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Criminal
White Collar Crime: Bells Tolling for Selective Waiver, by
Kathryn Keneally.
The attorney-client privilege and work product immunity are vital to our criminal justice system. Those under investigation or facing criminal prosecution need to know that they can speak freely with counsel. Defense attorneys must be able to advise their clients with the most complete information possible, including those facts and concerns that their clients would not want to share publicly and have the right not to disclose to the government. Counsel also require the ability to investigate, research, and develop the evidence and strategy to defend a criminal matter free of intrusion by potentially adverse parties.
Non-Specific.
3 pages. Written:
2008. Added:
7-04-2008.
www.fulbright.com
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Evidence
Authenticating Evidence for e-Discovery, by
Dennis R. Kiker, Mary Mack.
Article discusses: Lorraine case, hearsay, authentication, original writing rule, technical issues and reducing risk through process.
Non-Specific.
34 pages. Written:
2008. Added:
6-25-2008.
Fios, Inc.
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Civil Trial Practice
Top Things to Do When Collecting Electronic Evidence , by
Joan E. Feldman.
Send a preservation-of-evidence letter; include definitions, instructions, and specific questions in your written discovery; collect backup tapes and removable media; make image copies; write-protect and virus check all media; preserve the chain of custody; and hire an expert.
Non-Specific.
1 pages. Written:
2008. Added:
6-25-2008.
www.abanet.org
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Evidence
Minimize Legal Holds' Spoliation Risks, by
C.C. Holland.
Litigation and legal holds are an occasional event at medium-size
companies, but a fact of life for major corporations. While on the surface
the goal seems simple -- preserve, protect and collect relevant data and notify all stakeholders and custodians either during pending litigation or investigation -- in reality there are many opportunities for foul-ups.
Non-Specific.
1 pages. Written:
2008. Added:
6-25-2008.
Law.com
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e-Discovery
Authenticating Digital Evidence – Identify and Avoid the Weak Links in Your Chain of Custody, by
Merrill Legal.
Chain of custody is a familiar concept in criminal law, but until recent years it was foreign to civil litigators. The advent of the digital age has made it a major issue because the actual nature of evidence in civil litigation has undergone a radical transformation from tangible paper to electronic data. The purpose of testimony concerning chain of custody is to prove that evidence has not been altered or changed from the time it was collected through production in court. Chain of custody testimony would include documentation on how the data was gathered, transported, analyzed and preserved for production.
Non-Specific.
10 pages. Written:
2008. Added:
5-16-2008.
Website
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Evidence
Attorney-Client and Attorney Work Product Privileges: Their Application to Paralegals, by
National Federation of Paralegal Associations.
NFPA's research overwhelmingly supports its conclusion that the courts are extending attorney-client and work product doctrine privileges to paralegals. While there may be no statute or court rule that declares a paralegal-client privilege or paralegal work product doctrine is yet in existence courts look at the situation to determine if the lawyer is covered by the privilege and then apply that privilege to all nonlawyers employed by the attorney, including paralegals.
Non-Specific.
1 pages. Written:
2005. Added:
5-12-2008.
National Federation of Paralegal Associations
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e-Discovery
E-discovery and Electronic Evidence Update, by
Matthew Cohen, Claire Elizabeth Hand, Xavier Rodriguez.
The scope of what is included in the phrase
“electronic records” can be enormous, encompassing
voice mail, e-mail, deleted e-mail, data files, program
files, back-up files, archival tapes, temporary files,
system history files, web site information in textual,
graphical or audio format, web site history files, cache
files, “cookies” and other electronically stored
information.
Non-Specific.
99 pages. Written:
2008. Added:
5-10-2008.
State Bar of Texas
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Evidence
Expert Witnesses and Reports, by
Hon. Rose Guerra Reyna, David A. Chaumette.
This paper will first review these three issues mentioned above: (1) the Robinson test for the admissibility of expert testimony; (2) preservation of error under Robinson; and (3) preservation of error under the alternative methods that have developed following Havner. Finally, this paper will also discuss (4) Texas statutory requirements for expert reports and (5) unique expert issues that arise in specific areas of the law.
Non-Specific.
99 pages. Written:
2008. Added:
5-10-2008.
State Bar of Texas
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Evidence
Bates Stamps' Days May Be Numbered, by
Tom O'Connor.
One of the most challenging problems facing litigation attorneys is how to work with the massive volume of digital documents produced during the discovery phase of a case. Attorneys and clients who focus on a document-based systems will save time and money and can conduct native file review. In today's world of vast quantities of electronic documents, the days of the Bates stamp are numbered.
