Evidence Commons^™

Flipping A Coin: A Solution For The Inherent Unreliability Of Eyewitness Identification Testimony, Noah A. Clements

ExpressO

By most accounts, mistaken eyewitness identification is the leading cause of wrongful convictions in the U.S. As DNA evidence frees ever more people wrongfully convicted on the basis of mistaken identification testimony, it is worth asking: “What about those cases where there is no DNA evidence?” Study after study shows that eyewitness identifications are unreliable. Courts pay lip service to the concept of reliability, but even after identifications are tainted by suggestion, very few courts actually exclude this tainted identification testimony.

And identifications are powerful. Jurors tend to believe identification testimony more than any other kind. And judges are people …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Dickerson V. United States: The Case That Disappointed Miranda's Critics--And Then Its Supporters, Yale Kamisar

University of San Diego Public Law and Legal Theory Research Paper Series

It is difficult, if not impossible, to discuss Dickerson v. United States intelligently without discussing Miranda, whose constitutional status Dickerson reaffirmed (or, one might say, resuscitated). It is also difficult, if not impossible, to discuss the Dickerson case intelligently without discussing cases the Court has handed down in the five years since Dickerson was decided. The hard truth is that in those five years the reaffirmation of Miranda’s constitutional status has become less and less meaningful.

In this paper I want to focus on the Court’s characterization of statements elicited in violation of the Miranda warnings as not actually “coerced” …

Florida's Request For Admission Rule: 150 Years On The Road To Inconsistency, Ineffectiveness And Appellate Nullification, Mitchell J. Frank

Faculty Scholarship

No abstract provided.

Are Your Eyes Deceiving You?: The Evidentiary Crisis Regarding The Admissibility Of Computer Generated Evidence, Betsy S. Fiedler

NYLS Law Review

No abstract provided.

Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman

Rutgers Law School (Newark) Faculty Papers

In this Article, Professor Sharfman addresses the problem of "discretionary valuation": that courts resolve valuation disputes arbitrarily and unpredictably, thus harming litigants and society. As a solution, he proposes the enactment of "valuation averaging," a new procedure for resolving valuation disputes modeled on the algorithmic valuation processes often agreed to by sophisticated private firms in advance of any dispute. He argues that by replacing the discretion of judges and juries with a mechanical valuation process, valuation averaging would cause litigants to introduce more plausible and conciliatory valuations into evidence and thereby reduce the cost of valuation litigation and increase the …

Trials And Tribulations: Science In The Law, Susan Haack

Articles

No abstract provided.

Jaffee V. Redmond: Towards Recognition Of A Federal Counselor-Battered Woman Privilege, Fernando Laguarda, Michael B. Bressman

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Meaning Of Daubert And What That Means For Forensic Science, Randolph N. Jonakait

Cardozo Law Review

Daubert's effect on forensic science is unclear because the opinion is unclear. The Daubert Court did start blazing a useful path by stating that before scientific testimony is admitted, the trial court must be convinced that "the reasoning or methodology underlying the testimony is scientifically valid and ... that [the] reasoning or methodology properly can be applied to the facts in issue." But the Court's trailblazing was incomplete and often misleading.

Check Your Crystal Ball At The Courthouse Door, Please: Exploring The Past, Understanding The Present, And Worrying About The Future Of Scientific Evidence, David L. Faigman, Elise Porter, Michael J. Saks

Cardozo Law Review

Since the earliest days of the use of expert witnesses, judges (and more recently legislatures) have struggled to design the juridical intersection where law and science cross paths. The effort has not met with notable success. This situation could be changing, however. Last term, in Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court adopted a novel approach to the age-old problem of scientific evidence. The -Court determined that the Federal Rules of Evidence require scientific evidence to be scientifically valid before it enters the courtroom. The Court has served notice that experts should trade in their crystal balls …

Conflict Resolution In The Courts: The Role Of Science, Anthony Z. Roisman

Cardozo Law Review

This Article is a philosophical examination of an issue that now engages many lawyers and scientists-the proper role of science in courtroom litigation. More specifically, the issue is this: In cases where expert testimony is useful to lay jurors in resolving factual issues, what is the proper role of a judge in restricting what sorts of experts can testify and what they can say?

The Supreme Court’S View Of Science: Has Daubert Exorcised The Certainty Demon?, Bert Black

Cardozo Law Review

The Supreme Court's mandate in Daubert that experts who give testimony based on science must confine themselves to valid scientific knowledge seems tautologically obvious, and hardly an issue requiring the attention of the nation's nine highest judges. The debate that led to Daubert was generated, however, by opponents of judicial screening who argued that holding experts to scientific standards somehow imposes an undue burden of proof on plaintiffs, especially in toxic tort cases - and the Supreme Court's decision has not put the issue completely to rest. Science, according to this "relaxed standards" argument, demands certainty far beyond the law's …

Daubert V. Merrell Dow Pharmaceuticals, Inc.: Epistemiology And Legal Process, Margaret G. Farrell

Cardozo Law Review

Justice Blackmun's majority opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc. acknowledges that law and science have different goals, but it fails to recognize the implications of those differences for legal process. Recent increases in the scientifically-based claims brought in the federal courts, and in the size and complexity of the litigation in which such claims are made, have raised the stakes in the debate. At the same time, scientific concepts of relativity, uncertainty, and multiple causation are at odds with simple, legal notions about fact-finding and cause and effect. This disparity between legal and scientific understandings over the admission …

After Daubert: Going Forward With Lessons From The Past, Marc S. Klein

Cardozo Law Review

Ground zero in the ongoing battle over scientific evidence in toxic tort cases has clearly shifted in light of Daubert v. Merrell Dow Pharmaceuticals, Inc. In that case, the Supreme Court settled at least two profound issues. One has immediate practical consequences, the other has important philosophical implications.

