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The Role Of Kinship And Siblings In Young Children's Placement Preferences, Kelli Dickerson, Thomas D. Lyon, Jodi A. Quas 2019 University of California, Irvine

The Role Of Kinship And Siblings In Young Children's Placement Preferences, Kelli Dickerson, Thomas D. Lyon, Jodi A. Quas

University of Southern California Legal Studies Working Paper Series

Although considerable attention has been directed toward the most appropriate placement for children following removal from home due to maltreatment, very little of this attention has focused on children’s stated preferences, particularly when they are young. Specifically, children under 12 years of age are typically presumed incompetent to form reasoned judgments about their best interests in placement. This assumption, however, has rarely been tested directly. We surveyed 100 4- to 11-year-olds removed from home because of maltreatment about their placement preferences. Children were less likely to indicate they wanted to return home if they were placed with siblings or ...


Maryland Makes New Evidence Postconviction Review Provisions Available To Defendants With Plea Deals, Felicia Langel 2019 University of Maryland Francis King Carey School of Law

Maryland Makes New Evidence Postconviction Review Provisions Available To Defendants With Plea Deals, Felicia Langel

Maryland Law Review Online

No abstract provided.


Reliability, Justice And Confessions: The Essential Paradox, Russell L. Weaver 2019 Selected Works

Reliability, Justice And Confessions: The Essential Paradox, Russell L. Weaver

Russell L. Weaver

This paper deals with the issue of "reliability" in the criminal justice process, and the rising number of wrongful convictions that have been identified in recent years. Using modern evidentiary techniques, a rising number of individuals have been found "innocent" of the crimes for which they have been convicted. These instances of wrongful conviction have involved individuals who spent time on death row, awaiting execution, only to be completely exonerated. There are various reasons for these wrongful convictions, including prosecutorial misconduct and systemic failures such as inadequate indigent representation. This paper focuses on another systemic failure: difficulties with the confessions ...


The Assault On Campus Assault: The Conflicts Between Local Law Enforcement, Ferpa, And Title Ix, Emma B. Bolla 2019 Boston College Law School

The Assault On Campus Assault: The Conflicts Between Local Law Enforcement, Ferpa, And Title Ix, Emma B. Bolla

Boston College Law Review

Controversies on college campuses nationwide have led to widespread calls to reform the investigative process of campus sexual assault cases. A total abandonment of the Title IX system would leave victims with few options for justice, but investigations by both universities and local law enforcement can lead to conflicts that are often not addressed in policy discussions about Title IX. This Note explores the Title IX and criminal systems for handling campus sexual assault. It then examines the conflicts created by federal law under the Family Educational Rights and Privacy Act (“FERPA”) and Title IX for the effective policing of ...


Non-Physician Vs. Physician: Cross-Disciplinary Expert Testimony In Medical Negligence Litigation, Marc D. Ginsberg 2019 John Marshall Law School

Non-Physician Vs. Physician: Cross-Disciplinary Expert Testimony In Medical Negligence Litigation, Marc D. Ginsberg

Marc D. Ginsberg

The source of the applicable standard of care in a specific medical negligence claim is multifaceted. The testifying expert witness, when explaining the applicable standard of care, “would draw upon his own education and practical frame of reference as well as upon relevant medical thinking, as manifested by literature, educational resources and information available to practitioners, and experiences of similarly situated members of the profession.” Accordingly, in typical medical negligence litigation, the plaintiff’s expert witness testifying regarding the existence of and the defendant-physician’s deviation from the standard of care would be a physician. Why, then, have courts permitted ...


Justice Begins Before Trial: How To Nudge Inaccurate Pretrial Rulings Using Behavioral Law And Economic Theory And Uniform Commercial Laws, Michael Gentithes 2019 College of William & Mary Law School

Justice Begins Before Trial: How To Nudge Inaccurate Pretrial Rulings Using Behavioral Law And Economic Theory And Uniform Commercial Laws, Michael Gentithes

William & Mary Law Review

Injustice in criminal cases often takes root before trial begins. Overworked criminal judges must resolve difficult pretrial evidentiary issues that determine the charges the State will take to trial and the range of sentences the defendant will face. Wrong decisions on these issues often lead to wrongful convictions. As behavioral law and economic theory suggests, judges who are cognitively busy and receive little feedback on these topics from appellate courts rely upon intuition, rather than deliberative reasoning, to resolve these questions. This leads to inconsistent rulings, which prosecutors exploit to expand the scope of evidentiary exceptions that almost always disfavor ...


