Evidence Commons^™

Coercive Conduct And Evidentiary Hearings; Atr Wire And Cable Co. V. Nlrb, Patricia A. Mcintyre

Akron Law Review

Traditionally, the Sixth Circuit Court of Appeals has closely adhered to this strict standard.' It has done so in compliance with one of the foremost policies of the Act - the alleviation of labor unrest by expediently certifying bargaining units. ATR Wire and Cable Co. v. NLRB, "I however, represents the current willingness of the Sixth Circuit to de-emphasize the importance of expediently certifying bargaining representatives. First, the circuit will not hesitate to remand a case with direction to the NLRB to conduct an evidentiary hearing when it determines that the Board adopted the Regional Director's recommendation to certify …

"Inevitable Discovery" Or Inevitable Demise Of The Exclusionary Rule? Nix V. Williams, John V. Boggins

Akron Law Review

On June 11, 1984 in the case of Nix v. Williams, the Supreme Court adopted a further exception to the exclusionary rule, the "inevitable discovery" doctrine. The inevitable discovery doctrine permits the admission of evidence obtained in spite of a violation of a defendant's constitutional rights, where the prosecution can convince the trier of fact by a preponderance that this evidence would have been discovered regardless of any such violation.

Federal Rule Of Evidence 804: Will The Real Predecessor-In-Interest Please Stand Up, Dennis J. Turner

Akron Law Review

As any judge, lawyer or law student can attest, the rule against hearsay with its plethora of exceptions is probably the most vexing of all the rules of evidence. When the Supreme Court's Proposed Rules of Evidence were first published, it was fairly apparent, with respect to the specific rules governing hearsay, that the Court had intended to remove some of the sting from a few of the more annoying aspects of the rule against hearsay.' In fact, the changes proposed by the Court arguably constituted a first step toward eliminating the rule entirely. The proposed hearsay rules (Federal Rules …

The Changing Face Of The Rule Against Hearsay In English Law, R. A. Clark

Akron Law Review

The rule against hearsay has always been surrounded by an aura of mystery and has been treated with excessive reverence by many English judges. Traditionally the English courts have been reluctant to allow any development in the exceptions to this exclusionary rule, regarding hearsay evidence as being so dangerous that even where it appears to be of a high probative calibre it should be excluded at all costs. But recent developments, both statutory and common law, have demonstrated a much more relaxed approach to this rule. In civil cases the hearsay rule has been contained in statutory form for some …

Response Of John Kulewicz To Professor Shanker, John J. Kulewicz

Akron Law Review

A glaring error in Professor Shanker's recent article proves the value of the parol evidence rule at least as effectively as the balance of his scholarly contribution to this journal. In reviewing the arguments of counsel in the Marion PCA v. Cochran case,' Professor Shanker claims that the Court "was led astray by the lawyers" and that" [m]isleading from the [l]awyers" caused the Court to undertake its analysis of the Statute of Frauds.2 He stakes this claim on his apparent belief that counsel did not ask the Court to apply the parol evidence rule to the facts of the case. …

Wiggins V. State: Receiving A Fair Trial Under The Specter Of Aids, Charles Zamora

Akron Law Review

Wiggins v. State presented two unique issues: (1) whether it was proper to authorize courtroom security personnel to use prophylactic apparel while escorting a defendant merely suspected of having acquired immunodeficiency syndrome (AIDS), and (2) the extent to which this handling procedure impacted the jury.

This Note will analyze the Wiggins decision, emphasizing the court's reasoning as it pertains to the following: (1) the guarantee of a fair and impartial jury trial for defendants either having or being suspected of having AIDS; (2) the permissible exercise of discretion by the trial judge in authorizing precautions during the course of the …

Military Rules Of Evidence: Adoption Or Abrogation Of The Common Law?, Richard H. Mills

Akron Law Review

Posit: What role should the common law of evidence play in a military judge's decisions under the present rules of evidence? My conclusion is that the answer to this question is of bedrock importance to military justice.

Yet despite these differences, an understanding of the Federal Rules of Evidence and the common law precedents from which they evolved is imperative if the majority of the military rules is to be properly employed.

Federal Rule Of Evidence 608(B): A Proposed Revision, Janeen Kerper, Bruce E. Macdonald

Akron Law Review

It is the thesis of this article that under the federal rules there are basically only two limitations on the use of extrinsic evidence to attack the credibility of a witness.

