Evidence Commons^™

"A Middle Temperature Between The Two": Exploring Intermediate Remedies For The Failure To Comply With Maryland's Eyewitness Identification Statute, Marc A. Desimone Jr.

University of Baltimore Law Review

This article addresses what remedies should be available to a criminal defendant in Maryland who has been identified in an extrajudicial identification procedure that does not comply with the present statutory requirements. Part II of this article provides an overview of the present due process test for evaluating the admissibility of extrajudicial eyewitness identifications, the present Maryland iteration of that test, and alternatives to that approach that have been adopted in other jurisdictions. Part III reviews recent legislative reforms to extrajudicial identification procedures, which are required in Maryland as of January 1, 2016. Section IV.A of this article argues why …

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 …

The Miranda Case Fifty Years Later, Yale Kamisar

Articles

A decade after the Supreme Court decided Miranda v. Arizona, Geoffrey Stone took a close look at the eleven decisions the Court had handed down “concerning the scope and application of Miranda.” As Stone observed, “[i]n ten of these cases, the Court interpreted Miranda so as not to exclude the challenged evidence.” In the eleventh case, the Court excluded the evidence on other grounds. Thus, Stone noted, ten years after the Court decided the case, “the Court ha[d] not held a single item of evidence inadmissible on the authority of Miranda.” Not a single item. To use …

Find My Criminals: Fourth Amendment Implications Of The Universal Cell Phone "App" That Every Cell Phone User Has But No Criminal Wants, Christopher Joseph

Barry Law Review

No abstract provided.

The Law Court's Proper Application Of Miranda In State V. Bragg: A "Matter-Of-Fact Communication" To The Defendant Regarding Evidence Against Him Will Not Typically Constitute "Interrogation", Stephen B. Segal

Maine Law Review

In State v. Bragg, Tammy Bragg was convicted of a Class D crime for operating under the influence (OUI) at the completion of a jury trial, and was ordered to pay a fine of $800 and her license was suspended for ninety days. During her trial, Bragg submitted a motion to suppress statements she made in the police officer’s vehicle and the police station on the grounds that she was not read her Miranda warnings prior to making the statements. The Superior Court denied her motion, however, concluding that Miranda warnings were not necessary in the officer’s vehicle because her …

Bias In Blue: Instructing Jurors To Consider The Testimony Of Police Officer Witnesses With Caution, Vida B. Johnson

Pepperdine Law Review

Jurors in criminal trials are instructed by the judge that they are to treat the testimony of a police officer just like the testimony of any other witness. Fact-finders are told that they should not give police officer testimony greater or lesser weight than any other witness they will hear from at trial. Jurors are to accept that police are no more believable or less believable than anyone else. Jury instructions regarding police officer testimony stand in contrast to the instructions given to jurors when a witness with a legally recognized interest in the outcome of the case has testified. …

Utah V. Strieff: The Gratuitous Expansion Of The Attenuation Doctrine, Courtney Watkins

Maryland Law Review Online

No abstract provided.

Digging Into The Foundations Of Evidence Law, David H. Kaye

Michigan Law Review

Review of The Psychological Foundations of Evidence Law by Michael J. Saks and Barbara A. Spellman.

The "Csi Effect": Tv Crime Dramas' Impact On Justice, Michael Johnson

Cardozo Public Law, Policy & Ethics Journal

The note examines the "CSI Effect," a phenomenon where crime dramas like *CSI* influence jurors' expectations, potentially affecting trial outcomes. It explores whether this effect exists, its implications, and proposes solutions to mitigate its impact on the criminal justice system.

Civil Liberty Or National Security: The Battle Over Iphone Encryption, Karen Lowell

Georgia State University Law Review

On June 5, 2013, Edward Snowden released what would be the first of many documents exposing the vast breadth of electronic surveillance the Federal Bureau of Investigation (FBI) and the National Security Agency (NSA) had been conducting on millions of United States citizens. Although the federal agencies had legal authority under the Foreign Intelligence Surveillance Act (FISA) to collect metadata from companies such as Verizon, many Americans considered this data collection to be a massive invasion of privacy.

