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Selected Works

Criminal Procedure

Stephen E Henderson

Articles 1 - 30 of 33

Full-Text Articles in Law

Could A Robot Be District Attorney?, Stephen E. Henderson Jun 2019

Could A Robot Be District Attorney?, Stephen E. Henderson

Stephen E Henderson

No abstract provided.

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Should Robots Prosecute And Defend?, Stephen E. Henderson Dec 2018

Should Robots Prosecute And Defend?, Stephen E. Henderson

Stephen E Henderson

Even when we achieve the ‘holy grail’ of artificial intelligence—machine intelligence that is at least as smart as a human being in every area of thought—there may be classes of decisions for which it is intrinsically important to retain a human in the loop. On the common account of American criminal adjudication, the role of prosecutor seems to include such decisions given the largely unreviewable declination authority, whereas the role of defense counsel would seem fully susceptible of automation. And even for the prosecutor, the benefits of automation might outweigh the intrinsic decision-making loss, given that the ultimate decision—by judge …

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Carpenter V. United States And The Fourth Amendment: The Best Way Forward, Stephen E. Henderson Dec 2017

Carpenter V. United States And The Fourth Amendment: The Best Way Forward, Stephen E. Henderson

Stephen E Henderson

We finally have a federal ‘test case.’  In Carpenter v. United States, the Supreme Court is poised to set the direction of the Fourth Amendment in the digital age.  The case squarely presents how the twentieth-century third party doctrine will fare in contemporary times, and the stakes could not be higher.  This Article reviews the Carpenter case and how it fits within the greater discussion of the Fourth Amendment third party doctrine and location surveillance, and I express a hope that the Court will be both a bit ambitious and a good measure cautious. 
 
As for ambition, the …

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Fourth Amendment Anxiety, Stephen E. Henderson, Kiel Brennan-Marquez Dec 2017

Fourth Amendment Anxiety, Stephen E. Henderson, Kiel Brennan-Marquez

Stephen E Henderson

In Birchfield v. North Dakota (2016), the Supreme Court broke new Fourth Amendment ground by establishing that law enforcement’s collection of information can be cause for “anxiety,” meriting constitutional protection, even if subsequent uses of the information are tightly restricted.  This change is significant.  While the Court has long recognized the reality that police cannot always be trusted to follow constitutional rules, Birchfield changes how that concern is implemented in Fourth Amendment law, and importantly, in a manner that acknowledges the new realities of data-driven policing.
 
Beyond offering a careful reading of Birchfield, this Article has two goals. …

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Artificial Intelligence And Role-Reversible Judgment, Stephen E. Henderson, Kiel Brennan-Marquez Dec 2017

Artificial Intelligence And Role-Reversible Judgment, Stephen E. Henderson, Kiel Brennan-Marquez

Stephen E Henderson

As intelligent machines begin more generally outperforming human experts, why should humans remain ‘in the loop’ of decision-making?  One common answer focuses on outcomes: relying on intuition and experience, humans are capable of identifying interpretive errors—sometimes disastrous errors—that elude machines.  Though plausible today, this argument will wear thin as technology evolves.

Here, we seek out sturdier ground: a defense of human judgment that focuses on the normative integrity of decision-making.  Specifically, we propose an account of democratic equality as ‘role-reversibility.’  In a democracy, those tasked with making decisions should be susceptible, reciprocally, to the impact of decisions; there ought to …

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Brief Of Amici Curiae Criminal Procedure Professors In Gamble V. United States, No. 17-646, Stephen E. Henderson, George C. Thomas Iii, Michael J.Z. Mannheimer, Kiel Brennan-Marquez Dec 2017

Brief Of Amici Curiae Criminal Procedure Professors In Gamble V. United States, No. 17-646, Stephen E. Henderson, George C. Thomas Iii, Michael J.Z. Mannheimer, Kiel Brennan-Marquez

Stephen E Henderson

The Fifth Amendment guarantees that, “No person shall be ... subject for the same offence to be twice put in jeopardy of life or limb.” Yet that is precisely what happened to Terance Martez Gamble. The State of Alabama prosecuted and convicted him for being a felon in possession of a firearm. Subsequently, the United States initiated a second prosecution for what all parties have assumed is definitionally the same offense, yielding a second conviction. That second, duplicative prosecution and conviction violated the letter and spirit of the Double Jeopardy Clause.

