Criminal Law Commons^™

Probable Cause In A Nervous Age, Bruce A. Antkowiak

ExpressO

The article seeks a new understanding of the ancient principle of probable cause in an age in which public policy and law have been profoundly influenced by the fear of terrorism. It explores the importance of probable cause within a broader constitutional system, arguing that while it helps to protect the specific right against unreasonable searches, it is also part of a larger, structural protection of liberty generally.

The article explores the frustrating efforts a judge will undertake in finding meaning to the concept by resort to precedent, linguistics, mathematical models or history. Ultimately, it argues that the core of …

Review Essay: Using All Available Information, Max Huffman

ExpressO

This is a review essay entitled “Using All Available Information,” in which I review and comment on Justice Stephen Breyer’s new book, Active Liberty: Interpreting Our Democratic Constitution, published in September 2005. Justice Breyer’s book, adapted from the Tanner Lectures given in 2005 at Harvard Law School, serves partly as a response to Justice Scalia’s 1997 volume A Matter of Interpretation: Federal Courts and the Law. I review Justice Breyer’s book in part by comparison to and contrast with Justice Scalia’s. I propose that much about Justice Breyer’s interpretive philosophy, which centers on determining the “purposes” of texts and interpreting …

Finding New Constitutional Rights Through The Supreme Court’S Evolving “Government Purpose” Test Under Minimum Scrutiny, John H. Ryskamp

ExpressO

By now we all are familiar with the litany of cases which refused to find elevated scrutiny for so-called “affirmative” or “social” rights such as education, welfare or housing: Lindsey v. Normet, San Antonio School District v. Rodriguez, Dandridge v. Williams, DeShaney v. Winnebago County. There didn’t seem to be anything in minimum scrutiny which could protect such facts as education or housing, from government action. However, unobtrusively and over the years, the Supreme Court has clarified and articulated one aspect of minimum scrutiny which holds promise for vindicating facts. You will recall that under minimum scrutiny government’s action is …

State V. Martinez: The Boundaries Of Judicial Discretion And The Sixth Amendment Right To Trial By Jury In Arizona, Jamie C. Couche

ExpressO

Is a defendant’s Sixth Amendment right to a trial by jury violated when a sentencing judge considers factors beyond those found by a jury and then imposes a super-aggravated sentence? The Arizona Supreme Court says it is not violated so long as the fact-finding satisfies the Apprendi/Blakely progeny.

The Unbearable Lightness Of Batson: Mixed Motives And Discrimination In Jury Selection, Russell D. Covey

ExpressO

The Equal Protection Clause prohibits the use of peremptory challenges to exclude jurors on account of protected characteristics such as race and sex. Mixed-motive problems arise where the proponent of a strike confesses to have been motivated by a combination of proper and improper purposes. In other contexts, so-called “mixed-motive analysis,” which provides the challenged party an opportunity to prove that the “same decision” would have been made absent the improper motive, has been permitted. The United States Supreme Court has not yet ruled, however, on whether “mixed-motive” analysis is consistent with the governing framework set forth in Batson v. …

Changing Expectations Of Privacy And The Fourth Amendment, Robert Power

ExpressO

Public attitudes about privacy are central to the development of fourth amendment doctrine in two respects. These are the two “reasonableness” requirements, which define the scope of the fourth amendment (it protects only “reasonable” expectations of privacy), and provide the key to determining compliance with its commands (it prohibits “unreasonable” searches and seizures). Both requirements are interpreted in substantial part through evaluation of societal norms about acceptable levels of privacy from governmental intrusions. Caselaw, poll data, newspaper articles, internet sites, and other vehicles for gauging public attitudes after the September 11 attacks indicate that public concerns about terrorism and the …

Halbert V. Michigan: The Application Of The Douglas-Ross Dichotomy In Constitutionalizing Indigency In States’ Appellate Court Processes, Omari O. Jackson

