Professor James Duane

 

    sarah

jamedua@regent.edu

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Academic and practice experience in Evidence, Civil Procedure, Trial Practice, and Appellate Advocacy

JD, cum laude, Harvard Law School

A.B., magna cum laude, Harvard College, Phi Beta Kappa

Biography

James Duane is a Professor at Regent Law School in Virginia Beach, Virginia, where he received the Faculty Excellence Award in the Fall of 2002. He has twice taught as a Distinguished Visiting Professor at William & Mary Law School in Williamsburg, Virginia, most recently in the Fall of 2011. During the 2013-14 academic year, he served as a faculty associate at Harvard University's Berkman Center for Internet and Society.

He was awarded the Distinguished Faculty Achievement Award by the Virginia State Council of Higher Education for Virginia in 2002. He received his A.B. magna cum laude from Harvard College in 1981, where he was also elected to Phi Beta Kappa, and his JD cum laude from Harvard Law School in 1984. He clerked for the Honorable Michael A. Telesca of the United States District Court for the Western District of New York and the Honorable Ellsworth A. Van Graafeiland on the United States Court of Appeals for the Second Circuit. He was senior associate at the law firm of Connors & Vilardo in Buffalo, New York, where he practiced civil litigation and criminal defense, and was trial counsel for all of the defendants in Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997). 

Professor Duane has taught at Regent Law School since 1991 in the areas of Evidence, Civil Procedure, Trial Practice, and Appellate Advocacy, and has published more than 30 articles in those fields. He is the co-author of Weissenberger’s Federal Evidence, and is a contributing editor of Black’s Law Dictionary. Since 1995, he has been a member of the faculty at the National Trial Advocacy College, conducted annually at the University of Virginia School of Law, and has also taught Constitutional Law at the National Litigation Academy. He has been interviewed about legal matters on television and radio, including National Public Radio’s All Things Considered, and has testified before the Advisory Committee of the United States Judicial Conference on the Federal Rules of Evidence. He has lectured before lawyers and law professors at conferences and training sessions conducted by Hastings Law School, the College of William and Mary, the Virginia Association of Defense Attorneys, the Louisiana Trial Lawyers Association, the National Association of Criminal Defense Lawyers, and the office of the United States Attorney for the Eastern District of Virginia, among others. He is a member of the Boyd-Graves Conference of the Virginia Bar Association, and is admitted to practice before the courts of New York and Virginia, as well as numerous federal courts. In the spring of 2008, Professor Duane gave a talk at Regent Law School about some of the reasons why even innocent criminal suspects should never agree to answer questions from the police, and that video has now been viewed more than 5,000,000 times on YouTube.

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Governmental Testimony

Testimony before the United States Advisory Committee on the Federal Rules of Evidence on proposed rules amendments. Washington, D.C. (Oct. 22, 1998).

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Scholarly Publications: Books and Chapters

Black's Law Dictionary (contributing editor; 8th ed. 2004).

Weissenberger's Federal Evidence (with Dean Glen Weissenberger) (LexisNexis 5th edition 2006).

Local Rules in Ambush, in American Bar Association, Section of Litigation, The Litigation Manual (3rd ed. 1999).

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Scholarly Publications: Articles

The Proper Pronunciation of Certiorari: The Supreme Court's Surprising Six-Way Split, 17 Green Bag 2d 279 (2014).

Sherlock Holmes and the Mystery of the Pointless Remand,18 Berkeley Journal of Criminal Law 154 (Fall 2013).

Heading in the Right Direction, 15 Green Bag 2d 235 (Spring 2012).

The Strange Glitch in the Rhode Island Rules of Evidence, 14 Green Bag 2d 143 (Winter 2011).

The Federal Rule of Civil Procedure that Was Changed by Accident: A Lesson in the Perils of Stylistic Revision, 62South Carolina Law Review 41 (2010).

The Right to Remain Silent: A New Answer to an Old Question, 25 Criminal Justice 57 (Summer 2010).

What Every Virginia Criminal Defense Lawyer Needs to Know About Model Jury Instruction 2.600, The Champion 4 (June 2009).

“She Told Me She Was Scared of Him”:  The Admissibility of Hearsay Evidence that a Murder Victim Feared the Accused, The Virginia Bar Association News Journal 14 (Spring 2009).

Virginia’s Unconstitutional Inference of Larceny from the Unexplained Possession of Stolen Property: The Dissenting Opinion in Patrick v. Commonwealth, The Virginia Bar Association News Journal 10 (June/July 2008).

The Admissibility of Memories and Beliefs: The Hearsay Exception that Even the Best Judges Frequently Misunderstand, 2Criminal Justice 16 (Summer 2007).

Federal Rule of Evidence 408(a)(2): The Only Federal Rule that is Nothing But a Trap for the Unwary, Evidence Section News 3 (Spring/Summer 2007) (newsletter of the evidence section of the AALS).

The Constitutionality of Irrebuttable Presumptions, 19 Regent University Law Review 141 (2006).

The Cryptographic Coroner's Report on Ohio v. Roberts, 21 Criminal Justice 37 (Fall 2006).

Arresting Officers and Treating Physicians: When May a Witness Testify to What Others Told Him for the Purpose of Explaining his Conduct?, 18 Regent University Law Review 229 (2006).

A Summary of the Recent Changes to the Virginia Privilege for Marital Communications, The Virginia Bar Association News Journal 14 (December 2005/January 2006).

