Evidence Commons^™

Recent Reads, Jolie Zangari

Scholarly Works

No abstract provided.

Introduction To The Symposium On Digital Evidence, Melissa (M.J.) Durkee, Tamar Megiddo

Scholarship@WashULaw

The past few decades have seen radical advances in the availability and use of digital evidence in multiple areas of international law. Witnesses snap cellphone photos of unfolding atrocities and post them online, while others share updates in real time through messaging apps. Immigration officers search cell phones. Private citizens launch open-source online investigations. Investigators scrape social media posts. Digital experts verify authenticity with satellite geolocation. These new types of evidence and digitally facilitated methods and patterns of evidence gathering and analysis are revolutionizing the everyday practice of international law, drawing in an ever-wider circle of actors who can contribute …

The Brady Database, Brandon L. Garrett, Adam M. Gershowitz, Jennifer Teitcher

Faculty Scholarship

The Supreme Court’s landmark ruling in Brady v. Maryland turns sixty this year. The Brady doctrine, which requires the government to disclose favorable and material evidence to the defendant, is one of the most frequently litigated criminal procedure issues. Yet, despite decades of Brady cases in federal and state courts, we still know relatively little about how Brady claims are litigated, adjudicated, and what such claims can tell us about the criminal justice system writ large. Scholars are in the dark about how often Brady violations occur, whether it is primarily the fault of prosecutors or the police, whether violations …

Neglected Discovery, Jenia I. Turner, Ronald F. Wright, Michael Braun

Faculty Journal Articles and Book Chapters

In recent decades, many states have expanded discovery in criminal cases. These reforms were designed to make the criminal process fairer and more efficient. The success of these changes, however, depends on whether defense attorneys actually use the new discovery opportunities to represent their clients more effectively. Records from digital evidence platforms reveal that defense attorneys sometimes fail to carry out their professional duty to review discovery. Analyzing a novel dataset we obtained from digital evidence platforms used in Texas, we found that defense attorneys never accessed any available electronic discovery in a substantial number of felony cases between 2018 …

Expert Evidence: The Gatekeeper Role Of Justice, Victor E. Schwartz

Brooklyn Journal of Corporate, Financial & Commercial Law

No abstract provided.

Assessing Evidence Of Secondary Considerations, Jason Reinecke

Villanova Law Review (1956 - )

No abstract provided.

Evidence, John E. Hall Jr., W. Scott Henwood, Krysta Grymes

Mercer Law Review

In the decade following the adoption of Georgia’s new evidence code, courts throughout the state have analyzed and ruled upon complex issues involving the interpretation of the new rules, along with how to reconcile the new rules with the vast body of existing precedent. This Article discusses continuing interpretations of Georgia’s evidence rules in Title 24 of the Official Code of Georgia Annotated (O.C.G.A.), for the period of June 1, 2022 through May 31, 2023, specifically delving into: (1) the admissibility of layperson opinion evidence; (2) the admissibilityof “other acts” evidence; and (3) judicial interpretations of “unfairprejudice” in relation to …

The Gptjudge: Justice In A Generative Ai World, Maura R. Grossman, Paul W. Grimm, Daniel G. Brown, Molly (Yiming) Xu

Duke Law & Technology Review

Generative AI (“GenAI”) systems such as ChatGPT recently have developed to the point where they can produce computer-generated text and images that are difficult to differentiate from human-generated text and images. Similarly, evidentiary materials such as documents, videos, and audio recordings that are AI-generated are becoming increasingly difficult to differentiate from those that are not AI-generated. These technological advancements present significant challenges to parties, their counsel, and the courts in determining whether evidence is authentic or fake. Moreover, the explosive proliferation and use of GenAI applications raises concerns about whether litigation costs will dramatically increase as parties are forced to …

Sentencing In An Era Of Plea Bargains, Jeffrey Bellin, Jeenia I. Turner

Vanderbilt Law School Faculty Publications

The literature offers inconsistent answers to a question that is foundational to criminal law: Who imposes sentences? Traditional narratives place sentencing responsibility in the hands of the judge. Yet, in a country where 95% of criminal convictions come from guilty pleas (not trials), modern American scholars center prosecutors who control plea terms as the deciders of punishment. This Article highlights and seeks to resolve the tension between these conflicting narratives by charting the pathways by which sentences are determined in a system dominated by plea bargains. After reviewing the empirical literature on sentence variation, examining state and federal plea-bargaining rules …

Clemency: A Tool For Extreme And Discriminatory Sentences, Kathryn Miller, Jonathan H. Oberman, Cardozo Criminal Defense Clinic

Cardozo News 2023

This article appeared in the 2023 edition of Cardozo Life magazine.

