Evidence Commons^™

The Prosecutor Vacancy Crisis, Adam M. Gershowitz

BYU Law Review

There is a prosecutor vacancy crisis in the United States. Prosecutors are quitting in droves and there are few applicants to replace them. In Houston and Los Angeles, more than 15% of prosecutor positions are open. In Detroit, the vacancy rate exceeds 20%. In Alameda, 25% of prosecutor positions are empty. And in Miami, a staggering 33% of prosecutor positions are unfilled. The situation is equally dire in many large and small counties across the nation.

Drawing on data and interviews from more than two-dozen district attorney’s offices, this Article documents how low salaries, massive caseloads, lack of remote work …

Federal Rule Of Evidence 702: A History And Guide To The 2023 Amendments Governing Expert Evidence, Mark A. Behrens, Andrew J. Trask

Texas A&M Law Review

Federal Rule of Evidence 702 was amended effective December 1, 2023. The Rule was amended to clarify and emphasize that expert testimony may not be admitted unless the proponent demonstrates to the court by a preponderance of the evidence that the proffered testimony meets all of the Rule’s admissibility requirements. The amendment was necessitated by decisions by many federal courts incorrectly applying the reliability requirements set forth in Rule 702(b) and (d) and declaring that expert testimony is presumed to be admissible. Rule 702 was also amended to prevent “overstatement” by experts. Rule 702(d) now emphasizes that an expert’s opinion …

Murder On The Hearsay Trail, Jeffrey Bellin

Texas A&M Law Review

Judges, lawyers, and law students struggle to apply American evidence law’s most distinctive feature—the hearsay prohibition. The problem is that hearsay is difficult to master and somewhat dull. At the same time, hearsay evidence is ubiquitous and important. Every litigator has a story about a judge’s eccentric hearsay rulings; mine is the trial judge who waved his hand dismissively at hearsay objections, letting witnesses answer on the grounds that “I want to hear it.” And the case law is littered with appellate opinions scolding trial judges for erroneous hearsay rulings while introducing errors of their own.

That is just the …

A Constitutional Right To Exclude Evidence, Colin Miller

Texas A&M Law Review

The Supreme Court has held that criminal defendants have a constitutional right to introduce evidence and a constitutional right to receive evidence, but it has never recognized a constitutional right to exclude evidence. Specifically, the Supreme Court has issued numerous rulings finding that the Due Process Clause demands that (1) defendants have the right to present a defense that trumps the rules of evidence; (2) the prosecution must disclose material exculpatory evidence to the defense; (3) the State has certain duties to preserve evidence so that it can be disclosed to the defense; and (4) any discovery obligations on defendants …

The Obsolescence Of Voluntary Confessions In Maine, John C. Sheldon

Maine Law Review

The would-be assassin lurks in the crowd that gathers outside the campaign headquarters building. In anticipation of the candidate's appearance, the television technicians hoist their videotape cameras and illuminate the scene with floodlights, as the gunman nervously fingers the automatic concealed in the pocket of his field jacket. Moments later, the candidate emerges from the doorway; the assassin rushes into the floodlit view of the cameras, takes aim at the startled politician, and hollers: "I've been planning this for years, and now I'm going to give you what's coming to you." His shots ring out as Secret Service agents converge …

The Parent-Child Privilege And The Parent-Child Crime: Observations On State V. Delong And In Re Agosto, Ellen Kandoian

Maine Law Review

Should a child be compelled to testify against his parent under threat of criminal punishment? Ignoring for a moment the applicable legal doctrines, there are several reasons why one might answer no. First, if we value the idea of family loyalty, and believe that loyalty of a child to his parent is particularly important for traditional, moral, and practical reasons, then measures taken by a state to undermine such loyalty must be viewed critically. Second, children tend to accumulate tremendous amounts of information about their parents' activities and are party or witness to many communications made by their parents with …

Triangulating The Likelihood Of Confusion: Linguistics And Consumer Surveys, Eric Derosia, Jesse Egbert, Thomas Lee

BYU Law Review

This Article highlights contributions that linguistic analysis can offer in the assessment of the likelihood of confusion in trademark infringement cases. Parties in such cases often engage an expert witness to conduct a survey that measures the likelihood of consumer confusion. We show how an expert linguist can provide important, nonintuitive dynamics of corroboration. We introduce “expert triangulation” as a conceptual framework to analyze whether, and to what extent, experts in linguistics and consumer surveys can corroborate one another. That is, having two different sources of empirical evidence which lead to similar conclusions should be a benefit to the courts, …

