2008 Mid-Year Meeting
Conference on Evidence
The Future of Evidence: How Science and Technology Are Changing Evidence Law
June 3 – 6, 2008
Renaissance Cleveland Hotel
Cleveland, Ohio
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Program
Tuesday, June 3, 2008
4:00 - 8:00 p.m.
AALS Registration
6:00 - 7:30 p.m.
Reception Sponsored by Cleveland-Marshall College of Law, Cleveland State University
Buses start loading at 5:45 p.m. from the main hotel entrance on Superior Street.
Wednesday, June 4, 2008
9:00 - 9:15 a.m.
Welcome
John H. Garvey, Boston College, AALS President
Introduction
Eleanor Swift, University of California, Berkeley, Chair, Planning Committee for AALS Conference on Evidence
9:15 -10:30 a.m.
Today’s Challenges in Teaching the Traditional Evidence Course
Jennifer Mnookin, University of California at Los Angeles
Aviva Orenstein, Indiana University, Bloomington
Stephen A. Saltzburg, The George Washington University
Moderator: JoAnne A. Epps, Temple University
The study of evidence law today causes us to confront many new questions. To name just a few: How are judges responding to the gate-keeping role required by Daubert? Is the use of technology in the courtroom changing fundamental assumptions about adversarial presentation of proof and jury decision making? Don’t DNA exonerations challenge complacency about evidence law as well as about pre-trial police and prosecutorial procedures? These questions challenge not only our research and writing about evidence, but also our teaching. Can we, as teachers of evidence law, integrate these or other new questions into the traditional course in evidence? Has the teaching of this basic course changed in the past 15 years or so? Should it? And what should be our pedagogic goals? This panel offers insight into these challenges (and more) from three distinguished teachers of evidence who are sure to stimulate a lively and thought-provoking discussion.
10:30 - 10:45 a.m.
Refreshment Break
10:45 a.m.-12:00 p.m.
Concurrent Sessions
Teaching Evidence: Something for Everyone
- Nuts and Bolts for New Law Teachers
David L. Faigman, University of California, Hastings
Joelle Anne Moreno, Florida International University - Advanced Evidence Courses and Seminars
Jane C. Moriarty, University of Akron
Dale A. Nance, Case Western Reserve University - Integrating Trial Theory and Practice into Evidence
Robert P. Burns, Northwestern University
Stephen A. Saltzburg, The George Washington University - Bringing the Humanities into Teaching Evidence
Cynthia Jones, American University
Andrew Eric Taslitz, Howard University
This session will explore how teachers of Evidence use short stories, excerpts from novels, plays, poetry, movies, moral and political philosophy, and history (which falls both under the social sciences and the humanities) in both basic and advanced evidence courses. Discussion will include using these materials to sensitize students to racial and gendered assumptions in the law, to explore evidence law and the emotions, and to clarify particular doctrinal issues through narrative.
12:00 - 1:45 p.m.
AALS Luncheon – “In the Atrium”
The informal setting of this buffet luncheon will provide the opportunity to meet and mingle in the Atrium of the Renaissance Cleveland Hotel. Enjoy the indoor/outdoor setting, see your friends, and introduce yourself to new colleagues.
2:00 - 3:30 p.m.
The Forensic Science Paradox
Margaret A. Berger, Brooklyn Law School
Paul C. Giannelli, Case Western Reserve University -view materials-
Erin E. Murphy, University of California, Berkeley -view materials-
Moderator: D. Michael Risinger, Seton Hall University
An unexpected outgrowth of Daubert has been the realization that the forensic individualization “sciences” (e.g., fingerprints, handwriting, hair, tiremarks, toolmarks, and more recently, bitemarks), although a staple of courtroom evidence for the better part of a century, have little scientific foundation to support them. Being required to justify the admission of such evidence under the tenets of Daubert and Kumho Tire has presented the courts as well as these fields with strange and difficult challenges. This session will illuminate the underlying claims of these fields, scientific and otherwise, evaluate the reasons to accept or reject those claims, and ponder the legal responses to date. If available by the time of our meeting, this session will also discuss the conclusions and recommendations of a National Academy of Sciences panel that has been studying some of these issues.
3:30 - 3:45 p.m.
Refreshment Break
3:45 - 5:00 p.m.
Soft Science and Non-Science: Controlling Expertise in the Courtroom
David L. Faigman, University of California, Hastings
Joelle Anne Moreno, Florida International University
Robert P. Mosteller, Duke University -view materials- -view outline-
Moderator: Edward J. Imwinkelried, University of California at Davis
Many jurisdictions adhering to Frye exempted both “soft science” and non-scientific expertise from the scope of the general acceptance test. Thus, the admissibility of these types of expert testimony went largely unregulated. In Daubert, the Court adopted a broad definition of science; and in Kumho, the Court made it clear that the reliability requirement applies to all types of expert testimony. The Court’s decisions force several questions to the forefront, inter alia: How can Rule 702’s reliability requirement be adapted to regulate the admissibility of non-scientific expertise and soft science? Or would it be preferable to resurrect some version of the general acceptance test to govern the admissibility of such testimony? The panelists will discuss such topics as police officers’ testimony about modus operandi and drug argot as well as soft science testimony on mental health issues.
