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PROVIDED NOTICE THAT MIDDLETOWN & NEW JERSEY RAILROAD, LLC FILED A VERIFIED NOTICE OF EXEMPTION TO LEASE FROM NORFOLK SOUTHERN RAILWAY COMPANY AND TO OPERATE APPROXIMATELY 1.9 MILES OF RAIL LINE LOCATED BETWEEN FOUR STORY JUNCTION AND MIDDLETOWN, N.Y.
Middletown & New Jersey Railroad, LLC (M&NJ), a Class III rail carrier, has filed a verified notice of exemption under 49 C.F.R. § 1150.41 to lease from Norfolk Southern Railway Company (NS) and to operate approximately 1.9 miles of rail line located between Four Story Junction at milepost UJ 0 and Middletown, N.Y., at milepost UJ 1.9, known as the Crawford Industrial Track (the Line).
According to M&NJ, in conjunction with the lease of the Line, it will also obtain incidental local and overhead trackage rights over rail line located between the western end of Campbell Hall yard at milepost JS 67.50, continuing for 9.1 miles to milepost JS 76.60 at CP Howells, and from milepost SR 68.90 at CP Howells, continuing for 21 miles to milepost SR 89.90 at or near Port Jervis, N.Y. (the Incidental Trackage Rights). M&NJ states that the Incidental Trackage Rights are being granted over a line owned by NS and currently leased to Metro-North Commuter Railroad Company pursuant to a sublease agreement under which NS retained the exclusive, irrevocable, and perpetual right to provide or permit rail freight service on the line. See Metro-North Commuter R.R—Acquis. & Operation Exemption—Line of Norfolk S. Ry., FD 34293, slip op. at 2 (STB served May 13, 2003).
M&NJ certifies that its projected revenues as a result of this transaction will not result in M&NJ’s becoming a Class I or Class II rail carrier and will not exceed $5 million. As required under 49 C.F.R. § 1150.43(h)(1), M&NJ has disclosed in its verified notice that the lease agreement contains an interchange commitment that will require M&NJ to pay additional charges if it interchanges certain traffic with a rail carrier other than NS. M&NJ has provided additional information regarding the interchange commitment as required by 49 C.F.R. § 1150.43(h).
M&NJ states that it expects to consummate the transaction on or shortly after the effective date of this notice of exemption. The earliest this transaction may be consummated is December 29, 2018 (30 days after the verified notice was filed).
If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. § 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemption. Petitions to stay must be filed no later than December 21, 2018 (at least seven days before the exemption becomes effective).
An original and 10 copies of all pleadings, referring to Docket No. FD 36253, must be filed with the Surface Transportation Board, 395 E Street, S.W., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on M&NJ’s representative, Karl Morell, Karl Morell and Associates, Suite 440, 440 1st Street, N.W., Washington, DC 20001.
According to M&NJ, this action is categorically excluded from environmental review under 49 C.F.R. § 1105.6(c) and from historic reporting under 49 C.F.R. § 1105.8(b).
 A draft copy of the lease agreement was submitted under seal with the verified notice.


60-2403. Judgment, when dormant; release of record; child support judgments after July 1, 2007, never dormant; court costs, fees, fines and restitution judgments after July 1, 2015, never dormant. (a) (1) Except as provided in subsection (b), if a renewal affidavit is not filed or if execution, including any garnishment proceeding, support enforcement proceeding or proceeding in aid of execution, is not issued, within five years from the date of the entry of any judgment in any court of record in this state, including judgments in favor of the state or any municipality in the state, or within five years from the date of any order reviving the judgment or, if five years have intervened between the date of the last renewal affidavit filed or execution proceedings undertaken on the judgment and the time of filing another renewal affidavit or undertaking execution proceedings on it, the judgment, including court costs and fees therein shall become dormant, and shall cease to operate as a lien on the real estate of the judgment debtor. When a judgment becomes and remains dormant for a period of two years, it shall be the duty of the judge to release the judgment of record when requested to do so.
(2) A "renewal affidavit" is a statement under oath, signed by the judgment creditor or the judgment creditor's attorney, filed in the proceedings in which the judgment was entered and stating the remaining balance due and unpaid on the judgment.
(3) A "support enforcement proceeding" means any civil proceeding to enforce any judgment for payment of child support or maintenance and includes, but is not limited to, any income withholding proceeding under the income withholding act, K.S.A. 2018 Supp. 23-3101 et seq., and amendments thereto, any contempt proceeding and any civil proceeding under the uniform interstate family support act, K.S.A. 2018 Supp. 23-36,101 et seq., and amendments thereto.
(b) Except for those judgments which have become void as of July 1, 2007, no judgment for the support of a child shall be or become dormant for any purpose except as provided in this subsection. Except for those judgments which have become void as of July 1, 2015, no judgment for court costs, fees, fines or restitution shall be or become dormant for any purpose except as provided in this subsection. If a judgment would have become dormant under the conditions set forth in subsection (a), the judgment shall cease to operate as a lien on the real estate of the judgment debtor as of the date the judgment would have become dormant, but the judgment shall not be released of record pursuant to subsection (a).
(c) The time within which action must be taken to prevent a judgment from becoming dormant does not run during any period in which the enforcement of the judgment by legal process is stayed or prohibited.
History: L. 1963, ch. 303, 60-2403; L. 1973, ch. 238, § 1; L. 1984, ch. 147, § 14; L. 1985, ch. 115, § 54; L. 1988, ch. 218, § 2; L. 1990, ch. 207, § 2; L. 1992, ch. 103, § 1; L. 1995, ch. 257, § 8; L. 2007, ch. 174, § 6; L. 2012, ch. 162, § 80; L. 2015, ch. 53, § 4; July 1.
Section was amended twice in the 2007 session, see also 60-2403a.


Rev. Rul. 85-13: Is There a Limit to Disregarding Disregarded Entities?
Although the federal estate tax is not extinct, with the combined marital exemption now north of $10 million, it is an endangered species. Recently, Governor Cuomo signaled his intent — likely to be affirmed by State Republicans — to increase the New York estate tax exemption to perhaps the federal level. With the threat of high federal estate taxes no longer a concern for the vast majority of taxpayers, attention has turned to the income tax, which has enjoyed a resurgence under the Obama Administration. An important objective in estate planning is now to preserve the step up in basis at death. This will provide heirs with the ability to sell inherited assets without incurring a capital gains tax.
For the past decade or so, an arrow in the quiver of estate planners seeking to reduce eventual estate taxes has been to sell or gift assets to a grantor trust. The objective of the sale was to make a complete transfer for transfer (estate and gift) tax purposes, but to retain enough powers such that the transfer was incomplete for income tax purposes. The mechanism seemed to be perfect: appreciation of the assets sold to the trust was forever out of the grantor’s estate, and the grantor would remain liable (if he wished, since he could be reimbursed) for the yearly income tax liability. This would result in a tax-free ““gift” by the grantor to the trustee of the trust of the income tax liability of the trust. Trust assets would thereby grow unimpeded by an annual income tax. So far so good.
