Digital Commons Network^™

The Second Founding And Self-Incrimination, William M. Carter Jr.

Northwestern University Law Review

The privilege against self-incrimination is one of the most fundamental constitutional rights. Protection against coerced or involuntary self-incrimination safeguards individual dignity and autonomy, preserves the nature of our adversary system of justice, helps to deter abusive police practices, and enhances the likelihood that confessions will be truthful and reliable. Rooted in the common law, the privilege against self-incrimination is guaranteed by the Fifth Amendment’s Self-Incrimination and Due Process Clauses. Although the Supreme Court’s self-incrimination cases have examined the privilege’s historical roots in British and early American common law, the Court’s jurisprudence has overlooked an important source of historical evidence: the …

Vega V. Tekoh And The Erosion Of Miranda: A Reframing Of Miranda As A Procedural Due Process Requirement, Tess A. Chaffee

University of Cincinnati Law Review

No abstract provided.

Private Police Regulation And The Exclusionary Remedy: How Washington Can Eliminate The Public/Private Distinction, Jared Rothenberg

Washington Law Review

Private security forces such as campus police, security guards, loss prevention officers, and the like are not state actors covered by the Fourth Amendment’s prohibition against unreasonable searches and seizures nor the Fifth Amendment’s Miranda protections. As members of the umbrella category of “private police,” these private law enforcement agents often obtain evidence, detain individuals, and elicit confessions in a manner that government actors cannot, which can then be lawfully turned over to the government. Though the same statutory law governing private citizens (assault, false imprisonment, trespass, etc.) also regulates private police conduct, private police conduct is not bound by …

Pretrial Custody And Miranda, Kit Kinports

Washington and Lee Law Review

In two recent opinions, Maryland v. Shatzer and Howes v. Fields, the Supreme Court concluded that inmates serving prison sentences were not in custody for purposes of Miranda—in Shatzer’s case while he was living among the general prison population and in Fields’s case while he was undergoing police interrogation. The question addressed in this Article is one that has divided the lower courts in the wake of those two decisions: the impact of the Court’s rulings on the hundreds of thousands of pretrial detainees in this country, many of whom are poor, Black, and Brown. This Article maintains that …

When Is Police Interrogation Really Police Interrogation? A Look At The Application Of The Miranda Mandate, Paul Marcus

Catholic University Law Review

Decades after the Supreme Court’s decision in Miranda v. Arizona, questions abound as to what constitutes interrogation when a suspect is in custody. What appeared a concise, uniform rule has, in practice, left the Fifth Amendment waters muddied. This article addresses a potential disconnect between law enforcement and the courts by analyzing examples of issues arising from Miranda’s application in an array of case law. Ultimately, it attempts to clarify an ambiguity by offering a standard for what conduct classifies as an interrogation.

Abridging The Fifth Amendment: Compelled Decryption, Passwords, & Biometrics, Raila Cinda Brejt

Fordham Intellectual Property, Media and Entertainment Law Journal

Technological developments change the way we perform tasks by creating more efficient solutions to old problems and giving rise to opportunities not previously possible. Advances in communications technology have made the world feel smaller and more accessible. These changes also affect the methodology of both criminal activity and the investigative procedures of law enforcement. Our fundamental rights are challenged as judges and state actors try to strike the perfect balance between longstanding values and contemporary problems. This Note considers the Fifth Amendment challenges that arise when law enforcement attempts to obtain evidence from a criminal defendant’s encrypted device. This Note …

Rock And Hard Place Arguments, Jareb Gleckel, Grace Brosofsky

Seattle University Law Review

This Article explores what we coin “rock and hard place” (RHP) arguments in the law, and it aims to motivate mission-driven plaintiffs to seek out such arguments in their cases. The RHP argument structure helps plaintiffs win cases even when the court views that outcome as unfavorable.

We begin by dissecting RHP dilemmas that have long existed in the American legal system. As Part I reveals, prosecutors and law enforcement officials have often taken advantage of RHP dilemmas and used them as a tool to persuade criminal defendants to forfeit their constitutional rights, confess, or give up the chance to …

School “Safety” Measures Jump Constitutional Guardrails, Maryam Ahranjani

Seattle University Law Review

In the wake of George Floyd’s murder and efforts to achieve racial justice through systemic reform, this Article argues that widespread “security” measures in public schools, including embedded law enforcement officers, jump constitutional guardrails. These measures must be rethought in light of their negative impact on all children and in favor of more effective—and constitutionally compliant—alternatives to promote school safety. The Black Lives Matter, #DefundthePolice, #abolishthepolice, and #DefundSchoolPolice movements shine a timely and bright spotlight on how the prisonization of public schools leads to the mistreatment of children, particularly children with disabilities, boys, Black and brown children, and low-income children. …

Shackling Prejudice: Expanding The Deck V. Missouri Rule To Nonjury Proceedings, Sadie Shourd