Non-Specific.
3 pages. Written:
2008. Added:
5-06-2008.
Law Technology News
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Evidence
Five Common Evidentiary Issues in Securities Fraud Actions Against Auditors and Accounting Firms, by
Scott B. Schreiber and Robert Alexander Schwartz.
Cases of securities fraud presenting
complex questions of fact involving the application
of GAAP and GAAS to unique modern
business operations are inherently challenging for
a jury of laymen. Counsel for the plaintiff has a
duty to use that practical reality to his or her client’s
advantage, within the confines of ethics.
Counsel for the auditor defendant should focus on ways to simplify the trial by eliminating confusing or prejudicial evidence from the jury’s consideration.
Non-Specific.
10 pages. Written:
2007. Added:
4-27-2008.
ALI-ABA
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Evidence
Recent Developments Affecting the Recovery of Attorneys Fees, by
Jane Bland, Ronald Lewis, Diana Marshall, Cory Galik.
Chapa clarifies that attorneys must segregate fees
based on the percentage of time spent on claims for
which fees are recoverable relative to non-recoverable
claims. This narrows the exception to the rule that
attorney’s fees are recoverable for work done on
claims that do not allow for fees if the claims involve
facts that are inextricably intertwined with facts that give rise to claims that allow fees.
Texas.
10 pages. Written:
2008. Added:
4-19-2008.
State Bar of Texas
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Employment and Labor
Five Must-Have Employment Defense Motions in Limine, by
Michael E. Brewer.
This article discusses five effective motions in limine specific to employment trials. Motions in limine may be brought to exclude evidence on the same grounds as any evidentiary objection made at trial. Trial courts have inherent power to entertain and grant motions in limine.
Non-Specific.
3 pages. Written:
2007. Added:
4-04-2008.
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e-Discovery
Smoke and Mirrors: The Fabrication and Alteration of Electronic Evidence, by
Sharon Nelson and John Simek.
The digital age has provided criminals with countless ways to manipulate others using computers. In this article originally presented at the ABA Techshow, Sharon Nelson and John Simek explain some of these types of crimes. The good news is that we have gotten better and better at detecting the alteration of electronic evidence.
Federal.
1 pages. Written:
2008. Added:
4-02-2008.
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Computer Forensics
Real Evidence, Virtual Crimes, by
Paul H. Luehr.
This article attempts to answer each of these questions:
What types of evidence can computer forensic experts provide?
How can computer evidence be recovered & preserved?
How should an attorney go about finding a qualified expert?
How should expert’s testimony be presented at trial?
What issues do experts commonly contest in cybercrime case
Non-Specific.
14 pages. Written:
2005. Added:
4-02-2008.
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e-Discovery
Lorraine v. Markel: Electronic Evidence 101, by
LexisNexis.
How does one properly introduce email, electronic files, native files, web site pages, digital photographs and other electronically stored information (ESI) at trial? These issues are discussed at length in Lorraine v. Markel (Judge Paul Grimm) and summarized in this white paper.
Federal.
7 pages. Written:
2007. Added:
3-20-2008.
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Evidence
Five Common Evidentiary Issues in Securities Fraud Actions Against Auditors and Accounting Firms, by
Scott B. Schreiber and Robert Alexander Schwartz.
Auditors and accounting firms have long been a favorite target of the plaintiffs’ bar. In preparing for trial, counsel representing auditors in civil securities fraud actions face certain recurrent evidentiary issues, the resolution of which can be outcome determinative.
Non-Specific.
10 pages. Written:
2007. Added:
3-13-2008.
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Civil Pre-Trial
Considerations Surrounding Motions in Limine, by
Stewart D. Aaron and Susan L. Shin.
This article discusses tactical considerations that are involved in deciding to make, and making, such motions, and in addressing issues that arise after the decisions on such motions. The Federal Rules of Civil Procedure
and the Federal Rules of Evidence also do not address motions in limine.
Non-Specific.
3 pages. Written:
2007. Added:
3-13-2008.
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Evidence
Helping the Jury Get It Right on Punitive Damages: Philip Morris USA v. Williams, by
Murray R. Garnick and Robert A. McCarter.
This article explains recent Williams decision & provides some practical suggestions for its application. We present below first an overview of Court’s decision and then suggestions regarding (1) model jury instructions & (2) how trial courts should protect against the risk of punishment for nonparty harm.
