Evidence Commons^™

State V. Ricker, 252 A.3d 721 (R.I. 2021), Victor M.P. Vieira

Roger Williams University Law Review

No abstract provided.

Criminal Justice Secrets, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The American criminal justice system is cloaked in secrecy. The government employs covert surveillance operations. Grand-jury proceedings are hidden from public view. Prosecutors engage in closed-door plea-bargaining and bury exculpatory evidence. Juries convict defendants on secret evidence. Jury deliberations are a black box. And jails and prisons implement clandestine punishment practices. Although there are some justifications for this secrecy, the ubiquitous nature of it is contrary to this nation’s Founders’ steadfast belief in the transparency of criminal justice proceedings. Further, the pervasiveness of secrecy within today’s criminal justice system raises serious constitutional concerns. The accumulation of secrecy and the aggregation …

Critical Review Of The Use Of The Rorschach In European Courts, Igor Areh, Fanny Verkampt, Alfred Allan

Research outputs 2014 to 2021

In relation to the admissibility of evidence obtained using projective personality tests arose in F v. Bevándorlási és Állampolgársági Hivatam (2018). The Court of Justice of the European Union has held that an expert’s report can only be accepted if it is based on the international scientific community’s standards, but has refrained from stipulating what these standards are. It appears timely for European psychologists to decide what standards should be applied to determine whether or not a test is appropriate for psycholegal use. We propose standards and then apply them to the Rorschach because it was used in this case …

The Future Of Criminal Culpability: Posttraumatic Stress Disorder's ("Ptsd") Effect On A Defendant's Actions And State Of Mind, Amin R. Yacoub, Becky Briggs

University of San Francisco Law Review

No abstract provided.

Lawyers' Right Of Professional Self-Defense And Its Limits, Douglas R. Richmond

South Carolina Law Review

No abstract provided.

Alternative Dispute Resolution In Child Sexual Abuse Cases: Approaches For Minimizing Victimization, Stephanie Leavitt

Cardozo Journal of Conflict Resolution

No abstract provided.

[Marked Confidential]: Negative Externalities Of Discovery Secrecy, Gustavo Ribeiro

Scholarly Articles in Law Reviews & Journals

Current unprecedented levels of secrecy in civil discovery create significant negative externalities by preventing our adversary system from measuring up to the broad public goals that justify it. First, excessive discovery secrecy undermines the courts and the public’s ability to correct distortions of the truth-seeking function of the adversary system caused by excessive partisanship and confirmation bias. Second, it weakens the adversary system’s promotion of liberal democratic values, such as transparency and self-government. Third, it threatens the adversary system’s role in upholding human dignity, understood either as respect or status. To correct the negative externalities caused by excessive discovery secrecy, …

Vermin Of Proof: Arguments For The Admissibility Of Animal Model Studies As Proof Of Causation In Toxic Tort Litigation, Kristen Ranges, Jessica Owley

Articles

Toxic torts is a body of law that aims to compensate individuals for harms they suffer from exposure to hazardous substances. To successfully bring a toxic tort claim, a plaintiff must prove the main elements of a general tort cause of action: duty, breach, causation, and damages. Causation in a toxic tort case is particularly challenging to prove given the nature of toxic substances. To prove the toxicant in question caused the damages alleged, plaintiffs often present expert testimony based on scientific studies. Animal model studies, in particular, can help factfinders understand the health implications of the toxicants at issue. …

The Case For The Abolition Of Criminal Confessions, Guha Krishnamurthi

SMU Law Review

Confessions have long been considered the gold standard of evidence in criminal proceedings. But in truth, confession evidence imposes significant harms on our criminal justice system, through false convictions and other violations of defendants’ due process and moral rights. Moreover, our current doctrine is unable to eliminate or even curb these harms.

This Article makes the case for the abolition of confession evidence in criminal proceedings. Though it may seem radical, abolition is sensible and best furthers our penological goals. As a theoretical matter, confession evidence has low probative value, but it is prejudicially overvalued by juries and judges. Consequently, …

The Entity Attorney-Client Privilege Meets The Twenty-First Century: Rethinking Functional Equivalent Analysis In The Time Of A Nonemployee Workforce., Grace M. Giesel

Faculty and Staff Scholarship

Courts have struggled with whether an entity’s attorney-client privilege can protect communications between the entity’s lawyer and a nonemployee who has information the entity’s lawyer needs to best advise the entity. The nonemployee might be a former employee. But increasingly in recent times, the nonemployee is an individual who was never an entity employee. Corporations and other entities have incorporated nonemployees in their economic enterprises in all sorts of roles—roles employees may have held in the past. Many courts have accepted that the privilege can apply to communications involving former employees.

