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Admissibility Of First Time In-Court Eyewitness Identifications: An Argument For Additional Due Process Protections In New York, Dakota Kann

Cardozo Law Review

No abstract provided.

All Bathwater, No Baby: Expressive Theories Of Punishment And The Death Penalty, Susan A. Bandes

Michigan Law Review

A review of Carol S. Steiker and Jordan M. Steiker, Courting Death: The Supreme Court and Capital Punishment.

Dassey V. Dittmann: Brief Amicus Curiae Of Professors Of Criminal Law, Criminal Procedure, And Constitutional Law In Support Of Petitioner, Samuel R. Gross, Yale Kamisar

Appellate Briefs

Amici curiae are academics who focus on criminal procedure and Fifth Amendment and Fourteenth Amendment law. (A list of the amici curiae is attached as Appendix A.) Their principal interest in this case is proper application of clear Supreme Court precedent in assessing the voluntariness of the confession given by the juvenile suspect in this case. Amici file this brief out of concern that some lower courts, including the court below, are straying from this Court's clear mandates in applying the totality-of-the-circumstances test to confessions given by juveniles with intellectual impairments. Amici write to provide a historical overview of this …

Dassey V. Dittmann: Brief Amici Curiae Of Professors Of Criminal Law, Criminal Procedure, And Constitutional Law In Support Of Petitioner, Samuel Gross, Yale Kamisar, Eve Brensike Primus

Appellate Briefs

Amici curiae are academics who focus on criminal procedure and Fifth Amendment and Fourteenth Amendment law. (A list of the amici curiae is attached as Appendix A.) Their principal interest in this case is proper application of clear Supreme Court precedent in assessing the voluntariness of the confession given by the juvenile suspect in this case. Amici file this brief out of concern that some lower courts, including the court below, are straying from this Court's clear mandates in applying the totality- of-the-circumstances test to confessions given by juveniles with intellectual impairments. Amici write to provide a historical overview of …

The Bergdahl Block: How The Military Limits Public Access To Preliminary Hearings And What We Can Do About It, Eric R. Carpenter

William & Mary Bill of Rights Journal

Sergeant Bowe Bergdahl and Private First Class Bradley (now Chelsea) Manning have something in common. Military officials unlawfully closed all or portions of their preliminary hearings to the public. When doing so, military officials exploited two unusual features of the military justice system, thereby denying the accused and the media of their respective Sixth Amendment and First Amendment rights to a public hearing.

The first feature is that the military justice system does not include a standing trial-level court. If there is a problem at the preliminary hearing, the accused and media have nowhere to go for help. The accused …

Legitimacy, Authority, And The Right To Affordable Bail, Colin Starger, Michael Bullock

William & Mary Bill of Rights Journal

Bail reform is hot. Over the past two years, jurisdictions around the country have moved to limit or end money bail practices that discriminate against the poor. Although cheered on by many, bail reform is vehemently opposed by the powerful bail-bond industry. In courts around the country, lawyers representing this industry have argued that reform is unnecessary, and even unconstitutional. One particularly insidious argument advanced by bail-bond apologists is that a “wall of authority” supports the proposition that “bail is not excessive merely because the defendant is unable to pay it.” In other words, authority rejects the right to affordable …

Remedies Symposium: On Critical Junctures, Intercurrence, And Dynamic Political Orders, Paul Baumgardner

ConLawNOW

Relying on contemporary historical-institutionalist literature concerning processes of American political development, this article argues that the nebulous status of religious rights in the United States is largely a recent phenomenon—the result of one coalition (centered around rights protections for the LGBTQ community) growing and making important strides at the same time that a separate "religious rights” coalition attempts to push beyond a disorienting critical juncture. How long this state of intercurrence will persist, and how it will be resolved, are unresolved questions.

