Criminal Procedure Commons^™

Forensic Border Searches After Carpenter Require Probable Cause And A Warrant, Christopher I. Pryby

Michigan Law Review

Under the border search doctrine, courts have upheld the federal government's practice of searching people and their possessions upon entry into or exit from the United States, without any requirement of suspicion, as reasonable under the Fourth Amendment. Since the advent of electronic devices with large storage capacities, courts have grappled with whether this definition of reasonableness continues to apply. So far, courts have consistently characterized “nonforensic” border inspections of electronic devices (for example, paging through photos on a phone) as “routine” searches that, like inspecting luggage brought across international lines, require no suspicion. But there is a circuit split …

Harmless Constitutional Error: How A Minor Doctrine Meant To Improve Judicial Efficiency Is Eroding America's Founding Ideals, Ross C. Reggio

CMC Senior Theses

The United States Constitution had been in existence for almost two hundred years before the Supreme Court decided that some violations of constitutional rights may be too insignificant to warrant remedial action. Known as "harmless error," this statutory doctrine allows a court to affirm a conviction when a mere technicality or minor defect did not affect the defendant's substantial rights. The doctrine aims to promote judicial efficiency and judgment finality. The Court first applied harmless error to constitutional violations by shifting the statutory test away from the error's effect on substantial rights to its impact on the jury's verdict. Over …

Civilly Disobedient: Justifying Juror Misconduct, Grace K. Wilson

CMC Senior Theses

A fair, unbiased jury that follows the courts instructions is a crucial aspect of the American criminal justice system, mandated by both the California and United States Constitution. When jurors violate judicial instructions, it can jeopardize the impartiality of a case. Despite this, little research has been completed on what individual differences are indicative of greater willingness to commit jury misconduct. Misconduct can occur when jurors fail to follow judicial instructions in circumstances that a reasonable person may be tempted to disobey. This study explores potential individual differences that correlate with a greater likelihood of excusing and even committing juror …

Sharkfests And Databases: Crowdsourcing Plea Bargains, Kay L. Levine, Ronald F. Wright, Nancy J. King, Marc L. Miller

Faculty Articles

In this Essay, we dive deeper into this final dimension to discuss the influence of professional networks on plea negotiations. In particular, we examine the effects of crowdsourcing tactics in the negotiation setting. We describe, for example, what happens when lawyers bargain in public, benefitting from an audience that provides information about past practices and deals. And then we speculate about what might happen if that audience were instead a widely shared database that documents plea practices in the jurisdiction. We offer a few preliminary thoughts about the potential influence of such techniques, as we are not in a position …

Judging Risk: The Use Of Risk Assessment In Sentencing, Brandon L. Garrett, John Monahan

Faculty Scholarship

No abstract provided.

The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey Fagan

Faculty Scholarship

In 2000, the Supreme Court held in Illinois v. Wardlow that a suspect’s presence in a “high-crime area” is relevant in determining whether an officer has reasonable suspicion to conduct an investigative stop. Despite the importance of the decision, the Court provided no guidance about what that standard means, and over fifteen years later, we still have no idea how police officers understand and apply it in practice. This Article conducts the first empirical analysis of Wardlow by examining data on over two million investigative stops conducted by the New York Police Department from 2007 to 2012.

Our results suggest …

Reviving Criminal Equity, Cortney Lollar

Law Faculty Scholarly Articles

Recent scholarship has begun to take note of a resurgence of equity in civil cases. Due to a long-accepted premise that equity does not apply in criminal cases, no one has examined whether this quiet revival is occurring in criminal jurisprudence as well. After undertaking such an investigation, this Article uncovers the remarkable discovery that equitable remedies, including injunctions and specific performance, are experiencing a resurgence in both federal and state criminal jurisprudence. Courts have granted equitable relief in a range of scenarios, providing reprieve from unconstitutional bail and probation practices and allowing for an appropriate remedy to ineffective assistance …

