Law Commons^™

Trammel V. United States: Bad History, Bad Policy, And Bad Law, Michael W. Mullane

Maine Law Review

In 1980 the United States Supreme Court decided Trammel v. United States. The opinion changed the Spouses' Testimonial Privilege, overturning centuries of consistent case decisions. The Court based its decision on the history and effect of privilege and a straw poll of state legislative and court decisions on the issue. The Court concluded its decision would permit the admission of more spousal testimony without impairing the benefits the privilege was supposed to confer on spouses. The Court's decision in Trammel was wrong on three counts. The first was bad history overlaid with questionable analysis. The survey of the state's treatment …

User-Generated Evidence, Rebecca Hamilton

Articles in Law Reviews & Other Academic Journals

Around the world, people are using their smartphones to document atrocities. This Article is the first to address the implications of this important development for international criminal law. While acknowledging the potential benefits such user-generated evidence could have for international criminal investigations, the Article identifies three categories of concern related to its use: (i) user security; (ii) evidentiary bias; and (iii) fair trial rights. In the absence of safeguards, user-generated evidence may address current problems in international criminal justice at the cost of creating new ones and shifting existing problems from traditional actors, who have institutional backing, to individual users …

What Humility Isn’T: Responsibility And The Judicial Role, Benjamin Berger

Articles & Book Chapters

In recent years, academic literature has given some attention to humility as an important adjudicative principle or virtue. Drawing inspiration from a Talmudic tale, this chapter suggests that the picture of judicial humility painted in this literature is not only incomplete, but even potentially dangerous so. Seeking to complete the picture of what this virtue might entail, this piece explores the idea that humility is found in awareness of one’s position and role in respect of power, and a willingness to accept the burdens of responsibility that flow from this. The chapter examines elements of Chief Justice McLachlin’s criminal justice …

Unlocking The Fifth Amendment: Passwords And Encrypted Devices, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

Each year, law enforcement seizes thousands of electronic devices — smartphones, laptops, and notebooks — that it cannot open without the suspect’s password. Without this password, the information on the device sits completely scrambled behind a wall of encryption. Sometimes agents will be able to obtain the information by hacking, discovering copies of data on the cloud, or obtaining the password voluntarily from the suspects themselves. But when they cannot, may the government compel suspects to disclose or enter their password?

This Article considers the Fifth Amendment protection against compelled disclosures of passwords — a question that has split and …

A ‘Bad Rap’: R. V. Skeete And The Admissibility Of Rap Lyric Evidence, Ngozi Okidegbe

Faculty Scholarship

The use of accused-authored rap lyric evidence is no longer rare in Canadian criminal proceedings. Adduced by Crown prosecutors, rap lyrics written or co-written by an accused are increasingly used in criminal trials as evidence of the accused’s intent, knowledge, motive, identity, or confession to the commission of the specific offence charged. The practice is not without controversy.¹ The introduction of an accused’s artistic work in the form of rap lyrics at trial engages trial fairness concerns. Without a keen awareness of the social and cultural context that produces rap music, trial actors risk inflating their probative value and …

Sexual Consent And Disability, Jasmine E. Harris

All Faculty Scholarship

Our nation is engaged in deep debate over sexual consent. But to date the discussion has overlooked sexual consent’s implications for a key demographic: people with mental disabilities, for whom the reported incidence of sexual violence is three times that of the nondisabled population. Even as popular debate overlooks the question of sexual consent for those with disabilities, contemporary legal scholars critique governmental overregulation of this area, arguing that it diminishes the agency and dignity of people with disabilities. Yet in defending their position, these scholars rely on empirical data from over twenty years ago, when disability and sexual assault …