The Admissibility Of Sampling Evidence To Prove Individual Damages In Class Actions,
2018
Southern Methodist University, Dedman School of Law
The Admissibility Of Sampling Evidence To Prove Individual Damages In Class Actions, Hillel J. Bavli, John Kenneth Felter
Faculty Journal Articles and Book Chapters
The 2016 Supreme Court decision in Tyson Foods, Inc. v. Bouaphakeo revived the use of “representative” or sampling evidence in class actions. Federal courts are now more receptive to class plaintiffs’ efforts to prove classwide liability and, occasionally, aggregate damages, with sampling evidence. However, federal courts still routinely deny motions for class certification because they find that calculations of class members’ individual damages defeat the predominance prerequisite of Rule 23(b)(3). As a result, meritorious classwide claims founder. In this paper, we combine legal and statistical analyses and propose a novel solution to this dilemma that adheres to the Tysondecision …
Debunked, Discredited, But Still Defended: Why Prosecutors Resist Challenges To Bad Science And Some Suggestions For Crafting Remedies For Wrongful Conviction Based On Changed Science,
2018
Indiana University Maurer School of Law
Debunked, Discredited, But Still Defended: Why Prosecutors Resist Challenges To Bad Science And Some Suggestions For Crafting Remedies For Wrongful Conviction Based On Changed Science, Aviva A. Orenstein
Articles by Maurer Faculty
Flawed science has significantly contributed to wrongful convictions. Courts struggle with how to address such convictions when the mistaken science (such as bogus expert claims about the differences between accidental fires and intentionally set ones) significantly affected the guilty verdict but there is no DNA evidence to directly exonerate the accused. My short piece explores why prosecutors often defend bad science. Mistakes in science tend to serve the prosecution, but there are other more subtle factors that explain prosecutors’ reluctance to address flawed forensic testimony. Such reluctance may arise from fondness for the status quo and a resistance to subverting …
Character Flaws,
2018
University of Colorado Law School
Character Flaws, Frederic Bloom
University of Colorado Law Review
Character evidence doctrine is infected by error. It is riddled with a set of pervasive mistakes and misconceptions-a group of gaffes and glitches involving Rule 404(b)'s "other purposes" (like intent, absence of accident, and plan) that might be called "character flaws." This Essay identifies and investigates those flaws through the lens of a single, sensational case: United States v. Henthorn. By itself, Henthorn is a tale worth telling-an astonishing story of danger and deceit, malice and murder. But Henthorn is more than just a stunning story. It is also an example and an opportunity, a chance to consider character flaws …
Touch Dna And Chemical Analysis Of Skin Trace Evidence: Protecting Privacy While Advancing Investigations,
2017
William & Mary Law School
Touch Dna And Chemical Analysis Of Skin Trace Evidence: Protecting Privacy While Advancing Investigations, Mary Graw Leary
William & Mary Bill of Rights Journal
This Article addresses touch DNA, chemical analysis of skin traces, and the implications for crime scene investigation, arguing that changes in how trace evidence is analyzed require alterations in the law’s approach to its use. Part I discusses the history of traditional DNA analysis. Part II examines the emergence of touch DNA and related technologies and how they differ from traditional DNA analysis. Part III outlines the specific risks created by the collection and storing of results under the current outdated jurisprudence. Part IV focuses on specific risks to suspects and victims of crime. Part V proposes a legal framework …
Abid V. Abid, 133 Nev. Adv. Op. 94 (Dec. 7, 2017) (En Banc),
2017
University of Nevada, Las Vegas -- William S. Boyd School of Law
Abid V. Abid, 133 Nev. Adv. Op. 94 (Dec. 7, 2017) (En Banc), Carmen Gilbert
Nevada Supreme Court Summaries
The Court held that the district court properly exercised its discretion in allowing illegally recorded conversations to be used by a court appointed child psychologist to evaluate a child’s welfare in a custody case.
