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Boston College Law School

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Articles 1 - 30 of 131

Full-Text Articles in Evidence

Bare Necessity: Simplifying The Standard For Admitting Showup Identifications, J.P. Christian Milde Jun 2019

Bare Necessity: Simplifying The Standard For Admitting Showup Identifications, J.P. Christian Milde

Boston College Law Review

In 1967, the Supreme Court held that admitting the results of an unnecessarily suggestive police identification procedure could violate a defendant’s right to due process. Over the next decade, several rulings narrowed and clarified the standard into the Brathwaite test, which remains in use today. This test allows the admission of identifications obtained through unnecessarily suggestive procedures if a court finds the identification to nonetheless be reliable. Applying the test requires courts to rule on a procedure’s necessity, its suggestiveness, and the resulting identification’s reliability. Making these determinations forces courts to grapple with intertwined questions of law ...


Promise-Induced False Confessions: Lessons From Promises In Another Context, Margaux Joselow Jun 2019

Promise-Induced False Confessions: Lessons From Promises In Another Context, Margaux Joselow

Boston College Law Review

People are generally skeptical that someone would falsely confess to a crime he or she did not commit. Nonetheless, a myriad of convicts exonerated by DNA and the rapidly emerging scientific literature on the subject calls into question this long-standing belief. Scholars in the field now recognize that personal and situational risk factors, including promises of leniency, heighten the risk of a false confession. Promises of leniency have been shown to be particularly coercive in interrogations and to produce unusually persuasive testimony in the courtroom. Due to a failure to recognize the power behind these promises, our justice system does ...


The Assault On Campus Assault: The Conflicts Between Local Law Enforcement, Ferpa, And Title Ix, Emma B. Bolla May 2019

The Assault On Campus Assault: The Conflicts Between Local Law Enforcement, Ferpa, And Title Ix, Emma B. Bolla

Boston College Law Review

Controversies on college campuses nationwide have led to widespread calls to reform the investigative process of campus sexual assault cases. A total abandonment of the Title IX system would leave victims with few options for justice, but investigations by both universities and local law enforcement can lead to conflicts that are often not addressed in policy discussions about Title IX. This Note explores the Title IX and criminal systems for handling campus sexual assault. It then examines the conflicts created by federal law under the Family Educational Rights and Privacy Act (“FERPA”) and Title IX for the effective policing of ...


The Ninth Circuit Enters The Class Certification Fray: Sali'S Rejection Of Evidentiary Formalism And Its Implications, Jessica Bachetti Apr 2019

The Ninth Circuit Enters The Class Certification Fray: Sali'S Rejection Of Evidentiary Formalism And Its Implications, Jessica Bachetti

Boston College Law Review

In 2015, registered nurses brought a putative employment class action against the hospital that employed them, alleging that the hospital underpaid them by rounding their time in violation of California law. The United States District Court for the Central District of California denied class certification because the evidence that the plaintiffs submitted to demonstrate the “typicality requirement” for class certification under Federal Rule of Civil Procedure 23 was inadmissible. On appeal, the U.S. Court of Appeals for the Ninth Circuit held that inadmissibility alone is not a proper basis for denying class certification, adding to the circuit split over ...


Remedying Wrongful Convictions Through Dna Testing: Expanding Post-Conviction Litigants’ Access To Dna Database Searches To Prove Innocence, Kayleigh E. Mcglynn Feb 2019

Remedying Wrongful Convictions Through Dna Testing: Expanding Post-Conviction Litigants’ Access To Dna Database Searches To Prove Innocence, Kayleigh E. Mcglynn

Boston College Law Review

Forensic science is used as evidence in criminal cases regularly. Recently, however, scientists have criticized several commonly used forensic methods that are unreliable, scientifically invalid, and have contributed to wrongful convictions. In contrast, DNA testing, which is reliable and valid, is a powerful resource for exonerating wrongfully convicted individuals. Congress and all fifty states have enacted statutes providing access to post-conviction DNA testing. Only nine states, however, have enacted statutes granting post-conviction litigants access to another important resource—law enforcement DNA database searches. Even though Congress amended the federal post-conviction DNA testing statute to provide access to DNA database searches ...


