Evidence Commons^™

It’S In The Bag: Voluntariness, Scope, And The Authority To Grant Consent - United States V. Harris, Daniel Fier

Touro Law Review

No abstract provided.

Silencing The Victims In Child Sexual Abuse Prosecutions: The Confrontation Clause And Children's Hearsay Statements Before And After Michigan V. Bryant, Deborah Paruch

Touro Law Review

No abstract provided.

Social Media, The Sixth Amendment, And Restyling: Recent Developments In The Federal Laws Of Evidence, Deborah Jones Merritt

Touro Law Review

No abstract provided.

Evidence, W. Randall Bassett, Geoffrey M. Drake, Madison H. Kitchens

Mercer Law Review

The 2011 term of the United States Court of Appeals for the Eleventh Circuit did not signal any new trends in the interpretation and application of the Federal Rules of Evidence, which comes as no surprise given that the Rules have been in effect since 1975. The 2011 term, however, did include a case of first impression for the court and several cases applying well-established law to new and unique factual scenarios. Several of these cases resulted in unpublished opinions bearing no precedential weight but, nevertheless, offering guidance to the practitioner in future cases.

While the admissibility of hearsay testimony …

Guilty Until Proven Innocent: Providing Effective Relief To The Actually Innocent In New York, Steven M. Cytryn

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

United States V. Diaz: The Gap Between Medication And Restoration, Bryson Mccollum

Mercer Law Review

In United States v. Diaz, the United States Court of Appeals for the Eleventh Circuit, in a case of first impression, determined whether the state met its burden in applying the United States Supreme Court's test articulated in Sell v. United States, to involuntarily medicate an incompetent, schizophrenic defendant. Based on the Sell test that was established in 2003, the court of appeals had to determine which evidentiary findings were sufficient to meet the clear and convincing evidence standard allowing the State of Georgia to forcibly medicate the appellant, Michael Diaz. The court of appeals found no clear …

Summary Of Tri-County Equipment & Leasing V. Klinke, 128 Nev. Adv. Op. No. 33, Daniella Labounty

Nevada Supreme Court Summaries

The court considered whether proof of workers’ compensation payments paid in California could be admitted into evidence in a personal injury action in Nevada. Because both states have statutes governing this issue, the Court decided that the Nevada statute shall govern. Applying Nevada law, the Court concluded that evidence of the actual amount of the benefits paid should be admitted and a clarifying jury instruction should have been given.

Summary Of Davis V. Beling, 128 Nev. Adv. Op. No. 28, Colin Seale

Nevada Supreme Court Summaries

The Court considered, on appeal, whether a court can admit evidence of compromise offers within real estate transactions for the purpose of demonstrating a failure to mitigate damages. Further, it considered whether real estate licensees are shielded from all forms of common law liability. Lastly, the Court considered whether compensatory damages should include diminution-in-value for a claim alleging fraud, whether carrying costs as consequential damages should be limited by the economic loss doctrine, and whether the district court erred in denying attorney’s fees provided for in listing and purchase agreements to the prevailing party.

The Embedded Epistemologist: Dispatches From The Legal Front, Susan Haack

Articles

In ordinary circumstances, we can assess the worth of evidence well enough without benefit of any theory; but when evidence is especially complex, ambiguous, or emotionally disturbing-as it often is in legal contexts-epistemological theory may be helpful. A legal fact-finder is asked to determine whether the proposition that the defendant is guilty, or is liable, is established to the required degree of proof by the [admissible] evidence presented; i.e., to make an epistemological appraisal. The foundherentist theory developed in Evidence and Inquiry can help us understand what this means; and reveals that degrees of proof cannot be construed as mathematical …

Addressing The Costs And Comity Concerns Of International E-Discovery, John T. Yip