6:00 - 7:30 p.m.
AALS Joint Reception for Conferences on Constitutional Law and Evidence
8:00 p.m.
Evening Session
Film and Discussion: Capturing the Friedmans
Introduction: Aviva Orenstein, Indiana University, Bloomington
Commentary: Jennifer Mnookin, University of California at Los Angeles
Tying together character evidence of sexual deviance, serious questions about investigative techniques and epistemological questions above truth, this award-winning and controversial movie is great for generating discussion.
Thursday, June 5, 2008
7:30 - 8:45 a.m.
Buffet Breakfast Sponsored by University of Akron School of Law
9:00 - 10:30 a.m.
Social Science and the Jury: What We (Think We) Know About What They (Think They) Know
Shari Seidman Diamond, Northwestern University
Frank C. Keil, PhD, Professor of Psychology, Yale University, New Haven, Connecticut
Dale A. Nance, Case Western Reserve University
Moderator: Michael J. Saks, Arizona State University -view materials 1- -view materials 2-
Juries perform a variety of functions in jury trials, including fundamentally normative tasks such as assigning responsibility. The view that the jury is merely “the judge of the facts” is simplistic, yet the jury is indeed assigned the primary responsibility for fact reconstruction along with its other functions. We justify our reliance on juries to perform this function based on certain “laboratory of life” notions about the strengths and weaknesses of juries in evaluating evidence. We justify most of our rules of evidence in the same way, as rules that provide the jurors with the information that they need and can accurately assess, while shielding them from information that partisan adversaries might foist upon them that would be mis-valued or otherwise misused to induce less accurate factual conclusions than they would come to without such information. But are our rules and practices based on accurate assumptions about the strengths and weaknesses of ordinary humans, or do we too often err by letting bad stuff in and keeping good stuff out, based on flawed ideas of human tendencies and capacities derived from a naïve pop psychology at odds with reality? This panel will explore the extant bodies of scientific research bearing on various aspects of this foundational question, including the heuristics people use to evaluate the implications of specific information, the ability of humans to accurately assess the credibility of live witnesses, and the ability of ordinary people to evaluate the assertions of putative experts.
10:30 - 10:45 a.m.
Refreshment Break
10:45 a.m. - 12:00 p.m.
fMRI and Lie Detection: Technique and Critique
Steven J. Laken, PhD, President, Cephos Corporation, Pepperell, Massachusetts
-view materials-
Michael S. Pardo, The University of Alabama
Moderator: Edward K. Cheng, Brooklyn Law School
Cutting-edge developments in functional magnetic resonance imaging (fMRI) promise the potential for scientifically rigorous and reliable lie detection. The technology thus raises decades-old concerns about polygraphs and the effect that lie detectors may have on the legal system. This panel will examine the technology behind fMRI and some of the evidentiary issues it may generate.
12:00 - 1:45 p.m.
Joint AALS Luncheon for Conferences on Evidence and Constitutional Law
The Honorable Nancy Gertner, Judge, U. S. District Court, District of Massachusetts, Boston, Massachusetts
Introduction: Eleanor Swift, University of California, Berkeley
2:00 - 2:45 p.m.
Concurrent Sessions
Teaching with New Technologies: Something for Everyone
- The ABCs of Using an Audience Response System (“Clickers”)
William A. Woodruff, Campbell University -view materials- - The ABCs of Power Point: Enhancing Its Teaching & Retention Value
Karen A. Jordan, University of Louisville -view materials- - The ABCs of Using Video Clips
Michelle R. Slack, Southern Illinois University - Advanced Integration of Video, Clickers and Power Point
Sydney A. Beckman, Charleston School of Law
Susan W. Crump, South Texas College of Law
Fred Anthony Galves, University of the Pacific
3:00 - 3:45 p.m.
Concurrent Sessions
Teaching with New Technologies: Something for Everyone
- The ABCs of Using an Audience Response System (“Clickers”) (repeated from 2:00 p.m.)
William A. Woodruff, Campbell University - The ABCs of Power Point: Enhancing Its Teaching & Retention Value (repeated from 2:00 p.m.)
Karen A. Jordan, University of Louisville - The ABCs of Using Video Clips (repeated from 2:00 p.m.)
Michelle R. Slack, Southern Illinois University - Advanced Integration of Video, Clickers and Power Point (repeated from 2:00 p.m.)
Sydney A. Beckman, Charleston School of Law
Susan W. Crump, South Texas College of Law
Fred Anthony Galves, University of the Pacific - Advanced Video Clips
Paul Bruce Bergman, Univ. of California at Los Angeles
Albert E. Scherr, Franklin Pierce Law Center
3:45 - 4:00 p.m.
Refreshment Break
4:00 - 4:45 p.m.
Concurrent Sessions
Teaching with New Technologies: Something for Everyone
- Advanced Video Clips (repeated from 3:00 p.m.)
