Evidence Commons^™

Police Deception Before Miranda Warnings: The Case For Per Se Exclusion Of An Entirely Unjustified Practice At A Particularly Sensitive Moment, Robert P. Mosteller

Faculty Scholarship

This essay focuses on the limits of deception practiced before the suspect waives his or her rights under Miranda v. Arizona (1966). In Miranda, the Court stated: [A]ny evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the suspect did not voluntarily waive his privilege. The quotation appears to forbid any evidence of threats, tricks, or cajolery, which contributes to a waiver of the privilege, creating a per se exclusion. However, in Moran v. Burbine (1986), the Court shifts focus away from the nature of the police conduct to its effect on …

Poetic (In)Justice? Rap Music Lyrics As Art, Life, And Criminal Evidence, Andrea L. Dennis

Scholarly Works

Courts routinely admit defendant-authored rap music lyrics as substantive evidence in the adjudication of criminal cases. In doing so, courts fail to recognize that rap music lyrics are art. Rather, judges view the interpretation of rap music lyrics as a subject of common knowledge, interpret the defendant's lyrics literally, and characterize lyrics as autobiographical depictions of actual events. In making admissibility decisions, courts must give consideration to the social constraints and artistic conventions impacting the composition and interpretation of rap music lyrics. More particularly, they must understand the commercialized nature of the rap music industry, artist claims of authenticity, and …

A History Of Representations Of Justice: Coincident Preoccupations Of Law And Film, Jessica Silbey

Faculty Scholarship

The American trial and the art of cinema share certain epistemological tendencies. Both stake claims to an authoritative form of knowledge based on the indubitable quality of observable phenomena. Both are preoccupied (sometimes to the point of self-defeat) with sustaining the authority that underlies the knowledge produced by visual perception. The American trial and art of cinema also increasingly share cultural space. Although the trial film (otherwise known as the courtroom drama) is as old as the medium of film the recent spate of popular trial films, be they fictional such as Runaway Jury or documentary such as Capturing the …

Unrecognized Right Of Criminal Defendants To Admit Their Own Pretrial Statements, The , Stephen A. Saltzburg, Daniel J. Capra

Faculty Scholarship

In Agard v. Portuondo, the United States Supreme Court held that a prosecutor did not violate a testifying defendant's constitutional rights by inviting the jury to infer from the defendant's presence at trial that the defendant altered his own version of events to accord with other witnesses' testimony. Justice Scalia's opinion for the Court emphasized that jurors might well draw the inference even without a prosecutor asking them to do so. Although Agard is viewed as giving an advantage in a criminal trial to the government, this Article considers how Agard might be used to allow defense counsel to introduce …

Milstein V. Chief Military Prosecutor, Edna Arbel, Aharon Barak, Edmond E. Levy

Translated Opinions

Facts: The appellant was convicted of the offence of using dangerous drugs while he was serving in the IDF. During his interrogation by the police, he confessed to using the drugs, but in his trial he pleaded not guilty and exercised his right to remain silent and not to testify in his own defence.

Following the case law of the Supreme Court, a defendant cannot be convicted solely on the basis of a confession, even when it is freely and willingly given. ‘Something extra’ is required in order to convict him. The District Court Martial and the Appeals Court Martial …

Child Statements In A Post-Crawford World: What The United States Supreme Court Failed To Consider With Regard To Child Victims And Witnesses, Allie Phillips

ExpressO

With the issuance of Crawford v. Washington, 514 U.S. 36 (2004), by the United States Supreme Court on March 8, 2004, wide spread confusion and concern swept through the nation’s prosecutorial community. The new rule announced in Crawford created too many questions and provided few answers by the Court. In particular, anxiety arose from the child protection community in regard to one primary issue: Are forensic interviews of child victims and witnesses, and other statements made by children, considered “testimonial statements” according to Crawford, thus requiring the child to take the witness stand? The Court further confused the new rule …

Evidence, Marc T. Treadwell

Mercer Law Review

The most significant news during the current survey year continued to be the major legislative developments discussed in last year's survey. Most significantly, the Georgia General Assembly, during its 2005 session, enacted Official Code of Georgia Annotated ("O.C.G.A.") section 24-9-67.1, which purports to adopt, more or less, the United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. and its progeny, and creates special rules for expert testimony in medical negligence actions. In other words, Daubert has now come to Georgia and, as discussed below, there were both legislative and judicial developments regarding Georgia's new expert witness …

Looking At The Overlooked: Portraits Of Law School Deans, Peter Goodrich

Articles

The article examines the role of portraits in law schools, arguing that these images are not merely decorative but serve as powerful symbols that shape institutional identity and the legal profession. Despite their ubiquity, these portraits are often overlooked, yet they function as megalographs, inscribing and disseminating the values, history, and authority of the institution. The author contends that these visual elements play a crucial role in the formation of legal identity and the symbolic order of law schools.

