Evidence Commons^™

Videotaped Confessions And The Genre Of Documentary, Jessica Silbey

Faculty Scholarship

This essay begins the exploration of two contemporary and related film trends: the recent popular enthusiasm over the previously arty documentary film and the mandatory filming of custodial interrogations and confessions.

The history and criticism of documentary film, indeed contemporary movie-going, understands the documentary genre as political and social advocacy (recent examples are Michael Moore's Farenheit 9/11 and Errol Morris's Fog of War). Judges, advocates, and legislatures, however, assume that films of custodial interrogations and confessions reveal a truth and lack a distorting point of view. As this Article explains, the trend at law, although aimed at furthering venerable criminal …

Detection Avoidance, Chris William Sanchirico

ExpressO

In practice, the problem of law enforcement is half a matter of what the government does to catch violators and half a matter of what violators do to avoid getting caught. In the theory of law enforcement, however, although the state’s efforts at "detection" play a decisive role, offenders’ efforts at "detection avoidance" are largely ignored. Always problematic, this imbalance has become critical in recent years as episodes of corporate misconduct spur new interest in punishing process crimes like obstruction of justice and perjury. This article adds detection avoidance to the existing theoretical frame with an eye toward informing the …

Criminal Law And Procedure, Marla G. Decker, Stephen R. Mccullough

University of Richmond Law Review

This article examines the most significant cases from the Supreme Court of Virginia and the Court of Appeals of Virginia over the past year. The article also outlines some of the most consequential changes to the law enacted by the Virginia General Assembly during the 2005 Session in the field of criminal law and procedure.

Post-Crawford: Time To Liberalize The Substantive Admissibility Of A Testifying Witness's Prior Consistent Statements, Lynn Mclain

All Faculty Scholarship

The United States Supreme Court's 1995 decision in Tome v. United States has read Federal Rule of Evidence 801(d)(1)(B) to prevent the prosecution's offering a child abuse victim's prior consistent statements as substantive evidence. As a result of that decision, the statements will also be inadmissible even for the limited purpose of helping to evaluate the credibility of a child, if there is a serious risk that the out-of-court statements would be used on the issue of guilt or innocence.

Moreover, after the Court's March 2004 decision in Crawford v. Washington, which redesigned the landscape of Confrontation Clause analysis, other …

When Mohammed Goes To The Mountain: The Evidentiary Value Of A View, Layne S. Keele

Indiana Law Journal

No abstract provided.

Using Suppression Hearing Testimony To Prove Good Faith Under United States V. Leon, John E. Taylor

Law Faculty Scholarship

No abstract provided.

A Shock To The System: Analyzing The Conflict Among Courts Over Whether And When Excited Utterances May Follow Subsequent Startling Occurrences In Rape And Sexual Assault Cases, Colin Miller

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

The Accuracy And Manipulability Of Lost Profits Damages Calculations: Should The Trier Of Fact Be "Reasonably Certain"?, Jonathan T. Tomlin, David Merrell

ExpressO

The accuracy and manipulability of calculations for lost profits damages are critical determinants of the ability of harmed parties to receive just compensation in a wide range of legal cases including antitrust, fraud, false advertising, intellectual property infringement, and breach of contract. They are also important determinants of the deterrent effects of the law. Using a sample of over 5,000 U.S. firms, we show that simple damages methods are capable of being substantially inaccurate. We also show that damages methods in general are highly susceptible to manipulation. In the absence of reasonable justifications for why particular data sets and methods …

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

ExpressO

No abstract provided.

True Lies: The Constitutional And Evidentiary Bases For Admitting Prior False Accusation Evidence In Sexual Assault Prosecutions, Jules Epstein

ExpressO

The admission of false accusation evidence in sexual assault prosecutions has been ruled on inconsistently by courts nationally. This article identifies the constitutional bases for admitting false accusation evidence as both impeachment and substantive (non-character) proof, and re-focuses Confrontation Clause analysis post-Crawford on the scope of the cross-examination right; offers a definition for what constitutes a false accusation and the level of proof requisite to its admission; and addresses social and policy concerns attendant to its presentation.

