Constitutional Criminal Procedure Research Articles

Interpretable algorithmic forensics

One of the most troubling trends in criminal investigations is the growing use of “black box” technology, in which law enforcement rely on artificial intelligence (AI) models or algorithms that are either too complex for people to understand or they simply conceal how it functions. In criminal cases, black box systems have proliferated in forensic areas such as DNA mixture interpretation, facial recognition, and recidivism risk assessments. The champions and critics of AI argue, mistakenly, that we face a catch 22: While black box AI is not understandable by people, they assume that it produces more accurate forensic evidence. In this Article, we question this assertion, which has so powerfully affected judges, policymakers, and academics. We describe a mature body of computer science research showing how “glass box” AI—designed to be interpretable—can be more accurate than black box alternatives. Indeed, black box AI performs predictably worse in settings like the criminal system. Debunking the black box performance myth has implications for forensic evidence, constitutional criminal procedure rights, and legislative policy. Absent some compelling—or even credible—government interest in keeping AI as a black box, and given the constitutional rights and public safety interests at stake, we argue that a substantial burden rests on the government to justify black box AI in criminal cases. We conclude by calling for judicial rulings and legislation to safeguard a right to interpretable forensic AI.

POLICING FORENSIC EVIDENCE

POLICING FORENSIC EVIDENCE

The Law and Science of Eyewitness Evidence

Eyewitness evidence, used in tens of thousands of criminal cases each year, crucially depends on eyewitness memory, which is quite fallible. The potential inaccuracy of eyewitness memory has been long demonstrated by examples of mis-identifications, including in cases of wrongful conviction. Eyewitness identification procedures, which are themselves experiments, lend themselves to scientific research as do few others in law. Today, decades of scientific research on visual perception and memory have identified key causes of error and methods for improving eyewitness performance. As a result, eyewitness evidence has become a testing ground for the use of science to inform the law. This Article examines how legal actors — state and federal courts, state lawmakers, and police agencies — have responded to this body of research. While U.S. Supreme Court rulings set a constitutional floor, we find that it largely does not inform eyewitness evidence law. State courts have increasingly incorporated eyewitness memory science, as we describe in a detailed fifty-state survey of rulings. Second, we explore how state lawmakers have done still more, in an analysis of twenty-four state statutes that regulate eyewitness identification procedure. Third, policing agencies have most eagerly embraced revised identification practices to take account of scientific research. We describe a sea change in police practice, including through model policy adopted in twenty-nine states. Based on these findings, we call into question top-down, stare-decisis-bound, and federal court-centric accounts that dominate constitutional criminal procedure. Further, we describe how research continues to progress; a new generation of research promises to further improve accuracy of eyewitness procedures. While constitutional criminal procedure is unlikely to change in the near future, we expect that local actors will harness research developments. We conclude by asking why, in the eyewitness area, criminal investigation and procedure have been so receptive to research. We suggest that rather than adopting a legal precedent-based system, police practices and statutes employ a scientific framework that can incorporate new discoveries. This account of dissemination and adoption of research points towards a dynamic framework for the use of science in the legal system.

Direct Collateral Review

Federal courts are vitally important fora in which to remedy constitutional violations that occur during state criminal proceedings. But critics have long lamented the difficultly of obtaining federal review of these violations. The Supreme Court rarely grants certiorari to review state criminal convictions, including allegations of constitutional defects, on direct appeal. Likewise, the Court has historically declined to grant certiorari to review habeas claims that originate in state courts. And Congress has circumscribed the ability of all federal courts to grant relief on habeas claims made by state prisoners. The dominant scholarly view, therefore, is that systemic constitutional violations are going unremedied and will continue to go unaddressed absent broadscale change. This Essay argues that an unnoticed change in the Supreme Court’s certiorari practice over the last five years has reopened a previously closed path to remedying these violations. The Supreme Court has a long-stated presumption against taking cases that originate in state collateral proceedings, i.e., state proceedings in which a prisoner challenges his or her conviction or sentence, often on federal constitutional grounds, after the conviction has become final. This Essay shows that, although the Court previously hewed to that presumption, things have changed. Beginning in October Term 2015 and continuing to the present, the Court has steadily granted certiorari in these cases, indicating a sub silentio abrogation of its stated presumption. This Essay documents this changed certiorari practice and explains its significance, both for vindication of constitutional criminal procedure rights and for our understanding of the Supreme Court’s central role in shaping those rights.