Can Jury Trial Innovations Improve Juror Understanding Of Dna Evidence?, B. Michael Dann, Valerie P. Hans, David H. Kaye

Cornell Law Faculty Publications

A single spot of blood on a pink windowsill will tell investigators who broke a windowpane, turned a lock, and kidnapped 2-year-old Molly Evans from her bedroom in the middle of the night. An expert witness will testify that the DNA profile of the blood evidence recovered from the windowsill was entered into CODIS, an electronic database of DNA profiles. That process yielded a “hit,” identifying the defendant as the most likely source of the blood inside Molly’s room.

But will jurors be able to understand the expert’s intricate analysis and use it to reach a verdict? And what—if any—steps …

The Cognitive Psychology Of Circumstantial Evidence, Kevin Jon Heller

Michigan Law Review

Empirical research indicates that jurors routinely undervalue circumstantial evidence (DNA, fingerprints, and the like) and overvalue direct evidence (eyewitness identifications and confessions) when making verdict choices, even though false-conviction statistics indicate that the former is normally more probative and more reliable than the latter The traditional explanation of this paradox, based on the probability-threshold model of jury decision-making, is that jurors simply do not understand circumstantial evidence and thus routinely underestimate its effect on the objective probability of the defendant's guilt. That may be true in some situations, but it fails to account for what is known in cognitive psychology …

Criminal Law And Procedure, Marla G. Decker, Stephen R. Mccullough

University of Richmond Law Review

The authors have endeavored to select from the many appellate cases those that have the most significant precedential value. The article also outlines some of the most consequential changes enacted by the General Assembly in the areas of criminal law and procedure.

Daubert And The Disappearing Jury Trial, Allan Kanner

ExpressO

Since being decided by the Supreme Court in 1993, Daubert v. Merrell Dow Pharmaceuticals has earned its place as one of the most misinterpreted and misapplied decisions in modern history. Meant to liberalize the standards for admissions of proof, the decision has had the opposite effect. The gatekeeper powers given to judges via Daubert, coupled with the internal and external incentives to prevent jury trials, has placed our entire civil justice system at risk.

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Laplante V. Winkowitsch, 05-Ap-08 (Blkft. Tr. Ct. App., Oct. 10, 2006), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court considering a dispute over the pasturing of cattle longer than the original contract terms. While the original two-month contract was in writing, both parties agree that a verbal contract, with terms, covered the next two months. Cattle was lost and Defendant countersued for the loss of cattle. On Appeal, the Court determined that the lower court judge should have recused himself because he briefly represented the plaintiff in this matter before becoming judge. The Findings of fact were not supported by substantial credible evidence, and the pro se plaintiff, who did …

State Of Israel V. Beer-Sheba District Court, Dorit Beinisch, Ayala Procaccia, Edmond E. Levy, Aharon Barak, Eliezer Rivlin, Asher Grunis, Miriam Naor

Translated Opinions

Facts: In 1976 the Supreme Court held in Kinsey v. State of Israel that when two accomplices are prosecuted in separate trials, one (the ‘witness-accomplice’) should not be called to testify against the other (the ‘defendant’) until the witness-accomplice’s own trial has ended. This became known as the Kinsey rule. Thirty years later, the court is being requested to reconsider the Kinsey rule.

Held: The Kinsey rule, which was originally intended as a rule of proper practice, became over the years a binding rule from which the courts rarely departed. The court recognizes that the rule in its all-encompassing scope …

Panel Report: Beyond Article Iii Courts: Military Tribunals, Status Review Tribunals, And Immigration Courts, Robert M. Chesney

Cardozo Public Law, Policy & Ethics Journal

The article explores the tension between national security interests and procedural fairness in the use of secret evidence across non-Article III contexts, including military tribunals, Combatant Status Review Tribunals (CSRTs), and immigration courts. It examines the challenges of balancing government secrecy with individual rights, emphasizing the need for procedural safeguards to navigate this complex issue.

