Open Access. Powered by Scholars. Published by Universities.®

Evidence Commons™

Open Access. Powered by Scholars. Published by Universities.®

5,971 Full-Text Articles 4,696 Authors 7,090,706 Downloads 146 Institutions

All Articles in Evidence

Faceted Search

5,971 full-text articles. Page 48 of 117.

Between Brady Discretion And Brady Misconduct, Bennett L. Gershman 2019 Elisabeth Haub School of Law at Pace University

Between Brady Discretion And Brady Misconduct, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The Supreme Court’s decision in Brady v. Maryland presented prosecutors with new professional challenges. In Brady, the Supreme Court held that the prosecution must provide the defense with any evidence in its possession that could be exculpatory. If the prosecution fails to timely turn over evidence that materially undermines the defendant’s guilt, a reviewing court must grant the defendant a new trial. While determining whether evidence materially undermines a defendant’s guilt may seem like a simple assessment, the real-life application of such a determination can be complicated. The prosecution’s disclosure determination can be complicated under the Brady paradigm because the …


Save Your Breath: A Constitutional Analysis Of The Criminal Penalties For Refusing Breathalyzer Tests In The Wake Of Birchfield V. North Dakota, Kylie Fisher 2019 University of Washington School of Law

Save Your Breath: A Constitutional Analysis Of The Criminal Penalties For Refusing Breathalyzer Tests In The Wake Of Birchfield V. North Dakota, Kylie Fisher

Washington Law Review Online

Statutes that criminally penalize suspected drunk drivers who refuse to submit to testing of their blood alcohol concentration emerged in a number of states as a way to better enforce implied consent statutes that require drivers submit to such testing. In Birchfield v. North Dakota, the Supreme Court held that statutes that criminally punish individuals for refusing a blood test were unconstitutional but upheld criminal refusal statutes regarding breath tests. Much of the reasoning in the majority’s opinion stemmed from a shallow perception of the invasion that breath tests pose to individual privacy interests. Justice Sotomayor’s dissenting opinion noted …


From Clause A To Clause Z: Narrative Transportation And The Transactional Reader, Susan M. Chesler, Karen J. Snedden 2019 Arizona State University, Sandra Day O'Connor College of Law

From Clause A To Clause Z: Narrative Transportation And The Transactional Reader, Susan M. Chesler, Karen J. Snedden

South Carolina Law Review

No abstract provided.


A Warrant Requirement Resurgence: The Fourth Amendment In The Roberts Court, Benjamin Priester 2019 FAMU College of Law

A Warrant Requirement Resurgence: The Fourth Amendment In The Roberts Court, Benjamin Priester

Journal Publications

Over many years, the United States Supreme Court has developed an extensive body of precedent interpreting and enforcing the provisions of the Fourth Amendment to the United States Constitution, which prohibits unreasonable searches and seizures by law enforcement agents conducting criminal investigations. Commonly called the "warrant requirement," one key component of this case law operates to deem some police investigatory techniques to be unconstitutional unless they are conducted pursuant to a search warrant issued in advance by a judge. The terms of the doctrine and its exceptions also authorize other investigatory actions as constitutionally permissible without a search warrant. The …


Confidences Worth Keeping: Rebalancing Legitimate Interests In Litigants' Private Information In An Era Of Open-Access Courts, Jeffrey W. Sheehan 2019 Vanderbilt University Law School

Confidences Worth Keeping: Rebalancing Legitimate Interests In Litigants' Private Information In An Era Of Open-Access Courts, Jeffrey W. Sheehan

Vanderbilt Journal of Entertainment & Technology Law

The ideal of the public trial in open court continues to guide decisions about public access to courts and their records, even as cases are increasingly decided "on the papers." This is still the case when those "papers" take the form of electronic documents that can be uploaded, downloaded, copied, and distributed by anyone with an internet connection. A series of opinions from the US Court of Appeals for the Sixth Circuit reinforcing this ideal of public access to court records and unsealing district court filings offers an opening to reconsider core values that must inform our treatment of private …


Burying Evidence's Dead Hand, Matthew D. Provencher 2019 J.D. 2015 Roger Williams University School of Law

Burying Evidence's Dead Hand, Matthew D. Provencher

Roger Williams University Law Review

When the Rhode Island Rules of Evidence were adopted, they displaced all inconsistent case law existing at the time. Though the Rules retain a great deal of the evidence practice that preceded them, there is much in evidence practice that changed with their adoption. Rhode Island courts have consistently applied Rule 403 in a manner that comports with practice as it existed before the enactment of the Rhode Island Rules of Evidence. That practice, though, is inconsistent with the plain language of the Rule. These doctrines must be discarded.


