Constitutional Law Commons^™

Book Review: Forensic Linguistics, Dru Stevenson

ExpressO

Review of John Gibbons' text "Forensic Linguistics"

The Innocence Protection Act Of 2004: A Small Step Forward And A Framework For Larger Reforms, Ronald Weich

All Faculty Scholarship

Passage of the Innocence Protection Act in the closing days of the 108th Congress was a watershed moment. To be sure, the bill that finally became law was a shadow of the more ambitious criminal justice reforms first championed five years earlier by Senator Pat Leahy, Congressman Bill Delahunt and others. But the enactment of legislation designed to strengthen — not weaken — procedural protections for death row inmates was rich in symbolic importance and promise.

Writing in the April 2001 issue of THE CHAMPION (Innocence Protection Act: Death Penalty Reform on the Horizon), I said optimistically: "The criminal justice …

The Unconstitutionality Of "Hold Until Cleared": Reexamining Material Witness Detentions In The Wake Of The September 11th Dragnet, Ricardo J. Bascuas

Articles

No abstract provided.

American Courts Are Drowning In The "Gene Pool": Excavating The Slippery Slope Mechanisms Behind Judicial Endorsement Of Dna Databases, 39 J. Marshall L. Rev. 115 (2005), Meghan Riley

UIC Law Review

No abstract provided.

“Testimonial” And The Formalistic Definition: The Case For An “Accusatorial” Fix, Robert P. Mosteller

Faculty Scholarship

The definition that the Supreme Court ultimately gives to the concept of testimonial statements will obviously be of critical importance in determining whether the new Confrontation Clause analysis adopted by Crawford affects only a few core statements or applies to a broader group of accusatorial statements knowingly made to government officials and perhaps private individuals at arm's length from the speaker. I contend that the broader definition is more consistent with the anti-inquisitorial roots of the Confrontation Clause when that provision is applied in the modern world. If my sense of the proper scope of the clause is roughly correct, …

Evidence—Sixth Amendment And The Confrontation Clause—Testimonial Trumps Reliable: The United States Supreme Court Reconsiders Its Approach To The Confrontation Clause. Crawford V. Washington, 541 U.S. 36 (2004)., Kristen Sluyter

University of Arkansas at Little Rock Law Review

No abstract provided.

The Moussaoui Case: The Mess From Minnesota, Afsheen John Radsan

William Mitchell Law Review

This article, after giving a brief history of the Moussaoui case, identifies the main paradoxes or problems of continuing to deal with him in the criminal system. By no stretch of the imagination does this article provide an exhaustive or comprehensive treatment of the Moussaoui case. Each problem, by itself, could be the subject of a separate law review article. This article suggests that Moussaoui, rather than Yaser Esam Hamdi, or Jose Padilla, or the detainees in Guantanamo Bay, could have served as the true test for determining the minimum process that the American Constitutional system owes to an individual …

Taking Miranda's Pulse, William T. Pizzi, Morris B. Hoffman

Publications

No abstract provided.

Hiibel V. Sixth Judicial District Court:Can Police Arrest Suspects For Withholding Their Names?, John Famum

Richmond Public Interest Law Review

Suppose that someone calls the police and alerts them to a crime that has been committed. Using the information provided, the police stop you because you fit the description of the person reported. If the police ask your name, must you give it? The United States Supreme Court believes you must if the state you are in has passed a law requiring you to give your name. In a factual situation very similar to this, the United States Supreme Court held in Hiibel v. Sixth Judicial District Court that the Nevada law requiring a person to provide his name in …

Nothing New Under The Sun? A Technologically Rational Doctrine Of Fourth Amendment Search, Stephen E. Henderson

Faculty Articles

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. Yet as interpreted by the United States Supreme Court, the Amendment places no restriction on police combing through financial records; telephone, e-mail and website transactional records; or garbage left for collection. Indeed there is no protection for any information knowingly provided to a third party, because the provider is said to retain no reasonable expectation of privacy in that information. As technology dictates that more and more of our personal lives are available to anyone equipped to receive them, and as social norms dictate that more and …

A Jurisprudence Of Doubt: Missouri V. Seibert, United States V. Patane, And The Supreme Court's Continued Confusion About The Constitutional Status Of Miranda, Johnathan L. Rogers

Oklahoma Law Review

No abstract provided.

