Evidence Commons^™

Network Investigation Techniques: Government Hacking And The Need For Adjustment In The Third-Party Doctrine, Eduardo R. Mendoza

St. Mary's Law Journal

Modern society is largely dependent on technology, and legal discovery is no longer limited to hard-copy, tangible documents. The clash of technology and the law is an exciting, yet dangerous phenomena; dangerous because our justice system desperately needs technological progress. The clash between scientific advancement and the search for truth has recently taken an interesting form—government hacking. The United States Government has increasingly used Network Investigation Techniques (NITs) to target suspects in criminal investigations. NITs operate by identifying suspects who have taken affirmative steps to conceal their identity while browsing the Internet. The hacking technique has become especially useful to …

Hacking Qualified Immunity: Camera Power And Civil Rights Settlements, Mary D. Fan

Articles

Excessive force cases are intensely fact-specific. Did the suspect resist, necessitating the use offorce? What threat did the suspect pose, if any? Was the use of force excessive in light of the situation? These are judgment calls based on myriad facts that differ from case to case. Establishing what really happened forces courts and juries to wade into a fact-bound morass filled with fiercely conflicting defendant-said, police-said battles.

Now an evidentiary transformation is underway. We are in an era where the probability of a police encounter being recorded has never been higher. With the rise of recording—by the public as …

Justice Visualized: Courts And The Body Camera Revolution, Mary D. Fan

Articles

What really happened? For centuries, courts have been magisterially blind, cloistered far away from the contested events that they adjudicate, relying primarily on testimony to get the story—or competing stories. Whether oral or written, this testimony is profoundly human, with all the passions, partisanship and imperfections of human perception.

Now a revolution is coming. Across the nation, police departments are deploying body cameras. Analyzing body camera policies from police departments across the nation, the article reveals an unfolding future where much of the main staple events of criminal procedure law will be recorded. Much of the current focus is on …

Electoral Evidence, Peter Nicolas

Articles

Each year, millions of Americans cast votes for specific candidates or on specific ballot measures. Each such vote generates potential "electoral evidence," the admissibility of which may be the subject of dispute in subsequent litigation. The evidence may take various forms, including the marked ballot itself, a voter's testimony regarding her vote, or her written or oral statements regarding her vote.

Electoral evidence is most commonly offered in litigation over the election outcome itself, with the parties seeking to determine how certain individuals voted to resolve a close election. However, its potential relevance is not limited to such proceedings. It …

Notice And Standing In The Fourth Amendment: Searches Of Personal Data, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

In at least two recent cases, courts have rejected service providers' capacity to raise Fourth Amendment claims on behalf of their customers. These holdings rely on longstanding Supreme Court doctrine establishing a general rule against third parties asserting the Fourth Amendment rights of others. However, there is a key difference between these two recent cases and those cases on which the doctrine rests. The relevant Supreme Court doctrine stems from situations in which someone could take action to raise the Fourth Amendment claim, even if the particular thirdparty litigant could not. In the situations presented by the recent cases, by …

Changing The Culture Of Disclosure And Forensics, Valena Beety

Articles by Maurer Faculty

This Essay responds to Professor Brandon Garrett’s Constitutional Regulation of Forensic Evidence, and, in particular, his identification of the dire need to change the culture of disclosing forensic evidence. My work on forensics is—similarly to Garrett’s—rooted in both scholarship and litigation of wrongful convictions. From this perspective, I question whether prosecutors fully disclose forensics findings and whether defense attorneys understand these findings and their impact on a client’s case. To clarify forensic findings for the entire courtroom, this Essay suggests increased pre-trial discovery and disclosure of forensic evidence and forensic experts. Forensic analysts largely work in police-governed labs; therefore, this …

Authenticating Digital Evidence, Paul W. Grimm, Daniel J. Capra, Gregory P. Joseph

Faculty Scholarship

No abstract provided.

