Evidence Commons^™

Domesticating Comity: Territorial U.S. Discovery In Violation Of Foreign Privacy Laws, Corby F. Burger

Cornell Law Review

The European Union's (EU) recently enacted General Data Protection Regulation (GDPR) is being billed as "the most important change in data privacy regulation in 20 years." The GDPR sets forth a stringent set of binding regulations that govern how data controllers and processors manage the private electronic data of EU citizens. In an audacious effort to ensure comprehensive privacy protection for EU citizens in a globally connected digital landscape, EU regulators have made the GDPR apply extraterritorially. The regulation extends beyond the borders of the European Union, reaching any entity that stores or processes the personal data of EU citizens …

The Fourth Amendment Inventory As A Check On Digital Searches, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

Police and federal agents generally must obtain a warrant to search the tens of thousands of devices they seize each year. But once they have a warrant, courts afford these officers broad leeway to search the entire device, every file and folder, all metadata and deleted data, even if in search of only one incriminating file. Courts avow great reverence for the privacy of personal information under the Fourth Amendment but then claim there is no way to limit where an officer might find the target files, or know where the suspect may have hidden them.

These courts have a …

Recalibrating Suspicion In An Era Of Hazy Legality, Deborah Ahrens

Seattle University Law Review

After a century of employing varying levels of prohibition enforced by criminal law, the United States has entered an era where individual states are rethinking marijuana policy, and the majority of states have in some way decided to make cannabis legally available. This symposium Article will offer a description of what has happened in the past few years, as well as ideas for how jurisdictions can use the changing legal status of cannabis to reshape criminal procedure more broadly. This Article will recommend that law enforcement no longer be permitted use the smell of marijuana as a reason to search …

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

The Costs And Benefits Of Forensics, Brandon L. Garrett

Faculty Scholarship

Supreme Court Justice Louis Brandeis famously wrote that states can be laboratories for experimentation in law and policy. Disappointingly, however, the actual laboratories that states and local governments run are not a home for experimentation. We do not have adequate information about either the costs or the benefits of forensic testing or allocation of resources. Increased spending and expansion of crime laboratories has perversely accompanied growing backlogs. Poor quality control has resulted in a series of audits and even closures of crime laboratories. In response to these problems, however, some laboratories and some entire states have developed new approaches toward …

Hyperreal: Law And The Interpretation Of Visual Media, Amy L. Landers

Kentucky Law Journal

No abstract provided.

“Importing” Restrictions From One Federal Rule Of Evidence Provision To Another: The Limits Of Legitimate Contextual Interpretation In The Age Of Statutes, Edward J. Imwinkelried

Oklahoma Law Review

No abstract provided.

Herman Melville’S Billy Budd: Why This Classic Law And Literature Novel Endures And Is Still Relevant Today, Rodger Citron

Touro Law Review

No abstract provided.

In General Public Use: An Unnecessary Test In Fourth Amendment Searches Using Advanced Sensing Technology, Mike Petridis

Touro Law Review

No abstract provided.

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

Mercer Law Review

In the sixth year since the implementation of Georgia’s new Evidence Code, the Georgia Supreme Court must still remind lower courts and litigators to rely upon the new Code and its subsequent case law when addressing evidentiary issues arising after 2013. This Article highlights some of the continuing changes to Georgia’s evidence rules based on the new Georgia Evidence Code, Official Code of Georgia Annotated (O.C.G.A.) Title 24. This Article period spans from June 1, 2018 to May 31, 2019. Specifically, this Article addresses: (1) the consequences of straying from the new Code; (2) new interpretations of Rule 404(b); and …

Is There A Georgia Supreme Court, Problem? Analyzing The Georgia Supreme Court’S New Peculiar Approach Towards Breathalyzers And Implied Consent Law, Brian Fussell Jr.

Mercer Law Review

Alcohol and criminal behavior often accompany each other as anyone with any experience with the justice system (or intoxicated people in general) can attest to. A significant percentage of the population would probably say their worst decisions and mistakes came about while under the influence of booze or other intoxicants, and crime statistics would back this up. Alcohol-related crime statistics in the United States compiled by AlcoRehab show around 500,000 cases of alcohol related violence every year and also demonstrate that an incredible 86% of homicides and 60% of sexual abuse or rape cases were committed under the influence of …

A Theory Of Factfinding: The Logic For Processing Evidence, Kevin M. Clermont

Cornell Law Faculty Publications

Academics have never agreed on a theory of proof. The darkest corner of anyone’s theory has concerned how legal decisionmakers logically should find facts. This Article pries open that cognitive black box. It does so by employing multivalent logic, which enables it to overcome the traditional probability problems that impeded all prior attempts. The result is the first-ever exposure of the proper logic for finding a fact or a case’s facts.

