Evidence Commons^™

Exile Without Process: The New York City Housing Authority's Unconstitutional Trespass Notice Program, Lauren J. Zimmerman

Cardozo Law Review

No abstract provided.

Federal Discovery Stays, Gideon Mark

University of Michigan Journal of Law Reform

In federal civil litigation, unless a discretionary stay is granted, discovery often proceeds while motions to dismiss are pending. Plaintiffs with non-meritorious cases can compel defendants to spend massively on electronic discovery before courts ever rule on such motions. Defendants who are unable or unwilling to incur the huge up-front expense of electronic discovery may be forced to settle non-meritorious claims. To address multiple electronic discovery issues, Congress amended the Federal Rules of Civil Procedure in 2006 and the Federal Rules of Evidence in 2008. However, the amendments failed to significantly reduce costs and failed to address the critical issue …

Latent Print Examination And Human Factors: Improving The Practice Through A Systems Approach: The Report Of The Expert Working Group On Human Factors In Latent Print Analysis, David H. Kaye, Thomas Busey, Melissa R. Gische, Gerry Laporte, Scott A. Shappell, Et Al.

Publications

Fingerprints have provided a valuable method of personal identification in forensic science and criminal investigations for more than 100 years. Fingerprints left at crime scenes generally are latent prints—unintentional reproductions of the arrangement of ridges on the skin made by the transfer of materials (such as amino acids, proteins, polypeptides, and salts) to a surface. Palms and the soles of feet also have friction ridge skin that can leave latent prints. The examination of a latent print consists of a series of steps involving a comparison of the latent print to a known (or exemplar) print. Courts have accepted latent …

Lawyers Judging Experts: Oversimplifying Science And Undervaluing Advocacy To Construct An Ethical Duty?, David S. Caudill

Pepperdine Law Review

My focus is on an apparent trend at the intersection of the fields of evidentiary standards for expert admissibility and professional responsibility, namely the eagerness to place more ethical responsibilities on lawyers to vet their proffered expertise to ensure its reliability. My reservations about this trend are not only based on its troubling implications for the lawyer’s duty as a zealous advocate, which already has obvious limitations (because of lawyers’ conflicting duties to the court), but are also based on the problematic aspects of many reliability determinations. To expect attorneys - and this is what the proponents of a duty …

Predators And Propensity: The Proper Approach For Determining The Admissibility Of Prior Bad Acts Evidence In Child Sexual Abuse Prosecutions, Basyle Tchividjian

Faculty Publications and Presentations

PREDATORS AND PROPENSITY: THE PROPER APPROACH FOR DETERMINING THE ADMISSIBILITY OF PRIOR BAD ACTS EVIDENCE IN CHILD SEXUAL ABUSE PROSECUTIONS

Basyle J. Tchividjian†

Abstract

The admissibility of prior bad act evidence in child sexual abuse prosecutions oftentimes makes the difference between a guilty and not guilty verdict. Recently, jurisdictions have growingly embraced the admission of such evidence for the purpose of establishing the defendant’s propensity to sexually victimize children. Due to the potentially high prejudicial effect of admitting propensity evidence, it is more critical than ever that courts carefully apply the decisive evidentiary gatekeeper, the probative value balancing test …

Persuasive Visions: Film And Memory, Jessica Silbey

Faculty Scholarship

This commentary takes a new look at law and film studies through the lens of film as memory. Instead of describing film as evidence and foreordaining its role in truth-seeking processes, it thinks instead of film as individual, institutional and cultural memory, placing it squarely within the realm of contestability. Paralleling film genres, the commentary imagines four forms of memory that film could embody: memorabilia (cinéma vérité), memoirs (autobiographical and biographical film), ceremonial memorials (narrative film monuments of a life, person or institution), and mythic memory (dramatic fictional film). Imagining film as memory resituates film’s role in law (procedural, substantive …

Do Bad Things Happen When Works Enter The Public Domain?: Empirical Tests Of Copyright Term Extension (With P. Heald), Christopher J. Buccafusco

All Faculty Scholarship

The international debate over copyright term extension for existing works turns on the validity of three empirical assertions about what happens to works when they fall into the public domain. Our study of the market for audio books and a related human subjects experiment suggest that all three assertions are suspect. We demonstrate that audio books made from public domain bestsellers (1913-22) are significantly more available than those made from copyrighted bestsellers (1923-32). We also demonstrate that recordings of public domain and copyrighted books are of equal quality. While a low quality recording seems to lower a listener's valuation of …

Making Sense Of Intellectual Property Law, Christopher J. Buccafusco

All Faculty Scholarship

Intellectual property (IP) scholars have long struggled to explain the boundaries of and differences between copyright and patent law. This Article proposes a novel explanation: copyright and patent can be fruitfully understood as establishing a dichotomy between the different human senses. Copyright has bracketed works addressed to the senses of sight and hearing, and it treats products appealing to touch, taste, and smell as functional and, thus, uncopyrightable. To the extent the latter receive IP protection, it is through the utility patent regime. The Article begins by establishing this descriptive proposition, and it shows how some of the most contested …

Valuing Attribution And Publication In Intellectual Property (With C. Sprigman And Z. Burns), Christopher J. Buccafusco

All Faculty Scholarship

This is the third in a series of articles focusing on the experimental economics of intellectual property. In earlier work, we have experimentally studied the ways in which creators assign monetary value to the things that they create. That research has suggested that creators are subject to a systematic bias that leads them to overvalue their work. This bias, which we have called the 'creativity effect,' potentially results in inefficient markets in IP, because creators may be unwilling to license their works for rational amounts.

