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Fourth Amendment Remedies As Rights: The Warrant Requirement, David C. Gray 2016 University of Maryland School of Law

Fourth Amendment Remedies As Rights: The Warrant Requirement, David C. Gray

David C. Gray

The constitutional status of the warrant requirement is hotly debated. Critics argue that neither the text nor history of the Fourth Amendment support a warrant requirement. Also questioned is the warrant requirement’s ability to protect Fourth Amendment interests. Perhaps in response to these concerns, the Court has steadily degraded the warrant requirement through a series of widening exceptions. The result is an unsatisfying jurisprudence that fails on both conceptual and practical grounds.

These debates have gained new salience with the emergence of modern surveillance technologies such as stingrays, GPS tracking, drones, and Big Data. Although a majority of the ...


In Loco Aequitatis: The Dangers Of "Safe Harbor" Laws For Youth In The Sex Trades, Brendan M. Conner Esq. 2016 Streetwise and Safe

In Loco Aequitatis: The Dangers Of "Safe Harbor" Laws For Youth In The Sex Trades, Brendan M. Conner Esq.

Brendan M. Conner

The accompanying Article provides the first critical analysis of safe harbor laws, which rely on custodial arrests to prosecute or divert youth arrested for or charged with prostitution related offenses under criminal or juvenile codes to court supervision under state child welfare, foster care, or dependency statutes. This subject is a matter of intense debate nationwide, and on January 27, 2015 the House of Representatives passed legislation that would give preferential consideration for federal grants to states that have enacted a law that “discourages the charging or prosecution” of a trafficked minor and encourages court-ordered treatment and institutionalization. Nearly universally ...


The Right To A Public Trial And Closing The Courtroom To Disruptive Spectators, Stephen E. Smith 2016 Santa Clara University School of Law

The Right To A Public Trial And Closing The Courtroom To Disruptive Spectators, Stephen E. Smith

Washington University Law Review Commentaries

The Sixth Amendment to the United States Constitution provides, in part, that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” Like many constitutional rights, however, the right to a public trial is not absolute. Courtrooms may be closed to the public in some situations. In Waller v. Georgia, the Supreme Court set forth the test trial courts should apply to determine whether a courtroom closure is appropriate. However, some courts, led by the Second Circuit’s per curiam decision in Cosentino v. Kelly, have declined to apply the Waller test to ...


Reconsidering The Constitutionality Of Mandatory Minimum Sentences Under Section 231(5)(E) Post-Luxton, Laura Metcalfe 2016 University of Ottawa Faculty of Law

Reconsidering The Constitutionality Of Mandatory Minimum Sentences Under Section 231(5)(E) Post-Luxton, Laura Metcalfe

Western Journal of Legal Studies

Section 231(5)(e) of the Criminal Code elevates murder to first-degree murder when a death is caused while committing unlawful confinement per s. 279 of the Criminal Code. The corresponding mandatory sentence is life imprisonment with no eligibility for parole until 25 years have been served. The Supreme Court of Canada held that this provision was constitutional in R v Luxton, since it did not violate the principles of fundamental justice and was not considered cruel and unusual punishment, contrary to s. 7 and 12 of the Canadian Charter of Rights and Freedoms, respectively.

However, lower courts ought to ...


Journey Out Of Neverland: Cori Reform, Commonwealth V. Peter Pon, And Massachusetts’S Emergence As A National Exemplar For Criminal Record Sealing, Chris Skall 2016 Boston College Law School

Journey Out Of Neverland: Cori Reform, Commonwealth V. Peter Pon, And Massachusetts’S Emergence As A National Exemplar For Criminal Record Sealing, Chris Skall

Boston College Law Review

Even after a criminal case is disposed of and a period of incarceration or probation is completed, individuals who have become involved in the criminal justice system often face a myriad of collateral consequences based on their criminal records. In order to promote reintegration and combat recidivism, many states have taken legislative actions to ease the burden associated with having a criminal record. In recent years, these efforts have led several states to reform or enact statutes for criminal record sealing or expungement, a controversial, yet highly efficacious tool to provide greater employment and housing opportunities for ex-offenders. In 2010 ...


