N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Tag: Jerome Prince Memorial Evidence Competition

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

By

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.

Read More

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

By

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.

Read More

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

By

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.

Read More

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

By

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.

Read More

Seizures Conducted Absent Physical Force: Momentary Compliance Versus Submission

By

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.

Read More

Language Conduit Theory After Crawford

By

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.

Read More

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

By

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.

Read More

Powered by WordPress & Theme by Anders Norén