As a matter of the Framer’s understanding, as a matter …

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A Few Criminal Justice Big Data Rules, Stephen E. Henderson Dec 2017

A Few Criminal Justice Big Data Rules, Stephen E. Henderson

Stephen E Henderson

As with most new things, the big data revolution in criminal justice has historic antecedents—indeed, a 1965 Presidential Commission called for some of the same data analysis that police departments and courts are today developing and implementing.  But there is no doubt we are on the precipice of a criminal justice data revolution, and it is a good time to take stock and to begin developing guidelines so that, as much as possible, criminal justice systems might reap the benefits and avoid the pitfalls of this newly data-centric world.  In that spirit, I propose ten high-level rules to guide criminal …

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Testimony On Unmanned Aircraft Systems Rules And Regulations, Stephen E. Henderson Sep 2016

Testimony On Unmanned Aircraft Systems Rules And Regulations, Stephen E. Henderson

Stephen E Henderson

Chairman Barrington, Vice Chair Brooks, members of the Committee on Public Safety, Senators, and distinguished guests, I am grateful for the opportunity to speak to you today about unmanned aerial systems, or drones, and more particularly about their federal constitutional implications and what might be the constitutional restrictions on any legislation you might like to enact. I am the Judge Haskell A. Holloman Professor of Law at the University of Oklahoma, where my teaching and research focus on criminal law and procedure and privacy, including the constitutional rights pertaining thereto.

My topic is not an easy one. The constitutional law …

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If You Fly A Drone, So Can Police, Stephen E. Henderson May 2016

If You Fly A Drone, So Can Police, Stephen E. Henderson

Stephen E Henderson


According to the U.S. Constitution, the more you fly your drone, the more police can fly theirs. “Come on,” you might reply, “that hoary document”—and, yes, sorry to make you the sort who drops words like hoary—“that hoary document surely says nothing about drones.” But in fact it does. At least it does as interpreted by the courts. In particular, it is how they interpret the Fourth Amendment. So, to understand this aspect of drones, we first must understand this provision of the Bill of Rights...

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Ou Professor: Fourth Amendment At Heart Of Dispute Between Fbi, Apple, Stephen E. Henderson Mar 2016

Ou Professor: Fourth Amendment At Heart Of Dispute Between Fbi, Apple, Stephen E. Henderson

Stephen E Henderson

The dispute between the FBI and Apple Inc. over the unlocking of the iPhone used by one of the San Bernadino shooters is important to all Americans. And so it's good that it is getting a wide airing. But when it comes to issues that have complicated tradeoffs, it can be important not just that we have the conversation, but that we use the right words. And here the debate deserves very mixed reviews. . . .

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Lawn Signs: A Fourth Amendment For Constitutional Curmudgeons, Stephen E. Henderson, Andrew G. Ferguson Dec 2015

Lawn Signs: A Fourth Amendment For Constitutional Curmudgeons, Stephen E. Henderson, Andrew G. Ferguson

Stephen E Henderson

What is the constitutional significance of the proverbial “keep off the grass” sign?  This question—asked by curmudgeonly neighbors everywhere—has been given new currency in a recent decision by the United States Supreme Court.  Indeed, Florida v. Jardines might have bestowed constitutional curmudgeons with significant new Fourth Amendment protections.  By expressing expectations regarding—and control over—access to property, “the people” may be able to claim greater Fourth Amendment protections not only for their homes, but also for their persons, papers, and effects.  This article launches a constitutionally grounded, but lighthearted campaign of citizen education and empowerment: Fourth Amendment LAWn signs.  With every …

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A Rose By Any Other Name: Regulating Law Enforcement Bulk Metadata Collection, Stephen E. Henderson Dec 2015

A Rose By Any Other Name: Regulating Law Enforcement Bulk Metadata Collection, Stephen E. Henderson

Stephen E Henderson

In Other People’s Papers, Jane Bambauer argues for careful reform of the Fourth Amendment’s third party doctrine, providing an important contribution to an increasingly rich field of scholarship, judicial opinion, statute, and law reform.  Bambauer is especially concerned with access to bodies of third-party data that can be filtered and mined, as they can be privacy invasive but also effective and less subject to traditional investigative prejudices and limitations.  Although her article provocatively overclaims in trying to set itself apart from existing proposals, by analyzing existing constitutional and statutory law—including what I have termed a “limited” third party doctrine—and comparing …

