Evidence Commons^™

The Modern Energizer Bunny - Hopping Into The Nuclear Energy Revolution: The Tenth Circuit's Analysis In New Mexico Ex Rel. Balderas V. U.S. Nuclear Regulatory Commission, Jack A. Mansur

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Virtual Confessions: Examining The Clergy Privilege’S Extension To Artificially Intelligent Religious Robots, Samuel N. Dick

The University of Cincinnati Intellectual Property and Computer Law Journal

Artificial Intelligence (AI) is fundamentally changing the world. AI’s rapid development is driving its integration into every industry, including those traditionally untouched by technology—such as religion. Today, faith groups in America and globally, are integrating AI-driven robots in roles traditionally held by human priests, clergy, or pastors. AI robots have begun giving sermons, conducting funerals/weddings, providing spiritual counseling, and conducting the sacrament of confession. Some faith groups have gone further claiming the worship of AI as an independent religion, and have received § 501(c)(3) tax-exempt status as a church. Whether thoughts of sacrileges, inevitability, or a science-fiction novel emerge, AI’s …

Standing And Criminal Law, F. Andrew Hessick, Sarah A. Benecky

BYU Law Review

According to the Supreme Court, the “irreducible constitutional minimum of Article III standing” is a concrete, particularized injury in fact that is traceable to the defendant and redressable by a favorable judgment. But this set of requirements does not apply in criminal cases. The federal government has authority to bring prosecutions for any violation of federal criminal law, regardless of whether the crime caused concrete harm to the United States or anyone else, and even though the punishment for the crime does not redress an injury in any conventional sense.

This Article argues that the difference in standing requirements between …

Gatekeeping & Class Certification: The Eleventh Circuit’S Stringent Approach To Admitting Expert Evidence In Support Of Class Certification, Pravin Patel, Mark Pinkert, Patrick Lyons

University of Miami Law Review

Federal Rule of Civil Procedure 23 is silent on whether evidence offered in support of a motion for class certification must be admissible under the Federal Rules of Evidence. The Supreme Court has not addressed this issue, and there is currently no authoritative framework for incorporating all or some of the federal evidentiary rules into the class certification process. Resultantly, circuit courts are split on this question and have coalesced among several different approaches. The Eleventh Circuit follows a rigorous evidentiary standard in which evidence offered in support of class certification generally must be admissible under the Federal Rules of …

Computationally Assessing Suspicion, Wesley M. Oliver, Morgan A. Gray, Jaromir Savelka, Kevin D. Ashley

University of Cincinnati Law Review

Law enforcement officers performing drug interdiction on interstate highways have to decide nearly every day whether there is reasonable suspicion to detain motorists until a trained dog can sniff for the presence of drugs. The officers’ assessments are often wrong, however, and lead to unnecessary detentions of innocent persons and the suppression of drugs found on guilty ones. We propose a computational method of evaluating suspicion in these encounters and offer experimental results from early efforts demonstrating its feasibility. With the assistance of large language and predictive machine learning models, it appears that judges, advocates, and even police officers could …

Judges Should Be Discerning Consensus, Not Evaluating Scientific Expertise, David S. Caudill, Harry Collins, Robert Evans

University of Cincinnati Law Review

One of the most constructive critiques of the Daubert admissibility regime is Professor Edward Cheng’s recent proposal for a new Consensus Rule in the Federal Rules of Evidence. Rejecting the notion that judges and juries have the capacity to evaluate scientific expertise, Cheng’s proposal would eliminate Daubert hearings—and judicial gatekeeping concerning expert testimony—and require judges and juries, in their verdicts, to follow consensus in the relevant scientific community. Significantly, Cheng argues that judges and juries would have an easier time identifying consensus than they have in deciding between experts who disagree.

We find Cheng’s emphasis on consensus compelling, and …

Deepfakes Reach The Advisory Committee On Evidence Rules, Daniel J. Capra

Fordham Law Review

A number of articles have been written in the last couple of years about the evidentiary challenges posed by “deepfakes”—inauthentic videos and audios generated by artificial intelligence (AI) in such a way as to appear to be genuine. You are probably aware of some of the widely distributed examples, such as: (1) Pope Francis wearing a Balenciaga jacket; (2) Jordan Peele’s video showing President Barack Obama speaking and saying things that President Obama never said; (3) Nancy Pelosi speaking while appearing to be intoxicated; and (4) Robert DeNiro’s de-aging in The Irishman.

