- 50th Anniversary
- Online Edition
- Print Edition
- Donahue Lecture Series
The First Amendment to the United States Constitution embodies one of the country’s founding principles—separation of church and state—by prohibiting Congress from enacting laws that either respect a religious establishment or prohibit the people’s free exercise of religion. Analysis of issues arising under violation of the Establishment Clause consists of numerous, competing tests presented by the Supreme Court. In Doe ex rel. Doe v. Elmbrook School District, the Seventh Circuit considered two such tests and held that an unacceptable amount of religious endorsement and coercion occurred when high school graduation ceremonies were held inside a church. . .
The Sherman Antitrust Act (Sherman Act) prohibits businesses from contracting, combining, and conspiring to restrain trade or commerce. Reverse-payment-patent-settlement agreements between brand-name and generic pharmaceutical companies—whereby a brand-name-patent holder pays its generic competitor to drop a pending patent suit and refrain from producing its generic drug for a definite period of time—are generally subject to antitrust review under the Sherman Act. In In re K-Dur Antitrust Litigation, the Court of Appeals for the Third Circuit considered whether reverse-payment agreements between Schering-Plough Corporation (Schering) and its generic competitors Upsher-Smith Laboratories (Upsher) and ESI Lederle (ESI) amounted to an unreasonable restraint on trade. Parting with other circuits that more recently addressed the issue, the court expressly rejected the common scope-of-the-patent test and held that reverse-payment agreements between a pharmaceutical patent holder and a potential generic competitor constitute a prima facie violation of the Sherman Act’s proscription against unreasonable restraints on trade. . .
When a party to litigation destroys relevant evidence, the judge may issue sanctions under the court’s inherent and statutory authority to punish spoliation of evidence. The adverse inference sanction permits or compels the jury to conclude the destroyed evidence would have harmed the party responsible for its loss. In Bull v. United Parcel Service, Inc., the Court of Appeals for the Third Circuit confronted the issue of whether the production of copies in lieu of original documents constitutes spoliation of evidence, and whether such action warrants the harsh sanction of dismissal, or a lesser sanction such as an adverse inference. The Third Circuit held that Bull spoliated evidence by producing copies in place of originals because the authenticity of such documents cannot be evaluated; dismissal of the plaintiff’s claim, however, was determined too harsh a sanction. . .
Article III of the United States Constitution extends federal judicial power to all cases arising under admiralty and maritime jurisdiction. The Death on the High Seas Act (DOHSA) in turn provides the exclusive, albeit monetarily limited, maritime remedy for wrongful deaths that take place on the “high seas beyond 3 nautical miles from the shore of the United States.” In Helman v. Alcoa Global Fasteners, Inc., the Court of Appeals for the Ninth Circuit considered, as a matter of first impression, whether DOHSA applied to, and thus preempted other available claims arising from, a fatal helicopter accident that occurred approximately nine and a half nautical miles off the California coastline. Finding little interpretive significance in the term “high seas,” the Ninth Circuit held that DOHSA becomes unconditionally operative seaward of three nautical miles from U.S. shores. . .
The Fourth Amendment of the U.S. Constitution and article I, section 10 of the Minnesota Constitution protect an individual’s privacy right from an unreasonable search or seizure. However, courts have upheld the constitutionality of some searches when an individual’s expectation of privacy is outweighed by a legitimate governmental interest. In State v. Johnson, the Supreme Court of Minnesota considered whether a Minnesota statute violated an individual’s right to privacy by authorizing DNA collection from an individual charged with a felony offense but convicted of a misdemeanor arising from the same conduct. The court held that the statute, as applied to the defendant in this case, did not violate the United States or Minnesota constitutional protection against unreasonable searches and seizures. . .
The United States Supreme Court famously held in Miranda v. Arizona that the Fifth Amendment privilege against self-incrimination granted a series of required safeguards, and outlined a way a suspect can invoke his rights. In 2010, the Court revisited this issue in Berghuis v. Thompkins, holding that a suspect simply remaining silent was not enough, but he must “unambiguously” announce his intention to invoke the right to remain silent. In Commonwealth v. Clarke, the Supreme Judicial Court of Massachusetts (SJC) considered Thompkins in determining whether a suspect’s head shaking constituted an unambiguous invocation of the right to remain silent. The SJC held that the defendant’s shaking of his head met the heightened Thompkins standard and also distinguished Thompkins because article XII of the Massachusetts Declaration of Rights did not require “utmost clarity” to invoke the right to remain silent. . .
