Evidence Commons^™

Manson And Its Progeny: An Empirical Analysis Of American Eyewitness Law, Nicholas A. Kahn-Fogel

Faculty Scholarly Works

Since the Supreme Court established the current constitutional framework for determining the admissibility of eyewitness identification evidence in Manson v. Brathwaite in 1977, scientists and scholars who have evaluated the opinion have uniformly criticized it as insufficient to deter police from using flawed identification procedures and inconsistent with scientific evidence of the best ways to assess the reliability of evidence tainted by such procedures. Until now, however, the work of these scientists and scholars has been based primarily on simulation experiments and on a selective assortment of easily criticized judicial decisions applying Manson. This study provides the first systematic analysis …

Clearly Erroneous: The Court Of Appeals Of Maryland’S Misguided Shift To A Higher Standard For Post-Conviction Dna Relief, Christine E. White

Maryland Law Review

No abstract provided.

False Convictions, Phoebe C. Ellsworth, Samuel R. Gross

Book Chapters

False convictions have received a lot of attention in recent years. Two-hundred and forty-one prisoners have been released after DNA testing has proved their innocence, and hundreds of others have been released without DNA evidence. We now know quite a bit more about false convictions than we did thirty years ago - but there is much more that we do not know, and may never know.

Confrontation, Experts, And Rule 703, Paul C. Giannelli

Faculty Publications

The United States Supreme Court has decided several cases concerning expert testimony and the Confrontation Clause. This essay argues that confrontation issues are complicated by Federal Evidence Rules 73 and 75, which changed the common law rules. Altering the common law made sense in civil cases because civil rules of procedure provide extensive discovery, which ensures basic fairness. In contrast, discovery in criminal cases is quite limited, which undercuts an accused’s ability to meaningfully confront prosecution experts at trial.

The 2009 Nas Forensic Science Report: A Literature Review, Paul C. Giannelli

Faculty Publications

In February 29, the National Academy of Sciences (NAS) released its report on forensic science: Strengthening Forensic Science in the United States: A Path Forward (29). The popular press immediately trumpeted the report’s release, with headlines such as (1) “Report Urges Overhaul of Crime Lab System,” (2) “Real-life Police Forensics Don’t Resemble ‘CSI’: Reliability is ‘Low or Non-existent,’ Report Finds” and (3) “Science Found Wanting in Nation’s Crime Labs.”

Within three months of its publication, Justice Scalia cited the report in a Supreme Court decision, writing: “Forensic evidence is not uniquely immune from the risk of manipulation. . . Serious …

Location, Location, Location: A "Private" Place And Other Ailments Of Georgia Surveillance Law Curable Through Alignment With The Federal System, Mary B. Martinez

Georgia Law Review

Georgia visual surveillance law prohibits any person
from observing, photographing, or recording any other
person in a private place and out of public view without
the consent of all persons observed. The rigidity of this
all-party consent requirement and the ambiguity of the
private/public place distinction leave investigators and
prosecutors in Georgia guessing as to the admissibility of
visually recorded evidence much of the time. On the other
hand, federal visual surveillance law encompasses a one-
party consent exception and is couched in terms of a
reasonable expectation of privacy under the Fourth

Amendment. Moreover, several federal courts have stated …

Party's Over: Admissibility Of Post-Trial Juror Testimony Should Depend On The Nature Of The Conduct, Justin Gillett

University of Michigan Journal of Law Reform Caveat

What do you call a weeklong period in which you and a handful of acquaintances drink alcohol every day at lunch, sleep though the afternoons, smoke marijuana and ingest a couple lines of cocaine on occasion? You call it the time when a jury convicted Anthony Tanner and William Conover of conspiracy to defraud the United States and commit various acts of mail fraud. Under a current rule of evidence, which precludes juror testimony to impeach a verdict except on extraneous prejudicial information, juror intoxication is not an external influence about which jurors may testify. A new test for the …

Ending Silence: Youth Speaking Up About Sexual Abuse In Custody - Mary’S Friend, Brenda V. Smith, Stephanie A. Kinard, Jaime M. Yarussi, Michael J. Auger

Research Reports & White Papers

focusing on female youth age 10-13

Ending Silence: Youth Speaking Up About Sexual Abuse In Custody - Sheila’S Dilemma, Brenda V. Smith, Stephanie A. Kinard, Jaime M. Yarussi, Michael J. Auger

Research Reports & White Papers

focusing on female youth age 14-18

Ending Silence: Youth Speaking Up About Sexual Abuse In Custody - Carol’S Question, Brenda V. Smith, Stephanie A. Kinard, Jaime M. Yarussi, Michael J. Auger

Research Reports & White Papers

focusing on sexual minority youth

Check In On Your Privacy, Frank Gonello

Student Works

No abstract provided.

