Evidence Commons^™

Pharmaceutical Industry Funding To Patient-Advocacy Organization: A Cross-National Comparison Of Disclosure Codes And Regulation, Laura Karas, Robin Feldman, Bai Ge, So Yeon Kang, Gerard F. Anderson

Articles

Transparency has become one of the primary themes in health care reform efforts in the United States and across the world. In the face of exorbitant drug prices, high levels of patient cost-sharing, and pharmaceutical expenditures that consume a growing proportion of public sector budgets, much attention has been drawn to the pharmaceutical industry. Congressional investigations, academic publications, and news articles have endeavored to reveal the extent of drug and device industry influence on health care actors. In response, several nations, including the United States, have passed legislation mandating disclosure of drug company payments to physicians. In the United States, …

New Juvenile Discovery Rules: Mandatory, Comprehensive, And Streamlined., Joshua B. Kay

Articles

The recently promulgated amendments and additions to the civil discovery rules include several changes affecting child protection and juvenile delinquency proceedings.1 The updates should make discovery in juvenile court matters more efficient by clarifying what is discoverable and requiring more timely exchange of information.

Can You Hear Me Now: The Impacts Of Prosecutorial Call Monitoring On Defendants' Access To Justice, Hope L. Demer

South Carolina Law Review

No abstract provided.

Forensic Science Evidence And The Limits Of Cross-Examination, Gary Edmond, Emma Cunliffe, Kristy Martire, Mehera San Roque

All Faculty Publications

The ability to confront witnesses through cross-examination is conventionally understood as the most powerful means of testing evidence, and one of the most important features of the adversarial trial. Popularly feted, cross-examination was immortalised in John Henry Wigmore’s (1863–1943) famous dictum that it is ‘the greatest legal engine ever invented for the discovery of truth’. Through a detailed review of the cross-examination of a forensic scientist, in the first scientifically-informed challenge to latent fingerprint evidence in Australia, this article offers a more modest assessment of its value. Drawing upon mainstream scientific research and advice, and contrasting scientific knowledge with answers …

Maryland Makes New Evidence Postconviction Review Provisions Available To Defendants With Plea Deals, Felicia Langel

Maryland Law Review Online

No abstract provided.

Social Media, Venue And The Right To A Fair Trial, Leslie Y. Garfield Tenzer

Elisabeth Haub School of Law Faculty Publications

Judicial failure to recognize social media's influence on juror decision making has identifiable constitutional implications. The Sixth Amendment right to a fair trial demands that courts grant a defendant's change of venue motion when media-generated pretrial publicity invades the unbiased sensibility of those who are asked to sit in judgment. Courts limit publicity suitable for granting a defendant's motion to information culled from newspapers, radio, and television reports. Since about 2014, however, a handful of defendants have introduced social media posts to support their claims of unconstitutional bias in the community. Despite defendants' introduction of negative social media in support …

The Courtroom Turned Classroom: A Model Procedure For Educating The Gatekeepers Of Expert Evidence In Complex Toxic Tort Cases, Izabelle Tully

Cardozo Law Review

This Note maintains that in order for Rule 702 and the Daubert standard to have their intended effect, judges need more guidance and structure in how they approach scientific admissibility decisions. An analysis of how courts following Daubert currently address novel science, specifically in toxic tort cases where some members of the scientific community label causation evidence as junk science, supports this argument. This Note will focus on procedures courts have used to make gatekeeping decisions. From a study of these procedures, this Note will suggest a model framework that courts should employ to tackle novel science issues in mass …

Justice Begins Before Trial: How To Nudge Inaccurate Pretrial Rulings Using Behavioral Law And Economic Theory And Uniform Commercial Laws, Michael Gentithes

William & Mary Law Review

Injustice in criminal cases often takes root before trial begins. Overworked criminal judges must resolve difficult pretrial evidentiary issues that determine the charges the State will take to trial and the range of sentences the defendant will face. Wrong decisions on these issues often lead to wrongful convictions. As behavioral law and economic theory suggests, judges who are cognitively busy and receive little feedback on these topics from appellate courts rely upon intuition, rather than deliberative reasoning, to resolve these questions. This leads to inconsistent rulings, which prosecutors exploit to expand the scope of evidentiary exceptions that almost always disfavor …