Coerced Fate: How Negotiation Models Lead To False Confessions, Kiera Janzen

Journal of Criminal Law and Criminology

Police interrogators across the United States employ tactics that can lead to coerced, often false, confessions. While police departments have shifted away from physically coercive methods of interrogation, psychologically coercive practices that utilize deceit have taken their place. The reliability of confession evidence becomes a significant concern when interrogators elicit confessions using these techniques. Further demonstrating the need for change in this realm, false confessions and wrongful convictions place a financial burden on cities and taxpayers, who foot the bill for settlements and damages resulting from these cases. The current legal framework in the U.S. permits—by failing to explicitly prohibit—these …

A Guiding Hand Or A Slap On The Wrist: Can Drug Courts Be The Solution To Maternal Opioid Use?, Cara O'Connor

Journal of Criminal Law and Criminology

As the opioid epidemic has expanded its reach, the number of pregnant women addicted to opioids has increased exponentially in recent years. The increase in the number of opioid-addicted pregnant women has resulted in a drastic expansion in the number of newborns who experience Neonatal Abstinence Syndrome (NAS). Newborns affected with NAS experience painful withdrawal and cost more to care for due to their increased health needs. In an effort to address the growing number of pregnant women using opioids and babies born with NAS, some states have turned to the criminal justice system. Three states–Tennessee, South Carolina, and Alabama–have …

Artificial Intelligence And Role-Reversible Judgment, Kiel Brennan-Marquez, Stephen Henderson

Journal of Criminal Law and Criminology

Intelligent machines increasingly outperform human experts, raising the question of when (and why) humans should remain ‘in the loop’ of decision-making. One common answer focuses on outcomes: relying on intuition and experience, humans are capable of identifying interpretive errors—sometimes disastrous errors—that elude machines. Though plausible today, this argument will wear thin as technology evolves.

In this Article, we seek out sturdier ground: a defense of human judgment that focuses on the normative integrity of decision-making. Specifically, we propose an account of democratic equality as ‘role-reversibility.’ In a democracy, those tasked with making decisions should be susceptible, reciprocally, to the impact …

Third-Class Citizenship: The Escalating Legal Consequences Of Committing A "Violent" Crime, Michael O'Hear

Journal of Criminal Law and Criminology

For many years, American legislatures have been steadily attaching a wide range of legal consequences to convictions—and sometimes even just charges—for crimes that are classified as “violent.” These consequences affect many key aspects of the criminal process, including pretrial detention, eligibility for pretrial diversion, sentencing, eligibility for parole and other opportunities for release from incarceration, and the length and intensity of supervision in the community. The consequences can also affect a person’s legal status and rights long after the sentence for the underlying offense has been served. A conviction for a violent crime can result in registration requirements, lifetime disqualification …

Managing Digital Discovery In Criminal Cases, Jenia I. Turner

Journal of Criminal Law and Criminology

The burdens and challenges of discovery—especially electronic discovery—are usually associated with civil, not criminal cases. This is beginning to change. Already common in white-collar crime cases, voluminous digital discovery is increasingly a feature of ordinary criminal prosecutions.

This Article examines the explosive growth of digital evidence in criminal cases and the efforts to manage its challenges. It then advances three claims about criminal case discovery in the digital age. First, the volume, complexity, and cost of digital discovery will incentivize the prosecution and the defense to cooperate more closely in cases with significant amounts of electronically stored information (ESI). Second, …

Ziglar V. Abassi And Its Effect On The Constitutional Rights Of Federal Prisoners, Julio Pereyra

Journal of Criminal Law and Criminology

In June 2017, the Supreme Court decided Ziglar v. Abbasi and held that prisoners unlawfully detained post-9/11 did not have a Bivens claim against policy-level federal executive branch officials and likely had no Bivens claim against the wardens at the facility where they were detained. In doing so, the Court drastically altered the analysis for deciding when a Bivens claim is new and for determining when a new Bivens claim should be either allowed by a court or precluded under a “special factors” analysis. This change in the Bivens framework severely restricts the availability of factually novel Bivens claims, even …

Interrogating Police Officers, Stephen Rushin, Atticus Deprospo

Faculty Publications & Other Works

This Article empirically evaluates the procedural protections given to police officers facing disciplinary interrogations about alleged misconduct. It demonstrates that state laws and collective bargaining agreements have insulated many police officers from the most successful interrogation techniques.

