EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, July 31, 2022

CALL TO ACTION: Seeking Contributions to Nicholas Newbold's Legal Defense Fund in His "Shaken Baby Syndrome" Retrial

Shaken Baby Syndrome (SBS) is the flawed theory that an infant with a traditional triad of symptoms -- (1) retinal bleeding; (2) subdural hematoma; and (3) brain swelling -- must have been abusively shaken. The problem with SBS is that the emperor has no clothes, leading a New Jersey judge to recently declare that a SBS diagnosis is "akin to 'junk science.'" Tragically, faulty SBS diagnoses have led to many wrongful convictions of parents grieving the losses of their infants, with many of these convictions coming in cases in which the parent had no history of violence at all. Typically, in these cases, it was not abusive shaking, but instead pregnancy/birthing issues or short falls that explain the infant dying. And this was exactly the case with Nicholas Newbold, who recently won a new trial (Download Ruling on Habeas Corpus) after a faulty SBS conviction. Stunningly, the prosecutor plans to prosecute Newbold again, forcing him to relive this tragedy for a third time. I have agreed to assist on the case on a pro bono (free) basis, but I am sharing his story and his legal fundraiser here because he has significant legal fees for his impending second trial and could use help.

Here is the link to Newbold's legal fundraiser:


And here are the details of the case:

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July 31, 2022 | Permalink | Comments (0)

Friday, July 29, 2022

Book of Interest: Frederick Schauer's "The Proof: Uses of Evidence in Law, Politics, and Everything Else"

Frederick Schauer, the David and Mary Harrison Distinguished Professor of Law at the University of Virginia School of Law, has published The Proof Uses of Evidence in Law, Politics, and Everything Else (Harvard University Press). Simply put, this book is a must read for Evidence scholars and anyone interested in Evidence law.

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Here's the book blurb:

In a world awash in “fake news,” where public figures make unfounded assertions as a matter of course, a preeminent legal theorist ranges across the courtroom, the scientific laboratory, and the insights of philosophers to explore the nature of evidence and show how it is credibly established.

In the age of fake news, trust and truth are hard to come by. Blatantly and shamelessly, public figures deceive us by abusing what sounds like evidence. Preeminent legal theorist Frederick Schauer proposes correctives, drawing on centuries of inquiry into the nature of evidence.

Evidence is the basis of how we know what we think we know, but evidence is no simple thing. Evidence that counts in, say, the policymaking context is different from evidence that stands up in court. Law, science, historical scholarship, public and private decision making—all rely on different standards of evidence. Exploring diverse terrain including vaccine and food safety, election-fraud claims, the January 2021 events at the US Capitol, the reliability of experts and eyewitnesses, climate science, art authentication, and even astrology, The Proof develops fresh insights into the challenge of reaching the truth.

Schauer combines perspectives from law, statistics, psychology, and the philosophy of science to evaluate how evidence should function in and out of court. He argues that evidence comes in degrees. Weak evidence is still some evidence. The absence of evidence is not evidence of absence, but prolonged, fruitless efforts to substantiate a claim can go some distance in proving a negative. And evidence insufficient to lock someone up for a crime may be good enough to keep them out of jail. This book explains how to reason more effectively in everyday life, shows why people often reason poorly, and takes evidence as a pervasive problem, not just a matter of legal rules.

Here is Schauer talking about how we know what is evidence and what is not on Wisconsin NPR.

And here is a very positive review of the book in the Wall Street Journal.


July 29, 2022 in Film | Permalink | Comments (0)

Wednesday, July 27, 2022

Supreme Court of Ohio Finds Use of Marsy's Law to Have Victim Sit at Prosecution Table Violated the Presumption of Innocence

Over the past few years, states have begun enacting Marsy's Law, which "seeks to give crime victims meaningful and enforceable constitutional rights equal to the rights of the accused." Many legal scholars, including myself, have questioned Marsy's Law, arguing that courts could easily apply several of its provisions to erode the constitutional rights of defendants. A good example of this can be found in the recent opinion of the Supreme Court of Ohio in State v. Montgomery, 2022 WL 23472102022 (Ohio 2022).

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July 27, 2022 | Permalink | Comments (1)

Tuesday, July 26, 2022

Eleventh Circuit Finds No Issue With Allen Instruction to Jury That Deadlocked Three Times

In federal court (and in about half of state courts), when a jury is initially deadlocked, the judge can give them an Allen charge instructing the jury to keep deliberating. That said, a judge cannot give jurors an Allen charge that coerces a juror to give up an honest belief. So, was the Allen charge in Ruinstein v. Yehuda, 38 F.4th 982 (11th Cir. 2022), unduly coercive?