When faced with nonemployees who are not former employees, …

Trust In Science: The Crisis Of Expertise As An Ideological, And Not Only A Scientific Controversy, David S. Caudill

Faculty Publications

Within the so-called "culture wars" dividing our nation politically, there is a law-related division over the trustworthiness of consensus science-the so-called "crisis of expertise." When the science concerning climate change, mask-wearing, or vaccinations becomes politicized, it loses its mooring in scientific evidence and impacts the effectiveness of regulatory law. Perhaps counter-intuitively, however, the solution is likely not to wear "Because Science" t-shirts while insisting on "cold, hard facts" and diagnosing as stupid those who believe the scientific theories of marginalized, minority-view scientists. Indeed, a certain level of modesty-regarding the uncertainties and tentativeness of even the best science-is necessary for the …

Stereotyping Evidence: The Civil Exception To The Federal Rape Shield Law And Its Embedded Sexual Stereotypes, Ramona Albin

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Proving Copying, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship

Proof that a defendant actually copied from a copyrighted work is a critical part of a claim for copyright infringement. Indeed, absent such copying, there is no infringement. The most common method of proving copying involves the use of circumstantial evidence, consisting of proof that a defendant had “access” to the protected work, and a showing of “similarities” between the copy and the protected work. In inferring copying from the combination of such evidence, courts have for many decades developed a framework known as the “inverse ratio rule,” which allows them to modulate the level of proof needed on access …

The Law And Science Of Eyewitness Evidence, Thomas D. Albright, Brandon L. Garrett

Faculty Scholarship

Eyewitness evidence crucially depends on visual perception and memory, which are quite fallible. The potential inaccuracy of eyewitness memory has been long demonstrated in cases of wrongful conviction. Today, decades of scientific research on visual perception and memory have identified key causes of error and methods for improving eyewitness performance. Eyewitness evidence, where identification procedures themselves involve experiments, lends itself to scientific research as do few other areas in law. As a result, eyewitness evidence has become a testing ground for the use of science to inform the law. This Article examines how legal actors—state and federal courts, state lawmakers, …

Requiring What’S Not Required: Circuit Courts Are Disregarding Supreme Court Precedent And Revisiting Officer Inadvertence In Cyberlaw Cases, Michelle Zakarin

Scholarly Works

As the age of technology has taken this country by surprise and left us with an inability to formally prepare our legal system to incorporate these advances, many courts are forced to adapt by applying pre-technology rules to new technological scenarios. One illustration is the plain view exception to the Fourth Amendment. Recently, the issue of officer inadvertence at the time of the search, a rule that the United States Supreme Court has specifically stated is not required in plain view inquiries, has been revisited in cyber law cases. It could be said that the courts interested in the existence …

Rethinking Evidentiary Rules In An Age Of Bench Trials, Henry Zhuhao Wang

Scholarly Publications

American jury trials are vanishing. Statistics indicate that the number of jury trials in the United States federal and state courts has diminished for decades, a phenomenon that has become even more pronounced amid the ongoing COVID-19 pandemic. Courts throughout the nation are on track for more than a year without any trials by jury. But as jury trials wane, bench trials are dominant in federal and state courts for both civil and criminal cases. What does that mean, then, for evidentiary rules? The Federal Rules of Evidence, first adopted in 1975, codify federal evidence law and have been adopted …

Evaluating A Test For Shedding Propensity Using Tape Lifts From Different Skin Locations, Xiao M. Chen

Student Theses

The shedding propensity of a person can assist data interpretation in casework when assessing the possibility of passive transfer for DNA analysis. Past studies on shedding propensity evaluated palmar skin (washed and unwashed) deposits. This study compared different skin locations with respect to shedding propensity, and explored the potential of tape-lifts as a skin surface collection method. Eight different skin types and samples were collected with adhesive tape disks from 28 participants over three non-consecutive days; the washed and unwashed fingers from both hands, toe, and arm, neck below ear, and nape. Samples were extracted, quantified, amplified, genotyped, and evaluated …

"You Should Have Known:" The Need For Evidentiary Notice Requirements In Immigration Court, Marisa Moore Apel

University of Cincinnati Law Review

No abstract provided.

The Haunting Of Her House: How Virginia Law Punishes Women Who Become Mothers Through Rape, Jordan S. Miceli

Washington and Lee Law Review Online

If a rape victim becomes pregnant following the attack, she has three options: abort the pregnancy, place the child for adoption, or keep and raise the child. However, by requiring proof of conviction of rape to terminate the parental rights of the man who fathered that child through his rape, the Commonwealth of Virginia imposes a substantial burden on a victim weighing those options. To obtain a conviction under the current scheme, a victim, through her local prosecutor, has to prove to a jury that the accused committed the rape beyond a reasonable doubt. The Commonwealth requires proof of conviction …

Evidentiary Inequality, Sandra F. Sperino

Faculty Publications

Federal employment discrimination law is rife with evidentiary inequality. Courts allow employers to draw from a broad palette of evidence to defend against discrimination claims, while highly restricting the facts from which plaintiffs can prove their claims. This Article draws from hundreds of cases to show how judges favor the employer's evidence and disfavor the plaintiff's evidence across multiple dimensions, such as time, witnesses, documents, relevance, and reliability. Judges have created a host of named doctrines that severely restrict the evidence plaintiffs are allowed to use to prove their discrimination claims. At the same time, a host of unnamed, and …