Evidence Commons^™

La Justicia, La Verdad Y La Prueba: No Tan Simple, Después De Todo, Susan Haack

Books and Book Chapters

Este libro es una compilación de los trabajos que se presentaron en el Congreso Homenaje a Michele Taruffo los días 23 y 24 de enero de 2015 en Girona, organizado por la Cátedra de Cultura Jurídica de la Universidad de Girona. Los artículos están organizados en tres apartados que describen las principales líneas temáticas de nuestro homenajeado: derecho comparado, precedentes y prueba. El lector encontrará en cada uno de los trabajos un análisis crítico de las principales ideas sostenidas por Michele Taruffo en sus obras y también la respuesta de este a las distintas observaciones presentadas a debate.

The Promises And Pitfalls Of State Eyewitness Identification Reforms, Nicholas A. Kahn-Fogel

Kentucky Law Journal

This article provides a comprehensive analysis of state-based eyewitness identification reforms, including legislative directives, evidentiary rules, and judicial interpretations of state constitutions as providing greater protection against the use of unreliable eyewitness evidence than the United State Supreme Court offered in its 1977 decision in Manson v. Brathwaite. While previous scholarship has included thorough consideration of a single state's eyewitness law, state-by-state analysis of a sub-issue in eyewitness law, and brief general surveys of state approaches to eyewitness reform, this article adds to the current body of scholarship with an in-depth evaluation of eyewitness identification law in states that …

Rule 706: An Underutilized Tool To Be Used When Partisan Experts Become "Hired Guns", Bradford H. Charles

Villanova Law Review (1956 - )

No abstract provided.

Milkovich V. Lorain Journal Twenty-Five Years Later: The Slow, Quiet, And Troubled Demise Of Liar Libel, Leonard Niehoff, Ashley Messenger

University of Michigan Journal of Law Reform

In Milkovich v. Lorain Journal Co., the Supreme Court held that there is no separate constitutional protection for statements of opinion. It also held that an accusation that an individual lied is a statement of fact actionable in defamation. Lower courts have, correctly in our view, essentially ignored both holdings. In Part I we discuss Milkovich and the infirmities in its reasoning. In Part II we discuss the complex nature of lies and accusations of lies and argue that Milkovich failed to account for that complexity. In Part III we discuss the strategies the lower courts have used to …

Sampling And Reliability In Class Action Litigation, Hillel J. Bavli

Cardozo Law Review de•novo

In this Article, I explain my conclusions in Aggregating for Accuracy in non-mathematical terms, and underscore certain implications with respect to class action litigation and considerations in light of the U.S. Supreme Court’s recent decision in Tyson Foods, Inc. v. Bouaphakeo. I begin by describing the building blocks of my analysis—the concepts of reliability and accuracy in the law.

The Need For Better Medical Evidence In Va Disability Compensation Cases And The Argument For More Medical-Legal Partnerships, Stacey-Rae Simcox

South Carolina Law Review

No abstract provided.

The Use Of False Dna Evidence To Gain A Confession During Interrogation Is Classic Coercion: Why Such Coerced Confessions Should Not Be Admissible In A Criminal Trial, Andrea Reed

Kentucky Law Journal

No abstract provided.

Reality Check: A Modest Modification To Rationalize Rule 803 Hearsay Exceptions, Liesa L. Richter

Faculty Articles

No abstract provided.

Hearsay Evidence: Legal Discourse, Circumstantiality, And The Woman In White, Matthew Finley

Global Tides

In Wilkie Collins’s The Woman in White, Walter Hartright begins the narrative by stating that, because “the Law is still … the pre-engaged servant of the long purse,” he has arranged the novel to reveal the truth (5). The author, then, puts the law on trial by engaging the interplay between legal questions of witness credibility and testimonial evidence and their impact on social factors such as class and gender. The law’s emphasis on externality leads the system to privilege the snakelike Fosco over the heroic Walter, Laura, and Marian, signaling the courts' capital offence. Although the novel is …

Punish The Crown, But Protect The Government: A Comparative Analysis Of State Tort Liability For Exemplary Damages In England And Punitive Damages In The United States, Bradley Raboin

Cardozo Journal of International and Comparative Law

The article examines the contrasting approaches of the United States and England regarding punitive and exemplary damages in tort claims against the government. While the U.S. prohibits punitive damages against the government under the Federal Tort Claims Act (FTCA), England allows exemplary damages against the Crown in specific cases. The author argues that England's approach, which holds the government accountable through exemplary damages, is preferable and suggests that the U.S. should consider a similar, regulated approach to enhance government accountability.

