Copyright (c) 2008 All rights reserved. http://works.bepress.com/jane_moriarty Recent documents in Jane Moriarty en-us Sun, 17 Aug 2008 12:35:27 PDT 3600 http://works.bepress.com/jane_moriarty/10 http://works.bepress.com/jane_moriarty/10 Wed, 20 Feb 2008 14:09:12 PST Jane Campbell Moriarty Battered Women http://works.bepress.com/jane_moriarty/9 http://works.bepress.com/jane_moriarty/9 Wed, 20 Feb 2008 13:57:41 PST Jane Campbell Moriarty Evidence http://works.bepress.com/jane_moriarty/8 http://works.bepress.com/jane_moriarty/8 Wed, 20 Feb 2008 13:52:17 PST Forthcoming 2008. Jane Campbell Moriarty Evidence http://works.bepress.com/jane_moriarty/7 http://works.bepress.com/jane_moriarty/7 Wed, 20 Feb 2008 13:15:07 PST Also author of annual supplements. Jane Campbell Moriarty Evidence http://works.bepress.com/jane_moriarty/6 http://works.bepress.com/jane_moriarty/6 Wed, 20 Feb 2008 13:07:54 PST Volume 1 The history of mental illness in criminal cases.Volume 2 The insanity defense.Volume 3 Competency to be tried, imprisoned, and executed. Jane Campbell Moriarty Mental Illness http://works.bepress.com/jane_moriarty/5 http://works.bepress.com/jane_moriarty/5 Wed, 20 Feb 2008 12:11:46 PST This article explores the admissibility of neuroimaging evidence in U.S. courts, recognizing various trends in decisions about such evidence.While courts have routinely admitted some neuroimages, such as CT scans and MRI, as proof of trauma and disease, they have been more circumspect about admitting the PET and SPECT scans and fMRI evidence. With the latter technologies, courts have often expressed reservations about what can be inferred from the images. Moreover, courts seem unwilling to find neuroimaging sufficient to prove either insanity or incompetency, but are relatively lenient about admitting neuroimages in death penalty hearings.Some claim that fMRI and ''brain fingerprinting'' are able to detect deception. Other scholars argue that brain fingerprinting is a dubious concept and that fMRI is not yet sufficiently reliable. Moreover, there are substantial concerns about privacy and the perils of mind reading implicit in such technology. Yet, there is amovement to try to make these new technologies ''courtroom ready'' in the near future, raising a host of legal, policy, and ethical questions to be answered. Jane Campbell Moriarty Evidence http://works.bepress.com/jane_moriarty/4 http://works.bepress.com/jane_moriarty/4 Wed, 20 Feb 2008 10:44:19 PST In the last decade, a number of scientists have published articles and testified in court, explaining the ways in which they believe that some of the forensic sciences do not meet reliability standards and that laboratories make errors. The explosion of exonerations resulting from DNA technology has raised questions about the accuracy of many forensic sciences and the quality of some laboratory testing. A substantial number of these defendants can point to erroneous forensic science as a contributing cause of their wrongful convictions. In the courts, increasingly, the parties have substantial and serious disagreements about the quality of forensic science. The adoption of the reliability standard for expert evidence in federal courts and many state courts has created a daunting task for trial judges who must grapple with any number of complex, scientific, and technical forms of evidence. Judge Kozinski first recognized the enormity of the effort in the remanded Daubert decision, summarizing the new mandate and remarking, "We take a deep breath and proceed with this heady task." Because the Supreme Court, many state courts, and the Federal Rules of Evidence have extended proof of reliability to all forms of expert testimony, courts must grapple with questions concerning forensic expert evidence that is a part of many criminal prosecutions. Make no mistake--this is a challenging task, and many judges wrestle with the proper application of reliability standards to this type of evidence. This article provides some assistance to the judges dealing with the complexities of forensic science expert testimony. We offer three kinds of guidance concerning the proper role of forensic science. The first part of the article provides an exposition of the types and uses of forensic science frequently proffered. The second part addresses the notable questions, problems, and concerns about forensic science. The article closes with suggestions for approaches that may assist courts when confronting these questions and concerns. Jane Campbell Moriarty Evidence http://works.bepress.com/jane_moriarty/3 http://works.bepress.com/jane_moriarty/3 Wed, 20 Feb 2008 10:22:44 PST The primary aims of this Article are to deconstruct the evidence from the Salem witchcraft trials and to determine whether those prosecutions relied upon syndrome and profile evidence, and whether such evidence played a substantial role in the convictions. The secondary aim is to determine whether modern cases employ evidentiary methods sufficiently similar to the Salem cases such that we should reconsider prosecutorial syndrome and profile evidence. This Article concludes that prosecutorial syndrome evidence and, to a lesser degree, prosecutorial profile evidence, were relied upon in the Salem cases and were important to the convictions. Moreover, in modern cases, which rely on syndromes for purposes of conviction and profiles for purposes of reasonable suspicion and probable cause, the essential cognitive error in the Salem trials is still present in the use of syndrome and profile evidence: the belief that criminal behavior can be determined with sufficient certainty by considering constellations of behaviors in either victims or defendants. This Article argues that experience-based conclusions about the relationship between observed behaviors and crime, when not subjected to a more searching or science-based scrutiny, are both incomplete and laced with the potential for error.As developed more fully in Part VI, infra, courts have shown a great willingness to accept prosecutiorial profile and syndrome evidence, the validity of which is premised primarily on the experience