Criminal Procedure Commons^™

Drug War Repairs Guarantees, Amber Baylor

Faculty Scholarship

Drug legalization, especially cannabis legalization, is a critical step forward in states’ willingness to address systemic disparities, privacy intrusions, violence, and other harms of the drug war. Yet, reforms center on legalization and repair through a narrow lens, focused on changes to the penal code. The public has found that narrow forms of legalization cannot serve their purported reparative purpose. Narrowly drawn legalization is illusory. Drug war harms and punishment for legalized substance use continue. Legalization reforms are vulnerable to political trends, resulting in rollback and retrenchment of drug war operations.

Legalization cannot deliver on its reparative terms without guarantees. …

Criminal Court's Disability, Zohra Ahmed

Faculty Scholarship

Do criminal courts meaningfully accommodate psychiatric disability? A review of competency proceedings across the United States suggests not. In competency to stand trial proceedings, criminal court actors offer a narrow vision of psychiatric disability that excludes many defendants. Ultimately, the institutional context of criminal court undermines even the meagre accommodations that the competency framework provides.

Competency proceedings are the constitutional accommodations available to disabled defendants if they can establish that they are unable to consult with their lawyers or if they do not have a rational or factual understanding of the proceedings against them. After a finding of incompetency, the …

The Reverse Onus At Bail For Intimate Partner Violence: An Unconstitutional And Ineffective Measure, Ella Peterson

Dalhousie Journal of Legal Studies

The recently adopted reverse onus at bail for repeat intimate partner violence is a piece of performative legislation that is ineffectual and may harm those it seeks to protect. Part I of this paper provides an overview of intimate partner violence in Canada in order to contextualize s. 515(6)(b.1) of the Criminal Code. Part II is a Charter assessment of the reverse onus provision at issue, focusing on sections 7 and 11(e). Part III concludes with a critique of the effectiveness of the reverse onus, which fails to address the root causes of intimate partner violence.

Something Concrete: How Labor Advocates Can Best Respond To The Ambiguity Of Glacier Northwest, Ateş Serifsoy

Seattle University Law Review

The Supreme Court’s much-anticipated decision in Glacier North-west, Inc. v. International Brotherhood of Teamsters Local No. 174 (Glacier) marked a critical moment for workers’ rights under the National Labor Relations Act (NLRA) and the longstanding practice of Garmon preemption. Yet, initial fears of a significant rollback of workers’ rights, driven by sensational headlines, were met with an unexpectedly narrow Court opinion. This Comment examines Glacier’s implications for Gar-mon preemption and the right to strike. It offers the historical background of the doctrine of labor law preemption before Glacier; presents a detailed analysis of Glacier itself, including its …

Directing Unconstitutional Verdicts: When Judges Become Jurors On Self-Defense, Anjali Pathmanathan

Georgia Criminal Law Review

The right to self-defense is one of the oldest and most universal concepts in Anglo-American criminal law and criminal procedure. Under this defense, an accused person, who honestly believed that using force was necessary to protect themself from imminent danger, did nothing criminal even if another person was harmed as a result. To assert self-defense at trial, however, the accused must admit to intentionally committing the forceful acts alleged to explain how they only used such force to save themself from immediate harm. Once an accused has made such a grave admission, the jury must consider whether the force was …

Extending The Smith V. Hooey Duty To The Holding Jurisdiction, Ronald D. Russell

Maine Law Review

The right to a speedy trial has been an integral part of the Anglo-American legal system since its foundation. The first statement of this guarantee seems to be in the codification of basic rights included in the Magna Charta. It was incorporated into the earliest laws of colonial America and later expressed in the sixth amendment to the Constitution. In Klopfer v. North Carolina, the United States Supreme Court stated, "The history of the right to a speedy trial and its reception in this country clearly establish that it is one of the most basic rights preserved by our Constitution." …

Extending The Smith V. Hooey Duty To The Holding Jurisdiction, Ronald D. Russell

Maine Law Review

The right to a speedy trial has been an integral part of the Anglo-American legal system since its foundation. The first statement of this guarantee seems to be in the codification of basic rights included in the Magna Charta. It was incorporated into the earliest laws of colonial America and later expressed in the sixth amendment to the Constitution. In Klopfer v. North Carolina, the United States Supreme Court stated, "The history of the right to a speedy trial and its reception in this country clearly establish that it is one of the most basic rights preserved by our Constitution." …

Appointment Of Counsel In Misdemeanor Prosecutions In Maine, Maine Law Review

Maine Law Review

When a criminal defendant appears without a lawyer before a trial court, the trial judge must decide whether to appoint counsel to represent him. The trial judge's decision is one of constitutional magnitude under both the United States and Maine Constitutions, and the decision made in any particular instance affects the integrity of the trial process and the validity of any conviction. The scope of the constitutional right to appointed counsel has lately been the subject of major decisions of the United States Supreme Court and of the Maine Supreme Judicial Court. The United States Supreme Court in Argersinger v. …