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

Scholarly Works

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 the patient, …

Irresolute Testators, Clear And Convicing Wills Law, Jane B. Baron

Washington and Lee Law Review

Controversial recent wills law reforms, embodied in new provisions of both the Uniform Probate Code and the Restatement of Property, excuse so-called harmless errors in will execution and permit judicial correction of erroneous terms in a will or trust. Both reforms pose evidentiary dangers, as proof of the error must come from outside the attested instrument and will be offered after the testator’s death. To respond to this concern, both the error and the testator’s true intent must be established by “clear and convincing” evidence. This Article is the first to examine how courts have applied the clear and convincing …

Criminal Adjudication, Error Correction, And Hindsight Blind Spots, Lisa Kern Griffin

Washington and Lee Law Review

Concerns about hindsight in the law typically arise with regard to the bias that outcome knowledge can produce. But a more difficult problem than the clear view that hindsight appears to provide is the blind spot that it actually has. Because of the conventional wisdom about error review, there is a missed opportunity to ensure meaningful scrutiny. Beyond the confirmation biases that make convictions seem inevitable lies the question whether courts can see what they are meant to assess when they do look closely for error. Standards that require a retrospective showing of materiality, prejudice, or harm turn on what …

Miranda'S Truth: The Importance Of Adversarial Testing And Dignity In Confession Law, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The landmark decision of Miranda v. Arizona focuses on the important values of adversarial testing and human dignity. These values can be found among a constellation of values ordinarily aligned with constitutional criminal procedure cases like Miranda. The constellation also includes values such as truth-finding and equality. With the regularization of DNA analysis and the realization that a large number of innocent people have been convicted, however, there has been a recent fixation on truth-finding. Other values have been overshadowed. The myopic pursuit of truth-finding may be somewhat misguided, as certainty of truth is generally impossible. This is recognized by …

Restoring The Character Evidence Rule: Reconsidering Evidence Of Crimes, Wrongs, And Other Acts In Rhode Island, Edward Pare Iii

Roger Williams University Law Review

No abstract provided.

From Jones To Jones: Fifteen Years Of Incoherence In The Constitutional Law Of Sentencing Factfinding, Benjamin Priester

Journal Publications

For over 15 years, the United States Supreme Court has struggled to define the constitutional constraints upon a ubiquitous practice in contemporary American criminal justice: the exercise of factfinding authority by sentencing judges in the course of determining the specific punishment to be imposed upon an individual convicted of a criminal offense. While the Court has permitted much sentencing factfinding to continue unabated, its decisions have identified certain scenarios in which an offender's constitutional rights are violated when a fact found at sentencing creates particular impacts on the punishment. Unfortunately, from the beginning this new constitutional doctrine in criminal procedure …

"Connected" Discovery: What The Ubiquity Of Digital Evidence Means For Lawyers And Litigation, Gail Gottehrer

Richmond Journal of Law & Technology

More than ten years ago, the Zubulake case raised awareness of the importance of digital evidence in litigation. At that time, for many lawyers, the discovery process consisted of collecting paper documents, manually reviewing those paper documents, and responding to document requests by producing paper documents. Digital evidence existed, but was more limited in scope and volume than it is today. Back then it was often overlooked or not recognized as a potential source of valuable evidence to be obtained in discovery.

Digital Direction For The Analog Attorney-Date Protection, E-Discovery, And The Ethics Of Technological Competence In Today's World Of Tomorrow, Stacey Blaustein, Melinda L. Mclellan, James A. Sherer

Richmond Journal of Law & Technology

Over the past twenty years, the near-constant use of sophisticated technological tools has become an essential and indispensable aspect of the practice of law. The time and cost efficiencies generated by these resources are obvious, and have been for years. And because clients expect their counsel to take full advantage, savvy attorneys understand that they must keep up with ever-evolving legal technologies to stay competitive in a crowded marketplace.

Face-To-Face With Facial Recognition Evidence: Admissibility Under The Post-Crawford Confrontation Clause, Joseph Clarke Celentino

Michigan Law Review

In Crawford v. Washington, the Supreme Court announced a major change in Confrontation Clause doctrine, abandoning a decades-old framework that focused on the common law principles of hearsay analysis: necessity and reliability. The new doctrine, grounded in an originalist interpretation of the Sixth Amendment, requires courts to determine whether a particular statement is testimonial. But the Court has struggled to present a coherent definition of the term testimonial. In its subsequent decisions, the Court illustrated that its new Confrontation Clause doctrine could be used to bar forensic evidence, including laboratory test results, if the government failed to produce the …

Paying Down The Civil Justice Data Deficit: Leveraging Existing National Data Collection, Rebecca L. Sandefur

South Carolina Law Review

No abstract provided.

