Evidence Commons^™

Evidence And Assessing Verbatim Transcription Quality Of Black English And Standard American English, L. Alexander Walker Iii

Faculty Scholarship

This chapter explores the accuracy of private transcription services when transcribing Black English and Standard American English. Courts and lawyers in the US regularly rely on transcripts from such services, but third-party verification of their accuracy, especially with respect to their quality when faced with nonstandard language varieties, is lacking. This study draws on experimental methods to contrast the quality of transcription services offered by transcribers and AI route. The quantitative results show that transcription by humans and AI resulted in more mistakes when transcribing Black English than when transcribing Standard American English. Furthermore, a qualitative analysis reveals that these …

Toys As Evidence, Randall K. Johnson

Faculty Works

This Essay asks and answers a single question, which was posed during a recent symposium at the National Museum of Toys & Miniatures. Could the study of revealed preferences, which is the idea that observed behaviors are the best indicator of one’s beliefs, improve our collective understanding about what constitutes unlawful discrimination in certain U.S. markets? A possible answer, which is informed by the Brown v. Board of Education decision, is the study of revealed preferences may improve our collective understanding for three reasons.

One reason is the study of revealed preferences provides a window into how some producers and …

From Victim To Villain: How Gendered Narratives Shape Drug Courier Trials, Serafina C. Russo

Journal of Race, Gender, and Ethnicity

This article examines how gendered stereotypes, coercive trafficking dynamics, and permissive evidentiary practices create systemic bias in criminal prosecutions of women, particularly in drug trafficking cases. It highlights how courts often allow expert testimony and generalized narratives that blur neutral analysis with character judgment, inviting jurors to rely on cultural assumptions rather than objective facts. The “blind mule” phenomenon demonstrates the human cost, disproportionately affecting women from marginalized backgrounds, and reflects violations of due process and the presumption of innocence. The article argues for judicial and legislative reforms, including rigorous enforcement and clarification of Rule 704(b), to prevent stereotypes from …

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 …

One Step Backward: The Ninth Circuit's Unfortunate Rule 404(B) Decision In United States V. Lague, Dora Klein

Faculty Articles

The federal courts' current approach to character evidence is widely recognized as problematic. Although Rule 404(b)(1) categorically prohibits the use of character evidence, Rule 404(b)(2) presents a list of examples of permitted purposes that has tempted courts to view the admission of other-acts evidence as proper so long as the evidence is merely relevant to a non-character purpose. Additionally, courts have misconstrued the inclusive structure of Rule 404(b) as creating a presumption

in favor of admissibility. Recent efforts to correct this mistakenly permissive view include decisions by several of the federal circuit courts of appeals recognizing that Rule 404(b) requires …

The Case For The Abolition Of Criminal Confessions, Guha Krishnamurthi

SMU Law Review

Confessions have long been considered the gold standard of evidence in criminal proceedings. But in truth, confession evidence imposes significant harms on our criminal justice system, through false convictions and other violations of defendants’ due process and moral rights. Moreover, our current doctrine is unable to eliminate or even curb these harms.

This Article makes the case for the abolition of confession evidence in criminal proceedings. Though it may seem radical, abolition is sensible and best furthers our penological goals. As a theoretical matter, confession evidence has low probative value, but it is prejudicially overvalued by juries and judges. Consequently, …

Due Process In Prison Disciplinary Hearings: How The “Some Evidence” Standard Of Proof Violates The Constitution, Emily Parker

Washington Law Review

Prison disciplinary hearings have wide-reaching impacts on an incarcerated individual’s liberty. A sanction following a guilty finding is a consequence that stems from hearings and goes beyond mere punishment. Guilty findings for serious infractions, like a positive result on a drug test, can often result in a substantial increase in prison time. Before the government deprives an incarcerated individual of their liberty interest in a shorter sentence, it must provide minimum due process. However, an individual can be found guilty of serious infractions in Washington State prison disciplinary hearings under the “some evidence” standard of proof—a standard that allows for …

The Missing Algorithm: Safeguarding Brady Against The Rise Of Trade Secrecy In Policing, Deborah Won

Michigan Law Review

Trade secrecy, a form of intellectual property protection, serves the important societal function of promoting innovation. But as police departments across the country increasingly rely on proprietary technologies like facial recognition and predictive policing tools, an uneasy tension between due process and trade secrecy has developed: to fulfill Brady’s constitutional promise of a fair trial, defendants must have access to the technologies accusing them, access that trade secrecy inhibits. Thus far, this tension is being resolved too far in favor of the trade secret holder—and at too great an expense to the defendant. The wrong balance has been struck.

