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Excluding Exclusion: How Herring Jeopardizes The Fourth Amendment’S Protections Against Unreasonable Searches And Seizures, Hariqbal Basi

Hariqbal Basi

Abstract- For nearly a half-century, the exclusionary rule has remained an important mechanism for ensuring police compliance with the Fourth Amendment and deterring unconstitutional searches and seizures. In January 2009, the Supreme Court held in Herring v. United States that the exclusionary rule does not apply to good faith negligent police behavior. This significantly broadened the law, and severely limits the future application of the exclusionary rule. Furthermore, this holding has strong potential for abuse by police departments. By analogizing to Fifth Amendment jurisprudence and Miranda rights, I argue that the ruling in Herring needs to be limited in order …

Limits Of The Inevitable Discovery Doctrine In United States V. Young: The Intersection Of Private Security Guards, Hotel Guests, And The Fourth Amendment, Lauren Young Epstein

Golden Gate University Law Review

This Note analyzes the Young court’s opinion and the potential consequences of the majority’s cursory rejection of the government’s inevitable discovery argument. This Note also reconciles the differing applications of the inevitable discovery doctrine by the Young majority and dissent and highlights the speculative nature of employing the inevitable discovery doctrine based on the facts of Young. Part I of this Note presents the background of the case and the historical development of Fourth Amendment jurisprudence, focusing on the inevitable discovery doctrine as articulated by the Supreme Court in Nix v. Williams. Part II outlines the Young decision and analyzes …

When Facts Are Thin On The Ground, Julia Romasevych, Paul Antiss, Nancy Amoury Combs

Popular Media

Fact-finding at the international tribunals is not as precise as we think. Nancy Combs, Professor of Law at William and Mary Law School, explores this in her new book 'Fact-finding without facts: the uncertain evidentiary foundations of international criminal convictions'.

Anchors Away: Why The Anchoring Effect Suggests That Judges Should Be Able To Participate In Plea Discussions, Colin Miller

Colin Miller

The “anchoring effect” is cognitive bias by which people evaluate numbers by focusing on a reference point – an anchor – and adjusting up or down from that anchor. Unfortunately, people usually do not sufficiently adjust away from their anchors, so the initial choice of anchors has an inordinate effect on their final estimates. More than 90% of all criminal cases are resolved by plea bargains. In the vast majority of those cases, the prosecutor makes the initial plea offer, and prosecutors often make high initial offers. Assuming that the prosecutor’s opening offer operates as an anchor, nearly all criminal …

Anchors Away: Why The Anchoring Effect Suggests That Judges Should Be Able To Participate In Plea Discussions, Colin Miller

Colin Miller

The “anchoring effect” is cognitive bias by which people evaluate numbers by focusing on a reference point – an anchor – and adjusting up or down from that anchor. Unfortunately, people usually do not sufficiently adjust away from their anchors, so the initial choice of anchors has an inordinate effect on their final estimates. More than 90% of all criminal cases are resolved by plea bargains. In the vast majority of those cases, the prosecutor makes the initial plea offer, and prosecutors often make high initial offers. Assuming that the prosecutor’s opening offer operates as an anchor, nearly all criminal …

Classifying Admissions And Prior Statements: Alternatives To Rule 801(D)’S Confusing And Misguided Use Of The Term “Not Hearsay”, Sam Stonefield

Sam Stonefield

This article examines the treatment of admissions and prior statements in hearsay law generally and in Rule 801(d) of the Federal Rules of Evidence in particular. Nearly everyone agrees that Rule 801(d)’s classification of such statements as “not hearsay” is “awkward” and “wrong” (even “Orwellian”) and violates the norms of clarity and consistency expected of good drafting and the standards of the Guidelines for Drafting and Editing the Federal Rules. Yet the rule was drafted by a distinguished Advisory Committee, enacted by Congress, adopted by 34 states and has survived for over 35 years. How did this happen? What is …

