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Who Should Own Police Body Camera Videos?, Laurent Sacharoff, Sarah Lustbader Jan 2017

Who Should Own Police Body Camera Videos?, Laurent Sacharoff, Sarah Lustbader

Washington University Law Review

Numerous cities, states, and localities have adopted police body camera programs to enhance police accountability in the wake of repeated instances of police misconduct, as well as recent reports of more deep- seated police problems. These body camera programs hold great promise to achieve accountability, often backed by millions of dollars in federal grants.

But so far, this promise of accountability has gone largely unrealized, in part because police departments exercise near-total control over body camera programs and the videos themselves. In fact, the police view these programs chiefly as a tool of ordinary law enforcement rather than accountability—as ...


How Lambis And Csli Litigation Mandate Warrants For Cell-Site Simulator Usage In New York, Cindy D. Ham Jan 2017

How Lambis And Csli Litigation Mandate Warrants For Cell-Site Simulator Usage In New York, Cindy D. Ham

Washington University Law Review

No abstract provided.


Prisoners And Pleading, Richard H. Frankel, Alistair E. Newbern Jan 2017

Prisoners And Pleading, Richard H. Frankel, Alistair E. Newbern

Washington University Law Review

Last year, prisoners filed nearly 27,000 civil rights actions in federal court. More than 92 percent of those actions were filed pro se. Pro se prisoners frequently use—and in many districts are required to use— standardized complaint forms provided by the federal judiciary. These standard forms were created in the 1970s at the recommendation of a committee of federal judges seeking to more effectively manage prisoner litigation and reduce its burdens on the federal courts. Although complaint forms have been in use for nearly forty years and are now commonplace in almost every federal district, no one, until ...


Prosecutorial Analytics, Jason Kreag Jan 2017

Prosecutorial Analytics, Jason Kreag

Washington University Law Review

The institution of the prosecutor has more power than any other in the criminal justice system. What is more, prosecutorial power is often unreviewable as a result of limited constitutional regulation and the fact that it is increasingly exercised in private and semi-private settings as the system has become more administrative and less adversarial. Despite this vast, unreviewable power, prosecutors often rely on crude performance measures focused on conviction rates. The focus on conviction rates fails to capture and adequately evaluate the breadth of prosecutorial decision- making. We can do better by fully implementing analytics as a tool to evaluate ...


Policing Predictive Policing, Andrew G. Ferguson Jan 2017

Policing Predictive Policing, Andrew G. Ferguson

Washington University Law Review

Predictive policing is sweeping the nation, promising the holy grail of policing—preventing crime before it happens. The technology has far outpaced any legal or political accountability and has largely escaped academic scrutiny. This article examines predictive policing’s evolution with the goal of providing the first practical and theoretical critique of this new policing strategy. Building on insights from scholars who have addressed the rise of risk assessment throughout the criminal justice system, this article provides an analytical framework to police new predictive technologies.


Asymmetry As Fairness: Reversing A Peremptory Trend, Anna Roberts Jan 2015

Asymmetry As Fairness: Reversing A Peremptory Trend, Anna Roberts

Washington University Law Review

A recent Ninth Circuit decision, prohibiting peremptory challenges on the basis of sexual orientation, reveals the continuing evolution of the Batson doctrine. Meanwhile, contrary judicial voices demand the abolition of the peremptory challenge. This Article uncovers two phenomena that militate against abolition of the peremptory challenge, and in favor of allowing Batson’s evolution. First, the justifications for abolition apply asymmetrically to prosecution and defense, suggesting that an asymmetrical approach is more apt. Second, the states historically adopted an asymmetrical approach—unequal allocation of peremptory challenges to prosecution and defense—and yet many state legislatures have recently abandoned asymmetry, with ...


The Right To A Public Trial And Closing The Courtroom To Disruptive Spectators, Stephen E. Smith Jan 2015

The Right To A Public Trial And Closing The Courtroom To Disruptive Spectators, Stephen E. Smith

Washington University Law Review

The Sixth Amendment to the United States Constitution provides, in part, that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” Like many constitutional rights, however, the right to a public trial is not absolute. Courtrooms may be closed to the public in some situations. In Waller v. Georgia, the Supreme Court set forth the test trial courts should apply to determine whether a courtroom closure is appropriate. However, some courts, led by the Second Circuit’s per curiam decision in Cosentino v. Kelly, have declined to apply the Waller test to ...