The Gradual Warm-Up: The United States Supreme Court’s Reliance on Social Science Research in Constitutional Criminal Law and Procedure Opinions, 2001-2015

ABSTRACT The United States Supreme Court, through its published opinions, influences the shape of American civil liberties to a greater degree than perhaps any other institution. The Court’s reliance on evidence-based research in reaching their opinions matters and should provide a superior basis for decision-making. It also indicates to scholars whether this same research is of practical value to policy-makers. This study examines the frequency to which the Court cites such research and then breaks down the citations by Constitutional Amendment and type of Court opinion. Results indicate overtime the Court has incrementally increased its use of social science research in its criminal procedure opinions.

'I've Got My Mind Made Up': How Judicial Teleology in Cases Involving Biologically Based Evidence Violates Therapeutic Jurisprudence

Courts are, and have always been, teleological in cases involving litigants with mental disabilities. By “teleological,” I refer to outcome-determinative reasoning; social science that enables judges to satisfy predetermined positions is privileged, while data that would require judges to question such ends are rejected. In this context, judges treat biologically-based evidence in criminal cases involving questions of mental disability law so as to conform to their pre-existing positions. This applies to cases involving questions of the death penalty, the insanity defense, civil competency, incompetency to stand trial, questions related to malingering, and criminal sentencing, and more. In this paper, I will consider what the implications of this behavior are for future criminal procedure developments, and will show how this behavior violates the basic precepts of therapeutic jurisprudence. First, I will consider a range of teleological judicial behaviors. Then, I will consider how biologically-based evidence (including, but not limited to neuroscience evidence, is especially susceptible to these sorts of misjudgments, with a specific focus on how this damages the application of constitutional criminal procedure doctrines. Finally, I will consider how this behavior flies in the face of the basic tenets of therapeutic jurisprudence.

'They Keep it All Hid': The Ghettoization of Mental Disability Law and its Implications for Legal Education

The Supreme Court has, since 1972, decided more than fifty cases involving persons with disabilities, a docket spanning virtually every aspect of constitutional and criminal procedure. These cases have dealt with the substantive and procedural limitations on the commitment power, the conditions of confinement in psychiatric institutions, the application of the Americans with Disabilities Act to persons institutionalized because of illness, the substantive and procedural aspects of the criminal incompetency inquiry and the insanity defense, the relationship between disability and sexually violent predator laws, and aspects of the death penalty. Thousands of cases have been decided in every state in the nation dealing with similar issues. In fact, in the Supreme Court’s first modern disability case – finding that the due process clause is implicated in decisions related to both the nature and duration of the commitment process – it expressed surprise that there were not more disability cases brought to its attention.However, a study of constitutional law, criminal procedure, civil rights and/or federal courts casebooks reveal virtually no disability cases. Policies and practices of exclusion are not unique. By way of example, more than a decade ago, Toni Massaro pointed out that constitutional criminal procedure has been treated as a subject separate from basic constitutional materials and courses. Mental disability has been ghettoized in the same way that criminal procedure has been ghettoized. It is a ghettoization that in some ways is far more troubling than the criminal procedure ghettoization, since schools offer courses in basic criminal procedure, and these courses are regularly well-subscribed. On the other hand, there are courses in mental disability law offered only at about half of American schools, and, at many schools, those courses are offered infrequently and only by adjuncts (who often have no legal training). This ghettoization reflects a hard truth that has passed under the radar of most civil rights teachers and civil rights students. Mental disability is simply not a topic taken seriously as a civil rights topic (or as a constitutional topic or as a federal courts topic). And this failure of inclusion goes directly to the heart of the challenge of teaching disability law. It is hidden (nearly totally hidden) from the traditional school curriculum. It is not in the curriculum at many schools. It is largely invisible to students and professors alike.I believe this ghettoization is a reflection of the invidious sanism that permeates the legal academy in the same way it permeates the rest of society. Law teachers are not immune to sanism – an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry.In this essay, I reconsider this ghettoization from four overlapping vantage points. First, I consider how mental disability law became a part of the school curriculum, growing out of and largely supplanting courses in psychiatry and the law (and why this title change is not just a question of phraseology). Second, I discuss the significance of the notion that mental disability law can be cabined in one 2- or 3-credit course (implying that all disability can be surveyed in that period of time, in a way that school faculty would never think all tax or real estate or securities could be so taught), and the significance of the reality that so many schools offer no course or only one course sporadically (often, without any involvement of a full-time faculty member). Third, I examine the Online Mental Disability Law program at New York Law School (where I teach) from four different perspectives: (a) the pedagogy, (b) the range of subject matters taught, (c) the interdisciplinarity of the students and the faculty, and (d) the internationality of the students and intersectionality of our course offerings. Finally, and most importantly, I explain why it is absolutely essential for any disability course (or sequence of courses) to consider the concepts of sanism and pretextuality, the significance of ordinary common sense (OCS) and heuristic reasoning, and the impact of therapeutic jurisprudence.