The Latest Amendments to the Federal Rules of Evidence: A Summary and a Few Comments, Evidence Section News 2 (Fall/Winter 2005-06) (newsletter of the evidence section of the AALS).

The Virginia Presumption of Fraudulent Intent in Bad Check Cases:  The Statute That Dare Not Speak Its Name, The Virginia Bar Association News Journal 10 (June/July 2005).

Who Holds the Doctor-Patient Privilege in Virginia?: The Astounding Answer to an Unlikely Enigma, Litigation News, Vol. 12, page 1 (Fall 2004) (newsletter of the Litigation Section of the Virginia State Bar).

The Applicability of the Attorney-Client Privilege and the Work Product Doctrine to Investigators and Experts:  The Horrendous State of the Law in Virginia, The Virginia Bar Association News Journal 9 (August 2004).

The Virginia Supreme Court Takes a Big Bite Out of the Privilege for Marital Communications, 29 The Virginia Bar Association News Journal 8 (March 2003).

The Proposed Amendments to Federal Rules of Evidence 608(b) and 804(b)(3):  Two Great Ideas That Don’t Go Far Enough, 209 Federal Rules Decisions 235 (Oct. 2002).

Recent Changes in the Federal Rules of Evidence, 27 The Virginia Bar Association News Journal 12 (March 2001).

The Fourth Circuit Lays a Real Trap for the Unwary: Preserving Claims of Privilege with Respect to ‘Alleged’ Conversations, 27 The Virginia Bar Association News Journal 16 (March 2001); reprinted from the Newsletter of the Evidence Section of the American Association of Law Schools (May 2000).

Pretrial Motions and Preservation of Error: Recent Developments in State and Federal Law and their Tactical Implications, 63 Texas Bar Journal No. 7, 616 (July 2000).

Prior Convictions and Tuna Fish, 7 Scribes Journal of Legal Writing 160 (2000).

The Bizarre Drafting Errors in the Virginia Statute on Privileged Marital Communications, 12 Regent University Law Review 91 (1999).

Motions in limine and Preservation of Error: Recent Developments in the Law and their Implications for Trial Attorneys, 14 Louisiana Advocates, No. 2, 13 (Feb. 1999).

Appellate Review of In Limine Rulings, 182 Federal Rules Decisions 666 (Jan. 1999).

“Screw Your Courage to the Sticking-Place”: The Roles of Evidence, Stipulations, and Jury Instructions in Criminal Verdicts, 49 Hastings Law Journal 463 (January 1998).

Avoiding the Curse of "Whetherornot," 6 Scribes J. of Legal Writing 41 (1996-1997).

Litigating Felon-with-a-Firearm Cases After Old Chief: Trial Strategies for Lawyers and Judges, 12 Criminal Justice 18 (Fall 1997).

The Trouble with United States v. Tellier: The Dangers of Hunting for Bootstrappers and Other Mythical Monsters, 24 American Journal of Crim. Law 215 (Spring 1997) (lead article).

Media Coverage and Public Opinion of the O.J. Simpson Trial: Implications for the Criminal Justice System, 2 Communication Law and Policy 261 (Spring 1997) (with Dr. William J. Brown and Dr. Benson Fraser).

Stipulations, Judicial Notice, and a Prosecutor’s Supposed “Right” to Prove Undisputed Facts: Oral Argument from an Amicus Curiae in Old Chief v. United States, 168 Federal Rules Decisions 405 (Nov. 1996).

Jury Nullification: The Top Secret Constitutional Right, 22 Litigation No. 4, 6 (Summer 1996) (lead article).

Some Thoughts on How the Hearsay Exception for Statements by Conspirators Should -- And Should Not -- Be Amended, 165 Federal Rules Decisions 299 (June 1996).

The Four Greatest Myths About Summary Judgment, 52 Washington & Lee Law Review 1523 (Spring 1996) (lead article).

What Message are we Sending to Criminal Jurors When we Ask Them to ‘Send a Message’ with their Verdict?, 22 American Journal of Criminal Law 565 (Spring 1995) (lead article).

The New Federal Rules of Evidence on Prior Acts of Accused Sex Offenders: A Poorly Drafted Version of a Very Bad Idea, 157 Federal Rules Decisions 95 (Nov. 1994).

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Scholarly Presentations

The Federal Rule of Civil Procedure that Cannot Mean What It Says.  Continuing legal education seminar for members of the Virginia bar.  Virginia Beach, Virginia.  September 23, 2011.

Advanced Aspects of Cross-Examination. Presentation at the annual Public Defender Training Conference sponsored by the Virginia Indigent Defense Commission.  Richmond, Virginia.  June 29, 2011.

Say What, Say Where: Contours of the Public Forum Doctrine. National Litigation Academy.  Laguna Niguel, California.  July 11-16, 2011.

The Federal Rule of Civil Procedure that Cannot Mean What It Says.  Continuing legal education seminar for members of the Virginia bar.  Norfolk, Virginia.  June 29, 2011.

Say What, Say Where: Contours of the Public Forum Doctrine.  Blackstone Legal Academy.  Phoenix, Arizona.  June 14, 2011.

Courtroom Do’s and Don’ts: Practical Tips for Success.  Norfolk Portsmouth Bar Association 13th Annual Bench/Bar Conference.  Norfolk, Virginia.  April 6, 2011.

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Video

Professor James Duane’s now famous 5th Amendment lecture - popularly known as “Don’t talk to the police!” - has amassed a considerable internet following.