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Boston College Law School

Boston College Law School Faculty Papers

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Full-Text Articles in Evidence

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 ...


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 ...


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 ...


Medical Malpractice, The Affordable Care Act And State Provider Shield Laws: More Myth Than Necessity?, Mary Ann Chirba, Alice Noble May 2013

Medical Malpractice, The Affordable Care Act And State Provider Shield Laws: More Myth Than Necessity?, Mary Ann Chirba, Alice Noble

Boston College Law School Faculty Papers

Given the ambitions and reach of the Affordable Care Act, confusion about its intended and inadvertent impact is inevitable. Since its enactment in 2010, the ACA has raised legitimate and less grounded concerns among various stakeholders ranging from individuals and employers facing coverage mandates to States deciding whether and how to implement the Act’s Medicaid expansions. One item has received far less attention even though it weighs heavily on any provider engaged in the clinical practice of medicine: the ACA’s impact on medical malpractice liability. The Act does little to address medical malpractice head on. Nevertheless, physicians and ...


The Fourth Amendment Fetches Fido: The Future Of Dog Searches, Robert M. Bloom, Dana L. Walsh Jan 2013

The Fourth Amendment Fetches Fido: The Future Of Dog Searches, Robert M. Bloom, Dana L. Walsh

Boston College Law School Faculty Papers

For over thirty-five years, the Supreme Court has grappled with the controversial issue of affirmative action and race preference. Beginning with Justice Lewis Powell’s influential opinion in Bakke v. U. Cal. Davis in 1978, leeway has been permitted for admissions policies that take account of race, as long as it is not given determinative weight so as to exclude consideration of nonminority candidates, or used to set quotas. As the Court has become increasingly conservative, however, its license for race preference has tightened considerably, and it has become receptive to “reverse discrimination” plaintiffs challenging such policies in universities and ...


Islamic Legal Maxims As Substantive Canons Of Construction: Ḥudūd-Avoidance In Cases Of Doubt, Intisar A. Rabb Jul 2010

Islamic Legal Maxims As Substantive Canons Of Construction: Ḥudūd-Avoidance In Cases Of Doubt, Intisar A. Rabb

Boston College Law School Faculty Papers

Legal maxims reflect settled principles of law to which jurists appeal when confronting new legal cases. One such maxim of Islamic criminal law stipulates that judges are to avoid imposing ḥudūd and other sanctions when beset by doubts as to the scope of the law or the sufficiency of the evidence (idra’ū ʾl-ḥudūd biʾl-shubahāt): the “ḥudūd maxim.” Jurists of all periods reference this maxim widely. But whereas developed juristic works attribute it to Muḥammad in the form of a prophetic report (ḥadīth), early jurists do not. Instead, they cite the maxim as an anonymous saying of nonspecific provenance in ...


Massachusetts Guide To Evidence, Mark S. Brodin Jan 2008

Massachusetts Guide To Evidence, Mark S. Brodin

Boston College Law School Faculty Papers

No abstract provided.


Accounting For Federalism In State Courts - Exclusion Of Evidence Obtained Lawfully By Federal Agents, Robert M. Bloom, Hillary J. Massey Nov 2007

Accounting For Federalism In State Courts - Exclusion Of Evidence Obtained Lawfully By Federal Agents, Robert M. Bloom, Hillary J. Massey

Boston College Law School Faculty Papers

After the terrorist attacks on September 11th, Congress greatly enhanced federal law enforcement powers through enactment of the U.S.A. Patriot Act. The Supreme Court also has provided more leeway to federal officers in the past few decades, for example by limiting the scope of the exclusionary rule. At the same time, many states have interpreted their constitutions to provide greater individual protections to their citizens than provided by the federal constitution. This phenomenon has sometimes created a wide disparity between the investigatory techniques available to federal versus state law enforcement officers. As a result, state courts sometimes must ...


Citizen Journalism And The Reporter’S Privilege, Mary-Rose Papandrea Mar 2007

Citizen Journalism And The Reporter’S Privilege, Mary-Rose Papandrea

Boston College Law School Faculty Papers

The reporter’s privilege is under attack, and “pajama-clad bloggers” are largely to blame. Courts and commentators have argued that because the rise of bloggers and other “citizen journalists” renders it difficult to define who counts as a reporter entitled to invoke the privilege, its continued existence is in grave doubt. The accompanying Article argues that this hysteria is misplaced. The development of the internet as a new medium of communication in many ways poses the same kinds of challenges to the reporter’s privilege that courts and state legislatures have faced for decades as television reporters, radio commentators, book ...


