Law Commons^™

United States V. Leon And Its Ramifications, Robert M. Bloom

Robert M. Bloom

No abstract provided.

Border Searches In The Age Of Terrorism, Robert M. Bloom

Robert M. Bloom

This article will first explore the history of border searches. It will look to the reorganization of the border enforcement apparatus resulting from 9/11 as well as the intersection of the Fourth Amendment and border searches generally. Then, it will analyze the Supreme Court's last statement on border searches in the Flores-Montano27 decision, including what impact this decision has had on the lower courts. Finally, the article will focus on Fourth Amendment cases involving terrorism concerns after 9/11, as a means of drawing some conclusions about the effect the emerging emphasis on terrorism and national security concerns will likely have …

Jailhouse Informants, Robert M. Bloom

Robert M. Bloom

No abstract provided.

“A More Majestic Conception:” The Importance Of Judicial Integrity In Preserving The Exclusionary Rule, Robert M. Bloom, David H. Fentin

Robert M. Bloom

In Mapp v. Ohio (1961), the Warren Court held that the so-called exclusionary rule was applicable to the states. Subsequent Supreme Courts have shown their disenchantment with the rule by seeking to curb its applicability. Most recently, the Court has characterized the exclusionary rule as a “massive remedy” to be applied only as a “last resort.” The Courts’ analytical framework for the last thirty-five years for cutting back the exclusionary rule was a balancing test which weighed the costs of suppressing reliable evidence with the benefits of deterring future police violations. This balancing has been used most recently in two …

Warrant Requirement -- The Burger Court Approach, Robert M. Bloom

Robert M. Bloom

No abstract provided.

Judicial Integrity: A Call For Its Re-Emergence In The Adjudication Of Criminal Cases, Robert M. Bloom

Robert M. Bloom

A court can invalidate or rectify certain kinds of offensive official action on the grounds of judicial integrity. In the past, it has served as a check on overzealous law enforcement agents whose actions so seriously impaired due process principles that they shocked the bench’s conscience. The principle not only preserves the judiciary as a symbol of lawfulness and justice, but it also insulates the courts from becoming aligned with illegal actors and their bad acts. The 1992 case of U.S. v. Alvarez-Machain, however, may have signaled a departure from past practices. This article reviews current Supreme Court cases and …

The Constitutional Infirmity Of Warrantless Nsa Surveillance: The Abuse Of Presidential Power And The Injury To The Fourth Amendment, Robert M. Bloom, William J. Dunn

Robert M. Bloom

In recent months, there have been many revelations about the tactics used by the Bush Administration to prosecute their war on terrorism. These stories involve the exploitation of technologies that allow the government, with the cooperation of phone companies and financial institutions, to access phone and financial records. This paper focuses on the revelation and widespread criticism of the Bush Administration’s operation of a warrantless electronic surveillance program to monitor international phone calls and emails that originate or terminate with a United States party. The powerful and secret National Security Agency heads the program and leverages its significant intelligence collection …

Inevitable Discovery: An Exception Beyond The Fruits, Robert M. Bloom

Robert M. Bloom

No abstract provided.

Accounting For Federalism In State Courts - Exclusion Of Evidence Obtained Lawfully By Federal Agents, Robert M. Bloom, Hillary J. Massey

Robert M. Bloom

After the terrorist attacks on September 11th, Congress greatly enhanced federal law enforcement powers through enactment of the U.S.A. Patriot Act. The Supreme Court also has provided more leeway to federal officers in the past few decades, for example by limiting the scope of the exclusionary rule. At the same time, many states have interpreted their constitutions to provide greater individual protections to their citizens than provided by the federal constitution. This phenomenon has sometimes created a wide disparity between the investigatory techniques available to federal versus state law enforcement officers. As a result, state courts sometimes must decide whether …

Strands Of Privacy: Privacy Rights And Dna Sample Collection From Federal Criminal Defendants Charged With Felonies, Justin Dickerson

Justin Dickerson

On September 14, 2010, the Ninth Circuit held in United States v. Pool that the U.S. government can require federal defendants charged with felonies to provide a DNA sample as a condition of pre-trial release. The chain of rulings that led to this decision was set into motion in January 2009 when Jerry Arbert Pool was indicted in the Eastern District of California for possessing and receiving child pornography in violation of two federal statutes. Pool agreed to all of the court's bail conditions, except for one—Pool refused to provide a DNA sample. In his appeal to the Ninth Circuit, …

Excluding Exclusion: How Herring Jeopardizes The Fourth Amendment's Protections Against Unreasonable Search And Seizure, Hariqbal Basi

Hariqbal Basi

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 to …

The Missing Miranda Warning: Why What You Don’T Know Really Can Hurt You, Geoffrey S. Corn

Geoffrey S. Corn

Abstract

The Missing Miranda Warning: Why What You Don’t Know Really Can Hurt You

Miranda – at least the core rule that statements made by suspects in response to custodial interrogation are admissible in the prosecution’s case-in-chief only following a knowing and voluntary waiver of the Miranda rights – has survived decades of attacks. While the “stormy seas” the decision navigated produced a wake of academic study of the wisdom of the decision, little attention has been focused on an equally logical question: did Miranda go far enough? If, as the Miranda Court emphasized, the purpose of Miranda’s warnings was …

Cases On Criminal Procedure, Robert Bloom

Robert M. Bloom

No abstract provided.

The Surprising Lessons From Plea Bargaining In The Shadow Of Terror, Lucian Dervan

Lucian E Dervan

Since September 11, 2001, several hundred individuals have been convicted of terrorism related charges. Of these convictions, over 80% resulted from a plea of guilty. It is surprising and counterintuitive that such a large percentage of these cases are resolved in this manner, yet, even when prosecuting suspected terrorists caught attempting suicide attacks, the power of the plea bargaining machine exerts a striking influence. As a result, a close examination of these extraordinary cases offers important insights into the forces that drive the plea bargaining system. Utilizing these insights, this article critiques two divergent and dominant theories of plea bargaining …

Mcdonald V. Chicago: Which Standard Of Scrutiny Should Apply To Gun-Control Laws?, Lawrence Rosenthal

Lawrence Rosenthal

No abstract provided.

Criminal Procedure For South Carolina Practitioners, Margaret Lawton, Miller Shealy

Margaret M. Lawton

No abstract provided.

The Worldwide Accountability Deficit For Criminal Prosecutors, Ronald Wright, Marc Miller

Ronald F. Wright

In democratic governments committed to the rule of law, prosecutors should be accountable to the public, just like other powerful government agents who make important decisions. The theoretical need for prosecutor accountability, however, meets practical shortcomings in criminal justice systems everywhere. Individual prosecutors everywhere express allegiance to the rule of law through the wise decisions made by each prosecutor and across offices as a whole. But the claim “trust us” does not in fact generate the level of public trust that one should expect in a government of laws. Institutional strategies to guarantee prosecutor accountability all fall short of the …

Re-Evaluating Corporate Criminal Liability: The Doj's Internal Moral Culpability Standard For Corporate Criminal Liability, Lucian Dervan

Lucian E Dervan

This article examines the common law respondeat superior test for corporate criminal liability and proposes that it be expanded beyond the current two prong test to encompass a third prong regarding moral culpability. Further, this article supports this proposal by noting that the Department of Justice has already incorporated a moral culpability element into its analysis of corporate criminal liability through application of the Department’s Principles of Federal Prosecution of Business Organizations. While some might argue that one should be satisfied that the Department of Justice has seen fit to implement a new corporate criminal liability standard on its own …