Archive for the ‘Evidence Law’ Category
posted by UCLA Law Review
Volume 60, Issue 1 (October 2012)
November 2, 2012 at 7:11 pm Posted in: Constitutional Law, Criminal Law, Criminal Procedure, Evidence Law, Intellectual Property, International & Comparative Law, Law Rev (UCLA), Privacy, Privacy (Medical) Print This Post No Comments
posted by UCLA Law Review
Volume 59, Issue 5 (June 2012)
|Implicit Bias in the Courtroom||Jerry Kang et al.||1124|
|The Supreme Court’s Regulation of Civil Procedure: Lessons From Administrative Law||Lumen N. Mulligan & Glen Staszewski||1188|
|Techniques for Mitigating Cognitive Biases in Fingerprint Identification||Elizabeth J. Reese||1252|
|Credit CARD Act II: Expanding Credit Card Reform by Targeting Behavioral Biases||Jonathan Slowik||1292|
|Shocking the Conscience: What Police Tasers and Weapon Technology Reveal About Excessive Force Law||Aaron Sussman||1342|
July 1, 2012 at 2:39 pm Posted in: Administrative Law, Behavioral Law and Economics, Civil Procedure, Constitutional Law, Consumer Protection Law, Courts, Evidence Law, Law Rev (UCLA) Print This Post No Comments
What if the Boy Who Cried Wolf Could Testify under a Pseudonym … as an Expert Witness on Canis Lupus?
posted by Jeffrey Kahn
“Major Lior” is the pseudonym for an Israeli Defense Force officer who testified in Dallas not long ago in what has been called the “largest terrorism financing investigation in American history.” His name was pronounced “Major Lee-OR” at the trial. Snarky commentators suggested that defense counsel should mispronounce his name to rhyme with “fire.” After all, what defense counsel would not want to refer the jury to the testimony of a major liar? But the joke exposed a real problem for the defense: how can you “attack a witness’s reputation for having a character for truthfulness or untruthfulness” under FRE 608 or engage in more typically frutiful areas of inquiry into credibility or expertise if — thanks to a court-sanctioned pseudonym — you don’t even know his name and must rely on your adversary for information in place of any investigative legwork of your own?
Last week, the Fifth Circuit handed down an important opinion upholding the convictions in that case. The unanimous and enormous (172 page) opinion written by Judge Carolyn King (joined by Judges Emilio Garza and James Graves) received virtually no media attention. That’s strange, considering that the convictions that the court upheld concerned an international conspiracy to fund Hamas and the defendants once ran the largest Muslim charity in the United States.
But the silence is stranger still when you consider the importance of the issue (one of many) before the court: Did the district court deprive the defendants of their rights to due process and to confront witnesses against them when it allowed two witnesses to testify using pseudonyms? As far as I know, such a practice would be unusual but not entirely unprecedented were it to concern the typical fact witness. Children, informers, and undercover agents are sometimes allowed various levels of shielding from the ordinary requirement of fully public testimony in a completely open court. But these witnesses were far from ordinary. Both were officers in the Israeli Defense Force. “Major Lior” was a fact witness whose role was to authenticate documents obtained by the IDF during a military operation. The other, “Avi,” testified as an expert witness, providing his opinion to the jury about the financial structure of Hamas.
After the break, I’ll give some background on the case and then explore the appellate court’s conclusion that this testimony worked no constitutional injury. Given that the Supreme Court granted only 1.1% of the petitions for review last term, I doubt that the appeal will go any farther. But I think it should and, though I certainly would give no quarter to Hamas or its allies, I think the use of these anonymous witnesses violated the defendants’ rights.
posted by Amanda Pustilnik
Is psychopathy a birth defect that should exclude a convicted serial killer and rapist from the death penalty? Are the results of fMRI lie-detection tests reliable enough to be admitted in court? And if a giant brain tumor suddenly turns a law-abiding professional into a hypersexual who indiscriminately solicits females from ages 8 to 80, is he criminally responsible for his conduct? These were the questions on the table when the International Neuroethics Society convened a fascinating panel last week at the Carnegie Institution for Science last week on the uses of neuroscience evidence in criminal and civil trials.