Eyewitness misidentification is the leading cause of mistaken convictions in the United States. Presently, more than 300 people have been exonerated through postconviction DNA evidence. The average sentence served in these cases, at the time of exoneration, was 13.6 years. Out of these 300 exonerations, eyewitness misidentification played a part in nearly 75% of the convictions. Scientific studies of eyewitness identification began to develop in the late 1970s, frequently the subject of psychological rather than legal journals. The Supreme Court has not directly revisited the topic of eyewitness identification since 1977, despite significant progress in related scientific research over the past thirty years. . .
This Note will discuss some of the most thoroughly studied causes of eyewitness misidentification and suggest that trial judges use their discretion under FRE 403 to exclude unreliable eyewitness-identification evidence. The first part of this Note will provide an overview of scientific research from the last thirty years relating to memory and eyewitness identification. The second part of this Note will discuss current procedures for combating misidentifications, analogous situations where FRE 403 is used for exclusion, and gatekeeping capacities of trial judges. Lastly, the third part of this Note will present arguments for using FRE 403 to exclude unreliable eyewitness identification evidence. . .
In criminal cases, restitution for victims is typically limited to the losses that the defendant caused in the commission of the crime.1 Title 18, section 2259 of the United States Code requires courts to order restitution for victims of sexual crimes against children in “the full amount of the victim’s losses.” In United States v. Kearney, a case of first impression, the United States Court of Appeals for the First Circuit considered whether a person depicted in child pornography was entitled to restitution under § 2259 from someone who had criminally possessed, distributed, and transported that pornography. The First Circuit concluded that the victim’s injuries were proximately caused by the defendant’s use of the pornography, and upheld the district court’s restitution order. . .
Under early common law, many states punished assisted suicide as murder. In 1994, however, the Supreme Court of Michigan drew a legal distinction between the concepts of murder and assisted suicide. Despite this distinction, forty-seven states still prohibit physicians from assisting in a patient’s death. The justifications for this restriction include avoiding the possibility of abuse, preventing the risk of a slippery slope to involuntary euthanasia, or preserving the integrity of the medical profession. The three states that allow the practice view physician-assisted suicide (P.A.S.) as a means of promoting patient autonomy and providing a merciful end-of-life option for terminally ill patients.
Presently, Massachusetts is in line with the majority of states in prohibiting P.A.S. In September 2011, Attorney General Martha Coakley certified an initiative petition to legalize physician-assisted suicide. The bill, known as the Massachusetts Death with Dignity Act (DWDA), would have allowed terminally ill patients to request and receive lethal dosages of medication to end their own lives. Voters narrowly rejected the bill during the 2012 general election.
This Note will focus on the effects that a bill like the proposed DWDA might have on patient care in Massachusetts. Specifically, this Note focuses on the effect of legalized physician-assisted suicide on patient autonomy, elder care, and the dignity of the medical profession. This Note also discusses the potential future of end-of-life care, including active euthanasia and the availability of physician-assisted suicide to minors. . .
The development of digital technology has created a unique set of problems for courts attempting to determine whether certain practices pertaining to search and seizure of digital forensic evidence are violative of the Fourth Amendment. The significant inherent differences between physical and digital property make a traditional application of the Fourth Amendment ill-fitting and unworkable. Congress and the courts have attempted to grapple with the doctrinal inconsistencies that result from the physical-digital distinction by recognizing modifications in the practices, policies, and procedures that govern the search and seizure of digital evidence. In the absence of well-defined rules, however, courts are implementing widely varied and inconsistent approaches to determine whether the government violated the timing and particularity requirements of search warrants under the Fourth Amendment. . .
This Note will analyze the timing and particularity issues left unresolved by Congress’s 2009 amendment to Rule 41. Part II.A will provide a history of the case law, highlighting the ambiguity surrounding the timeline requirements of Rule 41(e)(2)(B). Part II.B will discuss how the lack of a particularity rule has forced the courts to confront the plain view doctrine’s application to digital evidence. Part II.B will also examine the approaches that various circuit courts have taken to address this issue. Part III will analyze the cases outlined in Parts II.A and II.B, as well as the various approaches courts have taken to address timing and the plain view doctrine’s application to digital evidence. In addition, Part III will discuss how Congress’s failure to resolve these issues in its 2009 amendment is problematic for both defendants and examiners, as well as for judicial efficacy and the interests of justice. Finally, this Note will propose amending Rule 41 to better serve defendants, examiners, and the judicial process. . .