This …

You Can't Trust Everything On The Internet: A Look Into Texas' And Maryland's Approach Of Social Media Authentication, Danielle Orr

Catholic University Journal of Law and Technology

If unauthenticated evidence is admitted into the court's record, and makes a defendant’s charge more probable, that defendant’s Fifth and Fourteenth Amendment rights to life and liberty have been violated. Social media evidence, due to the ease of hacking and catfishing, can be unreliable, thus Maryland and Texas have led the way, with two respective approaches, on how to handle such evidence. Maryland, with its proscribed three authentication methods, has a less trusting view of social media, and realizes the dangers wrongfully entered evidence may have on a defendant’s due process. Alternatively, Texas has not heighten scrutiny on social media …

Due Process People V. Scott (Decided June 5, 1996)

Touro Law Review

No abstract provided.

Punishment Without Process: Victim Impact Proceedings For Dead Defendants, Bruce Green, Rebecca Roiphe

Articles & Chapters

After Jeffrey Epstein committed suicide in jail, two judges allowed his accusers to speak in court. This article argues that the proceedings were inappropriate because the criminal case ends when the defendant dies. If the conviction and appeal are not final, there is no finding of guilt, and the defendant is still presumed innocent. Allowing accusers to speak at this time violates the principle of due process and threatens to undermine faith in judges and the criminal justice system in general. While courts are at times legally required to hear from victims of crimes, they were not allowed to do …

Innovating Criminal Justice, Natalie Ram

Northwestern University Law Review

From secret stingray devices that can pinpoint a suspect’s location, to advanced forensic DNA-analysis tools, to recidivism risk statistic software—the use of privately developed criminal justice technologies is growing. So too is a concomitant pattern of trade secret assertion surrounding these technologies. This Article charts the role of private law secrecy in shielding criminal justice activities, demonstrating that such secrecy is pervasive, problematic, and ultimately unnecessary for the production of well-designed criminal justice tools.

This Article makes three contributions to the existing literature. First, the Article establishes that trade secrecy now permeates American criminal justice, shielding privately developed criminal justice …

Manipulation Of Suspects And Unrecorded Questioning, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Fifty years after Miranda, courts still do not have clear guidance on the types oftechniques police may use during interrogation. While first-generation tactics (a.k.a. the third degree) are banned, second-generation tactics such as those found in the famous Reid Manual continue to be used by interrogators. The Supreme Court has sent only vague signals as to which of these second- generation techniques, if any, are impermissible, and has made no mention of newly developed third-generation tactics that are much less reliant on manipulation. This Article divides second-generation techniques into four categories: impersonation, rationalization, fabrication, and negotiation. After concluding, based on …

Illegal Stops And The Exclusionary Rule: The Consequences Of Utah V. Strieff, Emily J. Sack

Roger Williams University Law Review

No abstract provided.

Illegal Stops And The Exclusionary Rule: The Consequences Of Utah V. Strieff, Emily Sack

Law Faculty Scholarship

No abstract provided.

The Incompatibility Of Due Process And Naked Statistical Evidence, G. Alexander Nunn

Faculty Scholarship

Numerous articles and commentaries have grappled with an undeniable feeling of injustice that comes from wrestling with naked statistical evidence. Even if, from a purely quantitative standpoint, the weight of the evidence supports the imposition of liability on a defendant, the sole use of probabilities to assess this liability seems innately unfair. This tension has spawned a great debate that questions the role of naked statistical evidence in today’s legal system. Contributing to this discourse, this Note argues that, in certain circumstances, the use of naked statistical evidence constitutes a due process violation. United States circuit courts have held that …

The Incompatibility Of Due Process And Naked Statistical Evidence, G. Alexander Nunn

Vanderbilt Law Review

Qualitative evidence is a cornerstone of the modern trial system. Parties often invoke eyewitness testimony, character witnesses, or other forms of direct and circumstantial evidence when seeking to advance their case in the courtroom, enabling jurors to reach a verdict after weighing two competing narratives.' But what if testimonial, experience-based evidence were removed from trials? In a legal system that draws its legitimacy from centuries of tradition-emphasizing notions of fairness even above absolute accuracy. Would a jury, not to mention the public at large, reject a verdict that imposes liability or guilt on a defendant in the complete absence of …

Ohio's New Rape Law: Does It Protect Complainant At The Expense Of The Rights Of The Accused?, Barbara Child

Akron Law Review

WITH THE ENACTMENT of Am. Sub. S.B. 144,1 Ohio has now joined the small group of states' that are revising their rape laws in measures significant enough to indicate that a trend may be underway. Ohio's new law is designed to protect victims of sex offenses: it contains major provisions affecting (1) the definition of rape itself; (2) new services for victims; (3) record suppression; (4) evidence rules; and (5) sentencing for certain offenders. The new law attempts to secure complainants' rights to privacy and equal protection together with defendants' rights to a fair trial and due process; however, the …

Affirmative Defenses; Defendant's Burden Of Proof: Defense Of Extreme Emotional Disturbance; Due Process; Patteron V. New York, Lee Ann Johnson

Akron Law Review

The United States Supreme Court in Patterson v. New York upheld the constitutionality of a New York murder statute which places on the defendant the burden of proving extreme emotional disturbance. The Court thereby determined that New York courts in applying the statute against defendant Gordon Patterson had not violated his right to due process of law

