Law Commons^™

Arizona V. Gant And Its Impact On Search And Seizure Law And Vehicle Searches, Michael Gizzi, R Curtis

Michael C Gizzi

The decision in Arizona v. Gant, handed down in April of 2009, was a surprise for law enforcement and Supreme Court observers alike. For law enforcement, it took away their unfettered discretion to search a car anytime they engaged in a routine traffic stop, which was a commonly used tool for drug interdiction and combating gangs. For Court observers, it not only was a rare decision to suppress evidence in a Fourth Amendment case but it also presented an unusual line up of justices. This study considers the implications of Gant both for law enforcement and for observers of the …

Excluding Exclusion: How Herring Jeopardizes The Fourth Amendment's Protections Against Unreasonable Search And Seizure, Hariqbal Basi

Hariqbal Basi

Abstract- For nearly a half-century, the exclusionary rule has remained an important mechanism for ensuring police compliance with the Fourth Amendment and deterring unconstitutional searches and seizures. In January 2009, the Supreme Court held in Herring v. United States that the exclusionary rule does not apply to good faith negligent police behavior. This significantly broadened the law, and severely limits the future application of the exclusionary rule. Furthermore, this holding has strong potential for abuse by police departments. By analogizing to Fifth Amendment jurisprudence and Miranda rights, I argue that the ruling in Herring needs to be limited in order …

Excluding Exclusion: How Herring Jeopardizes The Fourth Amendment’S Protections Against Unreasonable Searches And Seizures, Hariqbal Basi

Hariqbal Basi

Abstract- For nearly a half-century, the exclusionary rule has remained an important mechanism for ensuring police compliance with the Fourth Amendment and deterring unconstitutional searches and seizures. In January 2009, the Supreme Court held in Herring v. United States that the exclusionary rule does not apply to good faith negligent police behavior. This significantly broadened the law, and severely limits the future application of the exclusionary rule. Furthermore, this holding has strong potential for abuse by police departments. By analogizing to Fifth Amendment jurisprudence and Miranda rights, I argue that the ruling in Herring needs to be limited in order …

""Your Honor, May I Have That In Writing?" -- Law And Policy Supporting Vacatur For Violation Of The Federal Sentencing Written Order Requirement, Judy A. Clausen Professor

Judy A. Clausen Professor

A disturbing trend has emerged in our federal courts. District judges are ignoring the statutory mandate to identify in the written order imposing a sentence the specific reason for deviating from the range recommended by the Federal Sentencing Guidelines. Rather than vacating these out-of-range sentences based on the clear statutory violations, appellate courts are affirming the sentences despite the fact that the sentences are imposed in violation of law. This article proposes a solution to this problem.

Executing Foster V. Neilson: Enforcing Treaties Against The States, David Sloss

David Sloss

In Medellin v. Texas, the Supreme Court held that Article 94 of the United Nations Charter is non-self-executing. In so holding, the Court applied the “intent-based” doctrine of self-execution. Conventional wisdom traces that doctrine to an 1829 opinion by Chief Justice Marshall in Foster v. Neilson. The conventional wisdom is wrong. Marshall applied the “two-step” approach to self-execution, not the modern intent-based doctrine. The two-step approach distinguishes clearly between questions of international and domestic law. International law governs the content and scope of the United States’ treaty obligations. Domestic law determines which government officers are responsible for domestic treaty implementation. …

Constitutional Pathology, The War On Terror, And United States V. Klein, Howard M. Wasserman

Howard M Wasserman

In The Irrepressible Myth of Klein (UNIVERSITY OF CINCINNATI LAW REVIEW, 2010) I discuss the meaning, scope, and continued relevance of the Supreme Court's historic decision in United States v. Klein (1871), arguing that Klein is not the judicially powerful a precedent many believe it to be. In this follow-up essay, I apply the insights of my analysis and exposure of Klein’s myths to two major pieces of legislation enacted as part of the ongoing War on Terror: The FISA Amendments Act of 2008 (granting retroactive immunity to telecommunications companies involved in warrantless domestic surveillance) and the Military Commissions Act …

Car Stops, Borders, And Profiling: The Hunt For Undocumented (Illegal?) Immigrants In Border Towns, Brian Gallini, Elizabeth Young

Brian Gallini

Federal Traffic Law: State Law, Reasonableness Norms, And The Fourth Amendment, Margaret Raymond

