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"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 2016 Boston College Law School

"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 ...


Attorney Questions Predict Jury-Eligible Adult Assessments Of Attorneys, Child Witnesses, And Defendant Guilt, Allison P. Mugno, J. Zoe Klemfuss, Thomas D. Lyon 2016 Florida International University

Attorney Questions Predict Jury-Eligible Adult Assessments Of Attorneys, Child Witnesses, And Defendant Guilt, Allison P. Mugno, J. Zoe Klemfuss, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

Children are often the primary source of evidence in maltreatment cases, particularly cases of child sexual abuse, and may be asked to testify in court. Although best-practice protocols for interviewing children suggest that interviewers ask open-ended questions to elicit detailed responses from children, during in-court testimony, attorneys tend to rely on closed-ended questions that elicit simple (often “yes” or “no”) responses (e.g., Andrews, Lamb, & Lyon, 2015; Klemfuss, Quas, & Lyon, 2014). How then are jurors making decisions about children’s credibility and ultimately the case outcome? The present study examined the effect of two attorney-specific factors (e.g., temporal structure and questioning ...


Maltreated Children's Ability To Make Temporal Judgments Using A Recurring Landmark Event, Kelly McWilliams, Thomas D. Lyon, J A. Quas 2016 University of Southern California Law School

Maltreated Children's Ability To Make Temporal Judgments Using A Recurring Landmark Event, Kelly Mcwilliams, Thomas D. Lyon, J A. Quas

University of Southern California Legal Studies Working Paper Series

This study examined whether maltreated children are capable of judging the location and order of significant events with respect to a recurring landmark event. 167 6- to 10-year-old maltreated children were asked whether the current day, their last court visit, and their last change in placement were “near” their birthday and “before or after” their birthday. Children showed some understanding that the target event was “near” and “before” their birthday when their birthday was less than three months hence, but were relatively insensitive to preceding birthdays. Hence, children exhibited a prospective bias, preferentially answering with reference to a forthcoming birthday ...


Lost In A Maze Of Character Evidence: How The Federal Courts Lack A Cohesive Approach To Applying Federal Rule Of Evidence 404(B) In Drug Distribution Cases, Brian Byrne 2016 Pace University School of Law

Lost In A Maze Of Character Evidence: How The Federal Courts Lack A Cohesive Approach To Applying Federal Rule Of Evidence 404(B) In Drug Distribution Cases, Brian Byrne

Pace Law Review

The admission of a criminal defendant’s prior bad acts can be a powerful tool for attaining a conviction. The federal courts are currently divided as to whether the defendant’s prior drug use is admissible under Rule 404(b) of the Federal Rules of Evidence when the defendant is charged with distributing a controlled dangerous substance.

Part I of this Comment will briefly explore the historical roots of Rule 404(b). Part II will examine the permissible purposes for admitting prior bad acts under Rule 404(b). Part III will discuss the circuit split that has developed as to ...


Billy Joel: The Minstrel Testifies Or How The Rules Of Evidence Handcuff The Piano Man, Hon. Richard A. Dollinger 2016 Touro College Jacob D. Fuchsberg Law Center

Billy Joel: The Minstrel Testifies Or How The Rules Of Evidence Handcuff The Piano Man, Hon. Richard A. Dollinger

Touro Law Review

No abstract provided.


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

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 ...


51. Maltreated Children’S Ability To Make Temporal Judgments Using A Recurring Landmark Event. Journal Of Interpersonal Violence., Kelly McWilliams, Thomas D. Lyon, Jodi A. Quas 2016 University of Southern California

51. Maltreated Children’S Ability To Make Temporal Judgments Using A Recurring Landmark Event. Journal Of Interpersonal Violence., Kelly Mcwilliams, Thomas D. Lyon, Jodi A. Quas

Thomas D. Lyon

This study examined whether maltreated children are capable of judging the location and order of significant events with respect to a recurring landmark event. 167 6- to 10-year-old maltreated children were asked whether the current day, their last court visit, and their last change in placement were "near" their birthday and "before or after" their birthday. Children showed some understanding that the target event was "near" and "before" their birthday when their birthday was less than three months hence, but were relatively insensitive to preceding birthdays. Hence, children exhibited a prospective bias, preferentially answering with reference to a forthcoming birthday ...


