Criminal Procedure Commons^™

Rethinking Civil Contempt Incarceration, Jessica C. Kornberg

ExpressO

Under current federal law civil contempt is governed by the Federal Rules of Civil Procedure, yet it often results in incarceration. This incarceration can, and in a few cases has been, indefinite. The unlimited duration of civil contempt represents the pinnacle of judicial power, and yet it is a topic which has generated surprisingly little scholarship or case law. This Article explores the history and development of modern contempt law, and finds that while the federal law treats all civil contemnors equally, historically and in many states, contemnors are classified by the type of civil contempt committed. This Article proposes …

Courts, Cops, Citizens, And Criminals, Justin David Heminger

ExpressO

The Supreme Court's 4-1-4 split decision in Missouri v. Seibert causes confusion with regard to question-first Miranda violations. Courts apply a Marks narrowest ground analysis to decide which opinion in Seibert is controlling. However, the majority approach to Seibert, which finds Justice Kennedy's concurrence controlling, is incorrect. Instead, lower courts should resolve question-first Miranda violations by applying legal principles expressed in the plurality's decision.

No Due Process: How The Death Penalty Violates The Constitutional Rights Of The Family Members Of Death Row Prisoners, Rachel C. King

ExpressO

The article makes the case for a novel theory that the death penalty violates the constitutional rights of the family members of death row prisoners. First, the article establishes that Americans are entitled to a fundamental “right to family,” based on a long history of Supreme Court jurisprudence that has established substantive due process rights such as the right to marry, to use contraceptives, to have children, to make educational decisions for children, and decisions about how to configure ones’ household. Next, the article makes the case that the death penalty interferes with the constitutional right to family by harming …

Beyond Conspiracy? Anticipatory Prosecution And The Challenge Of Unaffiliated Terrorism, Robert Chesney

ExpressO

How early does criminal liability attach along the continuum between planning and committing a terrorist act? And in light of the answer to that question, have we struck an appropriate balance between the benefits of prevention and the off-setting costs in terms of a potentially-increased rate of false-positives and foregone opportunities to gather additional intelligence and evidence? These questions are pressing, particularly in light of statements from senior government officials that the Justice Department will be “forward-leaning” in its interpretation of its anticipatory-prosecution powers. My aim in this article is to establish a shared understanding regarding the first question in …

Searches And The Misunderstood History Of Suspicion And Probable Cause: Part One, Fabio Arcila

ExpressO

This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent a …

Executive Branch Regulation Of Defense Counsel And The Private Contract Limit On Prosecutor Bargaining, Darryl K. Brown

ExpressO

Criminal defendants’ right to counsel is regulated by courts, legislatures and, more recently and controversially, by the executive branch. Prosecutors recently have taken a more active role in affecting the power and effectiveness of defense counsel, especially privately retained counsel in white-collar crime cases. Under the Thompson Memo, prosecutors bargain to win waivers of attorney-client privilege and to convince corporate defendants not to pay the legal fees of corporate officers who face separate indictments. These tactics join longer-standing tools to weaken defense representation through forfeiture, Justice Department eavesdropping on attorney-client conversations of defendants in federal custody, and prosecutors’ power to …

Redefining The Right To Be Let Alone: Privacy Rights And The Constitutionality Of Technical Surveillance Measures In Germany And The United States, Nicole E. Jacoby

ExpressO

U.S. and German courts alike long have struggled to find the proper balance between protecting the privacy rights of criminal suspects and granting law enforcement officials the adequate tools to fight crime. The highest courts in each country have produced different paradigms for determining where the public sphere ends and the private sphere begins. In a series of cases, the U.S. Supreme Court has inquired whether a criminal defendant had a reasonable expectation of privacy when the state conducted a warrantless search of the suspect’s person, premises, or belongings. Germany’s Federal Constitutional Court, in contrast, has asked whether an investigative …

Malibu Locals Only: "Boys Will Be Boys", Or Dangerous Street Gang? Why The Criminal Justice System's Failure To Properly Identify Suburban Gangs Hurts Efforts At Fighting Gangs, Brian William Ludeke

ExpressO

In the last several years, a group of youths calling themselves Malibu Locals Only or MLO has performed several violent crimes, intimidating many people in the area around Malibu, CA. Despite the gang-like appearance of these youths and their crimes, Los Angeles County Sheriff's Department officials insist that MLO is not a gang. This article examines MLO, its history, and its current state in the context of California anti-gang legislation.

The article theorizes that the criminal justice system's failure to call a group like MLO a gang while waging war on other groups, primarily in lower income, heavily minority areas, …

Suspicionless Canine Sniffs: Does The Fourth Amendment Prohibit Public Schools From Using Dogs To Search Students Without Individualized Suspicion?, Todd J. Feinberg

ExpressO

Drugs plague our nation’s schools. Since traditional methods of fighting the problem are proving ineffective, some schools are trying new approaches. One such approach is using specially trained dogs to indiscriminately sniff students for the presence of illegal drugs. Using dogs to sniff students is controversial and has sparked a constitutional debate. The Supreme Court has not expressly ruled on whether suspicionless canine sniffs violate a public school student’s Fourth Amendment protection against unreasonable searches. In fact, the Court has acted in a manner that actually increases uncertainty around the issue. This uncertainty makes employing suspicionless canine sniffs difficult for …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Mixed Messages: The Supreme Court’S Conflicting Decisions On Juries In Death Penalty Cases, Ken Miller, David Niven

ExpressO

The right to a jury determination of a capital defendant's fate has expanded recently. The era of judges making factual determinations then determining whether to apply a death sentence or judges having the power to overrule a jury's life sentence to impose death is over. The expanded right to access a jury and have it hold determinative power over a defendant's life has not, however, been accompanied by commensurate attention to the instructions that guide those jurors through the applicable law toward their verdict. Nor have adequate procedures been designed to produce a truly representative jury panel. In brief, the …

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 …

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 …