Jefferson Decker, The Other Rights Revolution: Conservative Lawyers and the Remaking of American Government

Jefferson Decker’s lucid, engaging The Other Rights Revolution examines the origins of conservative public interest organizations in the mid- to late 1970s. Like others who have written about these groups, he begins by tracing their rise as a reaction to the “new liberal state.” Decker does not focus on the conservative reaction to the Warren Court’s constitutional criminal procedure rights revolution; instead, he develops conservative reaction to the increasing authority of the regulatory state and the rise of public litigation by liberal public interest law firms. The reaction begins to coalesce after Lewis F. Powell, Jr., sent a 33-page memorandum to the Chamber of Commerce titled “The Attack on the Free Enterprise System.” Powell claims business “tolerates, if not participates in, its own destruction.” Decker then turns to the 1973 creation of the California-based Pacific Legal Foundation, which used the Powell memorandum for fundraising, and the Mountain States Legal Foundation in Denver. Both intended to defend free enterprise, and to attack the “too-powerful regulatory state.” Chapter 5 discusses the late 1970s effort by conservative lawyers to use public interest law to vindicate their intellectual and ideological vision. Once Ronald Reagan was elected President, many conservative public interest lawyers joined the administration. Decker thoughtfully and fairly looks at the experiences of Secretary of the Interior James Watt, formerly of Mountain States, to discuss the difficulty of transitioning to “governing from the right.”

Transparency and Truth during Custodial Interrogations and Beyond

Transparency and Truth during Custodial Interrogations and Beyond

Cases and Materials on Florida Constitutional Law

This book of CASES AND MATERIALS ON FLORIDA CONSTITUTIONAL LAW is intended for educational use. It differs from other casebooks on this topic in that it approaches the study of state constitutional law from a comparative constitutional law perspective. Part 1 explores the question of how a state constitution can produce its own jurisprudence in light of the supremacy of the United States Constitution. Part 2 outlines the canons of construction for the Florida Constitution. Part 3 introduces the concept that a state constitution can be a source of heightened civil liberties and fundamental rights. Part 4 explores this issue in greater detail by using the Florida Constitution as an example. Part 5 identifies Florida Constitutional rights without an exact parallel to those in the text of the US Constitution and asks whether Florida has taken its own path in interpreting or implementing the identified constitutional rights. Part 6 introduces rights embodied in the text of the Florida Constitution that are not embodied in the text of the US Constitution. In so doing, we compare Florida's approach to those of other state constitutions. Part 7 addresses the familiar refrain that unlike the federal constitution a state's constitution is a restriction upon power not a grant of power. Part 8 looks at state constitutional criminal procedure by examining the ancient origin of the jury and the recent origin of Florida criminal procedure. Part 9 examines the US Supreme Court's acceptance of a state's inherent police power, and state-by-state differences in zoning and nuisance law, so as to better understand how eminent domain and inverse condemnation may differ under state constitutions such as Florida's.

