Evidence Commons^™

Check In On Your Privacy, Frank Gonello

Student Works

No abstract provided.

Manson And Its Progeny: An Empirical Analysis Of American Eyewitness Law, Nicholas A. Kahn-Fogel

Law Faculty Scholarship

Since the Supreme Court established the current constitutional framework for determining the admissibility of eyewitness identification evidence in Manson v. Brathwaite in 1977, scientists and scholars who have evaluated the opinion have uniformly criticized it as insufficient to deter police from using flawed identification procedures and inconsistent with scientific evidence of the best ways to assess the reliability of evidence tainted by such procedures. Until now, however, the work of these scientists and scholars has been based primarily on simulation experiments and on a selective assortment of easily criticized judicial decisions applying Manson. This study provides the first systematic analysis …

Georgia's New Evidence Code - An Overview, Paul S. Milich

Faculty Publications By Year

No abstract provided.

The “Ensuing Loss” Clause In Insurance Policies: The Forgotten And Misunderstood Antidote To Anti-Concurrent Causation Exclusions, Chris French

Faculty Scholarship

As a result of the 1906 earthquake and fire in San Francisco which destroyed the city, a clause known as the “ensuing loss” clause was created to address concurrent causation situations in which a loss follows both a covered peril and an excluded peril. Ensuing loss clauses appear in the exclusions section of such policies and in essence they provide that coverage for a loss caused by an excluded peril is nonetheless covered if the loss “ensues” from a covered peril. Today, ensuing loss clauses are found in “all risk” property and homeowners policies, which cover all losses except for …

The International Court Of Justice's Treatment Of Circumstantial Evidence And Adverse Inferences, Michael P. Scharf, Marqaux Day

Faculty Publications

This Article examines a vexing evidentiary question with which the International Court of Justice has struggled in several cases, namely: What should the Court do when one of the parties has exclusive access to critical evidence and refuses to produce it for security or other reasons? In its first case, Corfu Channel, the Court decided to apply liberal inferences of fact against the non-producing party, but in the more recent Crime of Genocide case, the Court declined to do so under seemingly similar circumstances. By carefully examining the treatment of evidence exclusively accessible by one party in these and other …

Ghost In The Machine: Zubulake Revisited And Other Emerging E-Discovery Issues Under The Amended Federal Rules, William P. Barnette

Richmond Journal of Law & Technology

We live in a digital age. Electronically stored information (“ESI”) “is commonplace in our personal lives and in the operation of businesses, public entities, and private organizations.” By now the numbers no longer shock: “more than 90% of all corporate information is electronic; North American businesses exchange over 2.5 trillion e-mails per year;5 today, less than 1% of all communication will ever appear in paper form; and, on average, a 1000-person corporation will generate nearly 2 million e-mails annually.”

Using Contract Terms To Get Ahead Of Prospective Ediscovery Costs And Burdens In Commercial Litigation, Jay Brudz, Jonathan M. Redgrave

Richmond Journal of Law & Technology

During the course of the twentieth century, American and international businesses reacted to the increasing costs and uncertainties of the American civil legal system by trying to create certainty through contractual provisions wherever possible. In particular, businesses developed contractual provisions that set forth procedural boundaries to potential disputes for the purpose of providing greater certainty as to where the dispute would be heard, who would hear it, and what laws would apply. For example, choice of venue and choice of law provisions became commonplace. In addition, clauses dictating the use of alternative dispute resolution procedures were also widely adopted. Substantively, …

Technologies-That-Must-Not-Be-Named: Understanding And Implementing Advanced Search Technologies In E-Discovery, Jacob Tingen

Richmond Journal of Law & Technology

The Federal Rules of Civil Procedure were created to promote the “just, speedy, and inexpensive determination of every action and proceeding.” Unfortunately, in the world of e-discovery, case determinations are often anything but speedy and inexpensive. The manual review process is notoriously one of the most expensive parts of litigation. Beyond expense, the time and effort required to carry out large-scale manual review places an immense burden on parties, nearly destroying the possibility of assessing the merits of early settlement before expensive review has already been carried out.

