Evidence Commons^™

Evaluating Children's Competency To Testify: Developing A Rational Method To Assess A Young Child's Capacity To Offer Reliable Testimony In Cases Alleging Child Sex Abuse , Laurie Shanks

Cleveland State Law Review

This Article discusses the testimony of young children, the inadequacy of the traditional hearing used to determine the competency of such children to testify, and the ways in which the hearing might be changed to make it a meaningful process for determining the ability of a child to give reliable testimony.

City Of Los Angeles V. Alameda: The Fractured Evidence Standard For Proving A Substantial Governmental Interest, Christopher A. Khatami

Student Works

No abstract provided.

Federal Philosophy Of Science: A Deconstruction- And A Reconstruction, Susan Haack

Articles

No abstract provided.

The Majestic And The Mundane: The Two Creation Stories Of The Exclusionary Rule, Scott E. Sundby, Lucy B. Ricca

Articles

No abstract provided.

What Are The Policy Implications Of Use Of Epidemiological Evidence In Mass Torts And Public Health Litigation, Christopher Ogolla

St. Thomas Law Review

The distinctions between the standards of proof employed in epidemiology and in law inform the central thesis of this paper. This analysis began by describing the role of epidemiology in mass torts and public health litigation. It later argues that because mass torts cover such a wide area, there are several problems related to epidemiology in litigation, particularly scientific uncertainty and inconsistent factual claims. Part II discusses recent cases where epidemiological evidence was raised and debated, distinguishing between vaccine-related and non-vaccine-related cases. Courts have differentiated vaccine-related cases from non-vaccine-related cases, principally because Congress enacted a vaccine act designed to compensate …

Some Forensic Aspects Of Ballistic Imaging, Daniel L. Cork, Vijayan N. Nair, John E. Rolph

Fordham Urban Law Journal

Analysis of ballistics evidence (spent cartridge casings and bullets) has been a staple of forensic criminal investigation for almost a century. Computer-assisted databases of images of ballistics evidence have been used since the mid-1980s to help search for potential matches between pieces of evidence. In this article, we draw on the 2008 National Research Council Report Ballistic Imaging to assess the state of ballistic imaging technology. In particular, we discuss the feasibility of creating a national reference ballistic imaging database (RBID) from test-fires of all newly manufactured or imported firearms. A national RBID might aid in using crime scene ballistic …

Unasked (And Unanswered) Questions About The Role Of Neuroimaging In The Criminal Trial Process, Michael L. Perlin, Valerie Mcclain

Articles & Chapters

The robust neuroimaging debate has dealt mostly with philosophical questions about free will, responsibility, and the relationship between brain abnormalities, violence and crime. This debate, however, obscures several important issues of criminal procedure to which little attention has as of yet been paid: 1) an indigent defendant's right of access to expert testimony in cases where neuroimaging tests might be critical, 2) a defendant's competency to consent to the imposition of a neuroimaging test; and 3) the impact of antipsychotic medications on a defendant's brain at the time that such a test is performed. This article will consider these questions …

Electronic Evidence Annotated Bibliography, Nancy Levit

Faculty Works

No abstract provided.

The Expanding Duties Of Esi And In-House Counsel: Providing Defensible Preservation And Production Efforts After Swofford V. Eslinger, David W. Degnan

Richmond Journal of Law & Technology

As a general rule, companies and government agencies should plan for preservation and production before litigation is probable. This means having a document retention program. These programs ensure that documents are retained or deleted in an orderly fashion. If a company properly follows its policies and procedures, this retention program acts as a “shield” against the incomplete preservation of relevant (or “hot”) documents deleted before the proper initiation of a litigation hold. If parties do not follow, or inconsistently follow, such a program, they might have to explain what happened to a missing relevant document. Thus, a retention program might …

Stepping Out Of The Vehicle: The Potential Of Arizona V. Gant To End Automatic Searches Incident To Arrest Beyond The Vehicular Context , Angad Singh

American University Law Review

No abstract provided.

Wired: What We've Learned About Courtroom Technology, Fredric I. Lederer

Popular Media

No abstract provided.