“Classifying Admissions And Prior Statements: Alternatives To Rule 801(D)’S Confusing And Misguided “Not Hearsay” Terminology.”, Sam Stonefield

Sam Stonefield

Abstract: Classifying Admissions and Prior Statements: Alternatives to Rule 801(d)’s Confusing and Misguided Use of The Term “Not Hearsay”

This article examines the treatment of admissions and prior statements in hearsay law generally and in Rule 801(d) of the Federal Rules of Evidence in particular. Nearly everyone agrees that Rule 801(d)’s classification of such statements as “not hearsay” is “awkward” and “wrong” (even “Orwellian”) and violates the norms of clarity and consistency expected of good drafting and the standards of the Guidelines for Drafting and Editing the Federal Rules. Yet the rule was drafted by a distinguished Advisory Committee, enacted …

Deal Or No Deal: Why Courts Should Allow Defendants To Present Evidence That They Rejected Favorable Plea Bargains, Colin Miller

Colin Miller

Federal Rule of Evidence 410 deems inadmissible statements made during plea discussions when offered “against the defendant who made the plea or was a participant in plea discussions….” Pursuant to the Supreme Court’s opinion in United States v. Mezzanatto, however, prosecutors can, and often do, force defendants to waive the protections of this Rule to get to the plea bargaining table. Conversely, courts categorically have found that defendants cannot present evidence that they rejected favorable plea bargains, despite the plain language of the Rule not precluding the admission of such evidence. This article addresses the question of whether courts can …

Classifying Admissions And Prior Statements: Alternatives To Rule 801(D)’S Confusing And Misguided Use Of The Term “Not Hearsay”, Sam Stonefield

Sam Stonefield

Abstract: Classifying Admissions and Prior Statements: Alternatives to Rule 801(d)’s Confusing and Misguided Use of The Term “Not Hearsay”

This article examines the treatment of admissions and prior statements in hearsay law generally and in Rule 801(d) of the Federal Rules of Evidence in particular. Nearly everyone agrees that Rule 801(d)’s classification of such statements as “not hearsay” is “awkward” and “wrong” (even “Orwellian”) and violates the norms of clarity and consistency expected of good drafting and the standards of the Guidelines for Drafting and Editing the Federal Rules. Yet the rule was drafted by a distinguished Advisory Committee, enacted …

Fact-Finding Without Facts, Nancy Amoury Combs

Popular Media

No abstract provided.

People V. Bermudez: Is A Freestanding Claim Of Actual, Factual Innocence A Ground For Reversal Under The New York State Constitution?, Gregory C. Rosenfeld

Gregory C Rosenfeld

No abstract provided.

The First Complaint: An Approach To The Admission Of Child-Hearsay Statements Under The Alaska Rules Of Evidence, John J. Gochnour

Alaska Law Review

No abstract provided.

Allshouse V. Pennsylvania, Brief Of The National Association Of Criminal Defense Lawyers, The Pennsylvania Association Of Criminal Defense Lawyers, The Public Defender Association Of Pennsylvania, And The Defender Association Of Philadelphia, As Amici Curiae On Behalf Of Petitioner, Jules Epstein

Jules Epstein

No abstract provided.

Instrumentalizing Jurors: An Argument Against The Fourth Amendment Exclusionary Rule, Todd E. Pettys

Todd E. Pettys

In this symposium contribution, I argue that (1) courts infringe on jurors' deliberative autonomy in a morally problematic way whenever they refuse to admit evidence that is both relevant and reasonably available; (2) this infringement is especially problematic in the Fourth Amendment setting; and (3) although there are several ways in which these moral problems could be at least partially mitigated, the best approach might be to abandon the Fourth Amendment exclusionary rule entirely.