The catalyst that made possible the dichotomy in tax treatment for income tax and estate tax purposes was in substantial part the interpretation of the grantor trust rules in Revenue Ruling 85-13. There, the IRS found that the “sale” by the grantor of assets to a grantor trust was not a realization event for income tax purposes since the grantor was deemed to be making a sale to himself. The ability to draft a trust constituting a grantor trust for income tax purposes, yet be irrevocable, so that for transfer tax purposes the sale was complete, was the linchpin of the technique. Many candidates emerged for making a trust a grantor trust. The ability to borrow from the trust without adequate security (IRC §675(2))was one provision. Another was the ability to substitute assets of the trust in a nonfiduciary capacity for assets of equal value (IRC §675(4)(C)).
This latter “swap” power became the most popular provision to accomplish grantor trust status. The provision had another serendipitous benefit: if low basis assets had initially been sold to the trust, they could (presumably) later be swapped out with higher basis assets. This would enable the grantor’s estate to receive a valuable step up in basis at the grantor’s death. All seemed fine. With the federal exclusion now so high, selling assets to grantor trusts is now less common; gifting assets to such trusts is now in vogue. The purpose of the gift may now be to utilize the federal exemption of the surviving spouse — which now includes the ported DSUE amount — in order to remove appreciation from the estate of the surviving spouse. The desired objective of swapping out low basis assets later in the life of the surviving spouse is to achieve basis step up to fair market value at his or her death.
The ability to substitute assets and obtain a basis step up is lauded by numerous tax authorities. However, anecdotal evidence seems to indicate that few practitioners have actually undertaken such swaps; certainly, the IRS has not ruled on the issue, and no cases have discussed whether the swap works. Some would dogmatically maintain that the swap clearly accomplishes the tax objective of accomplishing an ameliorative basis shift. However, reliance on dogma itself in this context could be risky. How the IRS would learn of such a swap is debatable. Apparently, the swap would not be required to be reported on any tax return. However, one must assume, as is almost always the case, the IRS would find out. Given, then, the paucity of guidance on this issue, and its importance, a closer look at whether the technique is unassailable, is in order.
[a] power of administration is exercisable in a nonfiduciary capacity by any person without the approval or consent of any person in a fiduciary capacity. For purposes of this paragraph, the term “power of administration” means any one or more of the follower powers . . . (C) a power to reacquire the trust corpus by substituting other property of an equivalent value.
Although not drafted particularly clearly, Section 675 is stating that if any person acting in a nonfiduciary capacity, can direct any person acting in a fiduciary capacity, to substitute trust assets of equal value, the trust will be grantor trust, to the extent of the power. We note as an initial matter that the statute uses the term “substitut[e] property of an equivalent value.” It appears that Congress was not contemplating basis implications when drafting Section 675. However, there is no reason to believe that the same immunization against income tax would not also apply to the swap. This is why estate planners believe that the assets swapped will carry their respective bases with them.
Now, let us look at an example. Suppose in the context of a gift or sale to a grantor trust, the grantor takes back a promissory note bearing adequate interest at the applicable federal rate. Later on, someone acting in a nonfiduciary capacity directs the trust to substitute higher basis assets with the grantor. The rationale for the substitution is to preserve the step up. Is it clear that Revenue Ruling 85-13 and IRC §675(4)(C) unimpeachably allow the grantor to accomplish this tax result? Most have assumed that it would. However, if this assumption is wrong, then dire income tax consequences could ensue. It is therefore important to prove (or disprove) the validity of this assumption. To test the hypothesis, we first consult Revenue Ruling 85-13 itself. We next consider ancillary sources, such as rulings promulgated in the context of qualified personal residence trusts, court decisions, and Section 1031, which provides for tax-free exchanges of certain property in certain contexts.
A’s basis in the shares received from T will be equal to A’’s basis in the shares at the time he funded T because the basis of the shares was not adjusted during the period that T held them. See Rev. Rul. 72-406, a ruling involving the determination of the grantor’s basis in property upon the reversion of that property to the grantor at the expiration of the trust’s term.
Apparently, most planners have blithely assumed that the basis implications provided for in Revenue Ruling 85-13, which involved a loan, and a reversion, would also extend to situations involving a substitution. While perhaps not an implausible or unjustified assumption, the nexus of this perceived connection must be examined. Loans by their very nature do not constitute taxable events. The argument would apparently be that since a substitution of assets is also not considered a taxable event, the basis of assets received by the grantor in such a swap would be a substituted basis of those assets. However, the authority for treating a loan as a nontaxable event is doctrinal, whereas the authority for treating the swap as a nontaxable event emanates merely from IRS guidance.
Is it correct, or reasonable, to assume that the basis implications for assets received through an IRC §675(3) loan are identical to those that result from an IRC §675(4) swap? Further inquiry is necessary. A first line of inquiry will be to consider qualified personal residence trusts, which have spawned similar basis issues, and later, an austere Treasury response.
Qualified personal residence trusts (QPRTs), not yet quite in the dustbin of estate planners, but getting there, boast a statutory lineage. Also grantor trusts, they have been used to reduce gift and estate taxes. In creating a QPRT, the grantor transfers his personal residence to a trust, retains the right to live in the residence for a term of years, and makes a gift of the remainder interest. For the technique to work, the grantor must live to the trust term. If the term of the QPRT is 10 years, the grantor is deemed to make a gift of the remainder interest in the trust corpus to trust beneficiaries. Reflecting the lengthy term of the QPRT, the amount of the gift would presumably be small, since most of the value of the trust principal would be locked up with the retained life estate of the grantor. The residual gift would tend to be small, because of its low present value.
However, as interest rates have declined, the present value of the remainder interests created by QPRTs has increased, thereby resulting in larger gifts to remainder beneficiaries. This, coupled with the massive increase in the federal gift tax exemption, and the decline in residential values, has made QPRTs rather unattractive today in most estate planning situations. [Some estate planners still advocate the use of QPRTs, although those planners are in the distinct minority. Without unduly digressing, it should be noted that QPRTs do possess some attractive nontax attributes, such as asset protection.] Returning to our inquiry, we note that astute estate planners saw an opportunity to ameliorate adverse income tax basis problems by enabling the grantor of the QPRT to repurchase the residence prior to the expiration of the QPRT term. In response to a flood of grantors repurchasing residences to gain an increase in basis at death, Treasury promulgated Reg. §25.2702-5(c)(9) for trusts created after May 16, 1996.
This requirement prohibiting a sale or transfer prevents families using personal residence trusts or QPRTs from realize large income tax savings. If the grantor leaves the residence in trust until expiration of its term, the remainder beneficiaries will acquire the property with a carryover basis from the grantor, often leaving them with a large built-in gain. On the other hand, if the grantor were allowed to repurchase the residence just before the end of the term, more favorable tax results could be obtained. No gain would be recognized to the grantor on the repurchase, and at the end of the trust term, the beneficiaries would receive flat-basis cash. Further, the residence would return to the grantor, would be included in the grantor’s gross estate, and would receive a step-up basis under Code Sec. 1014.
What Treasury addressed in Reg. §25.2702-5(c)(9) is essentially a rather close variation of the problem we are addressing. Now we must ask the question: Is it plausible that IRS would not object to a swap of assets by the grantor shortly before death if the principal purpose was to create a basis step up? Revenue Rulings, now less common than they were in 1985, are pronouncements issued by the Service of its own accord. In contrast to Private Letters Rulings, taxpayers may rely on Revenue Rulings. (In practice, taxpayers rely on Private Letter Rulings as well). Assuming taxpayers can safely rely on Revenue Ruling 85-13, we then ask, does it unassailably support the proposition that the taxpayer may accomplish in the realm of a grantor trust swap what the Service forbade in the context of a QPRT? And even if it does, can the Service reverse itself; or worse, could Treasury enact regulations that could foreclose the technique? And if Treasury could so enact regulations, could those regulations be retroactive?