Beyond The Witness: Bringing A Process Perspective To Modern Evidence Law, Edward K. Cheng, G. Alexander Nunn

Faculty Scholarship

The focal point of the modern trial is the witness. Witnesses are the source of observations, lay and expert opinions, authentication, as well as the conduit through which documentary, physical, and scientific evidence is introduced. Evidence law therefore unsurprisingly concentrates on – or perhaps obsesses over – witnesses. In this Article, we argue that this witness-centered perspective is antiquated and counterproductive. As a historical matter, focusing on witnesses may have made sense when most evidence was the product of individual observation and action. But the modern world frequently features evidence produced through standardized, objective, and even mechanical processes that largely …

Beyond The Witness: Bringing A Process Perspective, Edward K. Cheng, G. Alexander Nunn

Vanderbilt Law School Faculty Publications

For centuries, the foundation of the Anglo-American trial has been the witness.' Witnesses report on their personal observations, provide opinions of character, offer scientific explanations, and in the case of parties, narrate their own story. Indeed, even for documentary and other physical evidence, witnesses often provide the conduit through which such evidence reaches the factfinder. Documentary or physical evidence rarely stands on its own. The law of evidence has thus unsurprisingly focused on-or perhaps obsessed over-witnesses. The hearsay rule and the Confrontation Clause demand that declarants be available witnesses at trial so that they may be subject to cross-examination.' Expert …

No Means No: An Argument For The Expansion Of Rape Shield Laws To Cases Of Nonconsensual Pornography, Austin Vining

William & Mary Journal of Race, Gender, and Social Justice

This Article considers the impact of a hypothetical nonconsensual pornography victim’s previous sexual history on potential legal remedies, both criminal and civil. Due to jury bias and the difficulty in proving standard elements of many claims, the research shows that such a victim would likely be unsuccessful in court. This Article then turns to two legal concepts from related fields—the incremental harm doctrine and rape shield laws—and considers what effect their application would have on the hypothetical victim’s case. Ultimately, the author presents an argument for the logical expansion of rape shield laws to cases of nonconsensual pornography.

Non-Physician Vs. Physician: Cross-Disciplinary Expert Testimony In Medical Negligence Litigation, Marc D. Ginsberg

Georgia State University Law Review

The source of the applicable standard of care in a specific medical negligence claim is multifaceted. The testifying expert witness, when explaining the applicable standard of care, “would draw upon his own education and practical frame of reference as well as upon relevant medical thinking, as manifested by literature, educational resources and information available to practitioners, and experiences of similarly situated members of the profession.” Accordingly, in typical medical negligence litigation, the plaintiff’s expert witness testifying regarding the existence of and the defendant-physician’s deviation from the standard of care would be a physician. Why, then, have courts permitted non-physicians to …

Familial Searching: How Implementing Minimum Safeguards Ensures Constitutionally-Permissible Use Of This Powerful Investigative Tool, Alexandra Nieto

Cardozo Law Review

This Note supports the adoption of Familial DNA Search Policies. by states that have not yet taken a position on the issue. Part I of this Note provides background on the role of Familial Searches in criminal investigations. This includes a discussion on the nature of Familial Searches, why they are useful, and the current state of the law. Part I also considers the different guidelines and protections in existing Familial Search Policies, as well as states' policies regulating their DNA databases. Part II discusses the Fourth Amendment and equal protection concerns implicated by Familial Searches and how a court …

The Silliness Of Magical Realism, Kevin M. Clermont

Cornell Law Faculty Publications

Relative plausibility, even after countless explanatory articles, remains an underdeveloped model bereft of underlying theory. Multivalent logic, a fully developed and accepted system of logic, comes to the same endpoint as relative plausibility. Multivalent logic would thus provide the missing theory, while it would resolve all the old problems of using traditional probability theory to explain the standards of proof as well as the new problems raised by the relative plausibility model. For example, multivalent logic resolves the infamous ‘conjunction paradox’ that traditional probability creates for itself, and which relative plausibility tries to sweep under the rug.

