Evidence Commons^™

When To Be Objectionable… And How Not To Be An Artless Clay-Brained Pignut, Leonard Niehoff

Articles

Having taught evidence for more than 30 years. I've become fairly good at predicting the questions students will ask, especially the questions that are hardest to answer. One of those typically comes after we've discussed how to object to evidence. We've worked through the basics: Stand up, speak up, say that you object, and briefly explain why. At this point a student almost always raises his or her and says something like this: "OK. I understand the how part. But when do I object?"

Rapt Admissions: Comparing Proposed Federal Rule Of Evidence 416 “Rap Shield” With The Rule 412 “Rape Shield”, Patience Tyne

Vanderbilt Journal of Entertainment & Technology Law

Creative expression depicting illicit activity can cause jurors to infer improper conclusions about a defendant, even when the jurors attempt to analyze such evidence objectively. When the government seeks to admit a defendant’s creative work into evidence in a criminal trial, courts use existing evidentiary rules to balance the work’s probative value against its risk of unfair prejudice. These rules are supposed to prevent unfair prejudice, but various scholars have shown that courts do not always appreciate how unfairly prejudicial art can be. Rap music presents unique challenges because jurors may fail to discern the work’s literal versus symbolic meaning. …

Once The Jury Sees It, The Jury Can’T Unsee It: The Challenge Trial Judges Face When Authenticating Video Evidence In The Age Of Deepfakes, Taurus Myhand

Scholarly Works

The proliferation of deepfake videos has resulted in rapid improvements in the technology used to create them. Although the use of fake videos and images are not new, advances in artificial intelligence have made deepfakes easier to make and harder to detect. Basic human perception is no longer sufficient to detect deepfakes. Yet, under the current construction of the Federal Rules of Evidence, trials judges are expected to do just that. Trial judges face a daunting challenge when applying the current evidence authentication standards to video evidence in this new reality of widely available deepfake videos. This article examines the …

Is Disclosure And Certification Of The Use Of Generative Ai Really Necessary?, Maura R. Grossman, Paul W. Grimm, Daniel G. Brown

Faculty Scholarship

No abstract provided.

Of Bass Notes And Base Rates: Avoiding Mistaken Inferences About Copying, Christopher Buccafusco, Rebecca Tushnet

Faculty Scholarship

To prove copyright infringement, a plaintiff must convince a jury that the defendant copied from the plaintiff’s work rather than independently creating it. To prove copying, especially cases involving music, it’s common for plaintiffs and their experts to argue that the similarities between the parties’ creative works are so great that it is simply implausible that the defendant’s work was created without copying from the plaintiff’s work. Unfortunately, in its present form, the argument is mathematically illiterate: It assumes, without any underlying evidence, that the experts know or could reasonably estimate how likely it is that a song with similarity …

Judging Firearms Evidence And The Rule 702 Amendments, Brandon Garrett, Nicholas Scurich, Eric Tucker, Hannah Bloom

Faculty Scholarship

No abstract provided.

Umfc 140 A Comprehensive Case Report, Daniel D. Warila

Graduate Student Theses, Dissertations, & Professional Papers

UMFC 140 Is a teaching specimen from purchased from China assigned To Daniel Warila B.A. for the purpose of a Forensic case study. This case study covers a wide variety of forensic procedures that can be applied to these remains. The forensic procedures used consist of past as well as current procedures were applied to the remains with the resulting findings discussed and analyzed. This case study was focused on finding as many forensic answers as possible on the remains in their current condition.

Producing Procedural Inequality Through The Empirical Turn, Danya Shocair Reda

University of Colorado Law Review

Procedural rulemaking and scholarship have taken an empirical turn in the past three decades. This empirical turn reflects a surprising consensus in what is otherwise a highly divided field and an inherently adversarial system. Because procedural rules distribute legal power in society, they invariably raise questions about who should have access to courts, information, and the means to defend one's legal rights. While debate rages about these normative commitments, procedure has developed a surprising epistemic agreement on empiricism, with its promise of rising above these competing interests with data. In procedure, the turn toward empiricism has become a strategy for …

Digital Habit Evidence, Andrew Guthrie Ferguson

Scholarly Articles in Law Reviews & Journals

This Article explores how “habit evidence” will become a catalyst for a new form of digital proof based on the explosive growth of smart homes, smart cars, smart devices, and the Internet of Things. Habit evidence is the rule that certain sorts of semiautomatic, regularized responses to particular stimuli are trustworthy and thus admissible under the Federal Rules of Evidence (“FRE”) 406 “Habit; Routine Practice” and state equivalents.

While well established since the common law, “habit” has made only an inconsistent appearance in reported cases and has been underutilized in trial practice. But intriguingly, once applied to the world of …

Tragedies Of The Cultural Commons, Etienne C. Toussaint

Faculty Publications

In the United States, Black cultural expressions of democratic life that operate within specific historical-local contexts, yet reflect a shared set of sociocultural mores, have been historically crowded out of the law and policymaking process. Instead of democratic cultural discourse occurring within an open and neutral marketplace of ideas, the discursive production and consumption of democratic culture in American politics has been rivalrous. Such rivalry too often enables dominant White supremacist cultural beliefs, values, and practices to exercise their hegemony upon law’s production and meaning. The result has been tragedy for politically disempowered and socioeconomically excluded communities.

This Article uses …

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

Mercer Law Review

Georgia’s judicial system has continued to grapple with the novel Coronavirus (COVID-19) for more than two years since the Honorable Harold D. Melton, former Chief Justice of the Supreme Court of Georgia,
first issued the Order Declaring Statewide Judicial Emergency on March 14, 2020. That order was extended fifteen times before finally terminating on June 30, 2021.

