Evidence Commons^™

A Call For Consistency: State V. Caouette Is No Longer Viable In Light Of Colorado V. Connelly And State V. Eastman, Donald W. Macomber

Maine Law Review

This Article challenges the Law Court's expansive interpretation in State v. Caouette of the scope of the privilege against self-incrimination embodied in Article I, section 6 of the Maine Constitution in the context of reviewing claims of the involuntariness of a confession. The court's declaration that a reliable confession must be suppressed on state constitutional grounds based solely on a suspect's internal factors, and in the absence of any police overreaching in obtaining the confession, contradicted two centuries of constitutional jurisprudence requiring some form of government action to implicate the protections of the Bill of Rights and the Declaration of …

The Romberg Imbalance: Mitchell V. State Upsets The Equilibrium Of Admissible Field Sobriety Test Results In Georgia, Eric F. Kramer

Mercer Law Review

In Mitchell v. State, a unanimous Georgia Supreme Court held that the State must provide a scientific foundation for the Romberg Balance test (Romberg test) before its results are admissible against a defendant in DUI cases. To satisfy the standard set by the supreme court in Harper v. State, the State must show that a scientific procedure has reached a "stage of verifiable certainty" to produce reliable results. Additionally, the State must show that the procedure was "substantially performed ... in an acceptable manner." The trial court acts as the gatekeeper by determining the admissibility of a scientific …

To Understand Us V. Microsoft, Consider 'Acme V. Shamrock', Peter B. Rutledge, Amanda W. Newton

Popular Media

The February 27, 2018, Supreme Court argument in United States v. Microsoft Corp. raises profound questions about issues of executive power, corporate governance, technology, judicial power and international affairs. At stake for the government is the scope of its investigative authority to obtain information located in a foreign country, irrespective of that country’s laws. At stake for Microsoft is its ability to organize its international corporate affairs and the predictability of the laws that will govern those affairs. This article analyzes the potential effects of this critical Supreme Court case.

Panel Discussion: Author Meets Critic

Northwestern Journal of Law & Social Policy

No abstract provided.

Panel Discussion: Ethnography, Ethics & Law

Northwestern Journal of Law & Social Policy

No abstract provided.

Panel Discussion: Ethnographic Evidence

Northwestern Journal of Law & Social Policy

No abstract provided.

Standing Under State Search And Seizure Provision: Why The Minnesota Supreme Court Should Have Rejected The Federal Standards And Instead Invoked Greater Protection Under Its Own Constitution In State V. Carter, Rebecca C. Garrett

Maine Law Review

In State v. Carter, the Minnesota Supreme Court considered whether a criminal defendant had “standing” to challenge an alleged search under the Fourth Amendment and Article 1, Section 10 of the Minnesota Constitution. The defendant moved to suppress evidence obtained by a police officer who had peered in the window of an apartment where the defendant was participating in a drug-packaging operation with the apartment's leaseholder. A divided court held that the defendant had a legitimate expectation of privacy in the apartment. Therefore, the defendant had standing to challenge the legality of the police officer's observations pursuant to the Fourth …

Identifying And Preventing Improper Prosecutorial Comment In Closing Argument, Robert W. Clifford

Maine Law Review

In recent years, several decisions of the Maine Supreme Judicial Court sitting as the Law Court have addressed the comments of prosecutors in final argument before criminal juries. Three of those decisions in particular have caused concern among prosecutors and have stirred discussion in the Maine legal community. In vacating convictions in State v. Steen, State v. Casella, and State v. Tripp, the Law Court focused on the language used by the prosecutors during closing argument and concluded that those prosecutors impermissibly expressed personal opinion concerning the credibility of the defendants, or witnesses called by the defendants. This Article examines …

Evaluating The Reliability Of Nonscientific Expert Testimony: A Partial Answer To The Questions Left Unresolved By Kumho Tire Co. V. Carmichael, Edward J. Imwinkelried

