Evidence Commons^™

Professor Jeffrey Bellin: Reflections On The Fall 2020 Semester, Jeffrey Bellin

Law School Personal Reflections on COVID-19

No abstract provided.

Excessive Force: Justice Requires Refining State Qualified Immunity Standards For Negligent Police Officers, Angie Weiss

Seattle University Law Review Online

At the time this Note was written, there was no Washington state equivalent of the § 1983 Civil Rights Act. As plaintiffs look to the Washington state courts as an alternative to federal courts, they will find that Washington state has a different structure of qualified immunity protecting law enforcement officers from liability.

In this Note, Angie Weiss recommends changing Washington state's standard of qualified immunity. This change would ensure plaintiffs have a state court path towards justice when they seek to hold law enforcement officers accountable for harm. Weiss explains the structure and context of federal qualified immunity; compares …

Preventing Wrongful Conviction Caused By Eyewitness (Mis)Identification: Establishing A Presumption Of Unreliability, Bailey D. Barnes

Faculty Publications

Wrongful convictions are inherently antithetical to a key tenant of the system of criminal justice in the United States, which former Supreme Court Justice George Sutherland shrewdly articulated as to ensure that "guilt shall not escape or innocence suffer." Reaching even further into the foundations of the common law, the great legal commentator William Blackstone stated of wrongful convictions that "the law holds it better that ten guilty persons escape, than that one innocent party suffer." This core principle of American justice was bolstered by the statements of two key Founding Fathers, John Adams and Benjamin Franklin. Adams stated of …

Unbuckling The Seat Belt Defense In Arkansas, Spencer G. Dougherty

Arkansas Law Review

The “seat belt defense” has been hotly litigated over the decades in numerous jurisdictions across the United States. It is an affirmative defense that, when allowed, reduces a plaintiff’s recovery for personal injuries resulting from an automobile collision where the defendant can establish that those injuries would have been less severe or avoided entirely had the plaintiff been wearing an available seat belt. This is an unsettled legal issue in Arkansas, despite the growing number of cases in which the seat belt defense is raised as an issue. Most jurisdictions, including Arkansas, initially rejected the defense, but the basis for …

County Of Maui, Hawaii V. Hawaii Wildlife Fund, Rachel L. Wagner

Public Land & Resources Law Review

The Supreme Court of the United States was recently asked to decide whether the Clean Water Act requires a permit for the discharge of pollutants that originate from a point source but are conveyed to navigable waters by a nonpoint source. Vacating the Ninth Circuit’s “fairly traceable” test, the Court held the Clean Water Act requires a permit when there is a direct discharge of pollutants from a point source into navigable waters or when there is the “functional equivalent of a direct discharge.”

Having Your Cake And Eating It, Too: Using Special Masters In Daubert Hearings To Promote Scientific Analyses Of Expert Testimony, Luis Balart

Louisiana Law Review

The article discusses issues on the admissibility of scientific evidence in federal court trials in the U.S., and the use by judges of court-appointed experts and advisors to help in making evidentiary decisions requiring technical or scientific knowledge.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Convenience Or Confidentiality: Nevada’S Digital Data Laws In The Age Of Always-Listening Devices, E. Sebastian Cate-Cribari

Nevada Law Journal

No abstract provided.

Restoring The Presumption Of Innocence: Protecting A Defendant’S Right To A Fair Trial By Closing The Door On 404(B) Evidence, Aaron Diaz

St. Mary's Law Journal

Congress enacted the Federal Rules of Evidence to govern evidentiary procedures and “eliminate unjustifiable expense and delay.” In criminal cases, for example, Federal Rule of Evidence 404(b) seeks to prevent prosecutors from improperly introducing a defendant’s past misdeeds. Nevertheless, prosecutors often attempt to introduce a defendant’s past misconduct to suggest that a defendant has a propensity to commit crimes, which is improper character evidence. Unsurprisingly, 404(b) is one of the most litigated evidence rules and has generated more published opinions than any other subsections of the Rules. And despite efforts to amend Rule 404(b), the rule has remained virtually untouched. …

Must A Friend Indeed Reveal A Friend’S Misdeed? Exploring The Merits Of A Friendship Privilege, Michael D. Moberly

St. Mary's Law Journal

Abstract forthcoming.

