Evidence Commons^™

Irresolute Testators, Clear And Convicing Wills Law, Jane B. Baron

Washington and Lee Law Review

Controversial recent wills law reforms, embodied in new provisions of both the Uniform Probate Code and the Restatement of Property, excuse so-called harmless errors in will execution and permit judicial correction of erroneous terms in a will or trust. Both reforms pose evidentiary dangers, as proof of the error must come from outside the attested instrument and will be offered after the testator’s death. To respond to this concern, both the error and the testator’s true intent must be established by “clear and convincing” evidence. This Article is the first to examine how courts have applied the clear and convincing …

Criminal Adjudication, Error Correction, And Hindsight Blind Spots, Lisa Kern Griffin

Washington and Lee Law Review

Concerns about hindsight in the law typically arise with regard to the bias that outcome knowledge can produce. But a more difficult problem than the clear view that hindsight appears to provide is the blind spot that it actually has. Because of the conventional wisdom about error review, there is a missed opportunity to ensure meaningful scrutiny. Beyond the confirmation biases that make convictions seem inevitable lies the question whether courts can see what they are meant to assess when they do look closely for error. Standards that require a retrospective showing of materiality, prejudice, or harm turn on what …

Miranda'S Truth: The Importance Of Adversarial Testing And Dignity In Confession Law, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The landmark decision of Miranda v. Arizona focuses on the important values of adversarial testing and human dignity. These values can be found among a constellation of values ordinarily aligned with constitutional criminal procedure cases like Miranda. The constellation also includes values such as truth-finding and equality. With the regularization of DNA analysis and the realization that a large number of innocent people have been convicted, however, there has been a recent fixation on truth-finding. Other values have been overshadowed. The myopic pursuit of truth-finding may be somewhat misguided, as certainty of truth is generally impossible. This is recognized by …

Restoring The Character Evidence Rule: Reconsidering Evidence Of Crimes, Wrongs, And Other Acts In Rhode Island, Edward Pare Iii

Roger Williams University Law Review

No abstract provided.

From Jones To Jones: Fifteen Years Of Incoherence In The Constitutional Law Of Sentencing Factfinding, Benjamin Priester

Journal Publications

For over 15 years, the United States Supreme Court has struggled to define the constitutional constraints upon a ubiquitous practice in contemporary American criminal justice: the exercise of factfinding authority by sentencing judges in the course of determining the specific punishment to be imposed upon an individual convicted of a criminal offense. While the Court has permitted much sentencing factfinding to continue unabated, its decisions have identified certain scenarios in which an offender's constitutional rights are violated when a fact found at sentencing creates particular impacts on the punishment. Unfortunately, from the beginning this new constitutional doctrine in criminal procedure …

"Connected" Discovery: What The Ubiquity Of Digital Evidence Means For Lawyers And Litigation, Gail Gottehrer

Richmond Journal of Law & Technology

More than ten years ago, the Zubulake case raised awareness of the importance of digital evidence in litigation. At that time, for many lawyers, the discovery process consisted of collecting paper documents, manually reviewing those paper documents, and responding to document requests by producing paper documents. Digital evidence existed, but was more limited in scope and volume than it is today. Back then it was often overlooked or not recognized as a potential source of valuable evidence to be obtained in discovery.

Digital Direction For The Analog Attorney-Date Protection, E-Discovery, And The Ethics Of Technological Competence In Today's World Of Tomorrow, Stacey Blaustein, Melinda L. Mclellan, James A. Sherer

Richmond Journal of Law & Technology

Over the past twenty years, the near-constant use of sophisticated technological tools has become an essential and indispensable aspect of the practice of law. The time and cost efficiencies generated by these resources are obvious, and have been for years. And because clients expect their counsel to take full advantage, savvy attorneys understand that they must keep up with ever-evolving legal technologies to stay competitive in a crowded marketplace.

Face-To-Face With Facial Recognition Evidence: Admissibility Under The Post-Crawford Confrontation Clause, Joseph Clarke Celentino

Michigan Law Review

In Crawford v. Washington, the Supreme Court announced a major change in Confrontation Clause doctrine, abandoning a decades-old framework that focused on the common law principles of hearsay analysis: necessity and reliability. The new doctrine, grounded in an originalist interpretation of the Sixth Amendment, requires courts to determine whether a particular statement is testimonial. But the Court has struggled to present a coherent definition of the term testimonial. In its subsequent decisions, the Court illustrated that its new Confrontation Clause doctrine could be used to bar forensic evidence, including laboratory test results, if the government failed to produce the …

Paying Down The Civil Justice Data Deficit: Leveraging Existing National Data Collection, Rebecca L. Sandefur

South Carolina Law Review

No abstract provided.

The Psychology And Neurobiology Of Mediation, Elizabeth E. Bader

Cardozo Journal of Conflict Resolution

This article grew out of a moment in mediation when a party became furious with me after receiving the opening offer from the other side. As I tried to understand what was happening, I suddenly realized it was not about the offer at all. It was about him. He feared a loss of "face" in front of the other parties.