A Brief Look At New York's Efforts To Codify Its Law Of Evidence, Barbara C. Salken

Touro Law Review

No abstract provided.

The Supreme Court Rules On Statements Against Interest, Michael M. Martin

Touro Law Review

No abstract provided.

Symposium Comparing New York And Federal Evidence Law: Introduction, Honorable George C. Pratt

Touro Law Review

No abstract provided.

Proving Your Case - Evidence And Procedure In Action, Christopher Finlayson

Cardozo Law Review

No abstract provided.

Stories, Forensic Science, And Improved Verdicts, Randolph N. Jonakait

Cardozo Law Review

No abstract provided.

Mistrial By Likelihood Ratio: Bayesian Analysis Meets The F-Word, Paul Bergman, Al Moore

Cardozo Law Review

No abstract provided.

Toward A Unified Approach To Privileges And Relevancy, Thomas F. Guernsey

Law Faculty Publications

No topic in evidence has received more attention from commentators than evidentiary privileges. In the writings on privilege, however, there has been little discussion that the auxiliary public policies excluding otherwise logically relevant evidence under relevance analysis are essentially the same as the public policies that underlie the creation of privileges. In fact, as a general matter, if no topic has received more attention than privileges, few topics have received less attention than relevancy, and there has been virtually no discussion of the connection between privilege analysis and relevancy analysis. ...

Clear Standards For Discovery Protective Orders: A Missed Opportunity In Rhinehart V. Seattle Times Co., Carole J. Breitenbach

Seattle University Law Review

The Washington State Supreme Court has previously balanced the interests of privacy and effective judicial administration against those of free speech and public access in the context of judicial proceedings, and the court missed a significant opportunity to expand and apply this balancing test in Rhinehart. The United States Supreme Court similarly declined to create a balancing test to ensure the full protection of First Amendment interests during pretrial discovery. A need remains for a general standard to ensure that First Amendment interests in disseminating discovery information are identified and protected when a protective order is requested.

Transboundary Groundwater Law: Focus On The U.S.-Mexico Boundary [Includes Appended Opinion In City Of El Paso Ex Rel. Pub. Serv. Bd. V. Reynolds, Civ. No. 80-730 Hb, 563 F. Supp. 279 (D.N.M. 1983)], Albert E. Utton

Groundwater: Allocation, Development and Pollution (Summer Conference, June 6-9)

48 pages.

Statistical Implications Of Reasoning With Polygraph Evidence: Developing Instructions For The Trier Of Fact, James A. Finder

Cardozo Law Review

Report and Recommendation to the New York State Bar Association by the Committee on Federal Constitution

An Essay On The Determination Of Relevancy Under The Federal Rules Of Evidence, Arthur H. Travers Jr.

Publications

The scope of the general definition of "relevant evidence" in the Federal Rules of Evidence is ambiguous. It is unclear whether Congress, for instance, intended that certain issues be considered legislatively determined or that those issues rest within the discretion of the courts. There is also some uncertainty over the definition's applicability to several types of evidence--particularly undisputed facts such as those that provide background information or are judicially admitted.

Juveniles And Their Right To A Jury Trial, Timothy E. Foley

Villanova Law Review (1956 - )

No abstract provided.

The Presently Expanding Concept Of Judicial Notice, Fortunata Giudice, C. William Kraft

Villanova Law Review (1956 - )

No abstract provided.

The Smith Rule And A Party's Burden Of Coming Forward When Relying On Circumstantial Evidence, Paul A. Kiefer

Villanova Law Review (1956 - )

No abstract provided.

Prejudicial Error: Admissions And Exclusions Of Evidence In The Federal Courts, Robert W. Gibbs

Villanova Law Review (1956 - )

No abstract provided.

Recent Cases, Law Review Staff

Vanderbilt Law Review

Conflict of Laws--Governmental Activities--Recognition in Forum of Sister State's Original Revenue Claim

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Constitutional Law--State Taxation of Interstate Commerce--Sales Tax on Shipboard Sales to Passengers

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Courts--Certiorari from United States Supreme Court--Loss of Importance Ground for Dismissal

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Domestic Relations--Adoption--Revocation of Consent by Natural Parents

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Evidence--Admissibility--Exclusion of Evidence Obtained by Unreasonable Search and Seizure

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Federal Procedure--Illegal Search--Injunction Against Agent's Testifying in State Court

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Income Taxation--Claim of Right Income--Time of Deduction when Restoration Required

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Malicious Prosecution--Privilege--Filing of Complaint with Bar Ethics and Grievance Committee