Law Commons^™

"You Crossed The Fog Line!"—Kansas, Pretext, And The Fourth Amendment, Melanie D. Wilson

Scholarly Articles

In Whren, the United States Supreme Court sanctioned pretextual traffic stops. In practice the holding of Whren condones police investigations that target certain suspect classes of people, like Hispanics, for increased police scrutiny. In permitting pretextual stops, the Court ignored the risk that such practices will encourage police to distort the truth, overlooked the cost of under-enforcement of the laws, and ignored the consequences to the criminal justice system of race and ethnicity based discrimination.

Kansas law exacerbates these risks by making fog-line stops a model for protecting ulterior motives from a sifting judicial inquiry. In Kansas, it makes …

Improbable Cause: A Case For Judging Police By A More Majestic Standard, Melanie D. Wilson

Scholarly Articles

Several prior studies have demonstrated that police sometimes, if not often, lie in an attempt to avoid the effects of the exclusionary rule. This study of federal trial judges in the District of Kansas suggests that judges may be fostering this police perjury. Judges may unwittingly encourage police perjury because they subconsciously recognize that acknowledging perjury will probably result in release of a culpable defendant. Judges may also permit perjury because they cannot determine when police are lying. In either case, the Supreme Court majority's conception of the exclusionary rule naturally leads trial judges to deny defendants' motions to suppress. …

An Exclusionary Rule For Police Lies, Melanie D. Wilson

Scholarly Articles

Our legal system treats the police as if they are impartial fact gatherers, trained and motivated to gather facts both for and against guilt, rather than biased advocates attempting to disprove innocence, which is the reality. Because of its partiality in favor of officers, the criminal justice system lacks the appropriate structure to expose and effectively deter police lies, which distort the truth about criminal or unconstitutional conduct.

This Article, presented in three parts, argues that the current system should be changed to provide the structure necessary to promote honest police work. Specifically, it urges a modification to the exclusionary …

Systemic Indigent Defense Litigation: A 2010 Update, Cara H. Drinan

Scholarly Articles

Part I of this Essay describes the systemic indigent defense suits in Michigan and New York, noting their similar but ultimately divergent paths. Part II addresses the question of how systemic litigation in the indigent defense arena is faring in the wake of the Michigan suit. Despite the Michigan setback, this kind of litigation may still be a powerful reform tool in certain jurisdictions. Moreover, in some jurisdictions there will always be the need for litigation simply because it is the only path to reform. I note three jurisdictions where litigation is either already happening in some fashion and/or where …

The Child Declarant, The Confrontation Clause, And The Forfeiture Doctrine, Clifford S. Fishman

Scholarly Articles

The Confrontation Clause of the Sixth Amendment normally precludes the state from offering a child's "testimonial" hearsay statements into evidence if the child does not testify. An exception to that rule arises, however, if the defendant has engaged in misconduct that results in the forfeiture of the right to confront the child in court. In Giles v California, the United States Supreme Court attempted to clarify what a prosecutor must show in order to invoke the forfeiture doctrine. This Article examines the effect of Giles on the "testimonial" statement of a child declarant who does not testify at the defendant's …