Evidence Commons^™

Snap And Destroy: Preservation Issues For Ephemeral Communications, Ryan G. Ganzenmuller

Buffalo Law Review

No abstract provided.

Jack Weinstein And The Missing Pieces Of The Hearsay Puzzle, Richard D. Friedman

Articles

For the first three quarters of the twentieth century, the Wigmore treatise was the dominant force in organizing, setting out, and explaining the American law of evidence. Since then, the first two of those roles have been taken over in large part by the Federal Rules of Evidence (Rules). And the third has been performed most notably by the Weinstein treatise. Judge Jack Weinstein was present at the creation of the Rules and before. Though he first made his name in Civil Procedure, while still a young man he joined two of the stalwarts of evidence law, Edmund Morgan and …

Born This Way: How Neuroimaging Will Impact Jury Deliberations, Tanneika Minott

Duke Law & Technology Review

Advancements in technology have now made it possible for scientists to provide assessments of an individual’s mental state. Through neuroimaging, scientists can create visual images of the brain that depict whether an individual has a mental disorder or other brain defect. The importance of these advancements is particularly evident in the context of criminal law, where defendants are able to dispute their culpability for crimes committed where they lack the capacity to form criminal intent. Thus, in theory, a neuroimage depicting defective brain functioning could demonstrate a defendant’s inability to form the requisite criminal intent. Due to early successes in …

The Case For Ehearsay, Jeffrey Bellin

Fordham Law Review

No abstract provided.

Memorandum: Hearsay Exception For Electronic Communications Of Recent Perception, Daniel J. Capra

Fordham Law Review

No abstract provided.

Architects Of Justice: The Prosecutor’S Role And Resolving Whether Inadmissible Evidence Is Material Under The Brady Rule, Blaise Niosi

Fordham Law Review

In Brady v. Maryland, the U.S. Supreme Court held that the prosecution has a constitutional duty to disclose evidence favorable to the defendant’s guilt or punishment upon request.  The Court’s subsequent expansion of its holding in Brady has formed the “Brady rule,” which requires the prosecution to learn of and to disclose to the defendant all material exculpatory and impeachment information.  The Court defined “material” as information that would cause a reasonable probability of a different trial outcome had it been disclosed.

Currently, a circuit court split exists regarding whether evidence is material for purposes of the Brady …

The Case For Ehearsay, Jeffrey Bellin

Vanderbilt Law School Faculty Publications

On April 4, 2014, the Advisory Committee for the Federal Rules of Evidence convened the Symposium on the Challenges of Electronic Evidence. The purpose of the symposium was "to consider the intersection of the evidence rules and emerging technologies" and explore what rule changes, if any, might be warranted in light of sweeping changes in the way people communicate.1 As an unapologetic advocate for changes to the hearsay rules, I thought it a happy coincidence that the symposium coincided with Seventh Circuit Judge Richard Posner's call for sweeping hearsay reform. In a 2013 article, eHearsay, I proposed a hearsay exception …

The Case For Ehearsay, Jeffrey Bellin

Faculty Publications

No abstract provided.

Shield Law - The Qualified Privilege Of Newscasters & Journalists In Non-Confidential News - Court Of Appeals Of New York - People V. Combest, 828 N.E.2d 583 (N.Y. 2005), Albert V. Messina Jr.

Touro Law Review

No abstract provided.

Court Of Appeals Of New York, In The Matter Of Nassau County Grand Jury Subpoena Duces Tecum Dated June 24, 2003 "Doe Law Firm" V. Spitzer, Christin Harris

Touro Law Review

No abstract provided.

Supreme Court, New York County, People V. Vasquez, Jessica Goodwin

Touro Law Review

No abstract provided.

Supreme Court, Bronx County, People V. Paul, Adam D'Antonio

Touro Law Review

No abstract provided.

Appellate Division, First Department, People V. Bradley, Kathleen Egan

Touro Law Review

No abstract provided.

You Blew It: The Confrontation Clause & Breathalyzers As Testimonial Evidence, Stephanie Tuorto

Touro Law Review

No abstract provided.

Putting The Cat Back In The Bag: Involuntary Confessions And Self-Incrimination, Joseph A. Iemma

Touro Law Review

No abstract provided.

Evidentiary Use Of Photographic Identification: Is It Time For New York To Reevaluate Its Singular Exception?, Daniela Giordano

Touro Law Review

No abstract provided.

Yates V. United States: A Case Study In Overcriminalization, Stephen F. Smith

Journal Articles

In Yates v. United States, the Supreme Court will decide whether tossing undersized fish overboard can be prosecuted under the Sarbanes–Oxley Act of 2002, a law aimed at preventing massive frauds of the sort that led to the collapse of Enron and sent shock waves throughout the economy. Although the legal issue is narrow, the case has far-reaching significance. The Yates prosecution is a case study in the dangers posed by “overcriminalization”: the existence of multitudinous, often overlapping criminal laws that are so poorly defined that they sweep within their ambit conduct far afield from their intended target.

