Evidence Commons^™

Signal Vs. Noise: Some Comments On Professor Stein's Theory Of Evidential Efficiency, Emily Spottswood

Scholarly Publications

In this Essay, I examine Professor Stein's intriguing new theory of evidential efficiency, which posits that judges should admit evidence whenever it has a sufficiently high "signal-to-noise ratio." I explore a slightly different definition of the concepts of "signal" and "noise" than Stein, based upon likelihood ratio values rather than the underlying probabilities of events, and I explain why these altered concepts may be analytically superior. Additionally, I call into question the strength of the connection between the signal-to-noise ratio of a piece of evidence and the costs of admitting it at trial. Nevertheless, Stein's project is worthy of great …

Scientific Advances In Eyewitness Identification Evidence, Nancy K. Steblay

William Mitchell Law Review

No abstract provided.

Recent Development: Hailes V. State: The State May Appeal A Trial Court's Ruling Excluding A Dying Declaration; The Length Of Time Between A Declarant's Statement And Death Is Irrelevant In A Dying Declaration Analysis; The Confrontation Clause Is Inapplicable To Dying Declarations, Lauren A. Panfile

University of Baltimore Law Forum

The Court of Appeals of Maryland held that the State may appeal a trial court’s suppression of a victim’s dying declaration based on the legislative intent of Section 12-302(c)(4)(i) of the Maryland Code, Courts and Judicial Procedure Article (“section 12-302(c)(4)(i)”). Hailes v. State, 442 Md. 488, 497-98, 113 A.3d 608, 613-14 (2015). The court further held that a victim’s statement, made while on life support, was a dying declaration regardless of the fact that the victim died two years after making the statement. Id. at 506, 113 A.3d at 618. Finally, the court held that the Confrontation Clause of the …

Recent Development: Sublet V. State: Authentication Of Evidence From Social Networking Websites Requires A Trial Judge To Find Sufficient Proof From Which A Reasonable Juror Could Conclude That The Evidence Is What The Proponent Claims It To Be, Denise A. Blake

University of Baltimore Law Forum

The Court of Appeals of Maryland, in three consolidated cases, held that a trial judge must determine that evidence from a social networking website meets the “reasonable juror” standard of authentication as a condition precedent to admissibility. Sublet v. State, 442 Md. 632, 678, 113 A.3d 695, 722 (2015). This standard requires a preliminary determination by the trial judge that a reasonable juror could find the evidence is what the proponent claims it to be.

Visualizing Dna Proof, Nicholas L. Georgakopoulos

Criminal Law Practitioner

No abstract provided.

Amending Rape Shield Laws: Outdated Statutes Fail To Protect Victims On Social Media, 48 J. Marshall L. Rev. 1087 (2015), Sydney Janzen

UIC Law Review

This Comment will first discuss the discoverability and admissibility of social media evidence in criminal and/or civil sexual assault cases. Section II(A) provides a broad overview of both federal and state rape shield laws, including the legislative policies behind their enactments, as well as the modern expansion of social media in the context of the legal system. Section II(B) will address the modern utility of social media in the context of the legal system. Section III first analyzes how courts look at discoverability and admissibility of social media evidence generally, and then focuses on sexual assault cases specifically. Further, Section …

Taking A Bite Out Of Forensic Science: The Misuse Of Accelerant-Detecting Dogs In Arson Cases, 48 J. Marshall L. Rev. 1149 (2015), Andrew Scott

UIC Law Review

This Comment identifies the proper uses of canine handler teams in arson investigations and trials. Part II discusses the origins of forensic science in criminal trials, the use of expert witnesses in the courtroom, the history and role of forensic science and canine handler teams in arson cases, and the problem of “junk science.” Part III analyzes the pros and cons of using canine handler teams in arson investigations and the dilemma courts face when confronted with unconfirmed canine alerts. Part IV resolves the issue of using canine handler teams in arson investigations. First, it advocates for their continued use …

Tell Us A Story But Don’T Make It A Good One: Embracing The Tension Regarding Emotional Stories And The Federal Rule Of Evidence 403, Cathren Koehlert-Page

Faculty Scholarship

No abstract provided.