The first part of this Article builds on previous studies by analyzing a dataset of police union contracts and state laws that govern the working conditions in a substantial cross section of large and midsized American police departments. Many of these police departments provide officers with hours or even days of advanced notice before a disciplinary interrogation. An even larger percentage of these …

The Effects Of Voluntary And Presumptive Sentencing Guidelines, Stephen Rushin, Josph Colquitt, Griffin Sims Edwards

Faculty Publications & Other Works

This Article empirically illustrates that the introduction of voluntary and presumptive sentencing guidelines at the state-level can contribute to statistically significant reductions in sentence length, inter-judge disparities, and racial disparities.

For much of American history, judges had largely unguided discretion to select criminal sentences within statutorily authorized ranges. But in the mid-to-late twentieth century, states and the federal government began experimenting with sentencing guidelines designed to reign in judicial discretion to ensure that similarly situated offenders received comparable sentences. Some states have made their guidelines voluntary, while others have made their guidelines presumptive or mandatory, meaning that judges must generally …

Police Disciplinary Appeals, Stephen Rushin

Faculty Publications & Other Works

This Article argues that police disciplinary appeals serve as an underappreciated barrier to officer accountability and organizational reform. Scholars and experts generally agree that rigorous enforcement of internal regulations within a police department promotes constitutional policing by deterring future misconduct and removing unfit officers from the streets. In recent years, though, a troubling pattern has emerged. Because of internal appeals procedures, police departments must often rehire or significantly reduce disciplinary sanctions against officers who have engaged in serious misconduct. Little legal research has comprehensively examined the appeals process available to officers facing disciplinary sanctions. By drawing on a national dataset …

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Raising The Cost Of Using Title Iii Wiretap Evidence, Derik T. Fettig

Mitchell Hamline Law Review

No abstract provided.

Identifying A Proper Analytical Framework: Claims Of Admission Of Inadmissible Evidence As Prosecutorial Misconduct, Nicholas A. Hydukovich

Mitchell Hamline Law Review

No abstract provided.

The Criminal Continues To Go Free When The Constable Blunders: Testing The Boundaries Of Curtilage—State V. Chute, 908 N.W.2d 578 (Minn. 2018), Akina Khan

Mitchell Hamline Law Review

No abstract provided.

Note: Decarceration In A Mass Incarceration State: The Road To Prison Abolition, Robert H. Ambrose

Mitchell Hamline Law Review

No abstract provided.

Advocating At The Intersection Of Law, Science, And Culture Change: Options For Changing Minnesota's Statute Of Limitations For Criminal Sexual Conduct Felonies, Caroline Palmer

Mitchell Hamline Law Review

No abstract provided.

Stop In The Name Of Love: Putting An End To The Felony Prosecution Of Adolescent Sexting, Angela Bailey, Laura Heinrich

Mitchell Hamline Law Review

No abstract provided.

Virtual Hearings And Blockchain Technology Solutions In Criminal Law, Chantell Bergquist

Political Science Theses and Capstones

Technology has evolved and raided our personal and professional lives. Although the courts are not immune to the advancement and integration of technology, the courts are not keeping up with relevant technological advancements. Historically, courts have been hesitant to embrace new technologies despite the Federal Rules of Civil Procedure and the American Bar Association Model Rules of Professional Conduct. Rule 1 of the Federal Rules of Civil Procedure creates the right to a “just, speedy, and inexpensive determination of every action and proceeding.” Likewise, the American Bar Association Model Rules of Professional Conduct have determined attorneys must “keep abreast of …

When Big Brother Becomes “Big Father”: Examining The Continued Use Of Parens Patriae In State Juvenile Delinquency Proceedings, Emily R. Mowry

Dickinson Law Review (2017-Present)