The evidentiary risk posed by deepfakes is …

Impeaching With An Alleged Prior False Accusation, Erin Murphy

Fordham Law Review

The Court’s categorical recognition of bias as a constitutionally protected, and therefore rape-shield recognized, exception to the general bar on evidence of sexual history has led to questions about whether other forms of impeachment might also evade rape shield restrictions. In particular, courts have grappled with the admissibility of impeachment by evidence of a prior false accusation (PFA).

The current treatment of PFAs is inconsistent and controversial for several reasons. First, as explained further in Part I, there is a lack of clear guidance in the rules about how such evidence should be treated. Second, of course, there are the …

Evidence, W. Randall Bassett

Mercer Law Review

In its 2023 term, the United States Court of Appeals for the Eleventh Circuit focused heavily on the role and admissibility of expert testimony under Rules 702–704 of the Federal Rules of Evidence. For example, in two opinions, the court considered the role of an expert’s qualifications and experience in supporting the admissibility of the expert’s opinions. In another case, they analyzed the scope of an expert’s ability to opine on an ultimate issue in a criminal case. The court also considered the role of lay witness opinion testimony compared to that of a retained expert and the admissibility of …

I’Ll Huff, And I’Ll Puff, And I’Ll Blow Your Parol Evidence Down: The Eleventh Circuit Explains Why The Plain Text Of An Insurance Policy Wins In The Face Of Contractual Ambiguity, Chloe E. Bonds

Mercer Law Review

Imagine that a small business in sunny, central Florida is evaluating its insurance policy. The business notices that the policy includes seemingly unnecessary coverage for losses caused by landslides. Before the end of the current year, the business contacts its insurance agency and successfully negotiates to remove the existing landslide coverage from next year’s policy. Following the negotiations, the agent issues an updated insurance binder reflecting the change. Although the insurance agency is aware that the business no longer wants landslide coverage, the principal policy issued after negotiations conspicuously does not include any language regarding the coverage or exclusion of …

Symposium On Scholars’ Suggestions For Amendments, And Issues Raised By Artificial Intelligence

Fordham Law Review

CHAIR SCHILTZ: As those of you who have been in the rules work for a while know, rules work is cyclical. During the time I’ve been Chair of the Advisory Committee on Evidence Rules, we’ve had two packages of amendments that have gone through. The first package will take effect on December 1, 2024, and that’s the package that is led by the amendment to Rule 702 on expert testimony. And then we have another package that was just approved by the Judicial Conference and sent to the U.S. Supreme Court, and that package is led by the new rule …

Eliminating Rule 609 To Provide A Fair Opportunity To Defend Against Criminal Charges: A Proposal To The Advisory Committee On The Federal Rules Of Evidence, Jeffrey Bellin

Faculty Publications

Federal Rule of Evidence 609 authorizes the admission of prior convictions to impeach criminal defendants who testify. And in this important and uniquely damaging application, the [r]ule’s logic fails, distorting American trials and depriving defendants of a fair opportunity to defend against the charges. The Advisory Committee [on Evidence Rules (the “Advisory Committee”)] should propose the elimination of Rule 609 and prohibit cross-examination with specific instances of a criminal defendant’s past conduct when those instances are unrelated to the defendant’s testimony and unconnected to the case.

This short essay begins by setting out the proposed rule change alongside a proposed …

Cyanoacrylate Deposition Onto Sebum With Pretreatment Of Amine, Isaac Baltz

Chemistry & Biochemistry Undergraduate Honors Theses

Super glue, or ethyl cyanoacrylate, fuming is commonly used in forensic science to develop latent fingerprints on nonporous surfaces[7]. Fingerprints are primarily made up of the oily substance secreted by sebaceous glands better known as sebum. Previously it has been shown that exposure of fingerprints to diisopropylamine dramatically increases the deposition of cyanoacrylate polymers on the fingerprints[1]. However, the heterogeneity of any series of real fingerprints made it difficult to quantitatively assess this effect. This heterogeneity includes not just the amount of sebum but the presence of unknown amounts of proteins, amino acids, and other potential nucleophiles which catalyze the …

