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Articles 1 - 30 of 139
Full-Text Articles in Law
Evidence, Truth, And History In Atrocity Trials, Fergal Gaynor
Evidence, Truth, And History In Atrocity Trials, Fergal Gaynor
Boston College Law Review
This essay was delivered as the 2021 Holocaust and Human Rights Project Owen Kupferschmid Memorial Lecture. The Owen M. Kupferschmid Holocaust/Human Rights Project is named after its founder, a 1986 Boston College Law School graduate. Launched in 1984, the project’s goal was to ensure that the precedential value of Holocaust-related law is fully realized and applied to state-sponsored human rights violations today.
Rejecting ‘Unjustified’ Rejection: Why Family Courts Should Exclude Parental Alienation Experts, Alyssa G. Rao
Rejecting ‘Unjustified’ Rejection: Why Family Courts Should Exclude Parental Alienation Experts, Alyssa G. Rao
Boston College Law Review
Parental alienation is a controversial and disputed proposed mental disorder whereby children unjustifiably reject one parent because of the other parent’s influence. One parent often raises parental alienation in family court when the other parent makes an accusation of domestic abuse. Despite appearing in the legal discourse, no professional organization officially recognizes either parental alienation or the related concept of parental alienation syndrome, the original anti-feminist theory from which parental alienation derives. Domestic violence advocates staunchly criticize both “disorders” because the theories can undercut legitimate and concerning abuse allegations. Nonetheless, courts invite such experts into the courtroom to aid in …
Suicide In The Evidentiary Spotlight: An Analysis Of The Trustworthiness Of Suicide Notes Under The Federal Residual Exception, Jana J. Haikal
Suicide In The Evidentiary Spotlight: An Analysis Of The Trustworthiness Of Suicide Notes Under The Federal Residual Exception, Jana J. Haikal
Boston College Law Review
Suicide is a leading cause of death in the twenty-first century. Individuals who take their own lives occasionally leave behind suicide notes. Although rare, these suicide notes are sometimes offered into evidence under the federal residual exception, an exception to the evidentiary rule against hearsay. A court must then decide whether a suicide note is admissible under this exception. In 2019, changes to the federal residual exception went into effect. To be admissible under the new standard, a hearsay statement must be trustworthy and possess probative value. Additionally, the offering party must give notice to the opposing party of its …
Caracter, Credibility, And Rape Shield Rules, R. Michael Cassidy
Caracter, Credibility, And Rape Shield Rules, R. Michael Cassidy
Boston College Law School Faculty Papers
Rape shield laws have played an important role in protecting complainants and jurors from some of the most pernicious and ill-founded assumptions about sexual autonomy and consent. Yet the development and application of these rules have left many thorny questions. The policy debate has now shifted from whether and how the accuser's prior sexual conduct should be admitted to prove consent or lack of credibility due to what was once termed "unchastity" (now universally condemned and rightly prohibited) to whether and how the accuser's prior sexual conduct should be admitted to support a more specific and logically relevant argument for …
Major Reforms For Minors’ Confessions: Rethinking Self-Incrimination Protections For Juveniles, Maxwell J. Fabiszewski
Major Reforms For Minors’ Confessions: Rethinking Self-Incrimination Protections For Juveniles, Maxwell J. Fabiszewski
Boston College Law Review
The right against self-incrimination has been a part of American law since before the enactment of the Fifth Amendment. In the twentieth century, extreme police interrogation methods led the U.S. Supreme Court to institute further protections of this constitutional principle. Most significantly, in 1966, in Miranda v. Arizona, the Supreme Court permanently altered American criminal procedure and culture by extending the now-famous Miranda rights to individuals before custodial interrogation. Over fifty years later, these procedural safeguards to the right against self-incrimination have met virtually universal criticism for their ineffectiveness. Matters are particularly dire for juveniles because the law has failed …
Industry-Influenced Evidence: Bias, Conflict, And Manipulation In Scientific Evidence, Dean A. Elwell
Industry-Influenced Evidence: Bias, Conflict, And Manipulation In Scientific Evidence, Dean A. Elwell
Boston College Law Review
In 2008, in Exxon Shipping Co. v. Baker, the U.S. Supreme Court refused to consider scientific studies that a litigant had funded. Despite this rejection, many courts have failed even to recognize the dangers of relying on such potentially biased research. As a result, standards for the admission of scientific evidence have evolved without accounting for the risks posed by industry-influenced evidence. This Note argues for meaningful admissibility reviews via mandatory disclosure of industry influence. In this context, the evidentiary fraud doctrine should guide applications of Frye v. United States and Daubert v. Merrell Dow Pharmaceuticals, Inc.
