Evidence Commons^™

Making Horses Drink: Conceptual Change Theory And Federal Rule Of Evidence 502, Liesa L. Richter

Faculty Articles

No abstract provided.

The Extension Of The Presumption Of Legitimacy To Same-Sex Couples In New York, Alexandra Eisman

Cardozo Journal of Equal Rights & Social Justice

The note argues that the presumption of legitimacy, a cornerstone of family law, should be extended to same-sex couples to ensure legal equality and protect the rights of their children. It critiques the traditional application of the presumption, which excludes same-sex couples, and advocates for its evolution to align with modern legal trends and the best interests of children. The analysis emphasizes the importance of legislative and judicial action to address the disparities faced by same-sex families under current laws.

The Epistemological Trend In The Evolution Of The Law Of Expert Testimony: A Scrutiny At Once Broader, Narrower, And Deeper, Edward J. Imwinkelried

Georgia Law Review

The thesis of this Article is that we are moving toward a
fundamentally epistemological approach to determining
the admissibility of expert testimony. The first part of the
Article notes that while many Frye jurisdictions exempted
soft science and nonscientific expertise, the Daubert line of
authority mandates that like an epistemologist, a trial
judge examine knowledge claims by any expert. The
second part addresses the question of the breadth of the
judge's analysis. The second part points out that under

the marketplace and general acceptance tests, courts
sometimes conducted a global analysis and inquired
generally whether the discipline itself was recognized …

The Evidence Of Things Not Seen: Non-Matches As Evidence Of Innocence, James S. Liebman, Shawn Blackburn, David Mattern, Jonathan Waisnor

Faculty Scholarship

Exonerations famously reveal that eyewitness identifications, confessions, and other “direct” evidence can be false, though police and jurors greatly value them. Exonerations also reveal that “circumstantial” non-matches between culprit and defendant can be telling evidence of innocence (e.g., an aspect of an eyewitness’s description of the perpetrator that does not match the suspect she identifies in a lineup, or a loose button found at the crime scene that does not match the suspect’s clothes). Although non-matching clues often are easily explained away, making them seem uninteresting, they frequently turn out to match the real culprit when exonerations reveal that the …

Educating For The Future: Teaching Evidence In The Technological Age, Denise H. Wong

Research Collection Yong Pung How School Of Law

The advent of the technological age has had significant effect on litigation practice, none more so than in the area of evidence gathering and presentation in court. A significant proportion of evidence that is gathered for both criminal and civil matters is now electronic in nature, and this necessitates a change in the way that lawyers think and advise on evidential issues. It is argued here that rather than simply focusing on principles relating to the admissibility of evidence in court, the traditional course on evidence law should be modified to equip students with an intellectual framework that conceives of …

Trial By Preview, Bert I. Huang

Faculty Scholarship

It has been an obsession of modern civil procedure to design ways to reveal more before trial about what will happen during trial. Litigants today, as a matter of course, are made to preview the evidence they will use. This practice is celebrated because standard theory says it should induce the parties to settle; why incur the expenses of trial, if everyone knows what will happen? Rarely noted, however, is one complication: The impact of previewing the evidence is intertwined with how well the parties know their future audience-that is, the judge or the jury who will be the finder …

Narrative, Truth, And Trial, Lisa Kern Griffin

Faculty Scholarship

This Article critically evaluates the relationship between constructing narratives and achieving factual accuracy at trials. The story model of adjudication— according to which jurors process testimony by organizing it into competing narratives—has gained wide acceptance in the descriptive work of social scientists and currency in the courtroom, but it has received little close attention from legal theorists. The Article begins with a discussion of the meaning of narrative and its function at trial. It argues that the story model is incomplete, and that “legal truth” emerges from a hybrid of narrative and other means of inquiry. As a result, trials …

Authentication Of Social Media Evidence, Paul W. Grimm, Lisa Yurwit Bergstrom, Melissa M. O'Toole-Loureiro

Faculty Scholarship

The authentication of social media evidence has become a prevalent issue in litigation today, creating much confusion and disarray for attorneys and judges. By exploring the current inconsistencies among courts' decisions, this Article demonstrates the importance of the interplay between Federal Rules of Evidence 901, 104(a), 104(b), and 401-all essential rules for determining the admissibility and authentication of social media evidence. Most importantly, this Article concludes by offering valuable and practical suggestions for attorneys to authenticate social media evidence successfully.

The Degrading Character Rule In American Criminal Trials, Paul S. Milich

Georgia Law Review

The rule prohibiting evidence of the accused's bad
character is steadily degrading as courts and legislatures
expand existing exceptions and add new ones. In Georgia,

we saw the rule almost disappear as trial courts blithely
admitted a defendant's past crimes to prove his or her
"bent of mind" to commit the crime charged. This Article
examines why the character rule is losing ground.
The thesis is that a rule requiring as much careful
balancing as the character rule needs a clear, strong
justification to hold its own when faced with competing
claims to admit the evidence in the search for …

Searching For Truth In The American Law Of Evidence And Proof, D. Michael Risinger

Georgia Law Review

The ideology of the trial process puts discovery of truth
at center stage. This is made clear by the language of
Federal Rule of Evidence 102, upon which New Georgia
Rule of Evidence 24-1-1 is obviously based. Both of these
rules make the ascertainment of truth one of the two goals
of the trial (just determination being the other). However,
the term "truth" has been used in many ways in many
different contexts and traditions. What notion of truth did
the drafters have in mind?
This Article answers that question by reference to what
has come to be known as …

Judicial Gatekeeping Of Suspect Evidence: Due Process And Evidentiary Rules In The Age Of Innocence, Keith A. Findley

Georgia Law Review

The growing number of wrongful convictions exposed
over the past two-and-a-half decades, and the research
that points to a few recurring types of flawed evidence in
those cases, raise questions about the effectiveness of the
rules of evidence and the constitutional admissibility
standards that are designed to guard against unreliable
evidence. Drawing on emerging empirical data, this
Article concludes that the system can and should be

adjusted to do a better job of guarding against undue
reliance on flawed evidence. The Article first considers the
role of reliability screening as a constitutional concern.
The wrongful convictions data identify what might …