"Fighting Words" And The First Amendment In Maine: State V. John W., Deborah J. Ross

Maine Law Review

On April 1, 1979, John W. was driving his car, accompanied by his sister Maria. The car was stopped by a police officer who requested John's license and registration. Maria asked the officer why they had been stopped. When the officer remained silent, Maria became abusive and was arrested for disorderly conduct. John demanded to know what was going on. Ordered to get back into his car, John began shouting at the police: "Hey, turn around and come back here;" "Hey, you fucking pig, you fuckin' kangaroo;" "Fuck you." John was arrested and convicted in a juvenile proceeding of disorderly …

U.S. Territories And The Criminal Law Curriculum, Emmanuel Hiram Arnaud

Faculty Scholarship

In this Article, I make a case for why issues concerning the territories should be taught in law school courses and suggest a few ways in which federal criminal adjudication in the territories can and should be incorporated into the criminal law and procedure curriculum.¹⁰ As I advance elsewhere,¹¹ criminal adjudication in the territories functions differently than in the mainland United States.¹² Using the framework of what I call the “territorial criminal legal system,” I have begun mapping the contours of the unique prosecutorial ecosystem produced by the territorial condition.¹³ Chief among the characteristics is the …

Properly Partitioning Prejudice: Analyzing Mixed Brady And Napue Claims, Patrick Scariano

Fordham Law Review

Due process affords criminal defendants the right to receive evidence possessed by the government that would aid in their defense. This right was codified in Brady v. Maryland. Brady’s lesser-known ancestor is Napue v. Illinois, which gave defendants the right to a new trial if the government knowingly offered perjured testimony in their original trial. The U.S. Supreme Court has held that these rights are critical to support verdicts worthy of confidence necessary to ensure due process.

Unfortunately, defendants victimized by misconduct are often affected by multiple violations of their rights. Courts have developed ways to examine …

Dead Infants And Taking The Fifth, Tracey Maclin

UF Law Faculty Publications

This Essay offers tribute to Professor Colb's teachings and insights expressed in her writings on the Court's Miranda and Self-Incrimination Clause rulings. Since the start of the twenty-first century, Professor Colb wrote many blogs on the Court's Miranda doctrine. Miranda v. Arizona famously held that persons under arrest must be warned of their right to silence and to have counsel's advice before being subject to interrogation. Generally speaking, Professor Colb was critical of the Court's results and reasoning—for good reason.

As someone who supports a broad interpretation of the Fifth Amendment, I offer a counterview of Professor Colb's conception of …

Survival Of The Social Interest: Redefining The Bruen Standard To Protect Women From Violence Through United States V. Rahimi, Katelyn M. Sundstrom

Lewis & Clark Law Review

This Note explores the intersection of gun rights and gender-based violence within the U.S. legal system. It delves into the pervasive issue of domestic violence and explores the 2022 Supreme Court decision in New York State Rifle & Pistol Association v. Bruen, which rejected the use of “interest balancing” in evaluating gun regulations in favor of a purely historical and traditional approach. This shift placed significant legal scrutiny on existing firearm restrictions, including 18 U.S.C. § 922(g)(8), which prohibits individuals subject to domestic violence restraining orders from possessing firearms.

The analysis centers on the 2023 case United States v. Rahimi, …

“In Defiance Of Gifts”: The Dutch Origins Of The Foreign Emoluments Clause, Liam E. Cronan

Touro Law Review

Starting in 2017, a series of lawsuits against President Donald Trump grounded their arguments on a long-overlooked portion of the Constitution: the Foreign Emoluments Clause, which in its most basic form bans government officials from accepting gifts, or “emoluments,” from foreign entities. Until 2017, few courts or scholars had ever scrutinized this provision. But with Trump’s presidency and enduring reports of his foreign business dealings, this oft-shunned area of the law suddenly garnered the attention of courts and scholars alike. Because of a clear “lack of precedent” on this matter, federal judges soon parsed historical records to determine the Clause’s …

The Warrant Exception That Isn't Fisa Section 702, "Defensive" Searches, And The Fourth Amendment, Noah C. Chauvin

American University Law Review

Section 702 of the Foreign Intelligence Surveillance Act allows the government to conduct warrantless electronic surveillance of non-Americans who are located overseas. Although the surveillance targets foreigners, Americans’ communications are “incidentally” collected, too. Once the government has acquired Americans’ communications, court-approved rules allow it to conduct warrantless searches for and through them in its Section 702 databases. Intelligence agencies have used these rules to turn this foreign intelligence program into a domestic spying tool, conducting tens of thousands of warrantless “backdoor” searches for Americans’ private communications obtained under Section 702 every year.

