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Giles V. California: A Personal Reflection, Richard D. Friedman

Articles

In this Essay, Professor Friedman places Giles v. California in the context of the recent transformation of the law governing the Confrontation Clause of the Sixth Amendment. He contends that a robust doctrine of forfeiture is an integral part of a sound conception of the confrontation right. One reason this is so is that cases fitting within the traditional hearsay exception for dying declarations can be explained as instances of forfeiture. This explanation leads to a simple structure of confrontation law, qualified by the principle that the confrontation right may be waived or forfeited but not subject to genuine exceptions. …

Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Jessica M. Yoke

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is proud to present the third issue of the 2008–2009 academic school year, which also is our Annual Survey on E-Discovery.

Databases, E-Discovery And Criminal Law, Ken Strutin

Richmond Journal of Law & Technology

The enduring value of the Constitution is the fundamental approach to human rights transcending time and technology. The modern complexity and variety of electronically stored information was unknown in the eighteenth century, but the elemental due process concepts forged then can be applied now. At some point, the accumulation of information surpassed the boundaries of living witnesses and paper records. The advent of computers and databases ushered in an entirely new order, giving rise to massive libraries of factual details and powerful investigative tools. But electronically collected information sources are a double-edged sword. Their accuracy and reliability are critical issues …

Electronic Discovery In Large Organizations, Jason Fliegel, Robert Entwisle

Richmond Journal of Law & Technology

The continuing expansion and virtually limitless array of technology and media available to store electronic information has had an immeasurable impact on the amount of information large organizations create and maintain. In many instances, this information continues to be available long after it has served the originator’s purposes. Yet, such information is not exempt from discovery in litigation, and attempting to identify, preserve, collect, review, and produce that information results in a significant burden on litigants, while the failure to do so can result in draconian sanctions or adverse publicity.

Qualcomm Inc. V. Broadcom Corp.: 9,259,985 Reasons To Comply With Discovery Requests, Kristen Mcneal

Richmond Journal of Law & Technology

Evolving technology has advanced communication throughout the business industry. Corporations use various communication methods to initiate conversation, propose business ventures, and relay correspondence from one place to another. Quite naturally, with the development of different means of communication, various innovations in the legal profession have materialized and gained popularity. One of these innovations is electronic discovery.

Secret Evidence And The Due Process Of Terrorist Detentions, Daphne Barak-Erez, Matthew C. Waxman

Faculty Scholarship

Courts across many common law democracies have been wrestling with a shared predicament: proving cases against suspected terrorists in detention hearings requires governments to protect sensitive classified information about intelligence sources and methods, but withholding evidence from suspects threatens fairness and contradicts a basic tenet of adversarial process. This Article examines several models for resolving this problem, including the "special advocate" model employed by Britain and Canada, and the 'Judicial management" model employed in Israel. This analysis shows how the very different approaches adopted even among democracies sharing common legal foundations reflect varying understandings of 'fundamental fairness" or "due process," …

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

Faculty Scholarship

No abstract provided.

The Special Threat Of Informants To The Innocent Who Are Not Innocents: Producing “First Drafts,” Recording Incentives, And Taking A Fresh Look At The Evidence, Robert P. Mosteller

Faculty Scholarship

Fabricated testimony by informants often plays an important role in convictions of the innocent. In this article, I examine the particularly problematic situation of defendants who are innocent of the particular crime charged but are not strangers to crime. As to such defendants, potential informants abound among crime associates, and they have a ready story line that authorities are preconditioned to accept. Independent proof, which could be an antidote, will predictably be lacking. Indeed, that the informant has exclusive, critical knowledge often leads the prosecution to offer particularly tempting deals.

I focus on the case of Lee Wayne Hunt, a …

The Phases And Faces Of The Duke Lacrosse Controversy: A Conversation James E. Coleman, Jr., James E. Coleman Jr., Angela Davis, Michael Gerhardt, K.C. Johnson, Lyrissa Lidsky, Howard M. Wasserman

Faculty Scholarship

This panel took place at the 2008 Annual Meeting of the Southeastern Association of Law Schools ("SEALS") in July 2008 in West Palm Beach, Florida

Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler

Faculty Scholarship

Crawford v. Washington’s historical approach to the confrontation clause establishes that testimonial hearsay inadmissible without confrontation at the founding is similarly inadmissible today, despite whether it fits a subsequently developed hearsay exception. Consequently, the requirement of confrontation depends upon whether an out-of-court statement is hearsay, testimonial, and, if so, whether it was nonetheless admissible without confrontation at the founding. A substantial literature has developed about whether hearsay statements are testimonial or were, like dying declarations, otherwise admissible at the founding. In contrast, this article focuses on the first question – whether statements are hearsay – which scholars have thus far …