The Admissibility Of Confessions Compelled By Foreign Coercion: A Compelling Question Of Values In An Era Of Increasing International Criminal Cooperation, Geoffrey S. Corn, Kevin Cieply

Pepperdine Law Review

This Article proceeds on a simple and clear premise: a confession extracted by torture or cruel, inhuman, or degrading treatment should never be admitted into evidence in a U.S. criminal trial. Whether accomplished through extending the Due Process or Self-Incrimination based exclusionary rules to foreign official coercion, or by legislative action, such exclusion is necessary to align evidentiary practice regarding confessions procured by foreign agents with our nation's fundamental values as reflected in the Fifth Amendment and our ratification of the CAT. This outcome is not incompatible with Connelly. Rather, this Article explores the limits of the Court's language in …

Dangerous Diagnoses, Risky Assumptions, And The Failed Experiment Of "Sexually Violent Predator" Commitment, Deirdre M. Smith

Faculty Publications

In its 1997 opinion, Kansas v. Hendricks, the U.S. Supreme Court upheld a law that reflected a new model of civil commitment. The targets of this new commitment law were dubbed “Sexually Violent Predators” (SVPs), and the Court upheld indefinite detention of these individuals on the assumption that there is a psychiatrically distinct class of individuals who, unlike typical recidivists, have a mental condition that impairs their ability to refrain from violent sexual behavior. And, more specifically, the Court assumed that the justice system could reliably identify the true “predators,” those for whom this unusual and extraordinary deprivation of liberty …

Supreme Court, New York County, People V. Vasquez, Jessica Goodwin

Touro Law Review

No abstract provided.

Crime Control, Due Process, & Evidentiary Exclusion: When Exceptions Become The Rule, Elizabeth H. Kaylor

Proceedings of the New York State Communication Association

This paper uses the dichotomy between Herbert Packer’s (1968) two models of criminal justice advocacy – “crime control” and “due process” – as a rhetorical paradigm for understanding policy debate about the exclusion of relevant evidence at trial. Understanding the opposition between crime control and due process advocates as a rhetorical controversy, in which commonly-used ideographs camouflage dramatically different constructions of the concepts at stake, helps to illuminate the way each side mobilizes public support for their narrative of doing . While both the exclusionary rule (which prohibits the use of illegally-obtained evidence in criminal cases) and the “fruit of …

Futility Of Exhaustion: Why Brady Claims Should Trump Federal Exhaustion Requirements, Tiffany R. Murphy

University of Michigan Journal of Law Reform

A defendant’s Fourteenth Amendment due process rights are violated when a state agency fails to disclose crucial exculpatory or impeachment evidence — so-called Brady violations. When this happens, the defendant should be provided the means not only to locate this evidence, but also to fully develop it in state post-conviction processes. When the state system prohibits both the means and legal mechanism to develop Brady claims, the defendant should be immune to any procedural penalties in either state or federal court. In other words, the defendant should not be required to return to state court to exhaust such a claim. …

Prearraignment Lineup Procedures: Are Multiple Lineups Unduly Suggestive Or Sufficiently Reliable?, Jared R. Artura

Touro Law Review

No abstract provided.

Is New York Achieving More Reliable And Just Convictions When The Admissibility Of A Suggestive Pretrial Identification Is At Issue?, Matthew Gordon

Touro Law Review

No abstract provided.

More Than A "Quick Glimpse Of The Life": The Relationship Between Victim Impact Evidence And Death Sentencing, Jerome E. Deise, Raymond Paternoster

Faculty Scholarship

In striking down the use of victim impact evidence (VIE) during the penalty phase of a capital trial, the Supreme Court in Booth v. Maryland and South Carolina v. Gathers argued that such testimony would appeal to the emotions of jurors with the consequence that death sentences would not be based upon a reasoned consideration of the blameworthiness of the offender. After a change in personnel, the Court overturned both decisions in Payne v. Tennessee, decided just two years after Gathers. The majority in Payne were decidedly less concerned with the emotional appeal of VIE, arguing that it would only …

Do Sexually Violent Predator Laws Violate Double Jeopardy Or Substantive Due Process? An Empirical Inquiry, Tamara Rice Lave, Justin Mccrary

Articles

No abstract provided.

Introduction: Persecution Through Prosecution: Revisiting Touro Law Center’S Conference In Paris On The Dreyfus Affair And The Leo Frank Trial, Rodger D. Citron

Touro Law Review

This piece provides the introduction for the Dreyfus affair. It gives a brief overview of the actual Dreyfus affair and outlines the articles in this volume.

Due Process In American Military Tribunals After September 11, 2001, Gary Shaw

Touro Law Review

The Authorization for Use of Military Force ("AUMF") provides broad powers for a president after September 11, 2001. President Bush, under the AUMF, claimed he had the power to hold "enemy combatants" without due process. This gave rise to two questions that the article addresses: "Could they be held indefinitely without charges or proceedings being initiated? If proceedings had to be initiated, what process was due to the defendants?"