Evidence Commons^™

What Is True? Perspectives Of A Former Prosecutor, Steven M. Cohen

Cardozo Law Review

No abstract provided.

Expanding The Evidentiary Frame For Cooperating Witnesses, Daniel Richman

Cardozo Law Review

No abstract provided.

Treating Physicians As Expert Witnesses In Compensation Systems: The Public Health Connection, Brian C. Murchison

Scholarly Articles

Not available.

Respecting Pandora's Box, Erica Beecher-Monas

Law Faculty Research Publications

No abstract provided.

A Defendant's Right To Exculpatory Evidence: Does The Constitutional Duty To Disclose Exculpatory Evidence Extend To New Evidence Discovered Post-Conviction, Todd E. Jaworksy

St. Thomas Law Review

This note will first address Brady and the modifications made to the disclosure law by subsequent cases. Second, this note will explain the ethical obligations concerning a prosecutor's duty to disclose exculpatory evidence post-conviction as set out by the Model Rules of Professional Conduct. Third, this note will critically examine various case law in which the constitutional duty to disclose is seemingly extended to encompass post-conviction, newly discovered exculpatory evidence in the hands of the prosecutor. Finally, this note will conclude with an analysis and opinion of the disclosure law, discussing why the constitutional duty should be extended post-conviction.

Spoliation Of Evidence In West Virginia: Do Too Many Torts Spoliate The Broth, Sean R. Levine

West Virginia Law Review

No abstract provided.

Mitigation Evidence And Capital Cases In Washington: Proposals For Change, Mary Pat Treuthart, Anne Branstad, Matthew Kite

Seattle University Law Review

Part II of this article examines the United States Supreme Court's recognition of the importance of mitigation evidence in capital cases. Part III then focuses on the role of mitigation evidence in Washington's death penalty scheme. The following section, Part IV, addresses the public policy implications when mitigation evidence is not presented. Finally, Part V proposes changes to the current sentencing procedure in Washington involving capital crimes.

When Revoking Privilege Leads To Invoking Privilege: Whether There Is A Need To Recognize A Clearly Defined Medical Peer Review Privilege In Virmani V. Novant Health Inc., Teresa L. Salamon

Villanova Law Review (1956 - )

No abstract provided.

To Review Or Not To Review - That Is The Question: Interpreting New Evidence In Social Security Disability Claims In The Third Circuit, Kelly Huntley

Villanova Law Review (1956 - )

No abstract provided.

The Other Shoe Drops: Minnesota Rejects Daubert, Peter B. Knapp

Faculty Scholarship

In 1991, the United States Supreme Court handed decided Daubert v. Merrell Dow Pharmaceuticals, Inc., rejecting the long-standing federal test for the admissibility of scientific testimony articulated in Frye v. United States. Unlike many states, however, which embraced Daubert within years--or even months--of the federal decision, Minnesota declined to make Daubert the law of the jurisdiction. In a pair of cases decided in 2000, Goeb v. Tharaldson and Sentinel Mgmt. v. Aetna Casualty & Surety, the court held that Minnesota would retain the general acceptance test. The court's rejection of Daubert can be read as an attempt to give the …

The Butler Did It: A Critical Analysis Of The Excited Utterance Exception To The Hearsay Rule As Applied In The Third Circuit, Matthew D. Janssen

Villanova Law Review (1956 - )

No abstract provided.

No Link: The Jury And The Origins Of The Confrontation Right And The Hearsay Rule, Richard D. Friedman

Book Chapters

The rule against hearsay has long been one of the most distinctive elements of the common law of evidence, and indeed— except for recent changes on the civil side in many jurisdictions— of the common law system of trial. Observers have long believed that the rule, like most of the other exclusionary rules of the common law of evidence, is "the child of the jury system". Though Edmund Morgan argued vigorously to the contrary, the received understanding is that the jury's inability to account satisfactorily for the defects of hearsay explains the rule. A famous, and perhaps seminal, expression of …

Confessions, Search And Seizure, And The Rehnquist Court, Yale Kamisar

Book Chapters

About the time William Rehnquist ascended to the Chief Justiceship of the United States, two events occurred that increased the likelihood that Miranda would enjoy a long life.

In Moran v. Burbine, a six to three majority held that a confession preceded by an otherwise valid waiver of a suspect's Miranda rights should not be excluded either (1) because the police misled an inquiring attorney when they told her they were not going to question the suspect she called about or (2) because the police failed to inform the suspect of the attorney's efforts to reach him.