Pleading Guilty To Innocence: How Faulty Field Tests Provide False Evidence Of Guilt, Kaelyn Phelps 2019 J.D. 2019, Roger Williams University School of Law

Pleading Guilty To Innocence: How Faulty Field Tests Provide False Evidence Of Guilt, Kaelyn Phelps

Roger Williams University Law Review

No abstract provided.


Evidence Law: Convictions Based On Circumstantial Evidence, Binyamin Blum 2019 UC Law SF

Evidence Law: Convictions Based On Circumstantial Evidence, Binyamin Blum

The Judges' Book

No abstract provided.


Immigration Unilateralism And American Ethnonationalism, Robert L. Tsai 2019 Boston University School of Law

Immigration Unilateralism And American Ethnonationalism, Robert L. Tsai

Faculty Scholarship

This paper arose from an invited symposium on "Democracy in America: The Promise and the Perils," held at Loyola University Chicago School of Law in Spring 2019. The essay places the Trump administration’s immigration and refugee policy in the context of a resurgent ethnonationalist movement in America as well as the constitutional politics of the past. In particular, it argues that Trumpism’s suspicion of foreigners who are Hispanic or Muslim, its move toward indefinite detention and separation of families, and its disdain for so-called “chain migration” are best understood as part of an assault on the political settlement of the …


Immigration Unilateralism And American Ethnonationalism, Robert Tsai 2019 American University Washington College of Law

Immigration Unilateralism And American Ethnonationalism, Robert Tsai

Scholarly Articles in Law Reviews & Journals

This paper arose from an invited symposium on "Democracy in America: The Promise and the Perils," held at Loyola University Chicago School of Law in Spring 2019. The essay places the Trump administration’s immigration and refugee policy in the context of a resurgent ethnonationalist movement in America as well as the constitutional politics of the past. In particular, it argues that Trumpism’s suspicion of foreigners who are Hispanic or Muslim, its move toward indefinite detention and separation of families, and its disdain for so-called “chain migration” are best understood as part of an assault on the political settlement of the …


Punishment Without Process: Victim Impact Proceedings For Dead Defendants, Bruce Green, Rebecca Roiphe 2019 New York Law School

Punishment Without Process: Victim Impact Proceedings For Dead Defendants, Bruce Green, Rebecca Roiphe

Articles & Chapters

After Jeffrey Epstein committed suicide in jail, two judges allowed his accusers to speak in court. This article argues that the proceedings were inappropriate because the criminal case ends when the defendant dies. If the conviction and appeal are not final, there is no finding of guilt, and the defendant is still presumed innocent. Allowing accusers to speak at this time violates the principle of due process and threatens to undermine faith in judges and the criminal justice system in general. While courts are at times legally required to hear from victims of crimes, they were not allowed to do …


Poetry In Motion: The Federal Rules Of Evidence And Forward Progress As An Imperative, Daniel J. Capra, Liesa L. Richter 2019 Fordham University School of Law

Poetry In Motion: The Federal Rules Of Evidence And Forward Progress As An Imperative, Daniel J. Capra, Liesa L. Richter

Faculty Articles

This Article dives into the long-standing debate about the propriety of altering the time-honored Federal Rules of Evidence. Noted authorities, such as the late Chief Justice Rehnquist, have eschewed any modification to the Rules, claiming that they must remain essentially fixed in their original form to maximize their utility to trial advocates and to avoid wasteful dislocation costs that accompany updates. Unlike the many scholarly works examining the merits and demerits of particular evidence rules, this Article shines a light on the lesser examined process of amending the Federal Rules of Evidence, revealing a taxonomy of evidentiary circumstances or trigger …


Evidence On Fire, Valena Beety, Jennifer Oliva 2019 Indiana University Maurer School of Law

Evidence On Fire, Valena Beety, Jennifer Oliva

Articles by Maurer Faculty

Fire science, a field largely developed by lay “arson investigators,” police officers, or similar first responders untrained in chemistry and physics, has been historically dominated by unreliable methodology, demonstrably false conclusions, and concomitant miscarriages of justice. Fire investigators are neither subject to proficiency testing nor required to obtain more than a high school education. Perhaps surprisingly, courts have largely spared many of the now debunked tenets of fire investigation any serious scientific scrutiny in criminal arson cases. This Article contrasts the courts’ ongoing lax admissibility of unreliable fire-science evidence in criminal cases with their strict exclusion of the same flimsy …


Making Rule 23 Ideal: Using A Multifactor Test To Evaluate The Admissibility Of Evidence At Class Certification, Cianan M. Lesley 2019 University of Michigan Law School

Making Rule 23 Ideal: Using A Multifactor Test To Evaluate The Admissibility Of Evidence At Class Certification, Cianan M. Lesley

