Evidence Commons^™

Proving Personal Use: The Admissibility Of Evidence Negating Intent To Distribute Marijuana, Stephen Mayer

Michigan Law Review

Against the backdrop of escalating state efforts to decriminalize marijuana, U.S. Attorneys’ Offices continue to bring drug-trafficking prosecutions against defendants carrying small amounts of marijuana that are permitted under state law. Federal district courts have repeatedly barred defendants from introducing evidence that they possessed this marijuana for their own personal use. This Note argues that district courts should not exclude three increasingly common kinds of “personal use evidence” under Federal Rules of Evidence 402 and 403 when that evidence is offered to negate intent to distribute marijuana. Three types of personal use evidence are discussed in this Note: (1) a …

A Simple Theory Of Complex Valuation, Anthony J. Casey, Julia Simon-Kerr

Michigan Law Review

Complex valuations of assets, companies, government programs, damages, and the like cannot be done without expertise, yet judges routinely pick an arbitrary value that falls somewhere between the extreme numbers suggested by competing experts. This creates costly uncertainty and undermines the legitimacy of the court. Proposals to remedy this well-recognized difficulty have become increasingly convoluted. As a result, no solution has been effectively adopted and the problem persists. This Article suggests that the valuation dilemma stems from a misconception of the inquiry involved. Courts have treated valuation as its own special type of inquiry distinct from traditional fact-finding. We show …

Dna By The Entirety, Natalie Ram

All Faculty Scholarship

The law fails to accommodate the inconvenient fact that an individual’s identifiable genetic information is involuntarily and immutably shared with her close genetic relatives. Legal institutions have established that individuals have a cognizable interest in controlling genetic information that is identifying to them. The Supreme Court recognized in Maryland v. King that the Fourth Amendment is implicated when arrestees’ DNA is analyzed, and the Genetic Information Nondiscrimination Act protects individuals from genetic discrimination in the employment and health-insurance markets. But genetic information is not like other forms of private or personal information because it is shared — immutably and involuntarily …

Summary Of Mitchell V. Eighth Jud. Dist. Ct., 131 Nev. Adv. Op. 63076 (Apr. 30 2015), Stacy Newman

Nevada Supreme Court Summaries

Original petition for a writ of mandamus directing the district court to sustain the privileges asserted by a defendant doctor in a medical malpractice case to his personal counseling and treatment records was granted and denied in part. The court determined 1) Mitchell’s family and marital therapy records were privileged 2) Mitchell’s doctor-patient records were subject to NRS 49.245(3) patient-litigation exception, but 3) the doctor-patient records should have been reviewed in camera by the district court before discovery.

Burris V. State: Suggestions For The Continued Development Of The Rule For Admitting The Testimony Of Gang Experts, Michael Jacko

Maryland Law Review Online

No abstract provided.

Newsroom: Waters '98 Testifies For Innocence Project, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

The Cost Of Evidence: Examining The Fda's Treatment Of Critically-Needed Drugs From An Ex Ante Perspective, Julie Dorais J.D., M.P.H.

North Carolina Central University Science & Intellectual Property Law Review

No abstract provided.

Spies In The Skies: Dirtboxes And Airplane Electronic Surveillance, Brian L. Owsley

Michigan Law Review First Impressions

Electronic surveillance in the digital age is essentially a cat-and-mouse game between governmental agencies that are developing new techniques and technologies for surveillance, juxtaposed against privacy rights advocates who voice concerns about such technologies. In November 2014, there was a discovery of a new twist on a relatively old theme. Recently, the Wall Street Journal reported that the U.S. Marshals Service was running a surveillance program employing devices—dirtboxes—that gather all cell phone numbers in the surrounding area. Other federal agencies, including the Drug Enforcement Agency, Immigration and Custom Enforcement, and the Department of Homeland Security, are also documented to have …

Expanding Wisconsin's Approach To The Business Records Exception, Bryan Whitehead