The Anomaly Of Entrapment, Jessica A. Roth Jan 2014

The Anomaly Of Entrapment, Jessica A. Roth

Washington University Law Review

Now in our second decade after 9/11, we are firmly in the prevention era of law enforcement. Faced with the unacceptable consequences of identifying threats too late, government agents are moving aggressively to identify potential terrorists before they strike. Undercover agents and confidential informants necessarily play a large role in such efforts. As a result of such operations, we have seen a number of cases brought to trial in the federal courts in which defendants have asserted the entrapment defense. To date, the defense has not succeeded. However, as a consequence of these cases, the United States Supreme Court ...


Disentangling Child Pornography From Child Sex Abuse, Carissa Byrne Hessick Jan 2011

Disentangling Child Pornography From Child Sex Abuse, Carissa Byrne Hessick

Washington University Law Review

Recent years have seen a significant increase in the criminal penalties associated with possession of child pornography. The new severity appears to be premised on arguments that blur the distinction between those who possess images of child pornography and those who sexually abuse children. In particular, sentences have been increased based on arguments that possession of pornography is equivalent to or worse than child sex abuse, arguments that viewing child pornography increases the risk that an individual will sexually abuse a child, and arguments that those who possess child pornography are abusing children undetected. This Article identifies instances where possession ...


Kimbrough, Spears, And Categorical Rejection: The Latest Additions To The Family Of Federal Sentencing Policy Cases, Sophia A. Vandergrift Jan 2010

Kimbrough, Spears, And Categorical Rejection: The Latest Additions To The Family Of Federal Sentencing Policy Cases, Sophia A. Vandergrift

Washington University Law Review

No abstract provided.


The Political Fourth Amendment, Thomas P. Crocker Jan 2010

The Political Fourth Amendment, Thomas P. Crocker

Washington University Law Review

The Political Fourth Amendment builds on Justice Ginsburg's recent dissent in Herring v. United States to argue for a “more majestic conception” of the Fourth Amendment focused on protecting political liberty. To put the point dramatically, we misread the Fourth Amendment when we read it exclusively as a criminal procedure provision focused entirely on either regulating police or protecting privacy. In order to see the Fourth Amendment as contributing to the Constitution's protections for political liberty, and not simply as an invitation to regulate police practice, we must take seriously the fact that the Fourth Amendment's textual ...


Victims By Definition, Andrew Nash Jan 2008

Victims By Definition, Andrew Nash

Washington University Law Review

No abstract provided.


The Practical Mandates Of The Fourth Amendment: A Behavioral Argument For The Exclusionary Rule And Warrant Preference, Bryan D. Lammon Jan 2007

The Practical Mandates Of The Fourth Amendment: A Behavioral Argument For The Exclusionary Rule And Warrant Preference, Bryan D. Lammon

Washington University Law Review

No abstract provided.


Fast-Track Disparities In The Post-Booker World: Re-Examining Illegal Reentry Sentencing Policies, Rebecca Schendel Norris Jan 2006

Fast-Track Disparities In The Post-Booker World: Re-Examining Illegal Reentry Sentencing Policies, Rebecca Schendel Norris

Washington University Law Review

No abstract provided.


The End Of Bordenkircher: Extending The Logic Of Apprendi To Plea Bargaining, Michael M. O'Hear Jan 2006

The End Of Bordenkircher: Extending The Logic Of Apprendi To Plea Bargaining, Michael M. O'Hear

Washington University Law Review

Although the Supreme Court approved of the use of charging threats nearly thirty years ago in Bordenkircher v. Hayes, a more recent line of cases has subtly undermined key premises of that landmark decision. In order to induce guilty pleas, prosecutors might use any of a number of different tactics. A prosecutor might, for instance, charge aggressively in the first instance and then promise to drop the most serious charges in return for a guilty plea to a lesser offense. Bordenkircher v. Hayes addressed the mirror-image of this tactic: the prosecutor filed relatively minor charges at first, but then threatened ...


