Law Commons^™

Hijacked At The Border: Why The Government Should Have Reasonable Suspicion Before Conducting Intrusive Examinations Of Our Personal Electronic Devices, Ryne Spengler

Seton Hall Circuit Review

No abstract provided.

Government Analysis Of Shed Dna Is A Search Under The Fourth Amendment, Tracey Maclin

Faculty Scholarship

This article addresses whether the Fourth Amendment is implicated when police surreptitiously collect and analyze a person’s involuntarily shed DNA.

Law enforcement officers will often obtain shed or abandoned DNA samples from persons who they suspect have committed crimes, but lack sufficient evidence to arrest or detain such persons. When utilizing abandoned or shed DNA for criminal investigative purposes, there are two state actions which arguably trigger Fourth Amendment protection. First, the collection of the biological material which contains a person’s DNA might be considered a search under the amendment. Courts, however, have uniformly rejected this argument. For example, when …

To Tell You The Truth, Federal Rule Of Criminal Procedure 24(A) Should Be Amended To Permit Attorneys To Conduct Voir Dire Of Prospective Jurors, C. J. Williams

South Carolina Law Review

No abstract provided.

State V. Harris, 131 Nev. Adv. Op. 56, Ashleigh Wise

Nevada Supreme Court Summaries

The Court held that it has the jurisdiction to consider an appeal by the State from an order granting a prejudgment motion for a new trial in a criminal matter because the plain language of NRS 177.015(1)(b) authorizes such an appeal and because unique policy concerns identified in State v. Lewis[1] do not apply.

[1] 124 Nev. 132, 136, 178 P.3d 146, 148 (2008).

Does The Calculation Matter - The Federal Sentencing Guidelines And The Doctrine Of Alternate Variance Sentences, James W. Harlow

South Carolina Law Review

No abstract provided.

Social-Network Theory And The Diffusion Of The Search-And-Seizure Exclusionary Rule Among State Courts Between Weeks And Wolf, Laurence A. Benner, Robert Bird, Donald J. Smythe

Laurence A. Benner

In light of the Supreme Court’s recent narrowing of the Fourth Amendment exclusionary rule in cases like Herring v. United States and Davis v. United States, there is renewed interest in whether state supreme courts will maintain or similarly narrow the search and seizure exclusionary rule for violations of their own state constitutions. The pattern of early adoptions of the exclusionary rule as a matter of state law before it was mandated by the federal Constitution may provide interesting insights into how the state supreme courts will respond to cases such as Herring and Davis. This article uses social-network theory …

Confronting Cops In Immigration Court, Mary Holper

William & Mary Bill of Rights Journal

Part I of the Article outlines the police report problem by discussing the four situations in which police reports are used in immigration court, why police reports are unreliable, and the scope of the problem. Part II discusses criminal law’s treatment of police reports, focusing on the Confrontation Clause of the Sixth Amendment, which provides the constitutional justification for excluding police reports in criminal cases. Part III discusses the use of hearsay evidence in immigration cases, where hearsay is allowed due to the characterization of removal proceedings as civil, not criminal. While there has been a trend to reject unreliable …

O'Connor's Firsts, Phyllis L. Crocker

Akron Law Review

Chief Justice Maureen O’Connor will make her mark on the Ohio court system and on the laws of Ohio in many ways. She made two significant marks her first day as Chief Justice: she was the first woman elected to the position of Chief Justice in Ohio and in her swearing-in speech she called for review of the death penalty in Ohio.1 Both were meaningful to me personally and as a citizen of Ohio. I appreciated her acknowledging her place in history and her willingness to tackle, right from the beginning of her tenure, the important topic of the death …

The Jury As Democracy, Jenny E. Carroll

Faculty Scholarship

Almost from the moment the law is set to paper, it is shaped and refined through acts of interpretation and discretion. Police and prosecutors choose which cases to investigate, which to charge and how to charge them. Judges make decisions every day that affect the outcome of cases. These acts of interpretation and discretion are driven by the perspectives of those empowered to make them. All too frequently, they reinforce existing power dynamics. But there are other realms of discretion in criminal law. Whether seeking to apply a legal standard as instructed or engaging in an act of nullification, ordinary …

The Preliminary Hearing: A Necessary Part Of Due Process, Andrea Lyon

Andrea D. Lyon

No abstract provided.

Social-Network Theory And The Diffusion Of The Search-And-Seizure Exclusionary Rule Among State Courts Between Weeks And Wolf, Laurence A. Benner, Robert Bird, Donald J. Smythe

Laurence A. Benner

No abstract provided.

The Presumption Of Guilt: Systemic Factors That Contribute To Ineffective Assistance Of Counsel In California, Laurence A. Benner

Laurence A. Benner

Our adversary system of criminal justice is premised upon the belief that effective advocacy by counsel for both the prosecution and the defense, conducted within a process founded upon principles of fundamental fairness, will "best promote the ultimate objective that the guilty be convicted and the innocent go free." The exoneration of the wrongfully convicted by the California Innocence Project and other innocence projects across the county has revealed, however, that our criminal justice system is sometimes deeply flawed. In theory, every person accused of a serious crime comes to court protected by a presumption of innocence and the promise …

Criminal Innovation And The Warrant Requirement: Reconsidering The Rights-Police Efficiency Trade-Off, Tonja Jacobi, Jonah Kind

William & Mary Law Review

It is routinely assumed that there is a trade-off between police efficiency and the warrant requirement. But existing analysis ignores the interaction between law-enforcement investigative practices and criminal innovation. Narrowing the definition of a search or otherwise limiting the requirement for a warrant gives criminals greater incentive to innovate to avoid detection. With limited resources to develop countermeasures, law enforcement officers will often be just as effective at capturing criminals when facing higher Fourth Amendment hurdles. We provide a game-theoretic model that shows that when law-enforcement investigation and criminal innovation are considered in a dynamic context, the police efficiency rationale …

The Surprising Acquittals In The Gotovina And Perisic Cases: Is The Icty Appeals Chamber A Trial Chamber In Sheep's Clothing, Mark A. Summers

Faculty Scholarship

No abstract provided.

Prosecuting Generals For War Crimes The Shifting Sands Of Accomplice Liability In International Criminal Law, Mark A. Summers

Faculty Scholarship

No abstract provided.

Government Analysis Of Shed Dna Is A Search Under The Fourth Amendment, Tracey Maclin

UF Law Faculty Publications

This article addresses whether the Fourth Amendment is implicated when police surreptitiously collect and analyze a person’s involuntarily shed DNA. Law enforcement officers will often obtain shed or abandoned DNA samples from persons who they suspect have committed crimes, but lack sufficient evidence to arrest or detain such persons. When utilizing abandoned or shed DNA for criminal investigative purposes, there are two state actions which arguably trigger Fourth Amendment protection. First, the collection of the biological material which contains a person’s DNA might be considered a search under the amendment. Courts, however, have uniformly rejected this argument. For example, when …