Moderated and organized by Hank Greely of Stanford Law School, the panel brought together:
- Steven Greenberg, whose efforts to introduce neuroscience on psychopathic disorder (psychopathy) in capital sentencing in Illinois of Brian Dugan has garnered attention from Nature to The Chicago Tribune;
- Houston Gordon (an old-school trial attorney successful enough not to need his own website, hence no hyperlink), who has made the most assertive arguments so far to admit fMRI lie-detection evidence in a civil case, United States v. Semrau, and
- Russell Swerdlow, a research and clinical professor of neurology (and three other sciences!). Swerdlow’s brilliant diagnostic work detected the tumor in the newly-hypersexual patient, whom others had dismissed as a creep and a criminal.
In three upcoming short posts, I will feature the comments of each of these panelists and present for you, dear reader, some of the thornier issues raised by their talks. These cases have been reported on in publications ranging from the Archives of Neurology to USA Today, but Concurring Opinions brings to you, direct and uncensored, the statements of the lawyers and scientists who made these cases happen … Can I say “stay tuned” on a blog?
November 20, 2011 at 12:39 pm Tags: law & neuroscience, neuroethics Posted in: Bioethics, Capital Punishment, Criminal Law, Evidence Law, Health Law, Psychology and Behavior, Uncategorized Print This Post One Comment
posted by UCLA Law Review
Volume 58, Issue 3 (February 2011)
|Good Faith and Law Evasion||Samuel W. Buell||611|
|Making Sovereigns Indispensable: Pimentel and the Evolution of Rule 19||Katherine Florey||667|
|The Need for a Research Culture in the Forensic Sciences||Jennifer L. Mnookin et al.||725|
|Commentary on The Need for a Research Culture in the Forensic Sciences||Joseph P. Bono||781|
|Commentary on The Need for a Research Culture in the Forensic Sciences||Judge Nancy Gertner||789|
|Commentary on The Need for a Research Culture in the Forensic Sciences||Pierre Margot||795|
|What’s Your Position? Amending the Bankruptcy Disclosure Rules to Keep Pace With Financial Innovation||Samuel M. Kidder||803|
|Defendant Class Actions and Patent Infringement Litigation||Matthew K. K. Sumida||843|
February 25, 2011 at 1:19 pm Posted in: Bankruptcy, Civil Procedure, Constitutional Law, Courts, Criminal Law, Criminal Procedure, Current Events, Economic Analysis of Law, Empirical Analysis of Law, Evidence Law, History of Law, Indian Law, Intellectual Property, International & Comparative Law, Jurisprudence, Law and Humanities, Law and Inequality, Law and Psychology, Law Practice, Law Rev (UCLA), Psychology and Behavior, Race, Sociology of Law, Supreme Court Print This Post No Comments
posted by Daniel Solove
For quite a long time, extensive empirical work in psychology, sociology, and behavioral economics has been revealing that many of the law’s most cherished rules are faulty. They are based upon mistaken assumptions about human behavior. They are often flat out wrong. And yet they persist.
The work of Daniel Kahneman and Amos Tversky has shown that the human mind operates with all sorts of biases and heuristics that lead to systematic errors in judgment and perception. As Dan Ariely put it in a recent work, Predictably Irrational (2008): “[W]e are not only irrational, but predictably irrational . . . our irrationality happens the same way, again and again.” (p. xx). Richard Thaler and Cass Sunstein describe many of these systematic blunders in human judgment in their book, Nudge (2008).
As these studies increasingly make their way into legal scholarship, they are proving that many existing legal rules don’t work as they should. And this is more than a mere normative critique. The rules just fail because people don’t act or think the way the law thinks they ought to. In fact, what we’re learning about the way people act and think is often counterintuitive. It is hard to grasp and hard to deal with.
This research should be undermining many legal rules at their very foundations. Yet the legal rules don’t seem to be shaken despite their foundations being annihilated.