Lost Opportunity: Supreme Court Declines To Resolve Circuit Split On Brady Obligations During Plea-Bargaining, Cameron Casey
Lost Opportunity: Supreme Court Declines To Resolve Circuit Split On Brady Obligations During Plea-Bargaining, Cameron Casey
Boston College Law Review
On September 18, 2018, the United States Court of Appeals for the Fifth Circuit in Alvarez v. City of Brownsville held that prosecutors are not constitutionally required to disclose exculpatory evidence to criminal defendants during the plea-bargaining process. With its decision, the Fifth Circuit entered the circuit split over the meaning of impeachment evidence in the context of the United States Supreme Court’s 2002 decision in United States v. Ruiz, where the Court held that the prosecution need not turn over impeachment evidence during the plea-bargaining process. Some circuits interpret impeachment evidence to include exculpatory evidence, whereas others had …
Promise-Induced False Confessions: Lessons From Promises In Another Context, Margaux Joselow
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 …
Bare Necessity: Simplifying The Standard For Admitting Showup Identifications, J.P. Christian Milde
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 and fact—questions whose …
The Assault On Campus Assault: The Conflicts Between Local Law Enforcement, Ferpa, And Title Ix, Emma B. Bolla
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
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 the …
Remedying Wrongful Convictions Through Dna Testing: Expanding Post-Conviction Litigants’ Access To Dna Database Searches To Prove Innocence, Kayleigh E. Mcglynn
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 in …
What Jurors Should Know About Informants: The Need For Expert Testimony, Robert M. Bloom
What Jurors Should Know About Informants: The Need For Expert Testimony, Robert M. Bloom
Boston College Law School Faculty Papers
This Article will first explore the problem of wrongful convictions resulting in part from false informant testimony. Eyewitness exoneration has gotten considerable attention by the courts. False informant testimony exoneration has gotten less attention than other causes of exoneration. We will argue for the use of expert witnesses to assist the juries. We will explore the acceptance of expert witnesses in eyewitness identification cases. It will be our main argument that a similar approach of utilizing expert witnesses should be taken with regard to informant testimony. We will then examine the acceptance of expert testimony regarding informants using the state …
When The Defendant Doesn't Testify: The Eighth Circuit Considers A Reasonable Broken Promise In Bahtuoh V. Smith, Alexandre Bou-Rhodes
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 could adversely affect …
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. courts should more …
Incapacitating Dangerous Repeat Offenders (Or Not): Evidentiary Restrictions On Armed Career Criminal Act Sentencing In United States V. King, Kayleigh E. Mcglynn
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 January …
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 not a …
Privacy, Screened Out: Analyzing The Threat To Individual Privacy Rights And Fifth Amendment Protections In State V. Stahl, Jesse Coulon
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
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 the use …
An Empirical Study Of Rule 609 And Suggestions For Practical Reform, Ric Simmons
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 from testifying at …
“A Search Is A Search”: Scanning A Credit, Debit, Or Gift Card Is A Search Under The Fourth Amendment, John A. Leblanc
“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 Amendment jurisprudence …
Rethinking The Law Of Legal Negotiation: Confidentiality Under Federal Rule Of Evidence 408 And Related State Laws, Richard C. Reuben
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 deem …
The Admissibility Of Sampling Evidence To Prove Individual Damages In Class Actions, Hillel J. Bavli, John Kenneth Felter
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 Tyson decision …
Amicus Brief In Hedberg And Hedberg, M.D. V. Wakamatsu, M.D., Mark S. Brodin, Nickolas Merrill
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
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 …
Constitutional Law And The Role Of Scientific Evidence: The Transformative Potential Of Doe V. Snyder, Melissa Hamilton
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
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
"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
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 of …
The British Experience With Hearsay Reform: A Cautionary Tale, Mark S. Brodin
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.