Hiibel V. Sixth Judicial District Court:Can Police Arrest Suspects For Withholding Their Names?, John Famum

Richmond Journal of Law and the Public Interest

Suppose that someone calls the police and alerts them to a crime that has been committed. Using the information provided, the police stop you because you fit the description of the person reported. If the police ask your name, must you give it? The United States Supreme Court believes you must if the state you are in has passed a law requiring you to give your name. In a factual situation very similar to this, the United States Supreme Court held in Hiibel v. Sixth Judicial District Court that the Nevada law requiring a person to provide his name in …

Data Matching, Data Mining, And Due Process, Daniel J. Steinbock

Georgia Law Review

The Article concerns the governmental use of computerized data matching (comparison of records) and data mining (profiling),which increasingly are aimed at locating potential terrorists. The most striking aspect of virtually all anti-terrorist data matching and data mining decisions is the total absence of even the most rudimentary procedures for notice, hearing, or other opportunities for meaningful participation before, or even after, the deprivation is imposed. The Article evaluates under Fourth Amendment and due process standards a variety of law enforcement activities data matching or data mining might instigate. After reviewing these activities' potential effects on private, governmental, and accuracy interests, …

Military Spying In The United States: When It Is Not Your Neighbor Knocking At Your Door, Where Do You Turn?, Miriam Schneider

Cardozo Journal of Conflict Resolution

This Note will describe the role of the military in the United States and its relationship to privacy rights. Part I of this Note will describe the historical underpinnings that led to a limited role for the military within the United States territory, beyond defending against attack. Part II will describe the expectations by the courts and legislature for the military. In addition, it will illustrate instances where the military, along with numerous federal agencies, overstepped its traditional, constitutional and legal bounds. Part III will offer the legislature's response to, and its subsequent regulation of, the military and other federal …

Confrontation After Crawford, Richard D. Friedman

Articles

The following edit excerpt, drawn from "The Confrontation Clause Re-Rooted and Transformed," 2003-04 Cato Supreme Court Review 439 (2004), by Law School Professor Richard D. Friedman, discusses the impact, effects, and questions generated by the U.S. Supreme Court's ruling in Crawford v. Washington last year that a defendant is entitled to confront and cross-examine any testimonial statement presented against him. In Crawford, the defendant, charged with attacking another man with a knife, contested the trial court's admission of a tape-recorded statement his wife made to police without giving him the opportunity to cross-examine. The tiral court admitted the statement, and …

Judicial Selection And Democratic Theory: Demand, Supply, And Life Tenure, Judith Resnik

Cardozo Law Review

How ought a democracy select its judges? Critics in Canada, England, and Wales invoke the democratic values of accountability and transparency to call for a diminution in prime ministerial control over judicial appointments. In the United States, Article III of the Constitution's text directs that the President nominate - with the advice and consent of the Senate - life-tenured federal judges. Bitter conflicts about particular nominees have produced many proposals for changes of that system. And in those states that rely on various forms of judicial election, concerns focus on funding and campaigning. In short, both globally and locally, democracies …

Rethinking Retroactivity, Robert J. Jackson Jr.

Faculty Scholarship

Under the stringent test set forth in Teague v. Lane,' defendants convicted of criminal offenses are generally unable to collaterally attack their convictions by invoking constitutional rules of criminal procedure announced after their convictions become final.2 The purported exception to this general principle is said to require that a new constitutional rule be "implicit in the concept of ordered liberty'3 for it to be applied to criminal cases decided before its pronouncement. Once a rule of criminal procedure is characterized as "new,"4 Teague prohibits the rule's invocation in habeas proceedings unless the rule both "assure[s] that no man has been …

Grappling With The Meaning Of 'Testimonial', Richard D. Friedman

Articles

Crawford v. Washington, has adopted a testimonial approach to the Confrontation Clause of the Sixth Amendment. Under this approach, a statement that is deemed to be testimonial in nature may not be introduced at trial against an accused unless he has had an opportunity to cross-examine the person who made the statement and that person is unavailable to testify at trial. If a statement is not deemed to be testimonial, then the Confrontation Clause poses little if any obstacle to its admission.2 A great deal therefore now rides on the meaning of the word "testimonial."

Conceptualizing Blakely, Douglas A. Berman

The Ohio State University Moritz College of Law Working Paper Series

The Supreme Court’s decision in Blakely v. Washington has generated impassioned judicial and academic criticisms, perhaps because the “earthquake” ruling seems to announce a destructive rule in search of a sound principle. Read broadly, the jury trial rule articulated in Blakely might be thought to cast constitutional doubt on any and all judicial fact-finding at sentencing. Yet judicial fact-finding at sentencing has a long history, and such fact-finding has been an integral component of modern sentencing reforms and seems critical to the operation of guideline sentencing. The caustic reaction to Blakely reflects the fact that the decision has sowed confusion …

The Forgotten Constitutional Right To Present A Defense And Its Impact On The Acceptance Of Responsibility-Entrapment Debate, Katrice L. Bridges

Michigan Law Review

This Note argues that Section 3El.1 of the Federal Sentencing Guidelines must be interpreted to allow defendants who claim entrapment at trial to remain eligible for the acceptance-of-responsibility adjustment. To interpret Section 3El.1 in any other way would run afoul of defendants' constitutional right to present a defense. Part I argues that the entrapment defense does not put factual guilt at issue; instead the entrapment defense challenges whether the statute should apply to the defendant's conduct. Part II contends that the legislative intent in creating the sentencing guidelines in general and the acceptance-of-responsibility adjustment in particular are furthered by requiring …