Margaret Raymond

In Virginia v. Moore, 553 U.S. 164 (2008), the Supreme Court indicated that whether police comply with state law is irrelevant to whether they have acted reasonably under the Fourth Amendment. That’s an overstatement; there are times when the content of state law is critically relevant to whether police actions violate the constitution. One is the traffic stop. Federal courts assessing the constitutionality of traffic stops have developed a body of what might be deemed “federal traffic law” to determine the legality of such stops. The article analyzes and articulates the norms that the federal courts have developed to deal …

When The Emperor Has No Clothes: A Proposal For Defensive Summary Judgment In Criminal Cases, Carrie Leonetti

Carrie Leonetti

This Article addresses the problem that arises when the prosecution has pleaded criminal charges correctly on the basis of probable cause, but either its theory of the defendant’s guilt is based on a misunderstanding of the governing law or it lacks legally sufficient evidence to sustain the charges. It argues that, in this situation, trial courts should have the authority to grant summary judgment to the defense.

The Article discusses the rationales that underlay the creation of summary judgment in civil cases, surveys the existing mechanisms for summary disposition of criminal charges (pretrial motions to dismiss, preliminary hearings, and grand-jury …

Civil, Criminal, Or Mary Jane: Stigma, Legislative Labels, And The Civil Case At The Heart Of Criminal Procedure, W. Ball

W. David Ball

In criminal cases, any fact which increases the maximum punishment must be found by a jury beyond a reasonable doubt. This rule, which comes from Apprendi v. New Jersey, looks to what facts do, not what they are called; in Justice Scalia’s memorable turn of phrase, it applies whether the legislature has labeled operant facts “elements, enhancements, or Mary Jane.” Civil statutes, however, can deprive an individual of her liberty on identical facts without needing to meet the beyond a reasonable doubt standard of proof. If Apprendi is, indeed, functional, why is it limited to formally criminal cases? Why does …

The Several States Within The United States Constitution, Dean A. Cantalupo Esq.

Dean A Cantalupo Esq.

This paper argues that the States, frequently referred to as the "several States" are an explicit and distinct body of power provided for in the United States Constitution. The several States serve as an instrumental body of power within the Constitution, just as the traditionally recognized Legislative, Executive and Judicial bodies of power are associated with being provided for in Articles I, II, and III.

The Humanization Of The Corporate Entity: Changing Views Of Corporate Criminal Liability In The Wake Of Citizens United, Elizabeth R. Sheyn

Elizabeth R Sheyn

Although the recent United States Supreme Court decision in Citizens United v. Federal Election Commission clearly controls the First Amendment rights of corporations, the effect of Citizens United on corporate criminal liability is less obvious, though equally (if not more) significant. The Court’s view that corporations are equal to human beings, at least under the First Amendment’s Free Speech Clause, when combined with the traditional understanding that corporations are considered “persons” under the United States Constitution, likely impacts the way that corporations’ alleged misdeeds are investigated by the government and the manner in which the government subsequently deals with corporate …

To Testify Or Not To Testify: A Comparative Analysis Of Australian And American Approaches To A Parent-Child Testimonial Exemption, Hillary Farber

Hillary B. Farber

Among many legal systems there are certain relationships that are deemed to possess such societal worth that despite the evidentiary value a witness may possess, he is immune from being compelled to testify against the other party in the relationship. In the United States, courts have recognized an evidentiary privilege for spouses, lawyers and their clients, psychotherapists and their patients. Surprisingly, the United States has not adopted a federal common law or statutory parent-child privilege. Among the civil law countries in Europe and Asia, a majority of countries prohibit parents and children from testifying against one another. Australia is the …

Heller, Mcdonald And Murder: Testing The More Guns, More Murder Thesis, Don B. Kates, Carlisle E. Moody

Carlisle Moody

We examine several aspects of the more guns, more murder hypothesis. We find that ordinary people typically do not kill in a moment of rage, so that preventing them from owning guns will not save lives. Societies without guns are not typically peaceful and safe. Historically, more guns are associated with less murder. Modern Europe nations with very high gun ownership rates have much lower murder rates than low gun ownership nations. In the United States: the colonial period of universal gun ownership saw few murders and few of those were gun murders. More guns do not mean more murder.