69. The Role Of Kinship And Siblings In Young Children’S Placement Preferences., Kelli Dickerson, Thomas D. Lyon, Jodi A. Quas 2019 University of California, Irvine

69. The Role Of Kinship And Siblings In Young Children’S Placement Preferences., Kelli Dickerson, Thomas D. Lyon, Jodi A. Quas

Thomas D. Lyon

Although considerable attention has been directed toward the most appropriate placement for children following removal from home due to maltreatment, very little of this attention has focused on children’s stated preferences, particularly when they are young. Specifically, children under 12 years of age are typically presumed incompetent to form reasoned judgments about their best interests in placement. This assumption, however, has rarely been tested directly. We surveyed 100 4- to 11-year-olds removed from home because of maltreatment about their placement preferences. Children were less likely to indicate they wanted to return home if they were placed with siblings or ...


Increasing Maltreated And Nonmaltreated Children's Recall Disclosures Of A Minor Transgression: The Effects Of Back-Channel Utterances, A Promise To Tell The Truth And A Post-Recall Putative Confession, Kelly McWilliams, Stacia N. Stolzenberg, Shanna Williams, Thomas D. Lyon 2019 CUNY John Jay College

Increasing Maltreated And Nonmaltreated Children's Recall Disclosures Of A Minor Transgression: The Effects Of Back-Channel Utterances, A Promise To Tell The Truth And A Post-Recall Putative Confession, Kelly Mcwilliams, Stacia N. Stolzenberg, Shanna Williams, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

Background: Children are often hesitant to disclose transgressions, particularly when they feel implicated, and frequently remain reluctant until confronted with direct questions. Given the risks associated with direct questions, an important issue is how interviewers can encourage honesty through recall questions. Objective: The present study examined the use of three truth induction strategies for increasing the accuracy and productivity of children’s reports about a transgression. Participants: A total of 285 4-to-9-year-old maltreated and nonmaltreated children. Methods: Each child took part in a play session with a stranger during which the child appeared to break some toys. A research assistant ...


68. Increasing Maltreated And Nonmaltreated Children’S Recall Disclosures Of A Minor Transgression: The Effects Of Back-Channel Utterances, A Promise To Tell The Truth And A Post-Recall Putative Confession., Kelly McWilliams, Stacia N. Stolzenberg, Shanna Williams, Thomas D. Lyon 2019 CUNY John Jay College

68. Increasing Maltreated And Nonmaltreated Children’S Recall Disclosures Of A Minor Transgression: The Effects Of Back-Channel Utterances, A Promise To Tell The Truth And A Post-Recall Putative Confession., Kelly Mcwilliams, Stacia N. Stolzenberg, Shanna Williams, Thomas D. Lyon

Thomas D. Lyon

Background: Children are often hesitant to disclose transgressions, particularly when they feel implicated, and frequently remain reluctant until confronted with direct questions. Given the risks associated with direct questions, an important issue is how interviewers can encourage honesty through recall questions. Objective: The present study examined the use of three truth induction strategies for increasing the accuracy and productivity of children’s reports about a transgression. Participants: A total of 285 4-to-9-year-old maltreated and nonmaltreated children. Methods: Each child took part in a play session with a stranger during which the child appeared to break some toys. A research assistant ...


