Digital Commons Network^™

Virtual Trials: Necessity, Invention, And The Evolution Of The Courtroom, Susan A. Bandes, Neal Feigenson

Buffalo Law Review

Faith in the legitimating power of the live hearing or trial performed at the place of justice is at least as old as the Iliad. In public courtrooms, litigants appear together, evidence is presented, and decisions are openly and formally pronounced. The bedrock belief in the importance of the courtroom is rooted in common law, constitutional guarantees, and venerated tradition, as well as in folk knowledge. Courtrooms are widely believed to imbue adjudication with “a mystique of authenticity and legitimacy.” The COVID-19 pandemic, however, by compelling legal systems throughout the world to turn from physical courtrooms to virtual ones, disrupts …

Fraudulently Induced Confessions, Michael J. Zydney Mannheimer

Notre Dame Law Review

The jurisprudence on the use of police deception during interrogations is singularly unhelpful. Police may deceive in order to induce a suspect to confess, the courts tell us, unless they go too far. Police are permitted, for example, to feign sympathy for the suspect, lie about the existence of incriminating evidence, and falsely downplay the seriousness of the offense under investigation. But when police engage in other forms of deception, such as by offering false promises of leniency or misrepresenting the suspect’s Miranda rights, courts will balk and declare the resulting confession coerced. Yet neither courts nor commentators have successfully …

The Thickness Of Blood: Article I, Section 7, Law Enforcement, And Commercial Dna Databases, Hannah Parman

Washington Law Review

Law enforcement agencies increasingly use online commercial and open source DNA databases to identify suspects in cases that have long since gone cold. By uploading crime scene DNA to one of these websites, investigators can find family members who have used the website and build a family tree leading back to the owner of the original DNA. This is called “familial DNA searching.” The highest profile use of this investigative method to date occurred in California, but law enforcement in Washington State has been quick to begin utilizing the method as well. However, article I, section 7 of the Washington …

An Unfair Cross Section: Federal Jurisdiction For Indian Country Crimes Dismantles Jury Community Conscience, Alana Paris

Northwestern Journal of Law & Social Policy

Under the Sixth Amendment to the United States Constitution, federal jury pools must reflect a fair cross section of the community in which a crime is prosecuted and from which no distinct group in the community is excluded. The community in which a crime is prosecuted varies widely in Indian country based on legislative reforms enacted by Congress to strip indigenous populations of their inherent sovereignty. Under the Major Crimes Act, the federal government has the right to adjudicate all serious crimes committed by one American Indian against another American Indian or non-Indian within Indian country. American Indian defendants under …

A Poll Tax By Another Name: Considering The Constitutionality Of Conditioning Naturalization And The “Right To Have Rights” On An Ability To Pay, John Harland Giammatteo

Journal Articles

Permanent residents must naturalize to enjoy full access to constitutional rights, particularly the right to vote. However, new regulations from U.S. Citizenship and Immigration Services (USCIS), finalized in early August and originally slated to go into effect one month before the 2020 election, would drastically increase the cost of naturalization, moving it out of reach for many otherwise-qualified permanent residents, while at the same time abolishing any meaningful fee waiver for low-income applicants. In doing so, USCIS has sought to condition naturalization and its attendant rights on an individual’s financial status. In this Essay, I juxtapose the new fee regulations …

Rwu Law News: The Newsletter Of Roger Williams University School Of Law 12-2020, Barry Bridges, Michael M. Bowden, Nicole Dyszlewski, Louisa Fredey

Life of the Law School (1993- )

No abstract provided.

Re-Victimization Of Domestic Violence Victims, Angela De La Garza

Brigham Young University Journal of Public Law

No abstract provided.

Law School News: 'Law Isn't A Foreign Language Anymore' 11/24/2020, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

The American Law Of Overruling Necessity: The Exceptional Origins Of State Police Power, William J. Novak

Book Chapters

One of the most significant legal-constitutional moments in the history of the American republic occurred in the Confederation Congress on September 26 and 27, 1787. On those dates, the handiwork of the historic Constitutional Convention in Philadelphia was now "laid before the United States in Congress assembled." And the momentous question for the extant official lawmaking body of the US government was what to do next. Under Article 1 3 of the Articles of Confederation, any alteration of the articles had to be agreed to by Congress and confirmed by the legislatures of every state. Notably, the Philadelphia convention had …

Reflections On The Church/State Puzzle, Kermit V. Lipez

Maine Law Review

No abstract provided.

