Law Commons^™

The "Unfairness" Proof: Exposing The Fatal Flaw Hidden In The Rule Governing The Use Of Criminal Convictions To Impeach Character For Truthfulness, Robert Steinbuch

Pepperdine Law Review

Federal Rule of Evidence 609 (adopted by various states as well) allows for the introduction of certain convictions at trial to impeach the credibility— i.e., character for truthfulness—of any witness. The rule bifurcates its requirements between those that apply to criminal defendants—who, in theory, are afforded greater protection throughout the law than are all other participants in trials—and all remaining witnesses. The most important distinction between the standards that apply to these two classes of witnesses is that for prior crimes of criminal defendants to be introduced to impeach their credibility, those wrongdoings must survive a special balancing test spelled …

The Sacred Fourth Amendment Text, Christopher Slobogin

Michigan Law Review Online

The Supreme Court’s jurisprudence governing the Fourth Amendment’s “threshold”—a word meant to refer to the types of police actions that trigger the amendment’s warrant and reasonableness requirements—has confounded scholars and students alike since Katz v. United States. Before that 1967 decision, the Court’s decisions on the topic were fairly straightforward, based primarily on whether the police trespassed on the target’s property or property over which the target had control. After that decision—which has come to stand for the proposition that a Fourth Amendment search occurs if police infringe an expectation of privacy that society is prepared to recognize as …

How Definitive Is Fourth Amendment Textualism?, Evan H. Caminker

Michigan Law Review Online

Professor Jeffrey Bellin’s excellent article advances a comprehensive and straightforward textual approach to determining what policing activities constitute “searches” triggering the protections of the Fourth Amendment. Bellin’s thesis is that a text-based approach to interpreting the Amendment is superior to the Supreme Court’s current approach, which ever since Katz v. United States has defined “search” primarily by reference to a non-textual “reasonable expectation of privacy” standard. After soundly criticizing the ungrounded and highly subjective nature of the Katz test, Bellin declares that the Court should instead simply follow where the text leads: the Amendment protects people from a search, meaning …

"Against The Defendant": Plea Rule's Purpose V. Plain Meaning, Nick Bell

Arkansas Law Review

Rarely is there a proverbial “smoking gun” in criminal prosecutions. Instead, prosecutors and defense attorneys must tell juries competing stories—largely from circumstantial evidence—and allow jurors to determine what happened based on inferences gleaned from argument and testimony. Naturally, this creates substantial uncertainty for both prosecutors and defendants. Instead of rolling the dice at trial, the vast majority of criminal matters are resolved through plea bargaining. Plea bargaining provides both sides with a certainty otherwise unobtainable through a traditional trial. The prosecution guarantees itself a conviction, and the defendant will often receive a lighter sentence than if he or she had …

Fourth Amendment Textualism, Jeffrey Bellin

Michigan Law Review

The Fourth Amendment’s prohibition of “unreasonable searches” is one of the most storied constitutional commands. Yet after decades of Supreme Court jurisprudence, a coherent definition of the term “search” remains surprisingly elusive. Even the justices know they have a problem. Recent opinions only halfheartedly apply the controlling “reasonable expectation of privacy” test and its wildly unpopular cousin, “third-party doctrine,” with a few justices in open revolt.

These fissures hint at the Court’s openness to a new approach. Unfortunately, no viable alternatives appear on the horizon. The justices themselves offer little in the way of a replacement. And scholars’ proposals exhibit …

Criminal Procedure: Searching High And Low For A Search In Kyllo: Justice Scalia Reaffirms Core Protections Of The Fourth Amendment, Scott Byrd

Oklahoma Law Review

No abstract provided.