The Work Product Doctrine And Tax Accrual Workpapers, Steve R. Johnson

Scholarly Publications

In its rehearing of Textron, the First Circuit has an opportunity to rectify an error and curb unwise recent expansion of work product protection for tax accrual workpapers. In August 2007, a district court denied the government’s petition for enforcement of an IRS summons on Textron Inc. and its subsidiaries for tax accrual workpapers in connection with IRS examinations of the taxpayers’ 1998 to 2001 income tax returns. A divided panel of the First Circuit affirmed in January 2009. In March 2009, the First Circuit withdrew the panel opinion and dissent, and it set the case for en banc hearing …

Law, Statistics, And The Reference Class Problem, Edward K. Cheng

Vanderbilt Law School Faculty Publications

Statistical data are powerful, if not crucial, pieces of evidence in the courtroom. Whether one is trying to demonstrate the rarity of a DNA profile, estimate the value of damaged property, or determine the likelihood that a criminal defendant will recidivate, statistics often have an important role to play. Statistics, however, raise a number of serious challenges for the legal system, including concerns that they are difficult to understand, are given too much deference from juries, or are easily manipulated by the parties' experts. In this preview piece, I address one of these challenges, known as the "reference class problem," …

Optimization Of The Microprecipitation Procedure For Nuclear Forensics Applications, Lyndsey Renee Kelly

UNLV Theses, Dissertations, Professional Papers, and Capstones

Microprecipitation has become one of the most widely used sample preparation techniques for alpha spectroscopy. Many factors during the precipitation process can affect the yield and energy resolution by adding unwanted mass to the sample. Current applications in nuclear forensics call for an optimization of energy resolution and yield in order to improve identification and quantify specific radionuclides. The purpose of this research is to determine the optimal parameters used for microprecipitation. The optimal solution temperature, precipitation time, carrier amount, and hydrofluoric acid amount are used to investigate the influence of varying the type of carrier, as well as, the …

Notes On Minority Report, Bennett Capers

Faculty Scholarship

No abstract provided.

Spreigl Evidence: Still Searching For A Principled Rule, Ted Sampsell-Jones

Faculty Scholarship

This article first examines how Minnesota’s character evidence doctrine developed, with a particular focus on the historical confusion regarding the propriety of the propensity inference. It then examines current case law and argues that Minnesota’s current Spreigl doctrine routinely allows propensity evidence. It finally proposes a choice between abandoning the current Spreigl doctrine and repealing the character rule itself. The author takes no position on which alternative should be chosen, but either is better than the status quo. The current doctrine in Minnesota is a Potemkin village.

Independent And Adequate: Maryland's State Exclusionary Rule For Illegally Obtained Evidence, Carrie Leonetti

University of Baltimore Law Review

No abstract provided.

Impeachable Offenses?: Why Civil Parties In Quasi-Criminal Cases Should Be Treated Like Criminal Defendants Under The Felony Impeachment Rule, Colin Miller

Faculty Publications

No abstract provided.

Dickey V. State: Jury Instruction On Drug Use And Its Concomitant Effect On Eyewitness Credibility, Rachel M. Witriol

Maryland Law Review Online

No abstract provided.

Using Keyword Search Terms In E-Discovery And How They Relate To Issues Of Responsiveness, Privilege, Evidence Standards, And Rube Goldberg, Gregory L. Fordham

Richmond Journal of Law & Technology

The emergence of digital evidence and the widespread implementation of e-discovery has brought both benefit and repercussion. In many respects, digital evidence has proven to be a better truth detector than its paper counterpart. At the same time, the volumes in which digital evidence exists make time-tested discovery techniques impractical. In fact, so significant are the technological differences between paper and digital evidence that even the handling procedures require considerable overhaul.

Analysis Of Videotape Evidence In Police Misconduct Cases, Martin A. Schwartz, Jessica Silbey, Jack Ryan, Gail Donoghue

Touro Law Review

No abstract provided.

Achieving An Appropriate Balance: The Use Of Counsel Sanctions In Connection With The Resolution Of E-Discovery Misconduct, Thomas Y. Allman

Richmond Journal of Law & Technology

This article evaluates the increased use of counsel sanctions in connection with discovery misconduct in the federal courts. Decisions such as Qualcomm Inc. v. Broadcom Corp. (Qualcomm) have drawn attention to the affirmative responsibilities of counsel for discovery and the ample authority available to sanction them under appropriate circumstances.

