Criminal Procedure Commons^™

"It's Open Season At The Border": Why The Bivens Remedy Should Extend To U.S. Border Patrol Agents In Cross-Border Shootings, Samantha Garza

Loyola of Los Angeles Law Review

No abstract provided.

Cashing In On Convicts: Privatization, Punishment, And The People, Laura I. Appleman

Utah Law Review

For-profit prisons, jails, and alternative corrections present a disturbing commodification of the criminal justice system. Though part of a modern trend, privatized corrections has well-established roots traceable to slavery, Jim Crow, and current racially-based inequities. This monetizing of the physical incarceration and regulation of human bodies has had deleterious effects on offenders, communities, and the proper functioning of punishment in our society. Criminal justice privatization severs an essential link between the people and criminal punishment. When we remove the imposition of punishment from the people and delegate it to private actors, we sacrifice the core criminal justice values of expressive, …

Equal Protection And White Supremacy, Paul Butler

Northwestern University Law Review

The project of using social science to help win equal protection claims is doomed to fail if its premise is that the Supreme Court post-McCleskey just needs more or better evidence of racial discrimination. Everyone—including the Justices of the Court—already knows that racial discrimination is endemic in the criminal justice system. Social science does help us to understand the role of white supremacy in U.S. police and punishment practices. Social science also can help us understand how to move people to resist, and can inform our imagination of the transformation needed for equal justice under the law.

Bounded By The Constitution: Resolving The Private Search Doctrine Circuit Split, Mark Kifarkis

Concordia Law Review

This Article analyzes the private search doctrine exception to the Fourth Amendment and the exception's application to smart phones and computers. The private search doctrine allows governmental authorities to replicate a private individual's search without obtaining a warrant. This Article proposes a standard for court's to use to resolve the circuit split on how to apply the exception to today's technology. Presently, there are two standards used by courts. The Article names one standard as the "boundless search approach" that is used by the Fifth and Seventh Circuits. The Article names the other standard as "bounded search approach" that is …

New York Breaks Gideon’S Promise, Rebecca King

Pace Law Review

In 1963, the Supreme Court of the United States held that criminal defendants have the constitutional right to counsel, regardless of whether they can afford one, in the famous case of Gideon v. Wainwright. However, statistics, as well as public defense attorneys, reveal that the Supreme Court’s decision has yet to be fulfilled. Part of the problem is due to the system of mass incarceration in the United States. In 2013, the Brennan Center for Justice reported that the prison population reached 2.3 million individuals, compared to the 217,000 inmates imprisoned when Gideon was decided. The American Bar Association estimates …

The Federal Criminal Forfeiture Statute: Reining In The Government’S Previously Unbridled Ability To Seize Pretrial Assets, Kristyn Fleming Francese

Pace Law Review

American organized crime movies are synonymous with a climatic raid and seizure of illegal assets – typically drugs and guns. But what is really encompassed within the Government’s grasp; what are the “illegal assets”? The truth is that the Government has a wide reach and the criminal seizures don’t end when the screen goes black and the credits roll. The Federal Criminal Forfeiture Statute, as applied to RICO and CCE cases, typically entails the forfeiture of any asset connected to the underlying crimes. Given that criminal forfeiture penalties have ethical and constitutional considerations, it is not surprising to learn that …

Sniffing Out The Fourth Amendment: United States V. Place-Dog Sniffs-Ten Years Later, Hope Walker Hall

Maine Law Review

In the endless and seemingly futile government war against drugs, protections afforded by the Fourth Amendment of the United States Constitution may have fallen by the wayside as courts struggle to deal with drug offenders. The compelling government interest in controlling the influx of drugs all too often results in a judicial attitude that the ends justify the means. Judges can be reluctant to exclude evidence of drugs found in an unlawful search pursuant to the exclusionary rule, which provides that illegally obtained evidence may not be used at trial. The exclusion of drugs as evidence in drug cases often …

Confronting Silence: The Constitution, Deaf Criminal Defendants, And The Right To Interpretation During Trial, Deirdre M. Smith

Maine Law Review

For most deaf people, interactions with the hearing community in the absence of interpretation or technological assistance consist of communications that are, at most, only partly comprehensible. Criminal proceedings, with the defendant's liberty interest directly at stake, are occasions in which the need for deaf people to have a full understanding of what is said and done around them is most urgent. Ironically, the legal “right to interpretation” has not been clearly defined in either statutory or case law. Although the federal and state constitutions do not provide a separate or lesser set of rights for deaf defendants, their situation …

Dead Canaries In The Coal Mines: The Symbolic Assailant Revisited, Jeannine Bell

Georgia State University Law Review

The well-publicized deaths of several African-Americans—Tamir Rice, Philando Castile, and Alton Sterling among others—at the hands of police stem from tragic interactions predicated upon well-understood practices analyzed by police scholars since the 1950s. The symbolic assailant, a construct created by police scholar Jerome Skolnick in the mid-1960s to identify persons whose behavior and characteristics the police view as threatening, is especially relevant to contemporary policing. This Article explores the societal roots of the creation of a Black symbolic assailant in contemporary American policing.