Protecting “Any Child:” The Use Of The Confidential Marital Communications Privilege In Child Molestation Cases, Naomi Goodno

Naomi Harlin Goodno

Imagine a grandmother who wants to testify in a criminal trial that her husband confessed to her that he molested their two-year old grandson, but she is prevented from doing so. This is a true example of how a defendant can invoke the confidential martial communications privilege. Federal courts and half of the state legislatures have created exceptions to the confidential martial communications privilege in narrow situations. If a defendant has committed a crime against “the child of either” spouse, or against a “child residing in the home,” then the defendant cannot bar testimony based on the confidential marital communications …

Empowering The Sentencing Commission: A Different Resolution To The Cocaine Sentencing Drama, Kip D. Nelson

Kip D Nelson

No abstract provided.

Neuroimaging And Competency To Be Executed After Panetti, Michael L. Perlin

Michael L Perlin

Scholars have begun to consider the impact of neuroimaging evidence on capital punishment trials, questioning whether reliance on such testimony can actually make “sentencing more rational and humane.” They have also considered the impact of this evidence on criminal sentencing, expressing concern that such evidence will be improperly used “as predictive factors to increase sentences,” and counseling policymakers to “avoid misuse of new techniques.” In an earlier article on neuroimaging and criminal procedure, I considered the questions of a criminal defendant’s competency to submit to neuroimaging testing, and the impact of antipsychotic medications on the results of such testing.

What …

The Probative Function Of Punishment: Criminal Sanctions In The Defense Of The Innocent, Ehud Guttel

Ehud Guttel

Under the formal procedural rules, factfinders are required to apply a uniform standard of proof in all criminal cases. Experimental studies as well as real world examples indicate, however, that factfinders often adjust the evidentiary threshold for conviction in accordance with the severity of the applicable sanction. All things being equal, the higher the sanction, the higher the standard of proof factfinders will apply in order to convict. Building on this insight, this Article introduces a new paradigm for criminal punishments—a paradigm that focuses on designing penalties that will reduce the risk of unsubstantiated convictions. By setting mandatory penalties of …

Police “Science” In The Interrogation Room: Seventy Years Of Pseudo-Psychological Interrogation Methods To Obtain Inadmissible Confessions, Brian Gallini

Brian Gallini

Review Essay: Golden Rule Ethics And The Death Of The Criminal Law's Special Part, Stuart Green

Stuart Green

This brief review of Crime and Culpability: A Theory of Criminal Law, by Larry Alexander and Kimberly Kessler Ferzan, with Stephen Morse, focuses on the authors’ proposal that the Special Part of the criminal law, the part that identifies and defines specific offenses, be radically stripped down in a manner that is reminiscent of the Golden Rule of Ethics, which, they say, offers a “clear” and “concise” guide to living ethically. Rather than a long list of specific prohibited forms of conduct (“don’t murder,” “don’t rape,” “don’t commit theft,” and the like), they argue, the criminal law should rely on …

Second Thoughts On Damages For Wrongful Convictions, Lawrence Rosenthal

Lawrence Rosenthal

After the DNA-inspired wave of exonerations of recent years, there has been widespread support for expanding the damages remedies available to those who have been wrongfully accused or convicted. This article argues that the case for providing such compensation is deeply problematic under the justificatory theories usually advanced in support of either no-fault or fault-based liability. Although a regime of strict liability is sometimes thought justifiable to as a means of creating an economic incentive to scale back conduct thought highly likely to produce social losses, it is far from clear that the risk of error is so high in …

Pragmatism, Originalism, Race And The Case Against Terry V. Ohio, Lawrence Rosenthal

Lawrence Rosenthal

Perhaps no decision of the United States Supreme Court concerning the Fourth Amendment’s prohibition on “unreasonable search and seizure” has come in for more criticism than Terry v. Ohio, in which the Supreme Court concluded that even absent probable cause to arrest, a brief detention and protective search of an individual comports with the Fourth Amendment “where a police officer observes unusual conduct which leads him reasonably to conclude that criminal activity may be afoot and that the person with whom he is dealing may be armed and presently dangerous . . .” Terry is frequently denounced as granting the …

Crime And Punishment: Teen Sexting In Context, Julia Halloran Mclaughlin

Julia Halloran McLaughlin

Do You Swear To Tell The Truth, The Whole Truth, And Nothing But The Truth Against Your Child?, Hillary B. Farber