First, the basic rules of relevance and considerations of judicial efficiency give the judge discretion to exclude evidence of irrelevant or "collateral" matters under Federal Rule of Evidence 401 and 403. Second, Rule 608(b) limits the use of extrinsic evidence of specific acts tending to show that the witness has the character of a liar or a truthteller. The first of these limitations is discretionary while the second is …

Evidentiary Use Of Prior Acquittals: When Analysis Exceeds Reality, Paul Harper

Akron Law Review

The purpose of this note is to assess the basis and propriety of that decision and to highlight some potential problems with the Court's conclusion. Additionally, this casenote will attempt to envision how this holding may affect future prosecutions.

Finally it will offer an alternative model which may more adequately address the tension between the government's legitimate prosecutorial interests and the defendant's interest in finality of judgment.

State V. Jenks Fails To Clarify Appellate Standards Of Evidence Review In Ohio, Kevin L. Leffel

Akron Law Review

The analysis that follows focuses on two points. First, many reviewing courts in Ohio have failed to discern between reversing a conviction because it was against the manifest weight of the evidence and reversing because the evidence was not sufficient to support the conviction. The concepts and associated standards of review are separate and distinct. Jenks failed to clarify the distinction and may actually add to the confusion. Second, the elimination of the circumstantial evidence rule has implications concerning the definition of reasonable doubt in Ohio.

The Trial Judge As Gatekeeper For Scientific Evidence: Will Ohio Rule Of Evidence 102 Frustrate The Ohio Courts' Role Under Daubert V. Merrell Dow?, Michael Lepp, Chrisopher B. Mcneil

Akron Law Review

This article considers the role of the trial court in responding to the changes wrought by scientific innovation. Particular consideration is given to the impact likely to be realized in Ohio trial courts from the decision of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.

[...]In order to appreciate the significance of Ohio Evidence Rule 102 in this context, it is helpful to first examine some of the events leading to Daubert, especially the application (and in some instances, the rejection) of Frye both in Ohio and at the federal level. Following that, this article will …

Lilly V. Virginia: Silencing The "Firmly Rooted" Hearsay Exception With Regard To An Accomplice's Testimony And Its Rejuvenation Of The Confrontation Clause, Leslie Morsek

Akron Law Review

This Note examines the impact on the confrontation clause of introducing an accomplice's custodial statements which inculpate a defendant. Part II delves into the background of this issue by examining the confrontation clause's origin, the significance of hearsay with respect to the confrontation clause, and important cases in this area. Part III provides a statement of the facts, the procedural history, and the United States Supreme Court's decision in Lilly. Finally, Part IV analyzes the Lilly decision and its rejuvenation of the confrontation clause.

Protecting The Wolf In Sheep's Clothing: Perverse Consequences Of The Mckennon Rule, Jenny B. Wahl

Akron Law Review

What follows is, first, a description of the typical scenarios that arise in after-acquired-evidence cases and the law surrounding McKennon. Section II discusses how the economic literature on information and signaling applies to such cases; section III elaborates upon the motives behind and the perversities of McKennon; and section IV offers conclusions.

Can Post-Chicago Economics Survive Daubert?, Malcolm B. Coate, Jeffrey H. Fischer

Akron Law Review

In Section II of this Article, we review the Supreme Court’s standard for allowing expert testimony as explained in Daubert and related opinions, and discuss in detail the City of Tuscaloosa and Concord Boat decisions that, following Daubert, excluded the economic expert testimony on which the plaintiffs relied. Section III presents an overview of the Chicago School of Economics, which sets a foundation for our commentary on the Post-Chicago school and serves as a basis for the evaluation of Chicago-based testimony in Section V. Section IV discusses the Post-Chicago School approach to antitrust analysis as a refinement of the Chicago …

Get On Board For The Ride Of Your Life! The Ups, The Downs, The Twists, And The Turns Of The Applicability Of The "Gatekeeper" Function To Scientific And Non-Scientific Expert Evidence: Kumho'sexpansion Of Daubert, Leslie Morsek

Akron Law Review

This Comment examines the history of scientific and non-scientific expert evidence, its current status, and the future of scientific and non-scientific evidence based on recent court decisions. Part II explores the background of these issues by examining the earlier standard for admitting expert testimony, the effect of Congress’ promulgation of the Federal Rules of Evidence, and the influential cases in this area. Part III analyzes the importance of subjecting nonscientific expert testimony to the same rigors as scientific expert testimony. Lastly, Part IV predicts the future of expert evidence.