Washington Law Review

The volume of electronically stored information (ESI) is expanding rapidly. Under the Federal Rules of Civil Procedure, litigants may request electronic discovery (ediscovery) of many different forms of ESI. In 1978, the U.S. Supreme Court held that the party responding to an e-discovery request presumptively pays all e-discovery costs, including the costs of preserving, producing, and reviewing the requested ESI. Therefore, the rapidly increasing volume of ESI has substantially increased the costs of e-discovery for producing parties. In the 2003 case, Zubulake v. UBS Warburg LLC, the U.S. District Court for the Southern District of New York established a …

Trial Objections From Beginning To End: The Handbook For Civil And Criminal Trials, Craig Lee Montz

Pepperdine Law Review

No abstract provided.

Privacy Rights Left Behind At The Border: The Exhaustive, Exploratory Searches Effectuated In United States V. Cotterman, Aaron Mcknight

BYU Law Review

No abstract provided.

Empty Promises: Miranda Warnings In Noncustodial Interrogations, Aurora Maoz

Michigan Law Review

You have the right to remain silent; anything you say can be used against you in a court of law. You have the right to an attorney; if you cannot afford an attorney, one will be provided to you at the state's expense. In 2010, the Supreme Court declined an opportunity to resolve the question of what courts should do when officers administer Miranda warnings in a situation where a suspect is not already in custody-in other words, when officers are not constitutionally required to give or honor these warnings. While most courts have found a superfluous warning to be …

The Advice-Of-Counsel Defense In Patent Infringement Cases: How Far Does Waiver Of Work Product Extend?, Cecil C. Kuhne Iii

Pepperdine Law Review

No abstract provided.

The Impact Of Daubert On The Admissibility Of Behavioral Science Testimony, Henry F. Fradella, Adam Fogarty, Lauren O'Neill

Pepperdine Law Review

No abstract provided.

Flow Chart For Hearsay And The Confrontation Clause 'Crawford Through Bernadyn' (April 18, 2012). University Of Baltimore School Of Law Legal Studies Research Paper, Lynn Mclain

All Faculty Scholarship

A series of flowcharts outline the nuances of hearsay law and the Confrontation Clause.

The Impact Of Daubert On Forensic Science, Henry F. Fradella, Lauren O'Neill, Adam Fogarty

Pepperdine Law Review

No abstract provided.

Following The Rules: Exclusion Of Witness, Sequestration, And No-Consultation Orders, Richard H. Underwood

Law Faculty Scholarly Articles

In this Article, Professor Underwood discusses the varying application of Rule 615 of the Federal Rules of Evidence, which provides for the exclusion of witnesses. He explains that varying application of Rule 615 and state evidence rules following Rule 615's language creates misunderstandings at trial. Thus, it is important to know not only the federal and local rules but also the "way things are done" in a particular court.

Fred Zain, The Csi Effect, And A Philosophical Idea Of Justice: Using West Virginia As A Model For Change, Kathleen Keough Griebel

West Virginia Law Review

No abstract provided.

Are The 2011 Changes To Federal Rules Of Evidence 413-415 Invalid - The Rules Enabling Act And The Drafters' Definition Of Stylistic, Elizabeth L. Decoux

North Carolina Central Law Review

No abstract provided.

The Restyled Federal Rules Of Evidence, Davison M. Douglas, Sidney A. Fitzwater, Daniel J. Capra, Robert A. Hinkle, Joseph Kimble, Joan N. Ericksen, Marilyn L. Huff, Reena A. Raggi, Geraldine Soat Brown, Edward H. Cooper, Kenneth S. Broun, Harris L. Hartz, Katharine Traylor Schaffzin, Roger C. Park, Deborah J. Merritt, Andrew D. Hurwitz, W. Jeremy Counseller, Paula Hannaford-Agor

William & Mary Law Review

A lightly edited transcript of the Symposium held at the William & Mary School of Law on October 28, 2011.

Neuroscience In The Courtroom: An International Concern, Dominique J. Church

William & Mary Law Review

No abstract provided.

