Criminal Law Commons^™

Justice Sonia Sotomayor: The Court’S Premier Defender Of The Fourth Amendment, David L. Hudson Jr.

Seattle University Law Review

This essay posits that Justice Sotomayor is the Court’s chief defender of the Fourth Amendment and the cherished values it protects. She has consistently defended Fourth Amendment freedoms—in majority, concurring, and especially in dissenting opinions. Part I recounts a few of her majority opinions in Fourth Amendment cases. Part II examines her concurring opinion in United States v. Jones. Part III examines several of her dissenting opinions in Fourth Amendment cases. A review of these opinions demonstrates what should be clear to any observer of the Supreme Court: Justice Sotomayor consistently defends Fourth Amendment principles and values.

“Don’T Move”: Redefining “Physical Restraint” In Light Of A United States Circuit Court Divide, Julia Knitter

Seattle University Law Review

To reduce sentencing disparities and clarify the application of the sentencing guide to the physical restraint enhancement for a robbery conviction, this Comment argues that the United States Sentencing Commission (USSC) must amend the USSC Guidelines Manual to provide federal courts with a clearer and more concise definition of physical restraint. Additionally, although there are many state-level sentencing systems throughout the United States, this Comment only focuses on the federal sentencing guidelines for robbery because of the disparate way in which these guidelines are applied from circuit to circuit.

Enough Is As Good As A Feast, Noah C. Chauvin

Seattle University Law Review

Ipse Dixit, the podcast on legal scholarship, provides a valuable service to the legal community and particularly to the legal academy. The podcast’s hosts skillfully interview guests about their legal and law-related scholarship, helping those guests communicate their ideas clearly and concisely. In this review essay, I argue that Ipse Dixit has made a major contribution to legal scholarship by demonstrating in its interview episodes that law review articles are neither the only nor the best way of communicating scholarly ideas. This contribution should be considered “scholarship,” because one of the primary goals of scholarship is to communicate new ideas.

Professor Jeffrey Bellin: Reflections On The Fall 2020 Semester, Jeffrey Bellin

Law School Personal Reflections on COVID-19

No abstract provided.

Excessive Force: Justice Requires Refining State Qualified Immunity Standards For Negligent Police Officers, Angie Weiss

Seattle University Law Review Online

At the time this Note was written, there was no Washington state equivalent of the § 1983 Civil Rights Act. As plaintiffs look to the Washington state courts as an alternative to federal courts, they will find that Washington state has a different structure of qualified immunity protecting law enforcement officers from liability.

In this Note, Angie Weiss recommends changing Washington state's standard of qualified immunity. This change would ensure plaintiffs have a state court path towards justice when they seek to hold law enforcement officers accountable for harm. Weiss explains the structure and context of federal qualified immunity; compares …

Unbuckling The Seat Belt Defense In Arkansas, Spencer G. Dougherty

Arkansas Law Review

The “seat belt defense” has been hotly litigated over the decades in numerous jurisdictions across the United States. It is an affirmative defense that, when allowed, reduces a plaintiff’s recovery for personal injuries resulting from an automobile collision where the defendant can establish that those injuries would have been less severe or avoided entirely had the plaintiff been wearing an available seat belt. This is an unsettled legal issue in Arkansas, despite the growing number of cases in which the seat belt defense is raised as an issue. Most jurisdictions, including Arkansas, initially rejected the defense, but the basis for …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Restoring The Presumption Of Innocence: Protecting A Defendant’S Right To A Fair Trial By Closing The Door On 404(B) Evidence, Aaron Diaz

St. Mary's Law Journal

Congress enacted the Federal Rules of Evidence to govern evidentiary procedures and “eliminate unjustifiable expense and delay.” In criminal cases, for example, Federal Rule of Evidence 404(b) seeks to prevent prosecutors from improperly introducing a defendant’s past misdeeds. Nevertheless, prosecutors often attempt to introduce a defendant’s past misconduct to suggest that a defendant has a propensity to commit crimes, which is improper character evidence. Unsurprisingly, 404(b) is one of the most litigated evidence rules and has generated more published opinions than any other subsections of the Rules. And despite efforts to amend Rule 404(b), the rule has remained virtually untouched. …

Must A Friend Indeed Reveal A Friend’S Misdeed? Exploring The Merits Of A Friendship Privilege, Michael D. Moberly

St. Mary's Law Journal

Abstract forthcoming.

