Evidence Commons^™

Ensuring Protection Of Juveniles' Rights: A Better Way Of Obtaining A Voluntary Miranda Waiver, Yekaterina Berkovich

St. John's Law Review

(Excerpt)

Part I provides background information about the evolution of judicial treatment of juveniles and the admissibility of confessions. Part II analyzes the different approaches applied by federal and state courts to determine whether a juvenile's waiver of rights was voluntary and examines the flaws in those approaches. Part III proposes a new approach to remedy the problems courts have faced with the existing approaches and to provide consistent outcomes at the federal level.

Defending Daubert: It's Time To Amend Federal Rule Of Evidence 702, David E. Bernstein, Eric G. Lasker

William & Mary Law Review

The 2000 amendments to Rule 702 sought to resolve the debate that had emerged in the courts in the 1990s over the proper meaning of Daubert by codifying the rigorous and structured approach to expert admissibility announced in the Daubert trilogy. Fifteen years later, however, the amendments have only partially accomplished this objective. Many courts continue to resist the judiciary’s proper gatekeeping role, either by ignoring Rule 702’s mandate altogether or by aggressively reinterpreting the Rule’s provisions.

Informed by this additional history of recalcitrance, the time has come for the Judicial Conference to return to the drafting table and finish …

Defending The Black Sheep Of The Forensic Dna Family: The Case For Implementing Familial Dna Searches In Minnesota, Amy Liberty

Hamline Law Review

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Cross-Racial Identifications: Solutions To The "They All Look Alike" Effect, Laura Connelly

Michigan Journal of Race and Law

On a late summer evening in August of 1997, Nathan Brown was in his apartment rocking his young daughter to sleep when the police knocked on his door. The police sought Brown, one of a few Black men in his apartment complex, after a young White woman said she had been assaulted by a shirtless Black man wearing black shorts with strong body odor walking through the complex’s courtyard. Minutes later the police took Brown outside and put him in the patrol car for a one-on-one “showup.” They brought him out by himself to see the victim wearing black shorts …

The Incompatibility Of Due Process And Naked Statistical Evidence, G. Alexander Nunn

Faculty Scholarship

Numerous articles and commentaries have grappled with an undeniable feeling of injustice that comes from wrestling with naked statistical evidence. Even if, from a purely quantitative standpoint, the weight of the evidence supports the imposition of liability on a defendant, the sole use of probabilities to assess this liability seems innately unfair. This tension has spawned a great debate that questions the role of naked statistical evidence in today’s legal system. Contributing to this discourse, this Note argues that, in certain circumstances, the use of naked statistical evidence constitutes a due process violation. United States circuit courts have held that …

The Future Of Confession Law: Toward Rules For The Voluntariness Test, Eve Brensike Primus

Michigan Law Review

Confession law is in a state of collapse. Fifty years ago, three different doctrines imposed constitutional limits on the admissibility of confessions in criminal cases: Miranda doctrine under the Fifth Amendment, Massiah doctrine under the Sixth Amendment, and voluntariness doctrine under the Due Process Clauses of the Fifth and Fourteenth Amendments. But in recent years, the Supreme Court has gutted Miranda and Massiah, effectively leaving suspects with only voluntariness doctrine to protect them during police interrogations. The voluntariness test is a notoriously vague case-by-case standard. In this Article, I argue that if voluntariness is going to be the framework for …

No Law And No Order: Local, State And Federal Government Responses To The United States Rape Kit Backlog Crisis, Glenne Ellen Fucci

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

The Incompatibility Of Due Process And Naked Statistical Evidence, G. Alexander Nunn

Vanderbilt Law Review

Qualitative evidence is a cornerstone of the modern trial system. Parties often invoke eyewitness testimony, character witnesses, or other forms of direct and circumstantial evidence when seeking to advance their case in the courtroom, enabling jurors to reach a verdict after weighing two competing narratives.' But what if testimonial, experience-based evidence were removed from trials? In a legal system that draws its legitimacy from centuries of tradition-emphasizing notions of fairness even above absolute accuracy. Would a jury, not to mention the public at large, reject a verdict that imposes liability or guilt on a defendant in the complete absence of …

Ultracrepidarianism In Forensic Science: The Hair Evidence Debacle, David H. Kaye

Washington and Lee Law Review Online

For over 130 years, scientific sleuths have inspected hairs under microscopes. Late in 2012, the FBI, the Innocence Project, and the National Association of Criminal Defense Lawyers joined forces to review thousands of microscopic hair comparisons performed by FBI examiners over several of those decades. The results have been astounding. Based on the first few hundred cases in which hairs were said to match, it appears that examiners exceeded the limits of science in over 90% of their reports or testimony. The disclosure of this statistic has led to charges that the FBI faked an entire field of forensic science, …

Florida's "Brave New World": The Transition From Frye To Daubert Will Transform The Playing-Field For Litigants In Medical Causation Cases, Erica W. Rutner, Lara B. Bach

Barry Law Review

No abstract provided.