Interdisciplinary Trends In Evidence Scholarship, Roger C. Park, Michael J. Saks

ExpressO

Abstract In recent decades, evidence scholarship published in leading law reviews has become markedly interdisciplinary, while treatises and texts continue to fill the need for doctrinal analysis. The authors describe this trend and set forth its recent history. They review and critique scholarship that applies concepts and insights from psychology, probability theory, philosophy, feminism, and economics to the law of evidence. They also comment on the pitfalls, benefits and prospects of interdisciplinary evidence scholarship

Learning The Wrong Lessons From "An American Tragedy": A Critique Of The Berger-Twerski Informed Choice Proposal, David E. Bernstein

George Mason University School of Law Working Papers Series

This paper is a critique of Margaret Berger and Aaron Twerski, “Uncertainty and Informed Choice: Unmasking Daubert”, forthcoming the Michigan Law Review. Berger and Twerski propose that courts recognize a cause of action that would allow plaintiffs who claim injury from pharmaceutical products, but who do not have sufficient evidence to prove causation, to recover damages for deprivation of informed choice. Berger and Twerski claim inspiration from the litigation over allegations that the morning sickness drug Bendectin caused birth defects. Considering the criteria Berger and Twerski suggest for their proposed cause of action in the context of Bendectin, it appears …

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” …

Securing A Journalist's Testimonial Privilege In The International Criminal Court, Anastasia Heeger

San Diego International Law Journal

This Article argues that given the unique and significant contribution of journalists to uncovering and documenting war crimes, the ICC should amend its evidentiary rules to recognize a qualified journalist's privilege. In doing so, the ICC should clearly identify who may benefit from such a privilege, clarify a procedure for balancing the need of reportorial testimony against prosecution and defense interests, and, lastly provide for mandatory consultations between the court and affected news organizations or journalists before allowing the issuance of a subpoena. Such clarity will benefit not only journalists working in war zones and the ICC, but will provide …

Can Judges Ignore Inadmissible Information? The Difficulty Of Deliberately Disregarding, Andrew J. Wistrich, Chris Guthrie, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Due process requires courts to make decisions based on the evidence before them without regard to information outside of the record. Skepticism about the ability of jurors to ignore inadmissible information is widespread. Empirical research confirms that this skepticism is well-founded. Many courts and commentators, however, assume that judges can accomplish what jurors cannot. This article reports the results of experiments we have conducted to determine whether judges can ignore inadmissible information. We found that the judges who participated in our experiments struggled to perform this challenging mental task. The judges had difficulty disregarding demands disclosed during a settlement conference, …

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.

A Blow To Domestic Violence Victims: Applying The "Testimonial Statements" Test In Crawford V. Washington, Melissa Moody

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Cross-Examining The Brain: A Legal Analysis Of Neural Imaging For Credibility Impeachment, Charles N. W. Keckler

ExpressO

The last decade has seen remarkable process in understanding ongoing psychological processes at the neurobiological level, progress that has been driven technologically by the spread of functional neuroimaging devices, especially magnetic resonance imaging, that have become the research tools of a theoretically sophisticated cognitive neuroscience. As this research turns to specification of the mental processes involved in interpersonal deception, the potential evidentiary use of material produced by devices for detecting deception, long stymied by the conceptual and legal limitations of the polygraph, must be re-examined. Although studies in this area are preliminary, and I conclude they have not yet satisfied …

Aedpa Deference And The Undeveloped State Factual Record: Monroe V. Angelone And New Evidence, Rachel E. Wheeler

William & Mary Law Review

No abstract provided.