Marquette Law Review

This Comment analyzes Wisconsin’s application of the business records exception when a litigant seeks the admission of third-party records. In 2010, the Wisconsin Court of Appeals, in Palisades Collection LLC v. Kalal, applied a narrow interpretation of the exception’s requirements that stands in contrast to manner in which federal jurisdictions apply the exception in the same context. This Comment addresses the question of whether Wisconsin’s narrower construction of the exception is the best approach to the evidentiary rule. In doing so, this Comment first reviews the federal business record exception, its requirements, and federal courts’ treatment of the foundational …

Testing Tribe’S Triangle, Justin Sevier

Scholarly Publications

Since its inception, evidence policymakers have vacillated with respect to whether the rule barring hearsay evidence at trial is a doctrine designed to promote decisional accuracy or a doctrine designed to promote procedural justice.

To the extent that policymakers view the rule barring hearsay evidence as promoting decisional accuracy, the rationale for this view stems from the “testimonial triangle” promulgated by Professor Laurence Tribe, which conceptualizes the objections to hearsay evidence at common law. Tribe’s testimonial triangle states that (1) several infirmities lurk behind all testimony provided in court, and (2) testimony based on hearsay is subject to two sets …

Is Limited Remand Required If The District Court Admitted Or Excluded Evidence Without A Daubert Analysis?, Robert B. Gilbreath

The Journal of Appellate Practice and Process

No abstract provided.

Gay Panic, Gay Victims, And The Case For Gay Shield Laws, J. Kelly Strader, Molly Selvin, Lindsey Hay

Cardozo Law Review

In a highly publicized "gay panic" case, Brandon McInerney shot and killed Larry King in their middle school classroom. King was a self-identified gay student who sometimes wore jewelry and eye makeup to school and, according to those who knew him, was possibly transgender. Tried as an adult for first-degree murder, McInerney asserted a heat of passion defense based upon King's alleged sexual advances. The jury deadlocked, with a majority accepting McInerney's defense.

Drawing largely upon qualitative empirical research, this Article uses the Larry King murder case as a prism though which to view the doctrinal, theoretical, and policy bases …

Montana Rules Of Evidence: Essential Accessory In Any Court, Cynthia Ford

Faculty Journal Articles & Other Writings

No abstract provided.

A Prosecutor's Guide To Character Evidence: When Is Uncharged Possession Evidence Probative Of A Defendant's Intent To Distribute?, James Decleene

Marquette Law Review

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Verbal Speech Versus Visual Art: Evidence Of Unequal First Amendment Protection In Right Of Publicity Jurisprudence, Daniel Forman

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Determining When Extrinsic Evidence Not Attached To Or Incorporated By Reference In A Pleading May Be Considered On A Rule 12 Dismissal Motion, Laurence A. Steckman, Rita D. Turner

Touro Law Review

No abstract provided.

Evaluating The Evaluation: Reliance Upon Mental Health Assessments In Cases Of Alleged Child Sexual Abuse, Sarah F. Shelton

Nevada Law Journal

No abstract provided.

The Admissibility Of Trueallele: A Computerized Dna Interpretation System, Katherine L. Moss

Washington and Lee Law Review

No abstract provided.

Tribal Courts Part Ii: Crow, Ft. Belknap, Fort Peck And Northern Cheyenne, Cynthia Ford

Faculty Journal Articles & Other Writings

No abstract provided.

Hiding The Elephant: How The Psychological Techniques Of Magicians Can Be Used To Manipulate Witnesses At Trial, Sydney A. Beckman

Nevada Law Journal

No abstract provided.

Should The Medium Affect The Message? Legal And Ethical Implications Of Prosecutors Reading Inmate-Attorney Email, Brandon P. Ruben

Fordham Law Review

    The attorney-client privilege protects confidential legal communications between a party and her attorney from being used against her, thus encouraging full and frank attorney-client communication. It is a venerable evidentiary principle of American jurisprudence. Unsurprisingly, prosecutors may not eavesdrop on inmate-attorney visits or phone calls or read inmate-attorney postal mail. Courts are currently divided, however, as to whether or not they can forbid prosecutors from reading inmate- attorney email.