The Due Process Of Bail, Jenny E. Carroll

Faculty Scholarship

The Due Process Clause is a central tenet of criminal law’s constitutional canon. Yet defining precisely what process is due a defendant is a deceptively complex proposition. Nowhere is this more true than in the context of pretrial detention, where the Court has relied on due process safeguards to preserve the constitutionality of bail provisions. This Essay considers the lay of the bail due process landscape through the lens of the district court’s opinion in O’Donnell v. Harris County and the often convoluted historical description of pretrial due process. Even as the O’Donnell court failed to characterize pretrial process as …

Possible Reliance: Protecting Legally Innocent Johnson Claimants, Keagan Potts

Michigan Law Review

The writ of habeas corpus presents the last chance for innocent defendants to obtain relief from invalid convictions and sentences. The writ constitutes a limited exception to the finality of judgments. Given the role finality plays in conserving judicial resources and deterring criminal conduct, exceptions created by habeas must be principally circumscribed. Since the Supreme Court’s invalidation of the Armed Career Criminal Act’s residual clause in Johnson v. United States, the federal courts of appeals have attempted to develop a test that protects the writ from abuse by Johnson claimants.

This Note first contributes a new understanding of the …

Force-Feeding Pretrial Detainees: A Constitutional Violation, Bryn L. Clegg

William & Mary Law Review

No abstract provided.

Justice Sonia Sotomayor: The Court’S Premier Defender Of The Fourth Amendment, David L. Hudson Jr.

Seattle University Law Review

This essay posits that Justice Sotomayor is the Court’s chief defender of the Fourth Amendment and the cherished values it protects. She has consistently defended Fourth Amendment freedoms—in majority, concurring, and especially in dissenting opinions. Part I recounts a few of her majority opinions in Fourth Amendment cases. Part II examines her concurring opinion in United States v. Jones. Part III examines several of her dissenting opinions in Fourth Amendment cases. A review of these opinions demonstrates what should be clear to any observer of the Supreme Court: Justice Sotomayor consistently defends Fourth Amendment principles and values.

Driver’S License Suspensions For Nonpayments: A Discriminatory And Counterproductive Policy, Melissa Toback Levin

UC Law Constitutional Quarterly

Driver’s license suspensions for nonpayments of traffic debt disproportionately harm people of color and are legally untenable. Across the country, at least seven million people have had their driver’s license suspended for traffic debt—nonpayments of traffic tickets and nonappearances in traffic court. As this article demonstrates, traffic debt suspensions force people to make an impossible choice: stop driving—and lose access to work, childcare, healthcare, food, and other basic necessities— or keep driving, and risk criminal charges, more unaffordable fines and fees, and even incarceration. License-for-payment laws ultimately create conditions that parallel modern-day debtor’s prisons and are vulnerable to several legal …

Black Lives Matter: Banning Police Lynchings, Mitchell F. Crusto

UC Law Constitutional Quarterly

In the United States, police officers are granted a license to use lethal force and are subsequently exonerated from personal criminal liability for fatal killings, particularly when the victim is an African American. This Article advances the normative claim that the Court’s death penalty jurisprudence, including the “Cruel and Unusual Punishment” Clause of the Eighth Amendment, protects the victims of police homicides. Further, it contends that the police use of lethal force against African Americans constitutes “lynching”—a State-sponsored act of terror that supports systemic racism. Finally, it posits that the Constitution mandates that the police use of lethal force be …

Law Library Blog (October 2020): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Courts, Culture, And The Lethal Injection Stalemate, Eric Berger

William & Mary Law Review

The Supreme Court’s 2019 decision in Bucklew v. Precythe reiterated the Court’s great deference to states in Eighth Amendment lethal injection cases. The takeaway is that when it comes to execution protocols, states can do what they want. Events on the ground tell a very different story. Notwithstanding courts’ deference, executions have ground to a halt in numerous states, often due to lethal injection problems. State officials and the Court’s conservative Justices have blamed this development on “anti-death penalty activists” waging “guerilla war” on capital punishment. In reality, though, a variety of mostly uncoordinated actors motivated by a range of …

Excessive Force: Justice Requires Refining State Qualified Immunity Standards For Negligent Police Officers, Angie Weiss

Seattle University Law Review Online

At the time this Note was written, there was no Washington state equivalent of the § 1983 Civil Rights Act. As plaintiffs look to the Washington state courts as an alternative to federal courts, they will find that Washington state has a different structure of qualified immunity protecting law enforcement officers from liability.

In this Note, Angie Weiss recommends changing Washington state's standard of qualified immunity. This change would ensure plaintiffs have a state court path towards justice when they seek to hold law enforcement officers accountable for harm. Weiss explains the structure and context of federal qualified immunity; compares …

Pengaturan Dan Praktek Praperadilan Tindak Pidana Pajak Di Indonesia, Ahmad Sofian, Batara Mulia Hasibuan

Jurnal Hukum & Pembangunan

Pretrial is an institution to control and correct law enforcement which are deemed to have violated mechanisms established in procedural laws. The correction is not aimed to look into the aspects of the alleged criminal case but determine whether “rules of the game” established in the formal criminal law have been implemented properly or not. In practice, tax payers being involved in tax criminal cases often file pretrial motion although tax investigators actually have applied the principles of formal criminal law in legal measures they take. There are often different interpretations of laws and regulations used in pretrial institution for …

The Pandemic Juror, Melanie D. Wilson

Washington and Lee Law Review Online

While the deadly and highly contagious COVID-19 virus lingers and spreads across the country, courts are resuming criminal jury trials. In moving forward, judges reference case backlogs, speedy trial rights, and other concerns for the rights of the accused. Overlooked in this calculus is the importance of jurors and their safety. The Sixth Amendment guarantees “the right to a speedy and public trial, by an impartial jury.” Without jurors, there is no justice.