A Tale Of Two Sciences, Erin Murphy

Michigan Law Review

It was the best of times, it was the worst of times . .. . So might one describe the contrasting portraits of DNA's ascension in the criminal justice system that are drawn in David Kaye's The Double Helix and the Law of Evidence and Sheldon Krimsky and Tania Simoncelli's Genetic Justice: DNA Data Banks, Criminal Investigations, and Civil Liberties. For Kaye, the double helix stands as the icon of twenty-first-century achievement, a science menaced primarily by the dolts (lawyers, judges, and the occasional analyst) who misuse it. For Krimsky and Simoncelli, DNA is a seductive forensic tool that is …

Client Confidentiality And The External Regulation Of The Legal Profession: Reporting Requirements In The United States And United Kingdom, Maria Castilla

Cardozo Public Law, Policy & Ethics Journal

The note examines the dual role of lawyers as both zealous advocates for their clients and guardians of justice, highlighting the tension this creates, particularly in the context of corporate scandals. It critiques the notion that lawyers should solely serve their clients and suggests a more active role in preventing misconduct. The analysis compares regulatory approaches in the U.S. and the U.K., noting that the U.S. relies more on self-regulation while the U.K. emphasizes external oversight, reflecting differing societal perceptions of lawyers' roles.

Accomplice Confessions And The Confrontation Clause: Crawford V. Washington Confronts Past Issues With A New Rule, Kjirstin Graham

Pepperdine Law Review

No abstract provided.

Georgia's New Evidence Code - An Overview, Paul S. Milich

Georgia State University Law Review

On May 3, 2011, Governor Nathan Deal signed into law House Bill 24 (HB 24) bringing a new set of evidence rules to the State of Georgia.

The new rules went into effect on January 1, 2013. The author of this article was the Reporter for the State Bar Evidence Study Committee when new rules were first proposed back in the mid-1980s, and again throughout the recent, successful effort to reform the rules.

Part I of this article will give a brief history of the twenty-six-year effort to bring new evidence rules to Georgia. Part II will provide a structural …

Going After The 'Hired Guns': Is Improper Expert Witness Testimony Unprofessional Conduct Or The Negligent Practice Of Medicine?, Jennifer A. Turner

Pepperdine Law Review

No abstract provided.

Summary Of Bigpond Vs. Nevada, 128 Nev. Advanced Opinion No. 10, Emily Navasca

Nevada Supreme Court Summaries

The Court considered an appeal from a district court regarding admission of evidence of “other crimes, wrongs or acts” for non-propensity purposes not listed in NRS 48.045(2).

California's Opportunity To Create Historical Precedent Regarding A Mediated Settlement Agreement's Effect On Mediation Confidentiality And Arbitrability , Susan Nauss Exon

Pepperdine Dispute Resolution Law Journal

Confidentiality serves as a cornerstone of mediation. The public policy underlying confidentiality is the promotion of candid communications between disputing parties. As explained in this article, mediation confidentiality affects more than just communication. It affects other important mediation values, such as party self-determination and mediator impartiality. Mediation confidentiality affects parties' ability to enforce their mediated agreements. Finally, confidentiality affects multiple dispute resolution processes, as seen by the interrelated nature of mediation and arbitration in the seminal case of Fair v. Bakhtiari.

When 10 Trials Are Better Than 1000: An Evidentiary Perspective On Trial Sampling, Edward K. Cheng

Vanderbilt Law School Faculty Publications

In many mass tort cases, separately trying all individual claims is impractical, and thus a number of trial courts and commentators have explored the use of statistical sampling as a way of efficiently processing claims. Most discussions on the topic, however, implicitly assume that sampling is a “second best” solution: individual trials are preferred for accuracy, and sampling only justified under extraordinary circumstances. This Essay explores whether this assumption is really true. While intuitively one might think that individual trials would be more accurate at estimating liability than extrapolating from a subset of cases, the Essay offers three ways in …