The Hidden Psychology of Constitutional Criminal Procedure

There is vast empirical evidence of the difference in men and women’s perceptions of and responses to police authority, their speech patterns and conduct. Yet these differences are rarely reflected in constitutional criminal procedure law, despite many of its rules hinging on a person’s manner of expression or subtleties of behavior. Similar evidence exists for the systematic impact of juvenile status and intellectual disability, but only modest and ad hoc consideration has been given to these factors. The result is that the “reasonable person” is actually implicitly a white male, adult and able-minded. His speech and conduct are treated as normal, and the different speech and conduct of women, juveniles, and the intellectually disabled is not incorporated into the doctrine. Consequently, those individuals have lowered rights under the law. The solution is simple yet profound: courts should account for apparent and relevant subjective characteristics in their reasonable person and totality of the circumstances analyses. Applied consistently, this solution would not only improve equity, but also would bring clarity to the doctrinal chaos that has resulted from the Supreme Court and lower courts’ erratic consideration of subjectivity throughout constitutional criminal procedure law.

Intellectual Property and the Presumption of Innocence

Abstract Our current methods of imposing criminal convictions on defendants for copyright and trademark infringement are constitutionally defective. Previous works have argued that due process under the Sixth Amendment requires prosecutors to prove every element of a crime beyond a reasonable doubt, including the jurisdictional element. Applying this theory to criminal trademark counterfeiting results in the conclusion that prosecutors should have to demonstrate that an infringing mark needs to have traveled in or affected interstate commerce, which currently is not mandated. Parallel to this construction of the Commerce Clause, criminal prosecutors would also have to prove that Congress has the power to reach individual copyright infringers under the Intellectual Property Clause. This presents little difficulty under the traditional understanding of the clause as prosecutors would need to show only that convicting a defendant serves to secure the rights of authors. Some contemporary scholars have argued, however, that the text of the Intellectual Property Clause must be understood to mean that Congress can only enact copyright legislation if it serves to promote progress. If this notion is correct and is combined with this Article's theory of the Sixth Amendment's requirements, prosecutors would have to prove that individual convictions will serve to promote progress before courts can impose sentences in given cases. Although this requirement could raise costs and potentially reduce the number of cases brought, prosecutors may have little choice but to introduce expert testimony to demonstrate an effect on progress, similar to the use of expert evidence in antitrust litigation and related contexts. TABLE OF CONTENTS INTRODUCTION. I. FEDERAL CRIMINAL LAW FROM THE FOUNDING TO THE MODERN ERA A. The Framers' Views of Federal Criminal Law B. Federal Criminal Law Between the Founding and the New Deal C. Federal Criminal Law After the New Deal D. The Most Recent Pronouncements of the Supreme Court on the Constitutionality of Federal Criminal Sanctions II. THE CASE FOR A CONSTITUTIONAL CHALLENGE TO CRIMINAL SANCTIONS FOR IP INFRINGEMENT A. A Due Process Critique of Federal Criminal Law B. Due Process Implications for Criminal Enforcement Against Trademark Counterfeiting C. Extending the Due Process Critique to Criminal Enforcement Against Copyright Infringement D. The Due Process Inquiry Applied E. Questions About the Due Process Inquiry CONCLUSION INTRODUCTION There is a world of difference between committing a murder and manufacturing knockoff handbags. One would therefore not expect that the case of Montana woman Jordan Linn Graham--who allegedly intentionally pushed her husband off a cliff during an argument just days after their wedding--bears much relation to that of a counterfeiter of materials protected by intellectual property (IP) laws. (1) In spite of the moral and social differences between the two crimes, they are united by common features of constitutional criminal procedure. The ability of prosecutors to have either Graham or a counterfeiter convicted in federal court depends on the existence of a nexus to the constitutional text that establishes Congress's power to legislate. Even though manslaughter is usually a creature of state rather than federal law, prosecutors had no trouble with this aspect of the Graham case because the incident occurred in a national park. (2) Meanwhile, although copyright law and most of current trademark law are properly governed by federal statutes in the civil context, this Article shows that federal criminal prosecutions for IP offenses today are potentially more questionable from a constitutional perspective than the prosecution of Graham's lethal marital dispute. Thus far, most of the debate surrounding the use of criminal sanctions to combat intellectual property infringement has focused on the wisdom of introducing or strengthening them. …

The Constitution and the Future of Criminal Justice in America. Edited by John T. Parry and L. Song Richardson Cambridge: Cambridge University Press, 2013. 348 pp. $36.99 paper.

