Criminal Law Commons^™

Confrontation, The Legacy Of Crawford, And Important Unanswered Questions, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

This is a short piece for the University of Michigan Journal of Law Reform as part of its 2024 Symposium on “Crawford at 20: Reforming the Confrontation Clause.” The piece's purpose is to highlight certain important questions left unanswered by Crawford v. Washington and subsequent confrontation cases.

Confronting Memory Loss, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

The Confrontation Clause of the Sixth Amendment grants “the accused” in “all criminal prosecutions” a right “to be confronted with the witnesses against him.” A particular problem occurs when there is a gap in time between the testimony that is offered, and the cross-examination of it, as where, pursuant to a hearsay exception or exemption, evidence of a current witness’s prior statement is offered and for some intervening reason her current memory is impaired. Does this fatally affect the opportunity to “confront” the witness? The Supreme Court has, to date, left unclear the extent to which a memory-impaired witness can …

Brief Of Amicus Curiae 290 Criminal Law And Mental Health Law Professors In Support Of Petitioner's Request For Reversal And Remand, Kahler V. Kansas, 18-6135 (U.S. June 6, 2019), Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

Amici curiae are a group of philosophically and politically diverse law school professors and scholars in the fields of criminal law and mental health from a variety of disciplines who have been teaching and writing about the insanity defense and related issues throughout their careers. They include the authors of leading criminal law and mental health law treatises and casebooks and numerous important scholarly books and articles.

Amici believe this case raises important questions about principles of criminal responsibility, the integral role of the insanity defense in Anglo-American law, and the inadequacy of the “mens rea alternative” to the traditional …

Functional Equivalence And Residual Rights Post-Carpenter: Framing A Test Consistent With Precedent And Original Meaning, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The Carpenter Court held that warrantless access to seven or more days of cell site location information (CSLI) constitutes a violation of the reasonable expectation of privacy that individuals have in the whole of their physical movements. But the grounds on which the Court drew a line characterize all sorts of digital records—including those at issue in Miller and Smith, belying the majority’s claim that the decision leaves third-party doctrine intact. Instead of avoiding Katz’s pitfalls, moreover, the Court emphasized voluntary assumption of risk, doubling down on the subjective nature of judicial determination. The decision will likely lead to …

Of Spies, Saboteurs, And Enemy Accomplices: History’S Lessons For The Constitutionality Of Wartime Military Tribunals, Martin S. Lederman

Georgetown Law Faculty Publications and Other Works

Congress has recently authorized military commissions to try enemies not only for violations of the international law of war, but also for domestic-law offenses, such as providing material support to terrorism and conspiring to commit law-of-war offenses. Moreover, President Trump has indicated support for further military trials, including trials against U.S. citizens. Such military tribunals lack the civilian jury and independent judge that Article III of the Constitution prescribes. The constitutionality of such an abrogation of Article III’s criminal trial guarantees has been debated during many of the nation’s wars without clear resolution, and the constitutional question is now at …

Unwrapping The Box The Supreme Court Justices Have Gotten Themselves Into: Internal Confrontations Over Confronting The Confrontation Clause, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

Williams v. Illinois, handed down in 2012, is the latest in a new and revolutionary line of U.S. Supreme Court cases beginning with the 2004 decision of Crawford v. Washington which radically altered the Court's former approach to the Constitutional Confrontation Clause. That clause generally requires persons who make written or oral statements outside the trial, that may constitute evidence against a criminal defendant, to take the witness stand for cross-examination rather than those statements being presented at the trial only by the writing or by another person who heard the statement.

Previous to Crawford, under Ohio v. …

Terrorism Trials In Article Iii Courts, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Some individuals reject Article III courts as a forum for bringing terrorist suspects to justice on the grounds that the ordinary judicial system cannot handle such cases. As an empirical matter, this claim is simply false. Since 2001, myriad terrorism trials have progressed through the criminal system. The U.S. Department of Justice (DOJ) reports that between 2001 and 2010, there were 998 defendants indicted in terrorism prosecutions. Eighty-seven percent of the defendants were convicted on at least one charge. According to the Executive Office for the U.S. Attorneys, from FY 2004 to FY 2009, there were 3,010 terrorism prosecutions. It …