Section 702 periodically sunsets; Congress most recently reauthorized …

Constitutional Issues Raised By The Civil-Criminal Dichotomy Of The Maine Oui Law, Bruce W. Smith

Maine Law Review

Moving to the forefront of a national trend, the Maine Legislature undertook a thorough reform of its operating under the influence (OUI) law in 1981. The new statute was billed "the toughest in the nation," largely because of a provision for mandatory prison sentences. The statute's most radical provision is not the mandatory prison term, however, but a section which gives prosecutors the option to treat less egregious first offenses as civil infractions rather than crimes. The section generates the broad issue addressed by this Comment: may trial by jury and other constitutional protections formerly afforded OUI defendants be denied …

Colonizing By Contract, Emmanuel Hiram Arnaud

Faculty Scholarship

Since 1898, Puerto Rico has been a territory of the United States, meaning that Congress wields plenary power over the Island. Although scholars have highlighted the history and some modern manifestations of this power, conversations about how plenary power affects the territories have largely ignored constitutional criminal procedure.

This Article is the first to center the territory’s criminal legal system within the broader debate over the exercise of plenary power. In doing so, it fills significant gaps in the constitutional and criminal law literature on the territories by uncovering how the federal government’s plenary power affects local criminal adjudication. This …

Amicus Brief Of Legal Scholars Lee Kovarsky Et Al. In Support Of Petitioner, Ira P. Robbins

Amicus Briefs & Court Filings

QUESTION PRESENTED: Whether a second-in-time habeas claim filed while an appeal from the judgment on an initial habeas claim is still pending counts as a second or successive habeas petition under 28 U.S.C. § 2244(b)

INTEREST OF AMICI CURIAE: Amici curiae are law professors and legal scholars who study federal post-conviction law and civil procedure. Amici curiae have no personal interest in the outcome of this case. They all share an interest in seeing habeas law applied in a way that ensures the just and timely adjudication of claims while preserving the traditional and intended operation of the Federal Rules …

Prison Administrative Law, Erin Braatz

American University Law Review

This Article examines a matching pair of gaps in the legal literature on prisons and the administrative state. On the one hand, prison law focuses on constitutional protections for prisoners. As such, it emphasizes the minimum conditions the Constitution ensures for the nearly two million individuals currently incarcerated throughout the United States. What this focus misses, however, is the administrative nature of these institutions. With vast powers delegated to prison departments, prison law often fails to fully engage with the administrative nature of power and decision-making within prison departments. This administrative structure shapes the conditions that prevail inside American prisons. …

The Emerging Constitutional Law Of Remote Criminal Justice, Jenia I. Turner

Faculty Journal Articles and Book Chapters

The COVID-19 pandemic compelled courts to experiment with a novel mode of criminal process: conducting proceedings via video. The remote format helped protect public health during the pandemic, and its convenience has led many states to continue using it in certain circumstances. Yet questions about its desirability and constitutionality have lingered, and many are concerned that it undermines the justice and integrity of criminal proceedings. As the future of remote criminal justice is up for debate, it is important to assess to what degree it complies with fundamental constitutional principles. To that end, this Article offers a comprehensive analysis of …

Hostility Is In The Eye Of The Beholder: Why Congress Should Decriminalize Hostile Work Environment Sexual Harassment In The Military, Adam J. Crane

Criminal Law Practitioner

In 2022, for the first time in American history, Congress enacted legislation criminalizing hostile work environment sexual harassment. More serious types of sexual harassment have long been criminal under the Uniform Code of Military Justice, but hostile work environment harassment is a civil wrong, not a crime, and should not have been made into one. Section 539D of the National Defense Authorization Act for Fiscal Year 2022 (now listed under Article 134, UCMJ (Sexual Harassment), is both unconstitutional and counterproductive. It violates the Fifth Amendment for vagueness by failing to provide fair notice of what is prohibited, and the First …

Search And Seizure Budgets, Kiel Brennan-Marquez, Stephen E. Henderson

Faculty Articles

This article proposes a new means of restraining police power: quantitative limits on the number of law enforcement intrusions—searches and seizures—that may occur over a given period of time. Like monetary constraints, search and seizure budgets would aim to curb abusive policing and improve democratic oversight. But unlike their monetary counterparts, budgets would be indexed directly to the specific police activities that most enable escalation and abuse. What is more, budgets are a tool that finds support, conceptually, in the American framing experience. The Fourth Amendment has long been understood to require procedural limits, such as probable cause, on specific …

The Insidious Effect Of Soundbites: Why Fences Aren't Punishment, Theresa Gabaldon

American University Law Review

This Article was inspired by two recent Supreme Court decisions dealing with the ability of the Securities and Exchange Commission to seek disgorgement of unlawfully obtained profits. The topic, however, is not disgorgement. That is a different article, published by the author in the Cornell Lazu Reviezu in 2020, on which this one builds. This Article focuses instead on jurisprudential methodology. The Court has begun to exhibit an unfortunate penchant for jurisprudence by soundbite—the functional equivalent of Googling its ozun precedents for pithy quotes taken out of context from inapt cases. The results are, to put it politely, mischievous.

