Open Access. Powered by Scholars. Published by Universities.®

Evidence Commons™

Open Access. Powered by Scholars. Published by Universities.®

2011

Discipline
Institution
Keyword
Publication
Publication Type
File Type

Articles 61 - 90 of 104

Full-Text Articles in Evidence

Spoliation Of Electronic Evidence: Sanctions Versus Advocacy, Charles Adams Jan 2011

Spoliation Of Electronic Evidence: Sanctions Versus Advocacy, Charles Adams

Articles, Chapters in Books and Other Contributions to Scholarly Works

This Article proposes that courts should refrain from imposing adverse inference jury instructions as sanctions for the spoliation of evidence. This proposal bears some similarity to the approach taken twenty years ago by the 1993 amendments to Rule 11, which constrained courts' ability to sanction. Instead of imposing an adverse jury instruction as a sanction for spoliation of evidence, courts should allow evidence of spoliation to be admitted at trial if a reasonable jury could find that spoliation had occurred and if the spoliation was relevant to a material issue. If a court allows the introduction of evidence of spoliation …


Good Medicine/Bad Medicine And The Law Of Evidence: Is There A Role For Proof Of Character, Propensity, Or Prior Bad Conduct In Medical Negligence Litigation?, 63 S.C. L. Rev. 367 (2011), Marc Ginsberg Jan 2011

Good Medicine/Bad Medicine And The Law Of Evidence: Is There A Role For Proof Of Character, Propensity, Or Prior Bad Conduct In Medical Negligence Litigation?, 63 S.C. L. Rev. 367 (2011), Marc Ginsberg

UIC Law Open Access Faculty Scholarship

No abstract provided.


A Discourse On The Aba's Criminal Justice Standards: Prosecution And Defense Functions: The Physical Evidence Dilemma: Does Aba Standard 4-4.6 Offer Appropriate Guidance?, Rodney J. Uphoff Jan 2011

A Discourse On The Aba's Criminal Justice Standards: Prosecution And Defense Functions: The Physical Evidence Dilemma: Does Aba Standard 4-4.6 Offer Appropriate Guidance?, Rodney J. Uphoff

Faculty Publications

Since 1966, when criminal defense lawyer Richard Ryder was disciplined for retaining physical evidence that connected his client to a bank robbery, lawyers and courts have struggled with the ethical dilemma of how defense lawyers should deal with physical evidence that potentially incriminates one of their clients. When a lawyer takes possession of an evidentiary item, must she always turn it over to the authorities, as required by most courts that have addressed this dilemma? Or, can defense counsel return the evidence to the source from whom counsel received it as recommended by Standard 4-4.6 of the ABA Criminal Justice …


The Admissibility Of Eyewitness-Identification Expert Testimony In Oklahoma, Sean S. Hunt Jan 2011

The Admissibility Of Eyewitness-Identification Expert Testimony In Oklahoma, Sean S. Hunt

Oklahoma Law Review

No abstract provided.


The Amended Attorney-Client Privilege In Oklahoma: A Misstep In The Right Direction, Robert A. Brown Jan 2011

The Amended Attorney-Client Privilege In Oklahoma: A Misstep In The Right Direction, Robert A. Brown

Oklahoma Law Review

No abstract provided.


The Sky Is Not Falling: How The Anticlimactic Application Of Melendez-Diaz V. Massachusetts To Oklahoma's Laboratory Report Procedures Allows Room For Improvement, Danae Vansickle Grace Jan 2011

The Sky Is Not Falling: How The Anticlimactic Application Of Melendez-Diaz V. Massachusetts To Oklahoma's Laboratory Report Procedures Allows Room For Improvement, Danae Vansickle Grace

Oklahoma Law Review

No abstract provided.


Real Rape, Too, Bennett Capers Jan 2011

Real Rape, Too, Bennett Capers

Faculty Scholarship

No abstract provided.


Voluntary Client Testimony As A Privilege Waiver: Is Ohio's Law Caught In A Time Warp, David B. Alden, Matthew P. Silverstein Jan 2011

Voluntary Client Testimony As A Privilege Waiver: Is Ohio's Law Caught In A Time Warp, David B. Alden, Matthew P. Silverstein

Cleveland State Law Review

The question of whether Ohio should retain the waiver through voluntary testimony rule-assuming that is the current rule-is neither close nor difficult. The relevant statute dates back to the middle of the nineteenth century when Ohio enacted its first code of civil procedure, and if it in fact leads to a waiver, has been substantively unchanged in the intervening one hundred fifty plus years. The rule undermines the policies the attorney-client privilege was designed to further, and the policy on which the rule apparently was based-preventing perjured testimony-no longer has the primacy it did in the mid-nineteenth century and, in …


Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Francis C. Oroszlan Jan 2011

Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Francis C. Oroszlan

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is proud to present its second issue of the 2010–2011 academic year.