State V. Curlew: Assessing The Sufficiency Of Evidence Under The Corpus Delicti Rule, Brett D. Baber

Maine Law Review

In State v. Curlew, the Maine Supreme Judicial Court, sitting as the Law Court, reversed a conviction for unlawful sexual contact. The court predicated reversal upon a reaffirmation of both the substantive aspect and the evidentiary aspect of the corpus delicti rule. The substantive aspect of the corpus delicti rule requires the state "to produce, exclusive of any confession or admission by the defendant, such credible evidence as will create a substantial belief that the crime charged has been committed by some person." The evidentiary aspect of the corpus delicti rule requires proof of the corpus delicti prior to the …

State V. Durepo: Toward A Principled Maine Version Of The Impeachment Exception To The Exclusionary Rule, Andre D. Bouffard

Maine Law Review

As one might have anticipated, the broad substantive mandates of the major Warren Court exclusionary rule decisions have not been left completely intact by later Supreme Court decisions. Instead, the scope of the evidentiary exclusionary doctrine established by the Warren Court has been significantly narrowed by later Supreme Court decisions that have created numerous exceptions to the general command of the exclusionary rule that evidence obtained through unconstitutional means is inadmissible in a criminal trial. Although some members of the present Court argue that the exceptions to the exclusionary rule are consistent with the purposes of the rule, and therefore …

Evidence, John E. Hall Jr., W. Scott Henwood, Krysta Grymes

Mercer Law Review

Georgia courts’ interpretation and analysis of the evolution of evidentiary law since the adoption of Georgia’s new evidence code has played a major role in lawyers’ understanding of the scope and boundaries they are to operate within. Complexities involving coinciding new case law with the vast body of legal precedent established prior to the new code’s implementation make this task even more important, and ever changing as Georgia enters the second decade of the current evidentiary code. This Article delves into some of the updated case law relating to evidentiary issues and standards in Georgia for the period of June …

How To Use The Restatement Of Consumer Contracts: A Guide For Judges, Ian Ayres, Gregory Klass

Georgetown Law Faculty Publications and Other Works

In the absence of major legislation or regulatory action, U.S. consumers will continue to look to courts and the common law for protection when businesses engage in unfair and deceptive contracting practices. In May 2022, the American Law Association approved the Restatement of the Law, Consumer Contracts. This new Restatement provides a valuable resource for courts tasked with deciding the legal effects of standard terms that businesses draft and consumers do not read. This essay identifies six pieces of the new Restatement we believe courts should pay special attention to and discusses the importance of each. It also charts several …

Models For Use Of Mediation In E-Discovery, Steven C. Bennett

Tennessee Journal of Law and Policy

No abstract provided.

The Child Witness In Sexual Abuse Cases In Maine: Presentation, Impeachment, And Controversy, Kermit V. Lipez

Maine Law Review

In any sexual abuse trial, the entry of the child into the courtroom is a dramatic moment. The large door to the courtroom opens. A small child enters, accompanied by a victim advocate who walks with the child toward the witness stand. At the end of the public seats, the child is turned over to a court officer who escorts the child to the witness stand. In the typically high-ceilinged, expansive courtroom where we conduct our jury trials, the small child looks even smaller. Some children slouch in the witness chair, as if they were trying to hide. The jurors …

A Feedback Loop Of Exclusion: The Treatment Of Bilingualism In The Courtroom, Simone Stover

Northwestern University Law Review

In the 1991 case Hernandez v. New York, the United States Supreme Court characterized bilingualism as a race-neutral trait that can be used to exclude individuals from jury service. This Note proceeds by demonstrating how the current state of the law undermines the interests of bilingual individuals and then proposes a solution. Focusing specifically on Hispanic bilingual Spanish speakers, this Note first employs Professor Jennifer Lackey’s multi-directional credibility model to show that bilingual Spanish speakers suffer injustice in the courtroom due to both credibility deficits and excesses. Following this analysis, it proposes a possible solution to this issue: an …

An Updated Practical Guide To Taking And Defending Depositions, Gary S. Gildin

Dickinson Law Review (2017-Present)

The deposition offers a singular opportunity to handcuff the deponent to an irreversible script. Consequently, both the attorney taking the deposition and defending counsel must prepare for and conduct the deposition with equal if not greater care than the trial.

