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- Constitutional law; criminal procedure; fourth amendment; fifth amendment; encryption; smartphone (1)
- Criminal justice reform; bail reform; constitutional rights; constitutional law; risk assessment instrument (1)
- Criminal law; criminal ethics; prosecutorial discretion (1)
- Criminal procedure; electronically stored information; search warrants (1)
- Privacy law; science and technology; internet law (1)
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Articles 1 - 6 of 6
Full-Text Articles in Law
Open The Jail Cell Doors, Hal: A Guarded Embrace Of Pretrial Risk Assessment Instruments, Glen J. Dalakian Ii
Open The Jail Cell Doors, Hal: A Guarded Embrace Of Pretrial Risk Assessment Instruments, Glen J. Dalakian Ii
Fordham Law Review
In recent years, criminal justice reformers have focused their attention on pretrial detention as a uniquely solvable contributor to the horrors of modern mass incarceration. While reform of bail practices can take many forms, one of the most pioneering and controversial techniques is the adoption of actuarial models to inform pretrial decision-making. These models are designed to supplement or replace the unpredictable and discriminatory status quo of judicial discretion at arraignment. This Note argues that policymakers should experiment with risk assessment instruments as a component of their bail reform efforts, but only if appropriate safeguards are in place. Concerns for …
Unlocking The Fifth Amendment: Passwords And Encrypted Devices, Laurent Sacharoff
Unlocking The Fifth Amendment: Passwords And Encrypted Devices, Laurent Sacharoff
Fordham Law Review
Each year, law enforcement seizes thousands of electronic devices—smartphones, laptops, and notebooks—that it cannot open without the suspect’s password. Without this password, the information on the device sits completely scrambled behind a wall of encryption. Sometimes agents will be able to obtain the information by hacking, discovering copies of data on the cloud, or obtaining the password voluntarily from the suspects themselves. But when they cannot, may the government compel suspects to disclose or enter their password? This Article considers the Fifth Amendment protection against compelled disclosures of passwords—a question that has split and confused courts. It measures this right …
Regulating Search Warrant Execution Procedure For Stored Electronic Communications, Sara J. Dennis
Regulating Search Warrant Execution Procedure For Stored Electronic Communications, Sara J. Dennis
Fordham Law Review
Electronic communication services, from email, to social media, tomessaging applications, have not only dramatically changed daily life but have also had a profound impact on criminal investigations and procedure.The often large volume of electronically stored information has led to a two-step process for search warrant execution, codified in Federal Criminal Procedure Rule 41. When conducting a search pursuant to Rule 41, law enforcement often retains both responsive items—materials that fall within the scope of the warrant—and nonresponsive materials—intermingled items that can be searched, but ultimately exceed the scope of the warrant. This possession of nonresponsive material creates a tension between …
Unstitching Scarlet Letters?: Prosecutorial Discretion And Expungement, Brian M. Murray
Unstitching Scarlet Letters?: Prosecutorial Discretion And Expungement, Brian M. Murray
Fordham Law Review
This Article argues that scholarly discussions about prosecutorial discretion need to extend their focus beyond the exercise of prosecutorial judgment pretrial or questions of factual and legal guilt. Given that the primary role of the prosecutoris to do “justice,” this Article calls for increased attention to the exercise of discretion after the guilt phase is complete, specifically in the context of expungement of nonconviction andconviction information. It offers a framework for exercising such discretion and, in doing so, hopes to initiate additional conversation about the role of prosecutors during the phases that follow arrest and prosecution.
The New Writs Of Assistance, Ian Samuel
The New Writs Of Assistance, Ian Samuel
Fordham Law Review
The providers of network services (and the makers of network devices) know an enormous amount about our lives. Because they do, these network intermediaries are being asked with increasing frequency to assist the government in solving crimes or gathering intelligence. Given how much they know about us, if the government can secure the assistance of these intermediaries, it will enjoy a huge increase in its theoretical capacity for surveillance—the ability to learn almost anything about anyone. This has the potential to create serious social harm, even assuming that the government continues to adhere to ordinary democratic norms and the rule …
The Right To Two Criminal Defense Lawyers, Bruce A. Green
The Right To Two Criminal Defense Lawyers, Bruce A. Green
Faculty Scholarship
No abstract provided.