N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Tag: Jerome Prince Memorial Evidence Competition

Is Theft Truly a Dishonest Act?

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On October 15, 2024

In Contributions

By Tommaso Morrione*

Rule 609 of the Federal Rules of Evidence governs the impeachment of witnesses with their past criminal convictions. Under Rule 609(a)(2), a court must admit a conviction for impeachment purposes if establishing the elements of the crime “required proving — or the witness’s admitting — a dishonest act or false statement.” Historically, some courts admitted misdemeanor theft convictions under Rule 609(a)(2); however, in 2006 the rule was amended to only admit convictions with a statutory element of deceit. While this amendment should exclude theft-based crimes from Rule 609(a)(2)’s automatic admission, the text of the amended rule still does not explicitly preclude their admission. This Contribution analyzes the arguments for and against the admission of theft-based crimes under Rule 609(a)(2), and ultimately concludes that these crimes should not be automatically admissible under the rule. While the text of Rule 609(a)(2) may be ambiguous, legislative history and policy rationales underscore that theft-based crimes are not sufficiently probative of testimonial dishonesty to be automatically admissible under the rule. Finally, this Contribution puts forward possible solutions that may provide clarity and finality regarding Rule 609(a)(2) and the admission of theft-based crimes.

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Gatekeeping or Gaslighting? How Courts Mislead Juries by Excluding Expert Testimony on the Accuracy of Eyewitness Identifications

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On September 22, 2022

In Contributions

by Zoe Farkas*

Historically, eyewitness identifications have been considered the gold standard of trial evidence. There’s little that’s more convincing than a witness on the stand confidently pointing at a defendant and proclaiming, under oath, “that’s the one!” However, over the last half century it has become clear that eyewitness identification may actually be one of the most fallible evidentiary tools, despite common misconceptions of its accuracy. Even in the face of growing research demonstrating the unreliability of eyewitness identification, courts have been slow to allow experts to testify to that unreliability in the courtroom. Judges instead bar them as unqualified or unhelpful under Federal Rule of Evidence 702. This Contribution argues that these experts are not only qualified and helpful, but absolutely essential to help juries fulfill their fact-finder duties.

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The Fourth Amendment in the Digital Era: Applying the Private Search Doctrine to Flash Drives and Other Electronic Media Storage Devices

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On March 28, 2022

In Contributions

by William G. Walant*

There is currently a circuit court split as to how the private search doctrine, a judicially-created framework under the Fourth Amendment, applies in the context of electronic media storage devices, such as flash drives—either via a “narrow approach” or a “broad approach.” Without further guidance from the Supreme Court, police officers in some jurisdictions are effectively given authority to end-run around the Fourth Amendment. In this Contribution, William Walant (‘22) argues that the Supreme Court should adopt the “narrow approach,” which focuses on the unique nature of digital media devices. This focus is embraced in Riley v. California and is consistent with the private search doctrine’s underlying principles. However, unlike as has been suggested by some recent scholarship, the private search doctrine need not be altered to fit electronic media storage devices, and the narrow approach does not create insurmountable and undesirable consequences. Instead, by adopting a narrow approach, the private search doctrine can be preserved while reaching a positive outcome for society: an officer, absent exigent circumstances or other exceptions, will be incentivized to obtain a warrant to examine the contents of an electronic device handed over by a private party.

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Endangered Privilege: Does the Federal Therapist-Patient Testimonial Privilege Contain a “Dangerous Patient” Exception?

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On February 7, 2022

In Contributions

by Miriam Bial*

In Jaffee v. Redmond, the Supreme Court interpreted Rule 501 of the Federal Rules of Evidence to construct a federal therapist-patient testimonial privilege but declined to delineate the full contours of the privilege. In this contribution, Miriam Bial (’22) argues that the federal therapist-patient testimonial privilege does not contain a “dangerous patient” exception as such a carve out would undermine Jaffee’s underlying rationale. The Court recognized the federal therapist-patient testimonial privilege grounded in the public health benefits of encouraging candid therapy seekers as well as respect for state policymaking. Recognizing a “dangerous patient” exception conflicts with these goals without providing discernable evidentiary benefits. Though supporters of the exception have invoked a footnote within Jaffee alongside notions of breach of confidentiality and waiver, those interpretations clash with the holding’s plain language and intent.

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Does the Supreme Court’s Decision in Carpenter v. United States Implicate the Government’s Use of Pole Cameras?

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On February 8, 2021

In Contributions

by Jack Derewicz*

Does the Supreme Court’s decision in Carpenter v. United States constrain the government’s warrantless use of pole cameras to surveil people it suspects are engaging in criminal activity? In this contribution, Jack Derewicz (’21) argues that the Carpenter opinion does not implicate this particular investigatory technique because pole cameras do not retroactively collect the type of information that, when aggregated, present the government with information it could not have otherwise obtained.

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Seizures Conducted Absent Physical Force: Momentary Compliance Versus Submission

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On October 5, 2020

In Contributions

by Dean S. Acheson*

This Contribution examines whether police have effectuated a Fourth Amendment seizure by show of authority when an individual flees from a momentary encounter. Dean S. Acheson (’21) argues that, under Fourth Amendment precedent, pre-flight compliance does not constitute submission to a show of authority in a police interaction that consists of answering brief questions and engaging in evasive behavior.

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Language Conduit Theory After Crawford

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On March 11, 2019

In Contributions

By Caleb Younger*

Must interpreters be available for cross examination under the Confrontation Clause? In this Contribution, Caleb Younger (’19) discusses the conduit theory in light of the Supreme Court’s decision in Crawford v. Washington and subsequent lower court findings. Ultimately, this Contribution argues that the Crawford Court properly interpreted the Sixth Amendment and that the language conduit theory fails under both Supreme Court jurisprudence and the Constitutional text.

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Don’t Depart From Deterrence: The Exclusionary Rule And Warrants Based On Tainted Evidence

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On December 13, 2017

In Contributions

by Savannah Ashby*

Should the Fourth Amendment exclusionary rule apply when an officer acts in good faith in the execution of a warrant based on tainted evidence? In this Contribution, Savannah Ashby (’18) discusses the differing ways in which Courts of Appeals have applied the good faith exception to the exclusionary rule in situations where the warrant is based on tainted evidence. Ultimately, this Contribution argues that the good faith exception to the exclusionary rule should not apply to evidence obtained in execution of a warrant based on tainted evidence as it more consistent with the goal of the exclusionary rule: deterring officers from committing Fourth Amendment violations.

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