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Teaching Criminal Procedure: Why Socrates Would Use Youtube, Stephen E. Henderson, Joseph Thai Dec 2015

Teaching Criminal Procedure: Why Socrates Would Use Youtube, Stephen E. Henderson, Joseph Thai

Stephen E Henderson

In this invited contribution to the Law Journal's annual Teaching Issue, we pay some homage to the great philosopher whose spirit allegedly guides our classrooms, in service of two concrete goals. One, we employ dialogue to describe the “nuts and bolts” of teaching Criminal Procedure, most of which are equally relevant to any doctrinal law school course (including course description, office hours, seating charts and attendance, class decorum and recording, student participation, laptops, textbooks, class preparation and presentation, and exams). Two, we explain the benefits of using multimedia in the classroom, including a few of the many modules found on …

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Fourth Amendment Time Machines (And What They Might Say About Police Body Cameras), Stephen E. Henderson Dec 2015

Fourth Amendment Time Machines (And What They Might Say About Police Body Cameras), Stephen E. Henderson

Stephen E Henderson

When it comes to criminal investigation, time travel is increasingly possible.  Despite longstanding roots in traditional investigation, science is today providing something fundamentally different in the form of remarkably complete digital records.  And those big data records not only store our past, but thanks to data mining they are in many circumstances eerily good at predicting our future.  So, now that we stand on the threshold of investigatory time travel, how should the Fourth Amendment and legislation respond?  How should we approach bulk government capture, such as by a solar-powered drone employing wide-area persistent stare technology?  Is it meaningfully different …

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Praise Defenders, Not Just Prosecutors, Stephen E. Henderson Nov 2015

Praise Defenders, Not Just Prosecutors, Stephen E. Henderson

Stephen E Henderson

In this letter to the editor, I discuss the problems when a district court judge becomes a graduate and class spokesperson for a Citizens' Police Academy.

See article here.
See letter here.

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Testimony On Oklahoma Civil Asset Forfeiture Reform, Stephen E. Henderson Aug 2015

Testimony On Oklahoma Civil Asset Forfeiture Reform, Stephen E. Henderson

Stephen E Henderson

I am grateful for the opportunity to speak to you today about Senate Bill 838 and the reform of Oklahoma’s civil asset forfeiture. I am a professor of law at the University of Oklahoma, where my teaching and research focus on criminal law and procedure. I have experience achieving consensus solutions in contested areas of law, most notably in the six years I spent drafting a new set of ABA Criminal Justice Standards, and I know that change is rarely easy. No matter the topic and whatever the status quo, there is sure to be someone who feels it is …

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Regulating Drones Under The First And Fourth Amendments, Stephen E. Henderson, Joseph Thai, Marc Jonathan Blitz, James Grimsley Dec 2014

Regulating Drones Under The First And Fourth Amendments, Stephen E. Henderson, Joseph Thai, Marc Jonathan Blitz, James Grimsley

Stephen E Henderson

The FAA Modernization and Reform Act of 2012 requires the Federal Aviation Administration to integrate unmanned aerial vehicles (UAVs), or drones, into the national airspace system by September of this year. Yet perhaps because of their chilling accuracy in targeted killings abroad, perhaps because of an increasing consciousness of diminishing privacy more generally, and perhaps simply because of a fear of the unknown, divergent UAV-restrictive legislation has been proposed in Congress and enacted in a number of states. Ultimately, given UAV utility and cost effectiveness over a vast range of tasks, widespread commercial use seems certain. So it is imperative …

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A Dedication To Andrew E. Taslitz: “It’S All About The Egyptians,” And Maybe Tinkerbell Too, Stephen E. Henderson Dec 2013

A Dedication To Andrew E. Taslitz: “It’S All About The Egyptians,” And Maybe Tinkerbell Too, Stephen E. Henderson

Stephen E Henderson

This brief memorial remembers Andy's incredible friendship and service, and explains why this Symposium volume is so appropriately dedicated to his memory.