Maine Law Review

For almost three-quarters of a century, the venerable standard announced in Frye v. United States governed the admissibility of scientific evidence. The Court of Appeals for the District of Columbia handed down the Frye decision in 1923. Under Frye, the proponent of testimony had to demonstrate that the expert's testimony was based on a generally accepted theory or technique. However, in 1993--seventy years after the rendition of the Frye decision--another court sitting in Washington, the United States Supreme Court, overturned the standard. The Court did so in its now celebrated Daubert v. Merrell Dow Pharmaceuticals decision. In the interim between …

Goldilocks And The Rule 803 Hearsay Exceptions, Liesa L. Richter

William & Mary Law Review

Criticism of the hearsay exceptions embodied in the Federal Rules of Evidence has reached a fever pitch in recent years. With scholars calling for the abrogation of the entire hearsay regime or of individual exceptions within it and the Advisory Committee on Evidence Rules exploring hearsay amendments, the time for genuine hearsay soul-searching may be at hand. This Article suggests that aggressive proposals to scuttle existing doctrine entirely in favor of alternative approaches to hearsay are overly broad, rejecting the benefits of significant portions of existing doctrine that are functioning well and threatening costly consequences that could make matters worse …

Expert Testimony And Professional Licensing Boards: What Is Good, What Is Necessary, And The Myth Of The Majority-Minority Split, Timothy P. Mccormack

Maine Law Review

Defendants regularly argue that a Review Board's decision must be overturned because it is not supported by expert testimony. Boards counter that they are qualified, by virtue of their role as the guardians of the standards for their profession, to determine the appropriateness of a defendant's conduct without the assistance of expert testimony. When courts address these arguments, they routinely ask if expert testimony is necessary to establish the standard of care in disciplinary hearings before a professional licensing board. Courts answer this question differently. In fact there is a seeming schism among the states about the importance of expert …

State V. Brackett: Does The State Have A Right Of Appeal?, Theodore A. Small

Maine Law Review

In State v. Brackett, the defendant was charged with kidnapping, gross sexual assault, burglary, and criminal threatening with the use of a dangerous weapon. The State of Maine filed an in limine motion to exclude any evidence relating to the victim's past sexual behavior, including evidence that the victim may have been a prostitute sometime prior to the incident in dispute. Although evidence of a victim's past sexual behavior is generally inadmissible. The State appealed. A divided Maine Supreme Judicial Court, sitting as the Law Court, declined to rule on the merits of the appeal, holding that the appeal was …

No Need For Cities To Despair After Bank Of America Corporation V. City Of Miami: How Patent Law Can Assist In Proving Predatory Loans Directly Cause Municipal Blight Under The Fair Housing Act, Jesse D.H. Snyder

Maine Law Review

Lack of sanguinity for cities was manifest after the Supreme Court’s May 1, 2017, opinion in Bank of America Corporation v. City of Miami. Although Bank of America recognized that cities have Article III standing to sue for economic injuries suffered from predatory lending, the Supreme Court rejected the Eleventh Circuit’s more lenient causation standard, favoring proof of “some direct relation between the injury asserted and the injurious conduct alleged.” Doubtless the result could have been worse for cities suing on the premise that racially discriminatory lending caused municipal blight. The courthouse doors could have closed if the Court had …

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 …

Recent Developments Concerning Similar Fact Evidence In Singapore: Pushing The Boundaries Of Admissibility – Pp V Ranjit Singh Gill Menjeet Singh [2017] 3 Slr 66; Micheal Anak Garing V Pp [2017] 1 Slr 748, Eunice Chua

Research Collection Yong Pung How School Of Law

This piece addressestwo recent local decisions on similar fact evidence that demonstratethe court’s difficulties with reconciling the provisions of the Evidence Actwith a more flexible approach that can be developed through the common law.These two cases extend the basis for admitting similar fact evidence beyond ss11(b), 14 and 15 of the Evidence Act.The application of the common law balancing test comparing prejudicial effectand probative value has also been broadened to consider factors such as the timingof the objection to the evidence and whether a co-accused wishes to rely on thesimilar fact evidence. Yet, the cases do not discuss the conceptual …

Petition For Writ Of Certiorari, Montana V. Tipton, Leslie C. Griffin, Marci A. Hamilton, Paul G. Cassell

Supreme Court Briefs

No abstract provided.