Seemingly in response to the world of uncertainties created by COVID-19, Georgia appellate courts took the opportunity to provide some additional interpretation and explanation to various aspects of Georgia’s new Evidence Code. This Article highlights some of the continuing interpretations of Georgia’s evidence …

You Can’T Simply Say “No!” Almighty Ceo: Georgia’S View On The Apex Doctrine And Discovery Abuse, W. Warren Hedgepeth

Mercer Law Review

Discovery is the process that allows litigants to gather information from the opposing party in a civil lawsuit. Discovery practices differ among states, and each state’s discovery laws generally determine (1) the scope and limits of what information can be gathered, (2) how it is gathered, and (3) when it is gathered. Depositions are included in discovery methods and allow parties to ask the deponent questions relating to the case. Depositions are not only expensive but can be disruptive, especially to high-level corporate executives whose time and dedication to their companies should be their primary focus. In some jurisdictions, corporate …

What Counts As ‘Racist Enough?’: A Clearer Standard For New Trials When Jurors Demonstrate Racial Bias, Priyadarshini Das

Journal of Law and Policy

The no-impeachment rule, Federal Rule of Evidence 606(b), necessitates that jurors keep their deliberations secret. However, in the 2017 Supreme Court case Peña-Rodriguez v. Colorado, the Court created a racial bias exception to the no-impeachment rule. This exception allows jurors to notify the court when “one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict.” This Note argues that this standard is too narrow because it fails to consider several situations of racial bias, like implicit bias. The ineffectiveness of this exception is demonstrated …

Limiting Limited Liability: Requiring More Than Mere Subsequence Under Federal Rule Of Evidence 407, Cynara Hermes Mcquillan

Scholarly Works

Rule 407 of the Federal Rules of Evidence, the “Subsequent Remedial Measures” Rule, is troubling. This exclusionary rule of evidence prohibits using subsequent remedial measures to demonstrate negligence, culpable conduct, or product defect. But, other than in the title of the rule, the phrase “subsequent remedial measures” does not appear anywhere in the rule’s text and the rule itself does not expressly define what measures fall within its purview. This omission creates space for different judicial interpretations of the rule’s language and ultimately disparate judicial outcomes. Although the Federal Rules of Evidence lend themselves to fact-specific inquiries that can lead …

Shaky Science: Shaken Baby Syndrome And Its Disproportionate Impact On False Convictions Of Women Of Color, Shae A. Woodburn

William & Mary Journal of Race, Gender, and Social Justice

Shaken Baby Syndrome (SBS) is a controversial diagnosis and an even more controversial basis for conviction. The syndrome is questioned by scientists and doctors who have yet to come to a consensus on its diagnosis. Courts have permitted SBS evidence to be admitted in criminal trials, and many people have been convicted solely on the basis of this controversial diagnosis. This Note seeks to analyze the history of SBS, the conflicts in the medical and scientific community, standards of evidence that permit its admission in court, and how all of these factors converge in a way that disproportionately impacts women …

Natural Resource Governance In Qing China: Lineage Institutions And The Making Of Common Property Regimes, Jason Jia-Xi Wu

Cardozo International & Comparative Law Review

Historically, common property is one of the dominant forms of ownership through which natural resources-e.g., forests, pastures, and fisheries-are managed. However, their decline across societies due to marketization and privatization has prompted intense debates. This Article seeks to answer the following questions: (1) Why did some common property regimes dissipate quickly, while others resisted the forces of privatization for generations? (2) What explains the divergent trajectories that societies took in governing common resources? Building on the classic Coasean and Demsetzian law-andeconomics principles, this Article highlights two additional dimensions-institutional capacity and social embeddedness of propertyto explain how "hidden" social costs impacted …

Artificial Justice: The Quandary Of Ai In The Courtroom, Paul W. Grimm, Maura R. Grossman, Sabine Gless, Mireille Hildebrandt

Judicature International

No abstract provided.

Optimal Standards Of Proof In Antitrust, Murat C. Mungan, Joshua Wright

Faculty Scholarship

Economic analyses of antitrust institutions have thus far focused predominantly on optimal penalties and the design of substantive legal rules, and have largely ignored the standard of proof used in trials as a policy tool in shaping behavior. This neglected tool can play a unique role in the antitrust context, where a given firm may have the choice to engage in exceptional anticompetitive or procompetitive behavior, or simply follow more conventional business practices. The standard of proof used in determining the legality of a firm’s conduct affects not only whether the firm chooses to engage in pro- versus anticompetitive behavior, …

An Analytical Study On Legal Validity Of Online Dispute Resolution (Odr) System In India And Indonesia, Dr Rahul Nikam, Bangkim Singh Nongthombam

Indonesia Law Review

Advancement in technology brought many inevitable changes with more efficiency, making human life easier. Benefit of technology shall be incorporated for effective and efficient justice delivery in dispute resolution mechanism. New development in this area is online arbitration dispute resolutions (ODR) which have been without doubt adopted and practices by justice delivery system across the globe. But the question remains the same as whether justice delivery system is equipped to cope up in the same pace with the changes taking place in the society and technology. Are the existing laws being enough to conduct online system as an effective mechanism …

For Whom The Sol Tolls: Examining The Role Of The Discovery Rule And Statutes Of Limitations In Ncaa Concussion Litigation, Joseph Sabin Esq., Andrew L. Goldsmith Ph.D.

UNH Sports Law Review

No abstract provided.