Evidence Commons^™

Artificial Intelligence As Evidence, Paul W. Grimm, Maura R. Grossman, Gordon V. Cormack

Northwestern Journal of Technology and Intellectual Property

This article explores issues that govern the admissibility of Artificial Intelligence (“AI”) applications in civil and criminal cases, from the perspective of a federal trial judge and two computer scientists, one of whom also is an experienced attorney. It provides a detailed yet intelligible discussion of what AI is and how it works, a history of its development, and a description of the wide variety of functions that it is designed to accomplish, stressing that AI applications are ubiquitous, both in the private and public sectors. Applications today include: health care, education, employment-related decision-making, finance, law enforcement, and the legal …

Due Process In Prison Disciplinary Hearings: How The “Some Evidence” Standard Of Proof Violates The Constitution, Emily Parker

Washington Law Review

Prison disciplinary hearings have wide-reaching impacts on an incarcerated individual’s liberty. A sanction following a guilty finding is a consequence that stems from hearings and goes beyond mere punishment. Guilty findings for serious infractions, like a positive result on a drug test, can often result in a substantial increase in prison time. Before the government deprives an incarcerated individual of their liberty interest in a shorter sentence, it must provide minimum due process. However, an individual can be found guilty of serious infractions in Washington State prison disciplinary hearings under the “some evidence” standard of proof—a standard that allows for …

Evidence, John E. Hall Jr., W. Scott Henwood, Leesa Guarnotta

Mercer Law Review

The 2020 Coronavirus (COVID-19) pandemic brought with it many firsts, including a year-long moratorium on civil and criminal jury trials. As of June 2021, many counties across the state expected continued stays of civil jury trials. Nevertheless, Georgia’s appellate courts continued to develop Georgia’s evidence laws in the eighth year since the implementation of Georgia’s new Evidence Code. This Article discusses the developing evolution of the new Georgia Evidence Code, Official Code of Georgia Annotated (O.C.G.A.) Title 24, by addressing developments of Georgia’s evidence rules from the period of June 1, 2020, through May 31, 2021. Specifically, this Article addresses: …

Prosecuting The Phone Scammer When Extradition Fails And Concurrent Jurisdiction Exists, Michelle Lepkofker

Brooklyn Journal of International Law

Advancements in technology allow people to place phone calls half a world away via the internet. This technology has made it easier and cheaper for consumers to communicate, but it has also made it easier for scammers to reach more unsuspecting victims. In 2020, TrueCaller, an app designed to block scam phone calls, successfully blocked, and identified 31.3 billion spam calls in 20 countries. In the same year, Americans alone lost a total of USD $ 29.8 billion to scam calls. This Note argues that phone scams continue to be lucrative, in part, because criminal prosecutions of transnational crimes are …

Fake, Andrea M. Matwyshyn, Miranda Mowbray

Cardozo Law Review

The Internet today is full of fake people and fake information. Trust in both technology and institutions is in a downward spiral. This Article offers a novel comprehensive framework for calibrating a legal response to technology “fakery” through the lens of information security. Introducing the problems of Internet “MIST”—manipulation, impersonation, sequestering, and toxicity—it argues that these MIST challenges threaten the future viability of the Internet through two morphed dynamics destructive to trust. First, the arrival of the Internet-enabled “long con” has combined traditional con artistry with enhanced technological capability for data collection. Second, the risk of a new “PSYOP industrial …

Issue Of False Amphetamine Field Test Positives Caused By Sugar: Use Of Baeyer Test As A Secondary Test Solution, Reed A. Knutson, Jennah Duncan, Kara Peightal, Samuel Thomas

Department of Chemistry: Dissertations, Theses, and Student Research

The Marquis reagent is a well-established and widely used chemical presumptive test for 3,4-Methylenedioxymethamphetamine (MDMA) and methamphetamine. It is composed of concentrated sulfuric acid and 40% formaldehyde, which act upon alkaloids causing them to complex into larger molecules. This complexation causes a color change that can be visually interpreted as a positive or negative result. Almost any sugar molecule can be complexed in this way as well, due to their many OH groups. Experimentally it was found that the sugar molecules did complex with one another when the Marquis test was administered. The color produced by this reaction was brownish-red. …