When The Defendant Doesn't Testify: The Eighth Circuit Considers A Reasonable Broken Promise In Bahtuoh V. Smith, Alexandre Bou-Rhodes May 2018

When The Defendant Doesn't Testify: The Eighth Circuit Considers A Reasonable Broken Promise In Bahtuoh V. Smith, Alexandre Bou-Rhodes

Boston College Law Review

In 2017, in Bahtuoh v. Smith, the Eighth Circuit held that a criminal defendant’s counsel was not ineffective for promising the jury that the defendant would testify, but failing to deliver on that promise. This Comment argues that the Eighth Circuit’s decision is in line with the decisions of other circuits in ineffective assistance of counsel cases where counsel promised the defendant’s testimony but later reneged on that promise. Courts should consider in their analysis, however, the impact such a decision may have on the jury, and that a stricter standard for evaluating counsel’s trial performance ...


Unfaithful But Not Without Privacy Protections: The Seventh Circuit Addresses When Courts Should Consider An E-Mail Interception Unlawful In Epstein V. Epstein, Joseph Noreña Apr 2018

Unfaithful But Not Without Privacy Protections: The Seventh Circuit Addresses When Courts Should Consider An E-Mail Interception Unlawful In Epstein V. Epstein, Joseph Noreña

Boston College Law Review

On December 14, 2016, the United States Court of Appeals for the Seventh Circuit, in Epstein v. Epstein, held that contemporaneousness is not a determinative factor at the pleadings stage of a claim for the unlawful interception of electronic communications under the Federal Wiretap Act (“FWA”). In so doing, the Seventh Circuit partly departed from the way in which other Federal Circuit Courts had previously considered the statutory language of the FWA, specifically the definitions of “electronic communication” and “intercept” under 18 U.S.C. § 2510(4), (12). This Comment argues that the Seventh Circuit’s holding that contemporaneousness is ...


Incapacitating Dangerous Repeat Offenders (Or Not): Evidentiary Restrictions On Armed Career Criminal Act Sentencing In United States V. King, Kayleigh E. Mcglynn Apr 2018

Incapacitating Dangerous Repeat Offenders (Or Not): Evidentiary Restrictions On Armed Career Criminal Act Sentencing In United States V. King, Kayleigh E. Mcglynn

Boston College Law Review

On March 30, 2017, in United States v. King, the United States Court of Appeals for the Sixth Circuit held that a sentencing court may not rely on information in bills of particulars for the Armed Career Criminal Act’s different-occasions inquiry. In so doing, the Sixth Circuit joined the Second, Fourth, Fifth, Seventh, Tenth, Eleventh, and D.C. Circuits in holding that sentencing courts deciding the different-occasions question may rely only on the evidentiary sources that the United States Supreme Court approved in Taylor v. United States in 1990 and Shepard v. United States in 2005. In contrast, on ...


The Face-Off Between Data Privacy And Discovery: Why U.S. Courts Should Respect Eu Data Privacy Law When Considering The Production Of Protected Information, Samantha Cutler Apr 2018

The Face-Off Between Data Privacy And Discovery: Why U.S. Courts Should Respect Eu Data Privacy Law When Considering The Production Of Protected Information, Samantha Cutler

Boston College Law Review

When foreign parties involved in U.S. litigation are ordered to produce information that is protected by EU data privacy law, they are caught in an unfortunate “Catch-22.” Historically, U.S. courts have pointed to the unlikelihood of sanctions for data privacy law violations to justify these orders. EU data privacy law, however, has recently undergone several shifts in favor of tougher rules and significantly increased sanctions. Additionally, EU regulators are now more vigilant and active in enforcing these laws. These developments, combined with the benefits of international judicial respect and the intrinsic value of privacy, mean that U.S ...