Two Excursions Into Current U.S. Supreme Court Opinion-Writing, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

In the last weeks in June, 2015, as the present term of the U.S. Supreme Court drew to a close, many controversial and important decisions were handed down by the Court. The substance of the decisions has been written about extensively. Two of the decisions in particular, though, caught my eye as a teacher of legal techniques, not for the importance of the subject of the particular decision, but for what they may illustrate in a teachable fashion about at least some opinion writing. The two cases are Ohio v. Clark (June 18, 2015) interpreting the Confrontation Clause of the …

Substitute Arguments In Constitutional Law, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

In this article, I argue that that substitution is crucial to our practice of constitutional law. Of course, if one wished, one could easily extend the domain of substitution beyond these boundaries. Substitute arguments are an important aspect of law more generally and, indeed, of life. I have nonetheless chosen to limit my discussion to constitutional substitution because, I believe, overt discussion of substitution in this particular area illuminates important aspects of our constitutional regime-–aspects that substitution itself regularly obscures. To put my central point directly, I hope to show that constitutional law amounts to one, giant substitute argument.

Sexual Assaults Among University Students: Prevention, Support, And Justice, Rebecca B. Reingold, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Sexual assault is common among college-aged women (18 to 25 years), with 1 in 5 reporting having experienced these crimes during their college years. Acute and long-term consequences of sexual assault may include physical trauma, sexually transmitted infections, posttraumatic stress disorder, depression, and substance abuse. Survivors have the option of reporting assaults to the university or to the police, but the goals of these 2 systems—and women’s experiences with them—can be quite different. The criminal justice system’s principal aim is to adjudicate guilt, but the university has the broader purpose of fostering a safe learning environment.

This article explores how …

The Difference Prevention Makes: Regulating Preventive Justice, David Cole

Georgetown Law Faculty Publications and Other Works

Since the terrorist attacks of September 11, 2001, the United States and many other countries have adopted a ‘‘paradigm of prevention,’’ employing a range of measures in an attempt to prevent future terrorist attacks. This includes the use of pre textual charges for preventive detention, the expansion of criminal liability to prohibit conduct that precedes terrorism, and expansion of surveillance at home and abroad. Politicians and government officials often speak of prevention as if it is an unqualified good. Everyone wants to prevent the next terrorist attack, after all. And many preventive initiatives, especially where they are not coercive and …

Bond V. United States: Concurring In The Judgment, Nicholas Quinn Rosenkranz

Georgetown Law Faculty Publications and Other Works

Bond v. United States presented the deep constitutional question of whether a treaty can increase the legislative power of Congress. Unfortunately, a majority of the Court managed to sidestep the constitutional issue by dodgy statutory interpretation. But the other three Justices—Scalia, Thomas, and Alito—all wrote important concurrences in the judgment, grappling with the constitutional issues presented. In particular, Justice Scalia’s opinion (joined by Justice Thomas), is a masterpiece, eloquently demonstrating that Missouri v. Holland is wrong and should be overruled: a treaty cannot increase the legislative power of Congress.

The Trickle-Down War, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

The history of the European nation-state, wrote political sociologist Charles Tilly, is inextricably bound up with the history of warfare. To oversimplify Tilly’s nuanced and complex arguments, the story goes something like this: As power-holders (originally bandits and local strongmen) sought to expand their power, they needed capital to pay for weapons, soldiers and supplies. The need for capital and new recruits drove the creation of taxation systems and census mechanisms, and the need for more effective systems of taxation and recruitment necessitated better roads, better communications and better record keeping. This in turn enabled the creation of larger and …

Gideon At Guantánamo, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

The right to counsel maintains an uneasy relationship with the demands of trials for war crimes. Drawing on the author’s personal experiences from defending a Guantánamo detainee, the Author explains how Gideon set a baseline for the right to counsel at Guantánamo. Whether constitutionally required or not, Gideon ultimately framed the way defense lawyers represented their clients. Against the expectations of political and military leaders, both civilian and military lawyers vigorously challenged the legality of the military trial system. At the same time, tensions arose because lawyers devoted to a particular cause (such as attacking the Guantánamo trial system) were …

