Evidence Commons^™

Skirmishing Toward A General Theory Of Evidence And Proof, Kevin M. Clermont

Cornell Law Faculty Publications

Traditional probability fundamentally assumes bivalence and additivity: there is only truth and falsity, whose odds add to one. The consequence is many problems and paradoxes for factfinding, all attributable to the assumptions’ exclusive focus on random uncertainty. By contrast, multivalent belief theory abjures those two assumptions, thereby allowing consideration of epistemic uncertainty. This theory divides the factfinder’s state of mind into three, not two, gradated concepts: belief, uncommitted belief representing epistemic unknowns, and disbelief. This theory utilises a more general but perfectly valid logic that accounts for all relevant kinds of uncertainty and so explains the law’s wise practices. In …

A Beacon Trying To Signal Heading: The Ninth Circuit Interprets The California Whistleblower Protection Act In Killgore V. Specpro Professional Services, Llc, Naseem Memari

Villanova Environmental Law Journal (1991 - )

No abstract provided.

The Overlooked Witness Memory Risk, Sue Provenzano, Sarah Brown-Schmidt

Faculty Publications By Year

No abstract provided.

The Objective Observer: The Washington State Supreme Court's Remedial Aspirations And Experience On The Ground, David B. Owens

Washington Law Review

The Washington State Supreme Court has adopted an “objective observer rule” for addressing whether race impacted jury selection and extended this rule to evaluating all aspects of Washington courts, including jury trials. The objective observer rule allows courts to evaluate whether decisions in those courtrooms could be viewed as the result of racial bias, even where there is no evidence of specific racial animus and in the absence of racial slurs. The rule, which covers a form of disparate impact, has now existed for over half a decade. This Article outlines the Washington State Supreme Court’s development of the objective …

How Experts View The Legal System's Use Of Scientific Evidence, Shari Seidman Diamond, Richard Lempert

Articles

Legal scholars and courts frequently write about how scientific evidence is vetted and presented in legal proceedings, but the views of experts themselves have received little attention. Our research aims to fill that gap. This paper reports some of what we learned from a series of surveys we conducted, beginning with a survey in 2016 of scientists who had been elected to membership in the American Academy of Arts and Sciences.3 Subsequent surveys were directed to subscribers of the journal Science who identified as scientists and engineers and to self-identified experts who advertised their availability as experts to lawyers or …

Say It Once, Say It Twice: Abrogating The Rebuttal Requirement Of The Prior Consistent Statement Hearsay Rule, Natashja Atherton

Pepperdine Law Review

Federal Rule of Evidence 801(d)(1)(B) limits the introduction of a witness’s prior statements during court proceedings, even if those statements are consistent with the witness’s in-court testimony. A witness’s previous declarations can only be solicited if (a) the adversarial party directly attacks the witness’s credibility and (b) the offered prior consistent statement directly rebuts the basis of the attack. This Comment refers to these restrictions as the “rebuttal requirement” of Rule 801(d)(1)(B) and argues for its revocation to make statements substantially consistent with a witness’s in-court testimony admissible, subject to the other rules of evidence, regardless of whether the witness’s …

The Rape Kit Backlog: Problems And Solutions, Tracey Cao

Themis: Research Journal of Justice Studies and Forensic Science

This literature review examines the ongoing issue of rape kit backlog in the United States. Rape kits are a means of evidence collection from victims of sexual assault that can be used in court. Across the nation, many state jurisdictions have hundreds and thousands of rape kits left untested and locked away in storage facilities. Consent for testing, police bias, and funding issues are the main issues that will be addressed. Many victims choose not to have their kits tested. Other kits never get tested due to police choosing not to submit a kit due to their bias against some …

Privileged Communications: A Case By Case Approach, Josephine Citron

Maine Law Review

Privileged communications are communications which, because of a special relationship, are protected from revelation during the course of litigation. In the past, grants of privilege have been made by reference to professional groups rather than to the content of the particular communication, resulting in inconsistent treatment. Some professionals have secured absolute privileges for their relationships while others have been partially or totally unsuccessful. The inconsistencies are most clearly demonstrated by examining grants of privilege to medical, psychotherapeutic, and social work personnel, although it is not intended that the case by case approach suggested in the proposed statute at the end …