Standing By To Protect Child Abuse Victims: Utilizing Standby Counsel In Lieu Of Personal Cross-Examination, Claire Murtha

Dickinson Law Review (2017-Present)

Child abuse is a pervasive problem in the United States. Often, the abused child’s word is the only evidence to prove the abuse in court. For this reason, the child’s testimony is critical. Testifying can pose a challenge for the abused child who must face her abuser in the courtroom, especially if that abuser personally questions her.

The United States Supreme Court has recognized the legitimate and strong interest the state has in protecting the psychological and physical well-being of children. When a child will face significant trauma and cannot reasonably communicate in the courtroom, the child can be questioned …

The Modest Impact Of The Modern Confrontation Clause, Jeffrey Bellin, Diana Bibb

Faculty Publications

The Sixth Amendment's Confrontation Clause grants criminal defendants the right "to be confronted with the witnesses against" them. A strict reading of this text would transform the criminal justice landscape by prohibiting the prosecution's use of hearsay at trial. But until recently, the Supreme Court's interpretation of the Clause was closer to the opposite. By tying the confrontation right to traditional hearsay exceptions, the Court's longstanding precedents granted prosecutors broad freedom to use out-of-court statements to convict criminal defendants.

The Supreme Court's 2004 decision in Crawford v. Washington was supposed to change all that. By severing the link between the …

"The" Rule: Modernizing The Potent, But Overlooked, Rule Of Witness Sequestration, Daniel J. Capra, Liesa L. Richter

William & Mary Law Review

Starting with its illustration in the Apocrypha and continuing into the modern day both in courtrooms and in ubiquitous criminal procedurals, one evidence rule has proven so powerful that it has become known as “THE” Rule of Evidence. The rule of witness sequestration demands that multiple witnesses to the same events be examined separately from one another to prevent them from, consciously or subconsciously, tailoring their testimony to ensure that it remains consistent. Witness sequestration is conceptually simplistic and famously mighty. Yet, this bedrock protection against inaccurate trial testimony is imperiled by conflicting interpretations of Federal Rule of Evidence 615, …

The Missing Algorithm: Safeguarding Brady Against The Rise Of Trade Secrecy In Policing, Deborah Won

Michigan Law Review

Trade secrecy, a form of intellectual property protection, serves the important societal function of promoting innovation. But as police departments across the country increasingly rely on proprietary technologies like facial recognition and predictive policing tools, an uneasy tension between due process and trade secrecy has developed: to fulfill Brady’s constitutional promise of a fair trial, defendants must have access to the technologies accusing them, access that trade secrecy inhibits. Thus far, this tension is being resolved too far in favor of the trade secret holder—and at too great an expense to the defendant. The wrong balance has been struck.

This …

The Iron Rule, Jacob Bronsther, Guha Krishnamurthi

Cardozo Law Review

No abstract provided.

The Use Of Expert Witnesses In Gambling Cases, Robert M. Jarvis

UNLV Gaming Law Journal

No abstract provided.

Restoring Causality In Attenuation: Establishing The Breadth Of A Fourth Amendment Violation, Bryan H. Ward

West Virginia Law Review

When the police violate a suspect’s Fourth Amendment rights, what often follows is the discovery of incriminating evidence. Sometimes the evidence is discovered directly after the Fourth Amendment violation. In other situations, the evidence comes by a more indirect route and may occur long after the original Fourth Amendment violation. Courts struggle when trying to decide if the discovery of this indirectly obtained evidence was caused by the police misconduct. This causal question is important because causality acts as a limiting principle when deciding when to apply the exclusionary rule. A basic view of the exclusionary rule suggests that evidence …

Immigration Detention Meets Evidence Law: A Discussion Paper, Simon Wallace, Sean Rehaag, Benjamin Berger

