MICHAEL H. GRAHAM, University of Miami - School of Law
Email: mickey6222@aol.com

This article advocates that two evidence rules be added to the Federal Rules of Evidence and state evidence codes modeled on the Federal Rules of Evidence. These new rules would serve to discourage the commission of acts of domestic violence as well as further the successful prosecution of many of those who actually do commit subsequent acts of domestic violence. Proposed Fed.R.Evid. 803(25) makes admissible statements made in connection with applications for protection orders when offered in a subsequent criminal case against the same person accused in the application. Such statements are "nontestimonial" under Crawford/Davis. Proposed Fed.R.Evid. 416 permits the introduction for any purpose to which relevant evidence of a defendant's commission of a prior offense of domestic violence in any criminal case in which same defendant is accused of an offense of domestic violence.

EDWARD J. IMWINKELREID, University of California, Davis - School of Law
Email: EJIMWINKELRIED@ucdavis.edu

Beginning in the late 1980s, reformers began developing new strategies for dealing with pretrial discovery misconduct. There was a consensus that such misconduct was widespread and often prevented litigants from successfully prosecuting meritorious claims.

Legislatures and courts adopted a much more aggressive attitude to combat such misconduct. For example, sanctions were imposed more frequently; and Federal Rule of Civil Procedure 37 was amended to permit the aggrieved party to introduce evidence of the opponent's pretrial discovery misconduct at trial as proof of the opponent's consciousness of the weakness of their position in the litigation.

The downside of this development, though, was that pretrial hearings over such misconduct became commonplace and expensive. When the parties became mired down in such hearings, they were sometimes distracted from their primary task of litigating the merits of the case.

There is now mounting pressure to deal more vigorously with evidentiary misconduct at trial. While such misconduct may not be as widespread as pretrial discovery misconduct, in at least one respect trial misconduct is arguably a more serious concern. When the misconduct occurs before trial, the judge has time - and numerous options - to prevent the misconduct from tainting the outcome of the trial. In contrast, if the misconduct occurs midtrial, there is less time, there are fewer viable options.

When a litigant engages in the misconduct of knowingly exposing the jury to inadmissible evidence, many of the existing remedial options available to the trial judge are unsatisfactory. The judge may grant a curative instruction directing the jury to disregard the inadmissible evidence, but empirical research raises grave questions about the effectiveness of such instructions. To be sure, in an extreme case the judge can declare a mistrial. However, the aggrieved litigant may have limited financial resources; and if he or she cannot afford a second trial, he or she may be compelled to settle on unfavorable terms.

This article proposes a new remedy for this evidentiary misconduct; analogizing to Rule 37, the article urges the courts to allow the innocent party to treat the misconduct as evidence of the opposition's consciousness of the weakness of their position in the litigation. On the one hand, the adoption of this proposal would provide a powerful disincentive to this species of misconduct. On the other hand, like pretrial discovery misconduct hearings, midtrial hearings devoted to this issue could potentially be both expensive and distracting. For that reason, the remedy should be granted only in extraordinary cases. The aggrieved party should have the burden of proving to the judge that the misconduct was intentional, and the measure of the burden ought to be clear and convincing evidence. Moreover, the judge should permit the aggrieved party to introduce the evidence only when the judge finds that any other available remedy would be ineffective.

NJERI MATHIS RUTLEDGE, South Texas College of Law
Email: nmathis@stcl.edu

Providing false testimony under oath unmistakably constitutes perjury; however, providing false testimony in domestic violence cases is complicated. Very little scholarship has addressed the issue of perjury, much less in the context of domestic violence cases. Although some scholars have acknowledged the epidemic of recanting in domestic violence cases, none have dealt with the fact that many recantations occur under oath. The response to perjury in domestic violence cases is to turn a blind eye and ignore it. Perjured testimony poses a significant threat to the court system. Indeed, one of the goals of a trial is to find the truth. False statements in domestic violence cases harm the criminal justice system and leads to apathetic attitudes towards victims. The Supreme Court's recent decision in Giles v. California and other cases involving the Confrontation Clause may lead to increased opportunities for perjury in domestic violence cases. Since there is no current rule or standard involving perjury in domestic violence cases individual prosecutor offices get to make their own rules, leading to arbitrary decisions.

The purpose of this article is to give scholars and practitioners a starting point on what to do with the perjurer in the domestic violence case. I intend for this article to fill a void in the literature, and challenge the presumption that perjury should be ignored based on one's status as a victim. This article explores the unique relationship between domestic violence victims and the criminal justice system; the motivations behind false statements by victims; and the collateral consequences of false statements in domestic violence cases. Ultimately, the article proposes legislation to address the particular issues which confront domestic violence victims and would protect victims under limited circumstances.

HOWARD M. WASSERMAN, Florida International University - College of Law
Email: howard.wasserman@fiu.edu

The future of the enforcement of civil rights and civil liberties is linked to video. The proliferation of recording technology enables everyone - law enforcement, suspects, and bystanders - to record police-public encounters on the streets and in the station house. The result is a balance of power in which all sides can record most police-public encounters - Big Brother is watching the public, but the public is able to watch Big Brother. The effect of this balanced proliferation of technology is to place video (and audio) recording at the heart of much modern civil-rights litigation and the enforcement of constitutional liberties.