In many domains, when something is proven flat wrong, it is confronted and dealt with. If evidence shows that bleeding the patient isn’t a good cure for disease, then we move on and stop doing it. But in law, if the evidence shows that a rule doesn’t work, what’s the response? Often, it is to just accept the evidence with a grin and continue on. If science were like law, we’d be talking about how the earth is round yet continuing to behave as if it were flat.
April 14, 2010 at 12:47 am Posted in: Criminal Law, Criminal Procedure, Economic Analysis of Law, Empirical Analysis of Law, Evidence Law, Jurisprudence, Law and Humanities, Law and Psychology, Legal Theory Print This Post 10 Comments
posted by Matthew Dowd
The Double Helix and the Law of Evidence by David H. Kaye. Harvard University Press: Cambridge 2010, pp. 352. $45.00.
“If it doesn’t fit, you must acquit.”
– The late Johnny Cochran, September 1995.
Almost fifteen years have passed since O.J. Simpson was acquitted of the double murder of Nicole Brown Simpson and Ronald Goldman. Called the trial of the century, the Simpson case is still seen as a key point in legal history, even though the case created no significant legal precedent.
Experts at the time were still debating fundamental questions about the reliability, acceptance, and admissibility of DNA testing. The Supreme Court had handed down its watershed opinion in Daubert only a few years earlier. As Professor David Kaye explains in his new book The Double Helix and the Law of Evidence, Simpson’s attorneys challenged the admissibility of the DNA evidence on numerous grounds. But, at the end of the day, the most memorable moment of the trial is not the arcane issue of whether experts correctly calculated genetic probabilities using statistical estimation methods but Johnny Cochran’s statement in his closing, “If it doesn’t fit, you must acquit.”
Professor Kaye, distinguished professor of law and Weiss Family Faculty Scholar at Penn State Law, offers far more than just an account of the Simpson DNA evidence. Kaye provides an in-depth review of how the law of DNA evidence progressed from its beginnings in the 1980’s to its current state. His book is, in his own words, “part history, part legal analysis, part popular science, and part applied statistics.” Kaye provides vignettes of many key developments in DNA evidence, from the first conviction and first exoneration based on DNA evidence in the 1986 Pitchfork case to the Simpson case to the use of mitochondrial DNA in analyzing the remains of Tsar Nicholas II and his family. Kaye also examines legal milestones, such as People v. Castro, 545 N.Y.S. 985, 999 (Sup. Ct. 1989), in which Barry Scheck and Peter Neufeld convinced Judge Gerald Scheindlin to restrict the admissibility of the prosecution’s DNA evidence because the private testing laboratory “failed in several major respects to use the generally accepted scientific techniques and experiments for obtaining reliable results, within a reasonable degree of scientific certainty.”
Kaye’s book is not what I expected from the title, but surprises can be pleasant, as was this one. Kaye draws from his substantial experience and his prior legal scholarship to create a concise and highly readable text devoted to the basics of DNA evidence and its historical development. The book is not a comprehensive analysis of legal precedent governing DNA evidence, but that was not Kaye’s goal. As Kaye explains, his work “is a tale of scientific egos, journalistic hype, lawyerly maneuvering, and judicial doctrine and disposition.” Kaye starts the tale with biological evidence before DNA, such as the common A, B, and O blood types, and moves through the various stages of how courts and litigants reacted to the new actor on the legal stage.
Kaye’s explanations of the intricacies of DNA evidence are accessible to lawyers not having any specialized scientific training. Kaye details the contributions of the major players, including experts such as Richard Lewontin, Daniel Hartle, and Eric Lander, lawyers Scheck and Neufeld, and the 1992 and 1996 reports of the National Research Council. Kaye similarly explains the now classic “prosecutor’s fallacy” as applied to DNA evidence.