68. Increasing Maltreated And Nonmaltreated Children’S Recall Disclosures Of A Minor Transgression: The Effects Of Back-Channel Utterances, A Promise To Tell The Truth And A Post-Recall Putative Confession., Kelly McWilliams, Stacia N. Stolzenberg, Shanna Williams, Thomas D. Lyon 2019 CUNY John Jay College

68. Increasing Maltreated And Nonmaltreated Children’S Recall Disclosures Of A Minor Transgression: The Effects Of Back-Channel Utterances, A Promise To Tell The Truth And A Post-Recall Putative Confession., Kelly Mcwilliams, Stacia N. Stolzenberg, Shanna Williams, Thomas D. Lyon

Thomas D. Lyon

Background: Children are often hesitant to disclose transgressions, particularly when they feel implicated, and frequently remain reluctant until confronted with direct questions. Given the risks associated with direct questions, an important issue is how interviewers can encourage honesty through recall questions. Objective: The present study examined the use of three truth induction strategies for increasing the accuracy and productivity of children’s reports about a transgression. Participants: A total of 285 4-to-9-year-old maltreated and nonmaltreated children. Methods: Each child took part in a play session with a stranger during which the child appeared to break some toys. A research assistant ...


The Ninth Circuit Enters The Class Certification Fray: Sali'S Rejection Of Evidentiary Formalism And Its Implications, Jessica Bachetti 2019 Boston College Law School

The Ninth Circuit Enters The Class Certification Fray: Sali'S Rejection Of Evidentiary Formalism And Its Implications, Jessica Bachetti

Boston College Law Review

In 2015, registered nurses brought a putative employment class action against the hospital that employed them, alleging that the hospital underpaid them by rounding their time in violation of California law. The United States District Court for the Central District of California denied class certification because the evidence that the plaintiffs submitted to demonstrate the “typicality requirement” for class certification under Federal Rule of Civil Procedure 23 was inadmissible. On appeal, the U.S. Court of Appeals for the Ninth Circuit held that inadmissibility alone is not a proper basis for denying class certification, adding to the circuit split over ...


Neuroscientists In Court, Owen D. Jones, Anthony D. Wagner, David L. Faigman, Marcus E. Raichle 2019 Stanford University

Neuroscientists In Court, Owen D. Jones, Anthony D. Wagner, David L. Faigman, Marcus E. Raichle

Owen Jones

Neuroscientific evidence is increasingly being offered in court cases. Consequently, the legal system needs neuroscientists to act as expert witnesses who can explain the limitations and interpretations of neuroscientific findings so that judges and jurors can make informed and appropriate inferences. The growing role of neuroscientists in court means that neuroscientists should be aware of important differences between the scientific and legal fields, and, especially, how scientific facts can be easily misunderstood by non-scientists,including judges and jurors.

This article describes similarities, as well as key differences, of legal and scientific cultures. And it explains six key principles about neuroscience ...


Brain Scans As Evidence: Truths, Proofs, Lies, And Lessons, Owen D. Jones, Francis X. Shen 2019 Vanderbilt University Law School

Brain Scans As Evidence: Truths, Proofs, Lies, And Lessons, Owen D. Jones, Francis X. Shen

Owen Jones

This contribution to the Brain Sciences in the Courtroom Symposium identifies and discusses issues important to admissibility determinations when courts confront brain-scan evidence. Through the vehicle of the landmark 2010 federal criminal trial U.S. v. Semrau (which considered, for the first time, the admissibility of brain scans for lie detection purposes) this article highlights critical evidentiary issues involving: 1) experimental design; 2) ecological and external validity; 3) subject compliance with researcher instructions; 4) false positives; and 5) drawing inferences about individuals from group data. The article’s lessons are broadly applicable to the new wave of neurolaw cases now ...


No Means No: An Argument For The Expansion Of Rape Shield Laws To Cases Of Nonconsensual Pornography, Austin Vining 2019 College of William & Mary Law School

No Means No: An Argument For The Expansion Of Rape Shield Laws To Cases Of Nonconsensual Pornography, Austin Vining

William & Mary Journal of Race, Gender, and Social Justice

This Article considers the impact of a hypothetical nonconsensual pornography victim’s previous sexual history on potential legal remedies, both criminal and civil. Due to jury bias and the difficulty in proving standard elements of many claims, the research shows that such a victim would likely be unsuccessful in court. This Article then turns to two legal concepts from related fields—the incremental harm doctrine and rape shield laws—and considers what effect their application would have on the hypothetical victim’s case. Ultimately, the author presents an argument for the logical expansion of rape shield laws to cases of ...