Although Burbine has …

Dangerous Patients: An Exception To The Federal Psychotherapist-Patient Privilege, Huston Combs

Kentucky Law Journal

No abstract provided.

Merging Technology With Justice: How Electronic Courtrooms Shape Evidentiary Concerns, Nicole J. De Sario

Cleveland State Law Review

This Note will explore the evidentiary issues raised by the Electronic Courtroom, state how they are presently handled, and highlight the need for the adaptation of the Rules to allow for the smooth integration of such technology into the courtroom. Part I explains why the Administrative Office of the U.S. Courts began funding Electronic Courtrooms and how they have grown in numbers. Part II gives details about the type of equipment typically employed in the Electronic Courtroom, using Courtroom 575 as a case study. The observable impacts of technology on a trial also will be noted. Part III contains an …

The Ethics Of Evidence, J. Alexander Tanford

Articles by Maurer Faculty

Professor J. Alexander Tanford offers a unique perspective on the ethics of evidence, illustrated by examples of his own personal experiences as well as excerpts from film and literature. This Article is a must read for any litigator as it addresses the issue of where the line is to be drawn regarding evidence in the courtroom.

Expert Testimony On Fingerprints: An Internet Exchange, Richard D. Friedman, David H. Kaye, Jennifer Mnookin, Dale Nance, Michael Saks

Articles

In United States v. Llera Plaza, 188 F. Supp. 2d 549 (E.D. Pa. 2002), a federal district initially limited expert opinion testimony on fingerprint identifications because the government was unable to show that such identifications were sufficiently valid and reliable under Federal Rule of Evidence 702. Then, the court withdrew the opinion. This article reproduces an exchange of notes on the initial opinion submitted by five law professors.

A Very Brief Primer On Bayesian Methods In Evidence, Richard D. Friedman

Articles

I have been asked to write an extremely short explanation of the Bayesian approach to evidentiary issues, for the benefit of those who regard themselves as probabilistically challenged. Although the application of Bayesian probability to evidence has generated a good deal of debate, its use as a heuristic device should not be particularly controversial. Evidence concerns propositions that are uncertain. Accordingly, some concept of probability must play a role. Standards of persuasion, such as "more likely than not" and "beyond a reasonable doubt" are clearly probabilistic, and the definition of relevant evidence, as expressed in Fed. R. Evid. 40 I, …

Expanding The Evidentiary Frame For Cooperating Witnesses, Daniel C. Richman

Faculty Scholarship

One telling feature of this conference as a whole has been the extent to which speakers have focused on the cooperation dynamic outside the courtroom. Prosecutors should take more pains to avoid suborning or even unconsciously encouraging perjury by the cooperator who is looking for a lower sentence. Courts and disciplinary authorities should ensure that such pains are taken.

What's interesting is how little attention has been given to changing what happens in front of the jury. Since our assignment has been to think "outside of the box" (which usually means proposing something interesting but really wrong or dangerous), I'd …

Child Witness Policy: Law Interfacing With Social Science, Louise E. Graham, Dorothy F. Marsil, Jean Montoya, David Ross

Law Faculty Scholarly Articles

The number of children testifying in court has posed serious practical and legal problems for the judicial system. One problem confronting the courts is how to protect children from experiencing the psychological trauma resulting from a face-to-face confrontation with a defendant who may have physically harmed the child or threatened future harm to the child. Another concern is that this trauma may impair children's memory performance and their willingness to disclose the truth. In response to these concerns, child witness innovations proliferated throughout the United States in the 1980s and 1990s. Among the innovations were: placing a screen between child …

Cross-Examining Expertise In The Wto Dispute Settlement Process, Christopher T. Timura

Michigan Journal of International Law

Part I of this Note surveys some of the recent contributions that social theorists and social scientists have made to our understanding of the role of experts in society, and also the structure of expert communities. Experts are everywhere in modern life, and individuals are with increasing frequency asked to extend their trust to experts and bodies of knowledge that they have little or no opportunity to question. Part II highlights how the WTO Agreement deals with experts, using recent WTO panel reports to illustrate the ways in which the DSB has operationalized its various provisions. Part III suggests two …

Toward The Formation Of "Innocence Commissions" In America, Barry C. Scheck, Peter J. Neufeld

Articles

The article advocates for the establishment of "innocence commissions" to investigate and address wrongful convictions in the U.S. criminal justice system. Drawing parallels to the National Transportation Safety Board (NTSB), which investigates transportation accidents, the authors propose that these commissions would identify systemic defects leading to wrongful convictions and recommend reforms to prevent future miscarriages of justice. They emphasize the need for independence, subpoena power, and public accountability to ensure the commissions' effectiveness.