Paul Bruce Bergman, University. of California at Los Angeles
Albert E. Scherr, Franklin Pierce Law Center - An Electronic Evidence Course – Teaching Evidence Over the Internet
James Alexander Tanford, Indiana University - Animated Film: Fighting Evidence with Evidence
Cynthia Jones, American University - “Real Life” Clips and Daubert
Pavel Wonsowicz, University of Nevada, Las Vegas -view materials- - Using “Real Life” Clips from YouTube to Review Evidence Concepts
Brian J. Foley, Drexel University
5:30 - 6:30 p.m.
Joint AALS Reception for Conferences on Constitutional Law and Evidence Sponsored by Case Western Reserve University School of Law
8:00 p.m.
Evening Session: Technology in the Courtroom: What Is Happening and What Does It Mean?
Fredric I. Lederer, College of William and Mary
Commentator: Neal R. Feigenson, Quinnipiac University
Introduction: Edward J. Imwinkelried, University of California at Davis
This presentation will describe and display the major developments in the use of technology for evidence presentation in court. In particular, the presentation will review the introduction of digital evidence, the use of remote witness testimony, and the implications for evidence doctrine.
Friday, June 6, 2008
9:00 - 11:00 a.m.
Concurrent Sessions
- Social Science Research: Should Evidence Law Respond?
Jeremy A. Blumenthal, Syracuse University
Phoebe C. Ellsworth, The University of Michigan -view materials-
Richard A. Leo, University of San Francisco -view materials 1- -view materials 2-
Christopher B. Mueller, University of Colorado
Moderator: Tamara R. Piety, University of Tulsa
Eileen A. Scallen, William Mitchell College of Law
In recent years social science research has challenged some of the premises about human cognition, psychology and motivation on which evidentiary principles depend. Examples include eyewitness identification, the cognitive abilities of jurors (including their ability to distinguish between proper and improper uses of evidence) and the cause and extent of false confessions, to name a few. This panel will discuss the proper role of reform in response to this research. Discussion will focus on the proper source of reform – should the Rules be amended, should police practices be modified, or is the proper source of change elsewhere – and the extent to which particular reforms seem appropriate. The panel will also explore why the law may thus far have failed to implement responsive reform and will question whether it may still be too soon to conclude that reform is necessary or appropriate.
- Inferring Causation
Margaret A. Berger, Brooklyn Law School
Michael Green, Wake Forest University
Susan Haack, University of Miami
Joseph Sanders, University of Houston -view materials-
Douglas L. Weed, MD, MPH, PhD, Fellow of the American College of Epidemiology, Kensington, Maryland
Moderator: Edward K. Cheng, Brooklyn Law School
The question of causal inference arises in a variety of legal contexts, such as in torts and criminal law. For example, proving that a substance can cause disease is at the core of toxic tort cases. Yet in the post-Daubert era the problem of how to reliably demonstrate causation has proven to be far more difficult and complicated than it appeared at first blush. This session will survey various interdisciplinary approaches to causal inference with the goal of illuminating some guideposts.
11:00 - 11:15 a.m.
Refreshment Break
11:15 a.m. - 12:30 p.m.
Concurrent Sessions
Evidence Scholarship: Something for Everyone
- Good (and Bad) Advice for New Law Teachers
Joelle Anne Moreno, Florida International University
D. Michael Risinger, Seton Hall University - How to Find and Use Empirical Research
Robert R. Myers, Case Western Reserve University -view materials- -view materials-
Michael J. Saks, Arizona State University - New Trends for Experienced Scholars
Katherine Y. Barnes, University of Arizona
Roger C. Park, University of California, Hastings
What are legal scholars to do when they want to take account of empirical research in their evidence scholarship, but have not been able to find an appropriate collaborator using electronic in to help them locate and evaluate the pertinent research literature? This session will discuss and demonstrate how to find relevant empirical research (using electronic indexes and databases) and how to begin evaluating what emerges from the literature search. - Writing about the Political (and Other) Passions
Eileen A. Scallen, William Mitchell College of Law
Andrew Eric Taslitz, Howard University -view materials-
Anyone who has tried a case or observed a trial understands that emotions run high and play a role in lawyers’ arguments, judges’ evidentiary rulings, and juries’ reasoning. Anyone who has followed a high-profile trial understands that political passions about such things as race, sex, and class are played out both between the parties and within the public’s mind. Perhaps less obviously, moral and political emotions also affect legislative and judicial drafting of evidence rules and the content of evidence scholarship. Indeed, emotions, several theorists argue, are inseparable from sound reasoning processes and play a role in the very structure of the adversary system itself. This session will examine the continuing interdisciplinary growth of evidence scholarship that emphasizes the human passions, drawing on literary, historical, and philosophical sources, in addition to those in qualitative and quantitative social science.
12:30 - 2:00 p.m.
AALS Luncheon
The Value of Facts – From the Enlightenment to Holmes and Crawford
Ronald Jay Allen, Northwestern University
Introduction: D. Michael Risinger, Seton Hall University
2:00 - 3:30 p.m.
The Justices, the Love Letter, the Widow and the Fiancée: A Forensic Solution to the Hillmon Case
Marianne Wesson, University of Colorado