Al-Iqrar Fi Ithbat Al-Da`Wa Fi Al-Qadaya Al-Madinah : Dirasah Muqaranah Bayna Al-Qanun Al-Madani Al-Irani Wa-Al-Madhahib Al-Khamsah., Ghotbaddin Zahedian

Student Works (2010-2019)

The dissertation is a comparison study between madhahib fiqhiyyah (Hanafi, Maliki, Shafe'i, Hanbali, Ja’fari) and the Iranian Civil Code with regards to confession of patient, bankrupt, infant, fool, and the confession of kinship. The study is theoretical, aiming at evaluating the influence of the Ja’fari’s and another four schools of jurisprudence (Hanafi, Maliki, Shafi'i and Hanbali) on the Iranian Civil Code. In addition, the study attempts to identify the similarities and differences between the four schools of Sunni and Shiah Ja’fari in confession in civil cases. It has been done by comparing civil issues between the four schools of Ahl …

Scientific Evidence In Criminal Prosecutions - A Retrospective, Paul C. Giannelli

Faculty Publications

No abstract provided.

The Anticipation Misconception, Colin P. Marks

Faculty Works

Many commentators and courts have cited to the Supreme Court decision of Hickman v. Taylor as the genesis of the work product doctrine and the requirement that, to be afforded protection, the material in question must be generated “in anticipation of litigation.” The oft quoted policy justification for the protection afforded is that attorneys should be allowed a “zone of privacy” within which to prepare their case for the client. This justification supports limiting protection only to work generated “in anticipation of litigation,” because, presumably, outside of this context there is no need for the “zone of privacy.” However, a …

Sex, Threats, And Absent Victims: The Lessons Of Regina V. Bedingfield For Modern Confrontation And Domestic Violence Cases, Aviva A. Orenstein

Articles by Maurer Faculty

In 2004, Crawford v. Washington, authored by Justice Antonin Scalia, revolutionized the law of confrontation by requiring that, aside from two discrete exceptions, all testimonial statements (those made with the expectation that they will serve to prosecute the accused) be subject to cross-examination. This new interpretation of the Sixth Amendment confrontation clause has profoundly affected domestic violence cases, making it much harder to prosecute them successfully.

Although Justice Scalia’s approach to confrontation is new, it is strikingly similar to the analysis in Regina v. Bedingfield, a notorious English murder case, which excluded from the evidence an alleged statement by the …

Her Last Words: Dying Declarations And Modern Confrontation Jurisprudence, Aviva A. Orenstein

Articles by Maurer Faculty

Dying declarations have taken on increased importance since the Supreme Court indicated that even if testimonial, they may present a unique exception to its new confrontation jurisprudence. Starting with Crawford v. Washington in 2004, the Court has developed strict rules concerning the use of testimonial statements made by unavailable declarants. Generally, testimonial statements (those made with the expectation that they will be used to prosecute the accused) may be admitted only if they were previously subject to cross examination. The only exceptions appear to be dying declarations and forfeiture by wrongdoing if the accused intentionally rendered the declarant unavailable.

This …

Expert Testimony In Child Sexual Abuse Litigation: Consensus And Confusion, John E.B. Myers

McGeorge School of Law Scholarly Articles

No abstract provided.

Crime Music, Bennett Capers

Faculty Scholarship

No abstract provided.

Probability, Individualization, And Uniqueness In Forensic Science Evidence: Listening To The Academies, David H. Kaye

Faculty Scholarship

Day in and day out, criminalists testify to positive, uniquely specific identifications of fingerprints, bullets, handwriting, and other trace evidence. A committee of the National Academy of Sciences, building on the writing of academic commentators, has called for sweeping changes in the presentation and production of evidence of identification. These include some form of circumscribed and standardized testimony. But the Academy report is short on the specifics of the testimony that would be legally and professionally allowable. This essay outlines possible types of testimony that might harmonize the testimony of criminalists with the actual state of forensic science. It does …

Distribution, I Presume: A Role For Presumptions In Establishing The "Making Available" Right, Joe Weissman

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Truth Or Consequences: Self-Incriminating Statements And Informant Veracity, Mary Nicol Bowman

Faculty Articles

Courts treat self-incriminating statements by criminal informants as a significant factor favoring the reliability of the informant’s information when making probable cause determinations for the issuance of search warrants. Courts do so even though admissions of criminal activity usually undercut, rather than support, credibility. In using self-incriminating statements to support the informant’s reliability, courts tend to rely on a theory with significant theoretical flaws. Furthermore, recent United States Supreme Court jurisprudence in other contexts undercuts the reliability of using self-incriminating statements to support the veracity of other information. If courts adequately scrutinize the informant’s self-incriminating statements and the circumstances surrounding …