The Implied Assertion Doctrine Applied To Legislative History, Noah Marks, Jessica Ranucci

Faculty Scholarship

This Article derives a new approach towards the use of legislative history to interpret statutes by adapting and applying the law of evidence. Courts use legislative history as hearsay evidence: out-of-court statements used for the truth of the matter asserted. Evidence law includes many exceptions under which hearsay becomes admissible. One such exception, the implied assertion exception, can be applied to courts' use of legislative history. Under this framework, legislative history can illuminate the interpretive enterprise, while many of the problems identified by opponents of legislative history are mitigated. After presenting the development of the implied assertion doctrine in evidence …

Mass Suppression: Aggregation And The Fourth Amendment, Nirej Sekhon

Georgia Law Review

The FourthAmendment's exclusionary rule requires that
criminal courts suppress evidence obtained as a result of
an unconstitutionalsearch or seizure. The Supreme Court
has repeatedly stated that suppression is purely
regulatory, not remedial. Its only purpose is to deter
future police misconduct, not to remedy past privacy or
liberty harms suffered by the defendant. Exclusion, in
other words, is for the benefit of community members who
might, sometime in the future, be subject to police
misconduct like that endured by the defendant.
Exclusion's regulatory purpose would be greatly aided if
criminal courts could identify when a suppression motion
involved Fourth Amendment …

"Make Him An Offer He Can't Refuse"-- Mezzanatto Waivers As Lynchpin Of Prosecutorial Overreach, Christopher B. Mueller

Publications

Plea bargaining is the dominant means of disposing of criminal charges in the United States, in both state and federal courts. This administrative mechanism has become a system that is grossly abusive of individual rights, leading to many well-known maladies of the criminal justice system, which include overcharging, overincarceration, convictions on charges that would likely fail at trial, and even conviction of “factually innocent” persons. Instrumental in the abuses of plea bargaining is the so-called Mezzanatto waiver, which takes its name from a 1995 Supreme Court decision that approved the practice of getting defendants to agree that anything they say …

Grave Crimes And Weak Evidence: Fact-Finding Evolution In International Criminal Law, Nancy Amoury Combs

Faculty Publications

International criminal courts carry out some of the most important work that a legal system can conduct: prosecuting those who have visited death and destruction on millions. Despite the significance of their work--or perhaps because of it--international courts face tremendous challenges. Chief among them is accurate fact-finding. With alarming regularity, international criminal trials feature inconsistent, vague, and sometimes false testimony that renders judges unable to assess with any measure of certainty who did what to whom in the context of a mass atrocity. This Article provides the first-ever empirical study quantifying fact-finding in an international criminal court. The study shines …

'What Do I Do With The Porn On My Computer?': How A Lawyer Should Counsel Clients About Physical Evidence, Peter A. Joy, Rodney J. Uphoff

Scholarship@WashULaw

This Article critically analyzes the legal and ethical limits of advice a lawyer may give clients about evidence of crimes, and provides examples of that advice in a number of situations involving clients with questions about what they should do with real and electronic evidence. When criminal charges have not been brought and are not expected, how much latitude does a lawyer have in giving advice to a client? When may a lawyer counsel a client to destroy contraband or other evidence of a crime? When a lawyer may not counsel destruction, is a lawyer legally and ethically permitted to …

When Religious Belief Becomes Scientific Opinion: Burwell V. Hobby Lobby And The Unraveling Of Federal Rule 702, Meredith Rachel Mandell

Northwestern Journal of Law & Social Policy

No abstract provided.

Reply To Miriam Baer And Michael Doucette’S Reviews Of Two Models Of Pre-Plea Discovery In Criminal Cases, Jenia I. Turner, Allison D. Redlich

Washington and Lee Law Review Online

No abstract provided.

Managing Fear-Based Derogation In Murder Trials, John Rafael Perez

Journal of Legislation

No abstract provided.

Strengths And Limitations Of Forensic Science: What Dna Exonerations Have Taught Us And Where To Go From Here, Vanessa Meterko

West Virginia Law Review

No abstract provided.

Folklore And Forensics: The Challenges Of Arson Investigation And Innocence Claims, Parisa Dehghani-Tafti, Paul Bieber

West Virginia Law Review

No abstract provided.

Scandal, Fraud, And The Reform Of Forensic Science: The Case Of Fingerprint Analysis, Simon A. Cole

West Virginia Law Review

No abstract provided.

An Uncivil Action: Criminalizating Daubert In Procedure And Practice To Avoid Wrongful Convictions, Jessica G. Cino

West Virginia Law Review

No abstract provided.

Building The Infrastructure For "Justice Through Science": The Texas Model, Sandra Guerra Thompson, Nicole Bremner Cásarez

West Virginia Law Review

No abstract provided.