Evidence Commons^™

Moving Beyond Miranda: Concessions For Confessions, Scott W. Howe

Northwestern University Law Review

The law governing police interrogation provides perverse incentives. For criminal suspects, the law rewards obstruction and concealment. For police officers, it honors deceit and psychological aggression. For the courts and the rest of us, it encourages blindness and rationalization. This Article contends that the law could help foster better behaviors. The law could incentivize criminals to confess without police trickery and oppression. It could motivate police officers involved in obtaining suspect statements to avoid chicanery and duress. And, it could summon courts and the rest of us to speak more truthfully about whether suspect admissions are the product of informed, …

Constitutional Regulation Of Forensic Evidence, Brandon L. Garrett

Washington and Lee Law Review

No abstract provided.

A Blueprint For Obtaining Judicial Notice Of A Fact That Need Not Be Proven At Trial, Cynthia Ford

Faculty Journal Articles & Other Writings

No abstract provided.

Rescued From The Grave And Then Covered With Mud: Justice Scalia And The Unfinished Restoration Of The Confrontation Right, Richard D. Friedman

Articles

Some years before his death, when asked which was his favorite among his opinions, Antonin Scalia named Crawford v. Washington. It was a good choice. Justice Scalia's opinion in Crawford reclaimed the Confrontation Clause of the Sixth Amendment to the Constitution and restored it to its rightful place as one of the central protections of our criminal justice system. He must have found it particularly satisfying that the opinion achieved this result by focusing on the historical meaning of the text, and that it gained the concurrence of all but two members of the Court, from all ideological positions.

#Guilty? Sublet V. State And The Authentication Of Social Media Evidence In Criminal Proceedings, Elizabeth A. Flanagan

Villanova Law Review (1956 - )

No abstract provided.

Pennsylvania Stacks The Deck Against Defendants In Commonwealth V. Alicia, Leaving False Confession Assessments To The Jury, Katherine Reamy

Villanova Law Review (1956 - )

No abstract provided.

The Connected State Of Things: A Lawyer’S Survival Guide In An Internet Of Things World, Antigone Peyton

Catholic University Journal of Law and Technology

No abstract provided.

Wearable Devices As Admissible Evidence: Technology Is Killing Our Opportunity To Lie, Nicole Chauriye

Catholic University Journal of Law and Technology

No abstract provided.

Causation In Cases Of Evidential Uncertainty: Juridical Techniques And Fundamental Issues, Ken Oliphant

Chicago-Kent Law Review

This paper reviews from a comparative legal perspective the range of juridical techniques that have been developed in different legal systems to address perceived problems of uncertain alternative causation. It finds that the process of development has generally proceeded in an ad hoc and unprincipled fashion, without regard for overall coherence. It argues for a more principled legal approach in which the appropriate legal response (full liability, proportional liability or no liability) is adopted on the basis of a ranking of the different categories of cases in which problems of causal uncertainty can arise, reflecting the strength (or weakness) of …

Protecting Public Employee Trial Testimony, Joseph Deloney

Chicago-Kent Law Review

In a number of jurisdictions around the United States, police officers and other public employees that regularly testify as part of their ordinary job duties can be placed in compromising positions. Because these types of employees regularly testify as part of their ordinary job duties, such testimony is considered “employee speech” and therefore unprotected by the First Amendment. Consequently, governmental employers can take adverse employment actions against an employee based on his or her truthful trial testimony without violating the employee’s First Amendment rights. Drawing from the Supreme Court’s 2014 decision in Lane v. Franks and other circuit court cases, …

David Brown Versus Louisiana, Charles Ogletree, Ronald Sullivan

Amicus Briefs

No abstract provided.

The "Duh" Standard Is The Basic Premise In Montana's Rules Of Judicial Notice, Cynthia Ford

Faculty Journal Articles & Other Writings

No abstract provided.

Precedent In Statutory Interpretation, Lawrence Solan

Faculty Scholarship

No abstract provided.

Louisiana Rapper’S Case Speaks To Bigger Problems In The Criminal Justice System, Andrea L. Dennis, Erik Nelson, Michael Render

Popular Media

This article published on April 25, 2016 at the Huffington Post examines the case of McKinley Phipps. He was sentenced to thirty years of hard labor for a crime that, to this day, he insists he did not commit. During the trial prosecutors used Phipps’s rap persona and lyrics - remixed for special effect - to carefully construct a story of Phipps’s guilt. The article discusses how Phipps lyrics and persona contributed to his conviction and the progress of his appeals.

Lost In A Maze Of Character Evidence: How The Federal Courts Lack A Cohesive Approach To Applying Federal Rule Of Evidence 404(B) In Drug Distribution Cases, Brian Byrne

Pace Law Review

The admission of a criminal defendant’s prior bad acts can be a powerful tool for attaining a conviction. The federal courts are currently divided as to whether the defendant’s prior drug use is admissible under Rule 404(b) of the Federal Rules of Evidence when the defendant is charged with distributing a controlled dangerous substance.

Part I of this Comment will briefly explore the historical roots of Rule 404(b). Part II will examine the permissible purposes for admitting prior bad acts under Rule 404(b). Part III will discuss the circuit split that has developed as to whether the defendant’s prior drug …

Billy Joel: The Minstrel Testifies Or How The Rules Of Evidence Handcuff The Piano Man, Hon. Richard A. Dollinger

Touro Law Review

No abstract provided.

