Law Commons^™

Willfully Forgetting Miranda's True Nature: Vega V. Tekoh Severs The Warnings Requirement From The Constitution, George M. Dery Iii

Marquette Law Review

This Article analyzes Vega v. Tekoh, in which the Supreme Court ruled that

a violation of Miranda was not a violation of the Fifth Amendment privilege

against self-incrimination. This Article examines the original language of the

Miranda opinion, the statements and intentions of the members of the Miranda

Court, and subsequent precedent to determine Miranda’s true nature. Further,

this Article examines the reasoning of Vega and the dangers created by its

pronouncements, especially in light of the Court’s earlier characterization of

Miranda as a constitutional rule in Dickerson v. United States. This Article

asserts that the Justices who …

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 …

Face Off: Overcoming The Fifth Amendment Conflict Between Cybersecurity And Self-Incrimination, Zachary E. Jacobson

Journal of Law and Health

The Founders included the privilege against self-incrimination in the Constitution to protect individual privacy and ensure a fair judicial process. Courts have failed U.S. citizens by neglecting to protect them from compelled unlocking of biometrically encrypted devices. This inaction has created a loophole that contradicts the framework of the privilege against self-incrimination. To correct this mistake courts should reconsider the trend they have set for the Constitution and the Fifth Amendment and consider adopting a forward-thinking cybersecurity lens to conclude that biometric authentication is testimonial. Courts should consider that biometric encryption is akin to a compelled password entry for the …

Tasing The Constitution: Conducted Electrical Weapons, Other Forceful Arrest Means, And The Validity Of Subsequent Constitutional Rights Waivers, Andreas Kuersten

William & Mary Bill of Rights Journal

Conducted electrical weapons (CEWs)—the most famous and widely used of which are offered under the TASER brand—are ubiquitous tools of law enforcement, carried by the vast majority of law enforcement officers and routinely deployed. These devices subdue targets by coursing electric current through their bodies, thereby causing individuals to collapse as their muscles involuntarily contract. Yet this method of operation has raised concerns—voiced by researchers, advocates, and criminal defendants alike—that CEWs influence cognitive capacity in addition to muscle function as electric current potentially transits through the brain via the central nervous system. In the context of an arrest, this implicates …

Clarifying The Scope Of The Self-Incrimination Clause: City Of Hays V. Vogt, Samantha Ruben

Chicago-Kent Law Review

Three months after oral arguments, the Supreme Court dismissed the writ of certiorari in City of Hays v. Vogt as improvidently granted. The question in Vogt was whether the Fifth Amendment right against self-incrimination is violated when incriminating statements are used at a probable cause hearing, as opposed to a criminal trial. As a result of the “DIG,” the Court left a circuit split unresolved surrounding the meaning of a “criminal case” within the Fifth Amendment’s Self-Incrimination Clause.

This note argues that the Supreme Court should not have dismissed Vogt and should have decided that the Fifth Amendment right against …

Taking The Fifth: How The Tenth Circuit Determined The Right Against Self-Incrimination Is "More Than A Trial Right" In Vogt V. City Of Hays, Daniel J. De Cecco

Pepperdine Law Review

In Vogt v. City of Hays, the United States Court of Appeals for the Tenth Circuit ruled that the Fifth Amendment right against self-incrimination is more than a trial right and applies to the use of compelled statements in probable cause hearings as well as in criminal trials. While the Self-Incrimination Clause states that the right applies “in a criminal case,” there is a circuit split regarding the definition of a “criminal case.” The Tenth Circuit joined the Second, Seventh, and Ninth Circuits in finding that the right against self-incrimination applies to more than a trial, relying on the common …

Pursuing Gault, David S. Tanenhaus, Eric C. Nystrom

Nevada Law Journal

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.

Arizona V. Roberson: Further Extending The Bright-Line, Ronald Mark Wells

Akron Law Review

This casenote will summarize the case scenario and holding in Arizona v. Roberson. To place Roberson in context, it will then examine the legal history of the fifth amendment right to counsel and will critically analyze Roberson by questioning the necessity of its holding, reviewing the Court's cost/benefit analysis, and examining the dangers of overextending the rule in Edwards. Finally, this casenote will discuss Roberson's potential impact.

The Admissibility Of Confessions Compelled By Foreign Coercion: A Compelling Question Of Values In An Era Of Increasing International Criminal Cooperation, Geoffrey S. Corn, Kevin Cieply

Pepperdine Law Review

This Article proceeds on a simple and clear premise: a confession extracted by torture or cruel, inhuman, or degrading treatment should never be admitted into evidence in a U.S. criminal trial. Whether accomplished through extending the Due Process or Self-Incrimination based exclusionary rules to foreign official coercion, or by legislative action, such exclusion is necessary to align evidentiary practice regarding confessions procured by foreign agents with our nation's fundamental values as reflected in the Fifth Amendment and our ratification of the CAT. This outcome is not incompatible with Connelly. Rather, this Article explores the limits of the Court's language in …

Forced Decryption As Equilibrium—Why It’S Constitutional And How Riley Matters, Dan Terzian

