Evidence Commons^™

Evidence, John E. Hall Jr., W. Scott Henwood

Mercer Law Review

As you may know, July 11, 2010, marked the fiftieth anniversary of Harper Lee's Pulitzer Prize-winning classic, To Kill A Mockingbird, which anecdotally inspired many in the South and beyond to enter the legal profession. Therefore, it is fitting to open this Article with Atticus Finch's oft-quoted closing statement:

The state has not produced one iota of medical evidence ... that the crime Tom Robinson is charged with ever took place ... ...

I am confident that you gentlemen will review without passion the evidence you have heard, come to a decision, and restore this defendant to his family. …

An Unsettling Outcome: Why The Florida Supreme Court Was Wrong To Ban All Settlement Evidence In Saleeby V Rocky Elson Construction, Inc., 3 So. 3d 1078 (Fla. 2009), Michael L. Seigel, Robert J. Hauser, Allison D. Sirica

UF Law Faculty Publications

It is rare that a court as sophisticated as the Florida Supreme Court casually makes a fundamental mistake in an important area of the law. Unfortunately, Saleeby v. Rocky Elson Construction, Inc., 3 So. 3d 1078 (Fla. 2009) represents one of these unusual instances. The Court was faced with a simple question: may evidence pertaining to a prior settlement be offered at trial when it is relevant to something other than liability or the invalidity or amount of the pending claim. The universal answer under both federal law and the law of other states is yes, as long as …

The Distortionary Effect Of Evidence On Primary Behavior, Alex Stein, Gideon Parchomovsky

Faculty Scholarship

No abstract provided.

"I'M Going To Dinner With Frank": Admissibility Of Nontestimonial Statements Of Intent To Prove The Actions Of Someone Other Than The Speaker—And The Role Of The Due Process Clause, Lynn Mclain

All Faculty Scholarship

A woman tells her roommate that she is going out to dinner with Frank that evening. The next morning her battered body is found along a country road outside of town. In Frank’s trial for her murder, is her statement to her roommate admissible to place Frank with her that night? Since the Court’s 2004 Crawford decision, the confrontation clause is inapplicable to nontestimonial hearsay such as this.

American jurisdictions are widely divided on the question of admissibility under their rules of evidence, however. Many say absolutely not. A sizeable number unequivocally say yes. A small number say yes, but …

Remodeling The Classified Information Procedures Act (Cipa), Afsheen John Radsan

Cardozo Law Review

No abstract provided.

"I'M Going To Dinner With Frank": Admissibility Of Nontestimonial Statements Of Intent To Prove The Actions Of Someone Other Than The Speaker - And The Role Of The Due Process Clause, Lynn Mclain

Cardozo Law Review

No abstract provided.

Summary Of Cramer V. Nev. Dep’T Of Motor Vehicles, 126 Nev. Adv. Op. No. 38, Justin Shiroff

Nevada Supreme Court Summaries

The Court considers two appeals concerning NRS 50.320, which permits the use of an affidavit to prove a person’s blood-alcohol content in certain proceedings, including driver’s license revocation hearings, by a person who has been previously qualified to testify as an expert witness by a district court.

Sex And The Supremes: Towards A Legal Theory Of Sexuality, Elaine Craig

PhD Dissertations

This thesis examines how the Supreme Court of Canada, across legal contexts, has tended to conceptualize sexuality. It focuses primarily on areas of public law including sexual assault law, equality for sexual minorities, sexual harassment and obscenity and indecency laws. There were a number of trends revealed upon reviewing the jurisprudence in this area. First, the Court’s decisions across legal contexts reveal a tendency to conceptualize sexuality as innate, as a pre-social naturally occurring phenomenon and as an essential element of who we are as individuals. This is true whether one is speaking of the approach to gay and lesbian …

The Admissibility Of Electronic Business Records, Ken Chasse

Canadian Journal of Law and Technology

The business record provisions of the Evidence Acts determine a record’s admissibility by evidence of its history, which must be the product of “the usual and ordinary course of business” (or comparable “business activity” wording). The electronic record provisions determine a record’s admissibility by the, “integrity of the electronic records system in which it is recorded or stored.” The difference is, records management (RM) based on “paper records concepts” versus “electronic records systems concepts.” The former is subjective — each business determines its own “usual and ordinary course of business”; the latter, objective — in accor- dance with authoritative standards …

Seeking Truth On The Other Side Of The Wall: Greenleaf’S Evangelists Meet The Federal Rules, Naturalism, And Judas, Nancy J. Kippenhan