Whren V. United States: An Abrupt End To The Debate Over Pretextual Stops, Brian J. O'Donnell

Maine Law Review

In Whren v. United States, the United States Supreme Court held that a traffic stop is reasonable under the Fourth Amendment if a police officer has probable cause to believe that a traffic violation has occurred, even if the stop is a pretext for the investigation of a more serious offense. The Court affirmed the convictions of Michael A. Whren and James L. Brown, who had been arrested on federal drug charges after Washington, D.C., police stopped Brown for minor traffic infractions. The Court's unanimous opinion, delivered by Justice Scalia, brought an end to a long-running debate over the proper …

Commerce Clause Challenges Spawned By United States V. Lopez Are Doing Violence To The Violence Against Women Act (Vawa): A Survey Of Cases And The Ongoing Debate Over How The Vawa Will Fare In The Wake Of Lopez, Lisanne Newell Leasure

Maine Law Review

On September 14, 1994, in response to and in recognition of the epidemic of violence against women in the United States, Congress enacted the Violence Against Women Act (VAWA). The VAWA is a comprehensive statute designed to provide women greater protection from and recourse against violence and to impose accountability on abusers and those who commit crimes of violence based on gender animus. The VAWA, which contains seven parts, creates new federal crimes, strengthens penalties for existing federal sex crimes, and provides $1.6 billion over six years for education, research, treatment of domestic and sex crime victims, and the improvement …

The Public Defender's Pin: Untangling Free Speech Regulation In The Courtroom, Michael Kagan

Northwestern University Law Review

Recent disputes in Ohio and Nevada about whether lawyers should be allowed to wear “Black Lives Matter” pins in open court expose a fault line in First Amendment law. Lower courts have generally been unsympathetic to lawyers who display political symbols in court. But it would go too far suggest that free speech has no relevance in courtrooms. This Essay argues for a way to strike a balance.

The President, Prosecutorial Discretion, Obstruction Of Justice, And Congress, Henry L. Chambers Jr.

University of Richmond Law Review

No abstract provided.

The Law (?) Of The Lincoln Assassination, Martin S. Lederman

Georgetown Law Faculty Publications and Other Works

Shortly after John Wilkes Booth killed Abraham Lincoln on April 14, 1865, President Andrew Johnson directed that Booth’s alleged coconspirators be tried in a makeshift military tribunal, rather than in the Article III court that was open for business just a few blocks from Ford’s Theater. Johnson’s decision implicated a fundamental constitutional question that was a subject of heated debate throughout the Civil War: When, if ever, may the federal government circumvent Article III’s requirements of a criminal trial by jury, with an independent, tenure-protected presiding judge, by trying individuals other than members of the armed forces in a military …

Cafos: Plaguing North Carolina Communities Of Color, Christine Ball-Blakely

Sustainable Development Law & Policy

No abstract provided.

Standing Under State Search And Seizure Provision: Why The Minnesota Supreme Court Should Have Rejected The Federal Standards And Instead Invoked Greater Protection Under Its Own Constitution In State V. Carter, Rebecca C. Garrett

Maine Law Review

In State v. Carter, the Minnesota Supreme Court considered whether a criminal defendant had “standing” to challenge an alleged search under the Fourth Amendment and Article 1, Section 10 of the Minnesota Constitution. The defendant moved to suppress evidence obtained by a police officer who had peered in the window of an apartment where the defendant was participating in a drug-packaging operation with the apartment's leaseholder. A divided court held that the defendant had a legitimate expectation of privacy in the apartment. Therefore, the defendant had standing to challenge the legality of the police officer's observations pursuant to the Fourth …

Overawed And Overwhelmed: Juvenile Miranda Incomprehension, Sara P. Cressey

Maine Law Review

Each year approximately one million juveniles in the United States are arrested and read the Miranda warnings. Though studies have shown that the majority of those children do not understand the warnings, most of them must decide alone whether to waive their constitutional rights— and nearly all ultimately make that choice without the help of an attorney. The Supreme Court has recognized that children differ from adults in critical ways, and those differences have important implications for juveniles’ ability to meaningfully waive their Miranda rights. To ensure that juveniles’ constitutional rights are protected, the Supreme Court should take up the …

Waiting For Justice, Jeffrey Bellin

Popular Media

One man’s seven-year wait for a trial reveals the ways mandatory minimums distort our courts.