The and the Future of Criminal Justice in America. Edited by John T. Parry and L. Song Richardson. Cambridge: Cambridge University Press, 2013. 348 pp. $36.99 paper.The and the Future of Criminal Justice in America asks the question, is the future of constitutional criminal law in the United States? (p. 2). In seventeen chapters, the volume provides an array of responses by an outstanding collection of scholars to issues at the intersection of constitutional doctrine and criminal justice. In so doing, the volume's title invites an understanding of a single, unified object of study-the Constitution-directed towards something yet to be realized-the future-in which a governing system-criminal justice-might function in a specific place. But, what we discover in the pages that unfold is not one Constitution but a multiplicity of constitutional doctrines, often in significant internal tension, that are highly dependent on past political and interpretive decisions creating a fragmented, at times inconsistent, system. More than being trapped between past and future, in Hannah Arendt's phrase, we are trapped in a doctrinal present, on which the volume focuses unapologetically (p. 9) in its attempt to shed light on the current state of constitutional law so that we can better understand how we might intervene to shape the future. This is an ambitious volume that rewards careful study.Across a range of constitutional criminal procedure doctrines, the volume addresses familiar stories of constitutional failures with new insights and recommendations. A few examples will be illustrative. Though fundamental to the effective functioning of an adversarial system, as Stephen Bright explains, the right to counsel is in a crisis created by neglect, indifference, underfunding, and excessive workloads. Doctrines related to consent searches belie the underlying social reality, as Janice Nadler makes clear. Racial bias is deeply imbedded in doctrinal implementation of stop and frisk and other policing practices, as L. Song Richardson demonstrates. Fourth Amendment doctrine is focused on physical searches, but Christopher Slobogin argues that this doctrinal paradigm fails to protect against the growing use of technologically-enabled virtual searches. Richard Leo shows how Miranda warnings, and the doctrine on which they are based, fail to protect against use of false confessions. And in light of subsequent Supreme Court opinions undermining its efficacy, Emily Hughes argues that police have conflicting incentives to engage in interrogation practices outside of the Miranda framework. Acquiring additional, and exceptional, powers to combat the threat of terrorism leads to mission amnesia that alters ordinary criminal procedure, as Susan Herman explores, and according to Stephen Vladeck, leads to increased civilianization of military court jurisdiction over nonservice members and with expanded categories of offenses. In each of these varied cases, existing constitutional doctrines fall short, requiring either their reconsideration or new institutional development.At every turn, this volume illustrates how past political and interpretive decisions constitute a present that is described in these essays in roughly one of three overlapping ways: a state of crisis relative to particular consequences; a failure of ht between doctrine and social fact; or a change in institutional practice ungoverned by existing values. If we are to avoid giving too much power to a national security sovereign (p. 310) over criminal law enforcement authority increased by the domestic effects of transnational processes, we must take action through judicial and congressional checks on executive power. …

Waiving the Criminal Justice System: An Empirical and Constitutional Analysis

Constitutional criminal procedural guarantees are becoming increasingly marginalized in a world where "the criminal justice system is the plea bargaining system." Plea agreements are boilerplate, and the 97% of defendants who enter guilty pleas cannot, for the most part, negotiate individual terms, nor run the risk of rejecting the deal and going to trial. As we have transformed from an adversary process where guilt was determined by trial to an administrative process where guilt and penalties are determined by negotiation, the government has begun demanding the waiver of all constitutional criminal procedure rights, not just the trial and investigative-related ones inherent in replacing the trial with the plea. In this essay, we will first describe the growth of two non-trial-related waivers that have not yet been accepted by the Supreme Court - waivers of the due process right to obtain exculpatory evidence as to guilt and punishment, and waivers of the newly-expressed Sixth Amendment right to effective assistance of counsel at the plea negotiation stage. We then offer the results of an empirical project that Professor Susan Klein undertook at the United States Sentencing Commission and a national survey of federal plea agreements conducted by Public Defender Donna Elm. After examining caselaw and practice in the area, we conclude that effective assistance of counsel waivers are unethical, unwise, and perhaps unconstitutional.