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July 26, 2022 | Permalink | Comments (1)

Monday, July 25, 2022

Article of Interest: The Law’s Aversion to Naked Statistics and Other Mistakes

Professor Ronald J. Allen (Northwestern Pritzker School of Law) and Christopher Smiciklas (a recent graduate of the Northwestern Pritzker School of Law) have posted The Law’s Aversion to Naked Statistics and Other Mistakes (forthcoming in Legal Theory) on SSRN. Here is the abstract:

A vast literature has developed probing the law’s general aversion to statistical/probability evidence in general and its rejection of naked statistical evidence in particular. This literature rests on false premises. At least so far as U.S. law is concerned, there is no general aversion to statistical forms of proof and even naked statistics are admissible when the evidentiary proffer meets the normal standards of admissibility, the most important of which is reliability. The belief to the contrary rests upon a series of mistakes: most importantly, mismodeling of the structure of legal systems and the nature of common law decision making. Contributing to these mistakes is the common methodology in this literature of relying on weird hypotheticals that mismodel the underlying legal relations and contain impossible epistemological demands. Collectively, these phenomena have distracted attention from issues that actually affect real legal systems.

In large part, the article is a critical examination of Smith v. Rapid Transit, which is often cited as the "'seminal case'" demonstrating the suspicion of statistical evidence." 

Allen and Smiciklas present a strong rebuttal to this claim, arguing, inter alia, that

-Not even in Massachusetts does Smith stand for what it is cited for in the literature. Instead, the Massachusetts cases break down over the quality of the evidence. If a court concludes the evidence is reliable enough, the evidence is admitted even if probabilistic, and in cases without reliable statistics, the evidence is excluded.

-The modern treatment of statistics in American litigation involves overwhelming acceptance of the evidence so long as it reliable and helpful—even when the evidence is as close to being “naked” as possible.

-There is almost no contemporary support in the various American jurisdictions for the categorical exclusion of naked statistical evidence as the basis for a verdict. Even before the advent of DNA, the general approach across the United States either was or was evolving to admit evidence critical to a judgment in statistical form where an adequate foundation had been laid and to allow experts to explain the evidence to the factfinder.

I found this to be an article that was extremely well researched and argued, and I strongly recommend it to readers interested in Evidence law.


July 25, 2022 | Permalink | Comments (0)

Friday, July 22, 2022

Texas Appellate Court Finds Victim's Statement Didn't Qualify as an Excited Utterance

Similar to its federal counterpart, Texas Rule of Evidence 803(2) provides an exception to the rule against hearsay for 

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

What's interesting about this "excited utterance" hearsay exception is that, read literally, it could allow for the admission of statements that come well after a startling event or condition. In other words, you can imagine a person suffering from a traumatic event (like a bad car crash) and still being under the stress of excitement it caused years later. Courts, however, generally read a contemporaneity requirement into the exception, meaning that a statement must usually come hours after a startling event or condition. A good example can be found in the recent opinion by a Texas appellate court in Auld v. State, 2022 WL 2837963 (Tex. App. 2022).

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July 22, 2022 | Permalink | Comments (0)

Thursday, July 21, 2022

Court of Appeals of Indiana Finds Statement Made by Victim After Being Shot 11 Times Qualified as a Dying Declaration

Similar to its federal counterpart, Indiana Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay for

A statement that the declarant, while believing the declarant's death to be imminent, made about its cause or circumstances.

Sometimes, it is clear that the declarant believes her death to be imminent, such as when she makes an explicit statement (e.g., "I can't believe I'm going die at 21."). Other times, a court can infer such belief based on the circumstantial evidence. An example of this can be found in the recent opinion of the Court of Appeals of Indiana in Smith v. State, 2022 WL 2349868 (Ind.App. 2022).

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July 21, 2022 | Permalink | Comments (0)

Wednesday, July 20, 2022

The William S. Boyd School of Law at the University of Nevada, Las Vegas Seeks An Evidence Professor

Faculty Hiring Announcement

Location: Las Vegas, NV
Subjects: Legal Writing, Clinical Legal Education
Start Date: July 1, 2023

The William S. Boyd School of Law at the University of Nevada, Las Vegas, invites applications from both entry-level and lateral candidates for two tenure-track or tenured faculty positions expected to begin July 1, 2023. For these two positions, we seek creative and productive scholars: one with relevant expertise in teaching Legal Writing and one with experience teaching a live-client Clinic. Our faculty who teach legal writing or clinical courses are full members of our unified tenure system with all of the privileges and scholarly expectations associated with tenure; faculty who teach legal writing or clinical courses may teach a podium course as part of our standard 3-course teaching load. Subject matter needs for podium courses are broad and include, but are not limited to, business and commercial law, criminal law, evidence, and property. 

