Evidence Commons^™

Where The Rubber Meets The Road: Thinking About Expert Evidence As Expert Testimony, Simon A. Cole

Villanova Law Review (1956 - )

No abstract provided.

Finding The Golden Mean With Daubert: An Elusive, Perhaps Impossible, Goal, Robert P. Mosteller

Villanova Law Review (1956 - )

No abstract provided.

Daubert Challenges To Firearms (“Ballistics”) Identifications, Paul C. Giannelli

Faculty Publications

No abstract provided.

Prosecutors, Ethics, And Expert Witnesses, Paul C. Giannelli, Kevin C. Mcmunigal

Faculty Publications

Commentators who have examined the DNA exonerations have noted the disturbing role that prosecutors have played in these wrongful convictions. Another significant contributor to these miscarriages of justice is the misuse of expert testimony, a third of the cases according to some sources. This Article examines the intersection of these two factors - the prosecutor's role in using and presenting expert testimony.

Prosecutorial misconduct may occur during most stages of a trial, beginning with the selection of witnesses, including the improper "shopping" for experts. Additional abuses occur when prosecutors fail to abide by rules governing the pretrial disclosure of scientific …

He Said, She Said: Why Pennsylvania Should Adopt Federal Rules Of Evidence 413 And 414, Jessica D. Khan

Villanova Law Review (1956 - )

No abstract provided.

Expertise In Action: Presenting And Attacking Expert Evidence In Dna Fingerprinting Cases, Michael Lynch

Villanova Law Review (1956 - )

No abstract provided.

Supersizing Daubert Science For Litigation And Its Implications For Legal Practice And Scientific Research, Gary Edmond

Villanova Law Review (1956 - )

No abstract provided.

Parol Evidence Under The Cisg: The "Homeward Trend" Reconsidered, 68 Ohio St. L.J. 133 (2007), Karen H. Cross

UIC Law Open Access Faculty Scholarship

The CISG has been described as one of history 's most successful attempts to harmonize international commercial law. Consistent with its goal of harmonizing the law of international sales, Article 7(1) of the CISG instructs courts and arbitrators to interpret the Convention in light of "its international character and the need to promote uniformity in its application. " MCC-Marble v. Ceramica Nuova D'Agostina is a U.S. decision that has been praised for its adherence to Article 7(1). In contrast with conventional academic commentary, which praises MCC-Marble and criticizes the tendency of courts to interpret the CISG in light of their …

A Proposal To Amend Rule 407 Of The Federal Rules Of Evidence To Conform With The Underlying Relevancy Rationale For The Rule In Negligence And Strict Liability Actions, 3 Seton Hall Cir. Rev. 435 (2007), Ralph Ruebner, Eugene Goryunov

UIC Law Open Access Faculty Scholarship

No abstract provided.

The Youngblood Success Stories: Overcoming The "Bad Faith" Destruction Of Evidence Standard, Teresa N. Chen

West Virginia Law Review

No abstract provided.

An Agument For Original Intent: Restoring Rule 801 (D) (1) (A) To Protect Domestic Violence Victims In A Post-Crawford World., Andrew King-Ries

Faculty Law Review Articles

Prosecution of domestic violence is extremely difficult, largely due to the fact that defendants are successfully pressuring victims to refuse to testify or to recant their testimony at trial. With its decision in Crawford, the Supreme Court eliminated the ability of prosecutors to use hearsay exceptions to place the domestic violence victim's statements before the jury for their substantive consideration. The Supreme Court also closed this avenue to combat defendants' efforts to avoid liability through coercive pressure on victims. Therefore, the Court's change in the Confrontation Clause law limits the prosecution's arsenal for combating witness intimidation and, at the same …

A Suspicionless Search And Seizure Quagmire: The Supreme Court Revives The Pretext Doctrine And Creates Another Fine Fourth Amendment Mess, Edwin J. Butterfoss

Faculty Scholarship

This Article contends the Supreme Court's use of a primary purpose test to regulate suspicionless searches and seizures by the government is misguided and will provide little or no protection against the evils that apparently led the Court to strike down recent schemes by government officials. The evil of the government schemes is less the purpose of the schemes than their expansion into areas and activities in which citizens should be protected from government intrusion in the absence of any suspicion of wrongdoing. Rather than facing this head on and carefully assessing whether the government schemes infringe on such areas …

The Existentialist And The River: An Essay In The Memory Of Robert Popper, Dean Of The Umkc Law School, John W. Ragsdale Jr

Faculty Works

No abstract provided.