Judges Should Be Discerning Consensus, Not Evaluating Scientific Expertise, David S. Caudill, Harry Collins, Robert Evans

Faculty Publications

One of the most constructive critiques of the Daubert admissibility regime is Professor Edward Cheng’s recent proposal for a new Consensus Rule in the Federal Rules of Evidence. Rejecting the notion that judges and juries have the capacity to evaluate scientific expertise, Cheng’s proposal would eliminate Daubert hearings—and judicial gatekeeping concerning expert testimony—and require judges and juries, in their verdicts, to follow consensus in the relevant scientific community. Significantly, Cheng argues that judges and juries would have an easier time identifying consensus than they have in deciding between experts who disagree.

We find Cheng’s emphasis on consensus compelling, and …

Prosecutorial Storytelling Through Intrinsic Evidence, Brian Chen

Pepperdine Law Review

Crimes make for compelling stories. So juries make for an eager audience. Jurors want to—indeed, expect to—learn what the defendant did, how they did it, and why they deserve punishment. Capable prosecutors know how to deliver. Trial narratives empower jurors to link discrete pieces of evidence and infer facts from circumstantial proof. Only then can they render a verdict consistent with their sense of justice. Federal courts thus afford wide leeway for prosecutors to present their case as they please, with the evidence at their disposal. The Federal Rules of Evidence delineates the scope of that discretion. Under Rule 404(b), …

Preview — State V. Wood. First Impressions On Accountability And Cell-Site Location Information, Sarah K. Yarlott

Public Land & Resources Law Review

No abstract provided.

Machines Like Me: A Proposal On The Admissibility Of Artificially Intelligent Expert Testimony, Andrew W. Jurs, Scott Devito

Pepperdine Law Review

With the rapidly expanding sophistication of artificial intelligence systems, their reliability, and cost-effectiveness for solving problems, the current trend of admitting testimony based on artificially intelligent (AI) systems is only likely to grow. In that context, it is imperative for us to ask what rules of evidence judges today should use relating to such evidence. To answer that question, we provide an in-depth review of expert systems, machine learning systems, and neural networks. Based on that analysis, we contend that evidence from only certain types of AI systems meet the requirements for admissibility, while other systems do not. The break …

"Hired Guns": Establishing The Scope Of The Proper Cross-Examination And Argument Relating To Expert Witness' Compensation In Criminal Trials, Michael C. Kovac

Georgia Criminal Law Review

The outcomes of criminal cases can turn on the credibility of the parties’ expert witnesses. The compensation such experts receive in exchange for their work on cases can undermine their credibility, as it provides the experts with a financial incentive that might bias them in favor of the parties who retain them. While concerns with such bias have existed for decades, courts have been inconsistent in the defining the permissible scope of cross-examination and argument on the issue. Some courts have unduly curtailed such cross-examination and argument. Courts have also been inconsistent in their views of whether calling such expert …

All Eyez On Rap & Hip-Hop: Analyzing How Black Expression Is Criminalized And The Language Of The Rap Act Of 2022, Maia Young

Washington Journal of Law, Technology & Arts

The Black existence, in the United States of America, has always been regarded as a conditional right. Conventionally, Blackness must always be nonviolent and non-disruptive to safely exist. Because of this, Blackness cannot be confined to restraints and disrupts these conventions with acts of joy and creative expression. Black creativity is both unconventional and sacred. Black creative expression documents, preserves, and unifies cultural lived experiences, from a first-hand lens of those oppressed. Creative and artistic expression celebrates the myriad of stories that are a part of the collective Black experience. Yet, Black creative expression is now being weaponized by prosecutors …

Unconscionability & Involuntary Arbitration Agreements: The Systemic Exploitation Of Immigrant Labor In The United States, Isabel Ortega-Romero

Cardozo Journal of Equal Rights & Social Justice

The note examines the inadequacy of the doctrine of unconscionability in protecting immigrant workers from exploitation through unfair contracts and arbitration agreements. It advocates for legal reforms, including the regulation of arbitration agreements and the recognition of unconscionability as a tort, to address these issues.