The William S. Boyd School of Law at UNLV is a leading public law school founded on a commitment to public service and community engagement. With its nationally ranked Lawyering Process Program, Saltman Center for Conflict Resolution, and the Thomas & Mack Legal Clinic, Boyd offers a dynamic curriculum designed to teach students critical thinking and lawyering skills. Boyd has an LL.M. in Gaming Law and Regulation and a variety of distinctive Programs in Health Law; Indian Nations Gaming and Governance; International, Transnational, and Comparative Law; and Race, Gender & Policing. Through its J.D. curriculum, students can pursue academic concentrations in Business and Commercial Law, Dispute Resolution, Health Law, Intellectual Property, and Workplace and Employment Law. The law school is located at the heart of the UNLV campus. UNLV is an R1 research university that is among the most diverse campuses in the nation and is also the state’s largest comprehensive doctoral degree granting institution with Schools of Business, Dental Medicine, Engineering, Hospitality, Medicine, Nursing, and Public Health, among many others. 

Applicants for law school faculty positions should submit a letter of interest describing teaching interests and experience and providing a scholarly research agenda, along with a detailed resume, at least three professional references, and cites or links to published works. The Faculty Appointments Committee will begin interviewing candidates in August; candidates who submit applications by August 18 will be given priority.  Interested candidates should send their materials to: 

Faculty Appointments Committee
William S. Boyd School of Law at UNLV
4505 South Maryland Parkway, Campus Box 451003
Las Vegas, NV  89154-1003 
or by email at [email protected]

Members of the Appointments Committee are Professors Thomas Main (chair), Mary Beth Beazley, Frank Rudy Cooper, Mary LaFrance, Lydia Nussbaum, and Jean Sternlight.  

UNLV is an Affirmative Action/Equal Opportunity educator and employer committed to excellence through diversity.

July 20, 2022 | Permalink | Comments (0)

Tuesday, July 19, 2022

Eleventh Circuit Rejects Premature Deliberations Claim in Death Penalty Appeal

Federal Rule of Evidence 606(b) states the following:

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

(2) Exceptions. A juror may testify about whether:

(A) extraneous prejudicial information was improperly brought to the jury’s attention;

(B) an outside influence was improperly brought to bear on any juror; or

(C) a mistake was made in entering the verdict on the verdict form.

In Pena-Rodriguez v. Colorado, the Supreme Court also created a Constitutional exception to this "no jury impeachment" rule when there is evidence of racial bias by jurors during deliberations. But, as the recent opinion of the Eleventh Circuit in Gavin v. Commissioner, Alabama Department of Corrections, 2022 WL 2752366 (11th Cir. 2022), of no exceptions apply, jurors cannot testify to impeach their verdict.

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July 19, 2022 | Permalink | Comments (0)

Monday, July 18, 2022

Court of Appeals of Georgia Finds Statements to Responding Officer Did Not Qualify as a Present Sense Impression

Like its federal counterpart, OCGA § 24-8-803(1) provides an exception to the rule against hearsay for

A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.

So, how much time can pass between an event/condition and a statement such that the statement is no longer a "present sense impression" under the exception? Let's take a look at the recent opinion of the Court of Appeals of Georgia in Grimes v. State, 2022 WL 2313683 (Ga. App. 2022).

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July 18, 2022 | Permalink | Comments (0)

Sunday, July 17, 2022

Seventh Circuit Finds District Judge Didn't Err in Denying Motion for Court Expert in Printing Press Accident Case

Federal Rule of Evidence 706(a) provides that

On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act.

While a judge can thus appoint a court expert under Rule 706(a), there are few circumstances where a judge must appoint a court expert. Typically, those circumstances involve highly technical issues at trial that require expert explanation. So, what happened in Stevenson v. Windmoeller & Hoelscher Corp., 2022 WL 2526448 (7th Cir. 2022)?

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July 17, 2022 | Permalink | Comments (0)

Saturday, July 16, 2022

Eighth Circuit Finds Third Person/Spousal-Victim Exception to Marital Privilege Applies in Felony Murder Case

The federal confidential marital communications privilege protects against the admission of confidential marital communications between spouses, much like the attorney-client privilege protects against the admission of confidential communications between a client and her attorney. But, as with the attorney-client privilege, the confidential marital communications privilege has exceptions, like the one applied in United States v. White Owl, 2022 WL 2431600 (8th Cir. 2022).

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July 16, 2022 | Permalink | Comments (0)