Multiracial Malaise: Multiracial As A Legal Racial Category, Taunya L. Banks

Faculty Scholarship

One byproduct of increased interracial marriages post Loving is a growing number of multiracial children. This cohort of multiracials tends to overshadow older and larger generations of multiracial people whose genealogical mixture is more distant. Some interracial couples, their multiracial children and others support a multiracial category on the U.S. Census. Proponents argued that multiracial individuals experience a unique type of discrimination that warrants treating them as a separate racial category. This article concedes that multiracial individuals should enjoy the freedom to self-identify as they wish, and like others, be protected by anti-discrimination law. It concludes, however, that current arguments …

Biosocial Criminology Versus The Constitution, Karen E. Balter

Regis University Student Publications (comprehensive collection)

The continually emerging field of biosocial criminology provides a basis for productively merging biology with sociological reasonings for criminal behavior. Mainstream research in criminology focuses on environmental factors as the sole reason individuals exhibit antisocial behavior patterns and may ultimately commit crimes. Criminological research has travelled in this direction for decades. The current climate within this community subscribes heavily to the notion that biology has very little to do with why people behave the way they do, and if it did, government control would be the norm. The nature of biocriminology opens a door through which constitutional issues may enter. …

A Review And Conceptual Model Of Factors Correlated With Postmortem Root Band Formation, Joseph Donfack, Hilda S. Castillo

United States Department of Justice: Publications

It is generally accepted within the forensic trace evidence community that a postmortem root band (PMRB) can appear in the root of hairs attached to remains during decomposition. Presently, the specific sequences of events and/or exact molecular signals that lead to the formation of a PMRB are not well understood. The published literature addressing the abiotic and biotic factors that correlate with the formation of PMRBs is reviewed and a conceptual model for the formation of PMRBs is proposed.

Science‐Based Interviewing: Information Elicitation, Susan E. Brandon, Simon Wells, Colton Seale

United States Department of Justice: Publications

This article describes an ethical and effective science‐based model of interviewing. An initial planning phase assists the investigative team in separating facts from inferences, decreases the likelihood of errors based on cognitive biases, and prompts careful preparation of the environment. The interview begins with an explanation of why the subject is being questioned. The interviewer then metaphorically hands the interview over to the subject, making him the talker and the interviewer the listener. The interviewer engages in active listening, soliciting as much information from the subject as possible by deploying tactics that enhance memory based on science, including elements of …

Criminal Thinking, Psychiatric Symptoms, And Recovery Attitudes Among Community Mental Health Patients, Nicole R. Bartholomew, Robert D. Morgan, Sean M. Mitchell, Stephanie A. Van Horn

United States Department of Justice: Publications

Research suggests it is important to consider criminogenic needs among individuals with severe mental illness. This study aimed to determine the severity of criminal thinking in community-based clinical samples, understand the association between criminal thinking and psychiatric and criminal justice outcomes, and compare these associations between consumers enrolled in Assertive Community Treatment (ACT) and Forensic Assertive Community Treatment (FACT) programs. Participants (N = 234) were male and female consumers enrolled in ACT and FACT programs in five states. Results revealed no significant differences in criminal thinking when comparing participants by program type or history of criminal justice involvement. There …

Bias, Corruption & Obstruction, Oh My: The Due Process "Shocks The Conscience" Limit On Investigative & Prosecutorial Conduct, Elizabeth Price Foley

Faculty Publications

Due process guarantees the government will not exercise its power in a manner falling below the standard of civilized decency. Under Supreme Court precedent, behavior by government officials, including prosecutors and investigators, that objectively may be characterized as outrageous, arbitrary, capricious, biased, vindictive, or conscience shocking violates due process. Whether officials’ behavior crosses the constitutional threshold requires an assessment of the totality of the circumstances and is, accordingly, a factually sensitive inquiry. Facts disinterred thus far suggest that the “collusion” narrative—alleging that Russia and Donald Trump’s campaign colluded to throw the 2016 presidential election—may have a corrupt or politically biased …

Policymaking As Power-Building, K. Sabeel Rahman

Faculty Scholarship

No abstract provided.

