Sunday, October 23, 2016

Polygraph Evidence: Circuit Court Approaches to Admissibility

By Anthony Kershaw
Anthony Kershaw is a third-year student at Albany Law School. He graduated with honors from Kean University in Union, New Jersey in 2011 with a major in Political Science. He is currently a member of Albany’s Government Law Review and serves on that journal's executive board as the Managing Editor for Research & Writing.
During his second-year at Albany Law, Anthony involved himself in two trial competitions. He served as a defense advocate in a homicide trial. He also served as the plaintiff’s counsel in a negligence lawsuit, where Albany Law placed higher than Harvard Law and many other competitive teams. His active involvement in trial law is what inspired him to write his paper on the admissibility of polygraph evidence in the courtroom.
When he's not in the classroom or engaged in school activities, Anthony works as a Law Clerk for Flink Smith Law in Albany.


Among the many jurisdictions that continue to refuse to admit polygraph evidence, there are a growing number that are finding polygraph testing to be reliable under certain circumstances for purposes other than proving the truth of the results. For example, since the general acceptance test regarding scientific evidence was invalidated in 1993, some federal courts have concluded that a general exclusion of polygraph evidence is invalid and that such evidence may be admitted in particular cases if the evidence meets the requirements of various provisions of the Federal Rules of Evidence.

One particular instance occurred in the District Court of Arizona, where the defendant was indicted for bank robbery and moved for evidentiary hearings as to the reliability and admissibility of polygraph evidence. The court held that polygraph evidence is sufficiently reliable to satisfy requirements of the evidentiary rule governing expert testimony and that a court must consider the rules of evidence, as well as the purposes for which the polygraph evidence should be admitted, and it’s prejudicial effect.

This article aims to take a closer look at polygraph evidence and its admissibility through the eyes of the Circuit Courts. For over forty years, from 1975 to December of 2015, a growing number of Circuit decisions have found polygraph examinations to be reliable in some way, whether the results were used for a limited purpose or whether the evidence was allowed in to rebut an assertion of coercion. Today, trial courts still have vast discretion in deciding issues of evidence, and many would agree, that as long as the evidence has more probative worth than prejudicial effect, it should be admitted.
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To read the paper, open HERE.

Saturday, October 8, 2016

The Impact of BOREALI: New York’s Rulemaking Process and Article 78 Challenges

By Brittney M. Walker
Brittney Walker is a 2016 graduate of Albany Law School. She holds her bachelor’s degree in Political Science from Pace University and a MBA from Rensselaer Polytechnic Institute.
While at Albany Law, Brittney served as Editor in Chief of International Law Studies. She also competed in the Karen C. McGovern Senior Prize Trials Moot Court Competition.
In her free time, Brittney enjoys traveling, reading a good book, cooking and spending time with her family.
She prepared this paper for Prof. Rose Mary Bailly's Administrative Law course.


This paper examines two recent cases that deal with issues that arise when an administrative agency oversteps its authority. Specifically, it looks at three New York City agencies: the Department of Health and Mental Hygiene, the New York City Board of Health, and the New York City Taxi and Limousine Commission.

In doing so, this paper compares how these different agencies each acted beyond the scope of their authority. They did so by acting in a legislative capacity and enacting laws that they lacked the authority to enact.

At the center of these three cases is Boreali v. Axelrod, a 1987 decision of the New York Court of Appeals. The question in Boreali was whether the Public Health Council, a state agency, had the authority to regulate smoking in public places or whether this was a power designated solely to the legislature.

The Court explained that, while the legislature granted powers to the Public Health Council, these powers were limited to acting as an administrative agency and not a rule-making authority. Furthermore, the Court maintained that, had the legislature adopted a law prior to the enactment of the agency’s regulation and the agency had simply added to the already adopted law, then the agency's ban on smoking would have been appropriate.

But in the absence of such a prior law, the agency's promulgation was an overreach of authority and, therefore, invalid.
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To read the paper, open HERE.

Tuesday, September 6, 2016

NYCOA Judge Abdus-Salaam: Opinion Patterns [presentations]

Here are two mini-presentations prepared by students in the Court of Appeals Intensive Seminar. One looks at voting patterns in Judge Abdus-Salaam's majority opinions, and the other in her dissents.
It should be noted that, in a decision last week, In Re Brooke S.B., Judge Abdus-Salaam authored a magnificent opinion for the Court on the rights of de facto parents, vindicating a similarly magnificent dissent by then-Judge Judith Kaye in Alison D. (1991), and explicitly overruling that decision which was rendered in one of those shamefully superficial unsigned majority opinions.


Stacy Mazzara



To view Stacy Mazzara's mini-presentation on Judge Abdus-Salaam's majority opinions, click HERE.

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Sarah Baker











To view Sarah Baker's mini-presentation on Judge Abdus-Salaam's dissenting opinions, click HERE.