Keynote Address: Secret Evidence In The Age Of National Security, Adam Liptak

Cardozo Public Law, Policy & Ethics Journal

The article explores the tension between national security and the First Amendment, arguing that while the First Amendment remains a robust protection against government censorship, recent trends threaten press freedom, particularly in protecting confidential sources and accessing information. The author, drawing on personal experience as a media lawyer and reporter, emphasizes the importance of procedural safeguards and judicial oversight to prevent government overreach and ensure transparency.

Sword Or Shield? The Government's Selective Use Of Its Declassification Authority For Tactical Advantage In Criminal Prosecutions, Joshua L. Dratel

Cardozo Public Law, Policy & Ethics Journal

The article argues that the government's selective use of declassification authority under the Classified Information Procedures Act (CIPA) undermines the statute's intent to ensure fair trials. By declassifying inculpatory evidence while withholding exculpatory information, the government gains an unfair tactical advantage, particularly in terrorism cases where defendants often lack access to classified materials. The article advocates for reforms to CIPA, the Foreign Intelligence Surveillance Act (FISA), and Rule 16 of the Federal Rules of Criminal Procedure to restore balance and safeguard defendants' Fifth and Sixth Amendment rights.

"So I Says To "The Guy,' I Says...": The Constitutionality Of Neutral Pronoun Redaction In Multidefendant Criminal Trials, Bryan M. Shay

William & Mary Law Review

No abstract provided.

Privileged Evidence And State Security Under The Israeli Law: Are We Doomed To Fail?, Ami Kobo

Cardozo Public Law, Policy & Ethics Journal

The article examines Israel's legal framework for handling privileged evidence in criminal proceedings, particularly in cases involving state security or public interest. It argues that while Israeli law establishes a balancing test to weigh the need for disclosure against security interests, practical implementation often fails, risking miscarriages of justice. The analysis highlights systemic flaws through cases like Livny and Abu Saada, where the failure to disclose critical evidence led to wrongful convictions. The author suggests procedural reforms to enhance the adversarial process and mitigate these risks.

Panel Report: Secret Evidence In The Investigative Stage: Fisa, Administrative Subpoenas, And Privacy, Jameel Jaffer

Cardozo Public Law, Policy & Ethics Journal

The article examines the increasing reliance on foreign intelligence surveillance tools, such as the Foreign Intelligence Surveillance Act (FISA) and National Security Letters (NSLs), highlighting the tension between national security and civil liberties. It argues that the expansion of these tools under the Patriot Act has raised significant privacy concerns and questions about the adequacy of judicial and public oversight.

Panel Report: National Security Secrecy In The Courts: A Comparative Perspective From Israel And Ireland, Peter Raven-Hansen

Cardozo Public Law, Policy & Ethics Journal

The article examines how democratic nations, including Israel, Ireland, and the United States, balance national security secrecy with the rule of law in terrorism prosecutions. It highlights the challenges of using secret evidence in criminal trials while maintaining fair procedures, comparing the legal frameworks and practices of these countries. The analysis reveals common issues, such as the tension between protecting sensitive information and ensuring defendants' rights, and underscores the need for transparency and procedural integrity in terrorism cases.

The Slow Erosion Of The Adversary System: Article Iii Courts, Fisa, Cipa And Ethical Dilemmas, Ellen C. Yaroshefsky

Cardozo Public Law, Policy & Ethics Journal

The article examines the increasing reliance on secret evidence in U.S. legal proceedings, particularly in post-9/11 national security and terrorism cases, facilitated by the Classified Information Procedures Act (CIPA) and the Foreign Intelligence Surveillance Act (FISA). This trend undermines the adversarial system by denying defendants access to relevant information, raising ethical concerns for defense attorneys, and potentially eroding constitutional rights. The author advocates for reforms to balance national security with civil liberties, emphasizing the need for judicial vigilance and legislative changes to address these issues.