The Virginia Rules Of Evidence, Ronald J. Bacigal

Richmond Public Interest Law Review

Despite the Supreme Court's rejection of the proposed Code of Evidence, the Boyd-Graves Conference continued its efforts to create such a code. In 1997, the Boyd-Graves Conference published "A Guide to Evidence in Virginia." Unlike the previously proposed rules of evidence, this guide merely stated the current Virginia law on evidence, and did not recommend adoption of any changes to existing law. The Guide's approach of disdaining any proposed changes,"while creating "a single, organized body of principles for the convenience of judges and practitioners alike," ultimately overcame objections from most of those who had opposed an evidence code. The Guide …

The Risks Of Taking Facebook At Face Value: Why The Psychology Of Social Networking Should Influence The Evidentiary Relevance Of Facebook Photographs, Kathryn R. Brown

Vanderbilt Journal of Entertainment & Technology Law

Social networking sites in general, and Facebook in particular, have changed the way individuals communicate and express themselves. Facebook users share a multitude of personal information through the website, especially photographs. Additionally, Facebook enables individuals to tailor their online profiles to project a desired persona. However, as social scientists have demonstrated, the image users portray can mislead outside observers. Given the wealth of information available on Facebook, it is no surprise that attorneys often peruse the website for evidence to dispute opponents' claims.

This Note examines the admission and relevance of Facebook photographs offered to prove a litigant's state of …

Compelled Production Of Encrypted Data, John E.D. Larkin

Vanderbilt Journal of Entertainment & Technology Law

There is a myth that shadowy and powerful government agencies can crack the encryption software that criminals use to protect computers filled with child pornography and stolen credit card numbers. The reality is that cheap or free encryption programs can place protected data beyond law enforcement's reach. If courts seriously mean to protect the victims of Internet crime--all too often children--then Congress must adopt a legal mechanism to remedy the technological deficiency.

To date, police and prosecutors have relied on subpoenas to either compel defendants to produce their password, or to decipher their protected data. This technique has been met …

Convicting Lennie: Mental Retardation, Wrongful Convictions, And The Right To A Fair Trial, John H. Blume, Sheri Lynn Johnson, Susan E. Millor

Cornell Law Faculty Publications

"Lennie" refers to Lennie Small, the intellectually disabled character in John Steinbeck's famous novella Of Mice and Men, which tells the story of two Depression-era wandering farmhands, George and Lennie, who dream of getting their own stake and living "off the fat of the land." Their dream dies hard when Lennie accidently kills the young, beautiful, and flirtatious wife of a ranch owner's son and then tries to cover it up because he realizes that he has "done a bad thing." George, in turn, kills Lennie to prevent him from being lynched or tried for murder.

Lennie was doomed …

Judicial Formalism And The State Secrets Privilege, Sudha Setty

Faculty Scholarship

Congress has, in the last few years, toyed with the idea of attempting to rein in the executive’s increasing reliance on the state secrets privilege as a means of escaping the possibility of accountability. The Author examines one high-profile case, that of Binyam Mohamed and other plaintiffs claiming that they had been subject to extraordinary rendition, torture, and prolonged detention. The Mohamed litigation offers evidence of a disturbing trend of U.S. courts retreating to formalistic reasoning to extend unwarranted deference to the executive branch in security-related contexts. In this essay the Author limits her analysis to the recent jurisprudence surrounding …

The Sky Is Still Not Falling, Richard D. Friedman

Articles

Cases since Crawford have mainly fallen into two categories. One involves accusations of crime, made by the apparent victim shortly after the incident. In Michigan v. Bryant, a majority of the Court adopted an unfortunately constricted view of the word "testimonial" in this context. That decision was a consequence of the Court having failed to adopt a robust view of when an accused forfeits the confrontation right. How the Court will deal with this situation-one mistake made in an attempt to compensate for another-is a perplexing and important question. This Essay, though, concentrates on the other principal category of post-Crawford …

Symposium: Examining Shaken Baby Syndrome Convictions In Light Of New Medical And Scientific Research, David A. Moran

Articles

I've been asked to react to Professor Findley's talk, and I just wanted to try to put this in a concrete format that we can understand. In the summer of 2001, when my oldest daughter was about six months old, I put her in a backpack (the kind that you strap to your back) to go for a hike. In trying to get her out of that backpack after the walk, I dropped her, and she landed on her head, and she very briefly lost consciousness. So I rushed her to the University of Michigan Medical Center in Ann Arbor, …

No Expertise Required: How Washington D.C. Has Erred In Expanding Its Expert Testimony Requirement, Colin Miller

Faculty Publications

No abstract provided.

Blind Justice, Bennett Capers

Faculty Scholarship

No abstract provided.

Griffin V. State: Setting The Bar Too High For Authenticating Social Media Evidence, Brendan W. Hogan

Maryland Law Review Online

No abstract provided.

A Short History Of The Mt Rules Of Evidence, Cynthia Ford

Faculty Journal Articles & Other Writings

This article traces the history of the wholesale revision of Montana's evidence rules that stemmed from a corresponding changes in the Federal Rules of Evidence (FRE) in 1975. The article begins discussion with the appointment of the Montana Supreme Court Commission on the Rules of Evidence in 1974 and continues to the adoption of the new Montana Rules of Evidence (MRE) effective January 1977.