The Contributions Of United Nations Security Council Resolutions To The Law Of Non-International Armed Conflict: New Evidence Of Customary International Law, Gregory H. Fox, Isaac Jenkins, Kristen E. Boon

Law Faculty Research Publications

No abstract provided.

Unlocking The Fifth Amendment: Passwords And Encrypted Devices, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

Each year, law enforcement seizes thousands of electronic devices — smartphones, laptops, and notebooks — that it cannot open without the suspect’s password. Without this password, the information on the device sits completely scrambled behind a wall of encryption. Sometimes agents will be able to obtain the information by hacking, discovering copies of data on the cloud, or obtaining the password voluntarily from the suspects themselves. But when they cannot, may the government compel suspects to disclose or enter their password?

This Article considers the Fifth Amendment protection against compelled disclosures of passwords — a question that has split and …

Why Courts Fail To Protect Privacy: Race, Age, Bias, And Technology, Bernard Chao, Catherine Durso, Ian Farrell, Christopher Robertson

Sturm College of Law: Faculty Scholarship

The Fourth Amendment protects against unreasonable “searches and seizures,” but in the digital age of stingray devices and IP tracking, what constitutes a search or seizure? The Supreme Court has held that the threshold question depends on and reflects the “reasonable expectations” of ordinary members of the public concerning their own privacy. For example, the police now exploit the “third party” doctrine to access data held by email and cell phone providers, without securing a warrant, on the Supreme Court’s intuition that the public has no expectation of privacy in that information. Is that assumption correct? If judges’ intuitions about …

Clearly Unconvincing: How Heightened Evidentiary Standards In Judicial Bypass Hearings Create An Undue Burden Under Whole Woman's Health, Haley Hawkins

American University Law Review

No abstract provided.

A Forensic Analysis Of Pulmonary Embolism And Its Missing Link: Causation, William Price

Dissertations and Honors Papers

This paper explores the use of forensics outside of the criminal context, specifically in regard to pulmonary emboli. This paper will analyze what pulmonary embolism are, how they interact with the rest of the body, what causes them, and the legal considerations that arise because of them. Pulmonary embolism is common and deadly, making them a subject in a vast amount of medical malpractice litigation. This paper aims to educate the public and attorneys as to how this condition can be prevented and how to prove pulmonary embolism in civil suits regarding claims of malpractice.

User-Generated Evidence, Rebecca Hamilton

Scholarly Articles in Law Reviews & Journals

Around the world, people are using their smartphones to document atrocities. This Article is the first to address the implications of this important development for international criminal law. While acknowledging the potential benefits such user-generated evidence could have for international criminal investigations, the Article identifies three categories of concern related to its use: (i) user security; (ii) evidentiary bias; and (iii) fair trial rights. In the absence of safeguards, user-generated evidence may address current problems in international criminal justice at the cost of creating new ones and shifting existing problems from traditional actors, who have institutional backing, to individual users …

Microsoft Ireland, The Cloud Act, And International Lawmaking 2.0, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

On March 23, President Trump signed the CLOUD Act, 1 thereby mooting one of the most closely watched Supreme Court cases this term: the Microsoft Ireland case. 2 This essay examines these extraordinary and fast-moving developments, explaining how the Act resolves the Supreme Court case and addresses the complicated questions of jurisdiction over data in the cloud. The developments represent a classic case of international lawmaking via domestic regulation, as mediated by major multinational corporations that manage so much of the world's data.