    This Note explores the cases that address whether federal prosecutors may read inmates’ legal email. As courts have unanimously held, because inmates know that the Bureau of Prisons (BOP) monitors all …

Evidence Rules In Montana's Tribal Courts, Part I Of Ii, Cynthia Ford

Faculty Journal Articles & Other Writings

No abstract provided.

Letting Innocence Suffer: The Need For Defense Access To The Law Enforcement Dna Database, Jason Kreag

Cardozo Law Review

Law enforcement has gradually amassed a sizable DNA database that holds considerable promise for solving cold cases and identifying suspects. The Supreme Court has blessed this effort, allowing investigators to include profiles of arrestees as well as convicted persons in the database. At present, though, law enforcement has a near monopoly on use of the DNA database, leaving defendants at the whim of the law enforcement officials who control access to this tool. Legal scholars have alternatively praised and decried the database, but none has examined its prospects for proving defendants' innocence post-conviction. This Article fills that void by identifying …

Hijacking Justice: Assessing The Emergency Driven Analysis Of Confrontation Clause Jurisprudence, Steven C. Berlowitz

Cardozo Law Review

No abstract provided.

"New Wine In An Old Bottle": The Advent Of Social Media Discovery In Pennsylvania Civil Litigation Matters, Daniel E. Cummins

Villanova Law Review (1956 - )

No abstract provided.

Testimonial Is As Testimonial Does, Ben Trachtenberg

Florida Law Review

In the decade since Crawford v. Washington declared “testimony” to be the touchstone of the Confrontation Clause, courts—from the humblest criminal trial court to the Supreme Court itself—have struggled with two problems. First, defining “testimonial” has proven difficult. Second, in certain cases, the results of defining “testimonial” as Crawford would seem to require have proven unappealing. Justice Antonin Scalia, the author of the majority opinion in Crawford and the most vocal cheerleader of its new doctrine, has consequently had trouble maintaining a majority of Justices for what would seem to be straightforward applications of the opinion. Professor Richard D. Friedman …

The Mold That Shapes Hearsay Law, Richard D. Friedman

Florida Law Review

In response to an article previously published in the Florida Law Review by Professor Ben Trachtenberg, Professor Friedman argues that the historical thesis of Crawford v. Washington is basically correct: The Confrontation Clause of the Sixth Amendment reflects a principle about how witnesses should give testimony, and it does not create any broader constraint on the use of hearsay. Friedman argues that this is an appropriate limit on the Clause, and that in fact for the most part there is no good reason to exclude nontestimonial hearsay if live testimony by the declarant to the same proposition would be admissible. …

Hague Evidence Convention: A Practical Guide To The Convention, United States Case Law, Convention - Sponsored Review Commissions (1978 And 1985), And Responses Of Other Signatory Nations: With Digest Of Cases And Bibliography, Denise L. Dunham

Georgia Journal of International & Comparative Law

No abstract provided.

Reasonable Expectations Of Privacy Settings: Social Media And The Stored Communications Act, Christopher J. Borchert, Fernando M. Pinguelo, David Thaw

Duke Law & Technology Review

In 1986, Congress passed the Stored Communications Act (“SCA”) to provide additional protections for individuals’ private communications content held in electronic storage by third parties. Acting out of direct concern for the implications of the Third-Party Records Doctrine—a judicially created doctrine that generally eliminates Fourth Amendment protections for information entrusted to third parties—Congress sought to tailor the SCA to electronic communications sent via and stored by third parties. Yet, because Congress crafted the SCA with language specific to the technology of 1986, courts today have struggled to apply the SCA consistently with regard to similar private content sent using different …

Imaging Brains, Changing Minds: How Pain Neuroimaging Can Inform The Law, Amanda C. Pustilnik

Faculty Scholarship

What would the law do differently if it could see into the black box of the mind? One of the most valuable things it might do is reform the ways it deals with pain. Pain is ubiquitous in law, from tort to torture, from ERISA to expert evidence. Yet legal doctrines grapple with pain poorly, embodying concepts that are generations out of date and that cast suspicion on pain sufferers as having a problem that is “all in their heads.”

Now, brain-imaging technologies are allowing scientists to see the brain in pain—and to reconceive of many types of pain as …