Law Commons^™

Modern Police Practices: Arizona V. Gant's Illusory Restriction Of Vehicle Searches Incident To Arrest, Seth W. Stoughton

Faculty Publications

In 2009, the Supreme Court overturned thirty years of precedent with a decision that purported to dramatically cut back on the ability of law enforcement officers to conduct warrantless vehicle searches incident to the arrest of a vehicle occupant. Scholars and commentators celebrated Arizona v. Gant’s constraint of police, and subsequent scholarship has focused exclusively on peripheral concerns such as alternative justifications for warrantless searches and Gant’s effect on non-vehicle searches. This Note challenges the core assumption that Gant will substantially limit vehicle searches incident to arrest, contending that Gant is far more permissive than it appears. In most cases, …

Defining Instrumentalities Of Deadly Force, Tim Longo

Touro Law Review

No abstract provided.

Wrongful Conviction Claims Under Section 1983, Martin A. Schwartz, Robert W. Pratt Honorable

Touro Law Review

No abstract provided.

Arizona’S Support Our Law Enforcement And Safe Neighborhoods Act: Its Likely Consequences On Latino Communities And What To Do About Them, Elena Llamas

elena llamas

The U.S. has seen a recent wave of legislative efforts to empower state and local law enforcement officers with anti-illegal immigration responsibilities. The purpose of this article is to suggest community policing changes that police departments could enact to best enforce these types of laws and mantain good relations with Latinos.

Beginning To End Racial Profiling: Definitive Solutions To An Elusive Problem, Kami Chavis Simmons

Faculty Publications

Remedying an elusive practice such as racial profiling remains a challenging issue for the judiciary and reformers must rely on other avenues for a solution. For example, even where evidence demonstrates that minorities are disproportionately stopped and searched, courts rarely recognize the victim's claim or provide relief. Thus, it is clear that courts will not be the catalysts of change. This Article argues that while courts may be reluctant to provide judicial remedies, police departments themselves should not ignore [minorities'] perceptions [of racial discrimination] and should take measures to reduce any possible profiling and increase partnerships with communities. An indication …

High Expectations And Some Wounded Hopes: The Policy And Politics Of A Uniform Statute On Videotaping Custodial Interrogations, Andrew Taslitz

Andrew E. Taslitz

Much has been written about the need to videotape the entire process of police interrogating suspects. Videotaping discourages abusive interrogation techniques, improves police training in proper techniques, reduces frivolous suppression motions because facts are no longer in dispute, and improves jury decision making about the voluntariness and accuracy of a confession. Despite these benefits, only a small, albeit growing, number of states have adopted legislation mandating electronic recording of the entire interrogation process. In the hope of accelerating legislative adoption of this procedure and of improving the quality of such legislation, the Uniform Law Commission (ULC), formerly the National Conference …

J.D.B. V. North Carolina And The Reasonable Person, Christopher Jackson

Michigan Law Review First Impressions

This Term, the Supreme Court was presented with a prime opportunity to provide some much-needed clarification on a "backdrop" issue of law-one of many topics that arises in a variety of legal contexts, but is rarely analyzed on its own terms. In J.D.B. v. North Carolina, the Court considered whether age was a relevant factor in determining if a suspect is "in custody" for Miranda purposes, and thus must have her rights read to her before being questioned by the police. Miranda, like dozens of other areas of law, employs a reasonable person test on the custodial question: it asks …

¡Silencio! Undocumented Immigrant Witnesses And The Right To Silence, Violeta R. Chapin

Michigan Journal of Race and Law

At a time referred to as "an unprecedented era of immigration enforcement," undocumented immigrants who have the misfortune to witness a crime in this country face a terrible decision. Calling the police to report that crime will likely lead to questions that reveal a witness's inmigration status, resulting in detention and deportation for the undocumented immigrant witness. Programs like Secure Communities and 287(g) partnerships evidence an increase in local immigration enforcement, and this Article argues that undocumented witnesses' only logical response to these programs is silence. Silence, in the form of a complete refusal to call the police to report …

Schneckloth V. Bustamonte: History’S Unspoken Fourth Amendment Anomaly, Brian Gallini

School of Law Faculty Publications and Presentations

The officer walking the beat has numerous tools at her disposal to effectuate a warrantless search, the most popular of which is the consent search. Academics, courts, and the public appear skeptical of current consent search practices; so, how did we get here? Step back to 1969 when President Nixon appointed Warren Burger to replace Earl Warren as Chief Justice of the Supreme Court. At that time, many believed Burger’s “law and order” background foretold Miranda’s overruling. That never happened; a handful of commentators and historians therefore view the Burger Court’s criminal procedure decisions as anticlimactic. That view overlooks the …

Schneckloth V. Bustamonte: History’S Unspoken Fourth Amendment Anomaly, Brian Gallini

Brian Gallini

First Amendment Protects Crude Protest Of Police Action, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

Wrongful Conviction Claims Under Section 1983, Martin A. Schwartz, Robert W. Pratt

Martin A. Schwartz

No abstract provided.