ExpressO

This note centers on a discussion of the recent U.S. Supreme Court decision in the Halbert v. Michigan case. This case addressed the issue of whether an indigent defendant is entitled to assistance of counsel by the state to file a leave for appeal. The Court, in a 6-3 decision, held that an indigent defendant is entitled to assistance of counsel when an appeal is available by leave of the court. Prior decisions by the U.S. Supreme Court have addressed the issue of assistance of counsel during the trial and appellate stage of litigation. This note will present a historical …

Enforcing Fourth Amendment Rights Through Federal Habeas Corpus, Steven Semeraro

ExpressO

This article reassesses the use of federal habeas corpus to enforce the Fourth Amendment’s protection against unreasonable searches and seizures. In 1976, the U.S. Supreme Court prohibited virtually all substantive review of search-and-seizure claims in federal habeas proceedings. A wave of critical commentary followed, arguing that there was no legitimate reason to distinguish the Fourth Amendment from other constitutional rights. In recent years, however, this anomaly in habeas corpus practice has gone almost entirely unexamined despite dramatic changes in the law governing both the Fourth Amendment and habeas corpus itself.

This article does two things. First, it reviews the history …

The Legality Of Governmental Responses To Terrorism And The Dichotomous Characterization Of Terrorists As Criminals Or Enemy Combatants, Gregory E. Maggs

ExpressO

This article argues that the United States and other nations ought to create specialized laws to regulate governmental responses to terrorism, rather than debating whether the current laws of war or the current rules of law enforcement should apply. These specialized laws would see terrorism as a problem that sometimes lies between traditional crime and traditional warfare, and would establish rules designed to address governmental responses to it.

Misplaced Angst---Another Look At Consent-Search Jurisprudence, Daniel R. Williams

ExpressO

Conventional scholarship misunderstands the judicial invocation of voluntariness when evaluating a purported consensual search. The key is to nail down more precisely what we mean by the term, consent. Most commentators mistakenly entwine consent and waiver, wrongly treating the act of consenting (to a search, to questioning, etc.) as an instance where the actor is waiving a constitutional right. That conceptual error promotes the view that consent refers to a subjective condition, a psychological state, which, in turn, spurs the expectation that voluntariness refers to a person's inner experience. On this view of consent, the person's inner experience is what …

The Suffocation Of Free Speech Under The Gravity Of Danger Of Terrorism, Tim Davis

ExpressO

On July 14, 2005, Ali al-Timimi was sentenced to life in prison plus 70 years for acts of pure speech. The United States government contended that Timimi, through his lectures and direct personal appeals, induced and/or aided and abetted local Muslim men to leave the country and pursue jihad training with the intent to defend the Taliban against all potential enemies, including the United States. Buried in nearly 200 pages of jury instructions was a single paragraph that unceremoniously described the law of protected speech under Brandenburg v. Ohio. At first blush, Brandenburg seemed to unequivocally lay down the rule …

Torture: Considering A Framework For Limiting Use, Scott J. Goldberg

ExpressO

Abu Graib, Guantanamo, the War on Terror—the debate over the use of torture is still very much alive in the world today. The debate can be divided into two questions: (1) whether there should be an actual absolute ban where torture is never allowed either ethically or legally, and (2) if torture should be allowed under certain circumstances what form of regulation is best able to ensure that it is used only in those most limited circumstances. Currently, there is an absolute ban in place, yet world leaders, applying a case-by-case utilitarian approach, in fact permit the use of torture …

Quantifying Reasonable Doubt: A Proposed Solution To An Equal Protection Problem, Harry D. Saunders

ExpressO

In this article we present the case that the Reasonable Doubt standard is in urgent need of repair. Our research reveals that a previously-recognized phenomenon arising from vagueness of the standard is more consequential than thus far realized and creates a serious equal protection problem. We show that the only legally feasible solution to this problem is to quantify the definition of the standard. While others have examined quantified standards, we make a direct case for it and overcome previous objections to it by offering a way to make it practical and workable.