The Admissibility Of Electronic Evidence Under The Federal Rules Of Evidence, Jonathan D. Frieden, Leigh M. Murray Jan 2011

The Admissibility Of Electronic Evidence Under The Federal Rules Of Evidence, Jonathan D. Frieden, Leigh M. Murray

Richmond Journal of Law & Technology

Following the December 2006 amendments to the Federal Rules of Civil Procedure, much has been written about the discovery of electronically-stored information.


Federal Rule Of Evidence 502: Has It Lived Up To Its Potential?, Paul W. Grimm, Lisa Yurwit Bergstrom, Matthew P. Kraeuter Jan 2011

Federal Rule Of Evidence 502: Has It Lived Up To Its Potential?, Paul W. Grimm, Lisa Yurwit Bergstrom, Matthew P. Kraeuter

Richmond Journal of Law & Technology

Nothing causes litigators greater anxiety than the possibility of doing, or failing to do, something during a civil case that waives attorney– client privilege or work-product protection. Attend any seminar, webcast, podcast, or other continuing legal education course dealing with the discovery of electronically stored information (“ESI”) and you are sure to hear about this concern and how to mitigate it.


Four Years Later: How The 2006 Amendments To The Federal Rules Have Reshaped The E-Discovery Landscape And Are Revitalizing The Civil Justice System, Bennett B. Borden, Monica Mccarroll, Brian C. Vick, Lauren M. Wheeling Jan 2011

Four Years Later: How The 2006 Amendments To The Federal Rules Have Reshaped The E-Discovery Landscape And Are Revitalizing The Civil Justice System, Bennett B. Borden, Monica Mccarroll, Brian C. Vick, Lauren M. Wheeling

Richmond Journal of Law & Technology

The 2006 amendments to the Federal Rules of Civil Procedure, which were enacted to address the potentially immense burden involved in the discovery of electronically-stored information (“ESI”), set in motion a process that is revitalizing the primary purpose of the Federal Rules of Civil Procedure adopted nearly seventy years earlier: “to secure the just, speedy, and inexpensive determination of every action and proceeding.” One of the principal means through which the Federal Rules of Civil Procedure achieve this purpose is by allowing for the discovery of “any nonprivileged matter that is relevant to any party’s claim or defense.” The reasoning …


Technology-Assisted Review In E-Discovery Can Be More Effective And More Efficient Than Exhaustive Manual Review, Maura R. Grossman, Gordon V. Cormack Jan 2011

Technology-Assisted Review In E-Discovery Can Be More Effective And More Efficient Than Exhaustive Manual Review, Maura R. Grossman, Gordon V. Cormack

Richmond Journal of Law & Technology

E-discovery processes that use automated tools to prioritize and select documents for review are typically regarded as potential cost-savers – but inferior alternatives – to exhaustive manual review, in which a cadre of reviewers assesses every document for responsiveness to a production request, and for privilege. This Article offers evidence that such technology-assisted processes, while indeed more efficient, can also yield results superior to those of exhaustive manual review, as measured by recall and precision, as well as F1, a summary measure combining both recall and precision. The evidence derives from an analysis of data collected from the TREC 2009 …


Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Francis C. Oroszlan Jan 2011

Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Francis C. Oroszlan

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is proud to present the fourth issue of the 2010–2011 academic year. In this issue, we explore privacy law in the context of online social networking, online advertising and tort reform. Additionally, this issue examines mandatory disclosure of trade secrets as a component of offshore oil drilling regulation and evaluates certain criticisms levied against the Anti-Counterfeiting Trade Agreement.


Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Ian Lambeets Jan 2011

Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Ian Lambeets

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is proud to present its first issue of the 2011-2012 academic year. The Journal strives to discuss new and emerging issues that fall squarely at the intersection of technology and the law. Another year goes by and technology continues to advance, and not surprisingly, further immerses itself into our daily lives. The Journal believes it is our mission to recognize the practical effects the growth of technology has on society and to promote a relevant and timely discussion on these topics.