Rodney King And The Decriminalization Of Police Brutality In America: Direct And Judicial Access To The Grand Jury As Remedies For Victims Of Police Brutality When The Prosecutor Declines To Prosecute, Peter L. Davis

Peter L. Davis

This Article begins with the premise that, despite political rhetoric and occasional prosecutions to the contrary, police brutality has been effectively decriminalized in this country. The Article adopts the Rodney King case as the paradigm for examining this phenomenon. Scrutinizing the culture and semantics of police brutality, the author concludes that a double standard of criminality exists in the United States, under which different rules apply to a police than to everyone else. This double standard is socially dysfunctional. Particularly among minorities, it leads to a sense of cynicism about our legal system that can result in civil disorder when …

Corruption And Confidence In Public Institutions: Evidence From A Global Survey, Bianca Clausen, Aart Kraay, Zsolt Nyiri

Department of Political Science and Law Faculty Scholarship and Creative Works

Well-functioning institutions matter for economic development. In order to operate effectively, public institutions must also inspire confidence in those they serve. We use data from the Gallup World Poll, a unique and very large global household survey, to document a quantitatively large and statistically significant negative correlation between corruption and confidence in public institutions. This suggests an important indirect channel through which corruption can inhibit development: by eroding confidence in public institutions. This correlation is robust to the inclusion of a large set of controls for country and respondent-level characteristics. Moreover we show how it can plausibly be interpreted as …

Analyzing Stops, Citations, And Searches In Washington And Beyond, Mario L. Barnes, Robert S. Chang

Seattle University Law Review

Racial disproportionality in the criminal justice system is a fact. But the fact of racial disproportionality is the beginning and not the end of the conversation. The fact that blacks are overrepresented in stop, arrest, charge, pretrial detention, conviction, and incarceration statistics demonstrates only correlation and not causation. A number of commentators caution that disproportionality and the overrepresentation of blacks, Native-Americans, and Hispanics in Washington State’s prisons do not prove racial discrimination. Further, the fact of disproportionality at each stage of criminal justice processing does not prove that racial discrimination occurs at each particular stage. For example, the observed disproportionality …

Methodological Issues In Biased Policing Research With Applications To The Washington State Patrol, Clayton Mosher, J. Mitchell Pickerill

Seattle University Law Review

Racial profiling violates the United States Constitution’s premise that all people are equal under the law, as well as the Fourth Amendment’s guarantee that people should be free from unreasonable searches and seizures. Racial profiling has been found to result from individual officer racism or stereotyping, from institutionalized biases, and from the organizational culture of law enforcement agencies. We begin this Article by discussing the history of racial profiling before proceeding to consider various studies from a select number of American jurisdictions. We then examine important methodological and theoretical issues in conducting research on racial profiling and racially biased policing, …

Proposal To Reverse The View Of A Confession: From Key Evidence Requiring Corroboration To Corroboration For Key Evidence, Boaz Sangero, Mordechai Halpert

University of Michigan Journal of Law Reform

Both case law and legal literature have recognized that all, and not just clearly statistical, evidence is probabilistic. Therefore, we have much to learn from the laws of probability with regard to the evaluation of evidence in a criminal trial. The present Article focuses on the confession. First, we review legal and psychological literature and show that the probability of a false confession and, consequently, a wrongful conviction, is far from insignificant. In light of this, we warn against the cognitive illusion, stemming from the fallacy of the transposed conditional, which is liable to mislead the trier of fact in …

How United States V. Jones Can Restore Our Faith In The Fourth Amendment, Erica Goldberg

Michigan Law Review First Impressions

United States v. Jones, issued in January of this year, is a landmark case that has the potential to restore a property-based interpretation of the Fourth Amendment to prominence. In 1967, the Supreme Court abandoned its previous Fourth Amendment framework, which had viewed the prohibition on unreasonable searches in light of property and trespass laws, and replaced it with a rule protecting the public’s reasonable expectations of privacy. Although the Court may have intended this reasonable expectations test to provide more protection than a test rooted in property law, the new test in fact made the Justices’ subjective views about …

Cooperative Federalism And Police Reform: Using Congressional Spending Power To Promote Police Accountability, Kami Chavis Simmons

Faculty Publications

Police misconduct and corruption persist in our nation's local police departments. Recognizing the organizational roots of police misconduct, Congress granted the U.S. Department of Justice (the "DOJ") the authority to seek injunctive relief to implement institutional reforms within local law enforcement agencies. While the federal government's current strategy represents a promising model for reform, the DOJ's efforts cannot reach many local police departments that require intervention. Furthermore, the local primacy of criminal-justice issues, particularly issues related to police practices, implicates important federalism concerns. Although federal intervention is appropriate to address persistent patterns of misconduct, states and local entities must play …