The author points out that the current version of the MRE is substantively identical to the 1977 version. By contrast the FRE has gone through twenty separate, substantive amendments. The author suggests that the drastic difference …

The Problem Of Convicting Innocent Persons: How Often Does It Occur And How Can It Be Prevented?, Leon Friedman

NYLS Law Review

No abstract provided.

Admissibility Of Non-U.S. Electronic Evidence, Kenneth N. Rashbaum, Matthew F. Knouff, Dominique Murray

Richmond Journal of Law & Technology

After two long years collecting hundreds of gigabytes of e-mail, data base reports, and social media posts from countries in Europe, Asia, and South America, such as France, South Korea, Argentina, Canada, Australia, and El Salvador, the day of trial has arrived. The trial team has obtained the data at great cost, in dollars as well as person-hours, but is finally ready for trial. First-chair counsel, second-chair counsel, and four paralegals file into the courtroom, not with bankers boxes full of documents as in earlier times, but with laptops, tablet computers, and a data projector. Following opening statements, the first …

Response Essay: Some Observations On Professor Schwartz's "Foundation" Theory Of Evidence, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

Professor David Schwartz's A Foundation Theory of Evidence posits an intriguing new way to look at Evidence. It asserts that offered evidence must meet a tripartite requirement before it can be relevant. The tripartite requirement is that the evidence must be "case-specific, assertive, and probably true." His shorthand for the tripartite requirement is that evidence must be "well founded." Hence, he calls his theory the "foundation theory of evidence" and claims this foundation notion is so central to evidence law that it eclipses in importance even relevance itself. The tripartite requirement inheres in the very concept of evidence and relevancy, …

Impeachment Methods Illustrated: Movies, Novels, And High Profile Cases, Martin A. Schwartz, John Nicodemo

Touro Law Review

No abstract provided.

Trial Evidence 2011: Advocacy, Analysis, & Illustrations, Martin A. Schwartz, Deborah Jones Merritt, William G. Young

Touro Law Review

No abstract provided.

Considering The Libel Trial Of Émile Zola In Light Of Contemporary Defamation Doctrine, Peter A. Zablotsky

Touro Law Review

Touro Law School's three-day conference on the Dreyfus affair provided an opportunity to re-examine the libel trial Émile Zola. A modern view on tort law is provided to analyze this case as if it unfolded today.

Due Process In American Military Tribunals After September 11, 2001, Gary Shaw

Touro Law Review

The Authorization for Use of Military Force ("AUMF") provides broad powers for a president after September 11, 2001. President Bush, under the AUMF, claimed he had the power to hold "enemy combatants" without due process. This gave rise to two questions that the article addresses: "Could they be held indefinitely without charges or proceedings being initiated? If proceedings had to be initiated, what process was due to the defendants?"

Facebook, Twitter, And The Uncertain Future Of Present Sense Impressions, Jeffrey Bellin

Faculty Publications

The intricate legal framework governing the admission of out-of-court statements in American trials is premised on increasingly outdated communication norms. Nowhere is this more apparent than with the hearsay exception for “present sense impressions.” Changing communication practices typified by interactions on social media websites like Facebook and Twitter herald the arrival of a previously uncontemplated—and uniquely unreliable—breed of present sense impressions. This Article contends that the indiscriminate admission of these electronic present sense impressions (e-PSIs) is both normatively undesirable and inconsistent with the traditional rationale for the present sense impression exception. It proposes a reform to the exception that would …

Finding The Original Meaning Of American Criminal Procedure Rights: Lessons From Reasonable Doubt's Development, Randolph N. Jonakait

Articles & Chapters

Lessons can be learned about finding the original meaning of American criminal procedure rights by an examination of the development of the reasonable doubt standard. This is for a number of reasons. First, the status of the reasonable doubt standard seems secure. No debate questions the constitutional requirement that an accused can only be convicted if the crime is proven beyond a reasonable doubt. The standard’s original meaning can be explored uncolored by the partisanship often engendered when present seekers of original meaning hope to define a new contour to a constitutional guarantee. Furthermore, serious scholars have studied the reasonable …

No Secrets Allowed: A Prosecutor’S Obligation To Disclose Inadmissible Evidence, Abigail B. Scott

Catholic University Law Review

No abstract provided.

Ending Silence: Youth Speaking Up About Sexual Abuse In Custody - Charlie’S Report, Brenda V. Smith, Stephanie A. Kinard, Jaime M. Yarussi, Michael J. Auger

Research Reports & White Papers

focusing on male youth age 10-13