Law Commons^™

The Federal Rules Of Emojis: A Proposed Framework For Handling Emoji Evidence In Trial Contexts, Marilyn Hurzeler

Fordham Law Review

Emojis are 3,633 ubiquitous symbols-as-communication used by 92 percent of internet users. These tiny yet influential pieces of evidence hold the power to complete, enhance, mitigate, and flip the meaning of surrounding text. Consequently, court references to emojis have grown exponentially in the last five years. As emojis have become a cornerstone of digital discourse, courts have increasingly encountered the significant impact of emojis on parties’ legal claims. A guide for handling of emoji evidence under the Federal Rules of Evidence (FRE), therefore, is important to afford proper treatment to this relatively new evidentiary form.

This Note discusses how the …

Prejudicial Character Evidence: How The Circuits Apply Old Chief To Federal Rule Of Evidence 403, Hannah J. Goldman

Fordham Law Review

It is a fundamental principle of the American justice system that a defendant should be judged on the facts of the case at issue and not for the defendant's general character or past indiscretions. Federal Rule of Evidence 404, which prohibits character evidence, addresses this issue. Rule 403 represents another principle of the justice system: the legal system favors admissibility of evidence over its exclusion. There are some exceptions to this principle, including when evidence is so highly prejudicial that it outweighs the benefits of its admission. As 404(b) character evidence is almost always highly prejudicial to the defendant, trial …

Snap Judgment: Recognizing The Propriety And Pitfalls Of Direct Judicial Review Of Audiovisual Evidence At Summary Judgment, Denise K. Barry

Fordham Law Review

Conflicting results in two recent police excessive force decisions by the U.S. Supreme Court—Tolan v. Cotton and Plumhoff v. Rickard—have sown confusion about the standards for summary judgment. This Note shows how the two decisions are consistent with each other and with longstanding summary judgment precedents. The key insight is that since the Second Circuit’s iconic 1946 decision in Arnstein v. Porter, appellate judges, including Supreme Court Justices, have listened to audio recordings, scrutinized artwork, and—as in the case of Plumhoff—watched video footage in order to decide for themselves whether there is a genuine issue of …

Should The Medium Affect The Message? Legal And Ethical Implications Of Prosecutors Reading Inmate-Attorney Email, Brandon P. Ruben

Fordham Law Review

The attorney-client privilege protects confidential legal communications between a party and her attorney from being used against her, thus encouraging full and frank attorney-client communication. It is a venerable evidentiary principle of American jurisprudence. Unsurprisingly, prosecutors may not eavesdrop on inmate-attorney visits or phone calls or read inmate-attorney postal mail. Courts are currently divided, however, as to whether or not they can forbid prosecutors from reading inmate- attorney email.

This Note explores the cases that address whether federal prosecutors may read inmates’ legal email. As courts have unanimously held, because inmates know that the Bureau of Prisons (BOP) monitors all …

Symposium On The Challenges Of Electronic Evidence, Panel Discussion

Fordham Law Review

The Phillip D. Reed Lecture Series: Advisory Committee on Evidence Rules

The Case For Ehearsay, Jeffrey Bellin

Fordham Law Review

No abstract provided.

Memorandum: Hearsay Exception For Electronic Communications Of Recent Perception, Daniel J. Capra

Fordham Law Review

No abstract provided.

Architects Of Justice: The Prosecutor’S Role And Resolving Whether Inadmissible Evidence Is Material Under The Brady Rule, Blaise Niosi

Fordham Law Review

In Brady v. Maryland, the U.S. Supreme Court held that the prosecution has a constitutional duty to disclose evidence favorable to the defendant’s guilt or punishment upon request. The Court’s subsequent expansion of its holding in Brady has formed the “Brady rule,” which requires the prosecution to learn of and to disclose to the defendant all material exculpatory and impeachment information. The Court defined “material” as information that would cause a reasonable probability of a different trial outcome had it been disclosed.

Currently, a circuit court split exists regarding whether evidence is material for purposes of the Brady …

The Court As Gatekeeper: Preventing Unreliable Pretrial Ediscovery From Jeopardizing A Reliable Fact-Finding Process, Daniel K. Gelb

Fordham Law Review

No abstract provided.

The Adverse Inference Instruction After Revised Rule 37(E): An Evidence-Based Proposal, Shira A. Sheindlin, Natalie M. Orr

Fordham Law Review

No abstract provided.