Why Courts Fail To Protect Privacy: Race, Age, Bias, And Technology, Bernard Chao, Catherine Durso, Ian Farrell, Christopher Robertson

Sturm College of Law: Faculty Scholarship

The Fourth Amendment protects against unreasonable “searches and seizures,” but in the digital age of stingray devices and IP tracking, what constitutes a search or seizure? The Supreme Court has held that the threshold question depends on and reflects the “reasonable expectations” of ordinary members of the public concerning their own privacy. For example, the police now exploit the “third party” doctrine to access data held by email and cell phone providers, without securing a warrant, on the Supreme Court’s intuition that the public has no expectation of privacy in that information. Is that assumption correct? If judges’ intuitions about …

Lethal Injection Or Lethal Litigation: Florida's Amended Lethal Injection Protocol Opens The Door For Cries Of Cruel And Unusual Punishment, Cynthia Ventura

St. Thomas Law Review

In Florida, lethal injection has been the primary method of execution since the 1990s. The Florida Department of Corrections recently amended its protocol by replacing all three drugs previously used. The first administered lethal dose is now etomidate, an anesthetic that has never been used in the United States as a lethal injection drug. This Comment discusses the lack of empirical research available to support the state of Florida's use of etomidate as an appropriate method of rendering a prisoner unconscious prior to administering the second and third injections. First, this Comment will provide a brief background of the history …

On Litigating Constitutional Challenges To The Federal Supermax: Improving Conditions And Shining A Light, Laura L. Rovner

Sturm College of Law: Faculty Scholarship

Prisons and jails are the most invisible part of the American criminal justice system. In this hidden world of punishment, no prison is more shrouded in secrecy than the federal Bureau of Prisons’ only “supermax” prison — the U.S. Penitentiary-Administrative Maximum known as ADX. Located in a remote area of Colorado, ADX has been described by one journalist as “a black site on American soil.” The men at ADX are held in solitary confinement, locked in cells the size of a parking space for twenty-three hours a day, with little or no contact with other people. Some of them have …

Slave Narratives And The Sentencing Court, Lindsey Webb

Sturm College of Law: Faculty Scholarship

The United States incarcerates a greater percentage of its population than any other country in the world. Courts are substantially more likely to sentence African American and Latino people to prison than white people in similar circumstances, and African Americans in particular represent a grossly disproportionate percentage of the incarcerated population. Violence and other ills endemic to jails and prisons are thus disproportionately experienced by people of color.

This Article argues that criminal defense lawyers should explicitly address conditions of confinement at sentencing. In doing so, a criminal defense lawyer has the opportunity to serve as both advocate and abolitionist. …

Isonomy, Austerity, And The Right To Choose Counsel, Janet Moore

Faculty Articles and Other Publications

People who can afford to hire criminal defense attorneys have a Sixth Amendment right to choose a lawyer who is qualified, available, and free from conflicts of interest. The same right to choose counsel is routinely denied to people who need government-paid defense lawyers because they cannot afford to hire attorneys. In prior work, I invoked democratic theory to argue that this de jure discrimination blocks constitutional law formation by poor people and should be eliminated. This Article extends the analysis by explaining how a different theoretical approach—one grounded in libertarian commitments to private enterprise and austerity in public funding—shaped …

Control The Casinos And Stop The Dogs: Florida’S 2018 Proposed Constitutional Amendments, Robert Jarvis

Faculty Scholarship

No abstract provided.

From The Italian Mafia To Suppressing Societal Challenges: The Evolution Of Federal Criminal Rico And The Constitutional Objections Against It, 51 J. Marshall L. Rev. 647 (2018), Bianca Ciarroni

UIC Law Review

No abstract provided.