Privacy, Screened Out: Analyzing The Threat To Individual Privacy Rights And Fifth Amendment Protections In State V. Stahl, Jesse Coulon Apr 2018

Privacy, Screened Out: Analyzing The Threat To Individual Privacy Rights And Fifth Amendment Protections In State V. Stahl, Jesse Coulon

Boston College Law Review

Courts across the United States have applied Fifth Amendment protections to passcodes, as long as those passcodes are not a foregone conclusion. In order for a court to determine that a passcode is a forgone conclusion, and thus not testimonial in nature, the prosecution must show that they knew the existence, possession, and authenticity of the evidence that would be discovered by the compelled passcode, before the passcode is compelled. The foregone conclusion doctrine was established, and had been used, to balance the need of law enforcement to gather incriminating evidence while still protecting defendants’ Fifth Amendment rights. In 2016 ...


Technological Opacity & Procedural Injustice, Seth Katsuya Endo Mar 2018

Technological Opacity & Procedural Injustice, Seth Katsuya Endo

Boston College Law Review

From Google’s auto-correction of spelling errors to Netflix’s movie suggestions, machine-learning systems are a part of our everyday life. Both private and state actors increasingly employ such systems to make decisions that implicate individuals’ substantive rights, such as with credit scoring, government-benefit eligibility decisions, national security screening, and criminal sentencing. In turn, the rising use of machine-learning systems has led to questioning about whether they are sufficiently accurate, fair, and transparent. This Article builds on that work, focusing on how opaque technologies can subtly erode the due process norm of participation. To illuminate this issue, this Article examines ...


An Empirical Study Of Rule 609 And Suggestions For Practical Reform, Ric Simmons Mar 2018

An Empirical Study Of Rule 609 And Suggestions For Practical Reform, Ric Simmons

Boston College Law Review

Rule 609 of the Federal Rules of Evidence allows a party to impeach a witness with his or her prior criminal convictions. It is fair to say that this rule is the most criticized of all the Rules of Evidence; scholars have been calling for its reform or outright abolition for decades. These critics argue that the rule relies on propensity evidence, which has very little probative value in evaluating a witness’s truthfulness on the stand, and that—especially when used to impeach a criminal defendant—the evidence carries a high risk of unfair prejudice and often prevents defendants ...


“A Search Is A Search”: Scanning A Credit, Debit, Or Gift Card Is A Search Under The Fourth Amendment, John A. Leblanc Mar 2018

“A Search Is A Search”: Scanning A Credit, Debit, Or Gift Card Is A Search Under The Fourth Amendment, John A. Leblanc

Boston College Law Review

On May 18, 2017, the U.S. Court of Appeals for the First Circuit, in United States v. Hillaire, joined the Fifth, Sixth, and Eighth circuits in holding that the government’s act of scanning the magnetic stripes of lawfully seized credit, debit, or gift cards to access the information encoded therein is not a search within the meaning of the Fourth Amendment. In each case, the courts concluded that an individual is precluded from claiming a reasonable expectation of privacy in the electronic information encoded on a card’s magnetic stripe. This Note provides an overview of how Fourth ...


Rethinking The Law Of Legal Negotiation: Confidentiality Under Federal Rule Of Evidence 408 And Related State Laws, Richard C. Reuben Feb 2018

Rethinking The Law Of Legal Negotiation: Confidentiality Under Federal Rule Of Evidence 408 And Related State Laws, Richard C. Reuben

Boston College Law Review

Federal Rule of Evidence 408 and related state laws are among the most important rules to implement the national policy favoring the settlement of legal disputes. These rules bar the introduction of statements made during negotiations leading to the resolution of legal disputes. However, comprehensive analysis of the rule’s text, doctrinal history, and modern context demonstrates that the rule no longer meets its noble goals. Rather, the rule has evolved textually from a remarkably narrow and complex categorical presumption of inadmissibility with limited exceptions to a simpler rule that gives courts considerable deference to admit such evidence when they ...


The Admissibility Of Sampling Evidence To Prove Individual Damages In Class Actions, Hillel J. Bavli, John Kenneth Felter Feb 2018

The Admissibility Of Sampling Evidence To Prove Individual Damages In Class Actions, Hillel J. Bavli, John Kenneth Felter

Boston College Law Review

The 2016 Supreme Court decision in Tyson Foods, Inc. v. Bouaphakeo revived the use of “representative” or sampling evidence in class actions. Federal courts are now more receptive to class plaintiffs’ efforts to prove classwide liability and, occasionally, aggregate damages, with sampling evidence. However, federal courts still routinely deny motions for class certification because they find that calculations of class members’ individual damages defeat the predominance prerequisite of Rule 23(b)(3). As a result, meritorious classwide claims founder. In this paper, we combine legal and statistical analyses and propose a novel solution to this dilemma that adheres to the ...