Equipped with the knowledge of sweeping domestic surveillance programs, citizens and technology firms fighting for strong privacy and security protection, have started …

Expanding (Or Just Fixing) The Residual Exception To The Hearsay Rule, Daniel J. Capra

Fordham Law Review

The Judicial Conference Advisory Committee on Evidence Rules (“the Committee”) has been considering whether to amend Federal Rule of Evidence 807 (known as the residual exception to the hearsay rule) to improve the way the Rule functions—and also to allow the admission of more hearsay if it is reliable. At the conference sponsored by the Committee in October, 2016—transcribed in this Fordham Law Review issue—the Committee submitted a working draft of an amendment that was vetted by the experts at the conference and reviewed favorably by most. This Article analyzes the arguments in favor of and against the reform of …

The Three Commandments Of Amending The Federal Rules Of Evidence, Victor Gold

Fordham Law Review

The Rules have been amended many times in the forty years since they were enacted. Unlike the original drafting process, which necessarily involved consideration of the Rules as a whole, each round of amendments was limited to a specific Rule or set of Rules. This particularized focus is not myopic, but unavoidable; the Rules are numerous and complex, and the time of the Advisory Committee and Congress is limited. But after more than forty years, a broader perspective is possible. The purpose of this Article is to provide a small bit of that perspective, which this Article distills into three …

Justice And Other Crimes Evidence: The Smorgasbord Ploy, Kenneth Graham

Fordham Law Review

The smorgasbord ploy probably plays only a minor role in the admission of other crimes evidence. But it offers us a nice window into the uses and abuses of Rule 404(b) of the Federal Rules of Evidence (“the Rules”) and its state clones. Rule 404(b)’s drafters may have supposed that trial judges would look among the illustrative uses in Rule 404(b) and select the one or two that seem most apropos to the case before them. However, the practitioners of smorgasbordism do not make any choices but instead list all (or most) of the illustrative uses to support the admission …

Short Fall Arguments In Court: A Probabilistic Analysis, Maria Cuellar

University of Michigan Journal of Law Reform

A discussion about how statistical arguments are used in court, specifically in cases of Abusive Head Trauma in which the defendant has claimed that an accidental short fall, and not shaking or child abuse, has caused the child’s injuries.

Bias, Subjectivity, And Wrongful Conviction, Katherine Judson

University of Michigan Journal of Law Reform

A talk about bias, subjectivity and wrongful convictions.

The Cost Of Ab 193: Constitutional Guarantees Sacrificed For Ineffective Means, Paul George

Nevada Law Journal

No abstract provided.

Police Interrogations, False Confessions, And Alleged Child Abuse Cases, Richard Leo

University of Michigan Journal of Law Reform

A discussion on false confession cases in the United States.

Evidence Of Child Abuse: Inferring The Causes Of Effects, Stephen E. Fienberg

University of Michigan Journal of Law Reform

A statistician's take on evidence of child abuse.

Child Abuse--Nonaccidental Injury (Nai) And Abusive Head Trauma (Aht)--Medical Imaging: Issues And Controversies In The Era Of Evidence-Based Medicine, Patrick Barnes

University of Michigan Journal of Law Reform

A look at nonaccidental injury and abusive head trauma in children with a focus on Shaken Baby Syndrome.

The Phillip D. Reed Lecture Series: Conference On Possible Amendments To Federal Rules Of Evidence 404(B), 807, And 801(D)(1)(A), Daniel J. Capra

Fordham Law Review

PROFESSOR CAPRA: Thank you, Judge. So let’s start today with some basic details. There will be a transcript of these proceedings, and it will be published in the Fordham Law Review. I’d like to thank the Fordham Law Review for taking this on and agreeing to do it.

Big Budget Productions With Limited Release: Video Retention Issues With Body-Worn Cameras, Bradley X. Barbour

Fordham Law Review

Since 2013, there has been growing support for police body-worn cameras in the wake of several high-profile and controversial encounters between citizens and law enforcement. The federal government has justified budgetary measures funding body-worn camera programs as a means to facilitate trust between law enforcement and the public through the objectivity of video footage—a sentiment supported by many lawmakers advocating for implementation of this technology. These policy goals, however, are stymied by a deficiency of police department policies and state statutes regulating the retention of footage and close adherence of states to the precedent of Arizona v. Youngblood, which …

Changing The Culture Of Disclosure And Forensics, Valena Beety

Washington and Lee Law Review Online

This Essay responds to Professor Brandon Garrett’s Constitutional Regulation of Forensic Evidence, and, in particular, his identification of the dire need to change the culture of disclosing forensic evidence. My work on forensics is—similarly to Garrett’s—rooted in both scholarship and litigation of wrongful convictions. From this perspective, I question whether prosecutors fully disclose forensics findings and whether defense attorneys understand these findings and their impact on a client’s case. To clarify forensic findings for the entire courtroom, this Essay suggests increased pre-trial discovery and disclosure of forensic evidence and forensic experts. Forensic analysts largely work in police-governed labs; therefore, …