Video plays two roles in civil-rights enforcement, one at the back end and one at the front end of constitutional disputes arising from encounters between police and members of the public. At the back end is the question of what role those recordings play in enforcing constitutional rights and remedying constitutional violations captured on audio and video - as evidence in constitutional litigation (at trial and during pre-trial processes) under 1983 and its federal equivalent, and as the basis for non-litigation remediation of any constitutional misconduct by government officials, such as settling lawsuits, disciplining offending officers, and creating or altering government policies to avoid similar misconduct in the future. Back-end use of video for civil-rights enforcement is complicated by two related considerations. First, film and literary theory show that it is a myth that video evidence is an unambiguous, objective, conclusive, singular, and clear reproduction of reality; in fact video evidence must be interpreted and construed (as with all evidence) and what a piece of video evidence means or signifies depends on who is watching, perceiving, and interpreting. Second is the recent Harvard Law Review study by Dan Kahan, Dave Hoffman, and Dan Braman, showing that video evidence is uniquely ripe for the effects of what they label cultural cognition, where the viewer's interpretation or the message she draws will be highly contextualized and individualized and likely affected by a viewer's identity-defining cultural characteristics of race, age, sex, socio-economic status, education, cultural orientation, ideology, and party affiliation. These insights together demand a level of caution - a degree of judicial humility in how certain they should be about what they (believe they) understand from the recording and the appropriate legal and policy steps to take in response. Most importantly, courts must not allow misunderstandings about video to expand the use of summary judgment to pull a case from the jury; it is for the jury to interpret video and decide video's meaning. Government policy makers and lawyers should be similarly cautious in using video in making non-litigation remedial decisions, especially in disciplining officers and settling litigation.

At the front end is the question of whether individuals possess a right to record police-public encounters as they occur and whether government can limit people's ability to use modern technology to create their own records of events. Government might restrict public recording in either of two ways - specific prohibitions on unconsented - to recording of conversations that include conversations by police officers performing official functions or enforcement of general rules of public conduct as to people attempting to record police-public encounters. The front-end question is whether the First Amendment provides the people a liberty to record such events in public spaces, to be the source of video evidence of police misconduct that will be used to resolve the underlying constitutional dispute. The answer to this question must be "yes," in order to maintain that balance of power in availability and control of video evidence. Video still plays, and as technology advances increasingly will play, a substantial role in civil rights enforcement. Government therefore cannot have a monopoly on the ability to record police-public encounters.

MIKAH K. THOMPSON, University of Missouri at Kansas City - School of Law
Email: storym@umkc.edu

In 2006, the Advisory Committee on Evidence Rules surprised many scholars when it amended Federal Rule of Evidence 408 concerning the admissibility of offers of compromise. Prior to its amendment, Rule 408 generally prohibited the admissibility of statements made during settlement talks when offered to prove or disprove liability. The newly amended Rule 408 creates an exception for statements made to government officials during settlement talks when the official is acting in a civil capacity.

The drafters of the new Rule 408 believe that statements made to private litigants during settlement talks deserve greater protection than statements made to government officials in the same context. More importantly, this new amendment creates an inconspicuous trap awaiting any person who is the subject of a civil investigation by a governmental body. Even where a defendant successfully settles a civil dispute with the government, any admissions of fault made during those settlement talks can become the basis for a later criminal proceeding.

This Article demonstrates that the drafters erred when they decided to hinge the admissibility of evidence upon the presence or non-presence of the government. It discusses the history of Rule 408 as well as the circuit split that precipitated amendment of the rule. It further addresses the many situations in which the government may act in both a criminal and civil capacity; and discusses the safeguards, if any, that protect an individual or corporation facing both criminal and civil liability at the hands of the government. It addresses whether a settlement communications privilege might provide adequate protection to defendants facing simultaneous civil and criminal liability and also proposes a solution that protects the rights of individuals who seek to cooperate with civil governmental investigations while allowing for the admissibility of relevant evidence. It concludes that without a reversal of the new rule, negotiations between government agencies and defendants will suffer. The only defendants who will be willing to engage in open and frank discussions with the government will be those defendants ignorant of the amendment who do not realize their exposure to criminal liability. If nothing else, the proposed warning places all parties on equal footing regarding the impact of their negotiations. Although the proposed warning leaves defendants without a safety net, it alerts them of the net's absence before they leap.

ACHAL OZA, Boston University - School of Law
Email: accounts@achaloza.com

This Note argues that Congress should amend section 2703(a) of the Electronic Communications Privacy Act ("ECPA") to bring it in line with modern technology and practices. The Congress enacted the ECPA in 1986 to draw clear lines as to where Fourth Amendment protection extends with emerging technologies. In 1986, e-mail technology was still very new. Most e-mail users dialed-up to their e-mail servers using a modem and downloaded their communications to a home computer, with the server acting only as a medium for temporary storage. Using this rationale, the ECPA draws a distinction between e-mails in electronic storage on third-party servers for 180 days or less and those in electronic storage longer than 180 days. E-mails in storage for 180 days or less are afforded full Fourth Amendment protection at a probable cause standard while those in storage for longer than 180 days may be compelled for disclosure at a mere subpoena standard.

Today, technology has greatly changed how people access their e-mail. While some users employ applications like Microsoft Outlook, which download e-mails to their home computers, many other users use web-based e-mail clients, like Gmail, which store e-mail communications permanently on third-party servers. Under current laws, users of the latter are afforded less Fourth Amendment protection than users of the former for essentially doing the same activity after 180 days pass. This distinction is unconstitutional.

The Sixth Circuit was the first circuit court to properly address this issue, in Warshak v. United States, and its panel decision held that e-mail users have a reasonable expectation of privacy with their e-mails stored on third-party servers so long as the service provider does not maintain a policy that they would actively audit the users' communications. The Sixth Circuit vacated the panel opinion en banc for lack of ripeness and did not reach the underlying constitutional issues.

This Note recommends that Congress amend the ECPA to bring it in line with current e-mail communication technology. Congress should update the ECPA by eliminating the 180-day distinction of section 2703(a). By doing so, Congress will statutorily extend Fourth Amendment protection to communications that e-mail users today reasonably expect to have protected.