Faculty Publications and Presentations

An inquiry that seeks truth by accepting only natural answers excludes the possibility of the sacred or supernatural, building a wall that forecloses a complete exploration for the truth it seeks. Without analysis, critics dismiss sources presenting supernatural explanations, and those who believe sacred works have no factual foundation accept without investigation any popular theory that appears attractive. The rules of evidence expressly seek truth, wherever it lies. Noted legal scholar Simon Greenleaf used evidentiary principles to demonstrate the factual credibility of the Gospels in his Testimony of the Evangelists. This Article examines Greenleaf’s analysis, applying current rules of evidence …

Advocacy In The Court Of Public Opinion, Installment Two: How Far Should Corporate Attorneys Go, Michele M. Destefano

Articles

Today, legal controversies are tried in the court of public opinion as much as in any court of law. Corporate lawyers' traditional tendency, however, has been to attempt to isolate legal activities from public relations activities. Accordingly, when providing legal advice, they have viewed media considerations as separate. Historically corporate counsels' typical media strategy often consisted of no more than, "no comment." Given today's saturated media culture, this is no longer a viable strategy. Indeed, it appears that some corporate lawyers are adapting to the new media environment and attempting to help their clients manage the public relations impact of …

Unscrambling The Confusion: Applying The Correct Standard Of Review For Rape-Shield Evidentiary Rulings, Robert E. Steinbuch

Law Faculty Scholarship

No abstract provided.

Reinforcing The Hague Convention On Taking Evidence Abroad After Blocking Statutes, Data Privacy Directives, And Aerospatiale, Brian Friederich

San Diego International Law Journal

There has always been tension between European countries and the United States on the topic of evidence gathering. Much of that tension stems from the inherent differences between common and civil policies and methods. Until the Hague Convention, the process for obtaining evidence abroad was cumbersome and unreliable. The Hague Convention sought to change that by providing signatory countries more effective methods of cooperating with each other in international litigation. However, the Hague Convention has not been able to achieve its purpose, at least not in the United States. U.S. courts have interpreted the Hague Convention as optional, meaning it …

When Facts Are Thin On The Ground, Julia Romasevych, Paul Antiss, Nancy Amoury Combs

Popular Media

Fact-finding at the international tribunals is not as precise as we think. Nancy Combs, Professor of Law at William and Mary Law School, explores this in her new book 'Fact-finding without facts: the uncertain evidentiary foundations of international criminal convictions'.

Problems At Daubert: Expert Testimony In Title Vii Sex Discrimination And Sexual Harassment Litigation, Harriet M. Antczak

Buffalo Journal of Gender, Law & Social Policy

No abstract provided.

Tipsy/Waukell Dave Feud, Susie Van Kirk

Susie Van Kirk Papers

Newspaper references from the Daily Humboldt Times and the Del Norte Record and historical analysis of the feud between Tipsy Frank and Waukel Dave in the late 1800s.

"DHT (1 Jan. 1887) From Alex Dewar, who has just returned from the Klamath country, we learn of the killing of an Indian bearing the sobriquet of 'Tipsy Frank.' During the past four or five years this Indian has killed several of his brethren and has been considered as a very hard character. Recently he stole a horse from another Indian called 'Waukel Dave.' Dave did not relish the idea of losing …

Criminal Practice Developments In Maryland Evidence Law And Confrontation Clause Jurisprudence, Lynn Mclain

All Faculty Scholarship

This paper was prepared as a handout for a presentation given on July 9th., 2010 to staff at the Harford County Public Defender’s Office, Bel Air, MD. The specific sections of the paper are: Discovery of Witnesses’ Identities: Protective Orders; Jury Selection; Communications from Jurors; Preservation of the Record: Rules 4-323, 5-103, and 5-702; Judicial Notice: Rule 5-201; Balancing Risk of Unfair Prejudice and Confusion against Probative Value: Rule 5-403; Character Evidence; Fifth Amendment Privilege: Miranda; Competency of Witnesses: Rule 5-601; Impeachment by Prior Convictions: Rule 5-609; Questioning by Court: Rule 5-614; Expert Testimony: Rules 5-702 – 5-706; Hearsay; The …

United States V. Blazier – So Exactly Who Needs An Invitation To The Dance, David Coombs

Other Scholarship

No abstract provided.

Evidence, Marc T. Treadwell

Mercer Law Review

I. INTRODUCTION

During the survey year from January 1, 2009 to December 31, 2009, the United States Court of Appeals for the Eleventh Circuit continued its recent trend of limiting the number of its published opinions, a trend discussed in more detail in a previous survey. This Survey will address several unpublished-yet noteworthy-decisions. However, readers should bear in mind Eleventh Circuit Rule 36-2, which provides that "[u~npublished opinions are not considered binding precedent, but they may be cited as persuasive authority." Also note that the court's internal operating procedures suggest an even more limited role for unpublished opinions:

The court …

The French Huissier As A Model For U.S. Civil Procedure Reform, Robert W. Emerson

University of Michigan Journal of Law Reform

Huissiers de justice serve multiple roles in the French legal system. One is that of a court officer who compiles dossiers (reports). In that role, the huissier is d'audiencier (literally translated as "hearing" or "assisting") and works directly for the court system itself.