Ohio V. Clark , Peter M. Torstensen Jr. 2016 Notre Dame Law School

Ohio V. Clark , Peter M. Torstensen Jr.

Notre Dame Law Review Online

The heart of the debate over the purpose of the Confrontation Clause is the manner in which confrontation was intended to secure a defendant’s rights—either through procedural fairness or ensuring evidentiary reliability. The eventual direction the Supreme Court takes will depend, in large part, on which of these visions of the Confrontation Clause ultimately prevails. Michigan v. Bryant marked a potential step in the direction of the Ohio v. Roberts vision, and Ohio v. Clark does not appear to have departed from the course set in Bryant. Thus, while Crawford v. Washington marked a sea change in the ...


Conviction Review Units: A National Perspective, John Hollway 2016 University of Pennsylvania Law School

Conviction Review Units: A National Perspective, John Hollway

Faculty Scholarship

Over the past 25 years, Americans have become increasingly aware of a vast array of mistakes in the administration of justice, including wrongful convictions, situations where innocent individuals have been convicted and incarcerated for crimes they did not commit. The most prevalent institutional response by prosecutors to address post-conviction fact-based claims of actual innocence is the Conviction Review Unit (CRU), sometimes called the Conviction Integrity Unit. Since the creation of the first CRU in the mid-2000s, more than 25 such units have been announced across the country; more than half of these have been created in the past 24 months ...


Weighing The Admissibility Of Fmri Technology Under Fre 403: For The Law, Fmri Changes Everything -- And Nothing, Justin Amirian 2016 Fordham University School of Law

Weighing The Admissibility Of Fmri Technology Under Fre 403: For The Law, Fmri Changes Everything -- And Nothing, Justin Amirian

Fordham Urban Law Journal

Lie detection; fMRI; Evidence; polygraph


Strange Bedfellows: How Expanding The Public Safety Exception To Miranda Benefits Counterterrorism Suspects, Geoffrey Corn, Chris Jenks 2016 South Texas College of Law

Strange Bedfellows: How Expanding The Public Safety Exception To Miranda Benefits Counterterrorism Suspects, Geoffrey Corn, Chris Jenks

Fordham Urban Law Journal

No abstract provided.


Reconsidering The Standards Of Admission For Prior Bad Acts Evidence In Light Of Research On False Memories And Witness Preparation, Jason Tortora 2016 Fordham University School of Law

Reconsidering The Standards Of Admission For Prior Bad Acts Evidence In Light Of Research On False Memories And Witness Preparation, Jason Tortora

Fordham Urban Law Journal

No abstract provided.


Principles, Politics And Privilege: How The Crime-Fraud Exception Can Preserve The Strength Of The Attorney-Client Privilege For Government Lawyers And Their Clients, Michael W. Glenn 2016 Fordham University School of Law

Principles, Politics And Privilege: How The Crime-Fraud Exception Can Preserve The Strength Of The Attorney-Client Privilege For Government Lawyers And Their Clients, Michael W. Glenn

Fordham Urban Law Journal

No abstract provided.


Paradoxes, Gedanken Experiments And The Burden Of Proof: A Response To Dr. Cohen's Reply, David Kaye 2016 Penn State Law

Paradoxes, Gedanken Experiments And The Burden Of Proof: A Response To Dr. Cohen's Reply, David Kaye

David Kaye

This article responds to L. Jonathan Cohen's critique of the author's position regarding the problem of naked statistical evidence. Cohen argues that the kind of probability at work in litigation does not conform to the axioms of mathematical probability. The author responds by suggesting that the familiar theory of probability needs no revision to account for the reluctance of a few courts to permit plaintiffs to prevail on the strength of background statistics alone. One need not adopt Dr. Cohen's esoteric mathematical structure to explain the burden of proof in civil cases. The article shows that whether ...