Cross-Examination Earlier Or Later: When Is It Enough To Satisfy Crawford?, Christopher B. Mueller

Publications

No abstract provided.

Daubert's Erie Problem, Jennifer M. Wolsing

Indiana Law Journal

No abstract provided.

Truth, Deterrence, And The Impeachment Exception , James L. Kainen

Faculty Scholarship

James v. Illinois permits illegally-obtained evidence to impeach defendants, but not defense witnesses. Thus far, all courts have construed James to allow impeachment of defendants' hearsay declarations. This article argues against allowing illegally-obtained evidence to impeach defendants' hearsay declarations because doing so unduly diminishes the exclusionary rule's deterrent effect. The distinction between impeaching defendants and defense witnesses disappears when courts allow prosecutors to impeach defendants' hearsay declarations. Because defense witnesses report exculpatory conduct of a defendant who always has a substantial interest in disguising his criminality, their testimony routinely incorporates defendant hearsay. Defense witness testimony thus routinely paves the way …

Circumventing Daubert In The Gene Pool, Erica Beecher-Monas

Law Faculty Research Publications

No abstract provided.

Please, Let's Bury The Junk: The Codis Loci And The Revelation Of Private Information, David H. Kaye

Faculty Scholarship

This Northwestern University Law Review Colloquy paper describes the four possible ways in which genetic loci could possess predictive or diagnostic value with regard to diseases and explains why these mechanisms have not led, and probably cannot lead, to useful screening tests with the Convicted Offender DNA Index System (CODIS) profiles in national, state, and local databases. It then considers the phenotypes and familial relationships that the CODIS STRs can be used to identify. The profiles carry limited information about an individual's race and familial relationships, and the article places the resulting privacy issues in perspective. Finally, the paper comments …

Revisiting 'Dreyfus': A More Complete Account Of A Trial By Mathematics, David H. Kaye

Faculty Scholarship

Legal literature and case law depicts the infamous conviction of Alfred Dreyfus for treason and espionage in 1899 as a prime example of the irresistible power of even grossly fallacious mathematical demonstrations to overwhelm a legal tribunal. This essay shows that Dreyfus is not a case of mathematics run amok, unchecked and uncomprehended. To the contrary, the defects in the mathematical proof were dramatically exposed, and this evidence did not lead Dreyfus's judges to condemn him. This history undercuts the reliance of modern courts and commentators on Dreyfus as an indication or illustration of the alleged dangers of probability evidence …

The Science Of Dna Identification: From The Laboratory To The Courtroom (And Beyond), David H. Kaye

Faculty Scholarship

This article focuses on sequences of DNA base-pairs, which are becoming increasingly important in the field of law. These DNA sequences are used by forensic scientists to discover evidence such as blood stains, semen, saliva, and hair, and has become highly useful in the courtroom with regard to exonerating the innocent and convicting the guilty. Part I of the article examines how courts may (or may not) admit DNA evidence in court through four phases: uncritical acceptance; serious challenges to analytical methods and statistical interpretation of the results; renewed acceptance of DNA evidence; and acceptance of advance systems of DNA …

Crawford, Davis, And Way Beyond, Richard D. Friedman

Articles

Until 1965, the Confrontation Clause of the Sixth Amendment to the United States Constitution hardly mattered. It was not applicable against the states, and therefore had no role whatsoever in the vast majority of prosecutions. Moreover, if a federal court was inclined to exclude evidence of an out-of-court statement, it made little practical difference whether the court termed the statement hearsay or held that the evidence did not comply with the Confrontation Clause.

Crawford And Davis: A Personal Reflection, Richard D. Friedman

Articles

I have to say that when I stood up to argue Hammon I felt the wind at my back. I was basically a lawyer with an easy case, and there wasn't anything particularly unpredictable at the argument of Hammon. Now it got a little bit interesting, as I will explain later, because to a certain extent I was trying to argue the other case as well. But Hammon itself was sort of ordinary, normal law.