A Two-Stage Model For Social Network Investigations In Digital Forensics, Anne David, Sarah Morris, Gareth Appleby-Thomas

Journal of Digital Forensics, Security and Law

This paper proposes a two-stage model for identifying and contextualizing features from artefacts created as a result of social networking activity. This technique can be useful in digital investigations and is based on understanding and the deconstruction of the processes that take place prior to, during and after user activity; this includes corroborating artefacts. Digital Investigations are becoming more complex due to factors such as, the volume of data to be examined; different data formats; a wide range of sources for digital evidence; the volatility of data and the limitations of some of the standard digital forensic tools. This paper …

"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 …

Child Abuse And Cannabis Use: How A Prima Facie Standard Mischaracterizes Parental Cannabis Consumption As Child Neglect, Jasmine Harris

Cardozo Law Review

No abstract provided.

The Clergy-Penitent Privilege: The Role Of Clergy In Perpetuating And Preventing Domestic Violence, Kami Orton

Nevada Law Journal Forum

Domestic violence occurs at alarming rates in all socioeconomic levels, races, locations, sexual orientations, and professions. Domestic violence occurs at similar frequencies among religious and non-religious individuals. Clergy play an important role in religious communities. The clergy-penitent privilege was created to protect the relationship between clergy and communicant and prevents clergy from testifying about spiritual communications. However, the privilege is currently an absolute privilege which is unnecessary and hurts victims and survivors of domestic violence. Additionally, the statutorily written privilege is not aligned with the application and practice of the privilege. Practice indicates clergy tend to desire to testify and …

State V. Pinkham: Erosion Of Meaningful Forth Amendment Protection For Vehicle Stops In Maine?, Roger M. Clement Jr.

Maine Law Review

In State v. Pinkham, the Maine Supreme Judicial Court, sitting as the Law Court, held that a police officer's stop of a motorist to inquire and advise about the motorist's improper-but not illegal-lane usage did not necessarily violate the Fourth Amendment's proscription against unreasonable seizures. The Pinkham decision is the first time that the Law Court has validated the stop of a moving vehicle in the absence of either a suspected violation of law or an imminent, ongoing threat to highway safety.
This Note considers whether the Law Court was correct in sustaining the police officer's stop of Ronald Pinkham. …

Please Stop: The Law Court's Recent Roadblock Decisions, Jonathan A. Block

Maine Law Review

Police checkpoints or “roadblocks” have become an increasingly utilized law enforcement tool. At best, these checkpoints result in only a minor inconvenience to motorists. When abused, however, roadblocks have the potential for invidious invasions of privacy and personal freedom. Roadblocks are designed to deter, and to a lesser extent detect, criminal activity by stopping everyone—both the guilty and the law-abiding—for a brief inspection, thereby impinging to some degree on one's freedom of travel, privacy, and “right to be let alone.” Such “seizures” must be “reasonable” under the Fourth Amendment in order to survive constitutional challenge. The major difference between roadblocks …

Secret Conviction Programs, Meghan J. Ryan

Washington and Lee Law Review

Judges and juries across the country are convicting criminal defendants based on secret evidence. Although defendants have sought access to the details of this evidence—the results of computer programs and their underlying algorithms and source codes—judges have generally denied their requests. Instead, judges have prioritized the business interests of the for-profit companies that developed these “conviction programs” and which could lose market share if the secret algorithms and source codes on which the programs are based were exposed. This decision has jeopardized criminal defendants’ constitutional rights.

Confronting Memory Loss, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

The Confrontation Clause of the Sixth Amendment grants “the accused” in “all criminal prosecutions” a right “to be confronted with the witnesses against him.” A particular problem occurs when there is a gap in time between the testimony that is offered, and the cross-examination of it, as where, pursuant to a hearsay exception or exemption, evidence of a current witness’s prior statement is offered and for some intervening reason her current memory is impaired. Does this fatally affect the opportunity to “confront” the witness? The Supreme Court has, to date, left unclear the extent to which a memory-impaired witness can …

Revitalizing Fourth Amendment Protections: A True Totality Of The Circumstances Test In § 1983 Probable Cause Determinations, Ryan Sullivan

Nebraska College of Law: Faculty Publications

The Article analyzes claims of police misconduct and false arrest, specifically addressing the issue of whether a police officer may ignore evidence of an affirmative defense, such as self-defense, when determining probable cause for an arrest. The inquiry most often arises in § 1983 civil claims for false arrest where the officer was aware of some evidence a crime had been committed, but was also aware of facts indicating the suspect had an affirmative defense to the crime observed. In extreme cases, the affirmative defense at issue is actually self-defense in response to the officer’s own unlawful conduct. As police …

People V. Buza: A Step In The Wrong Direction, Emily R. Pincin

Loyola of Los Angeles Law Review

No abstract provided.