Traditionally, lawyers have used the deposition to discover facts relating to the legal elements and the credibility, perception, and recollection of the witness. However, recent breakthroughs in neuroscience as to how the brain makes decisions have revealed a different genre of evidence that will drive how the trier of fact will decide the case. Today an attorney taking a deposition …

The Liv Golf V. Pga Tour Antitrust Case As A Case Study In Federal Civil Procedure, Michael J. Dube

Dickinson Law Review (2017-Present)

This Article uses LIV Golf Inc. v. PGA Tour, Inc., a sophisticated and headline-grabbing antitrust matter, as a means of instantiating federal civil procedure concepts. The first Part of this Article addresses the unsuccessful motion for a temporary restraining order that in many ways shaped how the litigation proceeded. The second Part examines the dance that is discovery through a focus on a drawn-out dispute regarding a single interrogatory. The final Part drills down on a more novel discovery dispute that began the path towards settlement, namely whether the Foreign Sovereign Immunities Act of 1976 and related common-law doctrine …

The Insufficiency Of Battered Women’S Syndrome Evidence And The Need For Resentencing Legislation For Criminalized Survivors Of Domestic Violence, Alice Samberg

Nevada Law Journal

No abstract provided.

Measures Of Justice: Researching And Evaluating Lay Legal Assistance Programs, Tanina Rostain, James Teufel

Georgetown Law Faculty Publications and Other Works

In recent years a national movement to train lay advocates and advisors to assist people with their common justice problems has emerged in the United States. A host of new programs have launched that allow trained navigators and justice workers to provide legal assistance. These programs – developed in Alaska, Delaware, South Carolina, Arizona, and Utah, among other places – vary in their substantive focus, the skills they impart, and their approaches to reaching the people and communities they seek to help. The proliferation of lay legal assistance programs creates research imperatives and opportunities. These programs need to be assessed …

The Incoherence Of Evidence Law, G. Alexander Nunn

Notre Dame Law Review

What is the purpose of evidence law? The answer might seem intuitive. Evidence law exists, of course, to foster verdict accuracy, legitimacy, and efficiency. But these kindred aims often come into conflict. Policy tradeoffs are inescapable in evidence law, meaning that an evidentiary regime must clarify how its normative objectives cohere. Do accuracy, legitimacy, and efficiency work together on equal footing, such that the goal of a code is to maximize each objective to the extent possible? Or does one of evidence law’s aims take precedence over the rest? And if one goal takes priority, what is the role of …

University Of The District Of Columbia Law Review, University Of The District Of Columbia Law Review

University of the District of Columbia Law Review

No abstract provided.

The Incoherence Of Evidence Law, G. Alexander Nunn

Faculty Scholarship

What is the purpose of evidence law? The answer might seem intuitive. Evidence law exists, of course, to foster verdict accuracy, legitimacy, and efficiency. But these kindred aims often come into conflict. Policy tradeoffs are inescapable in evidence law, meaning that an evidentiary regime must clarify how its normative objectives cohere. Do accuracy, legitimacy, and efficiency work together on equal footing, such that the goal of a code is to maximize each objective to the extent possible? Or does one of evidence law’s aims take precedence over the rest? And if one goal takes priority, what is the role of …

Amicus Brief Of Legal Scholars Lee Kovarsky Et Al. In Support Of Petitioner, Ira P. Robbins

Amicus Briefs & Court Filings

QUESTION PRESENTED: Whether a second-in-time habeas claim filed while an appeal from the judgment on an initial habeas claim is still pending counts as a second or successive habeas petition under 28 U.S.C. § 2244(b)

INTEREST OF AMICI CURIAE: Amici curiae are law professors and legal scholars who study federal post-conviction law and civil procedure. Amici curiae have no personal interest in the outcome of this case. They all share an interest in seeing habeas law applied in a way that ensures the just and timely adjudication of claims while preserving the traditional and intended operation of the Federal Rules …

Rising Internet Shutdowns In India: A Legal Analysis, Shrutanjaya Bhardwaj, Nakul Nayak, Raja Venkata Krishna Dandamudi, Sarvjeet Singh, Veda Handa

Indian Journal of Law and Technology

The central theme of this paper is to critically study the interplay of internet shutdowns with the right to freedom of speech and expression. A study of this nature is necessitated by India’s abysmal record with inter- net shutdowns. We must hence begin examining Internet shutdowns seriously within the Indian constitutional framework. In the recent judgment of Anuradha Bhasin, the Supreme Court has accepted that Article 19(1)(a) protects the right to disseminate and receive information through the internet. Therefore, the constitutional validity of every internet shutdown would have to be tested (at least) against the three standards ordinarily applied …