Leveling Felony Charges For Withholding Evidence, Jodi Nagzger 2019 Concordia University School of Law

Leveling Felony Charges For Withholding Evidence, Jodi Nagzger

Jodi Nafzger

This Article addresses the intersection of the rule of Brady v. Maryland, 373 U.S. 83 (1963), and ABA Model Rule of Professional Conduct 3.8. Brady requires prosecutors to automatically disclose materially exculpatory evidence in the government’s possession to the defense. ABA Model Rule 3.8 requires a prosecutor in a criminal case “to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.” The ABA issued a formal opinion in 2009 which concluded that the prosecutor’s ethical duty ...


Non-Physician Vs. Physician: Cross-Disciplinary Expert Testimony In Medical Negligence Litigation, Marc D. Ginsberg 2019 John Marshall Law School

Non-Physician Vs. Physician: Cross-Disciplinary Expert Testimony In Medical Negligence Litigation, Marc D. Ginsberg

Georgia State University Law Review

The source of the applicable standard of care in a specific medical negligence claim is multifaceted. The testifying expert witness, when explaining the applicable standard of care, “would draw upon his own education and practical frame of reference as well as upon relevant medical thinking, as manifested by literature, educational resources and information available to practitioners, and experiences of similarly situated members of the profession.” Accordingly, in typical medical negligence litigation, the plaintiff’s expert witness testifying regarding the existence of and the defendant-physician’s deviation from the standard of care would be a physician. Why, then, have courts permitted ...


Is The Exclusionary Rule A Prohibition-Era Relic?, Thomas M. Hardiman, Lauren Gailey 2019 United States Court of Appeals for the Third Circuit

Is The Exclusionary Rule A Prohibition-Era Relic?, Thomas M. Hardiman, Lauren Gailey

Michigan Law Review

Review of Wesley M. Oliver's The Prohibition Era and Policing: A Legacy of Misregulation.


Between Brady Discretion And Brady Misconduct, Bennett L. Gershman 2019 Penn State Dickinson Law

Between Brady Discretion And Brady Misconduct, Bennett L. Gershman

Dickinson Law Review

The Supreme Court’s decision in Brady v. Maryland presented prosecutors with new professional challenges. In Brady, the Supreme Court held that the prosecution must provide the defense with any evidence in its possession that could be exculpatory. If the prosecution fails to timely turn over evidence that materially undermines the defendant’s guilt, a reviewing court must grant the defendant a new trial. While determining whether evidence materially undermines a defendant’s guilt may seem like a simple assessment, the real-life application of such a determination can be complicated. The prosecution’s disclosure determination can be complicated under the ...


O’Neill, Oh O’Neill, Wherefore Art Thou O’Neill: Defining And Cementing The Requirements For Asserting Deliberative Process Privilege, Andrew Scott 2019 Penn State Dickinson Law

O’Neill, Oh O’Neill, Wherefore Art Thou O’Neill: Defining And Cementing The Requirements For Asserting Deliberative Process Privilege, Andrew Scott

Dickinson Law Review

The government may invoke the deliberative process privilege to protect the communications of government officials involving policy-driven decision-making. The privilege protects communications made before policy makers act upon the policy decision to allow government officials to speak candidly when deciding a course of action without fear of their words being used against them.

This privilege is not absolute and courts recognize the legitimate countervailing interest the public has in transparency. The Supreme Court in United States v. Reynolds held that someone with control over the protected information should personally consider the privilege before asserting it but did not provide definitive ...


Child Witnesses, Thomas D. Lyon, Kelly McWilliams, Shanna Williams 2019 University of Southern California

Child Witnesses, Thomas D. Lyon, Kelly Mcwilliams, Shanna Williams

University of Southern California Legal Studies Working Paper Series

In this chapter we provide an overview of psychological issues involving children’s capacities as witnesses. First, we discuss the kinds of cases in which children are usually involved. Across different courts, one most often sees children describing abuse at the hands of familiar adults. Second, we describe the difficulties children encounter in disclosing abuse, particularly when it is perpetrated by adults close to them. These dynamics lead most children to remain silent, and only the most forthcoming children to disclose. Third, we suggest a framework for assessing children’s allegations, in which child-generated and adult-generated information lie on opposite ...


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