upon police eyewitness identification procedures in the Commonwealth of Massachusetts. Over the past 25 years, experimental psychologists have devised more reliable techniques for gathering eyewitness identification evidence than have been traditionally used by police. Massachusetts has over 350 autonomous municipal police departments, plus approximately 39 college campus police departments, the state police, and the MBTA (transit) Police Department. The decision how to investigate crime rests principally with the police chief responsible for each department. How does such a system of policing absorb new, scientifically superior methods of investigation?

Haifa University V. Oz, Esther Hayut, Miriam Naor, Dorit Beinisch

Translated Opinions

Facts:  The petitioner employed respondents 1-3 (hereinafter – the respondents) as lecturers in the Theatre Department. Against the background of complaints concerning the management of the department, an Investigative Committee was established, which decided not to renew the employment of respondents 2-3 and to transfer respondent 1 to another department. The Regional Labour Court rejected the respondent's request to order the petitioner to provide them with all of the material relied upon by the Committee, including protocols and testimony, ruling that the material they had received sufficed to allow for an adequate response on the respondents' part to the claims. …

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 …

Preventing And Reducing Costs And Burdens Associated With E-Discovery: The 2006 Amendments To The Federal Rules Of Civil Procedure, Jessica Debono

Mercer Law Review

On December 1, 2006, amendments to the Federal Rules of Civil Procedure (the "Rules") regarding the discovery of electronically stored information went into effect. This form of discovery is referred to as ediscovery. The 2006 amendments have significant effect on the obligations and responsibilities of parties, their lawyers, and the courts when dealing with discovery of electronically stored information. Specifically, the 2006 amendments affect how companies maintain, preserve, and produce electronically stored information. First, electronically stored information is now included in permissible discovery. Second, parties are required to "meet and confer" about the discovery of electronically stored information at the …

Case Index

University of Richmond Law Review

No abstract provided.

The Unrecognized Right Of Criminal Defendants To Admit Their Own Pretrial Statements, Stephen A. Saltzburg, Daniel J. Capra

William & Mary Law Review

In Agard v. Portuondo, the United States Supreme Court held that a prosecutor did not violate a testifying defendant's constitutional rights by inviting the jury to infer from the defendant's presence at trial that the defendant altered his own version of events to accord with other witnesses' testimony. Justice Scalia's opinion for the Court emphasized that jurors might well draw the inference even without a prosecutor asking them to do so. Although Agard is viewed as giving an advantage in a criminal trial to the government, this Article considers how Agard might be used to allow defense counsel to introduce …