Ascertaining the likelihood of these various unpleasant scenarios should inform us of the risk we take should we advise our clients of the feasibility of substituting assets pursuant to IRC §675(4)(C) to achieve favorable basis results. Undeniably, Revenue Ruling 85-13, standing alone, clearly supports the proposition that an ill grantor may shortly before death swap out low basis trust assets in order to achieve a basis step up at death.
Treas. Reg. §25.2702-5(c)(9), which applies in the case of QPRTs, was a “fix” implemented by Treasury to stop a technique perceived by Treasury as abusive. Notably, the regulations do not themselves purport to alter the income tax consequences of the technique in the context of QPRTs — they only forbid the taxpayer from executing a trust that permits the forbidden transaction.
Presumably, were the taxpayer to violate the regulation and the IRS to learn of it, the Service could argue in Tax Court — perhaps with success — that the QPRT failed. Whatever tax consequences this conclusion would entail, they would certainly not be pleasant. Therefore, all but the most uninformed planners would draft a QPRT containing such language. If such language were to inadvertantly appear, prudence would dictate that the power should lay dormant, so as not to increase the risk already attendant with the errant provision. The Tax Court deciding such a case would not necessarily be required to decide whether the mere presence of the forbidden language in the QPRT — or an actual forbidden repurchase — would have achieved its intended result for tax purposes but for the regulation. Most likely, the Tax Court would not reach this issue, since the violation of the regulation forbidding the repurchase would suffice to decide the case. The question then becomes what would occur if Treasury attempted to impede the desired swap through the implementation of regulations, as it did with QPRTs which attempted to accomplish the same objective?
With the foregoing in mind, we return to IRC §675(4)(C), which provides that the grantor is treated as owner of any portion of a trust if any person in a nonfiduciary capacity exercises a power to “reacquire the trust corpus by substituting other property of an equivalent value.” Let us compare IRC §675(4)(C) with IRC §675(1) — the subject of Revenue Ruling 85-13 — which provides that grantor trust status will ensue where the grantor or a nonadverse party purchases, exchanges or otherwise deals with the or disposes of the corpus or income of the trust without adequate consideration in money or money’s worth. Since IRC §675(4)(C) uses the term “reacquire,” it must be the grantor to whom the statute is referring as the person who substitutes the assets. Are the income tax consequences of a later “substitution” of property comparable to the initial sale of property to the trust? If they are, does that similarity arise from doctrinal sources, such as the grantor trust rules themselves? Or, could Congress enact regulations seeking to curtail the desired tax result?
A grantor trust becomes a nongrantor trust when the grantor dies. Tax attorneys are sharply divided concerning the income tax consequences arising on the death of the grantor of a trust trust holding appreciated property. There are three camps: One camp, the majority, believes that no realization event occurs, and no basis step up results. The second camp believes that a recognition event occurs, a captial gains tax is imposed, and a basis step up occurs. The third camp, a distinct minority, believes that no realization or recognition event occurs, but that the beneficiares receive a basis step up. It is clear that no consensus exists as to what income tax rules govern the grantor trust when it becomes a nongrantor trust at the death of the grantor.
Similarly, no known adverse authority (by “authority,” we expand the definition beyond what the IRS considers as authority, to include tax attorneys) exists which considers the possibility that the IRS could reverse course and attempt to limit the QPRT-like technique which we find in a substitution of assets to achieve a basis step up. Yet as noted, the IRS or the Treasury could conceivably attempt to forbid this transaction, and could possibly make the rule retroactive without violating the Constitution. With that in mind, we next consider a swap of assets under IRC §1031. Section 1031 provides for nonrecognition of gain in the context of certain exchanges of property held for productive use in a trade or business or for investment. The statute and regulations governing like kind exchanges fastidiously require deferred basis to be later reported in the event of a taxable sale. Why should Congress be less concerned with basis consequences in the case of a swap of assets involving a grantor trust than in, for example, an exchange of assets under Section 1031? It is therefore Section 1031 that we shall turn for guidance as to how Congress views the taxation of swaps in other contexts.
Section 1031 enables taxpayers to sell assets and defer gain provided their investment continued unabated in identical, or nearly identical form. A formal examination is beyond the scope of this Note, and is, more importantly, unnecessary. One of the basic precepts of Section 1031 is that a taxpayer cannot exchange property with himself. This rule was articulated in Bloomington Coca-Cola v. Com’r, 189 F.2d 14 (7th Cir. 1951) where Coca Cola conveyed land and cash to a contractor in exchange for the construction of a bottling plant on other land owned by Coca Cola.
Consider as another example the rules governing exchange proceeds in a Section 1031 exchange. Even though the taxpayer is not deemed to be in constructive receipt of exchange funds for purposes of Section 1031 if a qualified intermediary is employed, the taxpayer is considered as receiving the exchange funds for other income tax purposes. IRC §468B, Treas. Regs. §1.468B. The point here is that while the basis consequences of the swap power may indeed be sanguine, one should not dogmatically assume such to be the case. Basis provisions for income and estate tax purposes are provided for in Sections 1011 through 1023 of the Code. Section 675(4)(C) makes no mention of basis.
The IRS issue no ruling with respect to the swap power in Section 675(4)(C) and any basis consequences attaching to such a swap. It is somewhat disconcerting to realize that we may have inadvertently assumed that the Service would forever interpret Revenue Ruling 85-13 in the manner to which we have become accustomed. Quite conceivably, the IRS could come to view these swaps as it did grantors who repurchased assets from QPRTs to gain a basis advantage. In conclusion, the Section 675(4)(C) power of substitution is an excellent choice for conferring grantor trust status on a trust. However, those who view the transaction as also conferring upon the grantor a later ability to shift basis may do so at their own peril. In this sense, Revenue Ruling 85-13 could be a Trojan Horse, inviting the taxpayer to reap substantial tax benefits only to incur unwarranted tax risks in doing so. Even if the IRS does not challenge the transaction, the victory — removing the appreciation from the grantor’s estate — may be pyrrhic if, as many believe, the estate tax is eventually eliminated.
This entry was posted in Asset Sales to Grantor Trusts, Estate Planning and tagged defective grantor trusts, disregarded entities, estate planning, federal estate tax exemption, grantor trusts, IRC section 675, irc section 675(4)(C), nongrantor trust, nys estate tax, Portability, qprts purchase residence, Revenue Ruling 85-13, sales to defective grantor trusts, sales to grantor trusts, substitution power. Bookmark the permalink.


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❶It means that there is a sacrifice that people ought to do.
And one of the most divisive texts in the Bill of Rights. The text was devised with the purpose of preventing Congress from having the authority to either prevent individuals from exercising their right to express their religious views or to prevent the press from publishing ideas that are truthful.
Many individuals are inclined to believe that government should not have anything to do with concepts like religion or freedom of the press. As a consequence, these respective people believe the First Amendment to function as a tool intended to assist the U. Soil Amendments and Yellow Bean. Sugar and leaf litter appeared to have an inhibitory effect, except in the area of root mass. Their study also found an inhibitory effect in treatments with municipal wastes and pulp mill wastes.
