Evidence Commons^™

Federal Philosophy Of Science: A Deconstruction- And A Reconstruction, Susan Haack

Articles

No abstract provided.

Stepping Out Of The Vehicle: The Potential Of Arizona V. Gant To End Automatic Searches Incident To Arrest Beyond The Vehicular Context , Angad Singh

American University Law Review

No abstract provided.

Scientific Evidence In Criminal Prosecutions - A Retrospective, Paul C. Giannelli

Faculty Publications

No abstract provided.

Sex, Threats, And Absent Victims: The Lessons Of Regina V. Bedingfield For Modern Confrontation And Domestic Violence Cases, Aviva A. Orenstein

Articles by Maurer Faculty

In 2004, Crawford v. Washington, authored by Justice Antonin Scalia, revolutionized the law of confrontation by requiring that, aside from two discrete exceptions, all testimonial statements (those made with the expectation that they will serve to prosecute the accused) be subject to cross-examination. This new interpretation of the Sixth Amendment confrontation clause has profoundly affected domestic violence cases, making it much harder to prosecute them successfully.

Although Justice Scalia’s approach to confrontation is new, it is strikingly similar to the analysis in Regina v. Bedingfield, a notorious English murder case, which excluded from the evidence an alleged statement by the …

Probability, Individualization, And Uniqueness In Forensic Science Evidence: Listening To The Academies, David H. Kaye

Faculty Scholarship

Day in and day out, criminalists testify to positive, uniquely specific identifications of fingerprints, bullets, handwriting, and other trace evidence. A committee of the National Academy of Sciences, building on the writing of academic commentators, has called for sweeping changes in the presentation and production of evidence of identification. These include some form of circumscribed and standardized testimony. But the Academy report is short on the specifics of the testimony that would be legally and professionally allowable. This essay outlines possible types of testimony that might harmonize the testimony of criminalists with the actual state of forensic science. It does …

Blind Expertise, Christopher Robertson

Faculty Scholarship

The United States spends many billions of dollars on its system of civil litigation, and expert witnesses appear in a huge portion of cases. Yet litigants select and retain expert witnesses in ways that create the appearance of biased hired guns on both sides of every case, thereby depriving factfinders of a clear view of the facts. As a result, factfinders too often arrive at the wrong conclusions, thus undermining the deterrence and compensation functions of litigation. Court-appointment of experts has been widely proposed as a solution, yet it raises legitimate concerns about accuracy and has failed to gain traction …

District Attorney’S Office For The Third Judicial District V. Osborne: Leaving Prisoners’ Access To Dna Evidence In Limbo, Alexandra Millard

Maryland Law Review

No abstract provided.

Criminal Law And Procedure, Michael T. Judge, Stephen R. Mccullough

University of Richmond Law Review

No abstract provided.

Book Review: Carl Cranor, Toxic Torts: Science, Law, And The Possibility Of Justice, David S. Caudill

Working Paper Series

Carl F. Cranor’s Toxic Torts: Science, Law, and the Possibility of Justice is a sustained, comprehensive argument that the Daubert gatekeeping regime has tilted the playing field against injured plaintiffs in toxic tort litigation. More generally, Cranor joins those who argue that the Daubert regime has not fared well in practice. Complex scientific evidence is not handled well in trials because scientific methods, data, and inferential reasoning are not well understood by gatekeeping judges. Cranor’s goal is to help solve this problem by offering a detailed description of the patterns of reasoning, evidence collection, and inference in nonlegal scientific settings. …

The Sixth Amendment And Expert Witnesses In Criminal Tax Cases, Steve R. Johnson

Scholarly Publications

Recently, in the Baxter case, a federal district court vacated the sentence imposed as a result of a guilty plea in a criminal tax case. The court held that the failure of defense counsel to retain the services of an expert in tax crimes sentencing violated the defendant’s Sixth Amendment right to effective representation.

This installment of the Tax Crimes column explores Baxter. Part A briefly notes the civil and criminal tax contexts in which tax experts are used. Part B describes Baxter and its holding. Part C asks whether defense counsel in criminal tax cases should always retain a …

Arsenic And Old Chemistry: Images Of Mad Alchemists, Experts Attacking Experts, And The Crisis In Forensic Science, David S. Caudill

Working Paper Series

Drawing on research into the use of experts in early 19th-century criminal trials, the image of mad alchemists in popular culture representations of science, and the distinction between empirical and contingent “interpretive repertoires” in the discourse of scientific controversies, this article explores the controversy over arsenic-detection technologies prior to the Marsh test. In addition to noting the predictable criticism of incompetent expertise in the service of law, this article highlights implied accusations of hubris and amorality on the part of over-confident experts, both in the early 19th-century and in today's crisis of forensic science.

Vol. Ix, Tab 43 - Google Memorandum In Support Of Its Motion To Exclude Expert Report And Opinion Of Dr. Kent Van Liere, Google

Rosetta Stone v. Google (Joint Appendix)

Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?

