Evidence Commons^™

Behavioral Science Evidence In The Age Of Daubert: Reflections Of A Skeptic, Mark S. Brodin

ExpressO

The piece briefly traces the history of the use of social science in the courtroom, and proceeds to critically measure this form of proof (particularly “syndrome” evidence) against both the reliability standards imposed by Daubert v. Merrell Dow Pharmaceuticals, Inc. and the traditional requirements for admission of expert testimony. Drawing upon empirical research concerning juries and decision-making as well as transcripts of the use of behavioral evidence at trial, I conclude that much of this testimony should be rejected. Rather than providing meaningful assistance to the jury, social science experts can distort the accuracy of the fact-finding process and imperil …

Spin Control And The High-Profile Client -- Should The Attorney-Client Privilege Extend To Communications With Public Relations Consultants?, Ann Murphy

ExpressO

The use of public relations consultants in connection with high-profile cases is a relatively new development. Public relations firms are advertising that their advice is necessary when celebrities face criminal charges. It is beyond speculation that such advice may be helpful, but should such advice be protected from disclosure under the attorney-client privilege? Privileges are to be recognized “only within the narrowest limits required by principle.” Public relations consultants transmit information to the public. The communications are not meant to be confidential. These communications do not fall within the purposes or the history of the attorney-client privilege.

Forecasting Harm: The Law And Science Of Risk Assessment Among Prisoners, Predators, And Patients, John Monahan

ExpressO

Scientifically valid instruments are being used for the first time to assess an individual’s risk of violence in criminal sentencing and in the civil commitment of mental patients and sexual predators. Risk factors on these instruments pertain to what the person is (e.g., gender), what the person has (e.g., personality disorder), what the person has done (e.g., past violence), and what has been done to the person (e.g., past victimization). In this Article, I argue that in criminal law, with its emphasis on blameworthiness for actions taken, the admissibility of scientifically valid risk factors is properly constrained to those that …

“Which One Of You Did It?” Criminal Liability For “Causing Or Allowing” The Death Of A Child, Lissa Griffin

ExpressO

No abstract provided.

Summerlin V. Stewart And Ring Retroactivity, Tonya G. Newman

Chicago-Kent Law Review

The Sixth Amendment guarantees criminal defendants a trial before a jury. Until the Supreme Court decided Ring v. Arizona, however, nine states wholly or partially surrendered a portion of the jury's role to a sentencing judge. Specifically, those states allowed sentencing judges to make factual determinations regarding sentencing considerations by which capital defendants became eligible for the death penalty. The Ring Court halted the use of sentencing considerations to erode the jury's fundamental role in preserving accuracy and fairness of criminal proceedings, holding that the Sixth Amendment requires that a jury make factual findings on all elements, including sentencing …

Contaminating The Verdict: The Problem Of Juror Misconduct, Bennett L. Gershman

ExpressO

No abstract provided.

A Non-Romantic View Of Expert Testimony, Lewis H. Larue, David S. Caudill

Scholarly Articles

The Daubert trilogy as a whole deflects attention away from abstract identifications of scientific validity (including the demarcation controversy aimed at rooting out allegedly junk science from the courtroom), and toward the application of expertise to the particular case at hand. That emphasis on application is reflected as well in post-trilogy scholarship, wherein we see three patterns or contours that both help quiet the debates and provide useful guidance to judges and lawyers. First, there is a pragmatic recognition, in various forms, that the focus should be on how science is being used rather than on science in the abstract. …

The Central Park Five, The Scottsboro Boys, And The Myth Of The Bestial Black Man, N. Jeremi Duru

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Epistemology Legalized: Or, Truth, Justice, And The American Way, Susan Haack

Articles

No abstract provided.

Standards Of Evidence In Administrative Proceedings, William H. Kuenhle

NYLS Law Review

No abstract provided.

Christian V. Gray: The Oklahoma Supreme Court Accepts The Daubert Standard, Debra W. Mccormick, Randon J. Grau

Oklahoma Law Review

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.

Rethinking The Role Of Expert Testimony Regarding The Reliability Of Eyewitness Identifications In New York, Scott Woller

NYLS Law Review

No abstract provided.

Judges As Film Critics: New Approaches To Filmic Evidence, Jessica Silbey

Faculty Scholarship

This Article exposes internal contradictions in case law concerning the use and admissibility of film as evidence. Based on a review of more than ninety state and federal cases dating from 1923 to the present, the Article explains how the source of these contradictions is the frequent miscategorization of film as “demonstrative evidence,” evidence that purports to illustrate other evidence, rather than to be directly probative of some fact at issue. The Article further demonstrates how these contradictions are based on two venerable jurisprudential anxieties. One is the concern about the growing trend toward replacing the traditional testimony of live …