Similar to the results of this study, their tests found that horse and mink manure resulted in the greatest improvement in plant growth. However, Muenchang and associates found the sugar mill by-products improved the nitrogen fixing ability of plants by encouraging the development of certain bacteria on the roots. There are many field trials that are similar to those conducted in this study.
Tuber yield and size were not affected significantly by the application of straw mulch on potatoes Doring, et al. However, La Mondia and associates found that straw applied to potatoes increased yield in tubers exposed to certain potato pathogens. First Amendment Rules for the.
The media has brought many important issues to life for the American public. For example, during the American civil rights movement, many areas of the country that had been hesitant to endorse full equality for African-Americans were horrified when they saw their fellow Americans being beaten simply for demanding their rights. The media was also highly influential in mobilizing the American public against the Vietnam War. Pictures showed more powerfully than words the terrible carnage and suffering generated by the conflict and the lack of progress that American military involvement was generating in Vietnam, despite the loss of many lives.
Conversely, the media has also had a highly negative influence upon American opinion when it distorts the facts, such as when it inflamed opinion during the Spanish-American War and the McCarthy era, causing Americans to believe the propaganda disseminated in ostensibly objective venues.
The media can also have a more…… [Read More]. Right to Privacy 1st Amendment the Parameters. One of the amendments that seek to protect the private rights of citizens is the First Amendment.
However, controversies have arisen that have required the Supreme Court to impose limitations on an individual who is exercising his or her rights under the First Amendment. The First Amendment states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances" U.
As stated in the First Amendment, one is…… [Read More]. Fourth Amendment Issues and the. The NSA had been illegally investigating several journalists and even violating their privacy by monitoring their telephone use through systems and capabilities designed for use against terrorist suspects only.
Fourth Amendment constitutional rights prohibit any such use of surveillance without judicial authorization, typically, a search warrant or wire tap warrant issued after a formal presentation of evidence and the establishment of probable cause, as required by the original text of the Fourth Amendment Schmalleger, According to the accounts published, the NSA specifically targeted journalists known to have been critical of the presidential administration of George.
Bush, which may raise other significant constitutional problems even beyond the Fourth Amendment issues Scmalleger, As pointed out by national security expert Randall Larsen , one of the main problems with the so-called ar on Terror as conceived by the former presidential…… [Read More]. Fourth Amendment the Right of the People. Fourth Amendment "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized" Cornell University Law School.
As with a preponderance of Constitutional issues the meaning of the Fourth Amendment has undergone an evolvement from its original intent and purpose as set forth in its composition by the founders and inclusion in the Bill of Rights.
The Supreme Court in its role as Constitutional explicator has addressed the scope and boundaries of the…… [Read More]. Constitution that protects everyone's rights. This has influenced the way that the criminal justice system is interacting with defendants and the tactics that are utilized by law enforcement when conducting investigations. To fully understand how this is impacting society and legal proceedings requires studying various sources.
This will be accomplished using academic information i. In the future, this paper will contribute to a greater understanding as to how it requires maintaining a balance in protecting individual rights and giving the government effective tools for enforcing the law. McInnis, Lively, Body The Fourth Amendment is designed to provide Americans with protections against unreasonable search and seizure. It has several different provisions that have been subject to various legal interpretations to include: Billboards and the First Amendment.
First Amendment of the U. Constitution guarantees to us freedom of speech - promises to each citizen and resident of the United States that the government will not tell us what we can or cannot say. However, there are important exceptions to this general condition: Not all speech is equally protected. This paper examines one of those arenas in which greater-than-usual restrictions are placed upon what people may say and the way in which they may say it. Billboards, as a very public example of commercial speech, are restricted in ways that a person standing on a street under a billboard talking to her friend is not.
Advertising is indeed protected by the First Amendment of the U. Moreover, even in federal-level litigation, the amount in controversy required for most suits means that many litigants lack standing to proceed in a federal court, much less have a jury trial.
What this amendment demonstrates is that the process for amending the Constitution has failed to keep up with the changes that are warranted by that process. To work around the fact that the modern court system would grind to a halt if every person with a twenty dollar dispute were entitled to a jury trial, the Courts have interpreted this amendment to mean that people are entitled to a jury trial if they would have been entitled to one under the common law.
However, that is clearly not adhering to the…… [Read More]. Jehovah's Witnesses are a good example of a religious entity that claims the right the First Amendment freedom of religion clauses. Jehovah's Witnesses may act as a thorn in many families across America, however, they have been the root cause of much of our freedom of religion laws.
Jehovah's Witnesses brought many cases of religion to the court system in the s and s. Before then, the court system handled very few court cases regarding freedom of speech and freedom of religion. These cases formed the foundation of the First Amendment protection of all citizens. The Court has attempted to create and implement a system for determining church and state decisions.
This is accomplished with a three-part test for laws dealing with religious establishment. The determination if the law is constitutional is this: It should not advance or inhibit religion. Finally, it cannot foster…… [Read More]. First Amendment and Television The subject of television and censorship has long been an issue of heated debates across the country. On June 8, James Madison introduced his version of the speech and press clauses in the House of Representatives, stating, "The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable" Freedom pp.
The special committee rewrote the language somewhat, adding other provisions from Madison's draft,…… [Read More]. The freedom of speech has also come under attack, most recently when a reporter was jailed for refusing to expose her sources. The amendment mentions "free exercise" of the right to say what one wishes or print what one wishes; however, if a person was to publicly endorse the assassination of the President, that person would be quickly arrested and most likely thrown in jail, an act that stands in deep conflict with the idea of "free exercise.
The National Rifle Association NRA highly endorses the 2nd Amendment and goes to great lengths to lobby Congress for less restrictive measures related to owning specific kinds of firearms, such as machine guns, AK's and other high-powered weapons. With handguns, a good number of legal efforts in recent years…… [Read More]. With their closely contested decision in the case of Citizens United v. FEC, the high court's conservative members have effectively shattered existing precedent regarding the ability of corporations to channel shareholder funds to political campaigns.
In their effort to protect the duly granted right of individuals to contribute money as a form of political speech and expression, the justices in the majority have effectively opened a Pandora's box of unintended consequences.
By extending the rights held by individual citizens of this nation to corporate conglomerates and multinational entities, the Roberts court has redefined the menace of judicial activism once…… [Read More]. Hobby Lobby and First Amendment. On the Hobby Lobby case, the First Amendment was challenged about whether it protected the religious beliefs of an employer when it comes to the decision not to pay for insurance meant for contraceptives. Phelps case was also related to religious picketing where the issue of sidewalk picketing was under the scrutiny of whether it was outrageous.
The WBC church had held a picketing in a funeral and was found guilty of saying outrageous comments in a funeral. However, the Supreme Court of United States in an decision argued that the church was constitutionally protected to say whatever they wanted as far as they did not affect the ceremony. It was established that they had avoided the ceremony and had not been involved directly in stopping the ceremony Zipursky, First Amendment and Broadcasting Content.
First Amendment rights are not absolute, particularly in regards to advertising. For example, there has been a great deal of pressure to regulate advertising directed at children that promotes unhealthy junk food. Called the Central Hudson test, it says that such speech must be truthful and not 'actually or inherently misleading'" and it has been argued that much of commercial advertising targeting children takes advantage of a credulous consumer's inability to tell the difference between truth and fiction Bittman, , par.
