Criminal Procedure Commons^™

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 …

Conversations On The Warren Court's Impact On Criminal Justice: In Re Gault At 50, Cara H. Drinan

Scholarly Articles

This Article examines the Supreme Court’s landmark In re Gault decision of 1967, in which the Supreme Court ushered in the “due process era” of juvenile justice in America by determining that juveniles were entitled to the right to counsel and other procedural safeguards during delinquency proceedings. But this Article continues with a critical focus on the impact of the decision today, examining a dichotomy between what was declared a “revolution in children’s rights,” and how youth in the criminal justice system still have not seen the extent of constitutional protections declared necessary by Gault. Arguing that Gault …

Balancing Sorna And The Sixth Amendment: The Case For A "Restricted Circumstance-Specific Approach", John F. Howard

Marquette Law Review

The Sex Offender Registration and Notification Act (SORNA) is in place to protect the public, children especially, from sex offenders. Under SORNA, anyone and everyone convicted of what the law defines as a “sex offense” is required to register as a “sex offender,” providing accurate and up-to-date information on where they live, work, and go to school. Failure to do so constitutes a federal crime punishable by up to ten years imprisonment. But how do federal courts determine whether a particular state-level criminal offense constitutes a “sex offense” under SORNA? Oftentimes when doing comparisons between state and federal law for …

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.

Does The Woman Suffrage Amendment Protect The Voting Rights Of Men?, Steve Kolbert

Seattle University Law Review

This Article—part of the Seattle University Law Review’s symposium on the centennial of the ratification of the Woman Suffrage Amendment—examines that open possibility. Concluding that the Nineteenth Amendment does protect men’s voting rights, this Article explores why and how that protection empowers Congress to address felon disenfranchisement and military voting. This Article also examines the advantages of using Nineteenth Amendment enforcement legislation compared to legislation enacted under other constitutional provisions.

Part I discusses the unique barriers to voting faced by voters with criminal convictions (Section I.A) and voters in the armed forces (Section I.B). This Part also explains how existing …

Double Jeopardy’S Dual Sovereignty: A Tragic (And Implausible) Lack Of Humility, Stephen E. Henderson, Dean Strang

Faculty Articles

The core proposition of the Fifth Amendment’s Double Jeopardy Clause is as intuitive as it is straightforward. After all, if a state could prosecute someone despite her previous conviction or acquittal, then the scope of punishment would be unlimited and its threat unending—the sort of proposition only a tyrant could love. Yet, in Gamble v. United States, the Supreme Court once again blessed a dual sovereignty exception that permits just such duplicative prosecutions. We hardly are the first to question this rule, but we submit the Court’s most recent primary mistakes were two. First, the Court began from a …

Protecting Online Privacy In The Digital Age: Carpenter V. United States And The Fourth Amendment’S Third-Party Doctrine, Cristina Del Rosso, Carol M. Bast

Catholic University Journal of Law and Technology

The goal of this paper is to examine the future of the third-party doctrine with the proliferation of technology and the online data we are surrounded with daily, specifically after the Supreme Court’s decision in Carpenter v. United States. It is imperative that individuals do not forfeit their Constitutional guarantees for the benefit of living in a technologically advanced society. This requires an understanding of the modern-day functional equivalents of “papers” and “effects.”

Looking to the future, this paper contemplates solutions on how to move forward in this technology era by scrutinizing the relevancy of the third-party doctrine due …

Urge To Reform Life Without Parole So Nonviolent Addict Offenders Never Serve Lifetime Behind Bars, Johanna Poremba

Touro Law Review

No abstract provided.

In General Public Use: An Unnecessary Test In Fourth Amendment Searches Using Advanced Sensing Technology, Mike Petridis

Touro Law Review

No abstract provided.

Confession Obsession: How To Protect Minors In Interrogations, Cindy Chau

Journal of Race, Gender, and Ethnicity

No abstract provided.

