Evidence Commons^™

Logic, Not Evidence, Supports A Change In Expert Testimony Standards: Why Evidentiary Standards Promulgated By The Supreme Court For Scientific Expert Testimony Are Inappropriate And Inefficient When Applied In Patent Infringement Suits, Claire R. Rollor

Journal of Business & Technology Law

No abstract provided.

Panel Discussion: Reinvigorating Rule 502, Liesa L. Richter

Other Faculty Publications

No abstract provided.

The Extension Of The Presumption Of Legitimacy To Same-Sex Couples In New York, Alexandra Eisman

Cardozo Journal of Equal Rights & Social Justice

The note argues that the presumption of legitimacy, a cornerstone of family law, should be extended to same-sex couples to ensure legal equality and protect the rights of their children. It critiques the traditional application of the presumption, which excludes same-sex couples, and advocates for its evolution to align with modern legal trends and the best interests of children. The analysis emphasizes the importance of legislative and judicial action to address the disparities faced by same-sex families under current laws.

The Evidence Of Things Not Seen: Non-Matches As Evidence Of Innocence, James S. Liebman, Shawn Blackburn, David Mattern, Jonathan Waisnor

Faculty Scholarship

Exonerations famously reveal that eyewitness identifications, confessions, and other “direct” evidence can be false, though police and jurors greatly value them. Exonerations also reveal that “circumstantial” non-matches between culprit and defendant can be telling evidence of innocence (e.g., an aspect of an eyewitness’s description of the perpetrator that does not match the suspect she identifies in a lineup, or a loose button found at the crime scene that does not match the suspect’s clothes). Although non-matching clues often are easily explained away, making them seem uninteresting, they frequently turn out to match the real culprit when exonerations reveal that the …

Trial By Preview, Bert I. Huang

Faculty Scholarship

It has been an obsession of modern civil procedure to design ways to reveal more before trial about what will happen during trial. Litigants today, as a matter of course, are made to preview the evidence they will use. This practice is celebrated because standard theory says it should induce the parties to settle; why incur the expenses of trial, if everyone knows what will happen? Rarely noted, however, is one complication: The impact of previewing the evidence is intertwined with how well the parties know their future audience-that is, the judge or the jury who will be the finder …

Pre-Disclosure Accumulations By Activist Investors: Evidence And Policy, Lucian A. Bebchuk, Alon Brav, Robert J. Jackson Jr., Wei Jiang

Ira M. Millstein Center for Global Markets and Corporate Ownership

The Securities and Exchange Commission (SEC) is currently considering a rulemaking petition requesting that the Commission shorten the ten-day window, established by Section 13(d) of the Williams Act, within which investors must publicly disclose purchases of a five percent or greater stake in public companies. In this Article, we provide the first systematic empirical evidence on these disclosures and find that several of the petition's factual premises are not consistent with the evidence.

Our analysis is based on about 2,000 filings by activist hedge funds during the period of 1994-2007. We find that the data are inconsistent with the petition's …

Maryland V. King: Per Se Unreasonableness, The Golden Rule, And The Future Of Dna Databases, David H. Kaye

Faculty Scholarship

In Maryland v. King, the Supreme Court applied a balancing test to uphold a Maryland statute mandating preconviction collection and analysis of DNA from individuals charged with certain crimes. The DNA profiles are limited to an inherited set of DNA sequences that are not known to be functional and that are tokens of individual identity. This invited online essay examines two aspects of an article on the case by Professor Erin Murphy. I question the claim that the case is pivotal in a conceivable abandonment of the per se rule that warrantless, suspicionless searches are unconstitutional unless they fall …

Visual Jurisprudence, Richard Sherwin

Articles & Chapters

Lawyers, judges, and jurors face a vast array of visual evidence and visual argument inside the contemporary courtroom. From videos documenting crimes and accidents to computer displays of their digital simulation, increasingly, the search for fact-based justice is becoming an offshoot of visual meaning making. But when law migrates to the screen it lives there as other images do, motivating belief and judgment on the basis of visual delight and unconscious fantasies and desires as well as actualities. Law as image also shares broader cultural anxieties concerning not only the truth of the image, but also the mimetic capacity itself, …

Empirical Fallacies Of Evidence Law: A Critical Look At The Admission Of Prior Sex Crimes, Aviva A. Orenstein, Tamara Rice Lave

Articles by Maurer Faculty

In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413-414 allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity to commit the sex crime charged. As reflected in their legislative history, these propensity rules rest on the assumption that sexual predators represent a small number of highly deviant and recidivistic offenders. This view of who commits sex crimes justified the passage of the sex-crime propensity rules and continues to influence their continuing adoption among the states and the way courts assess such evidence under Rule 403. In depending on …

Making Horses Drink: Conceptual Change Theory And Federal Rule Of Evidence 502, Liesa L. Richter

Faculty Articles

No abstract provided.