Riley And Abandonment: Expanding Fourth Amendment Protection Of Cell Phones, Abigail Hoverman

Northwestern University Law Review

In light of the privacy concerns inherent to personal technological devices, the Supreme Court handed down a unanimous decision in 2014 recognizing the need for categorical heightened protection of cell phones during searches incident to arrest in Riley v. California. This Note argues for expansion of heightened protections for cell phones in the context of abandoned evidence because the same privacy concerns apply. This argument matters because state and federal courts have not provided the needed protection to abandoned cell phones pre- or post-Riley.

Insuring Bias: Does Evidence Of Common Insurance Demonstrate Relevant Expert Witness Bias In Medical Negligence Litigation?, Marc D. Ginsberg

Duquesne Law Review

No abstract provided.

Recent Development: Seley-Radtke V. Hosmane: The Standard Of Proof Requirement In A Purely Private Defamation Action For An Individual Asserting A Common Law Conditional Privilege Is Preponderance Of The Evidence, Makeda Curbeam

University of Baltimore Law Forum

The Court of Appeals of Maryland held that a party seeking to overcome a common law conditional privilege in a purely private defamation suit must do so by a preponderance of the evidence. Seley-Radtke v. Hosmane, 450 Md. 468, 474, 149 A.3d 573, 576 (2016). The court also held that evidentiary issues not addressed by the court of special appeals are not subject to review by the court of appeals. Id. at 510, 149 A.3d at 598 (citing Md. R. 8- 131(b)(1)). Further, the court held that prejudicial evidence irrelevant to a claim is not admissible at trial. Seley-Radtke, 450 …

Brief Of The Ethics Bureau At Yale Law School Et Al. As Amici Curiae Supporting Petitioner, Office Of The Public Defender V. Lakicevic, 215 So.3d 112 (2017) (No. 16- 1371)., Janet Moore

Faculty Articles and Other Publications

The vigilant defense of the attorney-client privilege by the courts is critical to preserving the integrity of the lawyer-client relationship. Accordingly, the Appellees’ attempt here to secure the client information from the client’s lawyer must be rejected with the same ardor as if the Appellees sought to swashbuckler through the lawyer’s entire file. If the principle that lawyer-client communications are sacrosanct were compromised in this case, the lessons from such a decision would eviscerate the attorney-client privilege in its entirety. Amici hope that their analysis will provide the Court with all of the constitutional, legal and practical reasons it needs …

Reliability Of Expert Evidence In International Disputes, Matthew W. Swinehart

Michigan Journal of International Law

Part I of this article traces the historical trends in the use of expert evidence in international disputes, from the scattered reliance on experts in the nineteenth and early twentieth centuries to the ubiquity of experts in modern disputes. With that perspective, Part II examines how decision makers have attempted to ensure reliability of the expert evidence that is flooding the evidentiary records of international disputes, while Part III outlines the many problems that still remain. Finally, Part IV proposes a non-exhaustive and nonbinding checklist of questions for analyzing the reliability of any type of expert evidence.

Skills & Values: Discovery Practice, David I.C. Thomson

Sturm College of Law: Faculty Scholarship

Skills & Values: Discovery Practice, Third Edition, is designed to serve as an introduction to the practical application of the discovery rules. The book introduces each discovery topic briefly and then provides a context and structure for exercises and self-study. Skills & Values: Discovery Practice can be used by a professor teaching a full pre-trial course, or one focused just on discovery law. It can be used alone or in conjunction with another pre-trial text, and it can be used with the problem set provided in the appendix or with a professor's own problem set. It also can be …

Who Should Own Police Body Camera Videos?, Laurent Sacharoff, Sarah Lustbader

Sturm College of Law: Faculty Scholarship

Numerous cities, states, and localities have adopted police body camera programs to enhance police accountability in the wake of repeated instances of police misconduct, as well as recent reports of more deep-seated police problems. These body camera programs hold great promise to achieve accountability, often backed by millions of dollars of federal grants.

But so far, this promise of accountability has gone largely unrealized, in part because police departments exercise near-total control over body camera programs and the videos themselves. In fact, the police view these programs chiefly as a tool of ordinary law enforcement rather than accountability — as …

Blog: Without Rhyme Or Reason, Meikhel M. Philogene

The Modern American

No abstract provided.