Yet Professors Allen …

O’Neill, Oh O’Neill, Wherefore Art Thou O’Neill: Defining And Cementing The Requirements For Asserting Deliberative Process Privilege, Andrew Scott

Dickinson Law Review (2017-Present)

The government may invoke the deliberative process privilege to protect the communications of government officials involving policy-driven decision-making. The privilege protects communications made before policy makers act upon the policy decision to allow government officials to speak candidly when deciding a course of action without fear of their words being used against them.

This privilege is not absolute and courts recognize the legitimate countervailing interest the public has in transparency. The Supreme Court in United States v. Reynolds held that someone with control over the protected information should personally consider the privilege before asserting it but did not provide definitive …

Between Brady Discretion And Brady Misconduct, Bennett L. Gershman

Dickinson Law Review (2017-Present)

The Supreme Court’s decision in Brady v. Maryland presented prosecutors with new professional challenges. In Brady, the Supreme Court held that the prosecution must provide the defense with any evidence in its possession that could be exculpatory. If the prosecution fails to timely turn over evidence that materially undermines the defendant’s guilt, a reviewing court must grant the defendant a new trial. While determining whether evidence materially undermines a defendant’s guilt may seem like a simple assessment, the real-life application of such a determination can be complicated. The prosecution’s disclosure determination can be complicated under the Brady paradigm because …

The Challenge Of Convincing Ethical Prosecutors That Their Profession Has A Brady Problem, Adam M. Gershowitz

Faculty Publications

In recent decades, both the media and legal scholars have documented the widespread problem of prosecutors failing to disclose favorable evidence to the defense – so called Brady violations. Despite all of this documentation however, many ethical prosecutors reject the notion that the criminal justice system has a Brady problem. These prosecutors – ethical lawyers who themselves have not been accused of misconduct – believe that the scope of the Brady problem is exaggerated. Why do ethical prosecutors downplay the evidence that some of their colleagues have committed serious errors?

This essay, in honor of Professor Bennett Gershman, points to …

Re-Examining Custody And Incarceration Requirements In Postconviction Dna Testing Statutes, Ian J. Postman

Cardozo Law Review

Part I describes the history of custody and incarceration requirements in PC DNA testing statutes, as well as the interaction between those requirements and state sex offender registration acts. Part II analyzes a number of custody and incarceration requirements across various states. Part III proposes the elimination of custody requirements from PC DNA testing statutes and rebuts concerns about removing these requirements. Ultimately, this Note argues that custody and incarceration requirements specifically harm those who have been wrongly convicted of sex offenses, and the requirements' fundamental incongruity with the goals of PC DNA testing support their complete elimination from PC …

Policing The Admissibility Of Body Camera Evidence, Jeffrey Bellin, Shevarma Pemberton

Fordham Law Review

Body cameras are sweeping the nation and becoming, along with the badge and gun, standard issue for police officers. These cameras are intended to ensure accountability for abusive police officers. But, if history is any guide, the videos they produce will more commonly be used to prosecute civilians than to document abuse. Further, knowing that the footage will be available as evidence, police officers have an incentive to narrate body camera videos with descriptive oral statements that support a later prosecution. Captured on an official record that exclusively documents the police officer’s perspective, these statements—for example, “he just threw something …

Conference On Proposed Amendments: Experts, The Rules Of Completeness, And Sequestration Of Witnesses

Fordham Law Review

This conference was held on October 19, 2018, at University of Denver Sturm College of Law under the sponsorship of the Judicial Conference Advisory Committee on Evidence Rules. The transcript has been lightly edited. It represents the panelists’ individual views only and in no way reflects those of their affiliated firms, organizations, law schools, or the judiciary.