Close Enough For Government Work: Proving Minimal Nexus In A Federal And Firearms Conviction: United States V. Corey,
2017
University of Maine School of Law
Close Enough For Government Work: Proving Minimal Nexus In A Federal And Firearms Conviction: United States V. Corey, Barbara H. Taylor
Maine Law Review
In United States v. Corey, Alvin Scott Corey was found guilty of possessing a firearm as a felon. Although Corey's possession of a Smith and Wesson shotgun violated Maine law, Corey was prosecuted in the United States District Court under the federal statute 18 U.S.C. § 922(g)(1) and its penalty statute, § 924(e). On appeal, Corey argued that one of the requirements for his conviction, proof of the statute's jurisdictional element, had not been satisfied because that proof rested on expert testimony based, in part, on hearsay. The First Circuit Court of Appeals, in a split decision, affirmed Corey's conviction, …
Scientific Evidence And Forensic Science Since Daubert: Maine Decides To Sit Out On The Dance,
2017
University of Maine School of Law
Scientific Evidence And Forensic Science Since Daubert: Maine Decides To Sit Out On The Dance, Thomas L. Bohan
Maine Law Review
In 1993, the Supreme Court of the United States stated that with the federal adoption of statutory rules of evidence in 1975, the common law rule for determining admissibility of scientific testimony was superseded, and that thenceforth admissibility of scientific testimony was to be determined solely by Federal Rule of Evidence 702 (Rule 702). The Frye standard had been adopted in one form or another by most of the federal circuits and by many of the state courts during the 70 years preceding Daubert. Referred to as the “general acceptance” standard, the Frye standard--although adopted in a variety of forms--had …
Rus V Comcare: The Rules Of Evidence In The Aat,
2017
University of Notre Dame, Australia
Rus V Comcare: The Rules Of Evidence In The Aat, Nicholas Cardaci
The University of Notre Dame Australia Law Review
The Rus v Comcare cases arise from a claim for compensation by the widowed Ms Rus. The cases saw a highly contentious piece of evidence tendered. This evidence was hearsay of a lay opinion that answered the ultimate issue. The evidence was considered by the Administrative Appeals Tribunal (‘AAT’) and the Federal Court of Australia (‘Court’). These considerations demonstrate the uncertainty of how the rules of evidence are applicable in tribunals. Specifically, the cases raise applicability of the rules against opinion and hearsay evidence. Further, the relevance of delay and the parol evidence rule to these cases is raised. The …
Meaningful Access And Disability Discrimination: The Role Of Social Science And Other Empirical Evidence,
2017
DePaul University College of Law
Meaningful Access And Disability Discrimination: The Role Of Social Science And Other Empirical Evidence, Mark C. Weber
Cardozo Law Review
In cases alleging disability discrimination in the provision of state and local government services, courts frequently hold that plaintiffs' claims depend on the question whether, despite the disadvantage that government actions impose, the plaintiffs nevertheless receive meaningful access to the government services. Whether people with disabilities actually have meaningful access is in reality a factual question, one on which social science and other empirically supported facts should matter. But courts frequently ignore evidence about the nature and level of access that people with disabilities have to government programs when decisions regarding those programs are being challenged. This Article catalogues judicial …
Evidence,
2017
Mercer University School of Law
Evidence, John E. Hall Jr., W. Scott Henwood, L. Witt Carmon Ii
Mercer Law Review
Following the adjustments to Georgia's Evidence Code on January 1, 2013, Georgia courts have developed significant case law interpreting various changes from the old code. This year's survey period marks the fourth year since the landmark alterations to the Georgia Evidence Code, Official Code of Georgia Annotated (O.C.G.A.) Title 24 took effect. Addressed in this year's Article are cases spanning from June 1, 2016 to May 31, 2017. Specifically, this Article addresses the following: (1) Significant developments regarding the admissibility of evidence ascertained by or maintained through technology; (2) Special rules of admissibility tied to crimes of sexual misconduct or …
Contemplating The Use Of Classified Or State Secret Information Obtained Ex Parte On The Merits In Civil Litigation: Bl(A)Ck Tea Society V. City Of Boston,
2017
University of Maine School of Law
Contemplating The Use Of Classified Or State Secret Information Obtained Ex Parte On The Merits In Civil Litigation: Bl(A)Ck Tea Society V. City Of Boston, Brian M. Tomney
Maine Law Review
In Bl(a)ck Tea Society v. City of Boston, the First Circuit Court of Appeals affirmed, without dissent, a district court's ruling denying protesters at the 2004 Democratic National Convention a preliminary injunction designed to force the City of Boston to modify its designated demonstration zone (DZ) and remove some of the draconian security measures surrounding the zone. The injunction was denied by Judge Woodlock after he personally inspected the DZ and determined that, given “constraints of time, geography, and safety,” there were no viable alternatives—to site location or construction of the DZ itself—that could reasonably occur before the convention started. …
Petition For A Writ Of Certiorari. Kirk V. Invesco, Limited, 138 S.Ct. 1164 (2018) (No. 17-762), 2017 U.S. S. Ct. Briefs Lexis 4618, 2017 Wl 5665441,
2017
University of Washington School of Law
Petition For A Writ Of Certiorari. Kirk V. Invesco, Limited, 138 S.Ct. 1164 (2018) (No. 17-762), 2017 U.S. S. Ct. Briefs Lexis 4618, 2017 Wl 5665441, Eric Schnapper, Nitin Sud
Court Briefs
QUESTION PRESENTED The Fair Labor Standards Act provides that covered employees who work more than 40 hours in a week must generally be paid overtime at a rate one and one-half times their regular rate. To assure compliance with that overtime rule, the Act and governing regulations require employers to maintain records of all hours worked by covered employees. If an employer has failed to keep the legally required records, the burden on the employee under Anderson v. Mt. Clemens Pottery Co. is simply to "produce[] sufficient evidence to show the amount and extent of that work as a matter …
Calling Crawford: Minnesota Declares A 911 Call Non-Testimonial In State V. Wright,
2017
University of Maine School of Law
Calling Crawford: Minnesota Declares A 911 Call Non-Testimonial In State V. Wright, Alistair Y. Raymond
Maine Law Review
In State v. Wright, 1 the State of Minnesota charged David Wright with possession of a firearm by a felon and two counts of second-degree assault against his girlfriend and her sister. A jury found Wright guilty on all charges and sentenced him to sixty months in jail for each crime, with sentences served concurrently. Wright’s girlfriend, R.R., and her sister, S.R., did not testify against him at trial. The prosecution, however, used the transcript of a 911 call placed by R.R. against Wright in the trial. Although the 911 call was hearsay, the court admitted it under Minnesota’s excited …
Morales V. Portuondo: Has The Seal Of The Confessional Sprung A Leak?,
2017
St. John's University School of Law
Morales V. Portuondo: Has The Seal Of The Confessional Sprung A Leak?, Jordan B. Woods
The Catholic Lawyer
No abstract provided.