The focus will be on the evidential processing phase, rather than the application of the standard of proof as tracked in my prior work. Processing evidence involves (1) reasoning …

Justice In A Brave New World?, Jean R. Sternlight

Scholarly Works

As science fiction has become reality, we should consider the implications of our new technologies for our system of justice. In addition to DNA, we are now regularly using cameras, geo-tracking, facial recognition software, brain scans, computers, and much more to discern and record our physical and mental surroundings. Existing technology and more we cannot yet imagine will increasingly take the place of often unreliable evidence, such as that provided by eyewitnesses. Yet, we have given far too little thought as to how these advances should impact our civil and criminal dispute resolution systems.

Historically, many justice systems have emphasized …

Probability, Presumptions And Evidentiary Burdens In Antitrust Analysis: Revitalizing The Rule Of Reason For Exclusionary Conduct, Andrew I. Gavil, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

The conservative critique of antitrust law has been highly influential and has facilitated a transformation of antitrust standards of conduct since the 1970s and led to increasingly more permissive standards of conduct. While these changes have taken many forms, all were influenced by the view that competition law was over-deterrent. Critics relied heavily on the assumption that the durability and costs of false positive errors far exceeded those of false negatives.

Many of the assumptions that guided this retrenchment of antitrust rules were mistaken and advances in the law and in economic analysis have rendered them anachronistic, particularly with respect …

The Decline And Fall Of Circumstantial Evidence In Antitrust Law, Christopher R. Leslie

American University Law Review

No abstract provided.

A Break From Reality: Modernizing Authentication Standards For Digital Video Evidence In The Era Of Deepfakes, John P. Lamonaga

American University Law Review

The legal standard for authenticating photographic and video evidence in court has remained largely static throughout the evolution of media technology in the twentieth century. The advent of “deepfakes,” or fake videos created using artificial intelligence programming, renders outdated many of the assumptions that the Federal Rules of Evidence are built upon.

Rule 901(b)(1) provides a means to authenticate evidence through the testimony of a “witness with knowledge.” Courts commonly admit photographic and video evidence by using the “fair and accurate portrayal” standard to meet this Rule’s intent. This standard sets an extremely low bar—the witness need only testify that …

Evidentiary Irony And The Incomplete Rule Of Completeness: A Proposal To Amend Federal Rule Of Evidence 106, Daniel J. Capra, Liesa L. Richter

Faculty Articles

In recent years, there have been many calls and suggestions for a more equitable criminal justice system. Although sometimes overlooked in that dialogue, the fair operation of the Federal Rules of Evidence is a crucial component in ensuring such an equitable system. Unfortunately, the interpretation of Federal Rule of Evidence 106 in some jurisdictions permits unjust results, particularly for criminal defendants seeking to rely upon the Rule. Rule 106, also known as the “rule of completeness,” is premised upon notions of fundamental fairness and ostensibly permits a party to force its adversary to introduce the remainder of a written or …

Title Ix Beyond School Lines: The Proposed Regulations That Will Limit Colleges And Universities’ Jurisdictional Scope Of Responsibility, Rachel Dunham

Roger Williams University Law Review

No abstract provided.

Title Ix & The Civil Rights Approach To Sexual Harassment In Education, Nancy Chi Cantalupo

Roger Williams University Law Review

No abstract provided.

Lie To Me: Examining Specific Intent Under 18 U.S.C. §§ 1001, 1035

Florida A & M University Law Review

One court notes that the Supreme Court of the United States (“SCOTUS”) has previously not found specific intent to be required under similar language within Section 1001.9 While there are many similarities between Sections 1001 and 1035, there are salient differences. Notwithstanding the differences, this Article argues that Sections 1001 and 1035 should be interpreted without “intent to deceive” and rather be interpreted as a strict liability offense. This argument began with Part I, which provided a brief introduction regarding specific intent under Sections 1001 and 1035. Part II examines the purpose of criminalizing false statements, which identifies why the …