To Testify Or Not To Testify: A Comparative Analysis Of Australian And American Approaches To A Parent-Child Testimonial Exemption, Hillary Farber

Hillary B. Farber

Among many legal systems there are certain relationships that are deemed to possess such societal worth that despite the evidentiary value a witness may possess, he is immune from being compelled to testify against the other party in the relationship. In the United States, courts have recognized an evidentiary privilege for spouses, lawyers and their clients, psychotherapists and their patients. Surprisingly, the United States has not adopted a federal common law or statutory parent-child privilege. Among the civil law countries in Europe and Asia, a majority of countries prohibit parents and children from testifying against one another. Australia is the …

Evaluating Children’S Competency To Testify: Developing A Rational Method To Assess A Young Child’S Capacity To Offer Reliable Testimony In Cases Alleging Child Sex Abuse, Laurie Shanks

Laurie Shanks

There are few crimes which elicit a response as emotionally charged as those involving an allegation of child sexual abuse. Given the paucity of physical and scientific evidence in many cases and the resulting need to rely almost exclusively on the testimony of a very young child, the cases present unique challenges for judges, prosecutors and criminal defense attorneys. While many scholars have addressed the dangers inherent in questioning children, such as creating false memories and improperly influencing testimony, there has been little exploration of the means employed by courts to evaluate a child’s ability to offer reliable testimony. Many …

The Probative Function Of Punishment: Criminal Sanctions In The Defense Of The Innocent, Ehud Guttel

Ehud Guttel

Under the formal procedural rules, factfinders are required to apply a uniform standard of proof in all criminal cases. Experimental studies as well as real world examples indicate, however, that factfinders often adjust the evidentiary threshold for conviction in accordance with the severity of the applicable sanction. All things being equal, the higher the sanction, the higher the standard of proof factfinders will apply in order to convict. Building on this insight, this Article introduces a new paradigm for criminal punishments—a paradigm that focuses on designing penalties that will reduce the risk of unsubstantiated convictions. By setting mandatory penalties of …

Coconspirators, "Coventurers," And The Exception Swallowing The Hearsay Rule, Ben L.W. Trachtenberg

Ben L.W. Trachtenberg

In recent years, prosecutors—sometimes with the blessing of courts—have argued that when proving the existence of a “conspiracy” to justify admission of evidence under the Coconspirator Exception to the Hearsay Rule, they need show only that the declarant and the defendant were “coventurers” with a common purpose, not coconspirators with an illegal purpose. Indeed, government briefs and court decisions specifically disclaim the need to show any wrongful goal whatsoever. This Article contends that such a reading of the Exception is mistaken and undesirable. Conducted for this Article, a survey of thousands of court decisions, including the earliest English and American …

Police “Science” In The Interrogation Room: Seventy Years Of Pseudo-Psychological Interrogation Methods To Obtain Inadmissible Confessions, Brian Gallini

Brian Gallini

Fire Pattern Analysis, Junk Science, Old Wives Tales, And Ipse Dixit: Emerging Forensic 3d Imaging Technologies To The Rescue?, Thomas R. May

Thomas R. May

No abstract provided.

The Brain Sciences And Criminal Law Norms, Theodore Y. Blumoff

Theodore Y. Blumoff

Although neuroscience and the tools of brain imaging are sufficiently well developed to evidence our neurobiology at a level of detail unimaginable until even decade ago (roughly the size of a grain of rice), they are not yet sufficiently developed to be consistently useful in the guilt phase of most criminal trials. Given the advances in imaging and behavioral genetics, however, neuroscience is sufficiently mature today to effect some global procedural and substantive changes in our criminal law jurisprudence – e.g., definitions of, and burdens of proof on the issue of competency. In this work, I survey many of the …

Forensic Science Evidence And Judicial Bias In Criminal Cases, Hon. Donald E. Shelton

Hon. Donald E. Shelton

Although DNA exonerations and the NAS report have raised serious questions about the validity of many traditional non-DNA forms of forensic science evidence, criminal court judges continue to admit virtually all prosecution-proferred expert testimony. It is is suggested that this is the result of a systemic pro-prosecution bias by judges that is reflected in admissibility decisions. These "attitudinal blinders" are especially prevalent in state criminal trial and appellate courts.