The Meaning Of A Misdemeanor In A Post-Ferguson World: Evaluating The Reliability Of Prior Conviction Evidence, John D. King

Scholarly Articles

Despite evidence that America’s low-level courts are overburdened, unreliable, and structurally biased, sentencing judges continue to uncritically consider a defendant’s criminal history in fashioning an appropriate punishment. Misdemeanor courts lack many of the procedural safeguards that are thought to ensure accuracy and reliability. As with other stages of the criminal justice system, people of color and poor people are disproportionately burdened with the inaccuracies of the misdemeanor system.

This Article examines instances in which sentencing courts have looked behind the mere fact of a prior conviction and assessed whether that prior conviction offered any meaningful insight for the subsequent sentence. …

The Fourth Amendment Inventory As A Check On Digital Searches, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

Police and federal agents generally must obtain a warrant to search the tens of thousands of devices they seize each year. But once they have a warrant, courts afford these officers broad leeway to search the entire device, every file and folder, all metadata and deleted data, even if in search of only one incriminating file. Courts avow great reverence for the privacy of personal information under the Fourth Amendment but then claim there is no way to limit where an officer might find the target files, or know where the suspect may have hidden them.

These courts have a …

Recalibrating Suspicion In An Era Of Hazy Legality, Deborah Ahrens

Seattle University Law Review

After a century of employing varying levels of prohibition enforced by criminal law, the United States has entered an era where individual states are rethinking marijuana policy, and the majority of states have in some way decided to make cannabis legally available. This symposium Article will offer a description of what has happened in the past few years, as well as ideas for how jurisdictions can use the changing legal status of cannabis to reshape criminal procedure more broadly. This Article will recommend that law enforcement no longer be permitted use the smell of marijuana as a reason to search …

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Judging Eyewitness Evidence, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

Herman Melville’S Billy Budd: Why This Classic Law And Literature Novel Endures And Is Still Relevant Today, Rodger Citron

Touro Law Review

No abstract provided.

Is There A Georgia Supreme Court, Problem? Analyzing The Georgia Supreme Court’S New Peculiar Approach Towards Breathalyzers And Implied Consent Law, Brian Fussell Jr.

Mercer Law Review

Alcohol and criminal behavior often accompany each other as anyone with any experience with the justice system (or intoxicated people in general) can attest to. A significant percentage of the population would probably say their worst decisions and mistakes came about while under the influence of booze or other intoxicants, and crime statistics would back this up. Alcohol-related crime statistics in the United States compiled by AlcoRehab show around 500,000 cases of alcohol related violence every year and also demonstrate that an incredible 86% of homicides and 60% of sexual abuse or rape cases were committed under the influence of …

Title Ix & The Civil Rights Approach To Sexual Harassment In Education, Nancy Chi Cantalupo

Roger Williams University Law Review

No abstract provided.

Lie To Me: Examining Specific Intent Under 18 U.S.C. §§ 1001, 1035

Florida A & M University Law Review

One court notes that the Supreme Court of the United States (“SCOTUS”) has previously not found specific intent to be required under similar language within Section 1001.9 While there are many similarities between Sections 1001 and 1035, there are salient differences. Notwithstanding the differences, this Article argues that Sections 1001 and 1035 should be interpreted without “intent to deceive” and rather be interpreted as a strict liability offense. This argument began with Part I, which provided a brief introduction regarding specific intent under Sections 1001 and 1035. Part II examines the purpose of criminalizing false statements, which identifies why the …

Can The Pursuit Of Truth Reconcile With The Principle Of Minimizing False Convictions?, Doron Menashe

Cardozo Journal of Conflict Resolution

No abstract provided.