Confronting Scientific Reports Under Crawford V. Washington, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

In People v. Rawlins and People v. Meekins, the New York Court of Appeals addressed, for the first time, the admissibility of scientific reports prepared by non-testifying forensic experts for use by the prosecution in a criminal trial under the Sixth Amendment's Confrontation Clause. Rawlins involved a fingerprint comparison report prepared by a police forensic expert, and Meekins involved a DNA profile prepared by a technician in a private laboratory. The constitutional issue in both cases was whether these reports were “testimonial” statements within the meaning of the Confrontation Clause, as interpreted by the Supreme Court in Crawford v. Washington, …

Taking A Stand On Taking The Stand: The Effect Of A Prior Criminal Record On The Decision To Testify And On Trial Outcomes, Theodore Eisenberg, Valerie P. Hans

Cornell Law Faculty Publications

This article uses unique data from over 300 criminal trials in four large counties to study the relations between the existence of a prior criminal record and defendants testifying at trial, between testifying at trial and juries' learning about a criminal record, and between juries' learning about a criminal record and their decisions to convict or acquit. Sixty percent of defendants without criminal records testified compared to 45 percent with criminal records. For testifying defendants with criminal records, juries learned of those records in about half the cases. Juries rarely learned about criminal records unless defendants testified. After controlling for …

Burden Of Proof, Prima Facie Case And Presumption In Wto Dispute Settlement, John J. Barceló Iii

Cornell Law Faculty Publications

The essay maintains that the WTO Appellate Body's concepts and terminology concerning a claimant's burden of proof-the concepts of prima facie case, presumption, and burden shifting-are disturbingly ambiguous and potentially misleading. This is so whether one thinks of these terms from either a common law or a civil law perspective. In the face of the current ambiguity, a future panel might understand the AB's prima facie case concept to require an overwhelming level of proof from the claimant. On the other hand, a different panel might allow a rather weak level of claimant's proof to meet the prima facie requirement, …

The Death Of The American Trial, Robert P. Burns

Faculty Working Papers

This short essay is a summary of my assessment of the meaning of the "vanishing trial" phenomenon. It addresses the obvious question: "So what?" It first briefly reviews the evidence of the trial's decline. It then sets out the steps necessary to understand the political and social signficance of our vastly reducing the trial's importance among our modes of social ordering. The essay serves as the Introduction to a book, The Death of the American Trial, soon to be published by the University of Chicago Press.

Reforming The State Secrets Privilege, Amanda Frost

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Scientific Evidence And Prosecutorial Misconduct In The Duke Lacrosse Rape Case, Paul C. Giannelli

Faculty Publications

The need for pretrial discovery in criminal cases is critical. A defendant's right to confrontation, effective assistance of counsel, and due process often turns on pretrial disclosure. This essay discusses a case that demonstrates this point.

The Nrc Report And Its Implications For Criminal Litigation, Paul C. Giannelli

Faculty Publications

The National Research Council, an arm of the National Academy of Sciences, issued a landmark report on forensic science in February 2009. In the long run, the report’s recommendations, if adopted, would benefit law enforcement and prosecutors. The recommendations would allow forensic science to develop a strong scientific basis and limit evidentiary challenges regarding the reliability of forensic evidence. In keeping with its congressional charge, however, the NRC Committee did not directly address admissibility issues. Nevertheless, given its content, the report will inevitably be cited in criminal cases. Indeed, within months, the United States Supreme Court cited the report, noting …

The Unabomber Revisited: Reexamining The Use Of Mental Disorder Diagnoses As Evidence Of The Mental Condition Of Criminal Defendants, Adam K. Magid

Indiana Law Journal

This Article revisits a longstanding debate concerning the appropriateness of diagnostic evidence in criminal cases in which a defendant’s mental condition is at issue. As illustrated through a case study of Theodore Kaczynski, more widely known as the “Unabomber,” a diagnosis of paranoid schizophrenia poses a risk of confounding a judge or jury attempting to ascertain an accurate picture of the mental state of a criminal defendant, specifically by (i) suggesting symptoms not actually present, (ii) creating a distorted picture of symptoms that are present, and (iii) suggesting organic, determinative factors as the mechanism behind a defendant’s actions, even where …

'False But Highly Persuasive:' How Wrong Were The Probability Estimates In Mcdaniel V. Brown?, David H. Kaye

Faculty Scholarship

In McDaniel v. Brown, the Supreme Court will review the use of DNA evidence in a 1994 trial for sexual assault and attempted murder. The Court granted certiorari to consider two procedural issues - the standard of federal postconviction review of a state jury verdict for sufficiency of the evidence, and the district court's decision to allow the prisoner to supplement the record of trials, appeals, and state postconviction proceedings with a geneticist's letter twelve years after the trial.