Procedural Due Process: The Missing Casebook Chapter

This is a selection of lightly edited cases and brief notes intended to serve as the equivalent of a casebook chapter on procedural due process in a constitutional law or related course. Most of the best constitutional law casebooks pay very little attention to procedural due process. Ordinarily, the topic is consigned to a very short section tacked onto the end of a much more substantial discussion of substantive due process, Lochner, etc. This neglect misses the practical, theoretical, doctrinal, and pedagogical importance of procedural due process. In an attempt to remedy this situation, I am making this supplementary material free of charge to all comers, not only for my own students, but for other faculty as well. For the latter, I encourage you to make use of it in your own courses, or even modify or distribute it, if you would like, in other materials. I only ask that you provide appropriate attribution and drop me an e-mail to let me know how it’s been useful to you. I would also greatly appreciate any feedback. This is an experimental document. It is meant to be suitable for use in any course covering procedural due process, regardless of the casebook or official title of the course (e.g., constitutional law, public benefits law, constitutional criminal procedure, civil procedure). Because I intend the supplement to be useful in a wide variety of courses and with numerous casebooks, I have erred on the side of length; this supplement is not intended to be assigned in its entirety. Current version: 1.1, updated December 1, 2013, with addition of Caperton v. A.T. Massey Coal Co.

A Positive Theory And Empirical Analysis Of Strategic Word Choice In District Court Opinions

Supported by numerous empirical studies on judicial hierarchies and panel effects, Positive Political Theory (PPT) suggests that judges engage in strategic use of opinion content—to further the policy outcomes preferred by the decision-making court. In this study, we employ linguistic theory to study the strategic use of opinion content at a granular level—investigating whether the specific word choices judges make in their opinions is consistent with the competitive institutional story of PPT regarding judicial hierarchies. In particular, we examine the judges’ pragmatic use of the linguistic operations known as “hedging”—language serving to enlarge the truth set for a particular proposition, rendering it less definite and therefore less assailable—and “intensifying”—language restricting the possible truth-value of a proposition and making a statement more susceptible to falsification. Our principal hypothesis is that district court judges not ideologically aligned with the majority of the overseeing circuit judges use more hedging language in their legal reasoning in order to insulate these rulings from reversal. We test the theory empirically by analyzing constitutional criminal procedure, racial and sexual discrimination, and environmental opinions in the federal district courts from 1998 to 2001. Our results demonstrate a statistically significant increase in the use of certain types of language as the ideological distance between a district court judge and the overseeing circuit court judges increases.

The Concept of Harm in Constitutional Criminal Procedure

Harm is a pervasive doctrinal concept in constitutional criminal procedure. The Sixth Amendment protects a criminal defendant’s right to effective assistance of counsel — so long as she can prove that counsel’s deficient performance prejudiced her defense. On direct appeal, a reviewing court must vacate a criminal conviction obtained in violation of constitutional rights — unless the government can prove that the error was harmless. When challenging the constitutionality of a conviction via the writ of habeas corpus, a state prisoner is only permitted to advance claims previously raised in the state court system — unless she can demonstrate good cause for not raising the claim earlier, as well as actual prejudice flowing from the constitutional violation. No constitutional or statutory provision dictates that harm-related constructs ought to play a role in these rules. Nevertheless, courts have grafted such elements deeply into their doctrinal structure. The same pattern recurs in countless other facets of constitutional criminal procedure. Harm is not only pervasive; it is also problematic. Harm is often transplanted into rights and remedies without adequate attention to constitutional text, history and structure. Moreover, the Constitution recognizes and protects against many forms of harm — harm to innocence, to dignity, and to robust civic engagement —, yet judicial approaches to harm tend to flatten out this complexity and focus solely on the accuracy-promoting and innocence-protecting functions of procedural rights. Even once the relevant category of harm has been identified, measuring harm can be exceptionally difficult — sometimes, impossible — in view of the epistemic and institutional limitations of courts. Nevertheless, judges routinely charge into this thicket, fully confident in their ability to discern when constitutionally significant procedural lapses have harmed criminal defendants, without the guidance of general principles or theoretical foundations. This article aims to sketch the general outlines of such a theory. Most of the insights that, taken together, would comprise a sensible theory of harm can be found, in fragmentary form, dispersed in many different doctrinal niches. At the same time, however, other procedural rules reflect a failure to grasp those very same insights. My task, therefore, is threefold: first, to gather together the diverse threads of wisdom reflected in existing law; second, to weave those threads into a unified whole, which I will refer to as a common law of harm; and finally, to demonstrate the potency of this reconstructed common law of harm as a method of critique and reform for constitutional criminal procedure.