This …

With Unanimity And Justice For All: The Case For Retroactive Application Of The Unanimous Jury Verdict Requirement, Kara Kurland

Northwestern Journal of Law & Social Policy

Until the Supreme Court’s 2020 decision in Ramos v. Louisiana, non-unanimous jury verdicts were constitutional and utilized in two states: Louisiana and Oregon. The Ramos decision not only declared the practice of non-unanimous jury verdicts unconstitutional, but it also emphasized the essential nature of jury verdict unanimity in criminal trials throughout American history and legal jurisprudence. A year later, in Edwards v. Vannoy, the Court considered retroactive application of Ramos. Utilizing the test created in Teague v. Lane that assessed the retroactivity of new rules of criminal procedure, the Court announced that, despite the essential nature of the unanimous jury …

The Jury Trial Reinvented, Christopher Robertson, Michael Shammas

Faculty Scholarship

The Framers of the Sixth and Seventh Amendments to the United States Constitution recognized that jury trials were essential for maintaining democratic legitimacy and avoiding epistemic crises. As an institution, the jury trial is purpose-built to engage citizens in the process of deliberative, participatory democracy with ground rules. The jury trial provides a carefully constructed setting aimed at sorting truth from falsehood.
/="/">
/="/">Despite its value, the jury trial has been under assault for decades. Concededly, jury trials can sometimes be inefficient, unreliable, unpredictable, and impractical. The COVID–19 pandemic rendered most physical jury trials unworkable but spurred some courts …

Let's Make Some "Scents" Of Our Fourth Amendment Rights: The Discriminatory Truths Behind Using The Mere Smell Of Burnt Marijuana As Probable Cause To Search A Vehicle, Alessandra Dumenigo

St. Thomas Law Review

This Comment addresses the negative effects that have resulted and will continue to result if police officers are encouraged by jurisprudence to conduct a warrantless search of an entire vehicle based on the smell of burnt marijuana. Warrantless searches of an entire vehicle based merely on the smell of burnt marijuana grant officers unlimited power that will likely result in police misconduct, an increase in racially profiled traffic stops, and a distrust between police officers and the Black community amid the nationwide outrage over the death of George Floyd. Part II of this Comment discusses the history of the Fourth …

Testa, Crain, And The Constitutional Right To Collateral Relief, Carlos Manuel Vázquez, Stephen I. Vladeck

Georgetown Law Faculty Publications and Other Works

In Montgomery v. Louisiana, the U.S. Supreme Court held that state prisoners have a constitutional right to relief from continued imprisonment if the prisoner’s conviction or sentence contravenes a new substantive rule of constitutional law. Specifically, the Court held that prisoners with such claims are constitutionally entitled to collateral relief in state court—at least if the state courts are open to other claims for collateral relief on the ground that their continued imprisonment is unlawful. In our article, The Constitutional Right to Collateral Post-Conviction Relief, we argued that, under two lines of Supreme Court decisions interpreting the Supremacy …

Pandemic, Protest, And Agency: Jury Service And Equal Protection In A Future Defined By Covid-19, Patrick C. Brayer

Faculty Works

This essay calls for an expansive view of Fourteenth Amendment equal protection against the discriminatory empanelment of juries grounded upon a culture of systemic racism. For an individual juror fundamental elements of survival during a pandemic are access to health care, safe transportation, and connective technology. Yet, structural and systemic racism precludes many potential jurors of color from securing these necessary supports, thus denying them the ability to be recognized on juror source list or accommodated for jury service. Jury service is a direct and impactful act of citizen agency over the justice system, and the systemic exclusion of individuals …

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 …

How The Race Of A Neighborhood Criminalizes The Citizens Living Within: A Focus On The Supreme Court And The "High Crime Neighborhood", Deandre' Augustus

St. Thomas Law Review

My whole life I was taught that all men are not created equal. This was beaten into my brain by my loving mother who just wanted me to be safe. You see, this message was part of what most young Black men hear when given “the talk.” I remember multiple variations of the talk given to me throughout my early childhood. However, a variation of the talk was most vividly remembered while taking our dog for a walk around my neighborhood with my mother. At the time, we lived in a suburban area, in a predominantly White neighborhood of Baton …