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Our Records Panopticon And The American Bar Association Standards For Criminal Justice, Stephen E. Henderson Dec 2013

Our Records Panopticon And The American Bar Association Standards For Criminal Justice, Stephen E. Henderson

Stephen E Henderson

"Secrets are lies. Sharing is caring. Privacy is theft." So concludes the main character in Dave Egger’s novel The Circle, in which a single company that unites Google, Facebook, and Twitter – and on steroids – has the ambition not only to know, but also to share, all of the world's information. It is telling that a current dystopian novel features not the government in the first instance, but instead a private third party that, through no act of overt coercion, knows so much about us. This is indeed the greatest risk to privacy in our day, both the unprecedented …

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Reforming The Grand Jury To Protect Privacy In Third Party Records, Stephen E. Henderson, Andrew E. Taslitz Dec 2013

Reforming The Grand Jury To Protect Privacy In Third Party Records, Stephen E. Henderson, Andrew E. Taslitz

Stephen E Henderson

In late 2014, two grand juries returned controversial no bill decisions in police killings, one in Ferguson, Missouri, and one in New York City. These outcomes have renewed calls for grand jury reform, and whatever one thinks of these particular processes and outcomes, such reform is long overdue. One logical source of reform to better respect privacy in records, which would have incidental benefits beyond this privacy focus, would be the newly enacted American Bar Association Standards for Criminal Justice on Law Enforcement Access to Third Party Records (LEATPR).

But LEATPR exempts from its requirements access to records via a …

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Who Should Be The ‘Decider’ On Keeping Our Secrets?, Stephen E. Henderson Sep 2013

Who Should Be The ‘Decider’ On Keeping Our Secrets?, Stephen E. Henderson

Stephen E Henderson

An invited essay for Constitution Day, also available here: http://blogs.law.widener.edu/constitution2013/2013-essay-authors/stephen-henderson/
It addresses the national security surveillance disclosed by Edward Snowden and others, and asks whether a fundamental shift would be prudent in the era of Big Data.

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American Bar Association Criminal Justice Standards On Law Enforcement Access To Third Party Records, Stephen E. Henderson Dec 2012

American Bar Association Criminal Justice Standards On Law Enforcement Access To Third Party Records, Stephen E. Henderson

Stephen E Henderson

Drafted over the past six years and adopted by the American Bar Association (ABA) House of Delegates in February, 2012, these Criminal Justice Standards on Law Enforcement Access to Third Party Records provide much needed guidance to legislatures, courts, and administrative agencies having to decide how to regulate law enforcement access to existing records in the hands of third parties. It is the first framework of its kind, and it can do much to improve the current system of ad hoc protections in both state and federal systems. Decision makers are struggling to determine when to permit law enforcement access …

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Search, Seizure, And Immunity: Second-Order Normative Authority And Rights, Stephen E. Henderson, Kelly Sorensen Dec 2012

Search, Seizure, And Immunity: Second-Order Normative Authority And Rights, Stephen E. Henderson, Kelly Sorensen

Stephen E Henderson

A paradigmatic aspect of a paradigmatic kind of right is that the rights holder is the only one who can alienate it. When individuals waive rights, the normative source of that waiving is normally taken to be the individual herself. This moral feature—immunity—is usually in the background of discussions about rights. We bring it into the foreground here, with specific attention to a recent U.S. Supreme Court decision, Kentucky v. King (2011), concerning search and seizure rights. An entailment of the Court’s decision is that, at least in some cases, a right can be removed by the intentional actions of …

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Real-Time And Historic Location Surveillance After United States V. Jones: An Administrable, Mildly Mosaic Approach, Stephen E. Henderson Dec 2012

Real-Time And Historic Location Surveillance After United States V. Jones: An Administrable, Mildly Mosaic Approach, Stephen E. Henderson

Stephen E Henderson

In United States v. Jones, the government took an extreme position: so far as the federal Constitution is concerned, law enforcement can surreptitiously electronically track the movements of any American over the course of an entire month without cause or restraint. According to the government, whether the surveillance be for good reason, invidious reason, or no reason, the Fourth Amendment is not implicated. Fortunately, that position was unanimously rejected by the High Court. The Court did not, however, resolve what restriction or restraint the Fourth Amendment places upon location surveillance, reflecting a proper judicial restraint in this nuanced and difficult …

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After United States V. Jones, After The Fourth Amendment Third Party Doctrine, Stephen E. Henderson Dec 2012

After United States V. Jones, After The Fourth Amendment Third Party Doctrine, Stephen E. Henderson

Stephen E Henderson

In United States v. Jones, the Supreme Court unanimously rejected the proposition that the Government can surreptitiously electronically track vehicle location for an entire month without Fourth Amendment restraint. While the Court's three opinions leave much uncertain, in one perspective they fit nicely within a long string of cases in which the Court is cautiously developing new standards of Fourth Amendment protection, including a rejection of a strong third party doctrine. This Article develops that perspective and provides a cautiously optimistic view of where search and seizure protections may be headed.