In this instance, however, the objections raised to our new advertising campaign are not targeted at children. Rather, the concern is merely that children may see inappropriate material, even if it is not intended that they purchase the product. In the past, the U. Supreme Court has allowed censorship of certain types…… [Read More]. Fourth Amendment Protection The Homeless. Yet, such a police officer would not be able to summarily search or seize on the premises of a regular home.
The homeless person's effects are; therefore, protected from unlawful search and seizure. The Problem with Pretext. Greenhalgh, and Mark J. Nineteenth Amendment to the Constitution. It is interesting to note that members of Congress would introduce this bill every year for 41 years, with exactly the same wording, until it finally passed Linder.
One big step in the process were the states in the West who allowed women to vote. In , Wyoming joined the union, and women had been voting there for many years. It is also interesting to note that it was the Senator from a western state, California, who first introduced the bill in Kobach.
In , Theodore oosevelt, running for the Bull Moose Party, included women's voting rights in his party platform, which brought more positive attention to the matter. Thousands of women worked throughout that time to help gain support and understanding…… [Read More]. Personhood Amendment in Mississippi Judith Jarvis Thomson's essay "A Defense of Abortion" and the proposed Mississippi Constitutional Amendment In Mississippi, a bill that advocated an extreme position on abortion rights was submitted to voters.
It was ultimately rejected, despite the fact that Mississippi is a very conservative state. The constitutional amendment would have declared a fertilized human egg to be a legal person, not only equating abortion with murder under the law, but also making certain forms of birth control illegal Eckholm It would have made using birth control, including IUDs and morning-after pills, which operate by detaching the fertilized embryo from the mother's womb, a legal for of murder.
Previous regulations of abortion placed restrictions upon when and where women could get abortions, or created parental consent laws.
This amendment simply stated when life began: Even embryos in fertility clinics could be destroyed, according to the…… [Read More]. Th Amendment to the U. Constitution "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Constitution" Abraham Lincoln's "Emancipation Proclamation" stated "that all person's held as slaves' within the rebellious states 'are, and henceforward shall be free. However, Lincoln's support of, and the adoption of the 13th amendment in , seems to prove this wrong; Lincoln's real motivation was the end of slavery in the United States.
But Lincoln issued his "Emancipation Proclamation" in the middle of a war, using his emergency war powers, and it was limited…… [Read More]. Implication of the Amendments. Constitutional Amendments Effective strategies after the 13th and 14th amendments The 13th amendment to the constitution was widely welcome by many Americans and the world at large as it gave the surety of freedom from slavery in the legal standing of it.
The most famous and important section of the Declaration of Independence read that "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable ights, that among these are Life, Liberty and the pursuit of Happiness. Further, the 14th amendment came into place to entrench and ensure the equality among the Americans Hole.
It was one of the…… [Read More]. Fourth Amendment Stipulates That No. The government was triggered for the sake of the people. People had honor and dignity. Given the ambitions of man and man's love for power, it is all too easy for man to rise to positions of power and dominate others. The Fourth Amendment is important in that it protects the honor and asserts the significance of even the 'least' individual in the country.
In this way, the Fourth Amendment prevents the situation of a Fuhrer or Third Reich happening on this soil since certain safeguards are put into place that have to be kept at all costs. Further indications of the importance of this Amendment can also be seen from the instance when Jentick, an Earl of Camden, was indicted for attacking both government polices and the monarch.
His private papers were ruffled and…… [Read More]. Fourth Amendment to the United. In order to enforce the revenue laws, English authorities made use of writs of assistance, which were general warrants authorizing the bearer to enter any house or other place to search for and seize "prohibited and uncustomed" goods, and commanding all subjects to assist in these endeavors. When, upon the death of George II in , the authorities were required to obtain the issuance of new writs, James Otis, who attacked such writs on libertarian grounds and who asserted the invalidity of the authorizing statutes because they conflicted with English constitutionalism, led opposition.
Otis lost and the writs were issued and utilized, but his arguments were much cited in the colonies not only on the immediate subject but also with regard to judicial review. Fourth Amendment and Court Jurisdiction Based on. Constitution citizens have a right to 'be secure in their persons'. At Stevens, dissenting LectLaw, The definition implies that people cannot be detained or intruded upon by police or other law enforcement without a reasonable cause.
It is a protection to acknowledge a citizen's rights under a higher authority or power that they must submit to. The Constitutional intent may be at odds with law enforcement because it protects the people by prohibiting the law to intrude even if the person s is a known criminal unless there is a reason Wolfish, U.
At Stevens, dissenting Lect Law, For law enforcement to seize or detain a citizen there must be a reasonable cause. There are many court cases that have precedent…… [Read More]. The notion of fairness due process is evident throughout a criminal proceeding. Because one is presumed innocent, most accused are allowed to go free on bail while awaiting trial. This is directly based on the fact that the accused is presumed innocent and therefore cannot have their liberty removed without being found guilty of a crime.
Due process is also the root of the discovery rules in the United States. Only by having this information revealed, can a person adequately prepare to defend themselves against either a civil or criminal allegation. In other words, it is only fair. If one is not aware of the specific allegations and proposed evidence, one cannot possibly prepare an adequate defense. The impact of the 14th Amendment also comes into play when applied to who can…… [Read More].
Gun Control and First Amendment. It would also be highly recommended that there are designated buffer zones between the convention and any designated First Amendment Zones.
Additionally, these zones must be away from any other public areas. If they are too close to public areas, like malls, they may inadvertently disrupt the flow of the public and endanger passersby. There are also recommendations for general policy of the possible disruption of protest groups at the DNC event. If officers were to commence in disrupting the protest groups, it would be absolutely necessary to show they were acting in accordance with the misdemeanor violation of Section Essentially, this would mean that officers would have to prove more than three individuals were acting in a way to disturb the peace, rather than to peacefully assemble.
It is true, "no actual breach of peace needs to take place" Unlawful Assembly Dispersal Order. Consequences of Police Violating the 4th Amendment. Fourth Amendment Violations 4th Amendment Violations Fourth Amendment Violations and Recourse The Fourth Amendment to the Constitution of the United States provides for "the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures…," but says nothing about what a court should do if those rights are violated.
Amendment 4" The Supreme Court of the United States has developed what is known as the "Exclusionary Rule," which bars any evidence obtained through an unconstitutional search from trial against the defendant. But his is not the only recourse for those who have been the victims of unconstitutional searches and seizures. The court has also decided that in certain cases, the victims may sue the authorities for damages in civil court.
It was in , during the case of Mapp v. Ohio where the Supreme Court set the precedent that any…… [Read More]. The 10th amendment is "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people" Mcpherson, , p. When seeing how these two laws work not in conflict of each other, but together, it can be hard…… [Read More]. Constitution Laws regarding the use and safety of weapons in the United States date back to , when Georgia's ban on handguns was ruled unconstitutional.
Subsequent legislation has been scrutinized by courts -- including the High Court -- and in numerous cases the rulings have supported a citizens' right to keep and bear arms except in certain cases. In District of Columbia v. Heller, the last decision offered by the Supreme Court in , a law banning handguns was struck down based on the Second Amendment.
How this ruling will ultimately affect states and local governments remains to be seen, but this paper carefully reviews opinions from the majority and minority on the Court. This paper also presents what the Court considers enumerated rights and how the gun lobby might be impacted by the ruling -- as well as those advocating for gun safety. Scholarly, peer-reviewed…… [Read More]. Sixth Amendment Right to Counsel Applies to. Sixth Amendment right to counsel applies to everyone, but it can be difficult to ensure that it is correctly applied to defendants with disabilities.
