Evidence Commons^™

United States V. Ross: Search And Seizure Made Simple, Donald L. Dalton

Pepperdine Law Review

The United States Supreme Court in United States v. Ross vastly simplified the process of searching closed containers found in an automobile during a lawful Carroll search yet, at the same time, placed in question the importance of the search warrant in the scheme of fourth amendment jurisprudence by equating the policeman's determination of probable cause with that of the magistrate.

Under The Influence Of California's New Drunk Driving Law: Is The Drunk Driver's Presumption Of Innocence On The Rocks? , Douglas Caiafa, A. Randall Farnsworth

Pepperdine Law Review

On January 1, 1982, the new California drunk driving law went into effect. This law makes it a crime to drive a motor vehicle where one's blood alcohol level is .10 or more. The law also marks a legislative attempt to curtail the practice of plea bargaining in drunk driving cases and significantly increases the penalties imposed upon those convicted of drunk driving. This Comment will discuss the provisions of the new drunk driving law and examine its constitutionality.

Mediation Confidentiality: For California Litigants, Why Should Mediation Confidentiality Be A Function Of The Court In Which The Litigation Is Pending?, Rebecca Callahan

Pepperdine Dispute Resolution Law Journal

The article presents information on mediation confidentiality. Confidentiality protections are available to California litigants depending on whether the litigants are in state or federal court. It depicts that California courts provide protection only when disputants utilize mediation for resolving their differences and also focuses on the evidence exclusion provision in which the privilege held by participant acts as bar to compel discovery without everyone's consent.

Death Of Paradox: The Killer Logic Beneath The Standards Of Proof, Kevin M. Clermont

Cornell Law Faculty Publications

The prevailing but contested view of proof standards is that factfinders should determine facts by probabilistic reasoning. Given imperfect evidence, they should ask themselves what they think the chances are that the burdened party would be right if the truth were to become known; they then compare those chances to the applicable standard of proof.

I contend that for understanding the standards of proof, the modern versions of logic — in particular, fuzzy logic and belief functions — work better than classical probability. This modern logic suggests that factfinders view evidence of an imprecisely perceived and described reality to form …

The Discovery And Use Of Computerized Information: An Examination Of Current Approaches, Richard M. Long

Pepperdine Law Review

In recent years, the legal profession has run head on into the increasing use of computers and computerized information. Discovery and evidentiary rules developed to deal with written documentation may not be flexible enough to adequately cover this relatively new method of storing information. This comment examines various methods by which courts have attempted to deal with discovery and evidentiary problems involving computerized information, and suggests certain areas that should be explored in supporting or attacking the credibility of such information.

Child Witnesses In Sexual Abuse Criminal Proceedings: Their Capabilities, Special Problems, And Proposals For Reform, Dominic J. Fote

Pepperdine Law Review

No abstract provided.

Confronting Coventurers: Coconspirator Hearsay, Sir Walter Raleigh, And The Sixth Amendment Confrontation Clause, Ben Trachtenberg

Florida Law Review

Using the example of a recent major terrorism prosecution, this Article addresses “coventurer hearsay” in the context of the ongoing Confrontation Clause debate concerning the United States Supreme Court’s decision in Crawford v. Washington. Courts have recently begun admitting hearsay evidence pursuant to a revisionist interpretation of the coconspirator statement exception to the hearsay rule. Under the new “lawful joint venture” theory, a hearsay statement may be admitted as a coconspirator statement if made in furtherance of a “joint undertaking”—defined as pretty much any cooperative activity—even if the “conspiracy” is not illegal. Because this new interpretation of an old …

The Sanction Provision Of The New California Civil Discovery Act, Section 2023: Will It Make A Difference Or Is It Just Another "Paper Tiger"? , Timothy Michael Donovan

Pepperdine Law Review

No abstract provided.

Avoiding The Insanity Defense Strait Jacket: The Mens Rea Route, Harlow M. Huckabee

Pepperdine Law Review

No abstract provided.

Rule 408: Maintaining The Sheild For Negotiation In Federal And Bankruptcy Courts, Leslie T. Gladstone

Pepperdine Law Review

No abstract provided.

Coy V. Iowa: A Constitutional Right Of Intimidation, John A. Mayers

Pepperdine Law Review

No abstract provided.

Evidence Of Mental Disorder On Mens Rea: Constitutionality Of Drawing The Line At The Insanity Defense , Harlow M. Huckabee

Pepperdine Law Review

No abstract provided.