The construction of African-American men as symbolic assailants is one of the most important factors characterizing police …

A Product Of Childhood: Accounting For Age In The Miranda Analysis, Ariana Rodriguez

Loyola of Los Angeles Law Review

One of the most polarizing areas of constitutional criminal procedure is that relating to police interrogations and confessions. While the Fifth Amendment guarantees a number of protections from self-incrimination and the inherently coercive nature of criminal investigation, these Constitutional promises are more likely to go unfulfilled when the accused is a child. This Article thoroughly examines the current law’s use of the “totality of the circumstances” test in deciding whether a valid Miranda waiver occurred or whether a juvenile has been taken into custody and, more importantly, explores why this current test remains an inadequate solution for protecting children’s Miranda …

Milford Maambo And Others V The People 2016/Cc/R001 [2017], O'Brien Kaaba

SAIPAR Case Review

No abstract provided.

Enforcing Statutory Maximums: How Federal Supervised Release Violates The Sixth Amendment Rights Defined In Apprendi V. New Jersey, Danny Zemel

University of Richmond Law Review

The Sixth Amendment commands that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” Trial by a jury of one’s peers is a fundamental American legal right, existing in the earliest colonies before being codified in both Article III of the Constitution and the Sixth Amendment. The jury trial right derives from “the mass of the people,” ensuring that “no man can be condemned of life, or limb, or property, or reputation, without the concurrence of the …

Non-Contact Excessive Force By Police: Is That Really A Thing?, Michael J. Jacobsma

University of Richmond Law Review

When people hear the words “police” and “excessive force,” they usually associate those words with an unjustified assault and battery, or lethal force made against suspects by law enforcement officers during an arrest or investigation. When such acts occur, the victim of the excessive force has the right to pursue a civil action against the police officer pursuant to 42 U.S.C. § 1983 if committed by state or local police, or a Bivens action if committed by federal agents. But can a police officer be sued for excessive force without making any physical contact with the plaintiff? The answer to …

Prosecutorial Summation: Where Is The Line Between "Personal Opinion" And Proper Argument?, James W. Gunson

Maine Law Review

Prosecutorial forensic misconduct has become front page news in Maine. Since April of 1993, the Maine Supreme Judicial Court, sitting as the Law Court, has reversed convictions in three highly publicized cases based on remarks made by the prosecutor. In State v. Steen, the prosecutor asked the defendant to give his opinion concerning the veracity of other witnesses and suggested in closing argument that the favorable testimony given by the defense's expert witness resulted from the fee he had received. The Law Court vacated the gross sexual assault conviction, finding that the prosecutor's questions and closing argument “clearly suggested” to …

Taking The Fifth: How The Tenth Circuit Determined The Right Against Self-Incrimination Is "More Than A Trial Right" In Vogt V. City Of Hays, Daniel J. De Cecco

Pepperdine Law Review

In Vogt v. City of Hays, the United States Court of Appeals for the Tenth Circuit ruled that the Fifth Amendment right against self-incrimination is more than a trial right and applies to the use of compelled statements in probable cause hearings as well as in criminal trials. While the Self-Incrimination Clause states that the right applies “in a criminal case,” there is a circuit split regarding the definition of a “criminal case.” The Tenth Circuit joined the Second, Seventh, and Ninth Circuits in finding that the right against self-incrimination applies to more than a trial, relying on the common …

State V. Nelson: Determining "Reasonable Suspicion" For Investigatory Stops In Maine, Sandra Denison Shannon

Maine Law Review

In 1994 the Maine Supreme Judicial Court, sitting as the Law Court, held in State v. Nelson that a police officer's observation of motorist Theodore Nelson consuming a single can of beer over a one-hour time period did not, by itself, give rise to a reasonable suspicion that Nelson thereafter illegally operated the vehicle under the influence of alcohol. This Note analyzes the Law Court's decision in Nelson. In its analysis, this Note compares Nelson to several other Maine opinions and recommends that, if the Maine Law Court is to continue to adhere to both objective and subjective standards in …