Military Commissions And The Paradigm Of Prevention, David Cole

Georgetown Law Faculty Publications and Other Works

Why military commissions? Given the United States’s track record of success in trying terrorists in civilian criminal courts, and the availability of courts-martial to try war crimes, why has the United States government, under both the George W. Bush and Barack Obama administrations alike, insisted on proceeding through untested military commissions instead? In May 2009, President Obama defended military commissions with the following claims:

Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war. They allow for …

The First Amendment’S Borders: The Place Of Holder V. Humanitarian Law Project In First Amendment Doctrine, David Cole

Georgetown Law Faculty Publications and Other Works

In Holder v. Humanitarian Law Project, the Supreme Court’s first decision pitting First Amendment rights against national security interests since the terrorist attacks of September 11, 2001, the Court appears to have radically departed from some of the First Amendment’s most basic principles, including the maxims that speech may not be penalized because of its viewpoint, that even speech advocating crime deserves protection until it constitutes incitement, and that political association is constitutionally protected absent specific intent to further a group’s illegal ends. These principles lie at the core of our political and democratic freedoms, yet Humanitarian Law Project …

Technological Leap, Statutory Gap, And Constitutional Abyss: Remote Biometric Identification Comes Of Age, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Federal interest in using facial recognition technology (“FRT”) to collect, analyze, and use biometric information is rapidly growing. Despite the swift movement of agencies and contractors into this realm, however, Congress has been virtually silent on the current and potential uses of FRT. No laws directly address facial recognition—much less the pairing of facial recognition with video surveillance—in criminal law. Limits placed on the collection of personally identifiable information, moreover, do not apply. The absence of a statutory framework is a cause for concern. FRT represents the first of a series of next generation biometrics, such as hand geometry, iris, …

Where Liberty Lies: Civil Society And Individual Rights After 9/11, David Cole

Georgetown Law Faculty Publications and Other Works

Had someone told you, on September 11, 2001, that the United States would not be able to do whatever it wanted in response to the terrorist attacks of that day, you might well have questioned their sanity. The United States was the most powerful country in the world, and had the world’s sympathy in the immediate aftermath of the attacks. Who would stop it? Al Qaeda had few friends beyond the Taliban. As a historical matter, Congress and the courts had virtually always deferred to the executive in such times of crisis. And the American polity was unlikely to object …

Significant Entanglements: A Framework For The Civil Consequences Of Criminal Convictions, Colleen F. Shanahan

Georgetown Law Faculty Publications and Other Works

A significant and growing portion of the United States population is or has recently been in prison. Nearly all of these individuals will face significant obstacles as they struggle to reintegrate into society. A key source of these obstacles is the complex, sometimes unknown, and often harmful collection of civil consequences that flow from a criminal conviction. As the number and severity of these consequences have grown, courts, policymakers, and scholars have struggled with how to identify and understand them, how to communicate them to defendants and the public, and how to treat them in the criminal and civil processes. …

Skilling: More Blind Monks Examining The Elephant, Julie R. O'Sullivan

Georgetown Law Faculty Publications and Other Works

Most academics and practitioners with whom the author has discussed the result in Skilling v. United States believe that it is a sensible decision. That is, the Supreme Court did the best it could to limit the reach of 18 U.S.C. § 1346, which all nine justices apparently believed—correctly—was, on its face, unconstitutionally vague. Congress responded quickly and with little consideration with the supremely under-defined § 1346. In the over twenty years since the statute's enactment, the Courts of Appeals have been unable to come up with any unified limiting principles to contain its reach. The Skilling Court, evidently reluctant …

Grabbing The Bullcoming By The Horns: How The Supreme Court Could Have Used Bullcoming V. New Mexico To Clarify Confrontation Clause Requirements For Csi-Type Reports, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

In the pilot episode of the hit television show CSI, Grissom says to Warrick: "Concentrate on what cannot lie. The evidence." Although Grissom is a beloved figure in U.S. popular culture, the U.S. is currently unwilling to accept that evidence never lies. In stark contrast to Grissom's statement, the common law has a long history of allowing criminal defendants to cross-examine and question witnesses providing evidence against them. The right to confront an accusatory witness is reflected in the historical legal documents of Great Britain, in Shakespearean writing, and even in the Bible. In the United States, the right to …

