Criminal Law Commons^™

Law Symposium: Adjudicating Sexual Misconduct On Campus: Title Ix And Due Process In Uncertain Times, Roger Williams University School Of Law, Michael M. Bowden

School of Law Conferences, Lectures & Events

No abstract provided.

Gathrite V. Eighth Jud. Dist. Ct., 135 Nev. Adv. Op. 54 (Nov. 7, 2019), Skylar Arakawa-Pamphilon

Nevada Supreme Court Summaries

For purposes of NRS 172.135(2), evidence that has been suppressed in justice court proceedings on a felony complaint is not “legal evidence,” and therefore, may not be presented to a grand jury. The Court will grant an exception to this rule if the suppression was reversed before the grand jury proceedings.

Maryland Makes New Evidence Postconviction Review Provisions Available To Defendants With Plea Deals, Felicia Langel

Maryland Law Review Online

No abstract provided.

Social Media, Venue And The Right To A Fair Trial, Leslie Y. Garfield Tenzer

Elisabeth Haub School of Law Faculty Publications

Judicial failure to recognize social media's influence on juror decision making has identifiable constitutional implications. The Sixth Amendment right to a fair trial demands that courts grant a defendant's change of venue motion when media-generated pretrial publicity invades the unbiased sensibility of those who are asked to sit in judgment. Courts limit publicity suitable for granting a defendant's motion to information culled from newspapers, radio, and television reports. Since about 2014, however, a handful of defendants have introduced social media posts to support their claims of unconstitutional bias in the community. Despite defendants' introduction of negative social media in support …

Beyond The Witness: Bringing A Process Perspective To Modern Evidence Law, Edward K. Cheng, G. Alexander Nunn

Faculty Scholarship

The focal point of the modern trial is the witness. Witnesses are the source of observations, lay and expert opinions, authentication, as well as the conduit through which documentary, physical, and scientific evidence is introduced. Evidence law therefore unsurprisingly concentrates on – or perhaps obsesses over – witnesses. In this Article, we argue that this witness-centered perspective is antiquated and counterproductive. As a historical matter, focusing on witnesses may have made sense when most evidence was the product of individual observation and action. But the modern world frequently features evidence produced through standardized, objective, and even mechanical processes that largely …

The Challenge Of Convincing Ethical Prosecutors That Their Profession Has A Brady Problem, Adam M. Gershowitz

Faculty Publications

In recent decades, both the media and legal scholars have documented the widespread problem of prosecutors failing to disclose favorable evidence to the defense – so called Brady violations. Despite all of this documentation however, many ethical prosecutors reject the notion that the criminal justice system has a Brady problem. These prosecutors – ethical lawyers who themselves have not been accused of misconduct – believe that the scope of the Brady problem is exaggerated. Why do ethical prosecutors downplay the evidence that some of their colleagues have committed serious errors?

This essay, in honor of Professor Bennett Gershman, points to …

Franks (Kenneth) V. State, 135 Nev. Adv. Op. 1 (Jan. 3, 2019), Scott Whitworth

Nevada Supreme Court Summaries

The Court reviewed whether a district court’s decision to allow the State to introduce prior incidents of uncharged sexual acts as evidence of the defendant’s propensity for committing sexual offenses violated NRS 48.045(3) and concluded such evidence as long as it is first evaluated for relevance and its heightened risk of unfair prejudice.

A Warrant Requirement Resurgence: The Fourth Amendment In The Roberts Court, Benjamin Priester

Journal Publications

Over many years, the United States Supreme Court has developed an extensive body of precedent interpreting and enforcing the provisions of the Fourth Amendment to the United States Constitution, which prohibits unreasonable searches and seizures by law enforcement agents conducting criminal investigations. Commonly called the "warrant requirement," one key component of this case law operates to deem some police investigatory techniques to be unconstitutional unless they are conducted pursuant to a search warrant issued in advance by a judge. The terms of the doctrine and its exceptions also authorize other investigatory actions as constitutionally permissible without a search warrant. The …

Driving The Drug War: Difficulties With Proper Detection Of Thc And Measurement Of Marijuana Intoxication For The Purposes Of Dui Prosecution, Sage La Rue Zitzkat

Dissertations and Honors Papers

No abstract provided.

What Am I Really Saying When I Open My Smartphone: A Response To Prof. Kerr, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

In his forthcoming article in the Texas Law Review, Compelled Decryption and the Privilege Against Self-Incrimination, Orin S. Kerr addresses a common question confronting courts. If a court orders a suspect or defendant to enter her password to open a smartphone or other device as part of a law enforcement investigation, does that order violate the Fifth Amendment right against self-incrimination?

To answer this question, Kerr appropriately looks by analogy to existing Fifth Amendment case law as applied to document subpoenas, the “act of production” doctrine, and its mysterious cousin, the “foregone conclusion” doctrine. From these materials, he gleans a …

The Inability To Self-Diagnose Bias, Christopher Robertson

Faculty Scholarship

The Constitution guarantees litigants an 'impartial' jury, one that bases its judgment on the evidence presented in the courtroom, untainted by affiliations with the parties, racial animus, or media coverage that may include inadmissible facts, a one-sided portrayal, and naked opinion. Problems of juror bias arise in almost every trial – state and federal, civil and criminal - and the problem is most severe in the highest profile cases, where the need for accuracy and legitimacy in outcomes is most salient.

The Supreme Court has instructed courts to use a simple method to determine whether jurors are biased: ask them. …

Privacy And Security Across Borders, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

Three recent initiatives -by the United States, European Union, and Australiaare opening salvos in what will likely be an ongoing and critically important debate about law enforcement access to data, the jurisdictional limits to such access, and the rules that apply. Each of these developments addresses a common set of challenges posed by the increased digitalization of information, the rising power of private companies delimiting access to that information, and the cross-border nature of investigations that involve digital evidence. And each has profound implications for privacy, security, and the possibility of meaningful democratic accountability and control. This Essay analyzes the …

Between Brady Discretion And Brady Misconduct, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The Supreme Court’s decision in Brady v. Maryland presented prosecutors with new professional challenges. In Brady, the Supreme Court held that the prosecution must provide the defense with any evidence in its possession that could be exculpatory. If the prosecution fails to timely turn over evidence that materially undermines the defendant’s guilt, a reviewing court must grant the defendant a new trial. While determining whether evidence materially undermines a defendant’s guilt may seem like a simple assessment, the real-life application of such a determination can be complicated. The prosecution’s disclosure determination can be complicated under the Brady paradigm because the …