That has led to major problems, and has been addressed by several cases, including Faretta v. California , McKaskle v. Wiggins , Godinez v. Moran , and Indiana v. These cases showcased the issue that the standard for competency to stand trial was linked to the standard for competency to represent oneself. While that seems to make perfect sense, it is actually quite harmful to people who have disabilities, because they may not be able to correctly represent themselves and cannot always be held to the same standards that would be seen with people who do not suffer from any kind of disability.
The right to counsel is highly important, because not having counsel can make it very difficult for a defendant to assert…… [Read More]. Amendment The Sixth Amendment to the U. Constitution offers a set of protections from a potentially overbearing criminal justice system. The amendment reads as: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense[footnoteRef: Cornell University Law School ] The law protects individuals from allegations of criminal conduct that are false by providing them a public trial by their peers.
The concept of a jury trial is not a new phenomenon and has its roots that date back to…… [Read More]. Analyzing the Forth Amendment. Like most fields in U. Broadly, it was created for limiting governmental powers and their capacity of enforcing legal actions upon citizens 4th Amendment - constitution -- Laws. Amendment IV was implemented in immediate reaction to the historical writ of assistance's abuse.
This writ was a sort of general governmental search warrant employed in the American evolution's era. Amendment IV…… [Read More]. Enactment of the 19th Amendment XIX. Amendment XIX Enactment of Amendment XIX and its contribution to the achievement of equal female rights The enactment of the 19th amendment empowered women on many fronts. They were allowed to vote and consequently seized the opportunity to influence political decisions. The enactment saw the legalization of contraception and even abortion.
There was economic empowerment too in the process. The more common availability of reproductive services and education doors increasingly opening up, more women enrolled in education institutions sought higher education. These developments also ushered in an era in which women began to occupy sensitive professional positions in the society.
The amendment aimed at giving hope to all women. African-American women sought to link suffrage to race and gender across the country; so as to make sure that the benefits were not just paper-based policies, but practical processes for actual empowerment.
Indeed, the African-American women believed that taking part in…… [Read More]. First Amendment including kind cases The First Amendment is imbued with a degree of preeminence that supersedes virtually all other amendments of the United States Constitution, largely because it was the first of many. As such, its importance to the country and to protecting the rights of its citizens is largely self evident.
Perhaps one of the most cogent testimonies to this fact is the numerous times this amendment has been cited in litigation enacted in this country. These many cases allude to the notion that the rights guaranteed by the First Amendment, which are stratified in accordance to religion, freedom of speech, and lawful, peaceable assemblage, are vital to some of the most fundamental principles upon which the country was founded.
An examination of the most salient of these court cases, as well as of the various components of this amendment, largely indicates the veracity of the preceding statements. Home Topics Government Amendment Essays. A look at the Bill of Rights: Protecting the rights of Americans. A companion to the United States Constitution and its amendments. The Bill of Rights: Politics, religion, and the quest for justice. An Introductory Text for the 21st Century.
Summaries of leading cases on the Constitution 14th ed. The complete idiot's guide to the U. Encyclopedia of the Supreme Court of the United States. A companion to the United States Constitution and its amendments 5th ed. Amendments 14 15 and 19 View Full Essay. Works Cited Wilde, Oscar. The Picture of Dorian Gray. Notes for the Underground.
Cornell University Law School. Amendment One will do more harm than good. There can be very little to disagree with Powell about why should hand guns be allowed in society when they have caused so much death within a society. However, Levinson also argues that it may be prudent to suggest that times have changed then the outmoded arguments are just that why not allow citizens to have weapons to protect their homes from others who have weapons illegally.
Sadly within this argument there can be no ending, it is always a case of stipulating where the clarification of where gun control stops. Move the law once and it will change again and again. An Afro- Americanist reconsideration" we can see the argument that the debate that has been argued for decades will never end. The second Amendment is a controversial act that will never be finalised until a case illustrates the need for a change.
This will probably never happen for the second amendment. However as the debate for gun control rages so to will the debate over the amendment which has been fought and discussed not only in the courts but also in the press and the senate. Can there be an amendment to the militia term or will it remain just so? If a change happens how it affect the community and the laws? In this the laws will be more severe, the penalties for murder and death will have to be extreme and severe, there will be more guns on the streets and probably a moving of the goal posts on what guns are carried.
From hand guns to semi-automatic and finally to fully automatic weapons. Jeff Cooper's Commentaries Vol. Can Gun Control Work? The Development of the American Experience. References Cornell University Law School. Available online at http: Works Cited Current, Richard.
The Woman and her Work. Columbine High School Incident. Accessed 5 October Works Cited Abrams, Jim. House Ok's right to protect sources: White House rips media shield bill.
Schwarzenegger Approves Condor Protection Bill. From Trafficking to Treatment," Hamilton Books, Because the First Amendment marks the U. In many countries even today, religious minorities are kept from reaching high positions in any career. As a result of this discrimination, that country fails to make use of all the extraordinary people that it might have. Consequently, these talents immigrate to countries where their talent will actually be appreciated.
One instance of this advantage is Sergey Brin, co-founder of the expanding technological company Google. The history of Brin begins in Russia, where his Jewish parents are denied any privileges or rights. In the new environment, Sergey was able to demonstrate and contribute to society with his talent in engineering and computer science by co-founding Google, and internet search engine. To this day, Google helps millions of people by providing and storing information with the most advanced technology of this era.
The First Amendment not only enables our nation to make full use of talent and potential, but also attracts intelligence from foreign nations. Finally, the First Amendment increases the scope of our view and beliefs, enabling us to understand more than what is told or seen.
In many strictly religious communities, individuals are exposed to only what they are told; consequently, they unknowingly form a biased view of a certain subject. In World War II, Hitler attempted to influence the mindsets of children by modifying certain parts of information in the history textbook; this resultantly made Hitler seem like a hero during the war.
Fortunately, in the U. Because of the religious diversity that this country gathers, we are exposed to all viewpoints of a cause, and this, in turn, allows us to use our own judgments to make decisions. In many aspects, the First Amendment to the Constitution has contributed greatly to the nation; indeed, this law has been the cause of many great events.
This law also strengthens national pride by advocating for freedom. The First Amendment not only strengthens the power of our country, but also holds great importance in human and religious rights. Make it worth watching. Which of your works would you like to tell your friends about? These links will automatically appear in your email. If you have a suggestion about this website or are experiencing a problem with it, or if you need to report abuse on the site, please let us know.
Argumentative Essay: Gun Control Violates The Second Amendment of the Constitution - Civilian ownership of firearms has for more than two hundred years been the very cornerstone upon which the liberty of the public has been supported.
Mar 28, · The Equal Rights Amendment Essay What could be more important than the equality of rights for all American citizens? Women have tried without success for 80 years to be acknowledged as equals in our Constitution through an Equal Rights Amendment (ERA).
The First Amendment Essay Words | 5 Pages. The First Amendment The 1st Amendment forbids Congress from enacting laws that would regulate speech or press before publication or punish after publication. At various times many states passed laws in contradiction to . Amendments essays Amendment 2: The second amendment gave the people the right to own an "arm" for protection of themselves and their country. Amendment 3: The third amendment says that soldiers are not allowed to stay at a citizen's residents without the owner's consent.