Why Are Federal Judges So Acquittal Prone?, Andrew D. Leipold Jan 2005

Why Are Federal Judges So Acquittal Prone?, Andrew D. Leipold

Washington University Law Review

Federal criminal defendants almost always prefer a jury trial to a bench trial, but it is unclear why. Statistically, federal judges are significantly more likely to acquit than a jury is—over a recent 14 year period, for example, the jury trial conviction rate was 84%, while the bench conviction rate was a mere 55%. Moreover, while the conviction rate for juries has remained nearly constant for many years, the judicial rate has fallen steadily since the late 1980s. This Article presents the first systematic attempt to explain this “conviction gap.” Using original compilations of government records on over 75 ...


The Prosecutor V. Aleksovski, 30 May 2001, Judgment On Appeal By Anto Nobilo Against Finding Of Contempt: A Critical Analysis Of The Icty Appeals Chamber's Abandonment Of Witness Protection Measures, Fatema E. Fallahnejad Burkey Jan 2004

The Prosecutor V. Aleksovski, 30 May 2001, Judgment On Appeal By Anto Nobilo Against Finding Of Contempt: A Critical Analysis Of The Icty Appeals Chamber's Abandonment Of Witness Protection Measures, Fatema E. Fallahnejad Burkey

Washington University Law Review

No abstract provided.


Reforming Three Strikes' Excesses, Michael Vitiello Jan 2004

Reforming Three Strikes' Excesses, Michael Vitiello

Washington University Law Review

The obvious solution to curb Three Strikes’ excesses is legislative reform of the Three Strikes law. This Article explores possible legislative reform. Proposition 184, the initiative creating the Three Strikes law, requires that any amendments to the law must be passed by a two-thirds majority of the legislature. Part II of this Article discusses the evidence that Three Strikes has failed in its promises to save money and lives and that the benefits that it delivers are unnecessarily expensive in light of limited benefits that it provides. Part III reviews the lack of success that Three Strikes defendants have had ...


The Seventh Amendment, Modern Procedure, And The English Common Law, Suja A. Thomas Jan 2004

The Seventh Amendment, Modern Procedure, And The English Common Law, Suja A. Thomas

Washington University Law Review

This Article assumes the validity of the English common law historical test to the constitutionality analysis. It argues, however, that the underlying test, unconnected to actual principles of the common law devices, has caused the invariable constitutionalization of procedures that are increasingly used by the federal courts. This Article develops principles derived from the English common law by which modern procedures that affect the jury trial right can be reassessed. These proposed principles include that procedures permitted under the English common law should be constitutional, and that procedures proscribed under the English common law should be unconstitutional. Part I begins ...


Kids, Drugs, And School Intervention: How Far Can A Public School Go In Drug Testing Its Students?, Katrin Miller Rothgery Jan 2003

Kids, Drugs, And School Intervention: How Far Can A Public School Go In Drug Testing Its Students?, Katrin Miller Rothgery

Washington University Law Review

No abstract provided.


Accuracy Where It Matters: Brady V. Maryland In The Plea Bargaining Context, Corinna Barrett Lain Jan 2002

Accuracy Where It Matters: Brady V. Maryland In The Plea Bargaining Context, Corinna Barrett Lain

Washington University Law Review

Decided in 1963, Brady v. Maryland imposes on prosecutors a duty to share with defendants information favorable to the defense and material to guilt or punishment. Under Brady and its progeny, prosecutors must disclose impeachment as well as exculpatory information, and are not excused from nondisclosure even if they never received a request for the information or were unaware that the government had it to give. In the analysis below, I argue that Brady’s role in protecting the innocent from wrongful conviction is just as essential in the plea bargaining context as it is at trial, and that therefore ...


Constitutional Amnesia: Judicial Validation Of Probable Cause For Arresting The Wrong Person On A Facially Valid Warrant, Melanie Schoenfeld Jan 2001

Constitutional Amnesia: Judicial Validation Of Probable Cause For Arresting The Wrong Person On A Facially Valid Warrant, Melanie Schoenfeld

Washington University Law Review

No abstract provided.