Appendix: Conjunction-Problem V. Non-Conjunction-Problem Jurisdictions,
2017
William & Mary Law School
Appendix: Conjunction-Problem V. Non-Conjunction-Problem Jurisdictions, David S. Schwartz, Elliott Sober
William & Mary Law Review Online
This appendix presents the relevant data from our survey of jury instructions in support of the article in the print edition of the William & Mary Law Review. The Conjunction Problem and the Logic of Jury Findings (59 Wm. & Mary L. Rev. 619, 673-87 (2017))
You Say Its Your Birthday... But Could You Prove It?,
2017
Alexander Blewett III School of Law at the University of Montana
You Say Its Your Birthday... But Could You Prove It?, Cynthia Ford
Faculty Journal Articles & Other Writings
No abstract provided.
A Step Toward Robust Criminal Discovery Reform In Virginia: The Disclosure Of Witness Statements Before Trial,
2017
University of Richmond School of Law
A Step Toward Robust Criminal Discovery Reform In Virginia: The Disclosure Of Witness Statements Before Trial, Jennifer Horan
University of Richmond Law Review
No abstract provided.
The Conjunction Problem And The Logic Of Jury Findings,
2017
William & Mary Law School
The Conjunction Problem And The Logic Of Jury Findings, David S. Schwartz, Elliott Sober
William & Mary Law Review
For several decades, evidence theorists have puzzled over the following paradox, known as the “conjunction paradox” or “conjunction problem.” Probability theory appears to tell us that the probability of a conjunctive claim is the product resulting from multiplying the probabilities of its separate conjuncts. In a three element negligence case (breach of duty, causation, damages), a plaintiff who proves each element to a 0.6 probability will have proven her overall claim to a very low probability of 0.216. Either the plaintiff wins the verdict based on this low probability (if the jury focuses on elements), or the plaintiff loses despite …
Unconstitutional Asymmetry Or A Rational Basis For Inconsistency? The Admissibility Of Medical Malpractice Prelitigation Screening Panel Findings Before And After Smith V. Hawthorne I And Ii,
2017
University of Maine School of Law
Unconstitutional Asymmetry Or A Rational Basis For Inconsistency? The Admissibility Of Medical Malpractice Prelitigation Screening Panel Findings Before And After Smith V. Hawthorne I And Ii, Matthew Asnault Morris
Maine Law Review
Pre-litigation screening panels have been instrumental in streamlining medical malpractice litigation in the State of Maine by culling claims from superior court dockets, encouraging settlements, and providing findings of fact that could prove useful for a jury if the case proceeds to trial. In enacting one particular provision governing the confidentiality and the admissibility of the screening panel process, however, the legislature may have sacrificed the constitutional rights of medical malpractice claimants in favor of a lighter docket. Two recent cases before the Law Court, Smith I and II, have challenged the constitutionality of Maine’s unique statutory approach to the …
The Excited Utterance Paradox,
2017
Seattle University School of Law
The Excited Utterance Paradox, Steven Baicker-Mckee
Seattle University Law Review
Based on nothing more than John Henry Wigmore’s personal belief that a witness under the throes of excitement is unable to fabricate an untruthful statement, the excited utterance exception allows parties to present out-of-court statements to the jury or judge without any of the safeguards the judicial system uses to promote honest and accurate testimony. This Article collects and examines much of the scientific evidence bearing on Wigmore’s premise and identifies two paradoxical conclusions that undermine the exception. First, the premise itself is unfounded; science absolutely does not support the notion that a witness is incapable of lying while emotionally …