Michigan Law Review

Circuit courts are split on whether and to what extent the Daubert standard should apply at class certification. Potential plaintiffs believe that application of Daubert would make it nearly impossible to obtain class certification. For potential defendants, the application of the standard is an important way to ensure that the certification process is fair. This Note examines the incentives underlying the push to apply the Daubert standard at class certification and the benefits and drawbacks associated with that proposal. It proposes a solution that balances the concerns of both plaintiffs and defendants by focusing on three factors: the obstacles to …


Parol Evidence Rules And The Mechanics Of Choice, Gregory Klass 2019 Georgetown University Law Center

Parol Evidence Rules And The Mechanics Of Choice, Gregory Klass

Georgetown Law Faculty Publications and Other Works

Scholars have to date paid relatively little attention to the rules for deciding when a writing is integrated. These integration rules, however, are as dark and full of subtle difficulties as are other parts of parol evidence rules. As a way of thinking about Hanoch Dagan and Michael Heller’s The Choice Theory of Contracts, this Article suggests we would do better with tailored integration rules for two transaction types. In negotiated contracts between firms, courts should apply a hard express integration rule, requiring firms to say when they intend a writing to be integrated. In consumer contracts, standard terms …


An Erie Approach To Privilege Doctrine., Megan M. La Belle 2019 The Catholic University of America, Columbus School of Law

An Erie Approach To Privilege Doctrine., Megan M. La Belle

Scholarly Articles

This short essay considers the HannStar and Silver cases and begins a discussion of the impact that the Erie doctrine has—and, more importantly, ought to have—on privilege law. While Erie is considered by many as “one of the modern cornerstones of our federalism,” the doctrine is important too for the change it can effect through the cross pollination of ideas among tribunals. Because privilege laws reflect deliberate policy choices by legislatures and courts, the Erie doctrine arguably plays a particularly vital role in developing this area of the law.


Self-Policing: Dissemination And Adoption Of Police Eyewitness Policies In Virginia, Brandon L. Garrett 2019 Duke Law School

Self-Policing: Dissemination And Adoption Of Police Eyewitness Policies In Virginia, Brandon L. Garrett

Faculty Scholarship

Professional policing organizations emphasize the importance of the adoption of sound police policies and procedures, but traditionally doing so has been left to individual agencies. State and local government typically does not closely regulate police, and neither federal constitutional rulings nor state law typically sets out in any detail the practices that police should follow. Thus, law enforcement agencies must themselves draft and disseminate policy. This paper presents the results of studies used to assess the adoption of eyewitness identification policies by law enforcement agencies in Virginia. Policymakers were focused on this problem because Virginia experienced a series of DNA …


A Likelihood Story: The Theory Of Legal Fact-Finding, Sean P. Sullivan 2019 University of Colorado Law School

A Likelihood Story: The Theory Of Legal Fact-Finding, Sean P. Sullivan

University of Colorado Law Review

Are racial stereotypes a proper basis for legal fact-finding? What about gender stereotypes, sincerely believed by the factfinder and informed by the fact-finder's life experience? What about population averages: if people of a certain gender, education level, and past criminal history exhibit a statistically greater incidence of violent behavior than the population overall, is this evidence that a given person within this class did act violently on a particular occasion? The intuitive answer is that none of these feel like proper bases on which fact-finders should be deciding cases. But why not? Nothing in traditional probability or belief-based theories of …


Privacy And Security Across Borders, Jennifer Daskal 2019 American University Washington College of Law

Privacy And Security Across Borders, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

Three recent initiatives -by the United States, European Union, and Australiaare opening salvos in what will likely be an ongoing and critically important debate about law enforcement access to data, the jurisdictional limits to such access, and the rules that apply. Each of these developments addresses a common set of challenges posed by the increased digitalization of information, the rising power of private companies delimiting access to that information, and the cross-border nature of investigations that involve digital evidence. And each has profound implications for privacy, security, and the possibility of meaningful democratic accountability and control. This Essay analyzes the …


Trade Openness And Antitrust Law, Anu Bradford, Adam S. Chilton 2019 Columbia Law School

Trade Openness And Antitrust Law, Anu Bradford, Adam S. Chilton

Faculty Scholarship

Openness to international trade and adoption of antitrust laws can both curb anti-competitive behavior. But scholars have long debated the relationship between the two. Some argue that greater trade openness makes antitrust unnecessary, while others contend that antitrust laws are still needed to realize the benefits of trade liberalization. Data limitations have made this debate largely theoretical to date. We study the relationship between trade and antitrust empirically using new data on antitrust laws and enforcement activities. We find that trade openness and stringency of antitrust laws are positively correlated from 1950 to 2010 overall, but the positive correlation disappears …


Digital Commons powered by bepress