Do Sexually Violent Predator Laws Violate Double Jeopardy Or Substantive Due Process? An Empirical Inquiry, Tamara Rice Lave, Justin Mccrary

Articles

No abstract provided.

A Match Made On Earth: Getting Real About Science And The Law, Susan Haack

Articles

Modern legal systems increasingly depend on scientific testimony; but they also need somehow to ensure, so far as possible, that fact-finders aren't misled by highly speculative, poorly-conducted, or dishonestly-presented science. The Critical Common-sensist understanding of science that the author has developed in Defending Science and elsewhere sheds some light on why these interactions between law and science have proven so problematic. But Ms. Acharya's approach to these difficult issues rests on a flawed conception of the supposed "scientific method, " and an idea of legal "legitimacy" too weak to bear the weight she places on it; and her claim that …

Introduction: Persecution Through Prosecution: Revisiting Touro Law Center’S Conference In Paris On The Dreyfus Affair And The Leo Frank Trial, Rodger D. Citron

Touro Law Review

This piece provides the introduction for the Dreyfus affair. It gives a brief overview of the actual Dreyfus affair and outlines the articles in this volume.

Educating For The Future: Teaching Evidence In The Technological Age, Denise H. Wong

Research Collection Yong Pung How School Of Law

The advent of the technological age has had significant effect on litigation practice, none more so than in the area of evidence gathering and presentation in court. A significant proportion of evidence that is gathered for both criminal and civil matters is now electronic in nature, and this necessitates a change in the way that lawyers think and advise on evidential issues. It is argued here that rather than simply focusing on principles relating to the admissibility of evidence in court, the traditional course on evidence law should be modified to equip students with an intellectual framework that conceives of …

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 …

Authentication Of Social Media Evidence, Paul W. Grimm, Lisa Yurwit Bergstrom, Melissa M. O'Toole-Loureiro

Faculty Scholarship

The authentication of social media evidence has become a prevalent issue in litigation today, creating much confusion and disarray for attorneys and judges. By exploring the current inconsistencies among courts' decisions, this Article demonstrates the importance of the interplay between Federal Rules of Evidence 901, 104(a), 104(b), and 401-all essential rules for determining the admissibility and authentication of social media evidence. Most importantly, this Article concludes by offering valuable and practical suggestions for attorneys to authenticate social media evidence successfully.

Narrative, Truth, And Trial, Lisa Kern Griffin

Faculty Scholarship

This Article critically evaluates the relationship between constructing narratives and achieving factual accuracy at trials. The story model of adjudication— according to which jurors process testimony by organizing it into competing narratives—has gained wide acceptance in the descriptive work of social scientists and currency in the courtroom, but it has received little close attention from legal theorists. The Article begins with a discussion of the meaning of narrative and its function at trial. It argues that the story model is incomplete, and that “legal truth” emerges from a hybrid of narrative and other means of inquiry. As a result, trials …

The Modern Trial And Evidence Law: Has The "Rambling Altercation" Become A Pedantic Joust?, Daniel D. Blinka

Georgia Law Review

This Article places the relationship between evidence
rules and the modern trial in a historical context. The
trial's foundation is in popular culture-lay witnesses
testifying before a lay jury. Eighteenth-century trials were
a "rambling altercation" between the defendant and his
accusers-unruly (literally), unstructured, very brief, and
less concerned with the "truth"than a socially acceptable
judgment. The modern trial's emergence in the nineteenth
century coincided with the professionalization of law, the
active involvement of lawyers as advocates, and the
sprouting of evidence rules to regulate both lawyers and
lay juries. Nonetheless, evidence law accommodated
prevailing lay culture in order to foster …

The Withering Away Of Evidence Law: Notes On Theory And Practice, Robert P. Burns

Georgia Law Review

The plausibility of evidentiary regimes depends on more
basic understandings of the nature of the trial. 'Tough-
minded" evidence scholars may sometimes be reluctant to
concede the importance of more "tender-minded"
normative inquiries into the trial. Some implicit ideals of
evidence law, such as factual accuracy, are relatively
constant among theories of the trial, while others, such as
materiality, are significantly affected by the choice among
competing theories. This Article identifies the dominant
theory of the trial and then suggests an alternative. It
then offers a number of grounds for further relaxing the
exclusionary force of evidence law and for …

Judicial Gatekeeping Of Suspect Evidence: Due Process And Evidentiary Rules In The Age Of Innocence, Keith A. Findley

Georgia Law Review

The growing number of wrongful convictions exposed
over the past two-and-a-half decades, and the research
that points to a few recurring types of flawed evidence in
those cases, raise questions about the effectiveness of the
rules of evidence and the constitutional admissibility
standards that are designed to guard against unreliable
evidence. Drawing on emerging empirical data, this
Article concludes that the system can and should be

adjusted to do a better job of guarding against undue
reliance on flawed evidence. The Article first considers the
role of reliability screening as a constitutional concern.
The wrongful convictions data identify what might …