Evidence Commons^™

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 ...

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 ...

Younger And Older Adults' Lie-Detection And Credibility Judgments Of Children's Coached Reports, Alison M. O'Connor, Thomas D. Lyon, Angela Evans

University of Southern California Legal Studies Working Paper Series

Previous research has examined young and middle-aged adults’ perceptions of child witnesses; however, no research to date has examined how potential older adult jurors may perceive a child witness. The present investigation examined younger (18-30 years, N = 100) and older adults’ (66-89 years, N = 100) lie-detection and credibility judgments when viewing children’s truthful and dishonest reports. Participants viewed eight child interview videos where children (9 to 11 years of age) either provided a truthful report or a coached fabricated report to conceal a transgression. Participants provided lie-detection judgments following all eight videos and credibility assessments following the first two ...

66. Younger And Older Adults’ Lie-Detection And Credibility Judgments Of Children’S Coached Reports, Alison M. O'Connor, Thomas D. Lyon, Angela D. Evans

Thomas D. Lyon

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.

Maltreated Children's Ability To Make Temporal Judgments Using A Recurring Landmark Event, Kelly Mcwilliams, Thomas D. Lyon, J A. Quas

University of Southern California Legal Studies Working Paper Series

This study examined whether maltreated children are capable of judging the location and order of significant events with respect to a recurring landmark event. 167 6- to 10-year-old maltreated children were asked whether the current day, their last court visit, and their last change in placement were “near” their birthday and “before or after” their birthday. Children showed some understanding that the target event was “near” and “before” their birthday when their birthday was less than three months hence, but were relatively insensitive to preceding birthdays. Hence, children exhibited a prospective bias, preferentially answering with reference to a forthcoming birthday ...

Evidence Without Rules, Bennett Capers

Notre Dame Law Review

Much of what we tell ourselves about the Rules of Evidence—that they serve as an all-seeing gatekeeper, checking evidence for relevance and trustworthiness, screening it for unfair prejudice—is simply wrong. In courtrooms every day, fact finders rely on “evidence”—for example, a style of dress, the presence of family members in the gallery, and of course race—that rarely passes as evidence in the formal sense, and thus breezes past evidentiary gatekeepers unseen and unchecked. This Article calls much needed attention to this other evidence and demonstrates that such unregulated evidence matters. Jurors use this other evidence to ...

Psychosocial Analysis Of An Ethnography At The Cuyahoga County Public Defenders Office, Ernest M. Oleksy

The Downtown Review

Too often, social science majors become jaded with their field of study due to a misperception of the nature of many potential jobs which they are qualified for. Such discord is prevalent amongst undergraduates who strive for work in the criminal justice system. Hollywood misrepresentations become the archetypes of the aforementioned field, leaving out the necessity and ubiquity of accompanying desk work. Still other social science majors struggle to identify theoretical interpretations in praxis.

Judicializing History: Mass Crimes Trials And The Historian As Expert Witness In West Germany, Cambodia, And Bangladesh, Rebecca Gidley, Mathew Turner

Genocide Studies and Prevention: An International Journal

Henry Rousso warned that the engagement of historians as expert witnesses in trials, particularly highly politicized proceedings of mass crimes, risks a judicialization of history. This article tests Rousso’s argument through analysis of three quite different case studies: the Frankfurt Auschwitz trial; the Extraordinary Chambers in the Courts of Cambodia; and the International Crimes Tribunal in Bangladesh. It argues that Rousso’s objections misrepresent the Frankfurt Auschwitz trial, while failing to account for the engagement of historical expertise in mass atrocity trials beyond Europe. Paradoxically, Rousso’s criticisms are less suited to the European context that represents his purview ...

Where Are The Gatekeepers? Challenging Utah’S Threshold Standard For Admissibility Of Expert Witness Testimony, Samuel D. Hatch

Utah Law Review

Utah’s Rule 702 on the admissibility of expert witness testimony is far too low. Utah trial courts cannot to fulfill their role as gatekeepers because the threshold standard forces them to admit almost everything without ensuring reliability. Accordingly, Utah evidence law will benefit from amending Rule 702 whether it reverts to the federal rule or elects the Minnesota approach. Either is preferred to the almost nonexistent standard currently in place, which has drifted far from the “inherent[ly] reliab[le]” tradition and is no longer “the touchstone of admissibility” in Utah. The State should amend Rule of Evidence 702 ...

Sb 127 - Criminal Procedure, Adriana C. Heffley, Allison S. Kim

Georgia State University Law Review

The Act introduces procedure by which victims who were not provided notice criminal proceedings, after requesting notice, may file a motion to be acknowledged by the court. This Act is meant to create a means by which a victim’s rights, as introduced by the constitutional amendment in SR 146, may be raised or enforced.