Non-Specific.
6 pages. Written:
2007. Added:
3-13-2008.
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Computer Forensics
Taxonomy of Anti-Computer Forensics Threats, by
Joseph C. Sremack & Alexandre V. Antonov.
Anti-forensics is a growing issue with potentially catastrophic consequences for investigators. If anti-forensics succeeds, evidence is subject to a Daubert challenge. Exploiting case law itself can be an anti-forensics technique.
Non-Specific.
17 pages. Written:
2007. Added:
3-08-2008.
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Information Law and Privacy
Get It On Tape - After Considering Legalities of Recording Phone Calls, by
Edward B.Williamson, Charles Kulkarni.
The outcome of a lawsuit often boils down to a credibility match as to the evidence of what was said in a meeting or phone conversation. Nothing speaks louder and clearer than a person's own voice and words on a recording. Getting the consent of all parties to a conversation in advance might stifle otherwise unguarded comments.
Non-Specific.
1 pages. Written:
2007. Added:
3-08-2008.
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Alternative Dispute Resolution
E-Discovery For Arbitrators Under the IBA Rules For Taking Evidence, by
John M. Barkett.
Article describes the IBA Rules and describes the difference between the paper world and the electronic world and how the federal courts in the United States responded to those differences with the e-discovery
rules.
International.
37 pages. Written:
2007. Added:
12-21-2007.
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e-Discovery
Keep 'Smoking Gun' E-Mails From Backfiring, by
H. Christopher Boehning and Daniel J. Toal.
Articles discusses various objections to introducing electronic stored information (ESI) into evidence in civil trial practice, and ways to overcome objections, including admissibility, hearsay and original writings rule.
Federal.
3 pages. Written:
2007. Added:
11-13-2007.
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e-Discovery
E-Discovery Requests: Know Your Limits, by
Mark A. Berman.
Courts in New York state are analyzing and refining the appropriate scope of ESI discovery in each case, so that only "material and necessary" evidence is ordered produced, in order not to unfairly burden parties and nonparties with excessive costs and overbroad requests.
Federal.
4 pages. Written:
2007. Added:
11-07-2007.
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Evidence
No Hearsay in Electronically Generated Information, by
Bradford E. Biegon.
Are you facing a mountain of e-discovery and wondering if you can get it into evidence? A recent 101-page opinion written by U.S. Magistrate Judge Paul Grimm, is a road map to how to use the fruits of electronic discovery as evidence at trial.
Non-Specific.
3 pages. Written:
2007. Added:
10-23-2007.
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Expert Witnesses
The Expert Extrapolation Mirage, by
Ronald E. Hood and John E. Cuttino.
This article
discusses the use of statistics to separate valid opinions based upon scientifically proven methods
from those based upon assumptions and unfounded beliefs. The discipline of “statistics” is an underappreciated tool that can be used to analyze the validity of expert opinions and evidence.
Non-Specific.
7 pages. Written:
2006. Added:
10-22-2007.
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Alternative Dispute Resolution
Evidence and Discovery in ADR, by
Richel Rivers, Mary Evelyn McNamara, Blake Bailey.
Evidence and discovery issues are fundamentally
different in an alternative dispute resolution context than in the traditional court framework. In many ways, ADR formats seek to streamline the
discovery process and relax the evidentiary
presentation procedures in order to achieve a true alternative to the traditional courtroom path.
Non-Specific.
14 pages. Written:
2005. Added:
10-11-2007.
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Alternative Dispute Resolution
Using Experts in Arbitration, by
George Ruttinger and Joe Meadows.
The evidentiary rules and discovery requirments in arbitration are far less onerous than in a courtroom. As a result, lawyers who represent parties in arbitration have more opportunities to use and present expert evidence. This article addresses some of those opportunities.
Non-Specific.
4 pages. Written:
2007. Added:
10-09-2007.
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e-Discovery
Electronic Discovery and Computer Forensics Caselaw, by
Kroll Ontrack.
Comprehensive survey of case law includes topics on discoverability, procedure, production of data, costs, preservation & spoliation, sanctions, work product doctrine & privilege, expert witnesses, computer forensic protocols and evidence admissibility.
Non-Specific.
145 pages. Written:
2007. Added:
10-07-2007.
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Evidence
Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery, by
Jason R. Baron, Richard G. Braman, Kenneth J. Withers, Thomas Y. Allman, M. James Daley, George L. Paul.