Mental Disorder And The Civil/Criminal Distinction, Grant H. Morris

University of San Diego Public Law and Legal Theory Research Paper Series

This essay, written as part of a symposium issue to commemorate the 50th anniversary of the University of San Diego Law School, discusses the evaporating distinction between sentence-serving convicts and mentally disordered nonconvicts who are involved in, or who were involved in, the criminal process–people we label as both bad and mad. By examining one Supreme Court case from each of the decades that follow the opening of the University of San Diego School of Law, the essay demonstrates how the promise that nonconvict mentally disordered persons would be treated equally with other civilly committed mental patients was made and …

The Rave Act: A Specious Solution To The Serious Problem Of Increased Ecstasy Distribution Within The United States That Is Unconstitutionally Overbroad, Erin Treacy

ExpressO

The RAVE Act amends the 1986 "Crackhouse Statute" on the assumption that electronic music concerts are comparable to crackhouses. This article submits that the rationale behind the former Crackhouse statute does not logically support the RAVE Act and that the new law, as enacted, is unconstitutionally overbroad, infringing upon First Amendment rights. This article shows that the “rave culture,” its associated drug use and electronic music performances (sometimes known as raves) are not inextricably linked. The article also explores policy arguments that may be asserted against the RAVE Act and provides suggestions on how to amend the existing statute to …

Apprendi's Limits, Roger Craig Green

ExpressO

This article argues that Blakely v. Washington did not decide (explicitly or implicitly) whether the Federal Sentencing Guidelines are constitutional. It also claims that the best interpretation of Apprendi v. New Jersey would uphold the Guidelines because they do not result in a punishment above the crime of conviction's statutory maximum. The notion that statutory maxima are constitutionally important stems from separation of power principles. Congress, not the Commission, is responsible for defining crimes, and thereby for prescribing how much punishment is authorized by a jury's guilty verdict.

A Third Parallel Primrose Path: The Supreme Court's Repeated, Unexplained, And Still Growing Regulation Of State Courts' Criminal Appeals, Russell M. Coombs

ExpressO

Recently the United States Supreme Court has ruled, in a series of cases beginning with Ornelas v. United States, that decisions of certain mixed questions of federal constitutional law and fact, arising under various amendments, must be reviewed de novo on direct appeal. The Court has not specified that state courts are bound by these rulings, but has used conflicting language relevant to that issue. Faced with this ambiguity, the courts of a number of states have departed from their prior practices by following these rulings, at least some because they consider themselves bound to do so, and have extended …

'You'd Better Be Good': Congressional Threats Of Removal Against Federal Judges, Marc O. Degirolami

ExpressO

In the attached article, I argue that congressional threats of removal against federal judges are increasing in prevalence and forcefulness and that as a result the strained relationship between the judiciary and Congress – a topic of recent attention and debate – will continue to deteriorate in the coming years. I examine two bills, the Feeney Amendment to the PROTECT Act and House of Representatives Resolution 568 (in which Congress would disavow citation in judicial decisions to foreign law), to demonstrate this thesis.

I next ask what explains the phenomenon of congressional threats of removal, deploying first Thomas Hobbes’ state-of-nature …

The Alley Behind First Street, Northeast: Criminal Abortion In The Nation's Capital 1873-1973, Douglas R. Miller

ExpressO

The thirtieth anniversary of Roe v. Wade found our country no less divided over abortion than it was during the era of its prohibition. As the bitter struggle over judicial nominations throughout the present administration suggests, abortion’s future remains at the forefront of American political debate.

In their push for increased limitations, abortion opponents generally overlook the historical consequences of prohibition. Abortion rights proponents often invoke history in their opposition to new restrictions, but tend to do so superficially, and only in a manner that supports their position.

This article attempts a more complex study of criminal abortion’s legal and …

Donating "Blood Money": Fundraising For International Terrorism By United States Charities And The Government's Efforts To Constrict The Flow, Montgomery E. Engel

Cardozo Journal of International and Comparative Law

The note examines the U.S. government's use of blocking orders against charitable organizations suspected of supporting terrorism, arguing that while such orders are effective in disrupting terrorist financing, they raise significant concerns about due process, transparency, and the equitable treatment of Muslim-American donors. The author advocates for a shift toward criminal prosecution as a more effective and equitable strategy, balancing national security with civil liberties.

“Which One Of You Did It?” Criminal Liability For “Causing Or Allowing” The Death Of A Child, Lissa Griffin

ExpressO

No abstract provided.

Contaminating The Verdict: The Problem Of Juror Misconduct, Bennett L. Gershman

ExpressO

No abstract provided.

Deportations, Removals And The 1996 Immigration Acts: A Modern Look At The Ex Post Facto Clause, Lupe S. Salinas

ExpressO

The article addresses the punitive aspects of the deportation procedures as impacted by the 1996 Immigration Acts. When faced with the precedents in the field, that deportation is a civil procedure, federal courts conclude that the Ex Post Facto Clause does not apply. However, the article draws upon common law and other historical bases for the conclusion that a modern view should hold that conviction-related removals are punitive and subject to ex post facto analysis.