Riley V. California And The Stickiness Principle, Steven I. Friedland 2016 Duke Law

Riley V. California And The Stickiness Principle, Steven I. Friedland

Duke Law & Technology Review

In Fourth Amendment decisions, different concepts, facts and assumptions about reality are often tethered together by vocabulary and fact, creating a ‘Stickiness Principle.’ In particular, form and function historically were considered indistinguishable, not as separate factors. For example, “containers” carried things, “watches” told time, and “phones” were used to make voice calls. Advancing technology, though, began to fracture this identity and the broader Stickiness Principle. In June 2014, Riley v. California and its companion case, United States v. Wurie, offered the Supreme Court an opportunity to begin untethering form and function and dismantling the Stickiness Principle. Riley presented the question ...


Florida's Stand Your Ground Regime: Legislative Direction, Prosecutorial Discretion, Public Pressures, And The Legitimization Of The Criminal Justice System, Mary Elizabeth Castillo 2016 Notre Dame Law School

Florida's Stand Your Ground Regime: Legislative Direction, Prosecutorial Discretion, Public Pressures, And The Legitimization Of The Criminal Justice System, Mary Elizabeth Castillo

Journal of Legislation

This note seeks to examine the tripartite relationship between legislative delegation, prosecutorial discretion, and public pressures in the context of Florida's "Stand Your Ground" regime. In the context of high profile criminal cases, a prosecutor faces significant public and political pressures that may influence her exercise of discretion in that case. Ultimately, Castillo argues that when a prosecutor succumbs to these pressures, it undermines her expertise, experience and exercise of discretion, and undercuts the legitimacy of the criminal justice system as a whole.


Valence, Implicated Actor, And Children's Acquiescence To False Suggestions, Kyndra C. Cleveland, J A. Quas, Thomas D. Lyon 2016 University of California, Irvine

Valence, Implicated Actor, And Children's Acquiescence To False Suggestions, Kyndra C. Cleveland, J A. Quas, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

Although adverse effects of suggestive interviewing on children's accuracy are well documented, it remains unclear as to whether these effects vary depending on the valence of and the actor implicated in suggestions. In this study, 124 3-8-year-olds participated in a classroom activity and were later questioned about positive and negative false details. The interviewer provided positive reinforcement when children acquiesced to suggestions and negative feedback when they did not. Following reinforcement or feedback, young children were comparably suggestible for positive and negative details. With age, resistance to suggestions about negative details emerged first, followed by resistance to suggestions about ...


Repeated Self- And Peer-Review Leads To Continuous Improvement In Child Interviewing Performance, Stacia N. Stolzenberg, Thomas D. Lyon 2016 Arizona State University

Repeated Self- And Peer-Review Leads To Continuous Improvement In Child Interviewing Performance, Stacia N. Stolzenberg, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

The present study examined whether a training model that focuses on consistent exposure to protocol procedure, self-evaluation, and intensive peer-review sessions could improve interviewers’ ability to adhere to best practices. Law students (N¼19) interviewed 5- to 10-year-old children on a weekly basis as part of a semester-long forensic child interviewing class. They transcribed their interviews, and participated in 1-hr self- and peer-reviews. The proportion of each question type was calculated (option-posing, Wh- questions [what, how, where, why, when, and who], and open-invitations) within each interview for each interviewer. Across 10 weeks of interviews, interviewers consistently improved their performance, decreasing the ...