Department Of Corrections V. Superior Court: Hear No Evil, Aaron T. Morel

Maine Law Review

On December 9, 1991, professional ethical and moral considerations prompted heated litigation in Department of Corrections v. Superior Court. Justice Donald G. Alexander of Maine's Superior Court displayed considerable foresight while sentencing two borderline mentally retarded child sex offenders. Although both defendants had committed repugnant crimes, Justice Alexander anticipated that they would be subjected to impermissible abuse if incarcerated in the Department of Corrections. He believed that preventive measures were necessary to ensure the safety of the defendants being sentenced and to avoid the potential that conditions of their incarceration would amount to cruel and unusual punishment. Justice Alexander subsequently …

A Measure Of Our Justice System: A Look At Maine's Indigent Criminal Defense Delivery System, Ronald W. Schneider Jr.

Maine Law Review

This Comment will examine briefly the history of the right to counsel and the accompanying right to the effective assistance of counsel in this country. At the time the Sixth Amendment was included in the Bill of Rights, the United States rejected the English practice of denying the right to counsel to those accused of felonies while granting the right to those charged with misdemeanors. People in the United States have enjoyed the right to counsel in all criminal cases, felonies and misdemeanors, since 1791. Yet in a very real and dangerous sense, the courts have reversed the course of …

Drunk Driving, Blood, And Breath: The Impact Of Birchfield V. North Dakota, Simon Bord

Cornell Journal of Law and Public Policy

Birchfield v. North Dakota is a landmark decision that will influence criminal procedure jurisprudence for years to come. Birchfield drew a distinction between the level of intrusiveness inherent in a breath test versus a blood test, upholding warrantless searches incident to a DUI arrest involving the former, but not the latter. In addition, the Court ruled that criminal penalties for refusing to consent to a blood draw were unconstitutional, but such penalties were an acceptable punishment for motorists who refused to undergo a breath test. Because Birchfield failed to establish a clear rule regarding the permissible scope of implied consent …

Admissibility Of First Time In-Court Eyewitness Identifications: An Argument For Additional Due Process Protections In New York, Dakota Kann

Cardozo Law Review

No abstract provided.

Dassey V. Dittmann: Brief Amicus Curiae Of Professors Of Criminal Law, Criminal Procedure, And Constitutional Law In Support Of Petitioner, Samuel R. Gross, Yale Kamisar

Appellate Briefs

Amici curiae are academics who focus on criminal procedure and Fifth Amendment and Fourteenth Amendment law. (A list of the amici curiae is attached as Appendix A.) Their principal interest in this case is proper application of clear Supreme Court precedent in assessing the voluntariness of the confession given by the juvenile suspect in this case. Amici file this brief out of concern that some lower courts, including the court below, are straying from this Court's clear mandates in applying the totality-of-the-circumstances test to confessions given by juveniles with intellectual impairments. Amici write to provide a historical overview of this …

Dassey V. Dittmann: Brief Amici Curiae Of Professors Of Criminal Law, Criminal Procedure, And Constitutional Law In Support Of Petitioner, Samuel Gross, Yale Kamisar, Eve Brensike Primus

Appellate Briefs

Amici curiae are academics who focus on criminal procedure and Fifth Amendment and Fourteenth Amendment law. (A list of the amici curiae is attached as Appendix A.) Their principal interest in this case is proper application of clear Supreme Court precedent in assessing the voluntariness of the confession given by the juvenile suspect in this case. Amici file this brief out of concern that some lower courts, including the court below, are straying from this Court's clear mandates in applying the totality- of-the-circumstances test to confessions given by juveniles with intellectual impairments. Amici write to provide a historical overview of …

Being Forced To Code In The Technology Era As A Violation Of The First Amendment Protection Against Compelled Speech, Adrianna Oddo

Catholic University Law Review

Over the past several decades, technological advancements led several courts to hold that computer code is protected as speech under the First Amendment of the Constitution. However, after fourteen people were killed in the 2015 San Bernardino massacre the U.S. Government sought to ignore those findings when it ordered Apple, Inc. to write a computer code to bypass the encryption software on the shooter’s cell phone. To access this particular phone Apple would need to write a code that could potentially compromise its customers’ data and personal information. Apple vehemently opposed the Government’s order and claimed that compelling it to …

Legitimacy, Authority, And The Right To Affordable Bail, Colin Starger, Michael Bullock

