James J. Duane, J.D.
Bio
Professor James Duane teaches at Regent Law School, where he received the Faculty Excellence Award in the Fall of 2002. He has twice taught as a Distinguished Visiting Professor at William and Mary Law School in Williamsburg, Virginia. 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 J.D. cum laude from Harvard Law School in 1984.
Professor Duane 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 served as trial counsel for all 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 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 on television and radio about legal matters, including on 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.
Professor Duane 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, he gave a talk at Regent Law School about why even innocent criminal suspects should never agree to answer questions from the police, and that video now has more than 5 million views on YouTube.
Credentials
Academic and practice experience in Evidence, Civil Procedure, Trial Practice, and Appellate Advocacy
J.D., cum laude, Harvard Law School
A.B., magna cum laude, Harvard College, Phi Beta Kappa
Publications
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).
Scholarly Publications: Articles
“The Proper Pronunciation of Certiorari: The Supreme Court’s Surprising Six-Way Split,” 17Green Bag2d 279 (2014).
“Sherlock Holmes and the Mystery of the Pointless Remand,” 18Berkeley Journal of Criminal Law154 (Fall 2013).
“Heading in the Right Direction,” 15Green Bag2d 235 (Spring 2012).
“The Strange Glitch in the Rhode Island Rules of Evidence,” 14Green Bag2d 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 Review41 (2010).
“The Right to Remain Silent: A New Answer to an Old Question,” 25Criminal Justice57 (Summer 2010).
“What Every Virginia Criminal Defense Lawyer Needs to Know About Model Jury Instruction 2.600,”The Champion4 (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 Journal14 (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 Journal10 (June/July 2008).
“The Admissibility of Memories and Beliefs: The Hearsay Exception that Even the Best Judges Frequently Misunderstand,” 2Criminal Justice16 (Summer 2007).
“Federal Rule of Evidence 408(a)(2): The Only Federal Rule that is Nothing But a Trap for the Unwary,”Evidence SectionNews3 (Spring/Summer 2007) (newsletter of the evidence section of the AALS).
“The Constitutionality of Irrebuttable Presumptions,” 1991 Law Review141 (2006).
“The Cryptographic Coroner’s Report on Ohio v. Roberts,” 21Criminal Justice37 (Fall 2006).
“Arresting Officers and Treating Physicians: When May a Witness Testify to What Others Told Him for the Purpose of Explaining his Conduct?” 1891 Law Review229 (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 News2 (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,”TheVirginia Bar Association News Journal10 (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 Journal9 (August 2004).
“The Virginia Supreme Court Takes a Big Bite Out of the Privilege for Marital Communications,” 29The Virginia Bar Association News Journal8 (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,” 209Federal Rules Decisions235 (Oct. 2002).
“Recent Changes in the Federal Rules of Evidence,” 27The Virginia Bar Association News Journal12 (March 2001).
“The Fourth Circuit Lays a Real Trap for the Unwary: Preserving Claims of Privilege with Respect to ‘Alleged’ Conversations,” 27The Virginia Bar Association News Journal16 (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,” 63Texas Bar JournalNo. 7, 616 (July 2000).
“Prior Convictions and Tuna Fish,” 7Scribes Journal of Legal Writing160 (2000).
“The Bizarre Drafting Errors in the Virginia Statute on Privileged Marital Communications,” 1291 Law Review91 (1999).
“Motions in limine and Preservation of Error: Recent Developments in the Law and their Implications for Trial Attorneys,” 14Louisiana Advocates, No. 2, 13 (Feb. 1999).
“Appellate Review of In Limine Rulings,” 182Federal Rules Decisions666 (Jan. 1999).
“‘Screw Your Courage to the Sticking-Place:’ The Roles of Evidence, Stipulations, and Jury Instructions in Criminal Verdicts,” 49Hastings Law Journal463 (January 1998).
“Avoiding the Curse of ‘Whetherornot,’” 6Scribes J. of Legal Writing41 (1996-1997).
“Litigating Felon-with-a-Firearm Cases After Old Chief: Trial Strategies for Lawyers and Judges,” 12Criminal Justice18 (Fall 1997).
“The Trouble with United States v. Tellier: The Dangers of Hunting for Bootstrappers and Other Mythical Monsters,” 24American Journal of Crim. Law215 (Spring 1997) (lead article).
“Media Coverage and Public Opinion of the O.J. Simpson Trial: Implications for the Criminal Justice System,” 2Communication Law and Policy261 (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,” 168Federal Rules Decisions405 (Nov. 1996).
“Jury Nullification: The Top Secret Constitutional Right,” 22LitigationNo. 4, 6 (Summer 1996) (lead article).
“Some Thoughts on How the Hearsay Exception for Statements by Conspirators Should -- And Should Not -- Be Amended,” 165Federal Rules Decisions299 (June 1996).
“The Four Greatest Myths About Summary Judgment,” 52Washington & Lee Law Review1523 (Spring 1996) (lead article).
“What Message are we Sending to Criminal Jurors When we Ask Them to ‘Send a Message’ with their Verdict?” 22American Journal of Criminal Law565 (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,” 157Federal Rules Decisions95 (Nov. 1994).
Awards
91 Faculty Excellence Award for Teaching (Spring 2012).
91 Faculty Excellence Award for Scholarship (Fall 2010).
Voted Teacher of the Year by graduating classes of 1994, 1997, 1998, 1999, 2000, 2003, 2007, 2008, and 2009, and by the first year students in the class of 2012 and 2015.
Distinguished Faculty Achievement Award by the Virginia State Council of Higher Education, 2002.