Vanderbilt Law Review

Courts in the United States have traditionally held that criminal defendants have the right to be free from unwarranted restraints visible to the jury during the guilt phase of a trial. The term “unwarranted restraints” refers to the use of restraints on a defendant absent a court’s individualized determination that such restraints are justified by an essential state interest. In Deck v. Missouri, the Supreme Court expanded the prohibition against unwarranted restraints to the sentencing phase of a trial. The law regarding the unwarranted shackling of defendants in nonjury proceedings, however, remains unsettled. The U.S. Courts of Appeals for the …

When Big Brother Becomes “Big Father”: Examining The Continued Use Of Parens Patriae In State Juvenile Delinquency Proceedings, Emily R. Mowry

Dickinson Law Review (2017-Present)

The U.S. Constitution grants American citizens numerous Due Process rights; but, historically, the Supreme Court declined to extend these Due Process rights to children. Initially, common-law courts treated child offenders over the age of seven in the same manner as adult criminals. At the start of the 20th century, though, juvenile reformers assisted in creating unique juvenile courts that used the parens patriae doctrine and viewed children as delinquent youths in need of judicial parental guidance rather than punishment. Later, starting in 1967, the Supreme Court released multiple opinions extending certain constitutional Due Process rights to children in juvenile delinquency …

Judges Do It Better: Why Judges Can (And Should) Decide Life Or Death, Andrew R. Ford

Dickinson Law Review (2017-Present)

Following its decision in Furman v. Georgia, the Supreme Court of the United States has attempted to standardize procedures that states use to subject offenders to the ultimate penalty. In practice, this attempt at standardization has divided capital sentencing into two distinct parts: the death eligibility decision and the death selection decision. The eligibility decision addresses whether the sentencer may impose the death penalty, while the selection decision determines who among that limited subset of eligible offenders is sentenced to death. In Ring v. Arizona, the Court held for the first time that the Sixth Amendment right to …

Finality Of A Conviction: A Noncitizen's Right To Procedural Due Process, Daniela Mondragon

St. Mary's Law Journal

Abstract forthcoming

"Sweet Childish Days": Using Developmental Psychology Research In Evaluating The Admissibility Of Out-Of-Court Statements By Young Children, Lynn Mclain

Maine Law Review

Young children are frequently precluded from testifying at trial on the grounds of incompetency because they cannot answer questions about abstract concepts regarding “truth” and “lies.” In this situation, should the child’s earlier, out-of-court statements disclosing the abuse and identifying the abuser also be inadmissible? The stakes are huge. If young children cannot testify, and their out-of-court statements are precluded, they simply become safe prey, unprotected by the judicial system. The pivotal question becomes, are there procedures that can ensure fairness both to children and to their alleged abusers? This article argues that a child’s testimonial incapacity at trial ought …

Book Review: James Duane, You Have The Right To Remain Innocent: What Police Officers Tell Their Children About The Fifth Amendment, Cecily J. Mullins

ConLawNOW

In this essay, the student author reviews the book You Have the Right to Remain Innocent by James Duane, which emphasizes the inherent risks of speaking to the police, regardless of whether or not you have something to hide.

The Law Court's Proper Application Of Miranda In State V. Bragg: A "Matter-Of-Fact Communication" To The Defendant Regarding Evidence Against Him Will Not Typically Constitute "Interrogation", Stephen B. Segal

Maine Law Review

In State v. Bragg, Tammy Bragg was convicted of a Class D crime for operating under the influence (OUI) at the completion of a jury trial, and was ordered to pay a fine of $800 and her license was suspended for ninety days. During her trial, Bragg submitted a motion to suppress statements she made in the police officer’s vehicle and the police station on the grounds that she was not read her Miranda warnings prior to making the statements. The Superior Court denied her motion, however, concluding that Miranda warnings were not necessary in the officer’s vehicle because her …

State V. Lovejoy: Should Pre-Arrest, Pre-Miranda Silence Be Admissible During The State's Case-In-Chief As Substantive Evidence Of Guilt?, Mark A. Rucci

Maine Law Review

Article 1, section 6 of Maine Constitution reads in part that “[t]he accused shall not be compelled to give evidence against himself or herself, nor be deprived of life, liberty, property, or privileges . . . .” Further, the Law Court has held that “the State constitutional protection against self-incrimination is the equivalent of the Fifth Amendment." However, as with most provisions of the Constitution, the protection against self-incrimination is open to interpretation. While the Supreme Court has answered some questions surrounding the Fifth Amendment’s protections, it has left many decisions regarding its scope largely within the purview of the …

The Death Penalty And The Fifth Amendment, Joseph Blocher

Northwestern University Law Review

Can the Supreme Court find unconstitutional something that the text of the Constitution “contemplates”? If the Bill of Rights mentions a punishment, does that make it a “permissible legislative choice” immune to independent constitutional challenges?