This essay clarifies the nature and extent of the errors in the presentation of the DNA evidence in Brown. It questions …

Law, Statistics, And The Reference Class Problem, Edward K. Cheng

Vanderbilt Law School Faculty Publications

Statistical data are powerful, if not crucial, pieces of evidence in the courtroom. Whether one is trying to demonstrate the rarity of a DNA profile, estimate the value of damaged property, or determine the likelihood that a criminal defendant will recidivate, statistics often have an important role to play. Statistics, however, raise a number of serious challenges for the legal system, including concerns that they are difficult to understand, are given too much deference from juries, or are easily manipulated by the parties' experts. In this preview piece, I address one of these challenges, known as the "reference class problem," …

Dickey V. State: Jury Instruction On Drug Use And Its Concomitant Effect On Eyewitness Credibility, Rachel M. Witriol

Maryland Law Review Online

No abstract provided.

Rounding Up The Usual Suspects: A Logical And Legal Analysis Of Dna Trawling Cases, David H. Kaye

Faculty Scholarship

Courts are beginning to confront a problem that has divided the scientific community - whether identifying a defendant by fishing through a database of DNA types to find a match to a crime-scene sample reduces the significance of a match. For years, the problem seemed academic. Now that the U.S. has more than five million DNA profiles from convicted offenders and suspects in a national, computer-searchable database, the question has assumed more urgency. Increasingly, individuals are being charged with crimes as a result of a match between their recorded profile and the DNA from a victim or scene of a …

Embracing Paradox: Three Problems The Nlrb Must Confront To Resist Further Erosion Of Labor Rights In The Expanding Immigrant Workplace, Michael C. Duff

All Faculty Scholarship

This article discusses the Supreme Court's 2002 Hoffman Plastic Compounds opinion, normally considered in terms of its social justice ramifications, from the different perspective of NLRB attorneys tasked with pursuing enforcement of the National Labor Relations Act (NLRA) under the conceptually (and practically) odd rubric that some NLRA employees (unauthorized workers) have no remedy under the NLRA. The article focuses on three problems evincing paradox. First, NLRB attorneys prosecuting cases involving these workers will probably gain knowledge of unlawful background immigration conduct. To what extent must the attorneys disclose it, and to whom? Second, NLRB attorneys are extraordinarily reliant on …

A Matter Of Context: Social Framework Evidence In Employment Discrimination Class Actions, Melissa Hart, Paul M. Secunda

Publications

In litigation disputes over the certification of employment discrimination class actions, social scientists have come to play a central, yet controversial, role. Organizational behavioralists and social psychologists regularly testify for the plaintiffs, offering what is commonly referred to as social framework testimony. These experts explain the general social science research on the operation of stereotyping and bias in decision making and examine the challenged workplace to identify those policies and practices that research has shown will tend to increase and those that will tend to limit the likely impact of these factors. Defendants fight hard against the admission of social …

Working Without A Net: The Third Circuit Juggles Skepticism And Deference Inside The Ring Of Products Liability Experts After The Daubert Trilogy In Pineda V. Ford Motor Co. & (And) Calhoun V. Yamaha Corp., Jennifer E. Burke

Villanova Law Review (1956 - )

No abstract provided.

Cross-Examining Film, Jessica Silbey

Faculty Scholarship

The Supreme Court decision in Scott v. Harris holds that a Georgia police officer did not violate a fleeing suspect's Fourth Amendment rights when he caused the suspect's car to crash. The court's decision relies almost entirely on the filmed version of the high-speed police chase taken from a "dash-cam," a video camera mounted on the dashboard of the pursuing police cruiser. The Supreme Court said that in light of the contrary stories told by the opposing parties to the lawsuit, the only story to be believed was that told by the video. In Scott v. Harris, the court fell …

A Witness To Justice, Jessica Silbey

Faculty Scholarship

In the 1988 film The Accused, a young woman named Sarah Tobias is gang raped on a pinball machine by three men while a crowded bar watches. The rapists cut a deal with the prosecutor. Sarah's outrage at the deal convinces the assistant district attorney to prosecute members of the crowd that cheered on and encouraged the rape. This film shows how Sarah Tobias, a woman with little means and less experience, intuits that according to the law rape victims are incredible witnesses to their own victimization. The film goes on to critique what the right kind of witness would …

Propensity Or Stereotype?: A Bad Evidence Experiment In Indian Country, Aviva Orenstein

Articles by Maurer Faculty

In a significant break with traditional evidence rules and policies, the Federal Rules of Evidence concerning rape and child abuse, Rules 413 and 414, permit the government to admit the accused’s prior sexual misconduct as evidence of character and propensity. Although these rules have been roundly criticized, insufficient attention has been paid to the fact that in allowing propensity evidence for federal sex offenses (as opposed to offenses under state law), these rules disproportionately affect one distinct civilian population: Indians.

The de facto concentration of Rules 413-414 cases in Indian Country raises troubling questions regarding what it means to have …