Evidence
Comment
The Intercircuit Exclusionary Rule
Federal courts have long resolved intercircuit suppression disputes using a choice-of-law framework and applying the precedent of the circuit where the search occurred. This Comment shows that this approach is fundamentally mistaken. Choice-of-law problems only arise when different laws, not differe…
Article
The De Facto Reporter’s Privilege
There is no formal, federal reporter’s privilege against disclosing confidential information. Drawing on new historical sources, this Article shows how all three branches of government have deployed a variety of de facto protections for reporters. These conclusions enrich our understanding of whethe…
Note
Competing Exclusionary Rules in Multistate Investigations: Resolving Conflicts of State Search-and-Seizure Law
The existing approaches to conflicts of state search-and-seizure laws are either theoretically or practically flawed. When a search implicates multiple states’ laws, courts should undertake a two-step analysis. First, they should determine whether a conflict exists; and second, they should apply the…
Note
Disparate Statistics
Statistical evidence is crucial throughout disparate impact’s three-stage analysis: during (1) the plaintiff’s prima facie demonstration of a policy’s disparate impact; (2) the defendant’s job-related business necessity defense of the discriminatory policy; and (3)…
Article
Machine Testimony
Machines play increasingly crucial roles in establishing facts in legal disputes. Some machines convey information—the images of cameras, the measurements of thermometers, the opinions of expert systems. When a litigant offers a human assertion for its truth, the law subjects…
Forum
Prosecutors Respond to Calls for Forensic Science Reform: More Sharks in Dirty Water
In September 2016, the President’s Council of Advisors on Science and Technology (PCAST) released a report questioning the validity of a number of forensic science techniques routinely offered as evidence (“PCAST Report”). This report raises familiar issues and recommendations. In 2009, the National…
Forum
Oral Tradition and the Kennewick Man
In April 2016, the U.S. Army Corps of Engineers confirmedthat the ancient human body discovered in 1996 near Kennewick, Washington,often referred to as the “Kennewick Man” or “The Ancient One,” is geneticallyrelated to modern-day Native Americans. Thisconfirmation ended a twenty-year-long struggle b…
Forum
Predicting Utah v. Streiff’s Civil Rights Impact
The Supreme Court’s recent Utah v. Strieff decision declined to apply the exclusionary rule to evidence seized as a result of an arrest that followed an unconstitutional stop. The opinion, in conjunction with Justice Sotomayor’s dissent, has reanimated discussions regarding when, if ever, criminal d…
Forum
Open Source Evidence on Trial
Introduction Investigating war crimes is a messy business. It is difficult and dangerous. International criminal tribunals charge powerful individuals, including heads of state and leaders of armed forces, whose personal resources may well exceed the annual operating budget of the invest…
Forum
Evidence-Based Sentencing and the Taint of Dangerousness
Today’s world is “all about the data.”1 In a variety of contexts, innovators have offered statistical models as a way to reduce or eliminate human error.2 The promise of quantitative optimization has even influenced our criminal justice system. About twenty states have developed or a…
Article
The Un-Territoriality of Data
Territoriality looms large in our jurisprudence, particularly as it relates to the government’s authority to search and seize. Fourth Amendment rights turn on whether the search or seizure takes place territorially or extraterritorially; the government’s surveillance authorit…
Forum
Cost-Benefit Analysis of Financial Regulations: A Response to Criticisms
In two recent articles, we urged financial regulators to use cost-benefit analysis (CBA) to evaluate financial regulations.1 John Coates has emerged as a leading critic of this view.2 In this essay, we respond to his objections. We make several points. First, Coates conflates two separate …
Forum
Financial Regulation and Cost-Benefit Analysis
I. what government doesn’t know Cost-benefit analysis is best understood as a way for agencies to ensure that their decisions are informed—that they are based on knowledge about likely consequences, rather than on dogmas, intuitions, hunches, or interest-group pressures.1 But when agen…
Forum
Warrant Canaries and Disclosure by Design: The Real Threat to National Security Letter Gag Orders
Introduction Since the 1980s, the FBI has issued documents referred to as National Security Letters (NSLs), which demand data from companies—including financial institution records and the customer records of telephone companies and communications service providers—for foreign intellig…
Forum
Riley's Implications for Fourth Amendment Protection in the Cloud
In June 2014, the Supreme Court unanimously held in Riley v. California1 that the digital content of cell phones does not fall within the search-incident-to-arrest exception to the Fourth Amendment’s prohibition against unreasonable searches. The Court provided a clear answer “to the qu…
Forum
Hall v. Florida and Ending the Death Penalty for Severely Mentally Ill Defendants
This Term in Hall v. Florida the Supreme Court held a portion of Florida’s death penalty statute unconstitutional under the Eighth and Fourteenth Amendments.1 Specifically, the Court invalidated Florida’s rigid system for determining whether a capital defendant is intellectually disabled…