For Joaquin Winfield, April 7, 2023, will forever be a day to remember. That is when he was granted clemency by New York Gov. Kathy Hochul after serving 26 years in prison for possession of 4.6 ounces of crack. The disparity in sentences given to people from different races for similar crimes has been widely written about in recent years. Winfield was sentenced under the now-repealed Rockefeller Drug Laws of the 1970s and 1980s. He was sentenced to 37.5 years to life, one of the longest prison sentences in …

Brief Of Fourth Amendment Scholars As Amici Curiae In Support Of Defendant-Appellant On The Good Faith Exception Issue, U.S. V. Holcomb, Ninth Circuit Court Of Appeals Docket No. 23-469, David B. Owens, Rachel Nowlin-Sohl, Averill L. Aubrey, Megan Haygood, Kayleigh Mcniel, Michael C. Orehek

Court Briefs

SUMMARY OF THE ARGUMENT

When the Fourth Amendment is violated by an unconstitutional search, the suppression of wrongfully obtained evidence (the exclusionary rule) is often the only viable remedy that might deter government overreach and provide some redress for the constitutional violation. Though the Supreme Court has long treated remedial mechanisms as separate from their underlying rights, Wolf v. Colorado, 338 U.S. 25 (1949), and while limited exceptions to the suppression requirement have existed for years, recent expansion of the “good faith exception” in the digital age imposes unprecedented threats to privacy and security.

A porous or expansive view …

The Bharatiya Sakshya Bill, 2023: A New And Unimproved Evidence Act, Kunal Ambasta

Popular Media

The secrecy in drafting the bill to replace the Evidence Act is reminiscent of colonial legislation by committee. The lack of consultation has meant that the interpretative confusions in existing law remain unresolved.

Evidence Law’S Blind Spots, James Macleod

Faculty Scholarship

No abstract provided.

Binding Hercules: A Proposal For Bench Trials, Maggie Wittlin

Vanderbilt Law Review

If you were a federal judge presiding over a bench trial, you probably would not want the Federal Rules of Evidence to apply to you. Sure, you might want to be insulated from privileged information. But you are, no doubt, capable of cool-headed, rational reasoning, and you have a realistic understanding of how the world works; if you got evidence that was unreliable or easy to overvalue, you could handle it appropriately. But surely, you would have the same desire if you were a juror--it is not your position as a judge that makes you want all the relevant evidence. …

A New Baseline For Character Evidence, Julia Simon-Kerr

Vanderbilt Law Review

Perhaps no rules of evidence are as contested as the rules governing character evidence. To ward off the danger of a fact finder's mistaking evidence of character for evidence of action, the rules exclude much contextual information about the people at the center of the proceeding. This prohibition on character propensity evidence is a bedrock principle of American law. Yet despite its centrality, it is uncertain of both content and application. Contributing to this uncertainty is a definitional lacuna. Although a logical first question in thinking about character evidence is how to define it, the Federal Rules of Evidence have …

Models And Limits Of Federal Rule Of Evidence 609 Reform, Anna Roberts

Faculty Scholarship

No abstract provided.

Introduction, Edward K. Cheng

Vanderbilt Law Review

Prior to the eighteenth century, cartographers would often fill uncharted areas of maps with sea monsters, other artwork, or even rank speculation-a phenomenon labeled "horror vacui," or fear of empty spaces. For example, in Paolo Forlani's world map of 1565, a yet- to-be-discovered southern continent was depicted with anticipated mountain chains and animals. The possible explanations for horror vacui are varied, but one reason may have been a desire "to hide [the mapmakers'] ignorance." Not until "maps began to be thought of as more purely scientific instruments . . . [did] cartographers . . . restrain their concern about spaces …

Ignorance Of The Rules Of Omission: An Essay On Privilege Law, Rebecca Wexler

Vanderbilt Law Review

Evidentiary privileges--that is, rules that empower people to withhold evidence from legal proceedings-are one thread in a mesh of secrecy powers that control the flow of information in society. They are part and parcel of the laws, rules, norms, and practicalities that determine who can conceal and who can compel, that allocate power based on access to knowledge and its opposite. Despite the significance of privileges and of the harms that they produce, our understanding of this body of law has profound gaps.5 The questions posed above turn out to be more challenging than they might at first appear. Notwithstanding …

How Machines Reveal The Gaps In Evidence Law, Andrea Roth --

Vanderbilt Law Review

This Symposium asks participants to reimagine the Federal Rules of Evidence on the fiftieth anniversary of their effective date. As part of that conversation, this short Essay argues that the Rules of Evidence contain critical gaps in terms of empowering litigants to meaningfully challenge the credibility of evidence. Specifically, the increasing use of machine-generated proof has made clear that evidence law does not offer sufficiently meaningful opportunities to scrutinize conveyances of information whose flaws cannot be exposed through cross-examination. These underscrutinized conveyances include machine-generated output, information conveyed by animals, and statements made by absent hearsay declarants. Even for some witnesses …

On Proving Mabrus And Zorgs, Michael S. Pardo

Vanderbilt Law Review

An unfortunate disconnect exists in modern evidence scholarship. On one hand, a rich literature has explored the process of legal proof in general and legal standards of proof in particular. Call this the "macro level" of legal proof. On the other hand, a rich literature has explored the admissibility rules that regulate the admission or exclusion of particular types of evidence (such as hearsay, character evidence, expert testimony, and so on). Call this the "micro level" of legal proof. Little attention, however, has focused on how the issues discussed in these two distinct strands of evidence scholarship intertwine. One important …