Business Courts And The Future Of Arbitration, Christopher R. Drahozal

Cardozo Journal of Conflict Resolution

This article examines the extent to which competition from business courts is likely to impact the future of arbitration. Part II provides a brief overview of the growth of business courts in recent years. Part III sets out a structural comparison of arbitration with business courts, highlighting the similarities and differences between the two. Part IV provides empirical evidence on the relationship between the availability of business courts and the use of arbitration clauses. Overall, the evidence provides little indication that parties are switching from arbitration to business courts. The evidence is far from definitive, however, and highlights the need …

Judges Gone Wild: Why Breaking The Mediation Confidentiality Privilege For Acting In "Bad Faith" Should Be Reevaluated In Court-Ordered Mandatory Mediation, Samara Zimmerman

Cardozo Journal of Conflict Resolution

This Note focuses on the reasons why a good faith requirement or a bad faith exception for breaking mediation confidentiality is objectionable and offers an alternative for the Florida court system that, if implemented, could mitigate such disadvantages. I will discuss "the intersection between [a] court-ordered mediation, the confidentiality of which is mandated by law ... and the power of a court to control proceedings," and persons who appear before it by sanctioning conduct that taking place in mediation. Part II of this Note will begin by providing a background to the Doe v. Francis civil case. It will highlight …

Policing, Place, And Race, Bennett Capers

Faculty Scholarship

No abstract provided.

Trawling Dna Databases For Partial Matches: What Is The Fbi Afraid Of?, David H. Kaye

Faculty Scholarship

DNA evidence is often presented as the “gold standard” for forensic science. But this was not always the case. For years, eminent scientists complained that the estimates of the tiny frequencies of DNA types were unfounded. It took scores of research papers, dozens of judicial opinions, and two committees of the National Academy of Sciences to resolve the dispute by the mid-1990s. Since 2000, however, reports have surfaced of shocking numbers of “partial matches” among samples within large DNA databases, and some scientists have complained that the infinitesimal figures used in court to estimate the probability of a random match …

Rounding Up The Usual Suspects: A Logical And Legal Analysis Of Dna Trawling Cases, David H. Kaye

Faculty Scholarship

Courts are beginning to confront a problem that has divided the scientific community - whether identifying a defendant by fishing through a database of DNA types to find a match to a crime-scene sample reduces the significance of a match. For years, the problem seemed academic. Now that the U.S. has more than five million DNA profiles from convicted offenders and suspects in a national, computer-searchable database, the question has assumed more urgency. Increasingly, individuals are being charged with crimes as a result of a match between their recorded profile and the DNA from a victim or scene of a …

Embracing Paradox: Three Problems The Nlrb Must Confront To Resist Further Erosion Of Labor Rights In The Expanding Immigrant Workplace, Michael C. Duff

All Faculty Scholarship

This article discusses the Supreme Court's 2002 Hoffman Plastic Compounds opinion, normally considered in terms of its social justice ramifications, from the different perspective of NLRB attorneys tasked with pursuing enforcement of the National Labor Relations Act (NLRA) under the conceptually (and practically) odd rubric that some NLRA employees (unauthorized workers) have no remedy under the NLRA. The article focuses on three problems evincing paradox. First, NLRB attorneys prosecuting cases involving these workers will probably gain knowledge of unlawful background immigration conduct. To what extent must the attorneys disclose it, and to whom? Second, NLRB attorneys are extraordinarily reliant on …

A Matter Of Context: Social Framework Evidence In Employment Discrimination Class Actions, Melissa Hart, Paul M. Secunda

Publications

In litigation disputes over the certification of employment discrimination class actions, social scientists have come to play a central, yet controversial, role. Organizational behavioralists and social psychologists regularly testify for the plaintiffs, offering what is commonly referred to as social framework testimony. These experts explain the general social science research on the operation of stereotyping and bias in decision making and examine the challenged workplace to identify those policies and practices that research has shown will tend to increase and those that will tend to limit the likely impact of these factors. Defendants fight hard against the admission of social …

The Expanding Use Of The Res Gestae Doctrine, H. Patrick Furman, Ann England

Publications

This article provides a brief history of the doctrine of res gestae and an analysis of its current usage in both Colorado state and federal courts.

Working Without A Net: The Third Circuit Juggles Skepticism And Deference Inside The Ring Of Products Liability Experts After The Daubert Trilogy In Pineda V. Ford Motor Co. & (And) Calhoun V. Yamaha Corp., Jennifer E. Burke

Villanova Law Review (1956 - )

No abstract provided.