The U.S. Constitution grants American citizens numerous Due Process rights; but, historically, the Supreme Court declined to extend these Due Process rights to children. Initially, common-law courts treated child offenders over the age of seven in the same manner as adult criminals. At the start of the 20th century, though, juvenile reformers assisted in creating unique juvenile courts that used the parens patriae doctrine and viewed children as delinquent youths in need of judicial parental guidance rather than punishment. Later, starting in 1967, the Supreme Court released multiple opinions extending certain constitutional Due Process rights to children in juvenile delinquency …

Judges Do It Better: Why Judges Can (And Should) Decide Life Or Death, Andrew R. Ford

Dickinson Law Review (2017-Present)

Following its decision in Furman v. Georgia, the Supreme Court of the United States has attempted to standardize procedures that states use to subject offenders to the ultimate penalty. In practice, this attempt at standardization has divided capital sentencing into two distinct parts: the death eligibility decision and the death selection decision. The eligibility decision addresses whether the sentencer may impose the death penalty, while the selection decision determines who among that limited subset of eligible offenders is sentenced to death. In Ring v. Arizona, the Court held for the first time that the Sixth Amendment right to …

Where The Constitution Falls Short: Confession Admissibility And Police Regulation, Courtney E. Lewis

Dickinson Law Review (2017-Present)

A confession presented at trial is one of the most damning pieces of evidence against a criminal defendant, which means that the rules governing its admissibility are critical. At the outset of confession admissibility in the United States, the judiciary focused on a confession’s truthfulness. Culminating in the landmark case Miranda v. Arizona, judicial concern with the reliability of confessions shifted away from whether a confession was true and towards curtailing unconstitutional police misconduct. Post-hoc constitutionality review, however, is arguably inappropriate. Such review is inappropriate largely because the reviewing court must find that the confession was voluntary only by …

Incapacitating Errors: Sentencing And The Science Of Change, M. Eve Hanan

Scholarly Works

Despite widespread support for shifting sentencing policy from “tough on crime” to “smart on crime,” reflected in legislation like the federal First Step Act, the scope of criminal justice reform has been limited. We continue to engage in practices that permanently incapacitate people while carving out only limited niches of sentencing reform for special groups like first-time nonviolent offenders and adolescents. We cannot, however, be “smart on crime” without a theory of punishment that supports second chances for the broadest range of people convicted of crimes.

This Article posits that the cultural belief that adults do not change poses a …

About A Revolution: Toward Integrated Treatment In Drug And Mental Health Courts, Sara Gordon

Scholarly Works

This Article examines specialty courts, including drug, alcohol, and mental health courts, which proponents claim created a revolution in criminal justice. Defendants whose underlying crime is the result of a substance use disorder or a mental health disorder can choose to be diverted into a specialty court, where they receive treatment instead of punishment. Many of these individuals, however, do not just suffer from a substance use disorder or a mental health disorder; instead, many have a “co-occurring disorder.” Approximately 8.9 million American adults have co-occurring mental health and substance use disorders, and almost half of individuals who meet diagnostic …

Comparisons Of The Soul: A Foucauldian Analysis Of Reasonable Doubt, Jeri Mallory

Scripps Senior Theses

The purpose of this paper is to uncover a new level of thinking regarding the discourse and debate around the standard of reasonable doubt and how it is used in our court rooms. The current argument surrounding the reasonable doubt standard has become circular and reached an impasse. By introducing the lens of social control and using the writings of notable French philosopher Michel Foucault, this paper looks at the origins and development of the reasonable doubt standard and links it with the increasing methods of social control present in punishment as well as evaluating the cultural narrative around its …

Incorporating Collateral Consequences Into Criminal Procedure, Paul T. Crane

Law Faculty Publications

A curious relationship currently exists between collateral consequences and criminal procedures. It is now widely accepted that collateral consequences are an integral component of the American criminal justice system. Such consequences shape the contours of many criminal cases, influencing what charges are brought by the government, the content of plea negotiations, the sentences imposed by trial judges, and the impact of criminal convictions on defendants. Yet, when it comes to the allocation of criminal procedures, collateral consequences continue to be treated as if they are external to the criminal justice process. Specifically, a conviction’s collateral consequences, no matter how severe, …