Is Courtesy No Longer Contagious, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

From Nuremberg To Kenya: Compiling The Evidence For International Criminal Prosecutions, Jennifer Stanley

Vanderbilt Journal of Transnational Law

The Prosecutor of the International Criminal Court has encountered significant difficulty in conducting investigations. Faced with violence on the ground, witnesses who fear repercussions, and limitations on resources, the Prosecutor has turned to relying on secondary forms of evidence, such as the reports of NGOs and other third-party information providers.

This Note argues that the Prosecutor's use of such evidence is problematic because it fails to adequately follow the evidentiary rules of the Court and, subsequently, to protect the rights of witnesses and defendants. Moreover, the Office of the Prosecutor's dependence on third-party evidence has stunted the Prosecutor's ability to …

Can Dna Be Speech?, Jorge R. Roig

Cardozo Arts & Entertainment Law Journal

DNA is generally regarded as the basic building block of life itself. In the most fundamental sense, DNA is nothing more than a chemical compound, albeit a very complex and peculiar one. DNA is an information-carrying molecule. The specific sequence of base pairs contained in a DNA molecule carries with it genetic information and encodes for the creation of particular proteins. When taken as a whole, the DNA contained in a single human cell is a complete blueprint and instruction manual for the creation of that human being.

This Article discusses a myriad of current and developing ways in which …

Working Towards The Welfare Of Our Children: An Argument For A Rebuttable Presumption Against Awarding Abusers Custody And Other Non-Legislative Proposals, Sapna Kishnani

Cardozo Journal of Equal Rights & Social Justice

The note examines the intersection of domestic violence and child custody determinations, highlighting the challenges faced by victims and the legal system in balancing the best interests of the child with the risks posed by abusive parents. It critiques the discretionary nature of the "best interests of the child" standard and proposes adopting Delaware’s rebuttable presumption against granting custody to perpetrators of domestic violence, while retaining New York’s preponderance of evidence standard. The analysis emphasizes the need for systematic approaches to child testimony and mediation to protect children’s well-being and ensure just outcomes.

A Revisionist View Of Journalist's Privilege: Justice Powell, Branzburg And The "Proper Balance", William E. Lee

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Patent System Manipulation: Hedge Funds Abusing Ipr, Poor Patent Quality & Pharmaceutical Monopolies, Kenneth J. Costa

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Section 276 Misconstrued: The Failure To Properly Interpret And Apply Canada's Rape Shield Provisions, Elaine Craig

Articles, Book Chapters, & Popular Press

Despite the vintage of Canada’s rape shield provisions (which in their current manifestation have been in force since 1992), some trial judges continue to misinterpret and/or misapply the Criminal Code provisions limiting the use of evidence of a sexual assault complainant’s other sexual activity. These errors seem to flow from a combination of factors including a general misunderstanding on the part of some trial judges as to what section 276 requires and a failure on the part of some trial judges to properly identify, and fully remove, problematic assumptions about sex and gender from their analytical approach to the use …

Judging The Social Sciences In Carter V. Canada, Jodi Lazare

Articles, Book Chapters, & Popular Press

This paper examines a recent example of evidence-based decision making affecting social policy at the trial court level. It offers a close reading of Carter v Canada (AG), decided by the British Columbia Supreme Court, and of Justice Lynn Smith’s careful scrutiny of the social science evidence when invalidating the Criminal Code prohibition on assistance in dying. Drawing on literature which examines the legal system’s use of social science evidence and expert witnesses, this paper suggests that Justice Smith’s treatment of the evidence in Carter provides an example of skilled judicial treatment of the extensive amounts of social science evidence …

Evidence Laundering In A Post-Herring World, Kay L. Levine, Jenia I. Turner, Ronald F. Wright

Faculty Journal Articles and Book Chapters

The Supreme Court’s decision in Herring v. United States authorizes police to defeat the Fourth Amendment’s protections through a process we call evidence laundering. Evidence laundering occurs when one police officer makes a constitutional mistake when gathering evidence and then passes that evidence along to a second officer, who develops it further and then delivers it to prosecutors for use in a criminal case. When courts admit the evidence based on the good faith of the second officer, the original constitutional taint disappears in the wash.

In the years since Herring was decided, courts have allowed evidence laundering in a …

The Science Of Gatekeeping: Using The Structure Of Scientific Inference To Draw The Line Between Admissibility And Weight In Expert Testimony, Christopher Slobogin, David Faigman, John Monahan

Vanderbilt Law School Faculty Publications

Fundamental to all evidence rules is the division of responsibility between the judge, who determines the admissibility of evidence, and the jury, which gauges its weight. In most evidentiary contexts, such as those involving hearsay and character, threshold admissibility obligations are clear and relatively uncontroversial. The same is not true for scientific evidence. The complex nature of scientific inference, and in particular the challenges of reasoning from group data to individual cases, has bedeviled courts. As a result, courts vary considerably on how they define the judge's gatekeeping task under Federal Rule of Evidence 702 and its state equivalents.

