Criminal Procedure Commons^™

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 …

Massey V. Texas: Eroding The Exclusionary Rule And Incentivizing Police Misconduct, Geoffrey S. Corn, Brandon E. Beck

Texas A&M Law Review

In April 2023, the Texas Court of Criminal Appeals upheld the conviction of James Calvin Massey for possession of drugs discovered as a direct result of an unconstitutional Terry frisk. Ordinarily, with limited exceptions, the exclusionary rule prohibits the prosecution from using contraband discovered as a result of unconstitutional police action, akin to the situation Mr. Massey encountered. In fact, that’s exactly why the intermediate court of appeals reversed Mr. Massey’s conviction. When the Texas Court of Criminal Appeals reinstated Massey’s conviction, it broke new ground, holding that because Mr. Massey resisted the unconstitutional Terry frisk, his uncharged misdemeanor offense …

State V. Curlew: Assessing The Sufficiency Of Evidence Under The Corpus Delicti Rule, Brett D. Baber

Maine Law Review

In State v. Curlew, the Maine Supreme Judicial Court, sitting as the Law Court, reversed a conviction for unlawful sexual contact. The court predicated reversal upon a reaffirmation of both the substantive aspect and the evidentiary aspect of the corpus delicti rule. The substantive aspect of the corpus delicti rule requires the state "to produce, exclusive of any confession or admission by the defendant, such credible evidence as will create a substantial belief that the crime charged has been committed by some person." The evidentiary aspect of the corpus delicti rule requires proof of the corpus delicti prior to the …

A Quarter Of A Century Of Rulemaking With Particular Attention To The Federal Rules Of Criminal Procedure, Frank J. Remington

Maine Law Review

It is a happy coincidence that Edward Thaxter Gignoux completes twenty-five years on the bench at about the same time that the present rulemaking procedures in the federal system reach their twenty-fifth anniversary. In the quarter of a century of the present system for rulemaking there have been three distinguished chairmen of the Standing Committee—the committee to which there is delegated overall responsibility for rulemaking by the Judicial Conference of the United States. The three chairmen are Senior Circuit Judge Albert Maris, generally thought of as the modern "Father" of federal rulemaking, Senior District Judge Rozell Thomson and the present …

State V. Durepo: Toward A Principled Maine Version Of The Impeachment Exception To The Exclusionary Rule, Andre D. Bouffard

Maine Law Review

As one might have anticipated, the broad substantive mandates of the major Warren Court exclusionary rule decisions have not been left completely intact by later Supreme Court decisions. Instead, the scope of the evidentiary exclusionary doctrine established by the Warren Court has been significantly narrowed by later Supreme Court decisions that have created numerous exceptions to the general command of the exclusionary rule that evidence obtained through unconstitutional means is inadmissible in a criminal trial. Although some members of the present Court argue that the exceptions to the exclusionary rule are consistent with the purposes of the rule, and therefore …

State V. Boilard: Are Jury Instructions On Statutory Defenses Essential To A Fair Trial?, Kristin A. Gustafson

Maine Law Review

In State v. Boilard, the Maine Supreme Judicial Court, sitting as the Law Court, recently addressed the question of when the failure to instruct the jury regarding a defense available under the Maine Criminal Code constitutes error. The court held that the trial court's failure to give an instruction on the defense of justification did not rise to the level of obvious error. The court reasoned that because the instruction conflicted with the defendant's theory of defense, and because counsel for the defendant did not claim error at trial or on appeal, any argument that the defendant had been prejudiced …

The Prosecutor Vacancy Crisis, Adam M. Gershowitz

Faculty Publications

There is a prosecutor vacancy crisis in the United States. Prosecutors are quitting in droves and there are few applicants to replace them. In Houston and Los Angeles, more than 15% of prosecutor positions are open. In Detroit, the vacancy rate exceeds 20%. In Alameda, 25% of prosecutor positions are empty. And in Miami, a staggering 33% of prosecutor positions are unfilled. The situation is equally dire in many large and small counties across the nation.

Drawing on data and interviews from more than two-dozen district attorney’s offices, this Article documents how low salaries, massive caseloads, lack of remote work …

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 …

Brief Of Criminal Law Scholars As Amici Curiae In Support Of Petitioner, Ira P. Robbins

Amicus Briefs & Court Filings

Amici are law professors who teach and research criminal law and procedure. They have no personal interests in this case. Their sole interest is in the protection and preservation of the constitutional rights of criminal defendants.