Sedona project committee discusses for search and retrieval, and manual search vs. electronic search, and new search technologies, and best practices for e-discovery and litigation support.
Non-Specific.
38 pages. Written:
2007. Added:
9-18-2007.
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Litigation Support
Strategies and Considerations for Internet Compound Documents for Use in Internet Evidence Discovery, by
Jonathan Hirschman, Applied Evidence.
Discusses e-Discovery and the 'Internet Compound Document', a document that has one or more of its components located on remote computer or the Internet, and requires special handling in terms of logistics, chain of custody, and potential for "additive"
spoliation.
Non-Specific.
11 pages. Written:
2005. Added:
9-13-2007.
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Evidence
Hash: The New Bates Stamp, by
Ralph C. Losey.
Article explains the history of Bates-stamping and Hash algorithms in detail. Author proposes using a truncated version of a file's hash as a 'Bates-stamp' specific file identification.
Non-Specific.
44 pages. Written:
2007. Added:
9-09-2007.
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Computer Forensics
Smoke and Mirrors: The Fabrication and Alteration of Electronic Evidence, by
Sharon D. Nelson, Esq. & John W. Simek.
Digital alteration is appearing more and more often in the courts. The good news is that we have gotten better and better at detecting the alteration of electronic evidence. The bad news is that there is a cadre of unprincipled criminals who are doggone good at evidence alteration.
Non-Specific.
6 pages. Written:
2007. Added:
9-02-2007.
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e-Discovery
e-Discovery & Preservation - Take Control!, by
Tom O'Connor.
When faced with anticipated or pending litigation or government investigations, corporations have an obligation to preserve
potentially relevant evidence and prevent spoliation or the willful or inadvertent destruction or alteration.
Non-Specific.
2 pages. Written:
2005. Added:
8-28-2007.
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Expert Witnesses
Joe Isuzu on the Witness Stand and How to Examine Him (Her) (It), by
Robin E. Phelan, Eric Terry, Abigail Ottmers.
1. Experts can enhance the credibility of your position.
a. If scientific, technical or other specialized knowledge will assist trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in form of an opinion or otherwise.
Non-Specific.
29 pages. Written:
2005. Added:
8-28-2007.
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Appellate Practice
Expert testimony in litigation: A ‘how (not) to guide’, by
John D. Penn.
Finally, reminding bankruptcy judges that the U.S. Supreme Court charged them with
gatekeeper duties to examine whether opinions are worthy to be admitted into evidence could also remind them that their decision will be reviewed by Article.
Non-Specific.
2 pages. Written:
2006. Added:
8-28-2007.
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Computer Forensics
Computer Forensics, by
Erin Kenneally.
The fundamental principles of computer forensics are the same as that of traditional forensic disciplines. All start with intense variability among a large number of attributes and advances are aimed at enhancing the identifying, characterizing and correlative properties of the evidence source.
Non-Specific.
5 pages. Written:
2005. Added:
8-11-2007.
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e-Discovery
Digital Discovery & E-Evidence, by
Jake Frazier And Heidi Maher.
The title for this section is somewhat misleading; many mainframe systems remain in active service. The majority of these systems contain specialized proprietary
databases or documents that can only be read easily in their native architecture and are not portable.
Non-Specific.
3 pages. Written:
2007. Added:
7-13-2007.
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Computer Forensics
Legal methods of using computer forensics techniques. For computer crime analysis and, by
Daphyne Saunders, Karen A. Forcht.
The paper will focus on the role of computer forensics & methods used in investigation of computer crimes. The paper explains need for proper investigation and illustrates process of locating, handling, & processing computer evidence. A detailed explanation of how to effectively manage a forensics investigation & present evidence will be covered.
Non-Specific.
7 pages. Written:
2005. Added:
7-13-2007.
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Computer Forensics
Computer Forensics: Bringing the Evidence to Court, by
Cornell Walker.
This paper takes a brief look at a new science that has developed as a result of the way we now store and maintain that
data; “computer forensics,” and how this new science has impacted court decision and rulings regarding computer records.
The areas of concern are: cleanliness of the evidence and how does the court define “computer records.”
Non-Specific.
6 pages. Written:
2005. Added:
7-13-2007.
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e-Discovery
The Paralegal’s Essential Guide to Electronic Discovery and Computer Forensics, by
Ross L. Kodner.