of law enforcement officers and treating therapists. Courts have not been forceful in requiring proof of the underlying belief structures that animate profile and syndrome evidence, namely that crime is meaningfully related to defendant behavior and victim behavior. Part VI submits that current appreciation for scientific method, along with the Supreme Court's mandate that trial courts engage in rigorous "gatekeeping" of expert evidence and amended Federal Rule of Evidence 702, collectively support greater proof of reliability and validity of prosecutorial syndrome and profile evidence prior to its admissibility at trial.Although the comparison between the witchcraft trials of 1692 and modern trials may be considered inflammatory, it is important to remember that the experts relied upon in Salem were employing precepts that had been in use for approximately a century. Moreover, although witchcraft may not have been the cause, there were numerous examples of people and animals in Salem becoming sick and dying. Thus, some of the harm was very real, even if the cause misperceived. Finally, it is the respective methodology under comparison, not the actual evidence. The law does not always recognize its own errors while they are occurring, but often discovers them only in the refracted light of history. Jane Campbell Moriarty Evidence http://works.bepress.com/jane_moriarty/2 http://works.bepress.com/jane_moriarty/2 Wed, 20 Feb 2008 09:51:47 PST Since the Bush Administration issued its controversial Preemption Doctrine, which claims to permit the United States to unilaterally and preemptively attack a putative enemy deemed to be a threat to national security, I have been rethinking the concept of self-defense as it applies to battered women who kill their abusers. When President George W. Bush spoke about the peril of not taking action "while dangers gather," I thought about the thousands of battered women in the grip of domestic terrorists who must also make decisions about when and whether to use violence to save their own lives.This article concludes that ASD must be cabined but allowed if we are to ensure the twin aims of security and justice. While we must be able to mold the law to encompass problems posed by unpredictable and lethal terrorists engaged in ruthless patterns of aggression, we must not seek to replace the law with lawless preemption, as does the Bush Doctrine. This article aims to find the middle ground between an overly rigid application of the self-defense doctrine and an overly flexible approach in which any type of perceived danger justifies preemptive action. In Section II of the article, I discuss terrorism, the international law of self-defense, and the Bush Doctrine. In Section III, I address the problems of intimate violence against women, while I review in Section IV the law of self-defense as applied to women who kill their abusers. In Section V, I analyze the intersection between international and domestic law, and conclude that some form of ASD should be available to women who kill their abusers. Jane Campbell Moriarty Battered Women http://works.bepress.com/jane_moriarty/1 http://works.bepress.com/jane_moriarty/1 Wed, 20 Feb 2008 09:25:32 PST DNA evidence has exonerated over two hundred wrongfully convicted defendants in the last several years, providing insights into the causes of such convictions. One such cause, faulty scientific evidence, is a focus of this article. For decades, many have written about the prevalence of and reasons for wrongful convictions --what I have termed "misconvictions." A few reasons support the coinage "misconvictions": the miscarriage of justice when an innocent person is convicted; the mistakes involved in the prosecution and trial of the case; the mistaken identification that may have occurred; and finally, the recognition that all wrongful convictions are a missed opportunity to convict the person who actually committed the crime. In light of these concerns, misconvictions is an apt term.This Article provides a new perspective on misconvictions by focusing on the intersection of ethics and expert evidence in criminal cases, specifically considering the actions of judges and prosecutors. The Article has a dual focus: first, to explain the forensic science concerns that contribute to misconvictions; and second, to contemplate the role that the "ministers of justice"--the executive and judicial branches--play in creating misconvictions by their management of expert evidence. The Article then provides suggestions for improving the quality of justice to reduce the likelihood of wrongful convictions.While trial judges decide whether evidence is admissible in criminal trials, prosecutors wield exceptional power in decisions about whom to prosecute and what evidence to introduce while trying a case. These two ministers of justice--possessing virtually all the power to regulate a criminal case--must be held to a high standard, not only to ensure convictions of those who have committed crimes, but also to ensure that to the degree possible, the innocent are not convicted. Yet prosecutors, by using unreliable forensic evidence and questionable expert witnesses, and judges, by failing to exercise their gatekeeping role in a sufficiently diligent manner, have become part of the mechanism by which misconvictions occur. This Article discusses ways for prosecutors and judges to rise to the ethical demands of their positions.Part II of this Article details the laboratory failures, the proficiency concerns, and the myriad of problems with the so-called "individualization" specialties that seek to match a person to a crime.Part III explains how prosecutors, in their role as ministers of justice, have an affirmative duty to try to avoid the wrongful conviction of innocent people by using unreliable expert evidence. The Article provides specific suggestions for achieving that goal. Part IV explains the ethics issues implicated when judges exercise their gatekeeping and trial management roles and also discusses options to help trial courts comply with such ethical obligations. Jane Campbell Moriarty Evidence