Culpability Evaluations In The State Supreme Courts From 1977 To 1999: A "Model" Assessment, Dannye Holley

Akron Law Review

A key premise of this article is that a fair assessment of the performance of state supreme court judges with regard to culpability evaluations must begin by differentiating among the states based upon the relative quality of statutory guidance available to each court on this crucial substantive criminal law issue. In light of the above discussion defining culpability evaluation and legislative action with regard thereto, this article categorizes states based on relative improvement in their statutory culpability evaluation scheme: first are those states with a set of hierarchical culpability concepts, which are specifically defined in relation to types of objective …

Common Ignorance: Medical Malpractice Law And The Misconceived Application Of The “Common Knowledge” And “Res Ipsa Loquitur” Doctrines, Amanda E. Spinner

Touro Law Review

No abstract provided.

Implicit Bias And Capital Decision-Making: Using Narrative To Counter Prejudicial Psychiatric Labels, Sean O'Brien, Kathleen Wayland

Faculty Works

Overreliance on psychiatric diagnostic labels in the defense of death penalty cases risks triggering prejudicial associations in the minds of decision-makers. This article emphasizes the importance of developing a mitigating counter-narrative of the defendant’s life story, based on an extensive longitudinal and developmental investigation of the defendant and his family’s life trajectory. It is the client’s life story, not diagnostic labels, that reveals his humanity. Cognitive psychology provides a useful framework for explaining human perceptions, and how implicit or explicit biases can interfere with the objective interpretation of data in ways that affect judgment and behavior.

The Admissibility Of Confessions Compelled By Foreign Coercion: A Compelling Question Of Values In An Era Of Increasing International Criminal Cooperation, Geoffrey S. Corn, Kevin Cieply

Pepperdine Law Review

This Article proceeds on a simple and clear premise: a confession extracted by torture or cruel, inhuman, or degrading treatment should never be admitted into evidence in a U.S. criminal trial. Whether accomplished through extending the Due Process or Self-Incrimination based exclusionary rules to foreign official coercion, or by legislative action, such exclusion is necessary to align evidentiary practice regarding confessions procured by foreign agents with our nation's fundamental values as reflected in the Fifth Amendment and our ratification of the CAT. This outcome is not incompatible with Connelly. Rather, this Article explores the limits of the Court's language in …

Judicial Notice And The Law's "Scientific" Search For Truth, Christopher Onstott

Akron Law Review

Part I of this Article begins by introducing the concept of judicial notice followed by a short background defining the scope of scientific and technical principles. Part II addresses the problems created by the current judicial notice standard. The standard’s text is problematic, and courts’ diverse interpretations of the standard have also created problems. Part III analyzes whether scientific and technical principles merit a different judicial notice standard specifically for them. This Part concludes that the inherent inconsistency of science and technical knowledge with the current standard and the judicial shortcomings in scientific/technical competence justify different legal treatment. Finally, Part …

Daubert, Probabilities And Possibilities, And The Ohio Solution: A Sensible Approach To Relevance Under Rule 702 In Civil And Criminal Applications, Andrew W. Jurs

Akron Law Review

Probability for expert opinions is the correct standard for civil cases based on the preponderance of the evidence burden of proof. Among other effects, the probability requirement reduces jury speculation, avoids absurdity, appropriately adopts legal relevance as the standard for admission, and avoids negative effects on the out-of-courtroom practices of professionals. Expert opinions explaining possibilities, while inappropriate for civil case consideration, have Rule 702 relevance and are useful in criminal cases based upon the beyond a reasonable doubt burden of proof. Based on an evaluation of federal and state cases, Rule 702, and the purposes of expert testimony, the Ohio …

Dna Storage Banks: The Importance Of Preserving Dna Evidence To Allow For Transparency And The Preservation Of Justice, Cristina Martin

Chicago-Kent Law Review

What is the duty to preserve information in today’s society? In order for humanity to evolve, change and flourish in the future, society needs to preserve its information from the past. In the criminal justice field, preservation of evidence has special significance. DNA evidence in particular has become a helpful aid for innocent defendants who have been improperly imprisoned. Over the past twenty years, the number of exonerations of imprisoned criminal defendants has increased dramatically. With the advancement of technology, old, previously untestable or improperly tested DNA evidence will need to be retested. However, most states do not have proper …

Forced Decryption As Equilibrium—Why It’S Constitutional And How Riley Matters, Dan Terzian

Northwestern University Law Review

This Essay considers whether the government can force a person to decrypt his computer. The only courts to consider the issue limited their analyses to rote application of predigital doctrine and dicta. This is a mistake; courts should instead aim to maintain the ex ante equilibrium of privacy and government power. This approach—seeking equilibrium—was just endorsed by the Supreme Court in Riley v. California, a recent Fourth Amendment case. Yet Riley’s rationale also extends to the Fifth Amendment’s Self-Incrimination Clause, and maintaining equilibrium there requires permitting forced decryption. Because current doctrine can be interpreted as allowing forced decryption, …