Overview of Electronic Discovery
• Difference between Traditional Discovery
and e-Discovery
• Same basic legal rules and concepts
• What are we looking for – anything that is
reasonably calculated to lead to
• Relevant evidence at trial
• Electronic information is content +
• Traditional information is simply content
Non-Specific.
47 pages. Written:
2005. Added:
7-13-2007.
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e-Discovery
Computer Forensics and Electronic Discovery, by
Dr. Bruce V. Hartley.
The American Bar Association Digital Evidence Project and National Law Journal Report:
– Over 30 Billion emails are sent daily
– Over 90% of ALL information is now electronic
– 70% of electronic information has never been printed
– One in five US companies’ employees email has been subpoenaed
Non-Specific.
41 pages. Written:
2006. Added:
7-13-2007.
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e-Discovery
Do-It-Yourself Digital Discovery, by
Craig Ball.
Most evidence today is electronic, so curtailing discovery of electronic evidence isn’t an option, and trying to stick with paper is a dead end. We’ve got to deal with electronic evidence in small cases where outside computer forensics analysis may not be justified. Sometimes, that means doing it yourself.
Non-Specific.
2 pages. Written:
2007. Added:
6-26-2007.
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e-Discovery
The Perfect Preservation Letter, by
Craig Ball.
Looks at what is usually the requesting party’s first foray into EDD: the litigation hold letter demanding preservation of electronic evidence. A well-drafted preservation letter serves as the e-Discovery blueprint, and the considerations that go into drafting the “perfect” preservation letter reveal much about the power and perils of EDD and computer forensics.
Non-Specific.
13 pages. Written:
2007. Added:
6-25-2007.
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e-Discovery
The Plaintiff’s Practical Guide to E-Discovery, Part I, by
Craig Ball.
Addresses challenges unique to EDD, elements of a successful e-Discovery effort and steps to compel preservation of digital evidence with computer forensics and other approaches.
Non-Specific.
4 pages. Written:
2007. Added:
6-25-2007.
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Litigation Support
The “BUM” Rule - How to Create Effective Demonstrative Evidence, by
John Cleaves.
As a Litigation Support professional
you may be called upon to assist or
manage the creation of demonstratives
within your firm or corporate legal
department. As trial time approaches
the attorney team may be focusing on
finalizing their exhibits and preparing
witnesses.
Non-Specific.
2 pages. Written:
2007. Added:
6-22-2007.
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Health Care
From evidence to methods in integrative mental health care, by
James Lake M.D..
Evolution of health care toward medical pluralism
• Strong historical role of non-conventional medical practices in U.S. health care
• Changing consumer demands related to cultural and demographic trends (Eisenberg 2001; Astin 1998)
• Growing use of CAM reflects an increasingly consumer-driven health care environment
Non-Specific.
79 pages. Written:
2007. Added:
6-19-2007.
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Criminal Procedure
In defense of evidence and against the exclusionary rule: a libertarian approach, by
Patrick Tinsley, N. Stephan Kinsella and Walter Block.
A prime example is so-called exclusionary rule, according to which evidence uncovered by police in violation of Fourth Amendment's" prohibition against "unreasonable searches & seizures" is excluded from a defendant's criminal trial. Our thesis is that not all legal innovations are improvements, & that this applies, in spades, to exclusionary rule.
Non-Specific.
18 pages. Written:
2005. Added:
5-10-2007.
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Criminal
Admissibility of scientific evidence, by
Paul C. Giannelli.
This article covers The initial outcry over DNA typing standards concerned laboratory problems, The acts of misconduct on the part of Zain, An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases and Validity of theory and technique are distinct issues.
Non-Specific.
23 pages. Written:
2005. Added:
5-10-2007.
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Criminal Procedure
Search and Seizure In Environmental Cases: Tips and Traps, by
Robert S. Anderson.
In our practice, the prosecutor is as involved as
the agent in the preparation, execution and
return of the search warrant, and analysis of
evidence seized therefrom;
Non-Specific.
5 pages. Written:
2006. Added:
5-10-2007.
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e-Discovery
Practical Legal Strategies For Dealing with E-Discovery, by
Michael Aprahamian, John Tucker, Nat Slavin.
Electronic Evidence – New Frontier
The American Bar Association (ABA) Digital
Evidence Project & National Law Journal report:
– Over 30 billion e-mails sent daily
It is expected that by 2007, 2.7 trillion e-mails will be sent annually
– Over 90 percent of all information is now electronic & 70 percent of electronic documents are never printed.
Non-Specific.
30 pages. Written:
2006. Added:
5-10-2007.
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