This Space Intentionally Left Blank: What To Do When Hearsay And Rule 106 Completeness Collide, Michael A. Hardin

Fordham Law Review

Federal Rule of Evidence 106 provides that when one party in a trial or hearing offers into evidence a portion of a statement in a misleading way, the opposing party can offer the rest, or some other portion of, that document or recorded statement at the same time if it is necessary for the factfinder to understand and contextualize the first part. Sometimes, however, the other portion, or “remainder,” would be inadmissible if it were offered by itself, either because it is hearsay or for some other reason. This leaves the court in a difficult position: Should it allow the …

Plea Bargaining In The Dark: The Duty To Disclose Exculpatory Brady Evidence During Plea Bargaining, Michael Nasser Petegorsky

Fordham Law Review

Ninety-seven percent of federal convictions are the result of guilty pleas. Despite the criminal justice system’s reliance on plea bargaining, the law regarding the prosecution’s duty to disclose certain evidence during this stage of the judicial process is unsettled. The Supreme Court’s decision in Brady v. Maryland requires the prosecution to disclose evidence that establishes the defendant’s factual innocence during a trial. Some courts apply this rule during plea bargaining and require the disclosure of material exculpatory evidence before the entry of a guilty plea. Other courts have held or suggested that the prosecution may suppress exculpatory evidence during plea …

You Must Be This Qualified To Offer An Opinion: Permitting Law Enforcement Officers To Testify As Laypersons Under Federal Rule Of Evidence 701, Kim Channick

Fordham Law Review

Every day, in courtrooms across the United States, law enforcement officers testify in criminal and civil trials. Often an officer is certified as an expert witness and, accordingly, can provide opinions to the court based on his or her law enforcement expertise. Other times, the officer offers testimony as a layperson. In the latter situation, Federal Rule of Evidence 701 controls the officer’s lay opinion testimony. This Rule was first adopted to remedy a problematic common law practice of universally prohibiting lay opinion testimony. As the Rule stands now, all lay witnesses, including law enforcement officers, must limit their opinions …

Panel Discussion: Reinvigorating Rule 502, Panel Discussion

Fordham Law Review

No abstract provided.

Model Draft Of A Rule 502(D) Order, Symposium Participants

Fordham Law Review

No abstract provided.

Evidence Rule 502: The Solution To The Privilege-Protection Puzzle In The Digital Era, John M. Barkett

Fordham Law Review

No abstract provided.

Enter The Order, Protect The Privilege: Considerations For Courts Entering Protective Orders Under Federal Rule Of Evidence 502(D), Edwin M. Buffmire

Fordham Law Review

No abstract provided.

The Rulemakers’ Laments, Richard Marcus

Fordham Law Review

No abstract provided.

Is It Safe? The Need For State Ethical Rules To Keep Pace With Technological Advances, Ann M. Murphy

Fordham Law Review

No abstract provided.

Making Horses Drink: Conceptual Change Theory And Federal Rule Of Evidence 502, Liesa L. Richter

Fordham Law Review

No abstract provided.

Weaving Functional Brain Imaging Into The Tapestry Of Evidence: A Case For Functional Neuroimaging In Federal Criminal Courts, Adam Teitcher

Fordham Law Review

Recent advances in brain imaging technologies allow researchers to "peer inside" a defendant's brain. Although functional neuroimaging evidence is frequently used in civil litigation, federal courts have been hesitant to admit it into evidence in criminal trials. Scholars and commentators alike continue to debate the merits, detriments, and general admissibility of functional neuroimaging evidence in the criminal context. Meanwhile, federal judges repeatedly admit various forms of forensic science into evidence without evaluating them under the appropriate admissibility standards. This Note argues that this has created a double standard for evidence admissibility. Functional neuroimaging evidence may, in fact, be more scientifically …

Judge Or Jury? Determining Deception Or Misrepresentation Under The Fair Debt Collection Practices Act, Christian Stueben

Fordham Law Review

This Note explores the conflict among the federal circuit courts as to whether a judge or jury should decide if the language contained in a collection letter is false, misleading, or deceptive to the least sophisticated consumer under the Fair Debt Collection Practices Act (FDCPA). Some circuits, such as the Second and Ninth Circuits, hold that this issue is a question of law, appropriate for the judge to decide. In contrast, the Seventh Circuit finds this to be a question of fact, and requires the plaintiff to submit extrinsic evidence in the form of professional surveys in order to reach …

Reconciling Classified Evidence And A Petitioner's Right To A "Meaningful Review" At Guantanamo Bay: A Legislative Solution, Sarah Lorr