Necessary Third Parties: Multidisciplinary Collaboration And Inadequate Professional Privileges In Domestic Violence Practice, Jeffrey R. Baker

Jeffrey R Baker

The rise of multidisciplinary practices among public-interest lawyers and other professionals promotes more effective and thorough services for vulnerable clients. In various forms, these professionals are creating formal or ad hoc partnerships as they minster to whole clients, not just to a client’s peculiar, momentary problem. For a victim of domestic violence, these collaborations can yield better outcomes and fruitful service, but they may also be critical to her very survival. As the common client works to escape a violent, oppressive relationship, her diverse professional servants must address the acute conflation of legal, medical, psychological, emotional and financial crises that …

Toward A General Theory Of Standards Of Proof, Fredrick E. Vars

Fredrick E Vars

Which standard of proof is best for a particular type of case? This deceptively simple question has been much discussed, but the current state of understanding is unsatisfactory. Statisticians posed a general answer; philosophers and others launched an assault on that answer; practically oriented scholars draw on both strains unsystematically; and courts generally offer little or no reasoning for their decisions. The goal of this article is to outline a systematic and complete justification for selecting one probabilistic standard of proof over another. By training a microscope on one small corner of the law---incapacity will contests---this article demonstrates the relevance …

"You Crossed The Fog Line!"—Kansas, Pretext, And The Fourth Amendment, Melanie D. Wilson

Scholarly Articles

In Whren, the United States Supreme Court sanctioned pretextual traffic stops. In practice the holding of Whren condones police investigations that target certain suspect classes of people, like Hispanics, for increased police scrutiny. In permitting pretextual stops, the Court ignored the risk that such practices will encourage police to distort the truth, overlooked the cost of under-enforcement of the laws, and ignored the consequences to the criminal justice system of race and ethnicity based discrimination.

Kansas law exacerbates these risks by making fog-line stops a model for protecting ulterior motives from a sifting judicial inquiry. In Kansas, it makes …

An Exclusionary Rule For Police Lies, Melanie D. Wilson

Scholarly Articles

Our legal system treats the police as if they are impartial fact gatherers, trained and motivated to gather facts both for and against guilt, rather than biased advocates attempting to disprove innocence, which is the reality. Because of its partiality in favor of officers, the criminal justice system lacks the appropriate structure to expose and effectively deter police lies, which distort the truth about criminal or unconstitutional conduct.

This Article, presented in three parts, argues that the current system should be changed to provide the structure necessary to promote honest police work. Specifically, it urges a modification to the exclusionary …

Updates To The Catalogue Of Evidence-Based Strategies For Children's Health And Wellbeing, Darcy Morris, David Fildes, Nick Marosszeky, Pamela Grootemaat, Kate Williams

Australian Health Services Research Institute

No abstract provided.

Evidence-Based Interventions For Adolescent Health And Wellbeing: Additions To The Vcams Catalogue (Bullying, Eating Disorders, Victims Of Crime, Sexual Initiation, Family Violence, Family Stress, And A Person For Advice), Nick Marosszeky, Pamela Grootemaat, David Fildes, Darcy Morris

Australian Health Services Research Institute

No abstract provided.

Coconspirators, “Coventurers,” And The Exception Swallowing The Hearsay Rule, Ben L. Trachtenberg

Faculty Publications

In recent years, prosecutors - sometimes with the blessing of courts - have argued that when proving the existence of a “conspiracy” to justify admission of evidence under the Coconspirator Exception to the Hearsay Rule, they need show only that the declarant and the defendant were “coventurers” with a common purpose, not coconspirators with an illegal purpose. Indeed, government briefs and court decisions specifically disclaim the need to show any wrongful goal whatsoever. This Article contends that such a reading of the Exception is mistaken and undesirable. Conducted for this article, a survey of thousands of court decisions, including the …

District Attorney’S Office For The Third Judicial District V. Osborne: Leaving Prisoners’ Access To Dna Evidence In Limbo, Alexandra Millard

Maryland Law Review

No abstract provided.