Preliminary Questions Of Fact: Respective Roles Of Judge And Jury In Maine Courts, Maine Law Review

Maine Law Review

Virtually indisputable in the law is the notion that the trial judge determines questions of admissibility of evidence. However, when admissibility depends upon the evaluation of a preliminary question of fact, both courts and commentators disagree as to whether the judge should continue to occupy the role of sole decision-maker. The intertwining of fact, the preliminary condition, and law, the admissibility decision, raises some havoc with accepted views of the judge as arbiter of the law and the jury as fact finder. If the judge determines both questions, he is resolving not only legal, but also factual issues traditionally within …

No Lawyer, No Jail: A Critical Case Study Of Pragmatism And The Flaws Of “Purposeful” Decision Making In Argersinger V. Hamlin, Alisa Smith, Sarah K. Stice

Seattle University Law Review

By releasing conference notes and internal communications, Supreme Court Justices provide insight into the otherwise private decisionmaking process, shedding light on how case outcomes and legal reasoning are framed and negotiated. The watershed case of Argersinger v. Hamlin (1972) extended the constitutional right to counsel to some, but not all, misdemeanor defendants. The case was argued twice, and the Court relied on empirical and authoritative sources to answer complex and practical questions about requiring counsel. This case study employs critical discourse analysis to uncover what influenced the Justices’ decisions and how they framed, shaped, and constructed social realities to foreground …

The Race To Erase: Destruction Of Government Documents Undermines Freedom-Of-Information Laws, Frank D. Lomonte

Seattle University Law Review

In August 2019, reporters with Chattanooga’s daily newspaper, the Times Free Press, filed what seemed to be a routine request for access to emails and other public records held by their local county government. The seemingly unremarkable request set the newspaper’s staff on a months-long journey of unpleasant surprises. The first was a demand to pay the county $717 in advance before being allowed to inspect the documents. The second was that—during prolonged haggling over the fee assessment— the county attorney’s office simply destroyed almost all of the disputed records. Third, and most glaringly, the journalists discovered that Tennessee law …

When You’Re Arrested For A Felony In Seattle, You’Ll Meet Me., Austin Field

Seattle University Law Review

In this Essay, Austin Field, a practicing public defender, uses a first-person perspective to describe what it is like to meet a criminal defendant for the first time. He explains the process from start to finish, detailing everything from the way he introduces himself to how bail works.

"I’ll ask you for your name. Most of the time, you tell me. I check your name against my list. On any given day I’m supposed to interview between five and fifteen people. I have a lot of questions for you. We only have about ten minutes."

The Public Square In A Private-Property Obsessed Country: What New York City’S Pops Regulations Get Right And Why Other Cities Should (Mostly) Copy Them, Carson Mcgregor

Seattle University Law Review

When New York City (NYC) was first becoming the metropolitan monolith it is today, it had a problem: the city streets were chock full of skyscrapers, and sunlight, air, and usable open space were at a premium. In response, the City promulgated its first Privately Owned Public Spaces (POPS) regulations, which allowed developers to build skyward in exchange for providing public space on the street level. Unfortunately, in July of 2023, the New York Times (NYT) discovered that New Yorkers received only a fraction of what they were promised. Building owners received billions of dollars’ worth of added floor space, …

Modern Day Colonialism Through HawaiʻI’S Quiet Title And Partition Laws, Cheyann Fujii

Seattle University Law Review

This Note will attempt to highlight important aspects of Hawaiian history to provide readers with a clear picture on how Native Hawaiians are still impacted by colonialism, specifically when plaintiffs bring a quiet title or partition action against Native Hawaiian owners of kuleana lands. Before colonization, the concept of private land ownership did not exist in Hawai‘i, and Native Hawaiians adopted a feudal system by dividing land into geographical areas. Missionaries and businessmen brought Western ideas to Hawai‘i and influenced legislation such as the Great Māhele and the Kuleana Land Act of 1850, which solidified the concept of private property. …

Data Advantage And Merger Review: Can Entrenchment Theory Reform Antitrust Enforcement?, Shin-Ru Cheng