Touch Dna And Chemical Analysis Of Skin Trace Evidence: Protecting Privacy While Advancing Investigations, Mary Graw Leary

Scholarly Articles

Forensic science transforms criminal investigations by resolving previously unsolvable cases and bringing an increased sense of justice to communities. This application of scientific disciplines to legal questions aids investigators in solving crimes. While many sciences can be utilized—such as physics (pattern evidence), chemistry (toxicology), or biology (cause of death), to name a few—two aspects of scientific advancement have played an outsized role in responding to crime. Trace evidence analysis—specifically, deoxyribonucleic acid (DNA) analysis—is an essential component to an effective and accurate criminal justice system. DNA evidence has emerged as a powerful tool to identify perpetrators of unspeakable crimes and to …

Hearsay And Abuse: Where Past Is Present, The Hon. Andrea M. Leahy, Jared A. Mclain Esq.

University of Baltimore Law Review

No abstract provided.

Honesty Without Truth: Lies, Accuracy, And The Criminal Justice Process, Lisa Kern Griffin

Faculty Scholarship

Focusing on “lying” is a natural response to uncertainty but too narrow of a concern. Honesty and truth are not the same thing and conflating them can actually inhibit accuracy. In several settings across investigations and trials, the criminal justice system elevates compliant statements, misguided beliefs, and confident opinions while excluding more complex evidence. Error often results. Some interrogation techniques, for example, privilege cooperation over information. Those interactions can yield incomplete or false statements, confessions, and even guilty pleas. Because of the impeachment rules that purportedly prevent perjury, the most knowledgeable witnesses may be precluded from taking the stand. The …

Bias On Trial: Toward An Open Discussion Of Racial Stereotypes In The Courtroom, Mikah K. Thompson

Faculty Works

In the 2017 case Pena-Rodriguez v. Colorado, the U.S. Supreme Court discussed several safeguards that are in place to assist the trial court in identifying racial bias among jurors. These safeguards include voir dire examination regarding racial bias, observation of juror demeanor and conduct that might demonstrate racial bias, reports of racially biased comments or actions by jurors during trial, and non-juror evidence of racial bias after trial. The Court acknowledged that these safeguards may be insufficient at times and therefore added a fifth one, holding that trial courts may review evidence suggesting that racial bias was a motivating factor …

Federal Rule 26(A)(2) Expert Witness Disclosures: Strategies For Composing And Attacking Expert Disclosures, Douglas B. Bates, Chelsea R. Stanley, James L. Burt Iii

Journal of Air Law and Commerce

Federal Rule of Civil Procedure 26(A)(2) governs disclosure of expert testimony. The rule purports to create a clear delineation between experts that must provide a written report and those that do not. The rule then outlines the disclosure requirements that must be satisfied as to each type of expert. This article focuses on the implications of Rule 26(A)(2) in practice, with an emphasis on the field of aviation litigation. The article begins by discussing the general difference between non-retained experts and retained experts and the disclosure requirements associated with each. The article then progresses into a series of practice pointers …

Mandating Meaningful Forensic Discovery: A Proposal To Fuel The Engine Of Truthfulness, Marjorie Mcdiarmid

Faculty & Staff Scholarship

No abstract provided.

Goldilocks And The Rule 803 Hearsay Exceptions, Liesa L. Richter

Faculty Articles

Criticism of the hearsay exceptions embodied in the Federal Rules of Evidence has reached a fever pitch in recent years. With scholars calling for the abrogation of the entire hearsay regime or of individual exceptions within it and the Advisory Committee on Evidence Rules exploring hearsay amendments, the time for genuine hearsay soul-searching may be at hand. This Article suggests that aggressive proposals to scuttle existing doctrine entirely in favor of alternative approaches to hearsay are overly broad, rejecting the benefits of significant portions of existing doctrine that are functioning well and threatening costly consequences that could make matters worse …