William & Mary Bill of Rights Journal

Bail reform is hot. Over the past two years, jurisdictions around the country have moved to limit or end money bail practices that discriminate against the poor. Although cheered on by many, bail reform is vehemently opposed by the powerful bail-bond industry. In courts around the country, lawyers representing this industry have argued that reform is unnecessary, and even unconstitutional. One particularly insidious argument advanced by bail-bond apologists is that a “wall of authority” supports the proposition that “bail is not excessive merely because the defendant is unable to pay it.” In other words, authority rejects the right to affordable …

Whren V. United States: An Abrupt End To The Debate Over Pretextual Stops, Brian J. O'Donnell

Maine Law Review

In Whren v. United States, the United States Supreme Court held that a traffic stop is reasonable under the Fourth Amendment if a police officer has probable cause to believe that a traffic violation has occurred, even if the stop is a pretext for the investigation of a more serious offense. The Court affirmed the convictions of Michael A. Whren and James L. Brown, who had been arrested on federal drug charges after Washington, D.C., police stopped Brown for minor traffic infractions. The Court's unanimous opinion, delivered by Justice Scalia, brought an end to a long-running debate over the proper …

A Call For Consistency: State V. Caouette Is No Longer Viable In Light Of Colorado V. Connelly And State V. Eastman, Donald W. Macomber

Maine Law Review

This Article challenges the Law Court's expansive interpretation in State v. Caouette of the scope of the privilege against self-incrimination embodied in Article I, section 6 of the Maine Constitution in the context of reviewing claims of the involuntariness of a confession. The court's declaration that a reliable confession must be suppressed on state constitutional grounds based solely on a suspect's internal factors, and in the absence of any police overreaching in obtaining the confession, contradicted two centuries of constitutional jurisprudence requiring some form of government action to implicate the protections of the Bill of Rights and the Declaration of …

Commerce Clause Challenges Spawned By United States V. Lopez Are Doing Violence To The Violence Against Women Act (Vawa): A Survey Of Cases And The Ongoing Debate Over How The Vawa Will Fare In The Wake Of Lopez, Lisanne Newell Leasure

Maine Law Review

On September 14, 1994, in response to and in recognition of the epidemic of violence against women in the United States, Congress enacted the Violence Against Women Act (VAWA). The VAWA is a comprehensive statute designed to provide women greater protection from and recourse against violence and to impose accountability on abusers and those who commit crimes of violence based on gender animus. The VAWA, which contains seven parts, creates new federal crimes, strengthens penalties for existing federal sex crimes, and provides $1.6 billion over six years for education, research, treatment of domestic and sex crime victims, and the improvement …

Standing Under State Search And Seizure Provision: Why The Minnesota Supreme Court Should Have Rejected The Federal Standards And Instead Invoked Greater Protection Under Its Own Constitution In State V. Carter, Rebecca C. Garrett

Maine Law Review

In State v. Carter, the Minnesota Supreme Court considered whether a criminal defendant had “standing” to challenge an alleged search under the Fourth Amendment and Article 1, Section 10 of the Minnesota Constitution. The defendant moved to suppress evidence obtained by a police officer who had peered in the window of an apartment where the defendant was participating in a drug-packaging operation with the apartment's leaseholder. A divided court held that the defendant had a legitimate expectation of privacy in the apartment. Therefore, the defendant had standing to challenge the legality of the police officer's observations pursuant to the Fourth …

Identifying And Preventing Improper Prosecutorial Comment In Closing Argument, Robert W. Clifford

Maine Law Review

In recent years, several decisions of the Maine Supreme Judicial Court sitting as the Law Court have addressed the comments of prosecutors in final argument before criminal juries. Three of those decisions in particular have caused concern among prosecutors and have stirred discussion in the Maine legal community. In vacating convictions in State v. Steen, State v. Casella, and State v. Tripp, the Law Court focused on the language used by the prosecutors during closing argument and concluded that those prosecutors impermissibly expressed personal opinion concerning the credibility of the defendants, or witnesses called by the defendants. This Article examines …

Overawed And Overwhelmed: Juvenile Miranda Incomprehension, Sara P. Cressey

Maine Law Review

Each year approximately one million juveniles in the United States are arrested and read the Miranda warnings. Though studies have shown that the majority of those children do not understand the warnings, most of them must decide alone whether to waive their constitutional rights— and nearly all ultimately make that choice without the help of an attorney. The Supreme Court has recognized that children differ from adults in critical ways, and those differences have important implications for juveniles’ ability to meaningfully waive their Miranda rights. To ensure that juveniles’ constitutional rights are protected, the Supreme Court should take up the …