Even before the COVID-19 pandemic, the justice system sometimes took advantage of juror vulnerability, treating jurors callously, if not rudely, during voir dire by asking them intensely …

Book Review: A Citizen’S Guide To Impeachment, By Barbara Radnofsky, Wendy M. Rohleder-Sook

eJournal of Public Affairs

No abstract provided.

Ethical And Aggressive Appellate Advocacy: The Decision To Petition For Certiorari In Criminal Cases, J. Thomas Sullivan

Law Faculty Scholarship

Over the past six decades, United States Supreme Court decisions have dramatically reshaped the criminal justice process to provide significant protections for defendants charged in federal and state proceedings, reflecting a remarkable expansion of due process and specific constitutional guarantees. For criminal defendants seeking relief based on recognition of new rules of constitutional criminal procedure, application of existing rules or precedent to novel factual scenarios, or in some cases, enforcement of existing precedent, obtaining relief requires further action on the Court’s part. In those situations, the Court’s exercise of its certiorari jurisdiction is the exclusive remedy offering an avenue for …

Pardoning Dogs, Sarah Schindler

Nevada Law Journal

In 1994, the Governor of New Jersey pardoned a dog. In 2017, the Governor of Maine did the same. Each of these dogs had been ordered to be euthanized after killing another dog. While the Governor of New Jersey relied on the property status of the dog in issuing her order, the Governor of Maine relied on his standard pardon power, despite the fact that the being to be pardoned was a dog rather than a human. Both of these cases generated a great deal of popular press and attention, and a few months ago, a New York state senator …

A (Cruel And) Unusual Decision: Questions Raised For The Fifth Circuit Moving Forward From Gibson V. Collier, J. Gregory Cloward

Nevada Law Journal

No abstract provided.

Novel Perspectives On Due Process Symposium: Punishment Without Process: “Victim Impact” Proceedings For Dead Defendants, Bruce A. Green, Rebecca Roiphe

Fordham Law Review Online

When women accuse powerful men of sexual assault, there is increasing public pressure to resolve any doubts in the accusers’ favor before the criminal process is over, if not from the outset. Private individuals and institutions often do so without worrying about due process, but it is different for the trial court, where the presumption of innocence is supposed to apply. This is especially true where public shaming and the accompanying reputational consequences already constitute a kind of punishment. Although they may be sympathetic to accusers, especially those whose cause is championed by a strong and popular social movement, courts …

Cryptography, Passwords, Privacy, And The Fifth Amendment, Gary C. Kessler, Ann M. Phillips

Journal of Digital Forensics, Security and Law

Military-grade cryptography has been widely available at no cost for personal and commercial use since the early 1990s. Since the introduction of Pretty Good Privacy (PGP), more and more people encrypt files and devices, and we are now at the point where our smartphones are encrypted by default. While this ostensibly provides users with a high degree of privacy, compelling a user to provide a password has been interpreted by some courts as a violation of our Fifth Amendment protections, becoming an often insurmountable hurdle to law enforcement lawfully executing a search warrant. This paper will explore some of the …

A Too Permeating Police Surveillance: Consumer Genetic Genealogy And The Fourth Amendment After Carpenter, Michael I. Selvin

Loyola of Los Angeles Law Review

No abstract provided.

"Buy One Get One Free": How Reindictment Policies Permit Excessive Searches, Katie Carroll

William & Mary Bill of Rights Journal

When the government decides to stop prosecuting a case, it files a nolle prosequi with the court. Nolle prosequis are slightly different from motions to dismiss. Unlike a motion to dismiss with prejudice, a prosecutor may later reindict a defendant with the same crime without a double jeopardy issue arising after dropping the same case through nolle prosequi. Furthermore, many states do not require judicial approval for a nolle prosequi. Therefore, prosecutors can gain a number of advantages by using nolle prosequi, like avoiding speedy trial deadlines or having a second chance to win important evidentiary hearings.

The advantages of …

Preventing Parkland: A Workable Fourth Amendment Standard For Searching Juveniles' Smartphones Amid School Threats In A Post-Parkland World, Andrew Mueller

William & Mary Bill of Rights Journal

On February 14, 2018, Nikolas Cruz, age nineteen, went to the Marjory Stoneman Douglas High School campus in Parkland, Florida, armed with an AR-15 rifle. He opened fire, killing seventeen students. His unspeakable actions culminated in an attack, which eclipsed the 1999 Columbine High School Massacre to become the deadliest school shooting at a high school in American history. In the immediate months following this still-recent tragedy, schools across the United States were flooded with “copycat” threats of violence. Terroristic threat charges levied against juveniles have likewise skyrocketed.

These recent events have resulted in new and burdensome pressures for schools …