Innocence Commissions And The Future Of Post-Conviction Review, David Wolitz

Georgetown Law Faculty Publications and Other Works

In the fall of 2006, North Carolina became the first state to establish an innocence commission – a state institution with the power to review and investigate individual post-conviction claims of actual innocence. And on February 17, 2010, after spending seventeen years in prison for a murder he did not commit, Greg Taylor became the first person exonerated through the innocence commission process. This article argues that the innocence commission model pioneered by North Carolina has proven itself to be a major institutional improvement over conventional post-conviction review. The article explains why existing court-based procedures are inadequate to address collateral …

The Shadow Of State Secrets, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The shadow of state secrets casts itself longer than previously acknowledged. Between 2001 and 2009 the government asserted state secrets in more than 100 cases, while in scores more litigants appealed to the doctrine in anticipation of government intervention. Contractor cases ranged from breach of contract, patent disputes, and trade secrets, to fraud and employment termination. Wrongful death, personal injury, and negligence suits kept pace, extending beyond product liability to include infrastructure and services, as well as conduct of war. In excess of fifty telecommunications suits linked to the NSA warrantless wiretapping program emerged 2006-2009, with the government acting, variously, …

Cruelty, Prison Conditions, And The Eighth Amendment, Sharon Dolovich

Georgetown Law Faculty Publications and Other Works

The Eighth Amendment prohibits cruel and unusual punishment, but its normative force derives chiefly from its use of the word cruel. For this prohibition to be meaningful in a society where incarceration is the primary mode of criminal punishment, it is necessary to determine when prison conditions are cruel. Yet the Supreme Court has thus far avoided this question, instead holding in Farmer v. Brennan that unless some prison official actually knew of and disregarded a substantial risk of serious harm to prisoners, prison conditions are not “punishment” within the meaning of the Eighth Amendment. Farmer’s reasoning, however, does not …

Exporting Harshness: How The War On Crime Helped Make The War On Terror Possible, James Forman Jr.

Georgetown Law Faculty Publications and Other Works

This Essay responds to a consensus that has formed among many opponents of the Bush administration’s prosecution of the war on terror. The consensus narrative goes like this: America has a long-standing commitment to human rights and due process, reflected in its domestic criminal justice system’s expansive protections. Since September 11, 2001, President Bush, Vice President Cheney, former Defense Secretary Rumsfeld, and their allies have dishonored this tradition. It is too simple, I suggest, to assert that the Bush administration remade our justice system and betrayed American values. This Essay explores the ways in which our approach to the war …

Implementation Of The U.S. Department Of Justice’S Special Counsel Regulations: Hearing Before The Subcomm. On Commercial And Administrative Law Of The H. Comm. On The Judiciary, 110th Cong., Feb. 26, 2008 (Statement Of Professor Neal Kumar Katyal, Geo. U. L. Center), Neal K. Katyal

Testimony Before Congress

No abstract provided.

The Defense Of Torture, David Luban

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Brief Of International Law And Jurisdiction Professors As Amici Curiae Supporting Petitioners, Rasul V. Bush, Nos. 03-334 & 03-343 (U.S. Jan. 12, 2004), Barry E. Carter

U.S. Supreme Court Briefs

No abstract provided.

Constitutional Dignity And The Criminal Law, James E. Baker

Georgetown Law Faculty Publications and Other Works

Criminal law is important because it helps to define who we are as a constitutional democracy. There is much that distinguishes our form of government from others, but certainly much of that distinction is found in the Bill of Rights and in two simple words: due process. All of which help to affirm the value and sanctity of the individual in our society. Broadly then, criminal law helps to define who we are as a nation that values both order and liberty.

That is what many of the greatest judicial debates are about, like those involving Holmes, Hand, Jackson, and …

Free Exercise Rights Of Capital Jurors, Brian Galle

Georgetown Law Faculty Publications and Other Works

The Supreme Court has said that the Constitution permits trial judges to exclude from the pool of potential capital trial jurors any persons whose views on the death penalty would likely substantially impair their ability to reach an impartial verdict. This Note argues that the Court's analysis to date is incomplete, in that it omits close evaluation of potential conflicts between such exclusions and the Free Exercise Clause. The Note argues further that a court should apply strict scrutiny to any state action, such as exclusion for cause, that burdens the use of religious beliefs in the mental processes of …