This Article posits a substantial divide between scientific findings and the courtroom practice in cases where mistaken identification is alleged. After tracing the chronicity and significance of the phenomenon of mistaken identification, this Article reviews the science of perception and memory and the mixed and decidedly inadequate response of the courts to that body of knowledge and concludes with an assessment of the limits of cross-examination and the need for sophisticated advocacy in cases where eyewitness testimony is at the core of the prosecution theory of guilt. Put most simply, the efficacy of the “great engine” is overstated, and it is less likely to achieve its stated purpose than the little engine that could.
“[A] pertinent consideration [in determining whether a theory or technique is scientific knowledge that will assist the trier of fact] is whether the theory or technique has been subjected to peer review and publication.”
—Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993)
The phrase “peer review” connotes the evaluation (“review”) of scientific or other scholarly work by others presumed to have expertise in the relevant field (“peers”). Specifically, and most to the present purpose, it refers to the evaluation of submitted manuscripts to determine what work is published in professional journals and what books are published by academic presses (in which context it is also called “refereeing,” “editorial peer review,” or “pre-publication peer review”). Occasionally, however, the phrase is used in a much broader sense, to cover the whole longrun history of the scrutiny of a scientist’s work within the scientific community, and of others’ efforts to build on it, a long-run process of which peer review in the narrower sense is only a small part.
It is a singular privilege to have my name associated in any way with that of William Reece Smith. He is a true giant of our profession—nationally and internationally—and, of course, a great leader in this community. Most importantly, he teaches us, by his commitment to access to justice and his lifetime of pro bono and public service work, what being a lawyer should be about. Sir, by our presence here tonight, we all honor your continuing and extraordinary professional example.
I am truly honored to join you today in dedicating the William R. Eleazer Courtroom. Let me first congratulate the Stetson Centers for Excellence in Advocacy and Elder Law for making this cutting-edge, optimally accessible courtroom a reality. I also want to congratulate Dean Darby Dickerson for guiding Stetson University College of Law’s proud tradition of advocacy to new heights. This year’s victory at the Willem C. Vis International Commercial Arbitration Moot Court competition in Vienna is only one of the recent testaments to this school’s tradition of advocacy training.
More than 1,300 Americans died in the wake of Hurricane Katrina. Several months following the natural disaster, almost 200 bodies remained unclaimed or unidentified. In response to cries from city officials and citizens to provide these unclaimed Americans a “proper burial,” New Orleans officials requested a significant amount of funds from the Federal Emergency Management Agency (FEMA) to build a mausoleum for the bodies. Local officials, citizens, and the federal government went to great lengths to protect the dignity of the unclaimed bodies found after this natural disaster.
Instead of this response, imagine that someone suggested that we dissect the unclaimed bodies from Hurricane Katrina, place them in various extreme and sometimes unflattering poses in an exhibit, and allow the public to view them for a price. That person would likely be accused of insensitivity and other violations of basic social values. Why, then, has our society legitimized exhibits that display the dissected bodies of unclaimed Chinese people?
In an average year approximately four million American women experience “a serious assault by an intimate partner.” One-third of women seeking hospitalization in America do so because of such domestic violence. Many women feel that a restraining order is an effective way to combat abusive behavior at the hands of their boyfriends, spouses, or partners. Thus women constitute a majority of the beneficiaries of all restraining orders granted in this country. In fact, in protection order cases involving spouses or dating couples, ninety percent of the defendants are male.
“I beg you take courage; the brave soul can mend even disaster.”
In the Ojibwa tongue, the term for disaster is whangdepootenawah: “an unexpected affliction that strikes hard.” When disasters do strike, it immediately becomes obvious that the legal issues involved in local government disaster planning are some of the most misunderstood and confusing aspects of the entire process of disaster preparation and recovery. This makes the prudent involvement of the local government attorney essential. The local government attorney is encumbered with the responsibility of understanding and interpreting the seemingly
conflicting and ever-changing body of federal, state, and local regulatory laws, rules, and guidelines. It is likewise the local government
attorney who is called upon to be the bearer of bad news regarding the legal consequences of a public entity’s failure or inability to execute an effective disaster-recovery plan properly. This Article will explore the evolving body of emergency management law, as well as the practical, and at times impractical, application of that law. The Article’s analysis of state law will focus on Florida, but its discussion of the challenges that a disaster poses should resonate with all local government attorneys.
The unique and diverse nature of Florida’s population, as well as its recent history, makes attending to the needs of non-English-proficient language minorities in the voting process especially important. During the latter half of the twentieth century, Florida experienced enormous changes in the relative size, geographical distribution, and composition of its population. Some, but not all, of these changes can be attributed to national trends in population migration to the Sunbelt. Other changes can be explained by an increase in Hispanic or Latino population, again a national trend. Still other changes are the direct result of political changes in the Caribbean basin into which the peninsula of Florida extends, and United States’ policies that respond to those changes.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Satisfying the Confrontation Clause has been described as the act of placing a witness face-to-face with the defendant, so that the defendant may cross-examine the witness in the presence of both the judge and jury. However, what happens if the witness is unavailable to testify in court?
Life insurance and other nonprobate assets such as annuities, pay-on-death accounts, and retirement planning accounts have become increasingly popular as estate planning tools. In 2004, Americans purchased $3.1 trillion in new life insurance coverage, a ten percent increase from just ten years before. Purchases made by Floridians accounted for nearly $154 million of this national total. At the end of 2004, there was $17.5 trillion in life insurance policy coverage in the United States. However, it is likely that some of those policies will not provide security for the individuals for whom they were intended, especially if the policyholder resides in Florida. An unfortunate but familiar scenario occurs when a divorced individual fails to change the designated beneficiary on his or her life insurance policy or other contractbased estate planning tool, and the ex-spouse receives the insurance proceeds upon that individual’s death. Whether due to oversight, mistake, or poor comprehension of the way contracts such as life insurance policies operate, the outcome is especially regrettable when the decedent policyholder leaves behind minor children or a financially struggling family.