Life But Not Liberty? An Assessment Of Noncapital Indigent Defendants' Rights To Expert Assistance Under The Ake V. Oklahoma Doctrine, Amber J. Mcgraw Jan 2001

Life But Not Liberty? An Assessment Of Noncapital Indigent Defendants' Rights To Expert Assistance Under The Ake V. Oklahoma Doctrine, Amber J. Mcgraw

Washington University Law Review

No abstract provided.


The Public Interest And Private Financing Of Criminal Prosecutions, Rebecca A. Pinto Jan 1999

The Public Interest And Private Financing Of Criminal Prosecutions, Rebecca A. Pinto

Washington University Law Review

No abstract provided.


Reining In The “Junior Varsity Congress”: A Call For Meaningful Judicial Review Of The Federal Sentencing Guidelines, Joseph W. Luby Jan 1999

Reining In The “Junior Varsity Congress”: A Call For Meaningful Judicial Review Of The Federal Sentencing Guidelines, Joseph W. Luby

Washington University Law Review

Part II presents a brief history of federal sentencing reform, including the rise of judicial and academic dissatisfaction with the Guidelines. To provide a context for the administrative law prescriptions that I propose, Part II reviews some of the Commission’s more questionable judgments. Part III details and criticizes the limited judicial review surrounding the Commission’s implementation of its statutory mandates. Part III focuses upon “statutory review”— the side-by-side comparison of Guidelines provisions with the statutory commands that govern them. It begins with an administrative law framework against which the Guidelines might be evaluated, tracing the rise and fall ...


Necessity Of Conviction Before Forfeiture Under Missouri's Criminal Activity Forfeiture Act, Shannon Jade Ryser Jan 1996

Necessity Of Conviction Before Forfeiture Under Missouri's Criminal Activity Forfeiture Act, Shannon Jade Ryser

Washington University Law Review

No abstract provided.


The Decline And Potential Collapse Of Federal Guideline Sentencing, David Robinson Jr. Jan 1996

The Decline And Potential Collapse Of Federal Guideline Sentencing, David Robinson Jr.

Washington University Law Review

Although it represents an impressive intellectual effort, the present federal sentencing structure is markedly dysfunctional in practice. A recent directive by the Attorney General, to all federal prosecutors, makes an already deeply flawed system so unjust that it deserves speedy replacement. This Article begins by discussing the nature of the problem. Then, the Article discusses the problem's recent history regarding the scope of prosecutive discretion, both traditionally and under the Sentencing Reform Act and Guidelines, and the efforts to reduce the effect of prosecutive discretion. It concludes with a consideration of what is to be done to rectify the ...


Attempted Burglary As A “Violent Felony” Under The Armed Career Criminal Act: Avoiding A “Serious Potential Risk” Of Confusion In The Wake Of Taylor V. United States, 495 U.S. 575 (1990), Douglas A. Passon Jan 1995

Attempted Burglary As A “Violent Felony” Under The Armed Career Criminal Act: Avoiding A “Serious Potential Risk” Of Confusion In The Wake Of Taylor V. United States, 495 U.S. 575 (1990), Douglas A. Passon

Washington University Law Review

No abstract provided.


Upward Departures From The Sentencing Guidelines: Should Nonsimilar, Outdated Convictions Provide A Basis For Departure? United States V. Diaz-Collado, 981 F.2d 640 (2d Cir. 1992), Cert. Denied, 113 S. Ct. 2934 (1993), Carol A. Shubinski Jan 1994

Upward Departures From The Sentencing Guidelines: Should Nonsimilar, Outdated Convictions Provide A Basis For Departure? United States V. Diaz-Collado, 981 F.2d 640 (2d Cir. 1992), Cert. Denied, 113 S. Ct. 2934 (1993), Carol A. Shubinski

Washington University Law Review

No abstract provided.


Chaotic Sentencing: Downward Departures Based On Extraordinary Family Circumstances: United States V. Johnson, 964 F.2d 124 (2d Cir.1992), Donald C. Wayne Jan 1993

Chaotic Sentencing: Downward Departures Based On Extraordinary Family Circumstances: United States V. Johnson, 964 F.2d 124 (2d Cir.1992), Donald C. Wayne

Washington University Law Review

No abstract provided.