The solution we envision will require new …

Prosecuting Counterfeit License Plates: A Law Clerk's Constitutional Argument, Miguel R. Acosta

ExpressO

The article discusses the status and probable future of the counterfeit license plate statute in Florida, Florida Statute Section 320.26(1)(a). It prohibits the possession of counterfeit license plates. However, it contains no explicit mens rea requirement. As a result, this law has been challenged repeatedly of late because it is punishable up to five years in prison and because it could potentially be used to punish innocent conduct.

Separation Of Powers And The Criminal Law, Rachel E. Barkow

ExpressO

Scholars have written volumes about the separation of powers, but they have focused on the administrative state and have wholly ignored the criminal state. Judges, too, have failed to distinguish criminal from administrative matters. So, the conventional wisdom has been that whatever theory works for the administrative state should work for anything else, including crime. And because most scholars and judges have supported a flexible or functional approach to separation of powers in the regulatory sphere, they have failed to see a problem with the functional approach when it comes to criminal matters. Indeed, the Supreme Court has been even …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

True Lies: The Constitutional And Evidentiary Bases For Admitting Prior False Accusation Evidence In Sexual Assault Prosecutions, Jules Epstein

ExpressO

The admission of false accusation evidence in sexual assault prosecutions has been ruled on inconsistently by courts nationally. This article identifies the constitutional bases for admitting false accusation evidence as both impeachment and substantive (non-character) proof, and re-focuses Confrontation Clause analysis post-Crawford on the scope of the cross-examination right; offers a definition for what constitutes a false accusation and the level of proof requisite to its admission; and addresses social and policy concerns attendant to its presentation.

When The Federal Death Penalty Is "Cruel And Unusual", Michael J.Z. Mannheimer

ExpressO

Recent changes to the way the U.S. Department of Justice decides whether to pursue capital charges have made it more likely that the federal death penalty will be sought in cases in which the criminal conduct occurred within States that do not authorize capital punishment for any crime. As a result, since 2002, five people have been sentenced to death in federal court for conduct that occurred in States that do not authorize the death penalty. This state of affairs is in serious tension with the Eighth Amendment’s proscription against “cruel and unusual punishments.” A complete understanding of the Bill …

The Reasonableness Of Probable Cause, Craig S. Lerner

George Mason University School of Law Working Papers Series

Probable cause is generally cast in judicial opinions and the scholarly literature as a fixed probability of criminal activity. In the weeks before the September 11 attacks, FBI headquarters, applying such an unbending standard, rejected a warrant application to search Zacarias Moussaoui’s laptop computer. This article, which begins with an analysis of the Moussaoui episode, argues that the probable cause standard should be calibrated to the gravity of the investigated offense and the intrusiveness of a proposed search. Tracing the evolution of probable cause from the common law through its American development, the article argues that the Supreme Court’s current …

Deterring Roper’S Juveniles: Why Immature Criminal Youth Require The Death Penalty More Than Adults – A Law & Economics Approach, Moin A. Yahya

ExpressO

In Roper v. Simmons, the United States Supreme Court declared the death penalty for juveniles unconstitutional. It relied on three reasons, one of which concerns this article, namely the theory that juveniles are less culpable and deterrable than adults. The Court relied on the American Medical Association’s amicus brief which purported to show scientifically that juveniles had less developed brains than adults. The Court characterized juveniles as being risk-lovers who highly preferred the present over the future, who loved gains no matter how risky but did not care for losses, and who could not engage in proper cost-benefit analysis, because …

Home As A Legal Concept, Benjamin Barros

ExpressO

This article, which is the first comprehensive discussion of the American legal concept of home, makes two major contributions. First, the article systematically examines how homes are treated more favorably than other types of property in a wide range of legal contexts, including criminal law and procedure, torts, privacy, landlord-tenant, debtor-creditor, family law, and income taxation. Second, the article considers the normative issue of whether this favorable treatment is justified. The article draws from material on the psychological concept of home and the cultural history of home throughout this analysis, providing insight into the interests at stake in various legal …