Our prior research, however, like American IP law itself, focused exclusively on the monetary value …

Well-Being Analysis Vs. Cost-Benefit Analysis (With J. Bronsteen & J. Masur) (Symposium), Christopher J. Buccafusco

All Faculty Scholarship

Cost-benefit analysis is the primary tool used by policymakers to inform administrative decisionmaking. Yet its methodology of converting preferences (often hypothetical ones) into dollar figures, then using those dollar figures as proxies for quality of life, creates systemic errors so large as to deprive the tool of value. These problems have been lamented by many scholars, and recent calls have gone out from world leaders and prominent economists to find an alternative analytical device that would measure quality of life more directly. This Article proposes well-being analysis (WBA) as that alternative. Relying on data from the field of hedonic psychology …

Blaming As A Social Process: The Influence Of Character And Moral Emotion On Blame, Janice Nadler

Faculty Working Papers

For the most part, the law eschews the role of moral character in legal blame. But when we observe an actor who causes harm, legal and psychological blame processes are in tension. Procedures for legal blame assume an assessment of the actor's mental state, and ultimately of responsibility, that is independent of the moral character of the actor. In this paper, I present experimental evidence to suggest that perceptions of intent, foreseeability, and possibly causation can be colored by independent reasons for thinking the actor is a bad person, and are mediated by the experience of negative moral emotion. Our …

The Disparate Treatment Of Neuroscience Expert Testimony In Criminal Litigation, Jamie Wagenheim

The Appendix, Journal of Health Care Law & Policy

No abstract provided.

Forensic Collection Of Electronic Evidence From Infrastructure-As-A-Service Cloud Computing, Josiah Dykstra, Damien Riehl

Richmond Journal of Law & Technology

As cloud computing becomes ubiquitous, the criminal targeting and criminal use of cloud computing is inevitable and imminent. Similarly, the need for civil forensic analyses of cloud computing has become more prevalent. Forensic investigation of cloud computing matters first requires an understanding of the technology and issues associated with the collection of electronically stored information (“ESI”) in the cloud. The misuse of the broad term “cloud computing” has caused some confusion and misinformation among legal and technology scholars, leading to a muddied and incomplete analysis of cloud-based discovery issues. Cases and academic analyses have dealt primarily with popular online services …

The Promise Of A Cooperative And Proportional Discovery Process In North Carolina: House Bill 380 And The New State Electronic Discovery Rules, Brian C. Vick, Neil C. Magnuson

Campbell Law Review

Using the experience of the federal courts under the 2006 Amendments as a guide, this Article examines H.B. 380 and the effect it will have on the discovery process in the state courts. Part I of this Article describes the litigation challenges created by the proliferation of ESI. Part II describes the history, structure and substance of the 2006 Amendments, and discusses their impact in the areas of cooperation and the use of proportionality principles in the federal courts. Part III describes the substance and structure of the rules changes encompassed by H.B. 380, and analyzes the effect that they …

The Virginia Rules Of Evidence, Ronald J. Bacigal

Richmond Journal of Law and the Public Interest

Despite the Supreme Court's rejection of the proposed Code of Evidence, the Boyd-Graves Conference continued its efforts to create such a code. In 1997, the Boyd-Graves Conference published "A Guide to Evidence in Virginia." Unlike the previously proposed rules of evidence, this guide merely stated the current Virginia law on evidence, and did not recommend adoption of any changes to existing law. The Guide's approach of disdaining any proposed changes,"while creating "a single, organized body of principles for the convenience of judges and practitioners alike," ultimately overcame objections from most of those who had opposed an evidence code. The Guide …

Taking Confrontation Seriously Does Crawford Mean That Confessions Must Be Crossexamined, Mark A. Summers

Faculty Scholarship

No abstract provided.

Session One: Using Forensic Medical Evidence In Court, Juan E. Mendez

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Reliable Science: Overcoming Public Doubts In The Climate Change Debate, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

This article will consider the case for instituting a domestic agency that would evaluate the findings from Intergovernmental Panel on Climate Change (IPCC) assessments to improve the credibility and legitimacy of those claims and conclusions for multiple purposes. The proposed agency would consider the robustness of an assessment's conclusions by construing the evidence through the lens of Daubert rather than Frye. Part I will outline the public debate about climate science-what the debate is about and why it exists. Part II will examine the current role of the IPCC-what it is and why it has not been successful in legitimating …

Brief Of Amici Curiae, Neil Vidmar Et Al., Connecticut V. Guilbert, Neil Vidmar, Theresa A. Newman

Faculty Scholarship

No abstract provided.

Twenty-First Century Fingerprints: The Third Circuit's Approval Of Dna Collection Upon Arrest In United States V. Mitchell, Megan Pownall

Villanova Law Review (1956 - )

No abstract provided.