Judges As Film Critics: New Approaches To Filmic Evidence, Jessica Silbey

Faculty Scholarship

This Article exposes internal contradictions in case law deciding the use and admissibility of film as evidence. Based on a review of more than ninety state and federal cases dating from 1923 to the present, the Article explains how the source of these contradictions is the frequent miscategorization of film as "demonstrative evidence," that category of evidence that purports to illustrate other evidence rather than to be directly probative of some fact at issue. The Article further demonstrates how these contradictions are based on two venerable jurisprudential anxieties. One is the concern about the growing trend toward replacing the traditional …

Wild Dreamers: Meditation On The Admissibility Of Dream Talk, Louise Harmon

Scholarly Works

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 …

The Admissibility Of Expert Testimony About Cognitive Science Research On Eyewitness Identification, Edward D. Stein

Articles

Eyewitness identifications are important to jurors, especially in criminal trials. Psychological research has shown, however, that eyewitness testimony is systematically fallible in ways that undermine the goals of the rules of evidence. This article assesses the arguments for and against admitting expert testimony concerning cognitive science research about eyewitness identification. The article concludes that experts should in many instances be allowed to testify about the problems with eyewitness identification testimony.

Expert Testimony And Scientific Evidence, Lynn Mclain

All Faculty Scholarship

Handout from a day-long lecture on expert and scientific testimony at the Maryland Judicial Institute.

Criminal Law, Marla Graff Decker, Stephen R. Mccullough

University of Richmond Law Review

No abstract provided.

Daubert & Danger: The "Fit" Of Expert Predictions In Civil Commitments, Alex Scherr

Scholarly Works

The opinions of experts in prediction in civil commitment hearings should help the courts, but over thirty years of commentary, judicial opinion, and scientific review argue that predictions of danger lack scientific rigor. The United States Supreme Court has commented regularly on the uncertainty of predictive science. The American Psychiatric Association has argued to the Court that "[t]he professional literature uniformly establishes that such predictions are fundamentally of very low reliability." Scientific studies indicate that some predictions do little better than chance or lay speculation, and even the best predictions leave substantial room for error about individual cases. The sharpest …

Impeachment Of Witnesses: A Walking Tour, Lynn Mclain

All Faculty Scholarship

This handout from the Maryland State's Attorneys' Convention in 2003 summarizes the general methods of witness impeachment, who may be impeached, and impeachments by attacks on witnesses' character for truthfulness.

"Quick-Takes" On A Few Recent Decisions In Evidence Law ... And Rule 5-407, Lynn Mclain

All Faculty Scholarship

Handout from the State and Local Government Law Institute covering recent (2003) Maryland evidence cases.

Why Judges Applying The Daubert Trilogy Need To Know About The Social, Institutional, And Rhetorical -- And Not Just The Methodological Aspects Of Science, Lewis H. Larue, David S. Caudill

Scholarly Articles

In response to the claim that many judges are deficient in their understanding of scientific methodology, this Article identifies in recent cases (i) a pragmatic perspective on the part of federal appellate judges when they reverse trial judges who tend to idealize science (i.e., who do not appreciate the local and practical goals and limitations of science), and (ii) an educational model of judicial gatekeeping that results in reversal of trial judges who defer to the social authority of science (i.e., who mistake authority for reliability). Next, this Article observes that courts (in the cases it analyzes) are not interested …

Misuse Of Scientific Evidence By Prosecutors, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The prosecutor's misuse of scientific evidence to charge and convict has not been sufficiently examined. Courts and commentators critiquing abuses of scientific evidence in criminal cases rarely focus on the prosecutor's role in the process. Issues typically discussed are the questionable nature of the evidence, the controversial manner in which the evidence was acquired and tested, whether the expert arrived at her conclusions in a scientifically reliable manner, and whether the expert's courtroom testimony was false or misleading. The prosecutor's control over and manipulation of the scientific evidence to shape the fact-finder's evaluation of the facts and to persuade the …

Constructing Products Liability: Reforms In Theory And Procedure, Frank J. Vandall

Villanova Law Review (1956 - )

No abstract provided.

A Unilateral Hope: Reliance On The Clemency Process As A Trigger For A Right Of Access To State-Held Dna Evidence, Ryan Dietrich

Maryland Law Review

No abstract provided.

Trials And Tribulations: Science In The Law, Susan Haack

Articles

No abstract provided.

Forfeiture By Wrongdoing And Those Who Acquiesce In Witness Intimidation: A Reach Exceeding Its Grasp And Other Problems With Federal Rule Of Evidence 804(B)(6), James F. Flanagan

Faculty Publications

This article is the first comprehensive and critical analysis of the new exception to the hearsay rule that permits prosecutors to admit hearsay statements of absent witnesses when the defendant causes their unavailability at trial. The article develops the problems with the rule's overbroad language, its potential to admit unreliable hearsay and its relationship to the Confrontation Clause. These issues are of increasing interest to lawyers, judges and justices now that it is a federal rule and been adopted by ten states.

The first section is a comprehensive statement of the rule as now applied. The exception is traced from …

Wrongful Convictions And The Accuracy Of The Criminal Justice System, H. Patrick Furman

Publications

No abstract provided.