When The Child Abuser Has A Bible: Investigating Child Maltreatment Sanctioned Or Condoned By A Religious Leader, Basyle Tchividjian

Basyle Tchividjian

In many cases of child sexual and physical abuse, perpetrators use religious or spiritual themes to justify their abuse of a child. Although no known religion in modern culture suggests that sexual abuse is condoned or taught as part of its tenets, some church leaders engage in conduct suggesting the child is equally, if not more to blame than the perpetrator, while also urging immediate reconciliation between the perpetrator and victim. In more than one case, pastors have asked children to confess their own “sins” in being sexually abused and have even required children to “confess” in front of an …

Policing In The United States: Balancing Crime Fighting And Legal Rights, John Eterno Ph.D.

Faculty Works: Criminal Justice and Legal Studies

Policing in any nation is an inextricable and essential aspect of the existing government. The government of the United States is an elected democracy. It is a tripartite system including legislative, executive, and judicial branches. Essentially, the legislature creates the laws, the executive is charged with enforcing laws, and the judiciary interprets the laws. At the federal level these branches are the president, Congress, and federal courts (the highest court being the United States Supreme Court). Because the founding fathers of the U.S. (the authors and supporters of the Constitution of the United States) feared tyranny, no branch of government …

Hanging On By A Thread: The Exclusionary Rule (Or What's Left Of It) Lives For Another Day, David A. Moran

Articles

Back when there was a Soviet Union, foreign intelligence officers would anxiously await the May Day parade in Moscow to see who would be standing next to the chairman of the Communist Party and who would be missing from the reviewing platform altogether. Since the Soviet government and the statecontrolled press published very little about what was really going on in the halls of state power, this was considered the most reliable way to determine who was in or out of favor and, by extension, how the domestic and foreign policies of the world's second most powerful country were likely …

Prosecuting The Informant Culture, Andrew E. Taslitz

Michigan Law Review

Alexandra Natapoff, in her outstanding new book, Snitching: Criminal Informants and the Erosion of American Justice, makes a compelling case for reform of the system by which we regulate police use of criminal informants. Indeed, as other writers have discussed, law enforcement's overreliance on such informants has led to a "snitching culture" in which informant snitching replaces other forms of law enforcement investigation (pp. 12, 31, 88-89). Yet snitches, especially jailhouse snitches, are notoriously unreliable.

Growing Up Policed In The Age Of Aggressive Policing Policies, Brett G. Stoudt, Michelle Fine, Madeline Fox

Publications and Research

Spray-painted atop an old tenement building in the East Village of Manhattan is a large fossilized graffiti image of a tyrannosaurus rex that reads: “NYC EATS ITS YOUNG.” With its ribs exposed and mouth open, this image represents symbolically what many young people in the neighborhood already know intimately and have experienced: New York City (NYC) is not an easy place to grow up. Their social safety nets are being dismantled and the public institutions they rely on every day often fail them. In NYC, public school budgets are being slashed each year even though the high school dropout/push-out rates …

Wrongful Conviction Claims Under Section 1983, Martin A. Schwartz, Robert W. Pratt

Scholarly Works

No abstract provided.

Community Down: The Loss Of Sergeant Joe Bergeron, John Edward Helcl Ii

All Graduate Theses, Dissertations, and Other Capstone Projects

What local government officials, administrators, and staff can expect and how to can help in the aftermath of a peace officer’s line-of-duty death within their community.

A Case Study In Tanzania: Police Round-Ups And Detention Of Street Children As A Substitute For Care And Protection, Sheryl L. Buske

South Carolina Journal of International Law and Business

No abstract provided.

Disentangling Administrative Searches, Eve Brensike Primus

Articles

Everyone who has been screened at an international border, scanned by an airport metal detector, or drug tested for public employment has been subjected to an administrative search. Since September 11th, the government has increasingly invoked the administrative search exception to justify more checkpoints, unprecedented subway searches, and extensive wiretaps. As science and technology advance, the frequency and scope of administrative searches will only expand. Formulating the boundaries and requirements of administrative search doctrine is therefore a matter of great importance. Yet the rules governing administrative searches are notoriously unclear. This Article seeks to refocus attention on administrative searches and …

Pretrial Incentives, Post-Conviction Review, And Sorting Criminal Prosecutions By Guilt Or Innocence, Samuel R. Gross

Articles

The fundamental problem with false convictions is that they are unobserved, and in general, unobservable. We don't spot them when they happen-if we did, they wouldn't happen-and in most cases we can't identify them after the fact. We have no general reliable test for innocence or guilt; if we did, we'd use it at trial. As result, we often say that we don't know for sure whether a convicted criminal defendant is innocent or guilty, or even that we can't know for sure. But this isn't exactly true-or rather, its truth depends on who we mean by "we."