More detail:

United States v. Jones, in which the …

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What Alex Kozinski And The Investigation Of Earl Bradley Teach About Searching And Seizing Computers And The Dangers Of Inevitable Discovery, Stephen E. Henderson Dec 2012

What Alex Kozinski And The Investigation Of Earl Bradley Teach About Searching And Seizing Computers And The Dangers Of Inevitable Discovery, Stephen E. Henderson

Stephen E Henderson

This paper tells two stories. One concerns the investigation of a Delaware physician named Earl B. Bradley that resulted in a conviction and sentence of fourteen consecutive life terms for the sexual abuse of children. The other concerns the computer problems, both judicial and extra-judicial, of Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit. Though in a sense unrelated, they share lessons about the practicalities of computers and their search that are worth telling. As courts continue to struggle with how to cabin the searches of computers in order to minimize privacy intrusion …

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Expectations Of Privacy In Social Media, Stephen E. Henderson Dec 2011

Expectations Of Privacy In Social Media, Stephen E. Henderson

Stephen E Henderson

This article, which largely tracks my remarks at Mississippi College’s Social Media Symposium, examines expectations of privacy in social media such as weblogs (blogs), Facebook pages, and Twitter tweets. Social media is diverse and ever-diversifying, and while I address some of that complexity, I focus on the core functionality, which provides the groundwork for further conversation as the technology and related social norms develop. As one would expect, just as with our offline communications and other online communications, in some we have an expectation of privacy that is recognized by current law, in some we have an expectation of privacy …

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The Timely Demise Of The Fourth Amendment Third Party Doctrine, Stephen E. Henderson Dec 2010

The Timely Demise Of The Fourth Amendment Third Party Doctrine, Stephen E. Henderson

Stephen E Henderson

In what may be a slightly premature obituary, in this response to a forthcoming paper by Matthew Tokson I argue that the Fourth Amendment third party doctrine "has at least taken ill, and it can be hoped it is an illness from which it will never recover." It is increasingly unpopular as a matter of state constitutional law, has long been assailed in scholarship but now thoughtful alternatives are percolating, and it cannot – or at least should not – withstand the pressures which technology and social norms are placing upon it. Even the Supreme Court seems loath to defend …

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‘Move On’ Orders As Fourth Amendment Seizures, Stephen E. Henderson Dec 2007

‘Move On’ Orders As Fourth Amendment Seizures, Stephen E. Henderson

Stephen E Henderson

If a police officer orders one to move on, must the recipient comply? This article analyzes whether there is a federal constitutional right to remain, and in particular whether a police command to move on constitutes a seizure of the person for purposes of the Fourth Amendment. Although it is a close question, I conclude that the Fourth Amendment typically does not restrict a move on (MO) order, and that substantive due process only prohibits the most egregious such orders. It is a question of broad significance given the many legitimate reasons police might order persons to move on, as …

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The Technology Of Surveillance: Will The Supreme Court's Expectations Ever Resemble Society's?, Stephen E. Henderson Dec 2006

The Technology Of Surveillance: Will The Supreme Court's Expectations Ever Resemble Society's?, Stephen E. Henderson

Stephen E Henderson

For law students studying criminal procedure—or at least for those cramming for the exam—it becomes a mantra: government conduct only implicates the Fourth Amendment protection against unreasonable searches if it invades a “reasonable expectation of privacy.” This is not the contemporary definition of the word “search,” nor was it the definition at the time of the founding. But, via a well-intentioned concurrence by Justice Harlan in the famous 1967 case of Katz v. United States, it became the Court’s definition.
This lack of fealty to the English language left some questions. For example, is determining whether someone has a “reasonable …

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