Essay about Controversy about Second Amendment The Controversy of the Second Amendment of the Constitution words ( double-spaced pages) Red (FREE) I. INTRODUCTION: The Second Amendment to the Constitution(Second Amendment) of the United States of America(USA) is one of the most controversial. The First Amendment Essay Examples. total results. The Many Misconceptions About the Personal Freedom in the United States. 2, words. 5 pages. Civil Rights of American Citizens in the US Constitution. 1, words. 2 pages. The Controversial Debate Over the .

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This power was claimed and exercised by courts of equity, as all their powers were to enable them to supply a manifest insufficiency of the law; and the common principle of equity that it will not give relief where the plaintiff has an adequate remedy at law, is applied to specific performance, (aa) But as it would be obviously and extremely inexpedient to have two independent jurisdictions, one antagonistic to the other in its principles and its operation, equity has always preferred and professed to "follow the law."(b) * Nor was this profession insincere, or disregarded in practice; but the application of it has been attended with much difficulty. To "follow the law," meaning thereby to go only where that went, and do only what that did, would destroy the peculiar ability of the court of equity. To oppose and set aside, with direct contradiction, the rules and decisions of the law, would be open to still graver objection. And to avoid these extremes, - not to violate the law but to fulfil its purposes, - and to supply those wants which render its administration of its own principles imperfect, is the true purpose of equity; and it is equally important and difficult.
(a) Treatise on Equity, ch. 1, § 4. The jurisdiction to decree specific performance of contracts, unlike most other branches of equity, is said not to have had its origin in the Roman law, but to be purely the invention of the English clerical chancellors. 1 Spence, Eq. Jur. 220, note (f). And to its exercise by the Court of Chancery in England, one of her most distinguished chancellors, Lord St. Leonards, has attributed that good faith which prevails among the English people in a degree not found in many other countries. See Lumley v. Wagner,1 De G. M. & G. 604, 619,13 Eng. L. & Eq. 557. He had made a similar observation when Lord Chancellor of Ireland. French v. Macale, 2 Drury ft W. 273.
(aa) Pennsylvania, etc. Co. v. Delaware, etc. Co. 31 N. Y. 91; Scott v. Billgerry, 40 Miss. 119; Columbus, etc R. R. Co. v. Watson, 26 Ind. 50; Jones v. Newhall, 115 Mass. 244.
(b) Equity in decreeing specific performance does, as a learned writer has remarked, but carry out the principles of the common law; giving that remedy which the courts of common-law would give if their mode of administering jus-See were adapted to the case. Mitf. PI.
118. And see Alley v. Deschamps, 13 Ves. 228. What is aimed at is the exact accomplishment of the intention of the parties. French v. Macale, 2 Drury & W. 272.
(c) See 2 Story, Eq Jur. § 724, n. 1.
(d) Lord Eldon, Ch., in White v. Damon, 7 Ves. 35 The conditions which should be fulfilled to entitle the plaintiff to a specific performance are stated very comprehensively and clearly by Lord Redesdale, Hernett v Yeilding, 2 Sch & L. 653-555. And the whole subject is fully considered in Willard v. Tayloe, 8 Wall. 557.
(e) Watson v. Marston, 4 De G. M. & G 230, 31 Eng. L & Eq. 167; Mortlock v. Buller, 10 Ves. 308, 1 Fonbl. Eq. B. 1, § 9, note (i); King v. Hamilton, 4 Pet 311; Waters v Howard, 1 Md. Ch Dec 112, 8 Gill, 262; Hennessy v. Wool worth, 128 U. S. 440; Blake v. Flatlev, 44 N. J. Eq. 228. The discretion exercised by a court of equity, when it refrains from executing a contract, is certainly not an arbitrary, but a judicial discretion. If it is a case proper for a specific performance, the court is not at liberty to refuse to grant it. This is what appears to have been the meaning of Sir William Grant, when he said: "Supposing the contract to have been entered into by a competent party, and to be, in the nature and circumstances of it, unobjectionable, it is as much of course in this court to decree a specific performance, as it is to give damages at law." Hall v. Warren, 9 Ves. 608. And see Bennett v. Smith, 10 Eng. L. & Eq. 274, 16 Jur. 422, per Turner, V. C.; Daniel v. Frazer, 40 Miss. 507.


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How Does Frye Currently Work in Florida?
General Acceptance Defined - And Confused?
What is the Future of Daubert in Florida?
Science represents the promise of a judicial system that consistently finds the truth and fairly metes out justice in every case. From DNA evidence1, to neutron activation analysis, to radioimmunoassay analysis2, to toxic torts, science is the key to convicting dangerous criminals which previously had to be freed and to placing liability for disease causing chemicals in cases where victims would previously have gone uncompensated. The unremitting danger that keeps this scientific utopia from becoming a reality is that science, with its complexity and novelty can be easily misevaluated, or worse - faked. Equally hazardous is our reliance on science as a black box containing all the solutions we need; while the science present in a case may be legitimate and properly interpreted, it could still be inadequate to yield the answers we ask of it. Today, judges almost need an engineering degree along with their law degree to fully understand and evaluate the scientific methods and results attorneys are proposing to show juries. This is the difficult task before the judicial gatekeeper. This series of essays will attempt to address these important issues and provide some thoughts as to how judges around the nation are dealing with their role as gatekeeper. What follows is a brief synopsis of the judge’s role as a judicial gatekeeper in Florida.
In 1923, the D.C. Circuit announced its landmark decision about expert opinion testimony based on novel scientific procedures in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Frye became the federal standard for judges to apply in evaluating scientific evidence. In Frye, a defendant in a murder trial attempted to show his innocence by using a lie detector test that measured systolic blood pressure. The court excluded the evidence, reasoning that the lie detector test was unreliable because the scientific principle upon which it was based was not "sufficiently established to have gained general acceptance in the particular field in which it belongs."3Id. at 1014. The implication is that one "expert" scientist testifying to the accuracy of the lie detector would not be enough, a large community of scientists must accept the test in order for the judge to allow the jury to hear the evidence. In Florida, the Frye general acceptance standard was specifically adopted in the context of a lie detector test in the 1952 case Kaminski v. State, 63 So. 2d 339 (Fla. 1952).4 Since then, all novel scientific evidence in Florida has been held up to the Frye standard.
When the Federal Rules of Evidence were enacted in 1975, they liberalized the attitude toward the admission of evidence by giving trial judges much broader discretion than they previously had. Rule 104(a) allows the judge to determine whether an expert can testify, and Rule 702 guides this determination by requiring the judge to decide whether the testimony will aid the jury's factfinding and whether the witness is qualified as an expert. Finally, Rule 403 allows the judge to exclude evidence if its likely prejudicial effect outweighs its probative value. The question was then to what degree the arguably conservative Frye "general acceptance" standard survived the enactment of the more liberal Federal Rules of Evidence.
This question was answered in the 1993 case, Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993) (where the plaintiffs sought to introduce evidence that birth defects had been caused by mother’s ingestion of the anti-nausea drug Bendectin). The Court held that Rule 702 did in fact supersede the Frye standard, and adopted a new standard to instruct judges on their gatekeeping role. This new role requires from the judges a two step process to determine the reliability and relevance of the evidence: "[a] preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue."5 The Court presented a non-exhaustive list of five factors a court can weigh when deciding whether to admit the evidence: (1) whether the theory or technique is testable or falsifiable, (2) whether the method has been subjected to peer review, (3) whether the rate of error is too high, (4) the existence and maintenance of standards controlling the technique’s operation, and (5) whether the method has received "general acceptance."6 Here "general acceptance" becomes one of many factors the court can choose to consider.