State V. Carroll, 132 Nev. Adv. Op. 23 (Apr. 7, 2016), Jessie Folkestad

Nevada Supreme Court Summaries

Defendant Deangelo Carroll appealed from a conviction for conspiracy to commit murder and first-degree murder with use of a deadly weapon. The Supreme Court of Nevada found the district court erred in denying Carroll’s motion to suppress his statements to police because the police subjected Carroll to a custodial interrogation, without advising him of his Miranda rights. The Court affirmed however, finding the error harmless beyond a reasonable doubt.

Ohio V. Clark , Peter M. Torstensen Jr.

Notre Dame Law Review Reflection

The heart of the debate over the purpose of the Confrontation Clause is the manner in which confrontation was intended to secure a defendant’s rights—either through procedural fairness or ensuring evidentiary reliability. The eventual direction the Supreme Court takes will depend, in large part, on which of these visions of the Confrontation Clause ultimately prevails. Michigan v. Bryant marked a potential step in the direction of the Ohio v. Roberts vision, and Ohio v. Clark does not appear to have departed from the course set in Bryant. Thus, while Crawford v. Washington marked a sea change in the Court’s confrontation …

Copwatching, Jocelyn Simonson

Faculty Scholarship

No abstract provided.

Litigating From The Prison Of The Mind: A Cognitive Right To Post-Conviction Counsel, Ken Strutin

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

How Sound Is The Science? Applying Daubert To Biomechanical Experts’ Injury Causation Opinions, Loren Peck

Washington and Lee Law Review

No abstract provided.

Dna, Blue Bus, And Phase Changes, Edward K. Cheng, G. Alexander Nunn

Faculty Scholarship

In ‘Exploring the Proof Paradoxes’, Mike Redmayne comprehensively surveyed the puzzles at the intersection of law and statistics, the most famous of which is the Blue Bus problem, which prohibits legal actors from ascribing liability purely on the basis of probabilistic evidence. DNA evidence, however, is a longstanding exception to Blue Bus. Like Blue Bus, DNA presents probabilistic evidence of identity. Unlike Blue Bus, DNA is widely accepted as legitimate, even when it stands alone as so-called ‘naked’ statistical evidence. Observers often explain such DNA exceptionalism in two ways: either that people break down in extreme cases, or relatedly, that …

Epigenetics And Toxic Torts: How Epidemiological Evidence Informs Causation, Kerriann Laubach

Washington and Lee Law Review

No abstract provided.

Bruton On Balance: Standardizing Redacted Codefendant Confessions Through Federal Rule Of Evidence 403, Margaret Dodson

Vanderbilt Law Review

Joint criminal trials are a relatively common practice in the American criminal justice system. When multiple criminal defendants are charged in a single crime-especially in conspiracy cases-courts and prosecutors alike favor joint trials because of their comparable efficiency to individual trials. However, joint trials can raise significant procedural and constitutional concerns for codefendants. One such issue arises when the government seeks to introduce the confession of a non-testifying defendant (hereinafter a "declarantdefendant") that inculpates other codefendants.

When introduced, such confessions raise potential Sixth Amendment issues under Bruton v. United States. A Bruton violation occurs in a joint trial when a …

Crossing The Line: Daubert, Dual Roles, And The Admissibility Of Forensic Mental Health Testimony, Sara Gordon

Cardozo Law Review

Psychiatrists and other mental health professionals often testify as forensic experts in civil commitment and criminal competency proceedings. When an individual clinician assumes both a treatment and a forensic role in the context of a single case, however, that clinician forms a dual relationship with the patient - a practice that creates a conflict of interest and violates professional ethical guidelines. The court, the parties, and the patient are all affected by this conflict and the biased testimony that may result from dual relationships. When providing forensic testimony, the mental health professional's primary duty is to the court, not to …

Weighing The Admissibility Of Fmri Technology Under Fre 403: For The Law, Fmri Changes Everything -- And Nothing, Justin Amirian

Fordham Urban Law Journal

Lie detection; fMRI; Evidence; polygraph

Strange Bedfellows: How Expanding The Public Safety Exception To Miranda Benefits Counterterrorism Suspects, Geoffrey Corn, Chris Jenks

Fordham Urban Law Journal

No abstract provided.

Reconsidering The Standards Of Admission For Prior Bad Acts Evidence In Light Of Research On False Memories And Witness Preparation, Jason Tortora

Fordham Urban Law Journal

No abstract provided.

Principles, Politics And Privilege: How The Crime-Fraud Exception Can Preserve The Strength Of The Attorney-Client Privilege For Government Lawyers And Their Clients, Michael W. Glenn

Fordham Urban Law Journal

No abstract provided.

Rish V. Simao, 132 Nev. Adv. Op. 17 (Mar. 17, 2016), Heather Caliguire

Nevada Supreme Court Summaries

The Nevada Supreme Court held that the District Court wrongly excluded evidence of low-impact defense when it required a biomechanical expert testify about the nature of the accident, erroneously interpreting Hallmark v. Eldgridge Instead, Hallmark requires sufficient foundation for admission of testimony and evidence, specifically excluding a biomechanical expert’s testimony under NRS 50.275. The Court additionally held that the District Court erred when it ultimately struck the defendant’s answer for violations of the pretrial order precluding defendant from raising a minor or low impact defense.