Evidence - Privilege Law - How Arkansas's New Rule Of Evidence Codifies "Selective Waiver" Of The Attorney-Client Privilege And Work-Product Protection And An Argument For A More Moderate Approach, Jonathan D. Mcfadden Jan 2011

Evidence - Privilege Law - How Arkansas's New Rule Of Evidence Codifies "Selective Waiver" Of The Attorney-Client Privilege And Work-Product Protection And An Argument For A More Moderate Approach, Jonathan D. Mcfadden

University of Arkansas at Little Rock Law Review

No abstract provided.


Hearsay After Crawford: A Practitioner's Guide, Marcia G. Cooke Jan 2011

Hearsay After Crawford: A Practitioner's Guide, Marcia G. Cooke

St. Thomas Law Review

The Sixth Amendment to the U.S. Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." Although it may appear simple, concise and direct, the language of the Sixth Amendment has been the subject of much discussion.' The Confrontation Clause has been inevitably comingled with the hearsay rules, and determining when an out-of-court statement violates the rights of criminal defendants has been no easy task. For many years, it was uncontested, as established in Ohio v. Roberts, that to avoid violating a criminal defendant's Sixth Amendment rights, the …


Regulating The Science Of Forensic Evidence: A Broken System Requires A New Federal Agency, Jessica D. Gabel, Ashley D. Champion Jan 2011

Regulating The Science Of Forensic Evidence: A Broken System Requires A New Federal Agency, Jessica D. Gabel, Ashley D. Champion

Faculty Publications By Year

Professor Gabel and Ms. Champion agree with Mr. Goldstein's argument that serious validity and reliability problems plague forensic science, but, using the recent Troy Davis case in Georgia as an illustration, they argue for federal rather than state oversight. Gabel and Champion assert that many states lack the funding to construct an adequate system and that the fragmentation caused by different state systems would be a significant impediment to reform. They suggest a federal agency that, like the Environmental Protection Agency, would set minimum standards but allow states to experiment with enhanced regulation.


Dna Database Trawls And The Definition Of A Search In Boroian V. Mueller, David H. Kaye Jan 2011

Dna Database Trawls And The Definition Of A Search In Boroian V. Mueller, David H. Kaye

Faculty Scholarship

As a general matter, once the government acquires information from a permissible search or seizure, it can use this information in later criminal investigations. Courts have applied this simple rule to uphold the indefinite reuse of DNA samples acquired from convicted offenders. This essay describes the First Circuit Court of Appeals’ reliance on the rule in rejecting a convicted offender’s claim that his DNA sample and profile had to be removed from the federal DNA databank after he completed his sentence. Acknowledging that the rule permitting reuse should not be applied mechanically, I argue that the rule's application to DNA …


A Punishing Court Docket, Stephen Wermiel Jan 2011

A Punishing Court Docket, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.


Life, Death, And Neuroimaging: The Advantages And Disadvantages Of The Defense's Use Of Neuroimages In Capital Cases - Lessons From The Front, John H. Blume, Emily C. Paavola Jan 2011

Life, Death, And Neuroimaging: The Advantages And Disadvantages Of The Defense's Use Of Neuroimages In Capital Cases - Lessons From The Front, John H. Blume, Emily C. Paavola

Cornell Law Faculty Publications

The use of neuroimaging in capital cases has become increasingly common. An informal survey of cases produced over one hundred opinions from reported decisions alone discussing the use of computed tomography (CT) scanning, magnetic resonance imaging (MRI), functional MRI, positron emission tomography (PET) scans, single-photon emission computed tomography (SPECT) scans, and similar technology in capital cases. This article gives practical advice to defense counsel considering the use of neuroimaging in a capital case. We discuss how, in the right case, this technology can be a valuable investigative tool used to produce an important component of a successful mitigation story. However, …


Law In The Age Of Exabytes: Some Further Thoughts On ‘Information Inflation’ And Current Issues In E-Discovery Search, Jason R. Baron Jan 2011

Law In The Age Of Exabytes: Some Further Thoughts On ‘Information Inflation’ And Current Issues In E-Discovery Search, Jason R. Baron

Richmond Journal of Law & Technology

In 2007, in the pages of this Journal, George L. Paul and I posed a question to the legal profession at large, to wit: can the legal system adapt to the new reality of an era of rapid inflation in the amount of electronically stored information (ESI) at issue in civil litigation? After surveying the history of technological innovation that led to an explosion of new data, we proceeded to discuss various legal strategies for success in our current inflationary epoch. These strategies included: consideration of new and emerging ways in which to think about search and information retrieval in …


Section 1983 & The Age Of Innocence: The Supreme Court Carves A Procedural Loophole For Post-Conviction Dna Testing In Skinner V. Switzer, Gabriel A. Carrera Jan 2011

Section 1983 & The Age Of Innocence: The Supreme Court Carves A Procedural Loophole For Post-Conviction Dna Testing In Skinner V. Switzer, Gabriel A. Carrera

American University Law Review

No abstract provided.