Significantly, Florida’s own rule of evidence concerning expert testimony, Rule 90.702, is nearly indistinguishable from the Federal Rule of Evidence 702 (which superseded Frye).7 However, Florida courts have not interpreted Rule 90.702 as superseding Frye. Instead, Florida has continued to embrace the Frye general acceptance test, specifically rejecting Daubert’s relevancy / reliability approach. This rejection occurred shortly after the Daubert decision in the context of a criminal trial in the case of Flanagan v. State, 625 So. 2d 827 (Fla. 1993). In Flanagan, the prosecution sought to introduce profile testimony showing that the characteristics of home environments where child abuse commonly occurs were present in Flanagan’s home. Id. at 828. This testimony was rejected when the court found after a review of the relevant academic literature that "sexual offender profile evidence is not generally accepted in the scientific community and does not meet the Frye test for admissibility." Id. In a footnote, the court dismisses the impact of Daubert without much explanation: "We are mindful that the United States Supreme Court recently construed Rule 702 of the Federal Rules of Evidence as superseding the Frye test. [citing Daubert] However, Florida continues to adhere to the Frye test for the admissibility of scientific opinions. Stokes v. State, 548 So. 2d 188 (Fla. 1989)." Id. at n2.
First, the trial judge must determine whether such expert testimony will assist the jury in understanding the evidence or in determining a fact at issue.10 Ramirez at 1167.
Second, the trial judge must decide whether the expert's testimony is based on a scientific principle or discovery that is "sufficiently established to have gained general acceptance in the particular field in which it belongs."11Ramirez at 1167.
[Third] . . . is for the trial judge to determine whether a particular witness is qualified as an expert to present opinion testimony on the subject at issue.12 Ramirez at 1167.
. . . . Fourth, the judge may then allow the expert to render an opinion on the subject of his or her expertise, and then it is up to the jury to determine the credibility of the expert's opinion, which it may either accept or reject.13Ramirez at 1167.
These four steps are the basic regime applying Florida statutory and case law. Some of the nuances underlying these steps have been fleshed out in cases subsequent to Ramirez.
Brim, 695 So. 2d at 272.
Arguably, the Court does seem to blur the lines between the "general acceptance" standard and Daubert when it states that the quality (relevance / reliability) of the evidence must be considered along with the quantity (general acceptance) of scientists supporting the procedure.
Florida has given precendential value to previous Frye decisions through judicial notice. For example, in Hayes v. State, 660 So. 2d 257 (Fla. 1995), the Supreme Court of Florida took judicial notice that that the first step of the DNA testing process, if conducted properly, would satisfy the Frye test.17 This first step applies molecular biology and chemistry to indicate that two DNA samples look the same.
In Florida’s Frye test, the burden is on "the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts at hand." Ramirez 651 So. 2d at 1168. Additionally, general acceptance must be established by a preponderance of the evidence. Id.
When reviewing Frye decisions, Florida uses de novo review to examine lower court evidentiary determinations.18 This was decisively determined when the Florida Supreme Court in Brim agreed with the first district’s conclusion in Vargas that the standard of review should be de novo instead of abuse-of-discretion: "[An abuse-of-discretion standard] would prohibit an appellate court from considering scientific material that was not part of the trial record in its determination of whether there was general acceptance within the relevant scientific community." Brim 695 So. 2d at 274. One of the main reasons cited for making the review so comprehensive is the possibility that Frye determinations could become the law of the jurisdiction, therefore, to use a more deferential standard could lead to inconsistent treatment of similar claims. Id.
[P]recisely which field of the "scientific community" must find the evidence acceptable?
Assuming such a field is identifiable, what percentage of that "community" must find the evidence acceptable to satisfy the "generally accepted" standard?
These issues are not easy to resolve; however, like the science itself, the law of judicial gatekeeping in Florida will continue to evolve and improve to meet the challenges of the next century. With debate and wisdom, we may eventually find the way to bridge the gap between scientists and judges.
1 Vargas v. State, 640 So. 2d 1139 (Fla. 1st DCA 1994) (where the court sustained a challenge to FBI DNA population frequency statistics based on contrary expert evidence and judicial opinions from other jurisdictions to show the data was not generally accepted in the scientific community).
2 Bass v. Florida Department of Law Enforcement, 627 So. 2d 1321 (Fla. 3d DCA 1993) (where the court held that the exclusion of expert testimony proffered by a county employee to explain how a false positive reading for cocaine could have been obtained on a urinalysis test was in error because radioimmunoassay analysis of human hair is generally accepted in the scientific community).
3 In addition to general acceptance, "[t]hree other grounds were commonly used to support the denial: that polygraph results would be 'unduly persuasive' to juries, that admitting the results would lead to a time-consuming and confusing 'trial of the lie detector,' and that polygraph results are not accurate." James McCall, Misconceptions and Reevaluation - Polygraph Admissibility After Rock and Daubert, 1996 U. Ill. L. Rev. 363, 369 (1996).
4 Since 1952, polygraph results have been held per se inadmissible as a matter of law in Florida based on their failure to satisfy the Frye general acceptance test.
7 Compare FLA. R. EVID. 90.702 (1996), "If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial." with FED. R. EVID. 702 (1996) "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."
8 For a more thorough discussion of this issue see infra, "Is Daubert a Liberalizing or Constraining Change from Frye?"
9 In Ramirez, the court reversed defendant's murder conviction because defendant was not allowed to present evidence at a pre-trial hearing refuting State's evidence of reliability of a test that connected knife marks on cartilage to a knife linked to the defendant.
10 Section 90.702, FLA. STAT. (1993) (adopted by the Florida Supreme Court in In re Florida Evidence Code, 372 So. 2d 1369 (Fla. 1979)).
11 Frye, 293 F. at 1014. Adopted in Bundy v. State, 471 So. 2d 9, 18 (Fla. 1985), cert. denied, 479 U.S. 894; Stokes v. State, 548 So. 2d 188, 195 (Fla. 1989). Reaffirmed in Brim v. State, 695 So. 2d 268 (Fla. 1997).
12 Section 90.702, FLA. STAT. (1993).
13 Wuornos v. State, 19 Fla. L. Weekly S455, S459 (Fla. Sept. 22, 1994) ("The finder of fact is not necessarily required to accept [expert] testimony.").
14 People v. Dalcollo, 699, N.E.2d 378, 387 (Ill. App. Ct. 1996).
15 People v. Guerra, 690 P.2d 635, 656 (Cal. 1984).
16 People v. Leahy, 882 P.2d 321 (Cal. 1994).
17 For more information about judicial notice in Daubert hearings, see infra, "Daubert Hearings and Precedent."
18 For more information about standard of review in Daubert hearings, see infra, "Appellate Review of Daubert Hearings."
19 Although this is a view shared by many plaintiff and defense lawyers, it is still debatable whether Daubert truly helps plaintiffs the most.
20 Mark R. Kapusta, Daubert Versus Flanagan Comparing Standards for the Admissibility of Scientific Evidence in Florida State and Federal Courts, 68-Dec Fla. B.J. 38, 40 (1994).

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