The huissier's report remains alien to the American lawyer, who is steeped in notions of procedure and "testimonialism" and in principles of fairness which appear ancient, but are rather modern dissimulations of law and equity's rich history in the American tradition. An important aspect of most legal processes, the collection of data in preparation for litigation is …

Making Stuff Up, Richard H. Underwood

Law Faculty Scholarly Articles

Beginning with an article in this Journal almost thirty years ago, Professor Underwood continues to research and write about legal ethics and litigation. In this Commentary, he offers a witty look at several cases where, in his opinion, the judge allowed improper arguments to the jury.

Scientific Evidence As Foreign Law, Edward K. Cheng

Vanderbilt Law School Faculty Publications

Most contemporary debates about scientific evidence focus on admissibility under Daubert and the Federal Rules of Evidence. That bias is quite understandable-after all, it is the framework imposed by the United States Supreme Court. Daubert, however, rests on a fundamental assumption: that courts should treat scientific facts like any other adjudicative facts ultimately left to the jury. Perhaps the involvement of specialized knowledge requires judges to act as gatekeepers to ensure some basic level of reliability, but under Daubert, scientific facts are still just facts. As I will argue, scientific facts fit awkwardly into the conventional framework for conceptualizing and …

Confidential Witnesses: The Reform Act And The Battle At The Pleading Stage, Ariel S. Lichterman

Cardozo Public Law, Policy & Ethics Journal

The note examines the role of confidential witnesses in securities litigation under the Private Securities Litigation Reform Act (PSLRA) and the Supreme Court's Tellabs v. Makor Issues & Rights, Ltd. decision. It highlights the challenges courts face in evaluating confidential witness statements, advocating for a balanced approach that considers both the necessity of such evidence and the prevention of abusive litigation. The analysis emphasizes the need for courts to align their methods with the holistic review mandated by Tellabs while addressing the tension between protecting anonymity and assessing credibility.

The Unblinking Eye Turns To Appellate Law: Cameras In Trial Courtrooms And Their Effect On Appellate Law, Mary E. Adkins

UF Law Faculty Publications

Over the past twenty years, most American courthouses have been wired with audio and video recording equipment to enhance security and economize on court reporting costs. These in-house alterations have an overlooked consequence for appeals. The mere existence of these recordings of all courtroom occurrences will unavoidably change the way appeals are handled and reviewed.

Appellate courts will need to make new types of decisions on whether to accept the audio-video recordings as appellate records or continue the reliance on transcripts and items entered into evidence. If the appellate courts do not accept audio-video recordings as appellate records, or if …

Foreword: New Perspectives On Brady And Other Disclosure Obligations: What Really Works?, Ellen Yaroshefsky

Cardozo Law Review

No abstract provided.

Emotionally Charged: The Prosecutorial Charging Decision And The Innocence Revolution, Daniel S. Medwed

Cardozo Law Review

No abstract provided.

New Perspectives On Brady And Other Disclosure Obligations: Report Of The Working Groups On Best Practices

Cardozo Law Review

No abstract provided.

Professional And Conviction Integrity Programs: Why We Need Them, Why They Will Work, And Models For Creating Them, Barry Scheck

Cardozo Law Review

The best way to effectively prevent Brady violations and other forms of prosecutorial misconduct that cause wrongful convictions is internal regulation of the District Attorney's office. Civil liability, state or bar disciplinary action, the stigma of appellate reversal, and the threat of criminal prosecution have failed to provide effective deterrence against Brady violations as well as other forms of misconduct. However, the lack of alternatives is not the reason why internal regulation is the most promising way to prevent Brady violations, but rather because prosecutors themselves are in the best position to implement procedures that achieve this goal.

Prosecutorial offices, …

Summary Of Thomas V. Hardwick, 126 Nev. Adv. Op. No. 16, Amanda Hogeg

Nevada Supreme Court Summaries

A multi-faceted appeal from jury verdict entered in favor of defense in wrongful death suit.

The Anatomy Of A Search: Intrusiveness And The Fourth Amendment, Renée Mcdonald Hutchins

University of Richmond Law Review

In this essay, I contend that when evaluating the constitutionality of enhanced surveillance devices, the existing test for assessing the occurrence of a Fourth Amendment search should be modified. Specifically, I suggest that intrusiveness should be unambiguously adopted by the Court as the benchmark for assessing and defining the existence of a search under the Fourth Amendment. Moreover, intrusiveness should be clearly defined to require an examination of two factors: the functionality of a challenged form of surveillance and the potential for disclosure created by the device.