Evidence Commons^™

The Case For Semi-Strong-Form Corporate Scienter In Securities Fraud Actions, Paul B. Maslo

Michigan Law Review First Impressions

The mental state of scienter - intent to defraud - is a required element of a securities fraud claim. The scienter inquiry is fairly straightforward when the defendant is an individual. It is more complex when a corporate entity is involved because a corporation can only act through its agents; it has no mind of its own. This article compares the three approaches courts have used to impute scienter to corporate defendants in the securities fraud context and concludes by recommending the approach which strikes an appropriate balance between several dueling public policy concerns.

Rethinking Reliance On Eyewitness Confidence, Neil Vidmar, James E. Coleman Jr., Theresa A. Newman

Faculty Scholarship

No abstract provided.

Through A Scanner Darkly: Functional Neuroimaging As Evidence Of A Criminal Defendant's Past Mental States, Teneille R. Brown, Emily R.D. Murphy

Utah Law Faculty Scholarship

As with phrenology and the polygraph, we are again confronted with a device that the media claims to be capable of reading our minds. This new device is functional magnetic resonance imaging ("fMRI"), and it is currently being introduced to negate a criminal defendant's mens rea, such as the specific intent to kill. In this paper we will demonstrate that functional brain images should not currently be admitted into courts for this purpose. We will do so by walking through each step of the imaging methodology in plain terms, making it clear why the brain images are minimally probative when …

Scientific Fraud, Paul C. Giannelli

Faculty Publications

Although scientific fraud is rare, when it occurs, it needs to be identified and documented. This article discusses two of the most notorious cases in forensic science. Part I focuses on the misconduct of Fred Zain, a serologist with the West Virginia State Police crime laboratory and later with the County Medical Examiner’s laboratory in San Antonio, Texas. Part II examines the misconduct of Joyce Gilchrist, a forensic examiner with the Oklahoma City Police Department.

Forensic Science: Why No Research?, Paul C. Giannelli

Faculty Publications

The National Academy of Sciences ground-breaking report on forensic science – Strengthening Forensic Science in the United States: A Path Forward – raised numerous issues. One dominant theme that runs throughout the Report is the failure of some forensic science disciplines to comport with fundamental scientific principles – in particular, to support claims with empirical research. The Report observed that “some forensic science disciplines are supported by little rigorous systematic research to validate the discipline’s basic premises and techniques. There is no evident reason why such research cannot be conducted.”

The Report went on to identify fingerprint examinations, firearms (ballistics) …

Comparative Bullet Lead Analysis: A Retrospective, Paul C. Giannelli

Faculty Publications

For over thirty years, FBI experts testified about comparative bullet lead analysis (CBLA), a technique that was first used in the investigation into President Kennedy’s assassination. CBLA compares trace chemicals found in bullets at crime scenes with ammunition found in the possession of a suspect. This technique was used by the FBI when firearms (“ballistics”) identification could not be employed – for example, if the weapon was not recovered or the bullet was too mutilated to compare striations. Although the FBI eventually ceased using CBLA, the Bureau’s conduct in first employing the technique and then defending it after it was …

Independent Crime Laboratories: The Problem Of Motivational And Cognitive Bias, Paul C. Giannelli

Faculty Publications

One of the most controversial recommendations in the National Academy of Sciences report on forensic science — Strengthening Forensic Science in the United States: The Path Forward — concerns the removal of crime laboratories from the administrative control of law enforcement agencies. For decades scholars have commented on the “inbred bias of crime laboratories affiliated with law enforcement agencies.” Some commentators have proposed independent laboratories as the remedy for this problem, and in 22, the Illinois Governor’s Commission on Capital Punishment proposed the establishment of an independent state crime laboratory. This essay documents the problems that triggered the NAS Report’s …

Adverse Inference About Adverse Inferences: Restructuring Juridical Roles For Responding To Evidence Tampering By Parties To Litigation, Dale A. Nance

Faculty Publications

For at least two centuries, Anglo-American courts have responded to a party's evidence tampering by allowing the opponent to argue to jurors that they should draw an adverse inference against the offending party in deciding the merits of the case. This Article argues that the use of such inferences, and invitations to draw them, should be radically curtailed, not only because of the ambiguities and risks of prejudice that such inferences entail, but more importantly because they reflect and contribute to a confusion of roles in which the jury is enlisted to participate in the management of the pre-trial conduct …

The Unintentional Rapist, Bennett Capers

Faculty Scholarship

No abstract provided.

Illinois Courts And The Law Of Miranda Waivers: A Policy Worth Preserving, 30 N. Ill. U. L. Rev. 429 (2010), Timothy P. O'Neill

UIC Law Open Access Faculty Scholarship

No abstract provided.

