Articles

One step forward and two steps back? The ′20 Principles′ for questioning vulnerable witnesses and the lack of an evidence-based approach

In England and Wales, particular attention has been devoted to the presentation and questioning of vulnerable witnesses, usually children.  This led to the development of “The 20 Principles of Questioning,” a protocol for preparing and examining such witnesses. This article assesses the 20 principles to show which are supported by science, which have inadequate research

TAILORED JURY INSTRUCTIONS: WRITING INSTRUCTIONS THAT MATCH A SPECIFIC JURY’S READING LEVEL

Jury instructions are core to the assessment of a case – although they are boring and often difficult for the lay audience (or even many layers) to understand.  Across the board, there has been inadequate work done to ensure comprehensibility. This article approaches the problem from the starting point of average reading levels in the

MEDIATING IN THE RED ZONE — AN ADVOCATE’S CHECKLIST

What does it take to resolve a case successfully in a mediation process?  This how-to article, from this Utah attorney who has both advocated in mediation proceedings and served as a mediator and arbitrator, is a common sense guide to lawyers whose cases will proceed via alternative dispute resolution.  With the touchstones of flexibility and

ADOPTED STATEMENTS IN THE DIGITAL AGE: HEARSAY RESPONSES TO SOCIAL MEDIA “LIKES”

What is a “like” in the world of social media?  For Evidence law purposes, does “like” equal “approve” or “I agree?”  And what does it matter?  Because if “like” translates into approval, it becomes an adoption of the original message by the “liker.”  And if that person is ever the party to litigation, does this

“That’s How She Talks”: Animating Text Message Evidence in the Sexual Assault

Text messages are often more accurate in detailing a chain of events than a witness’ post-occurrence memory and time-of-trial reconstruction of the incident(s).  Yet text messages are not neutral; they may be subject to manipulation or alternative interpretations depending on how they are displayed and “animated,” i.e., brought to life. This capacity to give different

REPORT: WRITING IT RIGHT: TIPS ABOUT WRITTEN ADVOCACY FROM THE NORTH DAKOTA SUPREME COURT

The five-justice North Dakota Supreme Court has posted on its website a 10-page collection of “Appellate Practice Tips.”  University of Missouri Law Professor Douglas Abrams, author of EFFECTIVE LEGAL WRITING: A GUIDE FOR STUDENTS AND PRACTITIONERS (West Academic Publishing 2016),  identifies and expands upon each of the tips.  As with Irving Younger’s “Ten Commandments of

APPLYING EMPIRICAL PSYCHOLOGY TO INFORM COURTROOM ADJUDICATION — POTENTIAL CONTRIBUTIONS AND CHALLENGES

Do judges change their rulings on motions to suppress depending not on the law but on the biasing effects of how terrible the crime is and how pivotal the evidence will prove to be?  Do juror biases affect how they analyze legal concepts such as the “substantial step” element of attempt? The answer to each

Evaluating Negative Forensic Evidence: When Do Jurors Treat Absence of Evidence as Evidence of Absence?

What value does a juror place on proof that a test – for gunshot residue, for latent prints, for DNA – produced no results?  This article uses mock juries in a controlled setting, with careful alteration of variables, to discern how jurors respond. What were the findings?  In one sense, the obvious: The first question

The Negative Effect Fallacy: A Case Study of Incorrect Statistical Reasoning by Federal Courts

Appellate arguments, and judicial opinions, often proceed from the premise that “it is never easy to prove a negative.”   But that’s not always the case, as there is a difference between the “philosophical and arithmetic definitions of the word negative[.]” This article is an essential first step to understanding the difference, both to inform current

THE PROFICIENCY OF EXPERTS

Professors Brandon Garrett and Gregory Mitchell, both of the University of Virginia Law School, argue compellingly that expert witnesses should be judged less by credentials and more by proven accuracy, in particular by their performance on proficiency tests.  Their article is not merely theoretical; it draws upon data showing “false positive” identifications in latent print