Cross-Examining The Brain: A Legal Analysis Of Neural Imaging For Credibility Impeachment, Charles N. W. Keckler

George Mason University School of Law Working Papers Series

The last decade has seen remarkable process in understanding ongoing psychological processes at the neurobiological level, progress that has been driven technologically by the spread of functional neuroimaging devices, especially magnetic resonance imaging, that have become the research tools of a theoretically sophisticated cognitive neuroscience. As this research turns to specification of the mental processes involved in interpersonal deception, the potential evidentiary use of material produced by devices for detecting deception, long stymied by the conceptual and legal limitations of the polygraph, must be re-examined. Although studies in this area are preliminary, and I conclude they have not yet satisfied …

Evidence Destroyed, Innocence Lost: The Preservation Of Biological Evidence Under Innocence Protection Statutes, Cynthia Jones

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Effective Use Of War Stories In Teaching Evidence, Michael L. Seigel

UF Law Faculty Publications

There are many ways to teach any law course successfully, including Evidence. It can be approached from a very theoretical perspective or a very practical one. Some professors still use the tried and true case method, while others have moved more toward a problem-oriented approach. Others use movie clips to illustrate important points. A minority of professors have even adopted a NITA approach, essentially teaching Evidence through Trial Practice. This Essay does not advocate any particular method for teaching Evidence. It does take the position, however, that if an Evidence professor has some practical experience, he or she would be …

Evidence—Sixth Amendment And The Confrontation Clause—Testimonial Trumps Reliable: The United States Supreme Court Reconsiders Its Approach To The Confrontation Clause. Crawford V. Washington, 541 U.S. 36 (2004)., Kristen Sluyter

University of Arkansas at Little Rock Law Review

No abstract provided.

The Allure And Danger Of Practicing Law As Taxonomy, Marcia L. Mccormick

All Faculty Scholarship

In this article, I hope to contribute to the ongoing debate on how our society treats the problem of discrimination. Many scholars have criticized the types of antidiscrimination statutes we have enacted as well as the ways in which the courts have interpreted those laws. While I agree with many of these critiques, rather than tackle those very large issues at the outset, I focus on the test the courts currently use to evaluate the evidence to determine whether an inference can be made that discrimination has occurred. I argue that lawyers and courts have become so caught up in …

A Jurisprudence Of Doubt: Missouri V. Seibert, United States V. Patane, And The Supreme Court's Continued Confusion About The Constitutional Status Of Miranda, Johnathan L. Rogers

Oklahoma Law Review

No abstract provided.

The Hillmon Case, The Macguffin, And The Supreme Court, Marianne Wesson

Publications

The case of Mutual Life Insurance Company v. Hillmon is one of the most influential decisions in the law of evidence. Decided by the Supreme Court in 1892, it invented an exception to the hearsay rule for statements encompassing the intentions of the declarant. But this exception seems not to rest on any plausible theory of the categorical reliability of such statements. This article suggests that the case turned instead on the Court's understanding of the facts of the underlying dispute about the identity of a corpse. The author's investigations into newspaper archives and the original case documents point to …

The Priest-Penitent Privilege – An Hibernocentric Exercise In Postcolonial Jurisprudence, Walter J. Walsh

Articles

Although much has been written on the history of the priest-penitent privilege, this Article will show that such writing tends toward an unconscious, but strong, anglocentric tilt. It seems that no scholar has tried to locate and interpret all the Irish and American sources that inspired this initially hibernocentric, later more generally American, postcolonial deviation from the English common law. Since the Second World War, the significance of Philips and its 1828 New York codification have gained widespread recognition, but the scholarly inquiry has never advanced in any truly historical fashion. This article is thus the first history of the …

Deviance, Due Process, And The False Promise Of Federal Rule Of Evidence 403, Aviva A. Orenstein

Articles by Maurer Faculty

In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413 and 414 (concerning rape and child abuse, respectively) allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity. Courts have rejected due process challenges to the new rules, holding that Federal Rule of Evidence 403 serves as a check on any fairness concerns. However, courts' application of Rule 403 in cases involving these sexual propensity rules is troubling. Relying on the legislative history of the new rules and announcing a presumption of admissibility, courts have forsaken the traditional operation of …

Extending A Qualified Evidentiary Privilege To Confidential Communications Between Employees And Their Union Representatives, Michael D. Moberly

Nevada Law Journal

No abstract provided.

Duress Is Not A Justification, Kyron J. Huigens

Articles

No abstract provided.