Essay
Reconceptualizing the Burden of Proof
122 Yale L.J. 1254 (2013).
The preponderance standard is conventionally described as an absolute probability threshold of 0.5. This Essay argues that this absolute characterization of the burden of proof is wrong. Rather than focusing on an absolute threshold, the Essay reconceptualizes the preponder…
Note
Recognizing Character: A New Perspective on Character Evidence
121 Yale L.J. 1912 (2012).
Courts have historically regulated the use of character in trials because of its
potential to prejudice juries. In order to regulate this type of proof, courts must be able to
recognize what is and is not character evidence, but past attempts to define character in the law
of …
Forum
When Machines Are Watching: How Warrantless Use of GPS Surveillance Technology Violates the Fourth Amendment Right Against Unreasonable Searches
Introduction
Federal and state law enforcement officials throughout the nation are currently using Global Positioning System (GPS) technology for automated, prolonged surveillance without obtaining warrants. As a result, cases are proliferating in which criminal defendants are challenging law enfor…
Forum
A Public Privilege
If a rule is only as good as its exceptions, and a reporter is only as good as her sources, then according to a recent Pennsylvania Supreme Court opinion, Pennsylvania’s reporter’s privilege is the best of privileges and the worst of privileges. In that opinion, the court failed to carve a crime…
Note
Unchaste and Incredible: The Use of Gendered Conceptions of Honor in Impeachment
117 Yale L.J. 1854 (2008).
This Note demonstrates that the American rules for impeaching witnesses developed against a cultural background that equated a woman’s “honor,” and thus her credibility, with her sexual virtue. The idea that a woman’s chastity informs her credibility did not originate in …
Forum
Police Pretext as a Democracy Problem
Democracy, at the very least, requires that the dangerous branches of government—like the executive and law enforcement—be accountable to the people or their representatives. Ignoring claims of police pretext, as our Fourth Amendment jurisprudence currently does, creates a barrier to that accoun…
Forum
On Rights and Responsibilities: A Response to The Problem with Pretext
Eric Citron’s piece, Right and Responsibility in Fourth Amendment Jurisprudence: The Problem with Pretext, gets some things quite wrong, but it gets one important thing right—that our Fourth Amendment law is all about what suspects do and very little about what police do. Citron starts from the…
Forum
How Whren Protects Pretext
Funny, isn’t it, that “pretext” is a dirty word, a liability-conferring word, in an employment discrimination case, or a fraud case, but that in Fourth Amendment jurisprudence the word has been given a free pass? That, to use Eric Citron’s phrase, the word even seems to open up a “liberate…
Forum
A CSI Writer Defends His Show
As a former crime scene investigator, I was once called to testify on the stand in a criminal trial. Before giving my testimony, I had to explain to the jury the responsibilites and qualifications of forensic scientists in the criminal justice system. Now, five years later, prosecutors are complaini…
Forum
E-Discovery of Dynamic Data and Real-Time Communications: New Technology, Practical Facts, and Familiar Legal Principles
The forthcoming Federal e-discovery Rules are a welcome advance, but they do not address all of e-discovery’s challenging issues. For example, how should the law treat instant messaging (IM) or other forms of real-time communications? When must organizations or individuals preserve dynamic data su…
Forum
The New Electronic Discovery Rules: A Place for Employee Privacy?
The new procedures for electronic discovery might encourage companies to spy on their own workers. To prevent that from happening, I argue that courts should apply the new rules—which will likely take effect in December—in a way that discourages the abuse of surveillance technologies and protect…
Comment
Appellate Review and the Exclusionary Rule
113 Yale L.J. 1143 (2004)
Today, application of the exclusionary rule to evidence obtained in reliance on a potentially invalid search warrant is governed by the Supreme Court's holding in United States v. Leon. Leon instructs courts to admit evidence obtained on the basis of a potentially invalid …
Article
Are Police Free To Disregard Miranda?
112 Yale L.J. 447 (2002)
This Article contends that the common understanding of Miranda as a direct restraint on custodial interrogation by police is mistaken. Instead, Miranda, like the privilege against compulsory self-incrimination that serves as its constitutional foundation, is a rule of admissi…