Lawyers regularly move, pre-trial, to exclude evidence. Shouldn’t the same approach be used to ensure inclusion of proof? The answer should be “of course,” but I recently came across a contrary view – one that is dead wrong. A Judge [yes, a sitting judge] gave the following advice – “A motion in limine should
That eyewitnesses make errors – errors of a catastrophic nature that can send an innocent person to jail for decades or even face a sentence of death – cannot be doubted. As confirmed by the INNOCENCE PROJECT, “[e]yewitness misidentification is the greatest contributing factor to wrongful convictions proven by DNA testing, playing a role in
What does the President of the United States have to do with forensic science? Answering that could take one, indirectly, back to Abraham Lincoln, who signed the legislation that led to the creation of the National Academy of Sciences. The NAS, in 2009, issued a report that called into question the validity and precision
Advice on a listserve can be like medical, ‘scientific’ or political information on the internet – of questionable accuracy and dubious value. Yet listserves persist and advice-givers proceed apace, sometimes requiring a cooler/older ‘head’ to intervene. Such was the case on a criminal defense listserve, where a lawyer sought advice on how to impeach
Until reading JURY TRIALS: OUTSIDE IN (NITA, 2016) by psychologist Melissa Gomez, I was more than skeptical regarding the value of jury consultants. And I was not alone. As of 2005, “[a]lthough jury consultants claim high success rates, little research ha[d] been conducted on the actual effect jury consultants have in the outcome of a
How should judges evaluate lawyers’ alleged mishandling of forensic science evidence when the challenge is brought years after the trial? One recent United States Supreme Court decision grapples with this; and this article contextualizes that holding, analyzes its weaknesses, and suggests some factors for judges to weigh. In criminal cases, the importance of science (and
Rule 703 of the Federal Rules of Evidence was not intended to abolish the hearsay rule and to allow a witness, under the guise of giving expert testimony, to in effect become the mouthpiece of the witness on whose statements or opinions the expert purports to base his opinion.
When is a photograph more disturbing than useful, particularly in an emotionally-charged trial such as a homicide case (and, more particularly, in a homicide trial where the victim is a young child)? At once a seemingly narrow inquiry, how this question is answered resonates in all sorts of cases, particularly criminal and personal injury, where
Prosecutors cross-examine much less frequently than do defense counsel, for good reason. Often defendants do not testify (with some data sets putting the number below the 50% threshold for felony cases that go to trial), whether because they have little too say, there is ample impeachment evidence the jury will not hear if they remain
The words “I object” should be passe. The availability of pre-trial motions in limine, as guaranteed by FRE 103, should ensure that evidentiary issues are thoughtfully considered and resolved before trial begins. But time constraints or unexpected developments may require a time-of-trial challenge to the admission of evidence, so knowing the “why” and “how” of objecting is essential. And, as is developed below, a mere “I object” may serve no legal or practical end.