The Psychology And Neurobiology Of Mediation, Elizabeth E. Bader

Cardozo Journal of Conflict Resolution

This article grew out of a moment in mediation when a party became furious with me after receiving the opening offer from the other side. As I tried to understand what was happening, I suddenly realized it was not about the offer at all. It was about him. He feared a loss of "face" in front of the other parties.

Is Courtesy No Longer Contagious, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

From Nuremberg To Kenya: Compiling The Evidence For International Criminal Prosecutions, Jennifer Stanley

Vanderbilt Journal of Transnational Law

The Prosecutor of the International Criminal Court has encountered significant difficulty in conducting investigations. Faced with violence on the ground, witnesses who fear repercussions, and limitations on resources, the Prosecutor has turned to relying on secondary forms of evidence, such as the reports of NGOs and other third-party information providers.

This Note argues that the Prosecutor's use of such evidence is problematic because it fails to adequately follow the evidentiary rules of the Court and, subsequently, to protect the rights of witnesses and defendants. Moreover, the Office of the Prosecutor's dependence on third-party evidence has stunted the Prosecutor's ability to …

Can Dna Be Speech?, Jorge R. Roig

Cardozo Arts & Entertainment Law Journal

DNA is generally regarded as the basic building block of life itself. In the most fundamental sense, DNA is nothing more than a chemical compound, albeit a very complex and peculiar one. DNA is an information-carrying molecule. The specific sequence of base pairs contained in a DNA molecule carries with it genetic information and encodes for the creation of particular proteins. When taken as a whole, the DNA contained in a single human cell is a complete blueprint and instruction manual for the creation of that human being.

This Article discusses a myriad of current and developing ways in which …

Working Towards The Welfare Of Our Children: An Argument For A Rebuttable Presumption Against Awarding Abusers Custody And Other Non-Legislative Proposals, Sapna Kishnani

Cardozo Journal of Equal Rights & Social Justice

The note examines the intersection of domestic violence and child custody determinations, highlighting the challenges faced by victims and the legal system in balancing the best interests of the child with the risks posed by abusive parents. It critiques the discretionary nature of the "best interests of the child" standard and proposes adopting Delaware’s rebuttable presumption against granting custody to perpetrators of domestic violence, while retaining New York’s preponderance of evidence standard. The analysis emphasizes the need for systematic approaches to child testimony and mediation to protect children’s well-being and ensure just outcomes.

A Revisionist View Of Journalist's Privilege: Justice Powell, Branzburg And The "Proper Balance", William E. Lee

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Patent System Manipulation: Hedge Funds Abusing Ipr, Poor Patent Quality & Pharmaceutical Monopolies, Kenneth J. Costa

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Section 276 Misconstrued: The Failure To Properly Interpret And Apply Canada's Rape Shield Provisions, Elaine Craig

Articles, Book Chapters, & Popular Press

Despite the vintage of Canada’s rape shield provisions (which in their current manifestation have been in force since 1992), some trial judges continue to misinterpret and/or misapply the Criminal Code provisions limiting the use of evidence of a sexual assault complainant’s other sexual activity. These errors seem to flow from a combination of factors including a general misunderstanding on the part of some trial judges as to what section 276 requires and a failure on the part of some trial judges to properly identify, and fully remove, problematic assumptions about sex and gender from their analytical approach to the use …

Judging The Social Sciences In Carter V. Canada, Jodi Lazare

Articles, Book Chapters, & Popular Press

This paper examines a recent example of evidence-based decision making affecting social policy at the trial court level. It offers a close reading of Carter v Canada (AG), decided by the British Columbia Supreme Court, and of Justice Lynn Smith’s careful scrutiny of the social science evidence when invalidating the Criminal Code prohibition on assistance in dying. Drawing on literature which examines the legal system’s use of social science evidence and expert witnesses, this paper suggests that Justice Smith’s treatment of the evidence in Carter provides an example of skilled judicial treatment of the extensive amounts of social science evidence …

Evidence Laundering In A Post-Herring World, Kay L. Levine, Jenia I. Turner, Ronald F. Wright

Faculty Journal Articles and Book Chapters

The Supreme Court’s decision in Herring v. United States authorizes police to defeat the Fourth Amendment’s protections through a process we call evidence laundering. Evidence laundering occurs when one police officer makes a constitutional mistake when gathering evidence and then passes that evidence along to a second officer, who develops it further and then delivers it to prosecutors for use in a criminal case. When courts admit the evidence based on the good faith of the second officer, the original constitutional taint disappears in the wash.

In the years since Herring was decided, courts have allowed evidence laundering in a …