The Discoverability Of Private Social Media Content: Are Pennsylvania Trial Courts Going Too Far By Granting Litigants Unfettered Access To Their Opponents' Social Media Accounts?, Timothy C. Quinn

Duquesne Law Review

Patty Plaintiff was driving on a Pennsylvania road when Denny Defendant ran a red light and struck Plaintiffs vehicle, causing Patty to lose control of her car and strike a pole. Patty sustained injuries to her neck, back, and face. She subsequently sued Denny for damages, including lost wages, lost future earning capacity, pain and suffering, loss of ability to enjoy the pleasures of life, and scarring and embarrassment. In addition, Patty's husband filed a claim against Denny for loss of consortium. Denny's counsel conceded Denny's negligence, leaving only the amount and extent of damages at issue. In the discovery …

More Than A "Quick Glimpse Of The Life": The Relationship Between Victim Impact Evidence And Death Sentencing, Jerome E. Deise, Raymond Paternoster

Faculty Scholarship

In striking down the use of victim impact evidence (VIE) during the penalty phase of a capital trial, the Supreme Court in Booth v. Maryland and South Carolina v. Gathers argued that such testimony would appeal to the emotions of jurors with the consequence that death sentences would not be based upon a reasoned consideration of the blameworthiness of the offender. After a change in personnel, the Court overturned both decisions in Payne v. Tennessee, decided just two years after Gathers. The majority in Payne were decidedly less concerned with the emotional appeal of VIE, arguing that it would only …

Genetic Privacy And The Fourth Amendment: Unregulated Surreptitious Dna Harvesting, Albert E. Scherr

Law Faculty Scholarship

Genetic privacy and police practices have come to the fore in the criminal justice system. Case law and stories in the media document that police are surreptitiously harvesting the DNA of putative suspects. Some sources even indicate that surreptitious data banking may also be in its infancy. Surreptitious harvesting of out-of-body DNA by the police is currently unregulated by the Fourth Amendment. The few courts that have addressed the issue find that the police are free to harvest DNA abandoned by a putative suspect in a public place. Little in the nascent surreptitious harvesting case law suggests that surreptitious data …

Factually Innocent Without Dna? An Analysis Of Utah's Factual Innocence Statute, Nic Caine

Utah OnLaw: The Utah Law Review Online Supplement

Since 1989, DNA evidence has fueled the innocence movement, helping hundreds prove their innocence and obtain freedom. DNA technology has been an invaluable development for the innocence movement, and DNA technology will continue to advance and improve in the future. DNA evidence is not available in the majority of cases, however, and many believe that DNA exonerations will eventually diminish as DNA analysis becomes more widely available. Furthermore, “for every DNA exoneree there are hundreds if not over a thousand wrongfully convicted defendants whose cases do not contain biological evidence that could prove innocence.”150 It is time for other states …

Evidence, Probability, And The Burden Of Proof, Alex Stein, Ronald J. Allen

Faculty Scholarship

No abstract provided.

The Supreme Court Screws Up The Science: There Is No Abusive Head Trauma/Shaken Baby Syndrome “Scientific” Controversy, Joelle A. Moreno, Brian Holmgren

Faculty Publications

No abstract provided.

Examining Committee Reports As A Basis To Dismiss Petitions To Determine Incapacity: A Question Of Admissibility And Evidentiary Relevancy, Enrique Zamora, Andres Vasquez

St. Thomas Law Review

This article will focus on answering two issues that play an important role in the determination of the need of establishing a guardianship for an AIP. Specifically, (1) whether the requirement that a petition to determine incapacity be dismissed if two examining committee members opine there is no incapacity, in violation of Florida's Evidence Code as well as Chapter 744's requirements; and (2) whether examining committee reports, without testimony, are hearsay under Florida's Evidence Code, section 90.803 of the Florida Statutes, and usurp judicial discretion under section 90.703. Part I will delineate the problem associated with section 744.331(4) of the …

Music And Emotion In Victim-Impact Evidence, Emily C. Green

Vanderbilt Journal of Entertainment & Technology Law

Aristotle famously said that the "law is reason free from passion," and nothing arouses passion better than music. Thus, when victim-impact evidence evolved from simple oral statements to include photographs, video footage, and musical clips, scholars and judges alike expressed concern that music might be too emotional and may make it difficult for the jury to make a rational decision based on logic rather than feeling. Recent scholarship in the field of law and emotion, however, notes that emotions are inevitable in law and further suggests that these emotions can be used constructively in the legal system. Thus, musically induced …