Holmes V. South Carolina Upholds Trial By Jury, Samuel R. Gross

Articles

Bobby Lee Holmes was convicted of a brutal rape-murder and sentenced to death. The only evidence that connected him to the crime was forensic: a palm print, and blood and fiber evidence. (Biological samples taken from the victim for two rape kits were compromised and yielded no identifiable evidence.) Holmes claimed that the state's forensic evidence was planted and mishandled, and that the rape and murder were committed by another man, Jimmy McCaw White. At a pretrial hearing three witnesses testified that they saw White near the victim's house at about the time of the crime, and four others testified …

Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Charlotte A. Dauphin

Richmond Journal of Law & Technology

I hope you enjoy the third issue of the Richmond Journal of Law and Technology for the 2006-2007 academic year, our Annual Survey of Electronic Discovery. This is our first annual survey since the new amendments to the Federal Rules of Civil Procedure, which at the time of this publication have been in effect for several months, that affect electronic discovery in several significant ways. The entire staff of the Journal has worked diligently to bring these articles to our readers. Whether you are new to the Journal and electronic discovery, or whether you are a long-time reader, you will …

In Pursuit Of Frcp 1: Creative Approaches To Cutting And Shifting The Costs Of Discovery, Mia Mazza, Emmalena K. Quesada, Ashley L. Sternberg

Richmond Journal of Law & Technology

The most important rule of all is the last sentence of [FRCP] 1, which provides that the Federal Rules of Civil Procedure ‘shall be construed to secure the just, speedy, and inexpensive determination of every action.’ It is this command that gives all the other rules life and meaning and timbre in the realist world of the trial court.

The Two-Tier Discovery Provision Of Rule 26(B)(2)(B) - A Reasonable Measure For Controlling Electronic Discovery?, Theodore C. Hirt

Richmond Journal of Law & Technology

One of the most innovative provisions in the newly-effective amendments to the Federal Rules of Civil Procedure addressing electronic discovery may be the creation of a two-tier system for the discovery of electronically stored information, under new Rule 26(b)(2)(B). This rule states that “[a] party need not provide discovery” of such information “from sources that the party identifies as not reasonably accessible because of undue burden or cost.”

Information Inflation: Can The Legal System Adapt?, George L. Paul, Jason R. Baron

Richmond Journal of Law & Technology

Information is fundamental to the legal system. Accordingly, lawyers must understand that information, as a cultural and technological edifice, has profoundly and irrevocably changed. There has been a civilization- wide morph, or pulse, or one might say that information has evolved. This article discusses the new inflationary dynamic, which has caused written information to multiply by as much as ten thousand-fold recently. The resulting landscape has stressed the legal system and indeed, it is becoming prohibitively expensive for lawyers even to search through information. This is particularly true in litigation.

Testing The Testimonial Concept And Exceptions To Confrontation: “A Little Child Shall Lead Them”, Robert P. Mosteller

Faculty Scholarship

In Crawford v. Washington (2004), the Supreme Court radically transformed the analysis of the Confrontation Clause for hearsay, but left many specific questions unanswered. Two years later in Davis v. Washington (2006), it revisited the subject and answered a few of the unresolved issues, but again left much in doubt, apparently reorienting the focus of the testimonial definition from that of the party making the statement to that of the person receiving it. One of the areas where the new doctrine has greatest potential importance is in cases involving children, particularly cases involving physical and sexual abuse. The importance derives …

Was He Guilty As Charged? An Alternative Narrative Based On The Circumstantial Evidence From 12 Angry Men, Neil Vidmar, Sara Sun Beale, Erwin Chemerinsky, James E. Coleman Jr.

Faculty Scholarship

No abstract provided.

Litigating Brady V. Maryland: Games Prosecutors Play, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

By any measure, Brady v. Maryland has not lived up to its expectations. Brady's announcement of a constitutional duty on prosecutors to disclose exculpatory evidence to defendants embodies, more powerfully than any other constitutional rule, the core of the prosecutor's ethical duty to seek justice rather than victory. Nevertheless, prosecutors over the years have not accorded Brady the respect it deserves. Prosecutors have violated its principles so often that it stands more as a landmark to prosecutorial indifference and abuse than a hallmark of justice. Moreover, as interpreted by the judiciary, Brady actually invites prosecutors to bend, if not break, …