Dial-In Testimony, Richard D. Friedman, Bridget Mary Mccormack

Articles

For several hundred years, one of the great glories of the common law system of criminal justice has been the requirement that prosecution witnesses give their testimony in the presence of the accused" face to face," in the time-honored phrase-under oath, subject to cross-examination, and, unless unfeasible, in open court. In the United States, this principle is enshrined in the Confrontation Clause of the Sixth Amendment, which provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." But now a new way is developing for witnesses for the prosecution …

The Conundrum Of Children, Confrontation, And Hearsay, Richard D. Friedman

Articles

The adjudication of child abuse claims poses an excruciatingly difficult conundrum. The crime is a terrible one, but false convictions are abhorrent. Often the evidence does not support a finding of guilt or innocence with sufficient clarity to allow a decision free of gnawing doubt. In many cases, a large part of the problem is that the prosecution's case depends critically on the statement or testimony of a young child. Even with respect to adult witnesses, the law of hearsay and confrontation is very perplexing, as anyone who has studied American evidentiary law and read Supreme Court opinions on the …

Proposed Amendments To Fed. R. Crim. P. 26: An Exchange: Remote Testimony, Richard D. Friedman

Articles

Recently, the Supreme Court declined to pass on to Congress a proposed change to Federal Rule of Criminal Procedure 26 submitted to it by the Judicial Conference. In this Article, Professor Friedman addresses this proposal, which would allow for more extensive use of remote, video-based testimony at criminal trials. He agrees with the majority of the Court that the proposal raised serious problems under the Confrontation Clause. He also argues that a revised proposal, in addition to better protecting the confrontation rights of defendants, should include more definite quality standards, abandon its reliance on the definition of unavailability found in …

Narrative Relevance, Imagined Juries, And A Supreme Court Inspired Agenda For Jury Research, Richard O. Lempert

Articles

This paper has its roots in Old Chief v. United States, a case the Supreme Court of the United States decided in 1997. I will begin by describing this case; then comment on its implications for the Supreme Court’s conception of the jury, and conclude by examining the agenda one may draw from it for empirical jury research. Old Chief arose when Johnny Lynn Old Chief was charged not only with assault with a dangerous weapon and using a firearm in the commission of a crime of violence, but also with violating a law that forbids convicted felons from possessing …

Dealing With Complex Evidence Of Domestic Violence: A Primer For The Civil Bench, Jane C. Murphy, Jane H. Aiken

All Faculty Scholarship

New laws and policies aimed at protecting victims of domestic violence have been adopted across the country throughout the last twenty years. The legal approaches taken to protect battered women and control family violence have brought about significant changes in family law. New laws include statutes permitting civil protection or restraining orders, and laws requiring that domestic violence be considered in custody and visitation decisions. Both of these types of statutory reforms can provide protection to adult victims of domestic violence and their children. Evaluating a parent’s fitness by considering past acts of violence to other family members results in …

Teaching Evidence, Proof, And Facts: Providing A Background In Factual Analysis And Case Evaluation, Peter W. Murphy

Journal of Legal Education

No abstract provided.

The Economic Analysis Of Evidence Law: Common Sense On Stilts, Richard O. Lempert

Articles

There was a time when the empire of Law was not overrun by economists. The economists had their own fiefdoms to be sure-there was the Duchy of Antitrust and the Kingdom of Regulatory Law-but the economists lived in peace within these borders, welcoming many unlike themselves into their midst, only gently proselytizing their students in the first few classes of a term, and swearing fealty to the law. It is true that a few marauders from beyond the borders saw the wealth of the empire and sought to colonize it, but even the most daring, Archbishop Coase and Duke Gary …

"Counselor, Proceed With Caution": The Use Of Integrated Evidence Presentation Systems And Computer-Generated Evidence In The Courtroom, Elan E. Weinreb

Cardozo Law Review

No abstract provided.