The Exclusionary Rule In The Age Of Blue Data, Andrew G. Ferguson

Vanderbilt Law Review

In Herring v. United States, Chief Justice John Roberts reframed the Supreme Court's understanding of the exclusionary rule: "As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." The open question remains: How can defendants demonstrate sufficient recurring or systemic negligence to warrant exclusion? The Supreme Court has never answered the question, although the absence of systemic or recurring problems has figured prominently in two recent exclusionary rule decisions. Without the ability to document recurring failures or patterns of police misconduct, courts can dismiss …

Policing The Admissibility Of Body Camera Evidence, Jeffrey Bellin, Shevarma Pemberton

Vanderbilt Law School Faculty Publications

Body cameras are sweeping the nation and becoming, along with the badge and gun, standard issue for police officers. These cameras are intended to ensure accountability for abusive police officers. But, if history is any guide, the videos they produce will more commonly be used to prosecute civilians than to document abuse. Further, knowing that the footage will be available as evidence, police officers have an incentive to narrate body camera videos with descriptive oral statements that support a later prosecution. Captured on an official record that exclusively documents the police officer's perspective, these statements-for example, "he just threw something …

Policing The Admissibility Of Body Camera Evidence, Jeffrey Bellin, Shevarma Pemberton

Faculty Publications

Body cameras are sweeping the nation and becoming, along with the badge and gun, standard issue for police officers. These cameras are intended to ensure accountability for abusive police officers. But, if history is any guide, the videos they produce will more commonly be used to prosecute civilians than to document abuse. Further, knowing that the footage will be available as evidence, police officers have an incentive to narrate body camera videos with descriptive oral statements that support a later prosecution. Captured on an official record that exclusively documents the police officer’s perspective, these statements—for example, “he just threw something …

Intrinsic Evidence: Do Utah Prosecutors Too Often Neglect This Avenue Of Admissibility?

Brigham Young University Journal of Public Law

No abstract provided.

Intrinsic Evidence: Do Utah Prosecutors Too Often Neglect This Avenue Of Admissibility?, Blake R. Hills

Brigham Young University Journal of Public Law

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Evidence Struggles: Legality, Legitimacy, And Social Mobilizations In The Catalan Political Conflict, Susana Narotzky

Indiana Journal of Global Legal Studies

Different kinds of evidence are put forward to make an argument and justify political action by agents situated in diverse social, cultural, and power positions. The Catalan political conflict is a case in point. The central Spanish government's arguments are mostly of a juridical nature and rest on the anti-constitutionality of the Catalan government and other civil society organizations' actions. Instead, most arguments of Catalan supporters of independence are based on historical interpretations of grievances referring to national institutions and identity. Supporters of independence, under the politically inspired actions of major civil society associations, have mobilized hundreds of thousands of …

Clarifying The Scope Of The Self-Incrimination Clause: City Of Hays V. Vogt, Samantha Ruben

Chicago-Kent Law Review

Three months after oral arguments, the Supreme Court dismissed the writ of certiorari in City of Hays v. Vogt as improvidently granted. The question in Vogt was whether the Fifth Amendment right against self-incrimination is violated when incriminating statements are used at a probable cause hearing, as opposed to a criminal trial. As a result of the “DIG,” the Court left a circuit split unresolved surrounding the meaning of a “criminal case” within the Fifth Amendment’s Self-Incrimination Clause.

This note argues that the Supreme Court should not have dismissed Vogt and should have decided that the Fifth Amendment right against …

Courts Increasingly Demand That Businesses Break The Law, Geoffrey Sant

Akron Law Review

United States courts are demanding that businesses break foreign laws at an exponentially increasing rate. A practice that was virtually unheard of only 30 years ago is now so widespread that U.S. courts are ordering foreign lawbreaking in the most trivial discovery matters. When a court receives a discovery request that violates a foreign law, it applies the 5-part Aérospatiale balancing test—a test where 4 of the 5 factors are left to the subjective decisions of the judge. By ordering foreign law breaking, our courts—often biased in favor of United States discovery rules—are encouraging abusive litigation tactics, undermining the rule …

Franks (Kenneth) V. State, 135 Nev. Adv. Op. 1 (Jan. 3, 2019), Scott Whitworth

Nevada Supreme Court Summaries

The Court reviewed whether a district court’s decision to allow the State to introduce prior incidents of uncharged sexual acts as evidence of the defendant’s propensity for committing sexual offenses violated NRS 48.045(3) and concluded such evidence as long as it is first evaluated for relevance and its heightened risk of unfair prejudice.