Forensic Evidence And The Court Of Appeal For England And Wales, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

The Criminal Division of the Court of Appeal has extensively analyzed the role of forensic evidence. In doing so, the court has grappled with the admissibility and reliability of a broad range of forensic evidence, from DNA and computer forensics to medical and psychological proof, to more outlying subjects like facial mapping, fiber analysis, or voice identification. The court has analyzed these subjects from two perspectives: the admissibility of such evidence in the lower courts and the admissibility of such evidence as fresh evidence on appeal. In both contexts, the court has taken a practical approach to admitting forensic proof …

Panel 3: Chronic Pain, Psychogenic Pain, And Emotion, Robert Dinerstein

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Negotiator's Nook: The Ins And Outs Of Effective Negotiation, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Compensation Conundrum In Partial Takings Cases And The Consequences Of Borough Of Harvey Cedars, Brittany Harrison

Cardozo Law Review de•novo

This Note suggests that the goals the Harvey Cedars court sought to achieve—including reduced windfalls and greater certainty in the law—would best be achieved by applying the market value rule as adopted in California, which follows a value plus damages approach and requires payment for the part taken. Part I of this Note introduces the Harvey Cedars case. Part II provides a historical background to partial takings cases and a discussion of the special benefits doctrine, a type of compensation method that emerged as a compromise position to compensation to better protect condemnees. Part III surveys the various compensation methods …

Data Breach (Regulatory) Effects, David Thaw

Cardozo Law Review de•novo

Breach notification laws have been a major driver of data protection efforts in U.S. organizations for more than a decade. This form of disclosure-based regulation exists in 47 of 50 U.S. states, as well as four other U.S. jurisdictions, but has yet to be adopted as a law of general applicability at the federal level.

This Essay considers the effects the structure of existing disclosure-based cybersecurity regulation has on the efficacy of U.S. firms’ cybersecurity measures. Drawing on previous empirical work and analysis of firm incentives, it suggests two modest conclusions about the most efficacious legal structures: (1) that any …

Cell Phones, Brain Cancer, And Scientific Outliers In Murray V. Motorola, David H. Kaye

Faculty Scholarship

Pending before the District of Columbia's highest court in a case asking whether cell phones can cause cancer is whether to replace the jurisdiction's venerable Frye standard for reviewing the admissibility of scientific evidence with the approach adopted by the U.S. Supreme Court in Daubert v. Merrell Dow. The author analyzes one aspect of the two evidentiary standards that leads him to question the trial judge's suggestion in Murray v. Motorola that adopting the Daubert perspective would allow greater leeway in excluding the plaintiff's evidence.

Serial: The Presumption Of Guilt, Staff Editors

University of Baltimore Law Review

Below is a transcript of a panel discussion with key participants in the defense of Adnan Syed which inspired the popular Serial podcast. The Student Bar Association of the University of Baltimore School of Law hosted the event on February 12, 2015.

Comments: Hipaa Confusion: How The Privacy Rule Authorizes "Informal" Discovery, Myles J. Poster

University of Baltimore Law Review

No abstract provided.

Weakness In Numbers: A Brief Introduction, Ryan G. Ganzenmuller, Matthew A. Eldred

Buffalo Law Review

No abstract provided.

The Lack Of Deference To Medical Opinions In Adjudicating Social Security Disability Claims, Amrita Maharaj

Buffalo Law Review

No abstract provided.

P-Values, Priors, And Procedure In Antidiscrimination Law, Jason R. Bent

Buffalo Law Review

No abstract provided.

Inefficient Evidence, Alex Stein

Faculty Scholarship

No abstract provided.

Fitting The Forum To The Pernicious Fuss: A Dispute System Design To Address Implicit Bias And 'Isms In The Workplace, Elayne E. Greenberg

Cardozo Journal of Conflict Resolution

This paper proposes a dispute system design to address workplace discrimination caused by implicit biases so that employees and employers involved in such disputes can secure a more responsive justice than existing legal processes are able to provide. Workplace discrimination caused by implicit bias continues to contaminate our work environment despite our focused legal efforts to combat such overt "isms" as sexism, racism, ageism, and ableism. Although overt expressions of bias have significantly decreased in recent years, expressions of implicit bias, the primary cause of workplace discrimination, persist.

This discussion takes place in three parts. Part One describes implicit bias, …

Why Illinois Should Adopt Federal Rule Of Evidence 803(18) To Allow The Learned Treatise Exception To The Hearsay Rule, 39 S. Ill. U. L.J. 275 (2015), Ralph Ruebner, Katarina Durcova, Amy Taylor

UIC Law Open Access Faculty Scholarship

Illinois still adheres to a rigid and outdated common law principle that treats a learned treatise as hearsay. This principle stands at odds with the adoption of Federal Rules of Evidence 703 ("FRE 703")' and 705 ("FRE 705") by the Illinois Supreme Court. Illinois courts have developed clever ways to get around the common law prohibition thereby creating an incoherent and inconsistent jurisprudence that at times yields bizarre outcomes.

