Stanford Law Student Calls Out Evidentiary Double Standards in Cases Accusing Police of Excessive Force

It is rare for law students to secure publication of their articles in flagship law reviews. But SLS 3L James Stone defied the odds with his recently published article, Past-Acts Evidence in Excessive Force Litigation, likely the most systematic analysis ever of certain past-act evidentiary standards in civil litigation involving police misconduct.

The trial of Derek Chauvin for George Floyd’s murder was in full swing when Stanford Law Student James Stone, ’23, was taking an evidence class as a first-year law student. He had been reading about communities nationwide moving toward making police misconduct records more accessible to the public. With his mind on the rules of evidence, including the nuanced situations where certain prior bad acts of defendants are admissible in criminal trials, he started thinking about the admissibility standards around past instances of misconduct by police officers who are sued in civil cases for excessive force.

Stanford Law Student Calls Out Evidentiary Double Standards in Cases Accusing Police of Excessive Force

“I wondered if the past-act admissibility standards in these trials are the same for the accused police officers as they are for the plaintiffs bringing those cases,” said Stone, a Connecticut native who, prior to law school, worked as a screenwriter in Hollywood and received a Ph.D. in music theory and composition from U.C. Berkeley.

A year of research and 17,000 words later, he has the answer to his question: no. The standards are not the same. In Past-Acts Evidence in Excessive Force Litigation, 100 Wash. U. L. Rev. 569, Stone critiques how courts’ interpretations of the long-held “objective reasonableness” standard, paired with Rule 404(b) of the Federal Rules of Evidence, cause judges to hold certain officer misconduct evidence irrelevant and therefore inadmissible at trial. Conversely, as he analyzes, many judges admit evidence of a plaintiff-victim’s past drug use, criminal activity, encounters with police, and gang affiliation under what he argues are strained relevance arguments. He undertakes the same analysis to rules around use of past acts to impeach the testimony of plaintiffs and accused officers. 

Stone ultimately advocates for various solutions to the double standard he identifies, including recommending a more nuanced approach to existing balancing tests as well as proposing amendments to certain rules of evidence. “Even in this small evidence-law area of excessive force litigation–after a plaintiff has already somehow made it through qualified immunity and all the other barriers to holding officers accountable–the deck is still stacked. Hopefully this article contributes to a discussion of ways to change that,” said Stone. 

“It’s a really perceptive and really important article about how evidence of other bad acts is regulated in civil rights lawsuits for police misconduct,” said David Sklansky, the Stanley Morrison Professor of Law and the co-director of the Stanford Criminal Justice Center, who advised Stone on his article. 

“Carrying out the comparison took a lot of work, because the formal rules in both cases are the same: the critical thing is how those rules get applied, and figuring that out required a lot of patient research into the minutiae of individual cases” continued Sklansky “No one else had ever taken the time to do that as systematically as James has, and the many hours he put into researching these cases allowed him to make thoughtful and well-grounded recommendations for using evidence law to make police misconduct litigation fairer and more meaningful.”

In addition to taking one of the deepest-ever academic dives into these compelling questions, Stone also distinguished himself by securing publication in the Washington University Law Review. The majority of law reviews, especially from the country’s top law schools, will not even consider an article by a student. 

“I very quickly realized that most of the journals won’t even look at submissions from law students, but some were somewhat ambiguous in their parameters. For example, Washington University School of Law said it would consider publishing pieces around 15,000 words—so-called “commentaries”—from ‘members of the legal academy, bench and bar,’” Stone said. “So I said to myself, ‘hey, maybe I’m in ‘the academy?’ After they extended an offer to publish the article, I spent a few weeks wondering if they even realized I was a student. I got nervous because I looked at their other published commentaries and could only find ones written by law professors.”

Following graduation later this year, Stone will clerk for Chief Judge Rebecca Pallmeyer of the Northern District of Illinois. His more distant career path may include stops as a federal public defender and perhaps, one day, a law professor. Meanwhile, Stone encourages other law students to consider submitting scholarship to law journals. 

“The fact that students are rarely published in law reviews outside of their own school usually doesn’t have anything to do with the quality of the writing,” he said. “I think it has a lot to do with the fact that students don’t think of this type of publication as an option.”

About Stanford Law School

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