Behavioral Genetics Research And Criminal Dna Databanks, David Kaye 2016 Penn State Law

Behavioral Genetics Research And Criminal Dna Databanks, David Kaye

David Kaye

This article examines the current concerns about whether DNA databases may be used for actions other than to apprehend criminals, such as genetic research, in particular, searching for a "crime gene". Part II considers the perspective that these databases may be useful for research. The information within a DNA sample consists of a limited number of DNA base-pair variations, which are important to identification, but not necessarily to genetic research. However, while it may be difficult to conduct genetic research, it is not impossible. Part III examines state and federal database legislation. There are examples of three states' statutes and ...


A Fourth Amendment Theory For Arrestee Dna And Other Biometric Databases, David Kaye 2016 Penn State Law

A Fourth Amendment Theory For Arrestee Dna And Other Biometric Databases, David Kaye

David Kaye

Routine DNA sampling following a custodial arrest process is now the norm in many jurisdictions, but is it consistent with the Fourth Amendment? The few courts that have addressed the question have disagreed on the answer, but all of them seem to agree on two points: (1) the reasonableness of the practice turns on a direct form of balancing of individual and governmental interests; and (2) individuals who are convicted — and even those who are merely arrested — have a greatly diminished expectation of privacy in their identities. This Article disputes these propositions and offers an improved framework for analyzing the ...


Case Comment - People V. Nelson: A Tale Of Two Statistics, David Kaye 2016 Penn State Law

Case Comment - People V. Nelson: A Tale Of Two Statistics, David Kaye

David Kaye

In recent years, defendants who were identified as a result of a search through a database of DNA profiles have argued that the probability that a randomly selected person would match a crime-scene stain overstates the probative value of the match. The statistical literature is divided, with most statisticians who have written on the subject rejecting this claim. In People v. Nelson, the Supreme Court of California held that when the random-match probability is so small as to make it exceedingly unlikely that any unrelated individual has the incriminating DNA profile, this statistic is admissible in a database-search case. In ...


'False But Highly Persuasive:' How Wrong Were The Probability Estimates In Mcdaniel V. Brown?, David Kaye 2016 Penn State Law

'False But Highly Persuasive:' How Wrong Were The Probability Estimates In Mcdaniel V. Brown?, David Kaye

David Kaye

In McDaniel v. Brown, the Supreme Court will review the use of DNA evidence in a 1994 trial for sexual assault and attempted murder. The Court granted certiorari to consider two procedural issues - the standard of federal postconviction review of a state jury verdict for sufficiency of the evidence, and the district court's decision to allow the prisoner to supplement the record of trials, appeals, and state postconviction proceedings with a geneticist's letter twelve years after the trial.

This essay clarifies the nature and extent of the errors in the presentation of the DNA evidence in Brown. It ...


Credal Probability, David Kaye 2016 Penn State Law

Credal Probability, David Kaye

David Kaye

This article responds to Paul Bergman and Al Moore's doubt that ideal triers of facts would be Bayesians. They argue that Bayes' rule, and probability theory in general, fails as a theoretical factfinding model. While probability has long been an accepted measure of belief in empirical propositions and the validity of inductive arguments, this articles addresses Bergman and Moore's doubts directly. It shows how their examples demonstrating the "frequentist" character of Bayesian methodology or the fallacies in Bayesian analysis are easily handled without a frequentist interpretation of probability. Then it shows that an ideal juror's partial beliefs ...


Dna Database Trawls And The Definition Of A Search In Boroian V. Mueller, David Kaye 2016 Penn State Law

Dna Database Trawls And The Definition Of A Search In Boroian V. Mueller, David Kaye

David Kaye

As a general matter, once the government acquires information from a permissible search or seizure, it can use this information in later criminal investigations. Courts have applied this simple rule to uphold the indefinite reuse of DNA samples acquired from convicted offenders. This essay describes the First Circuit Court of Appeals’ reliance on the rule in rejecting a convicted offender’s claim that his DNA sample and profile had to be removed from the federal DNA databank after he completed his sentence. Acknowledging that the rule permitting reuse should not be applied mechanically, I argue that the rule's application ...


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