posted by Gerard Magliocca
I wanted to flag a terrific new paper on SSRN that will be coming out in NYU Law Review next year. It’s by Andrea Roth (currently a fellow at Stanford Law School) and entitled “Safety in Numbers? When DNA Alone is Enough to Convict.” The Abstract follows the jump:
posted by Jaya Ramji-Nogales
I’m into week two of Evidence, which is one of my favorite classes to teach — full of vivid examples and fun hypotheticals, which make it relatively easy to keep students engaged. Each year, however, I hit the tricky problem of how to deal with the sections of the course that cover crimes of sexual violence while maintaining the pedagogical goals of maximizing participation in class discussion and encouraging thorough and comprehensive study habits. There are two main parts to this question — how to approach cold-call questioning in this area of the course and how to test these issues. I’m sure others who teach evidence, criminal law, international criminal law, and similar courses have faced these problems, and I’m eager to hear how you’ve addressed them. Read the rest of this post »
posted by Danielle Citron
Over the past 56 years, the Executive Branch has enjoyed a seemingly unchecked right to shut down litigation in the name of “state secrets.” The landmark 1953 case that gave vitality to the “state secrets” privilege was United States v. Reynolds. In that case, three widows sued the government after their husbands died in the crash of a U.S. Air Force aircraft that they had help engineer. During discovery, the government refused to produce the Air Force accident report and statements of crew survivors to plaintiffs or even the judge for in camera inspection. The trial court and the Third Circuit found that the government could not unilaterally decide what it could withhold as permitting it to do so would eliminate the independent judiciary’s important check on government. The Supreme Court in Reynolds disagreed, finding that the government had the right to withhold evidence from private parties when disclosure, according to the government, would endanger national security. In the wake of Reynolds, judges tend to dismiss private lawsuits as soon as the government asserts the “state secrets” privilege. The Bush Administration frequently invoked the “state secrets” privilege, most notably in cases challenging the constitutionality of its national security programs including the warrantless wiretapping, rendition, and interrogation programs.
Yet, as two recent books (both elegantly written and carefully developed, see here and here) demonstrate, Reynolds stands on troubling ground: the Air Force report (released in 1996) contained no secrets but did attest to the Air Force’s negligent conduct. This ignominious history illustrates the great danger of giving the Executive Branch unchecked power to invoke the state secrets privilege: it can be, and has been, used for the sole purpose of concealing government misconduct or carelessness.
Responding to this concern, Senate Judiciary Committee members last week unveiled the State Secrets Protection Act, a bill that would help check the misuse of the “state secrets” privilege. As Chairman Patrick Leahy explained, the bill endeavors to “guide courts to balance the government’s interest in secrecy with accountability and the rights of citizens to seek judicial redress.” The bill would provide a uniform set of procedures for federal courts considering claims of the state secrets privilege, such as in camera hearings and special masters. It would require judges to look at the evidence that the government claims is privileged, rather than relying solely on government affidavits as courts have increasingly been wont to do. The Committee report explains that the bill addresses the crisis of legitimacy surrounding the privilege by setting forth clear rules that take into account national security and the Constitution. Although the privilege had an ignominious beginning, this bill would work to secure for it a more reputable life.
posted by Jaya Ramji-Nogales
Perhaps my favorite news story of late (apart from the Somali pirates and their spokesperson) is the Colombian government’s seizure of a memory stick belonging to the rebel group FARC, containing the names, identities, aliases, and even some photos of over 9,000 guerrillas. One can almost imagine the guerrilla-in-chief stomping around muttering to himself, “I KNOW I had that memory stick around here somewhere.” And you felt bad about that memory stick you lost! In all seriousness, the FARC is notorious for its human rights abuses, and its entry into the digital age may benefit not only the group itself.
While genocidaires and other perpetrators of grave crimes often keep painstaking records of their crimes, it has been in the past an enormous task to track down, authenticate, and preserve this documentary record. In just one example, the Documentation Center of Cambodia (DC-Cam) has worked for over a decade to collect and store documentary evidence of the crimes of the Khmer Rouge, whose surviving leaders are soon to be tried before the Extraordinary Chambers in the Courts of Cambodia (ECCC). I flew all the way to Cambodia last summer to meet with ECCC officials on behalf of the DC-Cam to discuss document transfer, storage, and preservation protocols. Imagine if we could have just handed over a memory stick full of information to the court! What if Pol Pot had a laptop we could get our hands on? The possibilities are endless in the digital age; the ease with which we can now transfer information may be helpful not only for perpetrators but also for prosecutors of international crimes.