Evidence, W. Randall Bassett, Val Leppert, Stephen A. Mccullers

Mercer Law Review

The United States Court of Appeals for the Eleventh Circuit's 2014 term featured several interesting opinions addressing the admissibility of evidence. For example, the court tackled two issues of first impression analyzing constitutional rights against the admission of evidence. In one case, the Eleventh Circuit decided whether the Confrontation Clause applies to evidence used by a district court in determining jurisdiction over the offense in a pretrial hearing. In another case, the court developed a rule to determine when an adverse inference jury instruction is warranted after a nonparty invokes its Fifth Amendment right to remain silent in a civil …

Newly Discovered Evidence Of Innocence: Its History And Future Treatment In Montana, E. Lars Phillips

Montana Law Review

No abstract provided.

Dangerous Diagnoses, Risky Assumptions, And The Failed Experiment Of "Sexually Violent Predator" Commitment, Deirdre M. Smith

Faculty Publications

In its 1997 opinion, Kansas v. Hendricks, the U.S. Supreme Court upheld a law that reflected a new model of civil commitment. The targets of this new commitment law were dubbed “Sexually Violent Predators” (SVPs), and the Court upheld indefinite detention of these individuals on the assumption that there is a psychiatrically distinct class of individuals who, unlike typical recidivists, have a mental condition that impairs their ability to refrain from violent sexual behavior. And, more specifically, the Court assumed that the justice system could reliably identify the true “predators,” those for whom this unusual and extraordinary deprivation of liberty …

After Rape Law: Will The Turn To Consent Normalize The Prosecution Of Sexual Assault?, Donald Dripps

Akron Law Review

This essay explores the new rape exceptionalism. My thesis holds that rape exceptionalism is rooted in a divide between elite opinion, reflected in statutes, court decisions, and academic commentary, and popular opinion, as reflected in jury verdicts. Elite opinion values sexual autonomy and suspects, when it does not despise, sexual aggression. Popular opinion supposes that sexual autonomy may be forfeited by female promiscuity or flirtation, and views male sexual aggression as natural, if not indeed admirable...pressions of consent,8 is an academic exercise. If we really want to normalize rape law, we must bypass the jury openly. We can’t conceal the …

Calculating Credibility: State V. Sharma And The Future Of Polygraph Admissibility In Ohio And Beyond, Vincent V. Vigluicci

Akron Law Review

Almost a century after its inception, the polygraph test remains one of the most fascinating forms of evidence. Firmly entrenched in popular mythology, the polygraph offers the promise of calculating truth and credibility with scientific certainty, a proposition that continues to capture the public’s imagination. At the same time, the polygraph has also been viewed with great trepidation as a flawed and dangerous instrument of oppression. Commonly called a “lie detector,” the polygraph does not actually detect lying; it measures subtle changes in blood pressure, pulse, respiration, and the skin’s resistance to electricity that are thought to result from the …

Back To The Future: Lorraine V. Markel American Insurance Co. And New Findings On The Admissibility Of Electronically Stored Information, Hon. Paul W. Grimm, Michael V. Ziccardi Esq., Alexander W. Major Esq.

Akron Law Review

Imagine the following hypothetical, patterned on an actual case pending in federal court, and you can begin to appreciate why there is a growing awareness of the need to have clear analytical thinking regarding the admissibility of electronically stored information, variously referred to as “ESI,” “digital,” “electronic,” “computer generated,” or “computer stored” evidence in state and federal courts. ConsumerPro is a corporation that provides installment credit to consumers with poor or un-established credit records to enable them to purchase on credit expensive electronic and computer products like flat screen televisions, computers, and entertainment systems. Under their business plan, a purchaser …

Black Boxes: Fmri Detection And The Role Of The Jury, Julie Seaman

Akron Law Review

Before I offer some thoughts on that question, let me mention three real-life cases in which cutting-edge neuroscientific evidence either did – or conceivably might in a not-so-distant future – influence the outcome of a criminal prosecution. In the first case, reported last week in the New York Times, EEG brain-fingerprinting-type evidence was admitted against a woman on trial in India for murdering her husband. She was convicted. In the second case, in England recently, neuroscientists performed an fMRI lie-detection scan on a woman who had previously been convicted of poisoning a child in her care. She claimed that she …