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The Distortionary Effect Of Evidence On Primary Behavior, Alex Stein, Gideon Parchomovsky 2010 Brooklyn Law School

The Distortionary Effect Of Evidence On Primary Behavior, Alex Stein, Gideon Parchomovsky

Faculty Scholarship

No abstract provided.


Doubting What The Elders Have To Say, David Milward 2010 University of Manitoba School of Law

Doubting What The Elders Have To Say, David Milward

Dr. David Milward

The Supreme Court of Canada has articulated several legal principles that mandate the flexible and generous treatment of Aboriginal oral history evidence in support of Aboriginal rights claims. Lower courts, however, continue to devalue such evidence, often displaying explicit disregard for the legal principles, in order to defeat rights claims and subordinate Aboriginal interests to state sovereignty. This has no rational basis, since it is now clearly established that documentary historical evidence does not have any innate superiority over oral history evidence when it comes to ascertaining what happened in the past. This article proposes several solutions. These include educating ...


Evidence, Joseph B. Harvey 2010 Golden Gate University School of Law

Evidence, Joseph B. Harvey

Cal Law Trends and Developments

The principal developments and trends to be noted in the law of evidence appeared this year in appellate Court decisions. The legislative changes were few. Only one legislative change seems likely to be of any significance and will be felt primarily by drivers accused of being under the influence of intoxicating liquor. For lawyers, the notable developments appear in the case law; it is likely that the courts will remain the primary arena for the development of the law of evidence for some time to come.


Evidence, Joseph B. Harvey 2010 Golden Gate University School of Law

Evidence, Joseph B. Harvey

Cal Law Trends and Developments

On January 1, 1967, the California Evidence Code began to govern trials held in California courts. Because of the delays necessarily incident to litigation, the appellate courts were not called upon to review trials held under the new rules in significant numbers until 1968. With the 1968 decisions, however, the impact of the Code upon California practice has become fairly apparent. At the same time, the courts have continued to develop rules of evidence designed to implement the various procedural guarantees found in the Constitution of the United States, and some of these court-developed rules have had significant effect, particularly ...


"Minute And Separate": Considering The Admissibility Of Videotaped Forensic Interviews In Child Sexual Abuse Cases After Crawford And Davis, Kimberly Y. Chin 2010 Boston College Law School

"Minute And Separate": Considering The Admissibility Of Videotaped Forensic Interviews In Child Sexual Abuse Cases After Crawford And Davis, Kimberly Y. Chin

Boston College Third World Law Journal

Child sexual abuse is one of the least prosecuted crimes in the United States in part because of the many evidentiary challenges prosecutors face. In 2004, the Supreme Court introduced a new standard for determining the admissibility of out-of-court statements made by declarants who are unavailable to testify at trial. In Crawford v. Washington, the Supreme Court held that testimonial statements are only admissible at trial if the declarant is unavailable to testify and there was a prior opportunity for cross-examination. This Note will examine Crawford’s impact on the admissibility of videotaped forensic interviews with child victims of sexual ...


"I'M Going To Dinner With Frank": Admissibility Of Nontestimonial Statements Of Intent To Prove The Actions Of Someone Other Than The Speaker—And The Role Of The Due Process Clause, Lynn McLain 2010 University of Baltimore School of Law

"I'M Going To Dinner With Frank": Admissibility Of Nontestimonial Statements Of Intent To Prove The Actions Of Someone Other Than The Speaker—And The Role Of The Due Process Clause, Lynn Mclain

All Faculty Scholarship

A woman tells her roommate that she is going out to dinner with Frank that evening. The next morning her battered body is found along a country road outside of town. In Frank’s trial for her murder, is her statement to her roommate admissible to place Frank with her that night? Since the Court’s 2004 Crawford decision, the confrontation clause is inapplicable to nontestimonial hearsay such as this.

American jurisdictions are widely divided on the question of admissibility under their rules of evidence, however. Many say absolutely not. A sizeable number unequivocally say yes. A small number say ...


Omg! Evidence Challenges In An Electronic World, Mary Sue Backus 2010 University of Oklahoma College of Law

Omg! Evidence Challenges In An Electronic World, Mary Sue Backus

Mary Sue Backus

No abstract provided.