Reconsidering Spousal Privileges After Crawford, R. Michael Cassidy Nov 2006

Reconsidering Spousal Privileges After Crawford, R. Michael Cassidy

Boston College Law School Faculty Papers

In this article the author explores how domestic violence prevention efforts have been adversely impacted by the Supreme Court’s new “testimonial” approach to the confrontation clause. Examining the Court’s trilogy of cases from Crawford to Davis and Hammon, the author argues that the introduction of certain forms of hearsay in criminal cases has been drastically limited by the court’s new originalist approach to the Sixth Amendment. The author explains how state spousal privilege statutes often present a significant barrier to obtaining live testimony from victims of domestic violence. The author then argues that state legislatures should reconsider ...


Behavioral Science Evidence In The Age Of Daubert: Reflections Of A Skeptic, Mark S. Brodin Apr 2005

Behavioral Science Evidence In The Age Of Daubert: Reflections Of A Skeptic, Mark S. Brodin

Boston College Law School Faculty Papers

The piece briefly traces the history of the use of social science in the courtroom, and proceeds to critically measure this form of proof (particularly “syndrome” evidence) against both the reliability standards imposed by Daubert v. Merrell Dow Pharmaceuticals, Inc. and the traditional requirements for admission of expert testimony. Drawing upon empirical research concerning juries and decision-making as well as transcripts of the use of behavioral evidence at trial, I conclude that much of this testimony should be rejected. Rather than providing meaningful assistance to the jury, social science experts can distort the accuracy of the fact-finding process and imperil ...


"He Looks Guilty": Reforming Good Character Evidence To Undercut The Presumption Of Guilt., Josephine Ross Jun 2004

"He Looks Guilty": Reforming Good Character Evidence To Undercut The Presumption Of Guilt., Josephine Ross

Boston College Law School Faculty Papers

Juries often use short-cuts to determine the character of the accused, such as their job, age, race, gender, marital status, or what the person looks like. These short-cuts often substitute for character evidence in courtrooms across the United States, adding to the divide in the criminal justice system today. This problem provides a lens to examine the character evidence rules and how they are implemented. Rules governing good and bad character evidence themselves have been turned on their head. A defendant’s right to put in good character has been called “deeply imbedded in our jurisprudence.” Nevertheless, the rules currently ...


Jailhouse Informants, Robert M. Bloom Apr 2003

Jailhouse Informants, Robert M. Bloom

Boston College Law School Faculty Papers

No abstract provided.


Toward A Prudential And Credibility-Centered Parol Evidence Rule, Lawrence A. Cunningham Jan 2000

Toward A Prudential And Credibility-Centered Parol Evidence Rule, Lawrence A. Cunningham

Boston College Law School Faculty Papers

The most influential judicial voices on the parol evidence rule are Roger Traynor and Richard Posner. Traynor pieced together aspects of positions championed by the antipodal titans of contracts, Arthur Corbin and Samuel Williston. Posner cuts through tangled doctrinal webs to show how the unifying talisman of the doctrine is credibility. Everything in parol evidence rule doctrine, in this formulation, can be understood in terms of two categories of evidence: subjective and objective. While the Traynor composite blended aspects of the titans of contracts into an incoherent stew, the Posner composite unites the central theme of the titans' positions, holding ...


The Establishment Of A Rule Against Hearsay In Romano-Canonical Procedure, Frank R. Herrmann Jan 1995

The Establishment Of A Rule Against Hearsay In Romano-Canonical Procedure, Frank R. Herrmann

Boston College Law School Faculty Papers

No abstract provided.


Facing The Accuser: Ancient And Medieval Precursors Of The Confrontation Clause, Frank R. Herrmann, Brownlow M. Speer Apr 1994

Facing The Accuser: Ancient And Medieval Precursors Of The Confrontation Clause, Frank R. Herrmann, Brownlow M. Speer

Boston College Law School Faculty Papers

No abstract provided.


Inevitable Discovery: An Exception Beyond The Fruits, Robert M. Bloom Oct 1992

Inevitable Discovery: An Exception Beyond The Fruits, Robert M. Bloom

Boston College Law School Faculty Papers

No abstract provided.