Pursuing Justice For The Mentally Disabled, Grant H. Morris

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

This article considers whether lawyers act as zealous advocates when they represent mentally disordered, involuntarily committed patients who wish to assert their right to refuse treatment with psychotropic medication. After discussing a study that clearly demonstrates that lawyers do not do so, the article explores the reasons for this inappropriate behavior. Michael Perlin characterizes the problem as “sanism,” which he describes as an irrational prejudice against mentally disabled persons of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry. The article critiques Perlin’s characterization …

Dickerson V. United States: The Case That Disappointed Miranda's Critics--And Then Its Supporters, Yale Kamisar

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

It is difficult, if not impossible, to discuss Dickerson v. United States intelligently without discussing Miranda, whose constitutional status Dickerson reaffirmed (or, one might say, resuscitated). It is also difficult, if not impossible, to discuss the Dickerson case intelligently without discussing cases the Court has handed down in the five years since Dickerson was decided. The hard truth is that in those five years the reaffirmation of Miranda’s constitutional status has become less and less meaningful.

In this paper I want to focus on the Court’s characterization of statements elicited in violation of the Miranda warnings as not actually “coerced” …

The Crawford Issue- The Supreme Court Sharpens The Teeth Of The Confrontation Clause, Nathan Reed Haines

ExpressO

No abstract provided.

Foreword: Beyond Blakely And Booker: Pondering Modern Sentencing Process, Douglas A. Berman

The Ohio State University Moritz College of Law Working Paper Series

The Supreme Court’s landmark decision in Blakely v. Washington and its federal follow-up United States v. Booker are formally about the meaning and reach of the Sixth Amendment’s right to a jury trial. But these decisions implicate and reflect, both expressly and implicitly, a much broader array of constitutional provisions and principles, in particular, the Due Process Clause of the Fifth and Fourteenth Amendments and the notice provision of the Sixth Amendment. And the future structure and operation of modern sentencing systems may greatly depend on how courts and others approach the due process provisions and principles which lurk in …

Cleaning Up The Eighth Amendment Mess, Tom Stacy

ExpressO

This article criticizes the Court’s interpretation of the Eighth Amendment’s Cruel and Unusual Punishment Clause and proposes its own understanding. The Court’s jurisprudence is plagued by deep inconsistencies concerning the text, the Court’s own role, and a constitutional requirement of proportionate punishment.

In search of ways to redress these fundamental shortcomings, the article explores three alternative interpretations: 1) A textualist approach; 2) Justice Scalia’s understanding that the Clause forbids only punishments unacceptable for all offenses; and 3) a majoritarian approach that would consistently define cruel and unusual punishment in terms of legislative judgments and penal custom. As evidenced by the …

Book Review: Forensic Linguistics, Dru Stevenson

ExpressO

Review of John Gibbons' text "Forensic Linguistics"

Playing Hide And Seek: How To Protect Virtual Pornographers And Actual Children On The Internet, Audrey Rogers

Elisabeth Haub School of Law Faculty Publications

This Article considers the Supreme Court's suggestion and recommends a mechanism to regulate the virtual pornography market in a manner that balances the rights of virtual pornographers with the prosecution of actual child pornographers. Part II traces the events leading up to the Free Speech decision, commencing with the enactment of the Child Pornography Prevention Act of 1996 (CPPA). Part III discusses the Free Speech opinion and the post-Free Speech cases. Part IV examines the PROTECT Act--the legislative response to the Supreme Court's decision. Part V concludes that regulation of the virtual pornography industry is the most effective method of …

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 …

Anthrax Hoaxes, Ira Robbins

Scholarly Articles in Law Reviews & Journals

INTRODUCTION: "[Y]ou are a disgusting piece of dirt."' Judge Steven Shutter, a county judge in South Florida, used these words to describe a twenty- four-year-old woman whom he labeled a terrorist and who was condemned by the media. Aside from name-calling, Judge Shutter raised the woman's bail from $3,500 to $25,000 when he learned the nature of the offense, 'just in case" the woman might be able to afford the lower bond. Given the strength of Judge Shutter's animosity toward her, one might assume that Yasmin Kassima Sealey- Doe had provided assistance to the terrorists who attacked the World Trade …