Indiana Law Supporting Newly Established Indiana Innocence Project, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

Law students from the Indiana University Maurer School of Law will have the opportunity to help exonerate wrongfully convicted Hoosiers through the newly established Indiana Innocence Project, which officially launched Saturday (Aug. 17).

Established in association with the national Innocence Project—which has helped free more than 240 wrongfully convicted prisoners since 1992—the Indiana Innocence Project (INIP) has been made possible through the support of the Herbert Simon Family Foundation, along with the Law School and IU’s Department of Criminal Justice.

The Indiana Innocence Project will screen and investigate cases with meritorious innocence claims, secure DNA testing when biological evidence …

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 …

Murder On The Hearsay Trail, Jeffrey Bellin

Faculty Publications

Judges, lawyers, and law students struggle to apply American evidence law’s most distinctive feature—the hearsay prohibition. The problem is that hearsay is difficult to master and somewhat dull. At the same time, hearsay evidence is ubiquitous and important. Every litigator has a story about a judge’s eccentric hearsay rulings; mine is the trial judge who waved his hand dismissively at hearsay objections, letting witnesses answer on the grounds that “I want to hear it.” And the case law is littered with appellate opinions scolding trial judges for erroneous hearsay rulings while introducing errors of their own.

That is just the …

Redistributing Justice, Benjamin Levin, Kate Levine

Articles

This Essay surfaces an obstacle to decarceration hiding in plain sight: progressives’ continued support for the carceral system. Despite progressives’ increasingly prevalent critiques of criminal law, there is hardly a consensus on the left in opposition to the carceral state. Many left-leaning academics and activists who may critique the criminal system writ large remain enthusiastic about criminal law in certain areas— often areas in which defendants are imagined as powerful and victims as particularly vulnerable.

In this Essay, we offer a novel theory for what animates the seemingly conflicted attitude among progressives toward criminal punishment—the hope that the criminal system …

Bail At The Founding, Kellen R. Funk, Sandra G. Mayson

Faculty Scholarship

How did criminal bail work in the Founding era? This question has become pressing as bail, and bail reform, have attracted increasing attention, in part because history is thought to bear on the meaning of bail-related constitutional provisions. To date, however, there has been no thorough account of bail at the Founding. This Article begins to correct the deficit in our collective memory by describing bail law and practice in the Founding era, from approximately 1790 to 1810. In order to give a full account, we surveyed a wide range of materials, including Founding-era statutes, case law, legal treatises, and …

Eliminating Rule 609 To Provide A Fair Opportunity To Defend Against Criminal Charges: A Proposal To The Advisory Committee On The Federal Rules Of Evidence, Jeffrey Bellin

Faculty Publications

Federal Rule of Evidence 609 authorizes the admission of prior convictions to impeach criminal defendants who testify. And in this important and uniquely damaging application, the [r]ule’s logic fails, distorting American trials and depriving defendants of a fair opportunity to defend against the charges. The Advisory Committee [on Evidence Rules (the “Advisory Committee”)] should propose the elimination of Rule 609 and prohibit cross-examination with specific instances of a criminal defendant’s past conduct when those instances are unrelated to the defendant’s testimony and unconnected to the case.

This short essay begins by setting out the proposed rule change alongside a proposed …

Prosecutorial Storytelling Through Intrinsic Evidence, Brian Chen

Pepperdine Law Review

Crimes make for compelling stories. So juries make for an eager audience. Jurors want to—indeed, expect to—learn what the defendant did, how they did it, and why they deserve punishment. Capable prosecutors know how to deliver. Trial narratives empower jurors to link discrete pieces of evidence and infer facts from circumstantial proof. Only then can they render a verdict consistent with their sense of justice. Federal courts thus afford wide leeway for prosecutors to present their case as they please, with the evidence at their disposal. The Federal Rules of Evidence delineates the scope of that discretion. Under Rule 404(b), …

Whom Do Prosecutors Protect?, Vida Johnson

Georgetown Law Faculty Publications and Other Works

Prosecutors regard themselves as public servants who fight crime and increase community safety on behalf of their constituents. But prosecutors do not only seek to protect those they are supposed to serve. Instead, prosecutors often trade community safety, privacy, and even the constitutional rights of the general public to enlarge police power. Prosecutors routinely advocate for weaker public rights, shield police from public accountability, and fail to prosecute police when they break the law.