21st Century Pillow-Talk: Applicability Of The Marital Communications Privilege To Electronic Mail, Mikah K. Story

ExpressO

This article is the first to explore whether the marital communications privilege, which protects from disclosure private communications between spouses, should attach to communication sent via Web-based email. Traditionally, the privilege does not attach where a third party learns, either intentionally or inadvertently, the content of an otherwise private communication. In the world of Web-based email, disclosure to a third party is necessary in order for successful communication to occur. Writers of Web-based email draft a message and store it on a third-party Internet Service Provider’s (ISP) server until the recipient reads the message. Even after the email has been …

Conversational Standing: A New Approach To An Old Privacy Problem, Christopher M. Drake

ExpressO

American society has long considered certain conversations private amongst the participants in those conversations. In other words, when two or more people are conversing in a variety of settings and through a variety of media, there are times when all parties to the conversation can reasonably expect freedom from improper government intrusion, whether through direct participation or secret monitoring. This shared expectation of privacy has been slow to gain judicial recognition. Courts have indicated that the Fourth Amendment to the United States Constitution only protects certain elements of the conversation, such as where and how it takes place, but that …

Section 7525’S Last Gasps: The Tax Practitioner Privilege And The Selective Waiver Doctrine, Amandeep S. Grewal

ExpressO

Congress blundered badly by defining the Federally Authorized Tax Practitioner privilege by cross-reference to the attorney-client privilege. The relationship between a client and a FATP is wholly different from that between a client and an attorney, and the application of attorney-client principles to the FATP privilege has given rise to confused (and sometimes contradictory) judicial opinions.

This paper attempts to stem the confusion with respect to one aspect of the FATP privilege. The proper application of the selective waiver doctrine to the FATP privilege remains an open question, though courts seem poised to reject it. They have rejected it numerous …

Should Judges Do Independent Research On Scientific Issues?, Edward K. Cheng

Vanderbilt Law School Faculty Publications

Judges are deeply divided about the issue of independent research, which goes to the heart of their roles and responsibilities in the legal system. To many judges, doing independent research when confronted with new and unfamiliar material seems the most responsible and natural thing to do. To others, it represents the worst kind of overreaching and a threat to long-cherished adversarial values. But whether one supports the practice or not, one thing is clear. The issue of independent research deserves far greater attention than it has so far from jurists, academics, and practitioners alike.

Reassessing Damages In Securities Fraud Class Actions, Elizabeth C. Burch

ExpressO

No coherent doctrinal statement exists for calculating open-market damages for securities fraud class actions. Instead, courts have tried in vain to fashion common-law deceit and misrepresentation remedies to fit open-market fraud. The result is a relatively ineffective system with a hallmark feature: unpredictable damage awards. This poses a significant fraud deterrence problem from both a practical and a theoretical standpoint.

In 2005, the Supreme Court had the opportunity to clarify open-market damage principles and to facilitate earlier dismissal of cases without compensable economic losses. Instead, in Dura Pharmaceuticals v. Broudo, it further confused the damage issue by (1) perpetuating the …

Recordings, Transcripts, And Translations As Evidence, Clifford S. Fishman

Washington Law Review

Secretly recorded conversations often play a vital role in criminal trials. However, circumstances such as background noise, accidents, regional or national idioms, jargon, or code may make it difficult for a jury to hear or understand what was said—even if all participants were speaking English. Thus, a recording's value as evidence will often depend on whether an accurate transcript may be distributed to the jury. This Article discusses several legal issues, including: Who should prepare a transcript? What should it contain? How should its accuracy be determined, and by whom? Should the transcript be considered evidence, or only an "aid …

Learning The Wrong Lessons From "An American Tragedy": A Critique Of The Berger-Twerski Informed Choice Proposal, David E. Bernstein

Michigan Law Review

Margaret Berger and Aaron Twerski are among the leading scholars in their respective fields of Evidence and Products Liability. I have benefited from their work on many occasions. Precisely because of the deserved respect and esteem in which Berger and Twerski are held-not to mention the prominence of their forum, the Michigan Law Review-their proposal to create a new "informed choice" cause of action in pharmaceutical litigation is likely to receive sympathetic attention. Because I believe that their proposal is ill-conceived and dangerous, I feel compelled (with some trepidation) to write this response. Berger and Twerski propose that courts recognize …