The Process Is The Problem: Lessons Learned From United States Drug Sentencing Reform, Erik S. Siebert

University of Richmond Law Review

No abstract provided.

Herring V. United States: Mapp's "Artless" Overruling?, Michael Vitiello

Nevada Law Journal

The central thesis of this essay is that, consistent with the “art of overruling,” the Court could have limited Mapp, for example, by extending the good-faith reasonable mistake rationale that animates cases like United States v. Leon. As developed below, the facts of Herring are quite similar to the facts of other cases where the Court upheld police conduct that, although erroneous, seemed reasonable; accordingly, excluding the illegally obtained evidence had no value as a deterrent of future conduct in light of the reasonableness of the police officer's mistake. However, Herring goes much further and points towards a much greater …

Coconspirators, “Coventurers,” And The Exception Swallowing The Hearsay Rule, Ben L. Trachtenberg

Faculty Publications

In recent years, prosecutors - sometimes with the blessing of courts - have argued that when proving the existence of a “conspiracy” to justify admission of evidence under the Coconspirator Exception to the Hearsay Rule, they need show only that the declarant and the defendant were “coventurers” with a common purpose, not coconspirators with an illegal purpose. Indeed, government briefs and court decisions specifically disclaim the need to show any wrongful goal whatsoever. This Article contends that such a reading of the Exception is mistaken and undesirable. Conducted for this article, a survey of thousands of court decisions, including the …

A Hedgehog On The Witness Stand-What's The Big Idea?: The Challenges Of Using Daubert To Assess Social Science And Nonscientific Testimony, Maxine D. Goodman

American University Law Review

No abstract provided.

Evaluating Children's Competency To Testify: Developing A Rational Method To Assess A Young Child's Capacity To Offer Reliable Testimony In Cases Alleging Child Sex Abuse , Laurie Shanks

Cleveland State Law Review

This Article discusses the testimony of young children, the inadequacy of the traditional hearing used to determine the competency of such children to testify, and the ways in which the hearing might be changed to make it a meaningful process for determining the ability of a child to give reliable testimony.

City Of Los Angeles V. Alameda: The Fractured Evidence Standard For Proving A Substantial Governmental Interest, Christopher A. Khatami

Student Works

No abstract provided.

Federal Philosophy Of Science: A Deconstruction- And A Reconstruction, Susan Haack

Articles

No abstract provided.

The Majestic And The Mundane: The Two Creation Stories Of The Exclusionary Rule, Scott E. Sundby, Lucy B. Ricca

Articles

No abstract provided.

What Are The Policy Implications Of Use Of Epidemiological Evidence In Mass Torts And Public Health Litigation, Christopher Ogolla

St. Thomas Law Review

The distinctions between the standards of proof employed in epidemiology and in law inform the central thesis of this paper. This analysis began by describing the role of epidemiology in mass torts and public health litigation. It later argues that because mass torts cover such a wide area, there are several problems related to epidemiology in litigation, particularly scientific uncertainty and inconsistent factual claims. Part II discusses recent cases where epidemiological evidence was raised and debated, distinguishing between vaccine-related and non-vaccine-related cases. Courts have differentiated vaccine-related cases from non-vaccine-related cases, principally because Congress enacted a vaccine act designed to compensate …

Unasked (And Unanswered) Questions About The Role Of Neuroimaging In The Criminal Trial Process, Michael L. Perlin, Valerie Mcclain

Articles & Chapters

The robust neuroimaging debate has dealt mostly with philosophical questions about free will, responsibility, and the relationship between brain abnormalities, violence and crime. This debate, however, obscures several important issues of criminal procedure to which little attention has as of yet been paid: 1) an indigent defendant's right of access to expert testimony in cases where neuroimaging tests might be critical, 2) a defendant's competency to consent to the imposition of a neuroimaging test; and 3) the impact of antipsychotic medications on a defendant's brain at the time that such a test is performed. This article will consider these questions …

Much Uncertainty About Uncertain Tax Positions, Robert D. Probasco

Faculty Scholarship

The Internal Revenue Service (IRS) announced in January 2010 a new initiative to require certain businesses to report “uncertain tax positions” on a new schedule filed with their annual tax returns. Draft schedules and instructions issued in April 2010 clarified some of the mechanical aspects of the new requirement but left many open issues and questions. The IRS proposal built on requirements by the Financial Accounting Standards Board (FASB) in FASB Interpretation No. 48, Accounting for Uncertainty in Income Taxes (“FIN 48”). The standard requires companies, in their financial statements, to reserve some of the benefits from any position taken …

Some Forensic Aspects Of Ballistic Imaging, Daniel L. Cork, Vijayan N. Nair, John E. Rolph

Fordham Urban Law Journal

Analysis of ballistics evidence (spent cartridge casings and bullets) has been a staple of forensic criminal investigation for almost a century. Computer-assisted databases of images of ballistics evidence have been used since the mid-1980s to help search for potential matches between pieces of evidence. In this article, we draw on the 2008 National Research Council Report Ballistic Imaging to assess the state of ballistic imaging technology. In particular, we discuss the feasibility of creating a national reference ballistic imaging database (RBID) from test-fires of all newly manufactured or imported firearms. A national RBID might aid in using crime scene ballistic …

Electronic Evidence Annotated Bibliography, Nancy Levit

Faculty Works

No abstract provided.