This …

Litigating Transphobic Bathroom Bills: Envisioning Comprehensive Legal Strategies For Trans Liberation, Noah Lewis, Andy Izenson, Harper Jean Tobin, Ezra Cukor, Joshua Block, Pooja Gehi, Julie Suk, Kate Shaw

Cardozo Journal of Equal Rights & Social Justice

This symposium examines the legal and social challenges faced by transgender individuals, particularly in the context of bathroom access and anti-trans legislation. It emphasizes the importance of a holistic approach to trans liberation, combining legal advocacy, grassroots efforts, and education. The analysis highlights the multifaceted nature of trans rights, including the role of storytelling, intersectionality, and the impact of political shifts on LGBT protections. The symposium underscores the need for a comprehensive strategy to achieve equality and justice for trans communities.

Prior Consistent Statements: The Dangers Of Misinterpreting Recently Amended Federal Rule Of Evidence 801(D)(1)(B), Laird C. Kirkpatrick, Christopher B. Mueller

Publications

A recent amendment to Federal Rule of Evidence 801(d)(1)(B) expands the situations in which prior consistent statements by testifying witnesses can be used as substantive evidence, and not merely as rehabilitating evidence. In this piece, the Authors argue that the revised rule may mislead judges and lawyers to conclude that prior consistent statements are always usable as substantive evidence when offered to rehabilitate a witness. Nothing could be further from the truth. The intent, although hard to discern on the face of the revised rule, is only to allow substantive use of consistent statements that are otherwise admissible to rehabilitate …

Colorado Rule Of Evidence 502: Preserving Privilege And Work Product Protection In Discovery, Christopher B. Mueller, Ronald J. Hedges, Lino S. Lipinsky

Publications

No abstract provided.

Bringing Demonstrative Evidence In From The Cold: The Academy's Role In Developing Model Rules, Maureen A. Howard, Jeffry C. Barnum

Articles

To this day, judges and advocates struggle with the definition and use of "demonstrative evidence." The ambiguity of this term (or its close cousins "illustrative evidence" and evidence offered "for illustrative purposes only") infects the judicial process with uncertainty, hindering advocates when preparing for trial and, in some cases, producing erroneous verdicts. For example, the Seventh Circuit recently reversed a case for improper use of a demonstrative exhibit, and on retrial the result swung from a defense verdict to an $11 million plaintiffs victory. Uncertainty about the admission and use of demonstrative evidence has festered for decades. Lawyers innovate in …

2015 Survey Of Rhode Island Law: Cases And Public Laws Of Note, Roger Williams University Law Review Staff

Roger Williams University Law Review

No abstract provided.

Filming The Police: An Interference Or A Public Service, Aracely Rodman

St. Mary's Law Journal

Abstract forthcoming.

Privacy, Public Disclosure, Police Body Cameras: Policy Splits, Mary D. Fan

Articles

When you call the police for help—or someone calls the police on you—do you bear the risk that your worst moments will be posted on YouTube for public viewing? Police officers enter some of the most intimate incidences of our lives—after an assault, when we are drunk and disorderly, when someone we love dies in an accident, when we are distraught, enraged, fighting, and more. As police officers around the nation begin wearing body cameras in response to calls for greater transparency, communities are wrestling with how to balance privacy with public disclosure.

This Article sheds light on the balances …

Law And Politics, An Emerging Epidemic: A Call For Evidence-Based Public Health Law, Michael Ulrich

Faculty Scholarship

As Jacobson v. Massachusetts recognized in 1905, the basis of public health law, and its ability to limit constitutional rights, is the use of scientific data and empirical evidence. Far too often, this important fact is lost. Fear, misinformation, and politics frequently take center stage and drive the implementation of public health law. In the recent Ebola scare, political leaders passed unnecessary and unconstitutional quarantine measures that defied scientific understanding of the disease and caused many to have their rights needlessly constrained. Looking at HIV criminalization and exemptions to childhood vaccine requirements, it becomes clear that the blame cannot be …

Is There Really A Sex Bureaucracy?, Suzanne B. Goldberg

Faculty Scholarship

This essay identifies several features of the higher-education context that can enrich The Sex Bureaucracy‘s account of why colleges and universities have adopted new policies and trainings to address sexual assault on their campuses. These features include: 1) schools’ preexisting systems for addressing student conduct; 2) the shared interest of schools in reducing impediments to education, including nonconsensual sexual contact; and 3) the pedagogical challenges of developing trainings that are engaging and effective. Taking these three factors into account, we can see that while federal Title IX intervention has had a profound effect, it is also important not to …

Decision Making And The Law: Truth Barriers, Jonathan J. Koehler, John B. Meixner Jr.

Scholarly Works

Reaching an accurate outcome is a central goal of the American trial. But structural features of the legal system, in combination with the cognitive shortcomings of legal actors, hinder the search for truth. Regarding the legal system, various rules and policies restrict decision makers’ access to evidence, violate the laws of probability, and limit the evidentiary concerns that may be considered on appeal. Regarding legal actors, informational deficits (particularly regarding scientific and statistical evidence) and cognitive biases of police investigators, witnesses (lay and expert), attorneys, judges, and jurors pose serious obstacles. We conclude by suggesting that research in judgment and …