This Article will show how prosecutors often protect police at the expense of the public. This Article suggests a novel theory of evaluating the conduct of …

Problem-Solving Courts And The Outcome Oversight Gap, Erin R. Collins

UMKC Law Review

The creation of a specialized, “problem-solving” court is a ubiquitous response to the issues that plague our criminal legal system. The courts promise to address the factors believed to lead to repeated interactions with the system, such as addiction or mental illness, thereby reducing recidivism and saving money. And they do so effectively – at least according to their many proponents, who celebrate them as an example of a successful “evidence-based,” data-driven reform. But the actual data on their efficacy is underwhelming, inconclusive, or altogether lacking. So why do they persist?

This Article seeks to answer that question by scrutinizing …

The Automated Fourth Amendment, Maneka Sinha

Emory Law Journal

Courts routinely defer to police officer judgments in reasonable suspicion and probable cause determinations. Increasingly, though, police officers outsource these threshold judgments to new forms of technology that purport to predict and detect crime and identify those responsible. These policing technologies automate core police determinations about whether crime is occurring and who is responsible.

Criminal procedure doctrine has failed to insist on some level of scrutiny of—or skepticism about—the reliability of this technology. Through an original study analyzing numerous state and federal court opinions, this Article exposes the implications of law enforcement’s reliance on these practices given the weighty interests …

More Than Friends: A New Theory For The Third-Party Doctrine, Eang L. Ngov

American University Law Review

When a person gives information or something tangible to someone or a business, the Fourth Amendment’s third-party doctrine allows the government to obtain that evidence without a warrant or probable cause. The third-party doctrine is premised on the rationale that we hold no reasonable expectation of privacy when we voluntarily expose information to others, that we assume the risk that the third party would share the information, and that we must deal with the consequences of that misplaced trust. The doctrine originated from a series of cases where law enforcement obtained information revealed by criminals through their mistaken trust of …

Pyrrhic Victories: The Mirage Of Winning At The Supreme Court, Tonja Jacobi, Clare G. Willis

Faculty Articles

We conduct in-depth archival research of landmark constitutional criminal procedure cases and find two ways in which the declarations of the vindication of rights they contain are misleading. First, most defendants who successfully establish police violations of their constitutional rights before the highest court in the land nonetheless remain in prison for years or decades subsequently. The multitude of ways in which the state can convict the individual defendant even in the face of one or more constitutional violations means that the Supreme Court precedents that bear their names seldom translate to genuine wins for the defendants. Second, there are …

A Wolf In Sheep’S Attire: How Consent Enfeebles Our Fourth Amendment, Stephen E. Henderson, Guha Krishnamurthi

Faculty Articles

The Fourth Amendment is a mirage. On paper—in the rules studied by law students, analyzed by scholars, and proclaimed by jurists—its limitations are many and, oftentimes, significant. Yet the experience of large numbers of Americans is entirely to the contrary, thanks to the rights-annihilating, under-theorized exception of “consent.” Under its guise, law enforcement officers routinely conduct what would otherwise be constitutionally-restrained searches and seizures, and they do so without meaningful explanation or assent. Fortunately, change—whether legislative or (ideally) constitutional—could be straightforward. Thanks to other sufficient triggers, consent could be replaced by a narrow, rights-protective doctrine under which law enforcement could …

The Difference A Da Makes, Victoria Smiegocki, Shem Vinton, Pamela R. Metzger

Faculty Journal Articles and Book Chapters

During his 2018 campaign to become Dallas County District Attorney, John Creuzot promised to decline prosecution of low-level marijuana misdemeanors. After his election, District Attorney Creuzot (DA Creuzot) honored this campaign promise, issuing policies designed to radically reduce misdemeanor marijuana prosecutions. Analyzing qualitative and quantitative data, the authors describe police enforcement changes associated with the Dallas County District Attorney's Office's (DAO) marijuana prosecution policies. The authors also explore how the DAO's Intake Unit successfully implemented and enforced these marijuana prosecution policies.