Excessive Force: A Feasible Proximate Cause Approach, Latasha M. James

University of Richmond Law Review

Through an analysis of the statutory and case law surrounding the use of excessive force, this Comment will review how differentiating applications of the law have led to varying and sometimes unjust results. Jurisdictions differ regarding what pre-shooting conduct can be considered, what the “objective reasonableness” standard encompasses, and how tort law should impact this analysis. Therefore, this Comment works to provide a framework for the consistent application of the objective reasonableness standard. Part I reviews the proscribed levels of force, noting when the use of force becomes excessive, and discusses the tort concept of proximate cause and how the …

Washington’S Young Offenders: O’Dell Demands A Change To Sentencing Guidelines, Erika Vranizan

Seattle University Law Review

This Note argues that the O’Dell decision was a watershed moment for criminal justice reform. It argues that the reasoning in O’Dell should be seized upon by the legislature to take action to remediate instances in which defendants are legal adults but do not possess the cognitive characteristics of an adult sufficient to justify adult punishment. Given both the scientific impossibility of identifying a precise age at which characteristics of youthfulness end and adulthood begins and the Court’s repeated recognition that these very factors impact culpability, the current approach to sentencing young offenders aged eighteen to twenty-five as adults simply …

The Defender General, Daniel Epps, William Ortman

Scholarship@WashULaw

The United States needs a Defender General—a public official charged with representing the collective interests of criminal defendants before the Supreme Court of the United States. The Supreme Court is effectively our nation’s chief regulator of criminal justice. But in the battle to influence the Court’s rulemaking, government interests have substantial structural advantages. As compared to counsel for defendants, government lawyers—and particularly those from the U.S. Solicitor General’s office—tend to be more experienced advocates who have more credibility with the Court. Most importantly, government lawyers can act strategically to play for bigger long-term victories, while defense lawyers must zealously advocate …

First Amendment Lochnerism & The Origins Of The Incorporation Doctrine, James Y. Stern

Faculty Publications

The 20th century emergence of the incorporation doctrine is regarded as a critical development in constitutional law, but while issues related to the doctrine's justification have been studied and debated for more than fifty years, the causes and mechanics of its advent have received relatively little academic attention. This Essay, part of a symposium on Judge Jeffrey Sutton's recent book about state constitutional law, examines the doctrinal origins of incorporation, in an effort to help uncover why the incorporation doctrine emerged when it did and the way it did. It concludes that, for these purposes, incorporation is best understood as …

The Failure Of The Criminal Procedure Revolution, William T. Pizzi

Publications

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

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.

Boynton V. Virginia And The Anxieties Of The Modern African-American Customer, Amber Baylor

Faculty Scholarship

In 1958, Bruce Boynton was arrested for ordering food in a Whites-Only diner and charged with criminal trespass. Sixty years later, African Americans continue to face arrest and threat of arrest in commercial establishments based on discriminatory trespass claims. When store owners or employees decide to exclude would-be patrons from their establishment for discriminatory reasons, both overt and implicit, they rely on the police to enforce this form of discrimination. This article considers the legacy of Boynton v. Virginia, particularly the resonance of Boynton’s unaddressed claim, that the state enforcement of discriminatory trespass allegations is an Equal Protection …

Select Criminal Law And Procedure Cases From The U.S. Supreme Court's 2018-2019 Term, Eve Brensike Primus, Kristin Froehle

Articles

Although the 2018-19 Term at the Supreme Court did not include any blockbuster rulings like Carpenter v. United States, the Court issued a number of significant criminal law and procedure rulings. It addressed warrantless blood-alcohol testing, the dual-sovereignty doctrine, the right to trial by jury, ineffective assistance of trial counsel, questions of incorporation, prisoners' competence to be executed, permissible methods of execution, and some important statutory interpretation questions. Looking back on the Term, Justice Gorsuch clearly solidified his position as the libertarian "swing" vote in criminal procedure cases. He joined the liberals to uphold a defendant's right to trial …

Katz In The Cradle: The Second Justice Harlan And Reasonable Expectations Of Privacy In Electronic Transactional Information, Zachary Silver

Cardozo Law Review

No abstract provided.

Criminal Law And Procedure, Rachel L. Yates, John I. Jones Iv, Brittany Dunn-Pirio

University of Richmond Law Review

This Article surveys recent developments in criminal procedure and law in Virginia. Because of space limitations, the authors have limited their discussion to the most significant appellate decisions and legislation.