Hillary B. Farber

Currently in the United States forty-five states and the federal system do not recognize an evidentiary parent-child privilege. The United States Supreme Court has never granted certiorari in a case involving recognition of a parent-child privilege. For many, it is a revelation to learn that the government can compel testimony about communications and observations between parents and their children. A rights-based argument in favor of a parent-child privilege has not been articulated before in legal scholarship. This paper singles out one specific context, the prosecution of juveniles, and argues that such a privilege is essential in order to ensure children …

The Neglected History Of Criminal Procedure, 1850-1940, Wesley M. Oliver

Wesley M Oliver

Originalism has focused the attention of courts and academics on Framing Era history to interpret constitutional limits on police conduct. Previously unexplored sources reveal, however, that Framing Era limits on officers were expressly abandoned as professional police forces were created in the mid-nineteenth century and charged with aggressively investigating and preventing crime. The modern scheme of judicially supervised police investigations was then implemented after corruption and scandals of the 1920s. The development of modern criminal procedure has a rich historical background, but it has almost nothing to do with the events of the Framing Era.

Balancing The Rights Of The Public With The Jurors' Right To Privacy During The Jury Selection Process, Stephen A. Gerst

Stephen A Gerst

It is rare for a trial judge hearing a criminal case to receive a motion to intervene filed by third parties not named in the proceedings. In the jury selection process of cases involving high profile defendants, however, the public - including the press - has a heightened interest in the proceedings. At the same time, the trial judge may have a heightened interest in the protection of juror privacy. This article discusses the issue of when and under what circumstances a trial court may close proceedings to the public during the jury selection process and seal the written responses …

To Testify Or Not To Testify: A Comparative Analysis Of Australian And American Approaches To A Parent-Child Testimonial Exemption, Hillary B. Farber

Hillary B. Farber

Among many legal systems there are certain relationships that are deemed to possess such societal worth that despite the evidentiary value a witness may possess, he is immune from being compelled to testify against the other party in the relationship. In the United States, courts have recognized an evidentiary privilege for spouses, lawyers and their clients, psychotherapists and their patients. Surprisingly, the United States has not adopted a federal common law or statutory parent-child privilege. Among the civil law countries in Europe and Asia, a majority of countries prohibit parents and children from testifying against one another. Australia is the …

Pro-Prosecution Judges: "Tough On Crime," Soft On Strategy, Ripe For Disqualification, Keith Swisher

Keith Swisher

In this Article, I take the most extensive look to date at pro-prosecution judges and ultimately advance the following, slightly scandalous claim: Particularly in our post-Caperton, political-realist world, “tough on crime” elective judges should recuse themselves from all criminal cases. The contextual parts to this claim are, in the main, a threefold description: (i) the "groundbreaking" Caperton v. A.T. Massey Coal decision, its predecessors, and its progeny; (ii) the judicial ethics of disqualification; and (iii) empirical and anecdotal evidence of pro-prosecution (commonly called "tough on crime") campaigns and attendant electoral pressures. Building on this description and the work of empiricists, …

Stop Taking The Bait: The Dilution Of Miranda Does Not Make America Safer From Terrorism, Ryan T. Williams

Ryan T. Williams

On December 25, 2009, a Nigerian tried to blow up a plane over Detroit, Michigan. On May 1, 2010, an American tried to set off explosives in New York's Times Square. Neither man succeeded. After both arrests, lawmakers clamored for more flexibility to interrogate terror suspects and for the suspension (if not elimination) of their Miranda rights. The Supreme Court subsequently decided three cases that severely dilute Miranda protections and Fifth Amendment rights. An examination of these decisions reveals that they fail to make America safer from terrorism.

Worse still, the dilution of American citizens' rights sends a dangerous message …

The U.N. Security Council Ad Hoc Rwanda Tribunal: International Justice, Or Judicially-Constructed “Victor’S Impunity”?, C. Peter Erlinder

C. Peter Erlinder

ABSTRACT The U.N. Security Council Ad Hoc Rwanda Tribunal: International Justice, or Juridically-Constructed “Victor’s Impunity”? Prof. Peter Erlinder [1] ________________________ “…if the Japanese had won the war, those of us who planned the fire-bombing of Tokyo would have been the war criminals….” [2] Robert S. McNamara, U.S. Secretary of State “…and so it goes…” [3] Billy Pilgrim (alter ego of an American prisoner of war, held in the cellar of a Dresden abattoir, who survived firebombing by his own troops, author Kurt Vonnegut Jr.) Introduction Unlike the postWW- II Tribunals, the U.N. Security Council tribunals for the former Yugoslavia [10] …