Seattle University Law Review

A merger involving giant digital companies is likely to dampen competition, as it allows those companies to combine and control data access, enabling them to entrench their dominant positions in relevant markets and extend those positions into related markets. While competition law in many jurisdictions aims to prohibit mergers that may substantially lessen competition or create a monopoly, arguably the review of digital mergers is failing because antitrust agencies lack an effective approach to identify data-generated anticompetitive harms. This Article demonstrates that entrenchment theory, recently reintroduced in the 2023 U.S. Merger Guidelines, would help reform the process of antitrust enforcement. …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Caution: Potholes In E-Scooter Data Collection, Dakota Rakestraw

Seattle University Law Review

Lime scooters keep ending up in major waterways in Washington state metro areas, a testament to the ubiquity of e-scooters in the metropolitan landscape. How they get there is unclear. Why they get there is even murkier. Perhaps the answer lies in the implications of modern geolocation data collection through e-scooters and gaps in current data collection regulation curbing individual liberties.

Since September 2020, electric scooters have run Seattle’s streets and have dramatically overtaken ridesharing bike trips. For example, from September 2020 to September 2021, there were about 1.4 million scooter and bike trips with September 2021 seeing 300,000 scooter …

Machinists Preemption In The New Administrative Law, Andrew J. Ziaja

Seattle University Law Review

This Article assesses Machinists preemption—a labor-specific form of implied field preemption—while freshly considering implications both for and of new developments in administrative law. The radical transformation of administrative law in the Supreme Court, particularly its newfound emphasis on clear-statement rules, provides opportunities to reconsider the Machinists rationale. Aligning with scholars who have called to question the doctrine’s “ossifying” influence on labor and employment policy, it argues that the modern-day version of Machinists preemption clashes with the Supreme Court’s newly constrained view of delegated power and its differing conceptions of the major questions doctrine.

On the other hand, Machinists preemption might …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Defining Deference: Impacts Of Abandoning Chevron On Emerging Technology Governance And Administrative Law, R. Aubrey Davis Iii

Seattle University Law Review

Emerging technologies, particularly Artificial Intelligence (AI), often lead to unforeseen legal outcomes. Notable abuses in areas such as facial recognition, employment bias, and housing discrimination are well known. However, legislative responses to these issues either have been largely reactive or there has been no legislative response at all. In lieu of legislation, agencies have sought to fill the gap. For example, the Federal Communications Commission (FCC) recently proposed a rule mandating voter notification for all AI-generated political phone calls citing the Telephone Consumer Protection Act (TCPA) of 1991 as authority. However, the TCPA was originally passed to curtail telemarketing, not …

Intellectual Property Or Modern Folklore? The Problem With Open Gaming Licenses In Tabletop Gaming, Rosie Midget

Seattle University Law Review

This Note addresses how courts and legislatures should address “Open Gaming Licenses” commonly attached to tabletop roleplaying games (TTRPGs), which game publishers use to promote a false image of accessibility—misleading consumers and building goodwill from the misunderstanding. Part I discusses what TTRPGs are, including the defining features of the hobby and culture surrounding it, as well as the unique interplay between publishers and players. Part II explores the question of which elements in a TTRPG system may be subject to copyright protection. Part III examines these elements in practice using Wizards of the Coast’s Dungeons and Dragons TTRPG as a …

Deepfakes On Trial: Developing A High-Accuracy, Court-Admissible Ai Pipeline For Deepfake Detection In Corporate Fraud Litigation, Aiden J. Green

Honors College Theses

As deepfake technology advances, cybercriminals are increasingly using AI-generated videos and audios to impersonate executives and carry out sophisticated CEO fraud schemes. These synthetic forgeries target human trust and corporate communication systems, creating an urgent need for forensic tools capable of authenticating digital evidence with legal accuracy. This thesis presents a forensic-grade AI deepfake detection pipeline designed for this purpose, emphasizing courtroom admissibility, reproducibility, and evidentiary integrity. Built entirely with free, opensource tools, the framework combines metadata analysis, AI-powered spectrogram analysis, neural artifact detection, and facial manipulation recognition into a transparent workflow that accurately identifies synthetic media. It was trained …

Reframing Genocide, Anjali Mohan

Utah Law Review

Genocide has recently taken center stage in international affairs. Both Israel and Hamas and Russia and Ukraine have accused one another of committing genocide or having genocidal aims, and each side has denounced allegations against themselves. The legal accuracy of these accusations depends, inter alia, upon whether the allegedly genocidal acts were committed with “intent to destroy,” as required by the Genocide Convention. Courts and commentators nearly all assume that the “intent to destroy” describes an individual’s internal mental state and the mens rea of the crime of genocide.

