Criminal Procedure Commons^™

Petition For Writ Of Certiorari, Morrow V. Ford, Leslie C. Griffin, Marci A. Hamilton

Supreme Court Briefs

No abstract provided.

Privacy Vs. Protection: Why Tracking Mobile-Device Location Data Without A Warrant Requires A Fourth Amendment Exception, Andrew Stover

Catholic University Journal of Law and Technology

No abstract provided.

Unlocking The Fifth Amendment: Passwords And Encrypted Devices, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

Each year, law enforcement seizes thousands of electronic devices — smartphones, laptops, and notebooks — that it cannot open without the suspect’s password. Without this password, the information on the device sits completely scrambled behind a wall of encryption. Sometimes agents will be able to obtain the information by hacking, discovering copies of data on the cloud, or obtaining the password voluntarily from the suspects themselves. But when they cannot, may the government compel suspects to disclose or enter their password?

This Article considers the Fifth Amendment protection against compelled disclosures of passwords — a question that has split and …

On Litigating Constitutional Challenges To The Federal Supermax: Improving Conditions And Shining A Light, Laura L. Rovner

Sturm College of Law: Faculty Scholarship

Prisons and jails are the most invisible part of the American criminal justice system. In this hidden world of punishment, no prison is more shrouded in secrecy than the federal Bureau of Prisons’ only “supermax” prison — the U.S. Penitentiary-Administrative Maximum known as ADX. Located in a remote area of Colorado, ADX has been described by one journalist as “a black site on American soil.” The men at ADX are held in solitary confinement, locked in cells the size of a parking space for twenty-three hours a day, with little or no contact with other people. Some of them have …

Slave Narratives And The Sentencing Court, Lindsey Webb

Sturm College of Law: Faculty Scholarship

The United States incarcerates a greater percentage of its population than any other country in the world. Courts are substantially more likely to sentence African American and Latino people to prison than white people in similar circumstances, and African Americans in particular represent a grossly disproportionate percentage of the incarcerated population. Violence and other ills endemic to jails and prisons are thus disproportionately experienced by people of color.

This Article argues that criminal defense lawyers should explicitly address conditions of confinement at sentencing. In doing so, a criminal defense lawyer has the opportunity to serve as both advocate and abolitionist. …

Legal Consciousness As Race Consciousness: Expansion Of The Fourth Amendment Seizure Analysis Through Objective Knowledge Of Police Impunity, Lindsey Webb

Sturm College of Law: Faculty Scholarship

Encounters between police officers and members of the community are deeply influenced by race. Yet when courts assess whether police officers have complied with the Fourth Amendment, they explicitly exclude consideration of the ways in which the police-civilian interaction was influenced by racial bias, assumptions, and fear. In determining whether law enforcement officers seized a civilian, for example, courts look to the objective circumstances of the event, such as the number of officers involved, whether police weapons were drawn, and the tone of voice the officers used. They then assess whether, under such circumstances, a reasonable person would feel free …

Isonomy, Austerity, And The Right To Choose Counsel, Janet Moore

Faculty Articles and Other Publications

People who can afford to hire criminal defense attorneys have a Sixth Amendment right to choose a lawyer who is qualified, available, and free from conflicts of interest. The same right to choose counsel is routinely denied to people who need government-paid defense lawyers because they cannot afford to hire attorneys. In prior work, I invoked democratic theory to argue that this de jure discrimination blocks constitutional law formation by poor people and should be eliminated. This Article extends the analysis by explaining how a different theoretical approach—one grounded in libertarian commitments to private enterprise and austerity in public funding—shaped …

Police Ignorance And Mistake Of Law Under The Fourth Amendment, Eang L. Ngov

Faculty Scholarship

No abstract provided.

Capital-Sentencing Law And The New Conservative Court, Scott W. Howe

Cardozo Law Review de•novo

With the Supreme Court now dominated by a solidly conservative majority, recent, well-grounded hopes for prompt judicial abolition of the death penalty have vanished. Furthermore, existing Eighth Amendment doctrines that limit the death penalty could be in jeopardy. Historically, many advocates for abolition have criticized these doctrines. They claim that the Eighth Amendment prohibition on Cruel and Unusual Punishments requires “consistency” in capital selection and that current capital-sentencing doctrines do not satisfy—and sometimes conflict with— this requirement. However, these advocates failed to anticipate the need to defend these doctrines should judicial abolition become an impossibility and the rolling-back of current …

Game Of Drones: Rolling The Dice With Unmanned Aerial Vehicles And Privacy, Rebecca L. Scharf

Scholarly Works

This Article offers a practical three-part test for courts and law enforcement to utilize when faced with drone and privacy issues. Specifically addressing the question: how should courts analyze the Fourth Amendment’s protection against ‘unreasonable searches’ in the context of drones?