Northwestern University Law Review

This Essay considers whether the government can force a person to decrypt his computer. The only courts to consider the issue limited their analyses to rote application of predigital doctrine and dicta. This is a mistake; courts should instead aim to maintain the ex ante equilibrium of privacy and government power. This approach—seeking equilibrium—was just endorsed by the Supreme Court in Riley v. California, a recent Fourth Amendment case. Yet Riley’s rationale also extends to the Fifth Amendment’s Self-Incrimination Clause, and maintaining equilibrium there requires permitting forced decryption. Because current doctrine can be interpreted as allowing forced decryption, …

Supreme Court, Broome County, In Re United Health Services Hospitals, Kristen Kelekian

Touro Law Review

No abstract provided.

United States V. Patane: The Beginning Of The End Of Miranda, Bryce Chauncey Loveland

Touro Law Review

No abstract provided.

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

Touro Law Review

No abstract provided.

Court Of Appeals Of New York, In The Matter Of Nassau County Grand Jury Subpoena Duces Tecum Dated June 24, 2003 "Doe Law Firm" V. Spitzer, Christin Harris

Touro Law Review

No abstract provided.

The (Un?)Constitutionality Of Compelling Non-Immunized Testimony In Deceptive Trade Practices Investigations Conducted By The Attorney General Of The State Of Arkansas, Terrence Cain

University of Arkansas at Little Rock Law Review

No abstract provided.

Supreme Court Of New York, Bronx County, People V. Womack, Barry M. Frankenstein

Touro Law Review

No abstract provided.

Appellate Division, Third Department, People V. Smith, Jennifer Belk

Touro Law Review

No abstract provided.

Admissibility Of Field Test Results At Trial To Prove Intoxication, Vincent J. Costa

Touro Law Review

No abstract provided.

Fifth Amendment Protection For Public Employees: Garrity And Limited Constitutional Protections From Use Of Employer Coerced Statements In Internal Investigations And Practical Considerations, J. Michael Mcguinness

Touro Law Review

No abstract provided.

The Sanctity Of The Attorney-Client Relationship – Undermined By The Federal Interpretation Of The Right To Counsel - People V. Borukhova, Tara Laterza

Touro Law Review

No abstract provided.

What Standard Should Be Used To Determine A Valid Juvenile Waiver?, Martin Levy, Stephen Skacevic

Pepperdine Law Review

No abstract provided.

Appellate Division, Fourth Department - In Re Heckl, Michael Prisco

Touro Law Review

No abstract provided.

Court Of Appeals Of New York - People V. White, Rosalinde Casalini

Touro Law Review

No abstract provided.

Davis V. United States: "Maybe I Should Talk To A Lawyer" Means Maybe Miranda Is Unraveling, Tom Chen

Pepperdine Law Review

No abstract provided.

New York’S Grant Of Greater Fifth Amendment Rights To Sexual Predators In Somta Proceedings - New York V. Suggs, Lina R. Carbuccia

Touro Law Review

No abstract provided.

The Fifth Amendment Right Against Self-Incrimination: An In-Depth Look At Mckune V. Lile, Heidi Feldman

Pepperdine Law Review

No abstract provided.

State V. Burgess: A Limitation On A Defendant’S Right To Remain Innocent, Elizabeth Lahey

The University of New Hampshire Law Review

[Excerpt] “This note will explore the current state of the privilege against self-incrimination, particularly in regard to whether it works to bar negative inferences from being drawn from a defendant’s silence during sentencing in order to determine his remorse for the crime of which he has been convicted. I will focus primarily on the issue in the context of the recent New Hampshire case State v. Burgess. In that case, the court recognized the application of the privilege at sentencing, but nonetheless carved out a unique exception which made negative inferences permissible at sentencing when the defendant has admitted to …

Proximate Cause In Constitutional Torts: Holding Interrogators Liable For Fifth Amendment Violations At Trial, Joel Flaxman

Michigan Law Review

This Note argues for the approach taken by the Sixth Circuit in McKinley: a proper understanding of the Fifth Amendment requires holding that an officer who coerces a confession that is used at trial to convict a defendant in violation of the right against self-incrimination should face liability for the harm of conviction and imprisonment. Part I examines how the Supreme Court and the circuits have applied the concept of common law proximate causation to constitutional torts and argues that lower courts are wrong to blindly adopt common law rules without reference to the constitutional rights at stake. It …

Taking Miranda's Pulse, William T. Pizzi, Morris B. Hoffman

Vanderbilt Law Review

The Supreme Court decided five Miranda1 cases in 2003-2004, making this one of the most active fifteen-month periods for the law of self-incrimination since the controversial case was decided in 1966. In this Article, we consider three of those five cases-Chavez v. Martinez, Missouri v. Seibert and United States v. Patane-along with the blockbuster decision four years ago in Dickerson v. United States. in an attempt to decipher what, if anything, this remarkable level of activity teaches us about the direction of the Court's self-incrimination jurisprudence. In the end, while these cases, like those before them, may not entirely clarify …