Sharing Of Children’S Health Data By Health Professionals And Parents – A Consideration Of Legal Duties, Dr. Carolyn Johnston

Indian Journal of Law and Technology

Children’s health data such as blood pressure, X-rays and written notes of medical examinations are produced in a clinical setting through health professionals’ interaction with their minor patients. Health care practitioners owe legal and professional obligations not to disclose such information without consent or other legally recognised authorisation. With the increasing advent of data generated by patients themselves from wearable devices such as continuous glucose monitors and health apps, the patient, or parents, have initial control of the data and decide who to share it with. Where wearable devices have been provided to parents by the child’s health care provider …

Conceptualizing An International Framework For Active Private Cyber Defence, Arindrajit Basu, Elonnai Hickok

Indian Journal of Law and Technology

Private sector cyber defence mechanisms are emerging despite existing legislation outlawing use of active defence by individuals and non-state entities. Thus, a key window exists for policy-makers in the possibility of establishing a framework for existing APCD practices that would enable optimal utilisation of private sector capabilities for securing cyber-space at an organizational and national level. This must happen in consonance with circumscribing their operations within the boundaries of the rule of law, both in terms of domestic legislation and international law. This paper seeks to unpack the complexities that underscore each of these challenges and identify avenues towards resolving …

Facing Up To The Risks Of Automated Facial-Recognition Technologies In Indian Law Enforcement, Ameen Jauhar

Indian Journal of Law and Technology

Within the larger discourse of risk mitigation of emerging technologies, the ever-expanding deployment of automated facial recognition technology (‘AFRT’) has garnered much skepticism. In India too, there has been a reported rise of states and law enforcement officials enthusiastically resorting to the use of AFRT.

The author will first delve into some of the controversial risks associated with AFRT, analysing them through the lens of Article 21 and the principle of due process under the Indian Constitution. The paper will then identify some of the regulatory solutions that are currently part of the discourse on minimising risks of AFRT and …

Sotomayor Cites Maurer Faculty Member In Scotus’ Decline To Hear Alabama Bite Mark Case, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

The case of an Alabama man convicted of murdering his wife in 1985 will not be reviewed by the U.S. Supreme Court, despite evidence that, nearly 40 years later, has been “wholly discredited.”

The Supreme Court denied certiorari in the case of McCrory v. Alabama, but Justice Sonia Sotomayor cited research from Indiana University Maurer School of Law Professor Valena Beety in her concurring agreement with the court’s decision.

Charles M. McCrory was convicted for the murder of his wife, Julie Bonds, based in large part on expert testimony from an odontologist who matched McCrory’s teeth to two bite marks …

The Needless Search For A Founding-Era "Hearsay" Definition, Jeffrey Bellin

Faculty Publications

Modern Confrontation Clause doctrine permits only unconfronted “out-of-court statements that would have been admissible in a criminal case at the time of the founding.” To operationalize this concept, the Supreme Court identifies “testimonial hearsay” as the Clause’s primary concern. Its opinions regularly dive into the historical record to refine what counts as “testimonial” but ignore that record in defining “hearsay.” This omission cannot last. Cases in the lower courts, and one on the Court’s recent docket, concern testimonial but (arguably) non-hearsay statements. And while confrontation jurisprudence is supposed to be tied to founding-era evidence law, the “hearsay” definition, casually referenced …

Confrontation, The Legacy Of Crawford, And Important Unanswered Questions, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

The right to confront has a long history. In the United States, the Confrontation Clause provides: “In all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him[.]” One of the most troublesome areas of Confrontation Clause jurisprudence has been the Clause’s application to “hearsay statements offered against a criminal defendant pursuant to a hearsay exception or exemption[.]” The Supreme Court’s confrontation analysis in this situation once hinged on the statement’s reliability, with the traditional hearsay rule and its exceptions and exemptions as a guide. But in Crawford v. Washington, the Court considered …

Guess Who?: First-Time In-Court Identifications And Due Process, Natalie Beers

Washington and Lee Law Review

Juries believe eyewitnesses. When an identifying eyewitness takes the stand and points to a defendant in a courtroom, the jury is more likely to render a guilty verdict. But how reliable is that identification? What if the eyewitness is on the stand identifying a perpetrator for the first time, in the court room, rather than at the police station with a lineup or photo array? How do those suggestive circumstances implicate a criminal defendant’s due process rights?

First-time in-court identifications are inherently suggestive. While the Supreme Court has acknowledged the suggestive nature of similar identifications, it did not directly address …