Blackness As Character Evidence, Mikah K. Thompson

Michigan Journal of Race and Law

Federal Rule of Evidence 404 severely limits the government’s ability to offer evidence of a defendant’s character trait of violence to prove action in conformity with that trait on the occasion in question. The Rule states that such character evidence is generally inadmissible when offered to prove propensity. The Rule also allows the government to offer evidence of an alleged victim’s character for peacefulness in homicide cases where the defendant asserts the self-defense privilege. Although criminal defendants may offer character evidence under limited circumstances, Rule 404 creates a significant disincentive for doing so. Where a defendant offers evidence of an …

Privilege Against Self-Incrimination - Right To Compel A Suspect To Perform Physical Acts; City Of Piqua V. Hinger, Charles P. Brumbach

Akron Law Review

The writer respectfully disagrees with the Ohio Supreme Court's interpretation of Schmerber as standing for the proposition that such compelled evidence is admissible under the Fifth Amendment to the Constitution. In Schmerber the court merely recognized the evidential distinction between real and testimonial or communicative evidence and ruled that the distinction was determinative in that case. The court acknowledged that there are many possible situations in which the distinction could not so readily be applied. It is submitted that the facts of the instant case present one of those situations.

Voir Dire: Strategy And Tactics In The Defense Of Social And Political Activists, Murray R. Bowes

Akron Law Review

With the courts increasingly being the forum for legal disputes between those who demand change in the superstructure and those who represent (or are) the structure, a rather unfortunate by-product has evolved: a feeling that the courts can no longer adequately dispense justice.8 This manifests itself in beliefs that if one is prosecuted for activities that were designed to advance social change, either in violation of the law or not, that the individual will not be afforded a fair trial; 9 a reflection that the social or political activist will not be judged by an impartial jury….For the purposes of …

The Admissibility Of Polygraph ("Lie Detector") Evidence Pursuant To Stipulation In Criminal Proceedings, Bruce C. Heslop

Akron Law Review

American courts have traditionally held that evidence pertaining to the results of a lie-detector test is inadmissible in a criminal proceeding on behalf of either the prosecution or defense….In recent years, however, a few jurisdictions have withdrawn from the traditional approach and have admitted lie-detector evidence in limited situations, notwithstanding objection by the adverse party….The decision of whether or not to adopt the approach presented here must critically evaluate the potential value of polygraph evidence along with its potential dangers. In so doing, the courts of Ohio should determine whether a procedure may be devised to maximize the value and …

Evidence - Admissibility Of Statements To Parole Officer - Miranda Warnings; State V. Gallagher, Thomas A. Treadon

Akron Law Review

The opinion handed down in this recent decision from the Montgomery County Court of Appeals examined a question of first impression in the courts of Ohio. The issue presented was "whether a parole or probation officer is a law enforcement officer within the contemplation of Miranda and thus subject to the Miranda requirements of constitutional warnings to suspects during custodial interrogation...."

Ohio's New Rape Law: Does It Protect Complainant At The Expense Of The Rights Of The Accused?, Barbara Child

Akron Law Review

WITH THE ENACTMENT of Am. Sub. S.B. 144,1 Ohio has now joined the small group of states' that are revising their rape laws in measures significant enough to indicate that a trend may be underway. Ohio's new law is designed to protect victims of sex offenses: it contains major provisions affecting (1) the definition of rape itself; (2) new services for victims; (3) record suppression; (4) evidence rules; and (5) sentencing for certain offenders. The new law attempts to secure complainants' rights to privacy and equal protection together with defendants' rights to a fair trial and due process; however, the …

Ohio's "Similar Acts Statute": Its Uses And Abuses, David L. Herbert, Dick W. Mount Jr.

Akron Law Review

Notwithstanding the lack of uniform analysis of the Act, this article should isolate the main areas of confusion and hopefully provide some "food for thought" which may in itself help to resolve the ambiguities of the statute. Moreover, the discussion offered herein may prompt the recently established Ohio Evidence Rules Committee to devote some time to the formulation of a clearer evidentiary statement on prosecutorial use of "other acts" testimony in criminal cases.

Admissibility Of Voiceprints Not Limited To "Corroborative Purposes" Unted States V. Franks, R. Brent Chapman

Akron Law Review

ON FEBRUARY 12, 1975, the United States Court of Appeals for the Sixth Circuit decided United States v. Franks,' affirming a district court ruling, which permitted the use of voiceprints for purposes of identification and marking the first occasion in which a circuit court had held such evidence admissible.

Affirmative Defenses; Defendant's Burden Of Proof: Defense Of Extreme Emotional Disturbance; Due Process; Patteron V. New York, Lee Ann Johnson

Akron Law Review

The United States Supreme Court in Patterson v. New York upheld the constitutionality of a New York murder statute which places on the defendant the burden of proving extreme emotional disturbance. The Court thereby determined that New York courts in applying the statute against defendant Gordon Patterson had not violated his right to due process of law

Sixth Amendment; Right Of Confrontation; Unavailalbe Witness; State V. Roberts, Christopher C. Manthey, Carol G. Simonetti

Akron Law Review

"THE SIXTH AMENDMENT to the Constitution states that "[iln all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him .... ." This seems simple and absolute, but case law has proven it to be neither; almost every phrase has been dissected and interpreted by courts and commentators. In fact, there may be more law review articles on this subject than there are cases.1 Some of the questions that could be asked are: What is meant by "all criminal prosecutions?" Does this require confrontation in preliminary hearings? Does "shall enjoy the …