Evidence, Ronan E. Degnan 2010 Golden Gate University School of Law

Evidence, Ronan E. Degnan

Cal Law Trends and Developments

This survey is concerned with case law as well as with statutes, but the cases selected will be of primary interest because they shed some light on how California courts are apt to interpret the statutes. Somewhat paradoxically, this requires some preference for dictum over holding. The clear holdings from all but the very end of the calendar year were applications of the old law, because the appellate courts were still disposing of the cases that had gone to trial before January 1, 1967. But the appellate judges were alert to the new Code, and frequently they would consider how ...


Limits Of The Inevitable Discovery Doctrine In United States V. Young: The Intersection Of Private Security Guards, Hotel Guests, And The Fourth Amendment, Lauren Young Epstein 2010 Golden Gate University School of Law

Limits Of The Inevitable Discovery Doctrine In United States V. Young: The Intersection Of Private Security Guards, Hotel Guests, And The Fourth Amendment, Lauren Young Epstein

Golden Gate University Law Review

This Note analyzes the Young court’s opinion and the potential consequences of the majority’s cursory rejection of the government’s inevitable discovery argument. This Note also reconciles the differing applications of the inevitable discovery doctrine by the Young majority and dissent and highlights the speculative nature of employing the inevitable discovery doctrine based on the facts of Young. Part I of this Note presents the background of the case and the historical development of Fourth Amendment jurisprudence, focusing on the inevitable discovery doctrine as articulated by the Supreme Court in Nix v. Williams. Part II outlines the Young ...


United States V. Payton: Redefining The Reasonableness Standard For Computer Searches And Seizures, Susan A. Rados 2010 Golden Gate University School of Law

United States V. Payton: Redefining The Reasonableness Standard For Computer Searches And Seizures, Susan A. Rados

Golden Gate University Law Review

This Note examines United States v. Payton and the issue of when it is reasonable to search a computer if it is not expressly authorized on the search warrant. Part I discusses the background facts of Payton and the Fourth Amendment. Part II analyzes why the Ninth Circuit ultimately decided Payton correctly but focused on the wrong underlying reason in its holding. The reasonableness standard for computer searches should be whether the computer “could” contain the evidence, rather than the stricter standard of “would” contain the evidence announced in Payton. However, because computers are different from traditional containers, they should ...


Possession Of Reading Material And Intent To Commit A Crime In United States V. Curtin, Anna L. Benvenue 2010 Golden Gate University School of Law

Possession Of Reading Material And Intent To Commit A Crime In United States V. Curtin, Anna L. Benvenue

Golden Gate University Law Review

The majority opinion in United States v. Curtin held that simple possession of reading material can be evidence of a defendant's criminal intent, even without proof that the accused ever read the materials. Circuit Judge Stephen S. Trott, who wrote the majority decision, overruled prior Ninth Circuit precedent that would have made such evidence inadmissible as irrelevant under Federal Rule of Evidence 401. However, the majority also found the district court judge's failure to properly analyze the evidence under Rule 403 warranted reversal and remand. As a result, the remaining seven judges on the panel filed or joined ...


Summary Of Cramer V. Nev. Dep’T Of Motor Vehicles, 126 Nev. Adv. Op. No. 38, Justin Shiroff 2010 Nevada Law Journal

Summary Of Cramer V. Nev. Dep’T Of Motor Vehicles, 126 Nev. Adv. Op. No. 38, Justin Shiroff

Nevada Supreme Court Summaries

The Court considers two appeals concerning NRS 50.320, which permits the use of an affidavit to prove a person’s blood-alcohol content in certain proceedings, including driver’s license revocation hearings, by a person who has been previously qualified to testify as an expert witness by a district court.


To Download Or Not To Download: Is Mere Membership Enough To Justify A Search Of A Home Computer For Child Pornography Under United States V. Gourde?, Erin Frazor 2010 Golden Gate University School of Law

To Download Or Not To Download: Is Mere Membership Enough To Justify A Search Of A Home Computer For Child Pornography Under United States V. Gourde?, Erin Frazor

Golden Gate University Law Review

In the nine to two decision by the en banc Ninth Circuit panel in United States v. Gourde, the court ruled that probable cause existed to search the defendant's home computer based in part on his two-month subscription to a website that offered child pornography. The majority opinion sought to conform to Supreme Court precedent in its probable cause analysis, while the dissenting opinions expressed great concern about the door being opened to this type of governmental invasion of privacy. Gourde has sparked reactions by commentators regarding the implications of the decision, and has influenced the analysis of subsequent ...