Thirteenth Birthday A Cutoff Between Automatic Lawyer And Miranda Rights, Timothy P. O'Neill 2016 John Marshall Law School

Thirteenth Birthday A Cutoff Between Automatic Lawyer And Miranda Rights, Timothy P. O'Neill

Timothy P. O'Neill

Chicago Daily Law Bulletin


Threaten Sentencing Enhancement, Coerce Plea, (Wash, Rinse,) Repeat: A Cause Of Wrongful Conviction By Guilty Plea, Wes R. Porter 2016 Golden Gate University School of Law

Threaten Sentencing Enhancement, Coerce Plea, (Wash, Rinse,) Repeat: A Cause Of Wrongful Conviction By Guilty Plea, Wes R. Porter

Publications

Our American criminal justice system is too often described as broken. It was not a clean break in a single, isolated location. Instead, our criminal justice system suffers from many, many little nicks, bumps, and bruises at the hands of its keepers. The evolution of sentencing enhancements within our criminal justice system represents the latest nagging, reoccurring injury. In the ultimate Trojan horse to criminal defendants, the Supreme Court sought to protect the individual rights of the accused with its recent decisions on sentencing enhancements. But at the hands of lawmakers, the judiciary, and prosecutors, criminal defendants suffer more. Our ...


What Gideon Did, Sara Mayeux 2016 University of Pennsylvania

What Gideon Did, Sara Mayeux

Faculty Scholarship

Many accounts of Gideon v. Wainwright’s legacy focus on what Gideon did not do—its doctrinal and practical limits. For constitutional theorists, Gideon imposed a preexisting national consensus upon a few “outlier” states, and therefore did not represent a dramatic doctrinal shift. For criminal procedure scholars, advocates, and journalists, Gideon has failed, in practice, to guarantee meaningful legal help for poor people charged with crimes.

Drawing on original historical research, this Article instead chronicles what Gideon did—the doctrinal and institutional changes it inspired between 1963 and the early 1970s. Gideon shifted the legal profession’s policy consensus on ...


Silencing Grand Jury Witnesses, R. Michael Cassidy 2016 Boston College Law School

Silencing Grand Jury Witnesses, R. Michael Cassidy

Boston College Law School Faculty Papers

The investigations of local police officers for causing the deaths of unarmed civilians in Ferguson, Missouri and Staten Island, New York have generated significant national discourse about the fairness and transparency of grand jury proceedings. This article addresses one crucial aspect of this ongoing debate; that is, whether witnesses before the grand jury should be allowed to talk to each other and to the media about the contents of their testimony.

In the federal system and in the majority of states that still employ the grand jury as an investigative and charging tool, obligations of grand jury secrecy do not ...


The Meaning Of "Meaningful Appellate Review" In Capital Cases: Lessons From California, Steven F. Shatz 2015

The Meaning Of "Meaningful Appellate Review" In Capital Cases: Lessons From California, Steven F. Shatz

Steven F. Shatz

In Furman v. Georgia, the Supreme Court's seminal death penalty case, the Court held that the death penalty, as then administered, violated the Eighth Amendment because the penalty decision was so unguided and the imposition of the death penalty was so infrequent as to create an unconstitutional risk of arbitrariness. The Court's remedy, developed in subsequent decisions, was to require the state legislatures to "genuinely narrow the class of persons eligible for the death penalty" and the state courts to provide "meaningful appellate review" of death sentences. In recent years, a number of scholars have addressed the genuine ...


Teaching Criminal Procedure: Why Socrates Would Use Youtube, Stephen Henderson, Joseph Thai 2015 University of Oklahoma College of Law

Teaching Criminal Procedure: Why Socrates Would Use Youtube, Stephen Henderson, Joseph Thai

Stephen E Henderson

In this invited contribution to the Law Journal’s annual teaching volume, we pay some homage to the great philosopher whose spirit allegedly guides our classrooms, but in service of two concrete goals. One, we employ dialogue to describe the “nuts and bolts” of teaching criminal procedure, most of which are equally relevant to any doctrinal law school course (including course description, office hours, seating charts and attendance, class decorum and recording, student participation, laptops, textbooks, class preparation and presentation, and exams). Two, we explain the benefits of using multimedia in the classroom, including a few of the many modules ...