All Papers

This discussion paper aims to encourage a broader engagement between the fields of evidence law and administrative law, using evidence in the Canadian immigration detention review setting as a case study. For most, the field of evidence law is essentially concerned with the rules of non-admissibility. This narrow vision of evidence law partly explains why administrative decision-making and administrative law only sporadically reaches to evidence law’s lessons—and why administrative law settings feature only infrequently in evidence law doctrine. This disconnect is regrettable because contact between the fields could be mutually enriching: evidence law has a rich tradition of thinking about …

United States V. Muhammad: Brief Of Evidence Law Professors As Amici Curiae In Support Of Respondents, Richard D. Friedman

Appellate Briefs

Amici curiae teach, research, and write about the law of evidence. Amici share the view that the United States Court of Appeals for the Ninth Circuit correctly remanded this case to the District Court for an in camera review of the Executive’s claim of the state secrets privilege.<\p>

The concept of “state secrets” is an evidentiary privilege. It is occasionally confused with other doctrines. Privileges are to be strictly construed and narrowly interpreted because they impede the search for truth. The state secrets privilege should not operate as a monarchal “Crown Privilege.” When courts are confronted with state secrets claims, …

Jordan V. Flammond, 21-Ap-01 (Blkft. Tr. Ct. App., Aug. 9, 2021), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court dismissed an appeal regarding the ownership of a home in Babb, MT. The Appellate Court noted that it will not overturn a judgement based upon factual findings unless a review of the entire record shows that such judgement was not supported by substantial evidence.

Minding Accidents, Teneille R. Brown

Utah Law Faculty Scholarship

Tort doctrine states that breach is all about conduct. Unlike in the criminal law, where jurors must engage in an amateur form of mindreading to evaluate mens rea, jurors are told that they can assess civil negligence by looking only at how the defendant behaved. But this is false. Foreseeability is at the heart of negligence—appearing as the primary tests for duty, breach, and proximate cause. And yet, we cannot ask whether a defendant should have foreseen a risk without interrogating what he subjectively knew, remembered, perceived, or realized at the time. In fact, the focus on actions in negligence …

Evidentiary Policies Through Other Means: The Disparate Impact Of “Substantive Law” On The Distribution Of Errors Among Racial Groups, Gustavo Ribeiro

Utah Law Review

This Article develops an analytical framework to investigate novel ways in which legal reforms disguised as “substantive” can affect procedural due process safeguards differently among racial groups. Scholars have long recognized the impact evidence rules have on substantive policies, such as modifying primary incentives or affecting the distribution of legal entitlements in society. However, legal scholars have not paid enough attention to the reverse effect: how changes in “substantive law” influence policy objectives traditionally associated with evidence law—“evidentiary policies.”

To fill this gap, this Article discusses three related evidentiary policies. The first is accuracy, which courts and scholars consider a …

Law, Fact, And Procedural Justice, G. Alexander Nunn

Faculty Scholarship

The distinction between questions of law and questions of fact is deceptively complex. Although any first-year law student could properly classify those issues that fall at the polar ends of the law-fact continuum, the Supreme Court has itself acknowledged that the exact dividing line between law and fact—the point where legal inquiries end and factual ones begin—is “slippery,” “elusive,” and “vexing.” But identifying that line is crucially important. Whether an issue is deemed a question of law or a question of fact often influences the appointment of a courtroom decision maker, the scope of appellate review, the administration of certain …

The Truth(S) Behind “True Crime”: Examining The Role Of Narrative In The Retellings Of The Rafay Family Murders, Samantha L. Richard

FIMS Major Projects and Creative Projects

In April of 1995, the Royal Canadian Mounted Police (RCMP) launched their second ever “Mr. Big” operation: one that involves an intricate interrogation technique designed to elicit a confession from suspected criminals in cases where physical evidence cannot link the accused to the crime. The targets of this operation were suspected murderers Sebastian Burns and Atif Rafay. The highly publicized case was discussed extensively through traditional news coverage, as well as in various stories of the true crime genre. Through the use of narrative theory, this paper examines the role of narrative in the retelling of the Rafay family murders. …