Amicus Brief In Hedberg And Hedberg, M.D. V. Wakamatsu, M.D., Mark S. Brodin, Nickolas Merrill Jan 2018

Amicus Brief In Hedberg And Hedberg, M.D. V. Wakamatsu, M.D., Mark S. Brodin, Nickolas Merrill

Boston College Law School Faculty Papers

Amicus brief submitted in a medical malpractice case addressing an evidentiary issue of first impression for the Massachusetts Supreme Judicial Court.


The Grand Jury: A Shield Of A Different Sort, R. Michael Cassidy, Julian A. Cook Iii Jun 2017

The Grand Jury: A Shield Of A Different Sort, R. Michael Cassidy, Julian A. Cook Iii

Boston College Law School Faculty Papers

According to the Washington Post, 991 people were shot to death by police officers in the United States during calendar year 2015, and 957 people were fatally shot in 2016. A disproportionate percentage of the citizens killed in these police-civilian encounters were black. Events in Ferguson, Missouri; Chicago, Illinois; Charlotte, North Carolina; Baton Rouge, Louisiana; and Staten Island, New York - to name but a few affected cities - have now exposed deep distrust between communities of color and law enforcement. Greater transparency is necessary to begin to heal this culture of distrust and to inform the debate going forward about police ...


Constitutional Law And The Role Of Scientific Evidence: The Transformative Potential Of Doe V. Snyder, Melissa Hamilton Feb 2017

Constitutional Law And The Role Of Scientific Evidence: The Transformative Potential Of Doe V. Snyder, Melissa Hamilton

Boston College Law Review

In late 2016, U.S. Court of Appeals for the Sixth Circuit’s concluded in Does #1–5 v. Snyder that Michigan’s sex offender registry and residency restriction law constituted an ex post facto punishment in violation of the constitution. In its decision, the Sixth Circuit engaged with scientific evidence that refutes moralized judgments about sex offenders, specifically that they pose a unique and substantial risk of recidivism. This Essay is intended to highlight the importance of Snyder as an example of the appropriate use of scientific studies in constitutional law.


Rape Law Gatekeeping, Corey Rayburn Yung Jan 2017

Rape Law Gatekeeping, Corey Rayburn Yung

Boston College Law Review

Police across the United States regularly act as hostile gatekeepers who prevent rape complaints from advancing through the criminal justice system by fervently policing the culturally disputed concept of “rape.” Victims are regularly disbelieved, rape kits are discarded without investigation, and, as a result, rapists remain free. The substantial empirical evidence and stories from victims across the United States demonstrate that any success in decreasing sexual violence hinges on removing the numerous police-imposed obstacles inhibiting investigation and adjudication in rape cases, beginning with substantial reform of police practices. An examination of modern cases and the historical record indicates that the ...


"Virtual Certainty" In A Digital World: The Sixth Circuit's Application Of The Private Search Doctrine To Digital Storage Devices In United States V. Lichtenberger, Stephen Labrecque Apr 2016

"Virtual Certainty" In A Digital World: The Sixth Circuit's Application Of The Private Search Doctrine To Digital Storage Devices In United States V. Lichtenberger, Stephen Labrecque

Boston College Law Review

In 2015 in United States v. Lichtenberger, the U.S. Court of Appeals for the Sixth Circuit held that police violated the Fourth Amendment by exceeding the scope of a private search of computer files. This decision deviated from holdings of the U.S. Courts of Appeals for the Fifth and Seventh Circuits, which held that under the private search doctrine, police could more thoroughly search digital devices that were previously searched by a private party. The Sixth Circuit created a circuit split by failing to apply the closed container approach to the digital storage devices in Lichtenberger. This Comment ...