Manson And Its Progeny: An Empirical Analysis Of American Eyewitness Law, Nicholas A. Kahn-Fogel

Law Faculty Scholarship

Since the Supreme Court established the current constitutional framework for determining the admissibility of eyewitness identification evidence in Manson v. Brathwaite in 1977, scientists and scholars who have evaluated the opinion have uniformly criticized it as insufficient to deter police from using flawed identification procedures and inconsistent with scientific evidence of the best ways to assess the reliability of evidence tainted by such procedures. Until now, however, the work of these scientists and scholars has been based primarily on simulation experiments and on a selective assortment of easily criticized judicial decisions applying Manson. This study provides the first systematic analysis …

Georgia's New Evidence Code - An Overview, Paul S. Milich

Faculty Publications By Year

No abstract provided.

The “Ensuing Loss” Clause In Insurance Policies: The Forgotten And Misunderstood Antidote To Anti-Concurrent Causation Exclusions, Chris French

Faculty Scholarship

As a result of the 1906 earthquake and fire in San Francisco which destroyed the city, a clause known as the “ensuing loss” clause was created to address concurrent causation situations in which a loss follows both a covered peril and an excluded peril. Ensuing loss clauses appear in the exclusions section of such policies and in essence they provide that coverage for a loss caused by an excluded peril is nonetheless covered if the loss “ensues” from a covered peril. Today, ensuing loss clauses are found in “all risk” property and homeowners policies, which cover all losses except for …

The International Court Of Justice's Treatment Of Circumstantial Evidence And Adverse Inferences, Michael P. Scharf, Marqaux Day

Faculty Publications

This Article examines a vexing evidentiary question with which the International Court of Justice has struggled in several cases, namely: What should the Court do when one of the parties has exclusive access to critical evidence and refuses to produce it for security or other reasons? In its first case, Corfu Channel, the Court decided to apply liberal inferences of fact against the non-producing party, but in the more recent Crime of Genocide case, the Court declined to do so under seemingly similar circumstances. By carefully examining the treatment of evidence exclusively accessible by one party in these and other …

Ghost In The Machine: Zubulake Revisited And Other Emerging E-Discovery Issues Under The Amended Federal Rules, William P. Barnette

Richmond Journal of Law & Technology

We live in a digital age. Electronically stored information (“ESI”) “is commonplace in our personal lives and in the operation of businesses, public entities, and private organizations.” By now the numbers no longer shock: “more than 90% of all corporate information is electronic; North American businesses exchange over 2.5 trillion e-mails per year;5 today, less than 1% of all communication will ever appear in paper form; and, on average, a 1000-person corporation will generate nearly 2 million e-mails annually.”

Using Contract Terms To Get Ahead Of Prospective Ediscovery Costs And Burdens In Commercial Litigation, Jay Brudz, Jonathan M. Redgrave

Richmond Journal of Law & Technology

During the course of the twentieth century, American and international businesses reacted to the increasing costs and uncertainties of the American civil legal system by trying to create certainty through contractual provisions wherever possible. In particular, businesses developed contractual provisions that set forth procedural boundaries to potential disputes for the purpose of providing greater certainty as to where the dispute would be heard, who would hear it, and what laws would apply. For example, choice of venue and choice of law provisions became commonplace. In addition, clauses dictating the use of alternative dispute resolution procedures were also widely adopted. Substantively, …

Technologies-That-Must-Not-Be-Named: Understanding And Implementing Advanced Search Technologies In E-Discovery, Jacob Tingen

Richmond Journal of Law & Technology

The Federal Rules of Civil Procedure were created to promote the “just, speedy, and inexpensive determination of every action and proceeding.” Unfortunately, in the world of e-discovery, case determinations are often anything but speedy and inexpensive. The manual review process is notoriously one of the most expensive parts of litigation. Beyond expense, the time and effort required to carry out large-scale manual review places an immense burden on parties, nearly destroying the possibility of assessing the merits of early settlement before expensive review has already been carried out.

The Virginia Rules Of Evidence, Ronald J. Bacigal

Richmond Public Interest Law Review

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 …

The Risks Of Taking Facebook At Face Value: Why The Psychology Of Social Networking Should Influence The Evidentiary Relevance Of Facebook Photographs, Kathryn R. Brown

Vanderbilt Journal of Entertainment & Technology Law

Social networking sites in general, and Facebook in particular, have changed the way individuals communicate and express themselves. Facebook users share a multitude of personal information through the website, especially photographs. Additionally, Facebook enables individuals to tailor their online profiles to project a desired persona. However, as social scientists have demonstrated, the image users portray can mislead outside observers. Given the wealth of information available on Facebook, it is no surprise that attorneys often peruse the website for evidence to dispute opponents' claims.

This Note examines the admission and relevance of Facebook photographs offered to prove a litigant's state of …