Recent developments have given new hope to those seeking constitutional abolition of the death penalty. But some supporters of the death penalty continue to argue, as they have since Furman v. Georgia, that the death penalty must be constitutional because the Fifth Amendment explicitly contemplates it. The appeal of this argument is obvious, but its strength is largely superficial, and is also mostly irrelevant to …

Policing In The Era Of Permissiveness: Mitigating Misconduct Through Third-Party Standing, Julian A. Cook Iii

Brooklyn Law Review

On April 4, 2015, Walter L. Scott was driving his vehicle when he was stopped by Officer Michael T. Slager of the North Charleston, South Carolina, police department for a broken taillight. A dash cam video from the officer’s vehicle showed the two men engaged in what appeared to be a rather routine verbal exchange. Sometime after Slager returned to his vehicle, Scott exited his car and ran away from Slager, prompting the officer to pursue him on foot. After he caught up with Scott in a grassy field near a muffler establishment, a scuffle between the men ensued, purportedly …

Prosecutorial Ventriloquism: People V. Tom And The Substantive Use Of Post-Arrest, Pre-Miranda Silence To Infer Consciousness Of Guilt, Joshua Bornstein

Loyola of Los Angeles Law Review

No abstract provided.

A Defendant's Fifth Amendment Right And Double Jeopardy In Contempt Cases, Saba Khan

Touro Law Review

No abstract provided.

"I Plead The Fifth": New York's Integrated Domestic Violence Courts And The Defendant's Fifth Amendment Dilemma, Rhona Mae Amorado

Touro Law Review

No abstract provided.

You Have The Right To Be Confused! Understanding Miranda After 50 Years, Bryan Taylor

Pace Law Review

Part I of this article briefly explores the background and historical context that ultimately led to the Miranda decision. As the late Dr. Carl Sagan once said, “you have to know the past to understand the present.” Understanding the circumstances and cases leading up to Miranda helps in the overall application of Miranda to cases of today. Part II addresses whether a statement should be allowed into evidence and provides a practical working approach to conduct a Miranda analysis. This innovative approach provides a step-by-step process in determining the admissibility of statements pursuant to Miranda and its progeny. This process …

Lilly V. Virginia: Silencing The "Firmly Rooted" Hearsay Exception With Regard To An Accomplice's Testimony And Its Rejuvenation Of The Confrontation Clause, Leslie Morsek

Akron Law Review

This Note examines the impact on the confrontation clause of introducing an accomplice's custodial statements which inculpate a defendant. Part II delves into the background of this issue by examining the confrontation clause's origin, the significance of hearsay with respect to the confrontation clause, and important cases in this area. Part III provides a statement of the facts, the procedural history, and the United States Supreme Court's decision in Lilly. Finally, Part IV analyzes the Lilly decision and its rejuvenation of the confrontation clause.

Foreword To The Neuroscience, Law & Government Symposium, Jane Campbell Moriarty

Akron Law Review

It is with much pleasure that I write the foreword for this Symposium in the Akron Law Review. The authors were each presenters at the Neuroscience, Law & Government Conference, held at The University of Akron School of Law in September, 2008. The articles in this edition of Akron Law Review are as diverse as the presentations themselves, and provide a fascinating glimpse into various ways in which neuroscience is making inroads in both law and government. The explosion of neuroscience and neuroimaging discoveries this decade is nothing short of remarkable, leading one prominent scientist to term the last several …

Mirandizing Terrorism Suspects? The Public Safety Exception, The Rescue Doctrine, And Implicit Analogies To Self-Defense, Defense Of Others, And Battered Woman Syndrome, Bruce Ching

Catholic University Law Review

In its 1984 decision New York v. Quarles, the Supreme Court announced the public safety exception, under which statements made by un-Mirandized suspects can be admissible when made in response to questions reasonably asked to protect the safety of the arresting officers or the general public. During the investigation of terrorism cases, law enforcement agencies have begun to extend the time of un-Mirandized questioning of suspects, with the hope that courts will find that the public safety exception makes the suspects’ statements admissible in the ensuing prosecutions.

This Article argues that in announcing the public safety exception, …

Judge Levine: A Survey Of His Most Influential Court Of Appeals Decisions - 1993-2002, Jean D'Alessandro

Touro Law Review

No abstract provided.

Applying The 'Cuffs: Consistency And Clarity In A Bright-Line Rule For Arrest-Like Restraints Under Miranda Custody, Luis Then

Florida State University Law Review

No abstract provided.

A Year To Remember: The Supreme Court's Fourth, Fifth, And Sixth Amendment Jurisprudence For The 2003 Term, William E. Hellerstein

Touro Law Review

No abstract provided.

Court Of Appeals Of New York, People V. Paulman, Michele Kligman

Touro Law Review

No abstract provided.

Double Jeopardy: A Resentencing Game, Deirdre Cicciaro

Touro Law Review

No abstract provided.