The Big Stink About Garbage: State V. Mcmurray And A Reasonable Expectation Of Privacy, Brittany Campbell Apr 2016

The Big Stink About Garbage: State V. Mcmurray And A Reasonable Expectation Of Privacy, Brittany Campbell

Boston College Journal of Law & Social Justice

On March 11, 2015, the Supreme Court of Minnesota affirmed a lower court decision against David Ford McMurray, who was found guilty of third-degree possession of a controlled substance and sentenced to twenty-four months. McMurray was charged after Hutchinson, Minnesota police searched through his garbage and found evidence of methamphetamine. The majority held that a warrantless search of the defendant’s garbage was reasonable under the federal and state constitutions because a person has no reasonable expectation of privacy in garbage set out for collection on the side of a public street because garbage is readily accessible to other members ...


The British Experience With Hearsay Reform: A Cautionary Tale, Mark S. Brodin Mar 2016

The British Experience With Hearsay Reform: A Cautionary Tale, Mark S. Brodin

Boston College Law School Faculty Papers

Among the proposals being considered by the Advisory Committee on the Federal Rules of Evidence (“the Committee”) is the scrapping of the categorical exception regime for hearsay, leaving questions of reliability and admissibility ad hoc to district court judges along the lines of Federal Rules of Evidence (FRE) 403 and 807. Over the past decades, the British have moved toward this approach, and it is the purpose of this Article to identify the lessons that can be learned from that experience, especially with regard to criminal prosecutions and the right of confrontation.


Small Cells, Big Problems: The Increasing Precision Of Cell Site Location Information And The Need For Fourth Amendment Protections, Robert M. Bloom, William T. Clark Jan 2016

Small Cells, Big Problems: The Increasing Precision Of Cell Site Location Information And The Need For Fourth Amendment Protections, Robert M. Bloom, William T. Clark

Boston College Law School Faculty Papers

The past fifty years has witnessed an evolution in technology advancement in police surveillance. Today, one of the essential tools of police surveillance is something most Americans carry with them in their pockets every day, the cell phone. Cell phones not only contain a huge repository of personal data, they also provide continuous surveillance of a person’s movement known as cell site location information (CSLI).

In 1986, Congress sought to provide some privacy protections to CSLI in the Stored Communication Act. Although this solution may have struck the proper balance in an age when cell phones were a mere ...


My Ears Hear More Than English: Granting Multilingual Jurors Accommodations And Treating Multilingualism As A Common Type Of Juror Expertise, A. Lee Valentine Ii May 2015

My Ears Hear More Than English: Granting Multilingual Jurors Accommodations And Treating Multilingualism As A Common Type Of Juror Expertise, A. Lee Valentine Ii

Boston College Law Review

To find an example of court-sanctioned discrimination against Spanish-speaking prospective jurors, one need not look further than the 2011 U.S. Court of Appeals for the Fourth Circuit decision in United States v. Cabrera-Beltran. Three multilingual jurors were struck for cause during voir dire for not agreeing to ignore all Spanish-language evidence that would be presented at trial and adhere solely to the English-language interpretation, even if they detected errors in the interpretation. Although these jurors could have been accommodated, the court upheld the decision to strike them. In other cases, jurors with other types of expertise typically have not ...


Cultural Bias In Judicial Decision Making, Masua Sagiv May 2015

Cultural Bias In Judicial Decision Making, Masua Sagiv

Boston College Journal of Law & Social Justice

This Essay describes the phenomenon of cultural bias in judicial decision making, and examines the use of testimonies and opinions of cultural experts as a way to diminish this bias. The Essay compares the legal regimes of the United States and Israel. Whereas in the United States, the general practice of using cultural experts in courts is well developed and regulated, the Israeli legal procedure has no formal method for admitting cultural expert testimony, and examples of opinions or testimonies of cultural experts in the Israeli legal system are sporadic. The Essay further argues that social science evidence is an ...