In this Article, I argue that this individualistic interpretation of genocide …

When Prenatal Care Becomes A Crime, Casey Hunter

Fordham Law Review

For decades, pregnant women have increasingly faced criminalization for their actions and conduct during pregnancy, with Alabama emerging as a focal point due to its aggressive use of section 26-15-3.2: Chemical Endangerment of Exposing a Child to an Environment in Which Controlled Substances Are Produced or Distributed. Originally intended to protect children from the dangers of methamphetamine labs, this law has been reinterpreted to prosecute pregnant women who test positive for controlled substances. Central to these prosecutions are positive drug tests obtained from prenatal health records, causing many women to avoid prenatal care for fear of legal consequences.

This Note …

“The Gun’S Not Mine!”: The Admissibility Of Defendants’ Exculpatory Hearsay Statements Under Federal Rules Of Evidence 803(2) & (3), Faustino S. Galante

Fordham Law Review Online

Exculpatory hearsay statements made by criminal defendants often warrant admission under the Federal Rules of Evidence (FRE) as excited utterances, under Rule 803(2), or as statements reflecting a then-existing state of mind, under Rule 803(3). Nevertheless, defendants often struggle to have their exculpatory statements admitted pursuant to these rules—even when those statements fulfill their categorical requirements.

This Comment surveys the different approaches courts take to determine whether exculpatory hearsay statements made by criminal defendants are admissible under Rules 803(2) and (3). It argues that courts too often misapply these rules to exclude defendants’ exculpatory statements. In particular, courts counteract the …

Science And Causality In Technology Litigation, J. Nathan Matias, Jonathon W. Penney

Articles & Book Chapters

No abstract provided.

The Repair Rule: Maine Rule Of Evidence 407(A) And The Admissibility Of Subsequent Remedial Measures In Proving Negligence, Maine Law Review

Maine Law Review

Evidence of subsequent repairs is generally excluded when submitted for admission as circumstantial evidence of negligence. Although this Comment will examine various theories under which such evidence has been held inadmissible, these theories are all based on one of two assumptions. Evidence of subsequent repairs has been excluded either because it is regarded as irrelevant to the issue of negligence, or although relevant, as incompetent because its admission is believed to counteract the strong public policy to encourage repairs. Most modern rules of evidence now base the exclusion on the public policy rationale. Thus, the effect of the subsequent repair …

The Maine Rules Of Evidence: What They Are And How They Got That Way, Richard H. Field

Maine Law Review

The promulgation by the Supreme Judicial Court of the Maine Rules of Evidence is another landmark in Maine judicial administration. When the Rules of Civil Procedure were adopted in 1959, the old rules of the common law, somewhat eroded by time and patched here and there by legislative poultices, still governed Maine pleading and practice. Since then modem rules of Criminal Procedure have also been adopted, a new Criminal Code has been enacted, and the court system has been reorganized. The Maine Rules of Evidence round out this picture of progress. The Rules of Evidence were promulgated pursuant to the …

Validity And Relevancy Analysis: An Approach To The Admissions Of Experimental Evidence, Maine Law Review

Maine Law Review

Rules of evidence in the common law system were developed to serve the fundamental purpose of minimizing erroneous factual conclusions by the jury. In pursuit of this goal, two guiding principles have been followed: first, that the jury should be provided with the most accurate and trustworthy information possible; second, that the flow of information to the jury should be controlled to exclude evidence which is irrelevant or otherwise misleading. Since the earliest cases in which the results of experiments were offered as evidence, American courts have treated experiments as a unique form of evidence but have found it difficult …

Attorneys And Subornation Of Perjury, Maine Law Review

Maine Law Review

Federal law has made the crime of subornation of perjury depend on a showing that the suborned witness has made an intentional false statement under oath. For a prosecution to be successful, it must be shown first, that the witness gave false testimony under oath; second, that the witness knew the testimony to be false; third, that the defendant induced the false testimony; and fourth, that the defendant knew the induced testimony to be false. Thus, if the criminal intent of the witness cannot be proven, the defendant must be acquitted. The curious result is that the prosecution fails not …