The …

We The People: Juries, Not Judges, Should Be The Gatekeepers Of Expert Evidence, Krista M. Pikus

Notre Dame Law Review

This Note urges restoration of the proper balance of power between judges and juries regarding expert evidence. Our justice system has steadily moved away from letting juries decide important questions of fact and toward putting the decisionmaking power into the hands of judges. The recent developments in evidence law, requiring judges to act as the “gatekeepers” of expert evidence, present significant obstacles for plaintiffs attempting to get cases to a jury. This newer standard in expert evidence is a violation of the foundational precept in American jurisprudence that the people should be the sovereign, not the judge.

What The Best Evidence Rule Is - And What It Isn't, Cynthia Ford

Faculty Journal Articles & Other Writings

No abstract provided.

Virginia's Gap Between Punishment And Culpability: Re-Examining Self-Defense Law And Battered Women's Syndrome, Kendall Hamilton

University of Richmond Law Review

No abstract provided.

Capping E-Discovery Costs: A Hybrid Solution To E-Discovery Abuse, Karel Mazanec

William & Mary Law Review

No abstract provided.

Criminal Corporate Character, Robert E. Wagner

Florida Law Review

In the last few years, corporations have been accused of crimes ranging from environmental pollution on an unprecedented scale, to manslaughter, to election tampering, to large-scale antitrust violations. Many of these accused companies had previously committed similar acts or even the exact same offense. Unfortunately, the rules of evidence in the federal system and in virtually every state system prohibit the use of this information in a prosecution for such crimes. The reasons for this prohibition are based in historical anomalies, a mistaken understanding of corporate function, and a misplaced anthropomorphism of the corporation. This combination of errors has resulted …

Crime Control, Due Process, & Evidentiary Exclusion: When Exceptions Become The Rule, Elizabeth H. Kaylor

Proceedings of the New York State Communication Association

This paper uses the dichotomy between Herbert Packer’s (1968) two models of criminal justice advocacy – “crime control” and “due process” – as a rhetorical paradigm for understanding policy debate about the exclusion of relevant evidence at trial. Understanding the opposition between crime control and due process advocates as a rhetorical controversy, in which commonly-used ideographs camouflage dramatically different constructions of the concepts at stake, helps to illuminate the way each side mobilizes public support for their narrative of doing . While both the exclusionary rule (which prohibits the use of illegally-obtained evidence in criminal cases) and the “fruit of …

Emotional Fact-Finding, Emily Spottswood

Scholarly Publications

No abstract provided.

The Legal Ethics Of Real Evidence: Of Child Porn On The Choirmaster's Computer And Bloody Knives Under The Stairs, Gregory C. Sisk

Washington Law Review

With little guidance from the Model Rules of Professional Conduct and continuing confusion on professional obligations, questions about engagement with real evidence continue to bedevil criminal defense lawyers, incite prosecutors, generate disputes, and attract judicial attention. Where should we draw that line between what is demanded by the professional duties of zealous advocacy and client confidentiality and what constitutes obstruction of justice? When may a document or object that could conceivably be relevant in some future investigation or proceeding be destroyed, altered, or removed? May a criminal defense lawyer take possession of evidence of a crime for purposes of analysis, …

Adoptive Admissions And The Duty To Speak: A Proposal For An Appropriate Test For The Admissibility Of Silence In The Face Of An Accusation, Bret Ruber

Cardozo Law Review

No abstract provided.

This Is Your Sword: How Damaging Are Prior Convictions To Plaintiffs In Civil Trials?, Kathryn Stanchi, Deirdre Bowen

Washington Law Review

The conventional wisdom in law is that a prior conviction is one of the most powerful and damaging pieces of evidence that can be offered against a witness or party. In legal lore, prior convictions seriously undercut the credibility of the witness and can derail the outcome of a trial. This Article suggests that may not always be true. This Article details the results of an empirical study of juror decision-making that challenges the conventional wisdom about prior convictions. In our study, the prior conviction evidence did not have a direct impact on the outcome of the civil trial or …

Blystone V. Horn: The Third Circuit Guards Against Inadvertent Waiver Of The Right To Present Mitigating Evidence During A Capital Case, Dylan J. Scher

Villanova Law Review (1956 - )

No abstract provided.

Reasonable Consideration Of Non-Shareholders: Redrafting State Constituency Statutes To Encourage Socially-Minded Business Decisions, Maxwell Silver-Thompson

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Unintended Consequences: The Posse Comitatus Act In The Modern Era, Mark P. Nevitt

Cardozo Law Review

America was born in revolution. Outraged at numerous abuses by the British crown - to include the conduct of British soldiers in the colonists' daily lives - Americans declared their independence, creating a new republic with deep suspicions of a standing army. These suspicions were intensely debated at the time of the nation's formation and enshrined in the Constitution. But congressional limitations on the role of the military in day-to-day affairs would have to wait. This did not occur until after the Civil War when Southern congressmen successfully coopted the framers' earlier concerns of a standing army and passed a …