A Criminal Defendant’S First Bite At The Constitutional Apple: The Eleventh Circuit’S Excessively Deferential Conception Of “Adjudication On The Merits” In Childers V. Floyd, Chris Skall May 2015

A Criminal Defendant’S First Bite At The Constitutional Apple: The Eleventh Circuit’S Excessively Deferential Conception Of “Adjudication On The Merits” In Childers V. Floyd, Chris Skall

Boston College Law Review

On November 13, 2013, in Childers v. Floyd, the U.S. Court of Appeals for the Eleventh Circuit found that Wyon Childers had failed to rebut the presumption that his Confrontation Clause claim was adjudicated on the merits. In this case, and a previous decision that led to it, the court conducted its habeas corpus review using a highly-deferential and vague conception of the threshold “adjudicated on the merits” inquiry. This Comment argues that the Eleventh Circuit and other circuits should reexamine their standards for determining whether federal claims have been adjudicated on the merits by state courts in order ...


Free, But Still Behind Bars: Reading The Illinois Post-Conviction Hearing Act To Allow Any Person Convicted Of A Crime To Raise A Claim Of Actual Innocence, Hugh M. Mundy Apr 2015

Free, But Still Behind Bars: Reading The Illinois Post-Conviction Hearing Act To Allow Any Person Convicted Of A Crime To Raise A Claim Of Actual Innocence, Hugh M. Mundy

Boston College Journal of Law & Social Justice

As the number of wrongfully convicted prisoners who are subsequently exonerated continues to rise, the importance of access to post-conviction relief also increases. Under the Illinois Post-Conviction Hearing Act, this access is restricted to petitioners who are currently imprisoned or otherwise facing a restraint on their liberty. Persons convicted of a crime who have completed their sentence are barred from pursuing post-conviction relief under the Act, regardless of the existence of exculpatory evidence that supports their innocence. Removing this procedural roadblock and interpreting the Act broadly to allow any person convicted of a crime to raise a claim of actual ...


Intent And Trademark Infringement, Alfred C. Yen Jan 2015

Intent And Trademark Infringement, Alfred C. Yen

Boston College Law School Faculty Papers

This Article describes how and why the use of intent in trademark infringement cases has become unintelligible. It does so by first identifying the supposed relevance of intent to trademark infringement. Leading cases state that a defendant’s intent matters because defendants who deliberately try to confuse consumers must believe that consumers are susceptible to confusion. Accordingly, a defendant’s intent to infringe functions like an implied assertion that the defendant’s behavior is likely to cause the desired confusion. This Article then explains how problems have arisen because courts do not use intent in this specific manner. Instead, courts ...


Adversarial Justice's Casualties: Defending Victim-Witness Protection, Mary Fan May 2014

Adversarial Justice's Casualties: Defending Victim-Witness Protection, Mary Fan

Boston College Law Review

The U.S. Supreme Court and some state courts have constitutionalized an increasingly rigid and broad vision of adversarial adjudication’s requirements. Commentators often celebrate this adversarial revolution as expanding defendants’ rights of confrontation, cross-examination, and self-representation. Yet the adversarial revolution also has created an arsenal of tactics to retraumatize victims of sexual assault and general violent crime. The courts and legislatures are in disarray about what to do to protect vulnerable victim-witnesses. This Article is about adversarial adjudication’s casualties and how to reduce the risk of harm. The Article defends a subset of protective measures that avert further ...


The Pretrial Discovery Process In Civil Cases: A Comparison Of Evidence Discovery Between China And The United States, Elizabeth Fahey Massachusetts Superior Court, Zhirong Tao May 2014

The Pretrial Discovery Process In Civil Cases: A Comparison Of Evidence Discovery Between China And The United States, Elizabeth Fahey Massachusetts Superior Court, Zhirong Tao

Boston College International and Comparative Law Review

This article compares and contrasts the pre-trial discovery mechanisms used in China and the United States, as well as the advantages and disadvantages of each. Although both use similar discovery tools, like requests to inspect evidence and expert examination of the parties, their discovery systems vary greatly. Ultimately, China prefers that judges largely conduct discovery, that the parties mutually select expert witnesses, and that the primary objective is to determine the truth, even at the expense of finality. Conversely, the United States prefers a much more adversarial system, in which the parties collect the evidence, submit motions to the court ...