NYCOA Judge Abdus-Salaam: Patterns from Majority Opinions (presentation)

By Stacy Mazzara
Stacy Mazzara graduated with highest honors from Albany Law School in 2016. She received her a B.A. in Communication Studies and Spanish from the State University of New York at New Paltz in 2013. During law school, she served as an Associate Editor of the Albany Law Review, interned at the Kings County District Attorney’s Office, and completed a field placement with the Honorable Mae A. D’Agostino of the Northern District of New York. She will begin her career at the Nassau County District Attorney’s Office this fall.
This presentation was prepared by Stacy for Professor Bonventre's Court of Appeals Intensive Seminar. It focuses on Judge Abdus-Salaam's ten most recently authored majority opinions (at the time) to discern any patterns.

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NYCOA Judge Abdus-Salaam: Patterns from Dissenting Opinions (presentation)

By Sarah H. Baker
Sarah Baker graduated from Albany Law School this past spring. She did her undergraduate work at SUNY Geneseo, graduating in 2013 with a Bachelor of Arts in Political Science. During law school, Sarah was an Executive Editor for Notes and Comments for Volume 79 of the Albany Law Review. She served as a judicial intern for the Honorable Mae A. D’Agostino in the U.S. District Court for the Northern District of New York. She also had the opportunity to intern for the Claims Bureau of the New York Attorney General’s Office, the Saratoga County District Attorney’s Office, as well as serving as a research assistant at Albany Law.
This presentation was prepared for Professor Bonventre’s Court of Appeals Intensive Seminar. It reflects Sarah's research on Judge Abdus-Salaam, focusing on her ten most recently authored dissenting opinions (at the time) to discern any patterns. 

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Thursday, August 25, 2016

New York's Former Chief Judge Lippman: Dissents [presentation]

By Kerry L. Cunningham
Kerry Cunningham graduated from Albany Law School this past spring. She did her undergraduate work at Gettysburg College, graduating in 2012 with a B.A. in Political Science and a minor in Religious Studies.
While in law school, Kerry served as the Managing Editor of Research and Writing for the Albany Government Law Review and as the Executive Treasurer of the Student Bar Association. Additionally, she interned with Roemer Wallens Gold & Mineaux LLP during her second and third years.
This presentation was prepared for Professor Bonventre's Court of Appeals Intensive class in the Spring of 2016.

This PowerPoint presentation is the product of research regarding the voting patterns of former New York Chief Judge Jonathan Lippman's voting patterns. It is based on the dissenting opinions Lippman authored throughout his 9 year tenure on the New York's high court.

His dissents evince a strong dedication to and passion for equal justice for the less advantaged, and this is especially conspicuous in criminal cases. This presentation focuses on four of these dissents. Two are from his first two years and two from his final two years on the Court.

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Sunday, April 24, 2016

NYCOA Judge Pigott: Opinion Patterns (presentations)

Here are two mini-presentations prepared by students in the Court of Appeals Intensive Seminar. Students each chose a current member of New York's highest court and looked for patterns in recent opinions written by the chosen Judge. In these presentations, one student looked at Judge Pigott's majority opinions and the other looked at his dissents. 


Corey Carmello


 To view Corey Carmello's presentation on Judge Pigott's majority opinions, click HERE.
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Eric Brenner















To view Eric Brenner's presentation on Judge Pigott's dissenting opinions, click HERE.

NYCOA Judge Pigott: Majority Opinion Patterns (presentation)

By Corey Carmello
Corey Carmello is a second-year student at Albany Law School. He graduated summa cum laude from the University at Albany in 2014 with a Bachelor of Arts in Political Science. Since starting law school, Corey has interned with Judge Lawrence E. Kahn, of the Northern District of New York; the Albany County District Attorney’s Office; and the Appeals and Opinions Bureau of the New York State Attorney General’s Office. He is also a member of the Albany Law Review. Corey will be working as a summer associate for Milbank Tweed Hadley & McCloy this summer, and hopes to work there as an associate upon graduation.
This presentation was prepared for Professor Bonventre’s Court of Appeals Intensive Seminar.

This presentation is the result of research conducted on the past 10 majority opinions—i.e., in non-unanimous cases--written by Judge Eugene Pigott of the New York Court of Appeals. A pattern of deference to the trial court and to the legislature, and a general pattern of being pro-prosecution was apparent from this research.

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NYCOA Judge Pigott: Dissenting Opinion Patterns (presentation)

By Eric Brenner
Eric Brenner is a second-year student at Albany Law School and graduated with honors from Siena College in 2014 with a degree in Finance.  Eric is the Executive Managing Editor for Volume 80 of the Albany Law Review.  He has served as a judicial intern in U.S. District Court for both the Hon. Lawrence E. Kahn and the Hon. Charles J. Siragusa.  Additionally, Eric has been a teaching assistant and research assistant at Albany Law. 
This presentation was prepared for Professor Bonventre’s Court of Appeals Intensive Seminar.

Before beginning research, I was aware that Judge Pigott has been one of the Court's more frequent dissenters. In his 10 most recent authored dissents, 9 were in criminal cases. Of these, Judge Pigott dissented alone in 6.  His dissents appear to focus on policy concerns, practicality, and giving deference to the trial court. Judge Pigott’s dissents are very articulate in the way in which they examine the precedents and the facts in the record.

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