A Warrant Requirement Resurgence? The Fourth Amendment In The Roberts Court, Benjamin J. Priester

St. John's Law Review

(Excerpt)

Over many years, the United States Supreme Court has developed an extensive body of precedent interpreting and enforcing the provisions of the Fourth Amendment to the United States Constitution, which prohibits unreasonable searches and seizures by law enforcement agents conducting criminal investigations. Commonly called the “warrant requirement,” one key component of this case law operates to deem some police investigatory techniques to be unconstitutional unless they are conducted pursuant to a search warrant issued in advance by a judge. The terms of the doctrine and its exceptions also authorize other investigatory actions as constitutionally permissible without a search warrant. …

Texas, The Death Penalty, And Intellectual Disability, Megan Green

St. Mary's Law Journal

Abstract forthcoming

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Striking The Balance: Search Warrants And Encryption Protected Smartphones, Nicholas A. Oliva

Journal of Civil Rights and Economic Development

(Excerpt)

This note’s analysis of searches of encrypted cell phone will be broken down into in three parts. Part I of this note provides context for the balance between individual privacy and law enforcement by reviewing general Fourth Amendment principles and then Supreme Court rulings that apply these principles to cell phones. Part II then details the advancements in cell phone technology, specifically encryption. These new technologies render the data on cell phones inaccessible and lead law enforcement to go beyond search warrants and seek special orders pursuant to the All Writs Act. Part II provides an overview of the …

Peña-Rodriguez V. Colorado: Carving Out A Racial-Bias Exception To The No-Impeachment Rule, John Austin Morales

St. Mary's Law Journal

The Sixth Amendment safeguards an accused in criminal proceedings and affords them “the right to a speedy and public trial, by an impartial jury.” Consistent with this right, the no-impeachment rule prohibits a juror from testifying after a verdict has been handed down about the jurors’ deliberations. While there are limited exceptions to the no-impeachment rule, juror expressed racial bias is not one of them. When presented with the dilemma of a juror using racial bias in deliberations, courts must weigh two competing doctrines that serve as the foundation to our judicial system: (1) affording a defendant his or her …

A Rhetorical Analysis Of Opening Statements In Trial: Reconsidering The Classical Canon Of Invention, Andrew Chandler

Undergraduate Theses

This analysis of 21 opening statements probes at current persuasive practices employed by trial attorneys through the lens of mainstream legal advice and an expanded definition of rhetorical invention – one which includes both discovery and creation. An evaluation of such practice reveals the utility, and furthermore the duty of the advocate, to draw upon an expanded realm of available arguments.

Sex Offenders, Custody And Habeas, Wendy R. Calaway

St. John's Law Review

(Excerpt)

This Article focuses on habeas petitioners under a conviction from state court seeking federal habeas review. First, Part I will discuss the historical context of the writ of habeas corpus and the development of its purpose and scope. Part I also examines the current status of habeas corpus law, recent legislative efforts to limit its reach, and, specifically, the idea of custody as a prerequisite to habeas relief. Part II explores the evolution of the custody requirement both at the Supreme Court and in lower federal courts. In particular, this section looks at how the meaning of custody has …

Panel 4: Criminal Procedure And Affirmative Action

Georgia State University Law Review

Moderator: Lauren Sudeall

Panelists: Dan Epps, Gail Heriot, and Corinna Lain

Between Brady Discretion And Brady Misconduct, Bennett L. Gershman

Dickinson Law Review (2017-Present)

The Supreme Court’s decision in Brady v. Maryland presented prosecutors with new professional challenges. In Brady, the Supreme Court held that the prosecution must provide the defense with any evidence in its possession that could be exculpatory. If the prosecution fails to timely turn over evidence that materially undermines the defendant’s guilt, a reviewing court must grant the defendant a new trial. While determining whether evidence materially undermines a defendant’s guilt may seem like a simple assessment, the real-life application of such a determination can be complicated. The prosecution’s disclosure determination can be complicated under the Brady paradigm because …