The Supreme Court’s Fourth Amendment jurisprudence produced an intricate framework to address issues arising out of the intersection of technology and privacy interests. In prominent decisions, including United States v. Katz, California v. Ciraolo, Kyllo v. United States, and most notably, United States v. Jones, the Court focused on whether the use of a single …

Dorothy Moser Medlin Papers - Accession 1049, Dorothy Moser Medlin

Manuscript Collection

(The Dorothy Moser Medlin Papers are currently in processing.)

This collection contains most of the records of Dorothy Medlin’s work and correspondence and also includes reference materials, notes, microfilm, photographic negatives related both to her professional and personal life. Additions include a FLES Handbook, co-authored by Dorothy Medlin and a decorative mirror belonging to Dorothy Medlin.

Major series in this collection include: some original 18th century writings and ephemera and primary source material of André Morellet, extensive collection of secondary material on André Morellet's writings and translations, Winthrop related files, literary manuscripts and notes by Dorothy Medlin (1966-2011), copies …

Rhode Island's Prescription Drug Database: Warrantless Searches By Law Enforcement Pass Constitutional Muster, Stephen D. Lapatin

Roger Williams University Law Review

No abstract provided.

Extradition And Trial Delays: Recent Developments (And Lessons?) From Canada, Laura Ellyson

Articles, Book Chapters, & Popular Press

Extradition – the formal rendition of criminal fugitives between states – is well-known to be a time-consuming process that often has impacts, minor or major, on the ability of states to complete prosecution in a timely manner. Thus, the extradition process can sometimes be at odds with the right to trial within a reasonable time, which is part of the overall package of fair trial rights enshrined in international human rights law. In Canada, this right is implemented by paragraph 11(b) of the Canadian Charter of Rights and Freedoms. In recent years Canadian courts have developed a series of principles …

Convictions Of Innocent People With Intellectual Disability, Sheri Johnson, John H. Blume, Amelia Courtney Hritz

Cornell Law Faculty Publications

In Atkins v. Virginia, the Supreme Court held that executing individuals with intellectual disability violates the Cruel and Unusual Punishment Clause of the Eighth Amendment. In addition to concerns over culpability and deterrence, the Court’s judgment in Atkins was informed by the heightened “risk of wrongful execution” faced by persons with intellectual disability. This essay explores that question both anecdotally and quantitatively, hoping to illuminate the causes of wrongful conviction of persons with intellectual disability. We provide examples from our experiences in the Cornell Death Penalty Clinic and cases brought to our attention by defense attorneys. We also present data …

It’S All Your Fault!: Examining The Defendant’S Use Of Ineffective Assistance Of Counsel As A Means Of Getting A “Second Bite At The Apple.”, Prentice L. White

Dickinson Law Review (2017-Present)

The United States Constitution provides individuals convicted of a crime with “a second bite at the apple.” The Sixth Amendment provides an avenue to appeal one’s conviction based on the claim of “ineffective assistance of counsel.” What were the Framers’ true intentions in using the phrase “effective assistance of counsel”? How does the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 affect habeas corpus appeals? This article answers these questions through the eyes of Thomas—a fictional character who is appealing his murder conviction.

This article first looks at the history surrounding effective assistance of counsel and discusses the difficulties …

State V. Hill, Nazariy Gavrysh

NYLS Law Review

No abstract provided.

Police Ignorance And Mistake Of Law Under The Fourth Amendment, Eang Ngov

Faculty Articles

No abstract provided.

Fourth Amendment Anxiety, Kiel Brennan-Marquez, Stephen E. Henderson

Faculty Articles

In Birchfield v. North Dakota (2016), the Supreme Court broke new Fourth Amendment ground by establishing that law enforcement’s collection of information can be cause for “anxiety,” meriting constitutional protection, even if subsequent uses of the information are tightly restricted. This change is significant. While the Court has long recognized the reality that police cannot always be trusted to follow constitutional rules, Birchfield changes how that concern is implemented in Fourth Amendment law, and importantly, in a manner that acknowledges the new realities of data-driven policing. Beyond offering a careful reading of Birchfield, this Article has two goals. First, …

The "Primary Purpose" Of Children's Advocacy Centers: How Ohio V. Clark Revolutionized Children's Hearsay, Andrew Lentz

Roger Williams University Law Review

No abstract provided.