The authors show that DA Creuzot's policies were associated with a significant decrease in marijuana misdemeanor arrests and an …

Time And Retribution, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

Time is missing from discussions on the theory of retribution. A colossal body of scholarship has been devoted to exploring the theory of retribution, or 'just deserts," but much less has attempted to translate this theory into practice, explaining how to determine an actual offender's desert in real life. The limited scholarship on this topic touches on who might best assess an offender's desert. For example, should a judge, a juror, or the public itself be making these desert decisions? But there is also a temporal aspect to this decision making that has thus far largely eluded exploration: When should …

The Procedural Justice Industrial Complex, Shawn E. Fields

Faculty Scholarship

The singular focus on procedural justice police reform is dangerous. Procedurally just law enforcement encounters provide an empirically proven subjective sense of fairness and legitimacy, while obscuring substantively unjust outcomes emanating from a fundamentally unjust system. The deceptive simplicity of procedural justice – that a polite cop is a lawful cop – promotes a false consciousness among would-be reformers that progress has been made, evokes a false sense of legitimacy divorced from objective indicia of lawfulness or morality, and claims the mantle of “reform” in the process. It is not just that procedural justice is a suboptimal type of reform; …

Grasping The Third Rail: Restorative Justice And Violent Crime, Olwyn Conway

Scholarly Articles in Law Reviews & Journals

Restorative justice is a means of responding to harm— including criminal offenses—through active accountability and repair, rather than through passive punishment and isolation. While restorative justice has demonstrated potential to meaningfully improve processes and outcomes for individuals and communities, the implementation of restorative justice programs to address crime—both within and alongside the American criminal system—has been slow, limited, and misplaced. Programs are often directed at low-level, nonviolent offenses that involve little if any cognizable harm. This approach creates two problems. One, it risks net-widening: bringing more citizens under criminal surveillance and carceral control for minor offenses—further diluting the constitutional and …

Their Futures, So Full Of Dread: How Barefoot's Contamination Of The Death Penalty Trial Process Continues, Michael L. Perlin, Talia Roitberg Harmon, Maren Geiger, Moana Houde-Camirand

Articles & Chapters

Forty years ago, in its most roundly-criticized criminal procedure decision in modern history, the Supreme Court, in Barefoot v. Estelle (463 U.S. 880 (1983)), a decision premised on testimony by the responses to a hypothetical of a witness who had never directly evaluated the defendant, ruled that such testimony as to future dangerousness – testimony that had concluded there was a “100% chance” the defendant would commit more crimes if released into society -- was permissible. Over a stinging dissent by Justice Blackmun, the Supreme Court had ruled in Barefoot that it was not constitutional error for psychiatrists to testify …

Crawford And Criminal Justice, William Ortman

Scholarly Works

This essay reflects on whether Crawford v. Washington, now in its third decade of life, matters to criminal justice. For all the talk of Crawford as “revolutionary,” that is, has it made any real difference to the world of crime and punishment? I’ve confronted the question before. In a 2021 essay, I argued that Crawford probably has modest real-world effects. Crawford articulated a right that criminal defendants can exercise only at trial. In an adjudicatory system bereft of trials, trial rights don’t count for much. They impact plea outcomes only when they confer bargaining power sufficient to offset prosecutors’ …

Neglected Discovery, Jenia I. Turner, Ronald F. Wright, Michael Braun

Faculty Journal Articles and Book Chapters

In recent decades, many states have expanded discovery in criminal cases. These reforms were designed to make the criminal process fairer and more efficient. The success of these changes, however, depends on whether defense attorneys actually use the new discovery opportunities to represent their clients more effectively. Records from digital evidence platforms reveal that defense attorneys sometimes fail to carry out their professional duty to review discovery. Analyzing a novel dataset we obtained from digital evidence platforms used in Texas, we found that defense attorneys never accessed any available electronic discovery in a substantial number of felony cases between 2018 …

Going Federal, Staying Stateside: Felons, Firearms, And The "Federalization" Of Crime, Jonathan Abel

American University Law Review

Scholars have long debated the federalization of crime. Proponents assert that federal prosecutions are more likely than state prosecutions to result in convictions and severe punishments, and thus more likely to deter crime. Opponents argue that federalization leads to the arbitrary, and even racist, punishment of a few unlucky defendants plucked from a sea of similarly situated peers. Everyone seems to agree about one thing, though: the federal system outstrips the state system in effectiveness and severity. Yet, no one has obtained the state-court data needed to substantiate these comparisons. This Article fills that gap with an examination of the …