Williams V. Illinois And The Confrontation Clause: Does Testimony By A Surrogate Witness Violate The Confrontation Clause?, Paul F. Rothstein, Ronald J. Coleman Jan 2011

Williams V. Illinois And The Confrontation Clause: Does Testimony By A Surrogate Witness Violate The Confrontation Clause?, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

This article comprises a four-part debate between Paul Rothstein, Professor of Law at Georgetown Law Center, and Ronald J. Coleman, who works in the litigation practice group at Cleary Gottlieb Steen & Hamilton LLP, on Williams v. Illinois, a Supreme Court case that involves the Confrontation Clause, which entitles a criminal defendant to confront an accusing witness in court. The issue at hand is whether said clause is infringed when a report not introduced into evidence at trial is used by an expert to testify about the results of testing that has been conducted by a non-testifying third party. …


Home Is Where The Crime Is, Bennett Capers Jan 2011

Home Is Where The Crime Is, Bennett Capers

Faculty Scholarship

No abstract provided.


Schultz V. Bank Of America: A Fly In The Financial Buttermilk - Clarifying The Common Knowledge Exception To Improve Litigation Efficiency And Bank Safety, Lauren M. Elfner Jan 2011

Schultz V. Bank Of America: A Fly In The Financial Buttermilk - Clarifying The Common Knowledge Exception To Improve Litigation Efficiency And Bank Safety, Lauren M. Elfner

Maryland Law Review Online

No abstract provided.


Misinterpreted Justice: Problems With The Use Of Islamic Legal Experts In U.S. Trial Courts, Peter W. Beauchamp Jan 2011

Misinterpreted Justice: Problems With The Use Of Islamic Legal Experts In U.S. Trial Courts, Peter W. Beauchamp

NYLS Law Review

No abstract provided.


Where Are The Records? Handling Lost/Destroyed Records In Child Welfare Tort Litigation, Dale Margolin Cecka Jan 2011

Where Are The Records? Handling Lost/Destroyed Records In Child Welfare Tort Litigation, Dale Margolin Cecka

Law Faculty Publications

As child welfare professionals, we have all encountered the “missing” record, most often during day-to-day advocacy. For those who practice child welfare tort litigation, incomplete discovery is also common, even though case records can be critical in determining negligence or malfeasance. In other forms of civil litigation, judges are asked to hold parties accountable for losing or destroying records, and juries are allowed to draw negative inferences about the missing evidence. In contrast, an investigation of child welfare torts reveals that when a defending agency fails to produce credible records, the issue is simply not litigated or does not affect …


Judicial Gatekeeping And The Seventh Amendment: How Daubert Infringes Upon The Constitutional Right To A Civil Jury Trial, Brandon L. Boxler Jan 2011

Judicial Gatekeeping And The Seventh Amendment: How Daubert Infringes Upon The Constitutional Right To A Civil Jury Trial, Brandon L. Boxler

W&M Law Student Publications

This Article begins by reviewing the history, purpose, and function of the Seventh Amendment within the American constitutional system. It then discusses the Supreme Court‘s analytical framework for preserving the fundamental features of the right to a civil jury trial while simultaneously permitting rational legal development of the jury system. Next, the Article provides a brief overview of the Court‘s Daubert jurisprudence, and argues that the creation of judicial gatekeeping has caused an institutional shift of adjudicatory authority away from juries and into the hands of judges in violation of the Seventh Amendment. The Article concludes by suggesting three legal …


The Association Of Adult Businesses With Secondary Effects: Legal Doctrine Social Theory, And Empirical Evidence, Alan C. Weinstein, Richard Mccleary Jan 2011

The Association Of Adult Businesses With Secondary Effects: Legal Doctrine Social Theory, And Empirical Evidence, Alan C. Weinstein, Richard Mccleary

Cardozo Arts & Entertainment Law Journal

No abstract provided.