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You Can\u27t Escape Your Past: \u3cem\u3eState v. Blaz\u3c/em\u3e and The Future of 404(b) Evidence in Montana
Full text linkThis note focuses on identity evidence—specifically, the admissibility of evidence of past crimes or acts in order to identify the defendant as the perpetrator of a crime. It explains how the Court, by improperly expanding its prior rulings, opened the floodgates to admit types of behavior that have not constituted uniquely identifying criminal signatures. It also seeks to illustrate the effect this expansion might have on the admissibility of such evidence in the future. Part II of this note begins with a brief background on applicable Montana law and an overview of the law’s purpose. Part II also discusses prior case law dealing with the admission of motive and modus operandi evidence, and how this case law and the theories behind it served as the foundation of the Court’s holding in Blaz. Specifically, while motive and modus operandi evidence have always been closely associated with each other, until Blaz, they had remained discrete. Parts III and IV examine the facts of Blaz and provide the Majority and Dissent’s analysis relating to the admissibility of identification evidence. Part V analyzes how the Court’s ruling is distinct from and reinterprets past cases. It argues that the Blaz Court created a new standard for admission of motive and modus operandi as identification evidence. Additionally, Part V explains how the Blaz decision was foreshadowed by precedent and considers its consequences going forward. Finally, this note concludes by placing the Court’s decision in context with other jurisdictions and briefly summarizes the author\u27s analyses and predictions
Truth, Lies, and Copyright
Full text linkFake news may be trending right now, but fake news is not the only source of fake facts that we consume. We encounter fake facts every day in the historical or biographical books we read, the movies we watch, the maps we study, the tele-phone directories and dictionaries we reference, and the religious or spiritual guides we consult. While it is well-established that copyright does not protect facts because facts are discovered rather than created, fake facts are created and can often be as original and creative as fiction.
This Article is the first to offer a comprehensive analysis of copyright protection of fake facts contained in fake news and other sources. It details the different categories of fake facts we encounter today and courts’ inconsistent protection of fake facts under copyright law. Even though copyright law may technically protect fake facts as original expression fixed in a tangible medium, this Article argues that the public interest in promoting efficiency, fairness, and production of socially valuable works justify treating fake facts as unprotectable facts under copyright law. Specifically, courts should apply copyright law’s factual estoppel doctrine to treat fake facts as unprotectable facts in infringement cases where an author previously held out fake facts as facts, with the intent that the public rely on the fake facts as facts, if the public could believe the fake facts to be true
PREVIEW: \u3cem\u3eCity of Helena v. O\u27Connell\u3c/em\u3e: Double Jeopardy and Strict Liability Offenses
Full text linkThe sole issue before the Court is whether the Helena Municipal Court violated Petitioner Kristi Anne O’Connell’s (“O’Connell”) double jeopardy protections under Montana Code Annotated § 46–11–504(1). Prior prosecution of an offense in any jurisdiction bars subsequent prosecution if the first prosecution resulted in an acquittal or a conviction and the subsequent prosecution arose “out of the same transaction.” Two charges arise out of the same transaction if the conduct for both offenses is motivated by a purpose to accomplish a criminal objective, and the conduct is necessary or incidental to accomplishing that objective. O\u27Connell\u27s appeal provides the Court with an opportunity to reconsider whether strict liability offenses, such as driving under the influence (“DUI”), can ever arise out of the same transaction as other offenses
Juliana v. United States
Full text linkIn 2015, a group of adolescents between the ages of eight and nineteen filed a lawsuit against the federal government for infringing upon their civil rights to a healthy, habitable future living environment. Those Plaintiffs in Juliana v. United States alleged that the industrial-scale burning of fossil fuels was causing catastrophic and destabilizing impacts to the global climate, threatening the survival and welfare of present and future generations. Seeking to reduce the United States’ contributions to atmospheric carbon dioxide, Plaintiffs demanded injunctive and declaratory relief to halt the federal government’s policies of promoting and subsidizing fossil fuels, due to the limited timeframe for addressing the impacts of climate change. While extensive motion practice has impeded a hearing on merits of Plaintiffs’ claims, Juliana v. United States addressed threshold questions concerning constitutional and procedural claims
Knick v. Township of Scott
Full text linkThe Supreme Court overruled a 34-year-old precedent and sparked a sharp dissent by holding that a landowner impacted by a local ordinance requiring public access to an unofficial cemetery on her property could bring a takings claim directly in federal court. The decision eliminated a Catch-22 state-litigation requirement that effectively barred local takings plaintiffs from federal court, but raised concerns about government land use and regulation, judicial federalism, and the role of stare decisis
American Legion v. American Humanist Association
Full text linkThe separation of church and state is a key element of American democracy, but its interpretation has been challenged as the country grows more diverse. In American Legion v. American Humanist Association, the Supreme Court adopted a new standard to analyze whether a religious symbol on public land maintained by public funding violated the Constitution’s Establishment Clause
Murray v. BEJ Minerals, LLC
Full text linkPart of a dispute some 66 million years in the making, Murray v. BEJ Minerals, LLC considered for the first time whether dinosaur fossils—specifically a one-of-a-kind specimen containing entombed “dueling dinosaurs”—qualified as “minerals” for the purposes of a property transaction under Montana law. Finding no consistent statutory or dictionary definition for “mineral,” the Ninth Circuit relied on a test previously utilized by the Montana Supreme Court to hold that the dinosaur fossils constituted minerals due to their rare and exceptional qualities and were therefore part of the property’s mineral estate. The decision was promptly nullified, however, as the Ninth Circuit granted a rehearing en banc and the Montana legislature passed a measure declaring dinosaur fossils part of the surface estate under state law
Maralex Resources, Inc. v. Barnhardt
Full text linkIn Maralex Resources v. Barnhardt, Maralex and property owners brought an action to protect private property from BLM inspections of oil and gas lease sites. The Tenth Circuit looked at the plain meaning of a congressional statute and held in favor of Maralex, finding that BLM lacked authority to require a private landowner to provide BLM with a key to inspect wells of their property. The Tenth Circuit held BLM has the authority to conduct inspections without prior notice on private property lease sites; however, it is required to contact the property owner for permission before entering the property