A Two-Stage Model For Social Network Investigations In Digital Forensics, Anne David, Sarah Morris, Gareth Appleby-Thomas

Journal of Digital Forensics, Security and Law

This paper proposes a two-stage model for identifying and contextualizing features from artefacts created as a result of social networking activity. This technique can be useful in digital investigations and is based on understanding and the deconstruction of the processes that take place prior to, during and after user activity; this includes corroborating artefacts. Digital Investigations are becoming more complex due to factors such as, the volume of data to be examined; different data formats; a wide range of sources for digital evidence; the volatility of data and the limitations of some of the standard digital forensic tools. This paper …

"Against The Defendant": Plea Rule's Purpose V. Plain Meaning, Nick Bell

Arkansas Law Review

Rarely is there a proverbial “smoking gun” in criminal prosecutions. Instead, prosecutors and defense attorneys must tell juries competing stories—largely from circumstantial evidence—and allow jurors to determine what happened based on inferences gleaned from argument and testimony. Naturally, this creates substantial uncertainty for both prosecutors and defendants. Instead of rolling the dice at trial, the vast majority of criminal matters are resolved through plea bargaining. Plea bargaining provides both sides with a certainty otherwise unobtainable through a traditional trial. The prosecution guarantees itself a conviction, and the defendant will often receive a lighter sentence than if he or she had …

Child Abuse And Cannabis Use: How A Prima Facie Standard Mischaracterizes Parental Cannabis Consumption As Child Neglect, Jasmine Harris

Cardozo Law Review

No abstract provided.

Long-Term Incarceration And The Moral Limits Of Punishment, Jacob Bronsther

Cardozo Law Review

Hundreds of thousands of Americans are serving decades-long prison sentences. While scholars have established that these sentences are both economically inefficient and destructive of minority communities, a fundamental question remains: Is long-term incarceration ever morally permissible? Understandably, the economists and sociologists of prison have not addressed this moral question. But neither have the philosophers of criminal law, who rarely consider sentencing issues. This Article seeks to fill this lacuna. It does so by reviving the moral and legal prohibition on degrading punishment. The Article argues that long-term incarceration is impermissibly degrading, on a par with the death penalty and penal …

"Buy One Get One Free": How Reindictment Policies Permit Excessive Searches, Katie Carroll

William & Mary Bill of Rights Journal

When the government decides to stop prosecuting a case, it files a nolle prosequi with the court. Nolle prosequis are slightly different from motions to dismiss. Unlike a motion to dismiss with prejudice, a prosecutor may later reindict a defendant with the same crime without a double jeopardy issue arising after dropping the same case through nolle prosequi. Furthermore, many states do not require judicial approval for a nolle prosequi. Therefore, prosecutors can gain a number of advantages by using nolle prosequi, like avoiding speedy trial deadlines or having a second chance to win important evidentiary hearings.

The advantages of …

Toward A More Apparent Approach To Considering The Admission Of Expert Testimony, Thomas D. Schroeder

Notre Dame Law Review

This Article highlights lingering confusion in the caselaw as to the proper standard for the trial court’s discharge of its gatekeeping role for the admission of expert testimony. The Article urges correction of the faulty application of Daubert’s admonition as to “shaky but admissible” evidence as a substitute for proper discharge of the trial court’s gatekeeper function under Rule 104(a). The Article concludes with several suggestions for trial and appellate courts to consider for better decisionmaking in discharging their duty to apply Rule 104(a)’s preponderance standard to the elements of Rule 702.

Evidence, W. Randall Bassett, Val Leppert, Elijah T. Staggers

Mercer Law Review

In the 2019 term, the United States Court of Appeals for the Eleventh Circuit issued several opinions deciding evidentiary issues. Those opinions span a broad range of topics including constitutional limitations on admissible evidence, expert testimony, the scope of certain hearsay exceptions, and various other evidentiary rules. This article looks back at the Eleventh Circuit's 2019 term to highlight and analyze keynote decisions on those issues.

The Clergy-Penitent Privilege: The Role Of Clergy In Perpetuating And Preventing Domestic Violence, Kami Orton

Nevada Law Journal Forum

Domestic violence occurs at alarming rates in all socioeconomic levels, races, locations, sexual orientations, and professions. Domestic violence occurs at similar frequencies among religious and non-religious individuals. Clergy play an important role in religious communities. The clergy-penitent privilege was created to protect the relationship between clergy and communicant and prevents clergy from testifying about spiritual communications. However, the privilege is currently an absolute privilege which is unnecessary and hurts victims and survivors of domestic violence. Additionally, the statutorily written privilege is not aligned with the application and practice of the privilege. Practice indicates clergy tend to desire to testify and …

Climate Change Science And The Daubert Standard, Fred K. Morrison, Craig Manson, Matthew C. Wickersham

William & Mary Environmental Law and Policy Review

Climate change science attempts to predict the future based on complex modeling of potential levels of CO2, other greenhouse gases, manmade conditions, and naturally occurring events. Even the most widely cited analysis of climate change studies expressly acknowledges the limitations on accurately predicting the effects of climate change on anything other than a macro basis.1 These studies acknowledge substantial uncertainty in the prediction of climate change and its effects on a regional level, much less on a local level.2 Recent lawsuits brought by the State of Rhode Island; the counties of King (Washington), Marin (California), and San Mateo (California); the …

Truth And Justice Vs. The Integrity Of The Family Unit: Family Members' Testimonies From A Comparative And Normative Viewpoint, Dr. Guy Ben-David

Georgia Journal of International & Comparative Law

No abstract provided.