The Expanding Duties Of Esi And In-House Counsel: Providing Defensible Preservation And Production Efforts After Swofford V. Eslinger, David W. Degnan

Richmond Journal of Law & Technology

As a general rule, companies and government agencies should plan for preservation and production before litigation is probable. This means having a document retention program. These programs ensure that documents are retained or deleted in an orderly fashion. If a company properly follows its policies and procedures, this retention program acts as a “shield” against the incomplete preservation of relevant (or “hot”) documents deleted before the proper initiation of a litigation hold. If parties do not follow, or inconsistently follow, such a program, they might have to explain what happened to a missing relevant document. Thus, a retention program might …

A Second Chance At Justice: Why States Should Adopt Aba Model Rules Of Professional Conduct 3.8(G) And (H), Michele K. Mulhausen

University of Colorado Law Review

Prosecutors, defense attorneys, jurists, and citizens alike cringe at the thought of their fellow citizens serving criminal sentences for crimes that they did not commit. Unfortunately, evidence sometimes emerges after conviction that would exonerate the defendant. As a result, in February 2008, the American Bar Association adopted two amendments, (g) and (h), to the existing Model Rule 3.8, which governs the conduct of prosecutors. The two amendments place an affirmative duty on prosecutors to investigate "new, credible and material evidence." If the evidence creates a "reasonable likelihood" that the convicted defendant did not commit the crime, the prosecutor must "seek …

Stepping Out Of The Vehicle: The Potential Of Arizona V. Gant To End Automatic Searches Incident To Arrest Beyond The Vehicular Context , Angad Singh

American University Law Review

No abstract provided.

Al-Iqrar Fi Ithbat Al-Da`Wa Fi Al-Qadaya Al-Madinah : Dirasah Muqaranah Bayna Al-Qanun Al-Madani Al-Irani Wa-Al-Madhahib Al-Khamsah., Ghotbaddin Zahedian

Student Works (2010-2019)

The dissertation is a comparison study between madhahib fiqhiyyah (Hanafi, Maliki, Shafe'i, Hanbali, Ja’fari) and the Iranian Civil Code with regards to confession of patient, bankrupt, infant, fool, and the confession of kinship. The study is theoretical, aiming at evaluating the influence of the Ja’fari’s and another four schools of jurisprudence (Hanafi, Maliki, Shafi'i and Hanbali) on the Iranian Civil Code. In addition, the study attempts to identify the similarities and differences between the four schools of Sunni and Shiah Ja’fari in confession in civil cases. It has been done by comparing civil issues between the four schools of Ahl …

Scientific Evidence In Criminal Prosecutions - A Retrospective, Paul C. Giannelli

Faculty Publications

No abstract provided.

The Anticipation Misconception, Colin P. Marks

Faculty Works

Many commentators and courts have cited to the Supreme Court decision of Hickman v. Taylor as the genesis of the work product doctrine and the requirement that, to be afforded protection, the material in question must be generated “in anticipation of litigation.” The oft quoted policy justification for the protection afforded is that attorneys should be allowed a “zone of privacy” within which to prepare their case for the client. This justification supports limiting protection only to work generated “in anticipation of litigation,” because, presumably, outside of this context there is no need for the “zone of privacy.” However, a …

Sex, Threats, And Absent Victims: The Lessons Of Regina V. Bedingfield For Modern Confrontation And Domestic Violence Cases, Aviva A. Orenstein

Articles by Maurer Faculty

In 2004, Crawford v. Washington, authored by Justice Antonin Scalia, revolutionized the law of confrontation by requiring that, aside from two discrete exceptions, all testimonial statements (those made with the expectation that they will serve to prosecute the accused) be subject to cross-examination. This new interpretation of the Sixth Amendment confrontation clause has profoundly affected domestic violence cases, making it much harder to prosecute them successfully.

Although Justice Scalia’s approach to confrontation is new, it is strikingly similar to the analysis in Regina v. Bedingfield, a notorious English murder case, which excluded from the evidence an alleged statement by the …