A Damning Cascade Of Investigative Errors: Flaws In Homicide Investigation In The Usa, Deborah Davis, Richard Leo 2015 University of Nevada - Reno

A Damning Cascade Of Investigative Errors: Flaws In Homicide Investigation In The Usa, Deborah Davis, Richard Leo

Richard Leo

This chapter explores the investigative errors, prosecutorial misconduct, and flawed police procedures that are often the cause of wrongful convictions in the United States. The authors discuss the difficulty of the criminal investigative process and the inevitable infusion of bias during investigations, giving specific examples of the cognitive and motivational biases that may permeate both investigations and trials. The authors argue that judgment about specific evidence is both shaped by, and itself shapes, judgments of other evidence, which may lead to an escalation of errors during the course of an investigation. In order to reduce these procedural errors, the United ...


Fourth Amendment Time Machines (And What They Might Say About Police Body Cameras), Stephen Henderson 2015 University of Oklahoma College of Law

Fourth Amendment Time Machines (And What They Might Say About Police Body Cameras), Stephen Henderson

Stephen E Henderson

When it comes to criminal investigation, time travel is increasingly possible. Despite longstanding roots in traditional investigation, science is today providing something fundamentally different in the form of remarkably complete digital records. And those records not only store our past, but thanks to data mining and big data, in many circumstances they are eerily good at predicting our future. So, now that we stand on the threshold of investigatory time travel, how should the Fourth Amendment and legislation respond? How should we approach bulk government capture, such as by a solar-powered drone employing wide-area persistent stare technology? Is it meaningfully ...


Moving Beyond Miranda: Concessions For Confessions, Scott Howe 2015 Chapman University School of Law

Moving Beyond Miranda: Concessions For Confessions, Scott Howe

Scott W. Howe

Abstract: The law governing police interrogation provides perverse incentives. For criminal suspects, the law rewards obstruction and concealment. For police officers, it honors deceit and psychological aggression. For the courts and the rest of us, it encourages blindness and rationalization. This Article contends that the law could help foster better behaviors. The law could incentivize criminals to confess without police trickery and oppression. It could motivate police officers involved in obtaining suspect statements to avoid chicanery and duress. And, it could summon courts and the rest of us to speak more truthfully about whether suspect admissions are the product of ...


The Emerging Neoliberal Penality: Rethinking Foucauldian Punishment In A Profit-Driven Carceral System, Kevin Crow 2015 Martin Luther Universitat Halle-Wittenberg

The Emerging Neoliberal Penality: Rethinking Foucauldian Punishment In A Profit-Driven Carceral System, Kevin Crow

Kevin Crow

There is a new neoliberal penality emerging in the United States with four primary characteristics: (1) the death of rehabilitation, (2) the de-individualization of the criminal, (3) the emergence of a market for deviance, and (4) the managerialistic approach. The prison-industrial complex in the United States illustrates these pillars, but the pillars are not limited to the prison-industrial complex.

Foucault's concept of the prison as an institution primarily of individual normalization presupposes rehabilitation as the primary goal of the institution. This is no longer the case. Rather, the "penal culture" has shifted from one that views crime and imprisonment ...


Interrogation And False Confessions In Rape Cases, Richard Leo 2015 University of San Francisco School of Law

Interrogation And False Confessions In Rape Cases, Richard Leo

Richard Leo

Of the 1,705 post-conviction DNA and non-DNA exonerations that have occurred from 1989 to the end of 2015, approximately 13 percent of these wrongful convictions were due to false confessions, and virtually all of these occurred in either homicide or rape cases. This chapter discusses why false confessions occur and discusses the ways that law enforcement training can be modified to avoid false confessions. False confessions primarily occur due to a lack of proper training, poor investigative practices, and the use of scientifically invalidated and/or high risk interrogation techniques and strategies. To safeguard against false confessions, the author ...


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