Seeking Truth On The Other Side Of The Wall: Greenleaf’S Evangelists Meet The Federal Rules, Naturalism, And Judas, Nancy J. Kippenhan 2010 Liberty University School of Law

Seeking Truth On The Other Side Of The Wall: Greenleaf’S Evangelists Meet The Federal Rules, Naturalism, And Judas, Nancy J. Kippenhan

Faculty Publications and Presentations

An inquiry that seeks truth by accepting only natural answers excludes the possibility of the sacred or supernatural, building a wall that forecloses a complete exploration for the truth it seeks. Without analysis, critics dismiss sources presenting supernatural explanations, and those who believe sacred works have no factual foundation accept without investigation any popular theory that appears attractive. The rules of evidence expressly seek truth, wherever it lies. Noted legal scholar Simon Greenleaf used evidentiary principles to demonstrate the factual credibility of the Gospels in his Testimony of the Evangelists. This Article examines Greenleaf’s analysis, applying current rules of ...


Reinforcing The Hague Convention On Taking Evidence Abroad After Blocking Statutes, Data Privacy Directives, And Aerospatiale, Brian Friederich 2010 University of San Diego

Reinforcing The Hague Convention On Taking Evidence Abroad After Blocking Statutes, Data Privacy Directives, And Aerospatiale, Brian Friederich

San Diego International Law Journal

There has always been tension between European countries and the United States on the topic of evidence gathering. Much of that tension stems from the inherent differences between common and civil policies and methods. Until the Hague Convention, the process for obtaining evidence abroad was cumbersome and unreliable. The Hague Convention sought to change that by providing signatory countries more effective methods of cooperating with each other in international litigation. However, the Hague Convention has not been able to achieve its purpose, at least not in the United States. U.S. courts have interpreted the Hague Convention as optional, meaning ...


Unscrambling The Confusion: Applying The Correct Standard Of Review For Rape-Shield Evidentiary Rulings, Robert E. Steinbuch 2010 University of Arkansas at Little Rock William H. Bowen School of Law

Unscrambling The Confusion: Applying The Correct Standard Of Review For Rape-Shield Evidentiary Rulings, Robert E. Steinbuch

Faculty Scholarship

No abstract provided.


Plea Bargainng, Discovery, And Waivers, R. Michael Cassidy 2010 Boston College Law School

Plea Bargainng, Discovery, And Waivers, R. Michael Cassidy

R. Michael Cassidy

No abstract provided.


Technology - Konop V. Hawaiian Airlines, Inc., Patricia DeFonte 2010 Golden Gate University School of Law

Technology - Konop V. Hawaiian Airlines, Inc., Patricia Defonte

Golden Gate University Law Review

In Konop v. Hawaiian Airlines Inc., the United States Court of Appeals for the Ninth Circuit held that the unauthorized access of the content of a secure website is a violation of the Wiretap Act and the Stored Communications Act. This is the first case to determine whether unauthorized accessing of a secure private website is a violation of the Wiretap Act. This decision is contrary to an earlier decision by the Fifth Circuit in United. States v. Turk, which held that the Wiretap Act required contemporaneous transmission and acquisition of the communication. The Ninth Circuit concluded that the scope ...


A Hearsay Exception For Physical Abuse, Karleen F. Murphy 2010 Golden Gate University School of Law

A Hearsay Exception For Physical Abuse, Karleen F. Murphy

Golden Gate University Law Review

This Comment will trace the history of the hearsay rule under both common law and California law. It examines the early use of the common law state of mind hearsay exception regarding statements of fear and physical abuse. It will also discuss the enactment of the California Evidence Code (hereinafter "Code") and the later codification of the state of mind hearsay exception. In addition, it will examine People v. Ruiz, a case which applied the Code's state of mind hearsay exception to prohibit statements regarding the victims' fear of the defendant and the physical abuse which the defendant inflicted ...


Making The Crucial Connection: A Proposed Threat Hearsay Exception, Donna Meredith Matthews 2010 Golden Gate University School of Law

Making The Crucial Connection: A Proposed Threat Hearsay Exception, Donna Meredith Matthews

Golden Gate University Law Review

This article discusses how courts admit and exclude threat hearsay in the domestic homicide context and suggests an approach for admission of such evidence. After analyzing the current evidentiary status of the victim's statements regarding threats in homicide cases in which an apparently abusive spouse/partner is accused, I argue for adoption of a new hearsay exception that permits systematic admission of victims' statements concerning threats and violence by the accused. The victim can no longer speak for herself because she has been killed, often because the law is apparently helpless to intervene on her behalf, even when asked ...


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