Fordham Law Review

In Boumediene v. Bush, the U.S. Supreme Court determined that the detainees held at Guantánamo Bay have a constitutional right to a writ of habeas corpus and are entitled to a “meaningful review” of their habeas petitions. This Note attempts to reconcile the need for a “meaningful review” with the government’s reliance on classified evidence that is completely inaccessible to the detainee-petitioners. After examining three other contexts in which the reliance on classified evidence has been sanctioned—federal criminal courts, immigration cases, and the ongoing military commissions at Guantánamo—this Note concludes that a “meaningful review” of the Guantánamo habeas petitions requires …

The Right Remedy For The Wrongly Convicted: Judicial Sanction For Destruction Of Dna Evidence, Cynthia E. Jones

Fordham Law Review

Many state innocence protection statutes give courts the power to impose appropriate sanctions when biological evidence needed for postconviction DNA testing is wrongly destroyed by the government. Constitutional claims based on wrongful evidence destruction are governed by the virtually insurmountable “bad faith” standard articulated in Arizona v. Youngblood. The wrongful destruction of DNA evidence in contravention of state innocence protection laws, however, should be governed by the standards used to adjudicate other “access to evidence” violations in criminal cases, including disclosures mandated by the rules of criminal procedure, the Jencks Act, and Brady v. Maryland. Under the “access to evidence” …

Ferreting Out Favoritism: Bringing Pretext Claims After Kelo, Daniel S. Hafetz

Fordham Law Review

In 2005, the U.S. Supreme Court ruled in Kelo v. City of New London that governments may take one’s private property and give it to another for the purpose of promoting economic development. The Court held that, in evaluating Fifth Amendment challenges to such takings, courts should defer to legislative judgments as to what constitutes a valid public purpose. Critics argue that this decision opened the floodgates to pretextual abuse. Specifically, they contend that local governments that exercise the eminent domain power are often motivated by a desire to favor another private party. After Kelo, courts have struggled to reconcile …

Best Evidence And The Wayback Machine: Toward A Workable Authentication Standard For Archived Internet Evidence, Deborah R. Eltgroth

Fordham Law Review

This Note addresses the use of archived Internet content obtained via the Wayback Machine, a service provided by the Internet Archive that accesses the largest online digital collection of archived Web pages in the world. Given the dynamic nature of the World Wide Web, Internet content is constantly changed, amended, and removed. As a result, interim versions of Web pages have limited life spans. The Internet Archive indexes and stores Web pages to allow researchers to access discarded or since-altered versions. In the legal profession, archived Web pages have become an increasingly helpful form of proof. Intellectual property enforcers have …

A Matter Of Context: Social Framework Evidence In Employment Discrimination Class Actions, Melissa Hart, Paul M. Secunda

Fordham Law Review

In litigation disputes over the certification of employment discrimination class actions, social scientists have come to play a central, yet controversial, role. Organizational behavioralists and social psychologists regularly testify for the plaintiffs, offering what is commonly referred to as social framework testimony. These experts explain the general social science research on the operation of stereotyping and bias in decision making and examine the challenged workplace to identify those policies and practices that research has shown will tend to increase and those that will tend to limit the likely impact of these factors. Defendants fight hard against the admission of social …

Assessing Fourth Amendment Challenges To Dna Extraction Statutes After Samson V. California, Charles J. Nerko

Fordham Law Review

DNA plays an indespensable role in modern law enforcement, and courts uniformly find that DNA extraction statutes targeting criminals satisfy the Fourth Amendment. Courts differ on which Fourth Amendment test--totality of the circumstances or special needs--ought to be employed in this context. This Note concludes the courts should apply Samson v. California's less stringent totality of the circumstances test to analyze DNA extraction statutes in order to maintain the integrity of the special needs test.

Interpreting The Phrase "Newly Discovered Evidence": May Previously Unavailable Exculpatory Testimony Serve As The Basis For A Motion For A New Trial Under Rule 33?, Mary Ellen Brennan

Fordham Law Review

Rule 33 of the Federal Rules of Criminal Procedure permits a federal court to grant a new trial to a criminal defendant if the “interest of justice so requires,” specifying as one potential basis the availability of “newly discovered evidence.” The federal circuit courts have disagreed as to whether postconviction testimony proffered by a codefendant who had remained silent at trial may serve as the basis for a Rule 33 motion grounded on newly discovered evidence. A majority of the federal circuits, including, most recently, the U.S. Court of Appeals for the Second Circuit, have held that, while a codefendant’s …

Evidence And Ethics: Litigating In The Shadows Of The Rules, Joseph A. Colquitt

Fordham Law Review

No abstract provided.