A Game Of Katso And Mouse: Current Theories For Getting Forensic Analysis Evidence Past The Confrontation Clause, Ronald J. Coleman, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The Sixth Amendment’s Confrontation Clause ensures that an “accused” in a “criminal prosecution[]” has the right “to be confronted with the witnesses against him [.]” Although perhaps a simple concept, defining the scope of confrontation rights has proved extremely difficult. The law has had particular difficulty scoping confrontation rights in forensic analysis cases, such as those where the prosecution seeks to utilize a laboratory report of DNA, blood alcohol content, narcotics, or other “CSI” type analysis. In this connection, Justice Gorsuch recently authored an opinion dissenting from denial of certiorari in Stuart v. Alabama, in which he recognized the “decisive ...

Neither Limited Nor Simplified: A Proposal For Reform Of Illinois Supreme Court Rule 222(B), Michael S. Smith

Michigan Law Review

A limited and simplified discovery system should broaden access to courts, resolve disputes quickly, and expedite relief to injured parties. It should not incentivize procedural gamesmanship or increase the system’s complexity. Regrettably, Illinois’s “limited and simplified” discovery system does both. The initiation procedure for the simplified system, Rule 222(b), creates procedural traps and perverse incentives for both plaintiffs and defendants, and conflicting appellate interpretations of the Rule intensify the problem. This Note examines the flaws underlying the current simplified discovery scheme and argues for reform. It examines simplified discovery schemes in other states to recommend a new ...

Assessing The Viability Of Implicit Bias Evidence In Discrimination Cases: An Analysis Of The Most Significant Federal Cases, Anthony Kakoyannis

Florida Law Review

The theory of implicit bias occupies a rapidly growing field of scientific research and legal scholarship. With the advent of tools measuring individuals’ subconscious biases toward people of other races, genders, ages, national origins, religions, and sexual orientations, scholars have rushed to explore the ways in which these biases might affect decision-making and produce broad societal consequences.

The question that remains unanswered for scholars, attorneys, and judges is whether evidence of implicit bias and its effects can or should be used in legal proceedings. Although the study of implicit bias dates back several decades, only recently have judicial opinions begun ...

Revenge Porn, Thomas Lonardo, Tricia P. Martland, Rhode Island Bar Journal

Life of the Law School (1993- )

No abstract provided.

Adults' Perceptions Of Children's Referentially Ambiguous Responses, Breanne E. Wylie, Thomas D. Lyon, Alison M. O'Connor, Christina Lapytskaia, Angela Evans

University of Southern California Legal Studies Working Paper Series

The present study examined adults’ (N = 295) interpretations of child witnesses’ referentially ambiguous “yes” and “no” responses to “Do You Know/Remember (DYK/R) if/whether” questions (e.g., “Do you know if it was blue?”). Participants were presented with transcripts from child sexual abuse cases modified based on question format (DYK/R vs. Direct) and child response type (Yes, No, I don’t know) in a between subjects design. We assessed whether adults recognized that children’s ambiguous responses were unclear, and if not, how they were interpreting children’s responses compared to the control (Direct) conditions. More specifically ...

65. Adults’ Perceptions Of Children’S Referentially Ambiguous Responses., Breanne E. Wylie, Thomas D. Lyon, Alison M. O’Connor, Christina Lapytskaia, Angela D. Evans

Thomas D. Lyon

Effects Of The Putative Confession Instruction On Perceptions Of Children's True And False Statements, Jennifer Gongola, Nicholas Scurich, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

The putative confession instruction (“[suspect] told me everything that happened and wants you to tell the truth”) during forensic interviews with children has been shown to increase the accuracy of children’s statements, but it is unclear whether adult’s perceptions are sensitive to this salutary effect. The present study examined how adults perceive children’s true and false responses to the putative confession (PC) instruction. Participants (n = 299) watched videotaped interviews of children and rated the child’s credibility and the truthfulness of his/her statements. When viewing children’s responses to the PC instruction, true and false statements ...

64. Effects Of The Putative Confession Instruction On Perceptions Of Children’S True And False Statements, Jennifer Gongola, Nicholas Scurich, Thomas D. Lyon

Thomas D. Lyon

2018 Changes To The Evidence Act And Criminal Procedure Code - The Criminal Justice Reform Bill And Evidence (Amendment) Bill, Siyuan Chen, Eunice Chua

Research Collection School Of Law

Various portions of the Evidence Act and Criminal Procedure Code were amended in 2018 vide the Criminal Justice Reform Bill and Evidence (Amendment) Bill; this was a continuation of a series of gradual but important changes to the criminal justice system that had begun in 2010 when the old Criminal Procedure Code was replaced. This legislation comment outlines and briefly analyses some of the most substantive changes brought about by the 2018 amendments: the video-recording of interviews in criminal proceedings; the introduction of a psychiatrist panel to regulate the reception of evidence from expert psychiatric witnesses in criminal proceedings; and ...