Adopting the federal learned treatise exception to the hearsay rule would set out a consistent standard in Illinois for admitting learned treatises and allowing them as substantive evidence. Now that Illinois …

Wrongful Convictions And Upstream Reform In The Criminal Justice System, Kate Kruse

Faculty Scholarship

This Article explores the viability of upstream criminal justice reforms within the context of an adversary and procedural system of criminal justice, focusing on reforms in eyewitness identification procedures. Mistaken eyewitness identification evidence is often cited as the leading cause of wrongful convictions in the United States. Eyewitness identification reforms have also been the most developed upstream efforts to grow out of the innocence movement. The success and limitation of upstream reform in eyewitness identification shed light on the efficacy of upstream criminal justice system reform more generally, as well as in areas that are less developed, such as the …

Unspringing The Witness Memory And Demeanor Trap: What Every Judge And Juror Needs To Know About Cognitive Psychology And Witness Credibility, Mark W. Bennett

American University Law Review

The soul of America's civil and criminal justice systems is the ability of jurors and judges to accurately determine the facts of a dispute. This invariably implicates the credibility of witnesses. In making credibility determinations, jurors and judges necessarily decide the accuracy of witnesses' memories and the effect of the witnesses' demeanor on their credibility. Almost all jurisdictions' pattern jury instructions about witness credibility explain nothing about how a witness's memories for events and conversations work-and how startlingly fallible memories actually are. They simply instruct the jurors to consider the witness's "memory" with no additional guidance. Similarly, the same pattern …

Surrogate Testimony After Williams: A New Answer To The Question Of Who May Testify Regarding The Contents Of A Laboratory Report, Jennifer Alberts

Indiana Law Journal

No abstract provided.

The Promises And Pitfalls Of State Eyewitness Identification Reforms, Nicholas A. Kahn-Fogel

Law Faculty Scholarship

This article provides a comprehensive analysis of state-based eyewitness identification reforms, including legislative directives, evidentiary rules, and judicial interpretations of state constitutions as providing greater protection against the use of unreliable eyewitness evidence than the United State Supreme Court offered in its 1977 decision in Manson v. Brathwaite. While previous scholarship has included thorough consideration of a single state's eyewitness law, state-by-state analysis of a sub-issue in eyewitness law, and brief general surveys of state approaches to eyewitness reform, this article adds to the current body of scholarship with an in-depth evaluation of eyewitness identification law in states that have …

Doin' Time For An Unproven Crime: The Problem Of Unpreserved Evidence Sufficiency Issues In Criminal Appeals, Richard Sanders

St. Thomas Law Review

Sections I and II of the article lay out the general principles of the preservation rule and its fundamental-error exception. Section III discusses the Florida cases that have wrestled with the problem of unpreserved sufficiency issues in criminal cases. The problem in the cases-seen in F.B. and in the pre-F.B. district court cases-is that Florida courts do not say that all valid-but-unpreserved sufficiency issues should be remedied as fundamental error. This means there will be some cases where the evidence in the record fails to establish all the elements of the crime of conviction but the court will affirm because …

Merger And Acquisition Due Diligence: A Proposed Framework To Incorporate Data Privacy, Information Security, E-Discovery, And Information Governance Into Due Diligence Practices, James A. Sherer, Taylor M. Hoffman, Eugenio E. Ortiz

Richmond Journal of Law & Technology

Merger and Acquisition or “M&A” deals are both figuratively and literally big business, where the stakes for the organization are often the highest. While casual observers might expect that the importance attached to these deals makes each new deal the vanguard for incorporating metrics and practices regarding every efficiency and contingency, existing research demonstrates that this is decidedly not the case.

Wherever You Go, There You Are (With Your Mobile Device): Privacy Risks And Legal Complexities Associated With International ‘Bring Your Own Device’ Programs, Melinda L. Mclellan, James A. Sherer, Emily R. Fedeles

Richmond Journal of Law & Technology

The cross-use of mobile devices for personal and professional purposes—commonly referred to as “Bring Your Own Device” or “BYOD” for short—has created a new backdrop for doing business that was scarcely imaginable even ten years ago.

The Promises And Pitfalls Of State Eyewitness Identification Reforms, Nicholas A. Kahn-Fogel

Faculty Scholarly Works

This article provides a comprehensive analysis of state-based eyewitness identification reforms, including legislative directives, evidentiary rules, and judicial interpretations of state constitutions as providing greater protection against the use of unreliable eyewitness evidence than the United State Supreme Court offered in its 1977 decision in Manson v. Brathwaite. While previous scholarship has included thorough consideration of a single state's eyewitness law, state-by-state analysis of a sub-issue in eyewitness law, and brief general surveys of state approaches to eyewitness reform, this article adds to the current body of scholarship with an in-depth evaluation of eyewitness identification law in states that have …