posted by Jaya Ramji-Nogales
For those junior law firm serfs toiling away in the dungeons of document discovery drudgery, some good news is coming your way. Apart from thanking your lucky stars that you chose to be a lawyer rather than an investment banker, you can be happy about the recent promulgation of Federal Rule of Evidence 502. This new rule ensures that the unintentional disclosure of a privileged document does not result in automatic waiver of the attorney-client and work product privileges on all documents concerning the same subject matter. Rather than the current standard that allows for no human error, under the new rule, as long as you take “reasonable steps” to prevent disclosure and to rectify the error once discovered, the privilege will not be waived on related documents. Moreover, the rule applies not only to proceedings in federal court, but also to disclosures made to a “federal office or agency” — thus encouraging corporations to comply with federal investigations without needing to worry about broad waiver of privileges.
posted by Jessica Silbey
Thanks for having me here at Concurring Opinions. I haven’t blogged for some time – reminding myself there is life outside of the Web – but for the next month I am excited to reengage my blogging-self and hopefully some readers of this blog.
One of my summer projects is to think about how to turn some of my more theoretical writing on law and film into a practical “how to” piece on lawyering in the courtroom with filmic evidence. To that end, I have been watching lots of police films (a subset of what I have called “evidence verite”). These films can be found without much effort on YouTube or VideoSpider. Anyone else out there know of good sites storing this kind of film footage, I would love to hear about it. I found one piece of footage that is the subject of a recent court case – Jones v. City of Cincinnati, 521 F.3d 555 (6th Cir. 2008) – which can be found here. This film, of the police using a tremendous amount of force to subdue Nathanial Jones (who subsequently died), is an excellent example of how the film frame (what is seen and what is not seen due to the limits of the camera’s size and angle) can affect the viewer’s response to the images. When watching this film, we must imagine the blows delivered and the pain received because both are off-camera. How we imagine them might depend on our experience with police brutality more generally. (We do hear the police and the criminal suspect protesting loudly.) Do we imagine Hollywood violence (which way does that cut for the defendant here)? Do we have any experience seeing this kind of violence first or second hand so that it is hard to imagine anything but the worst? The boundaries of imagination are hard to predict and therefore a formidable opponent in a court of law. Imagination is obviously not evidence in a court of law, although it likely wields mighty influence nonetheless. A former student suggested to me that not seeing the blows Nathanial Jones suffered makes us more callous to the pain he received. I tend to think that is the case.
The Sixth Circuit in Jones v. City of Cincinnati affirmed the district court’s refusal to dismiss the case on defendant’s 12(b)(6) motion and said this in relation to the film: “Where the evidence ‘captures only part of the incident and would provide a distorted view of the events at issue,’ as the district court concluded with respect to the videotape, we do not require a court to consider that evidence on a 12(b)(6) motion.” Id. at 561. To this, I would say “no kidding,” but we will have to wait and see what the trial court does on a Rule 56 motion. Given the Supreme Court’s decision in Scott v. Harris, I remain skeptical that a court can resist the myth of film’s obviousness and objectivity.
For those who need a refresher, Scott v. Harris was the 2007 Supreme Court case concerning a high speed police chase that resulted in the police ramming the suspect’s car causing him to become a quadriplegic. A police camera on the cruiser recorded the chase from the point of view of the police car, and the Supreme Court said that the trial court should have considered the facts in that case “in the light depicted by the videotape” despite contradictory testimony. For an excellent analysis of the flaws of that case, see Howard Wasserman’s short piece here . For an even shorter analysis, see my Op-Ed here . For a longer more empirical analysis of the video in the case, see Kahan et al. here.
How do courts and lawyers deal with filmic evidence in light of film’s inevitably partial nature? That is what my new piece is working through with some practical tips on cross-examining film in a courtroom. The piece should be up on-line soon. For those who want a preview, feel free to email me.
June 2, 2008 at 10:57 am Posted in: Criminal Law, Criminal Procedure, Culture, Empirical Analysis of Law, Evidence Law, Law and Humanities, Law Practice, Movies & Television, Supreme Court Print This Post One Comment