Keeping The Rule Of Law Simple: Comments On Gowder, The Rule Of Law In The Real World, Chad Flanders

All Faculty Scholarship

Let me start by just stating my experience of reading The Rule of Law in the Real World¹ because it will help make sense of the structure of my remarks. The first third of the book: I am utterly convinced, even blown away, by the elegance and persuasiveness of the argument and the analysis; even when there is merely a summary, I am helped and bettered by it. The second third of the book: I am inclined, based on the enormous goodwill generated by the first third of the book to accept-almost uncritically-the historical discussion and the conclusions drawn …

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

Law Student Publications

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 …

Equal Protection Under The Carceral State, Aya Gruber

Publications

McCleskey v. Kemp, the case that upheld the death penalty despite undeniable evidence of its racially disparate impact, is indelibly marked by Justice William Brennan’s phrase, “a fear of too much justice.” The popular interpretation of this phrase is that the Supreme Court harbored what I call a “disparity-claim fear,” dreading a future docket of racial discrimination claims and erecting an impossibly high bar for proving an equal protection violation. A related interpretation is that the majority had a “color-consciousness fear” of remedying discrimination through race-remedial policies. In contrast to these conventional views, I argue that the primary anxiety …

Foreword: Criminal Procedure In Winter, Daniel Epps

Loyola of Los Angeles Law Review

No abstract provided.

United States V. Ammons, Rebecca Ruffer

NYLS Law Review

No abstract provided.

You Be The Judge: The Wholesale Implementation Of Bail Schedules By The Judiciary As An Abdication Of Adjudicatory Responsibility Creating A Disparate Impact For African-Americans And Hispanics Accused Of A Criminal Offense, Taurus Myhand

Scholarly Works

The presumption of innocence is not well illustrated in the age-old and widespread use of monetary bail systems by most jurisdictions throughout the United States. In fact, whether a person is detained in jails prior to the final disposition of the case, is not likely to be dependent on the strength of the government’s case toward proving the accusee’s guilt. Rather, pre-trial detention is much more dependent on whether the accusee has the means to pay an amount of money determined by a court.

As the calls for bail reform resurges, many legal professionals are looking for alternatives to monetary …

Get Off My Porch: United States V. Carloss And The Escalating Dangers Of “Knock And Talks”, Skyler K. Sikes

Oklahoma Law Review

No abstract provided.

The Death Penalty As Incapacitation, Marah Stith Mcleod

Journal Articles

Courts and commentators give scant attention to the incapacitation rationale for capital punishment, focusing instead on retribution and deterrence. The idea that execution may be justified to prevent further violence by dangerous prisoners is often ignored in death penalty commentary. The view on the ground could not be more different. Hundreds of executions have been premised on the need to protect society from dangerous offenders. Two states require a finding of future dangerousness for any death sentence, and over a dozen others treat it as an aggravating factor that turns murder into a capital crime.

How can courts and commentators …

Lee V. United States: The Unusual Circumstances Test For Strickland Relief, Zachary Segal

Touro Law Review

No abstract provided.

Devil Take The Hindmost: Reform Considerations For States With A Constitutional Right To Bail, Jordan Gross

Faculty Law Review Articles

This Article submits that any meaningful discussion of bail reform at the state level must be jurisdiction-specific, and it must account for the practical, historical, and philosophical aspects of the state constitutional right to bailability. Part II of this Article is an overview of the origins and history of English and American bail law. Part III describes the role and regulation of commercial bail bonding in the United States. Part IV traces the history and current state of bail reform in the United States. Part V considers legal and practical barriers to reform unique to right-to-bail states, particularly jurisdictions without …

Carpenter V. United States And The Fourth Amendment: The Best Way Forward, Stephen E. Henderson

Faculty Articles

We finally have a federal ‘test case.’ In Carpenter v. United States, the Supreme Court is poised to set the direction of the Fourth Amendment in the digital age. The case squarely presents how the twentieth-century third party doctrine will fare in contemporary times, and the stakes could not be higher. This Article reviews the Carpenter case and how it fits within the greater discussion of the Fourth Amendment third party doctrine and location surveillance, and I express a hope that the Court will be both a bit ambitious and a good measure cautious. As for ambition, the Court …