Relative Doubt: Familial Searches Of Dna Databases, Erin Murphy

Michigan Law Review

The continued growth of forensic DNA databases has brought about greater interest in a search method known as "familial" or "kinship" matching. Whereas a typical database search seeks the source of a crime-scene stain by making an exact match between a known person and the DNA sample, familial searching instead looks for partial matches in order to find potential relatives of the source. The use of a familial DNA search to identify the alleged "Grim Sleeper" killer in California brought national attention to the method, which has many proponents. In contrast, this Article argues against the practice of familial searching …

New Pleading, New Discovery, Scott Dodson

Michigan Law Review

Pleading in federal court has a new narrative. The old narrative was one of notice, with the goal of broad access to the civil justice system. New Pleading, after the landmark Supreme Court cases of Twombly and Iqbal, is focused on factual sufficiency, with the purpose of screening out meritless cases that otherwise might impose discovery costs on defendants. The problem with New Pleading is that factual insufficiency often is a poor proxy for meritlessness. Some plaintifs lack sufficient factual knowledge of the elements of their claims not because the claims lack merit but because the information they need is …

Liar! Liar! Impeaching A Witness On Cross-Examination, Maureen A. Howard

Articles

There are certain trial moments that can set an advocate’s heart a-flutter. One is the opportunity to show the jury that an adverse witness is not to be trusted. Even better is the chance to expose the witness to be a bald-faced liar.

Welcome to the wonderful world of impeachment. Impeachment is the art of discrediting the witness on cross-examination. There are seven impeachment techniques:

• Bias, interest, and motive

• Contradictory facts

• Prior convictions — FRE 609

• Prior bad acts — FRE 608 (b)

• Prior inconsistent statements — FRE 613

• Bad character for truthfulness — …

"I'M Dying To Tell You What Happened": The Admissibility Of Testimonial Dying Declarations Post-Crawford, Peter Nicolas

Articles

This Article demonstrates the existence and delineates the scope of a federal constitutional definition of "dying declarations" that is distinct from the definitions set forth in the Federal Rules of Evidence and their state counterparts. This Article further demonstrates that states have state constitutional definitions of "dying declarations" (for purposes of interpreting state constitutional analogues to the Confrontation Clause of the Sixth Amendment) that may differ in important respects from the federal constitutional definition of "dying declarations."

This Article then shows that some of the definitions of "dying declarations" contained in federal and state hearsay exceptions exceed the federal and …

Another "Straightforward Application": The Impact Of Melendez-Diaz On Forensic Testing And Expert Testimony In Controlled Substance Cases, John Wait

Campbell Law Review

Part I of this Article will analyze Melendez-Diaz with a focus on extracting indicators within the opinion that lend guidance as to how the opinion could be extended to Bullcoming and to expert testimony based on forensic reports in controlled substance cases. Part II will provide an overview of the tests utilized by the SBI to determine the nature and quantity, if any, of suspected controlled substances with the goal of ascertaining who, under Melendez-Diaz, should be subject to confrontation. Part III will provide a prediction of the outcome in Bullcoming. Finally, Part IV will review the pending cases from …

C.S.I. Bulls#!T: The National Academy Of Sciences, Melendedez-Diaz V. Massachusetts, And Future Challenges To Forensic Science And Forensic Evidence,, Joelle A. Moreno

Faculty Publications

No abstract provided.

Blind Expertise, Christopher Robertson

Faculty Scholarship

The United States spends many billions of dollars on its system of civil litigation, and expert witnesses appear in a huge portion of cases. Yet litigants select and retain expert witnesses in ways that create the appearance of biased hired guns on both sides of every case, thereby depriving factfinders of a clear view of the facts. As a result, factfinders too often arrive at the wrong conclusions, thus undermining the deterrence and compensation functions of litigation. Court-appointment of experts has been widely proposed as a solution, yet it raises legitimate concerns about accuracy and has failed to gain traction …

Countermeasure Mechanisms In A P300-Based Concealed Information Test, John B. Meixner Jr., J. Peter Rosenfeld

Scholarly Works

The detection of deception has been the focus of much research in the past 20 years. Though much controversy has surrounded one deception detection protocol, the “Control Question Test” (NRC 2003, Ben-Shakhar 2002), an alternative test, the Guilty Knowledge Test (GKT), developed by Lykken (1959, 1960), is based on scientific principles and has been well-received in the scientific community. The GKT presents subjects with various stimuli, one of which is a guilty knowledge item (termed the probe, such as the gun used to commit a crime). The other stimuli in the test consist of control items that are of the …

District Attorney’S Office For The Third Judicial District V. Osborne: Leaving Prisoners’ Access To Dna Evidence In Limbo, Alexandra Millard

Maryland Law Review

No abstract provided.