Federal Habeas Review of State Prisoner Claims Based on Alleged Violations of Prophylactic Rules of Constitutional Criminal Procedure: Reviving and Extending Stone v. Powell

Prophylactic rules are judge-made rules promulgated by the Supreme Court to help protect underlying Constitutional rights when the Court believes that the right cannot otherwise be adequately protected. It has been said that a rule is prophylactic only when it can be violated without violating the Constitution. Over the course of the last fifty years, prophylactic rules of criminal procedure-and claims based on alleged violations of these rules- have proliferated. At the same time habeas petitions in the federal courts have also proliferated.Numerous commentators have argued in recent years that “federal habeas review of state criminal convictions is desperately in need of reform.” See Eve Brensike Primus, A Structural Vision of Habeas Corpus, 98 Cal. L. Rev 1 (2010). Thirty-two years ago, in Rose v. Mitchell, 443 U.S. 545, 581 (1979), Justices Powell and Rehnquist, in a concurring opinion, said “In expanding the scope of habeas corpus...the Court seems to have lost sight entirely of the historical purpose of the writ. It has come to accept review by federal district courts of state-court judgments in criminal cases as the rule, rather than the exception that it should be.” This statement remains true today even though in Stone v. Powell, 428 U.S. 465 (1976), the Supreme Court suggested a partial, and principled, solution to the problem. In Stone the Court held that a state prisoner who had a full and fair opportunity to litigate a Fourth Amendment claim in state court, at trial and on appeal, may not be granted federal habeas corpus relief on the ground that evidence obtained in violation of the Fourth Amendment was introduced at his trial. This article argues that Stone should be revived and extended. More specifically, this article argues that the Supreme Court should rule that federal habeas courts lack jurisdiction over state prisoner claims based on alleged violations of prophylactic rules because persons in custody as a result of such violations are not “in custody in violation of the Constitution or laws...of the United States.” Alternatively, the Court should limit habeas review of such claims by using the equitable considerations that it noted in Stone and that it has long used to raise and lower procedural barriers to habeas relief.

"Intelligence" Searches and Purpose: A Significant Mismatch Between Constitutional Criminal Procedure and the Law of Intelligence-Gathering

This article challenges the notion that searches primarily designed to obtain evidence for criminal prosecution are constitutional as long as foreign intelligence is a significant purpose of the government action. The Foreign Intelligence Surveillance Act was amended in 2001 as part of the USA-PATRIOT Act to permit electronic surveillance and physical searches under the more permissive standards than generally allowed under the Fourth Amendment. The article concludes that where the fourth amendment is applicable (it is not applicable to searches unconnected to United States persons or territory), searches primarily undertaken to obtain evidence for criminal prosecution must satisfy the traditional criminal investigative requirements, generally probable cause and a warrant. Any lesser standard would require application of the Special Needs exception. Application of the totality of the circumstances test applicable to that exception indicates that there is no justification to apply the exception. The relevant factors, including the secretive nature of FISA investigations, the limited judicial oversight of FISA orders, the expansion of terrorism-related crimes, the highly intrusive nature of FISA searches, and the minimal hardship to the government, all support the conclusion that the foreign intelligence search of FISA need to be carefully limited in order to serve national security needs and to protect the rights of the public.

Rights Translation and Remedial Disequilibration in Constitutional Criminal Procedure

Criminal procedure rights are widely understood both as individual constitutional guarantees and as conduct-regulating norms, enforcement of which guides the behavior of criminal justice actors. This regulatory dynamic of constitutional criminal procedure flows from both criminal and civil litigation, and as a consequence criminal procedure rights are shaped and adjudicated in recursive remedial regimes. Little notice has been paid, however, to the fact that the contours of criminal procedure rights are not consonant across the criminal and civil remedial regimes. Instead, courts in civil actions reshape criminal procedure doctrine in a manner that erects new, conflicting, and often more lenient conduct norms for law enforcement. This Article contends that this reformulation of recursively litigated rights is not accidental but rather flows from the role of remedial context in shaping constitutional doctrine - a role that is brought into complicated relief when adjudication of a right spans remedial realms. Drawing from emerging schools of thought in constitutional implementation scholarship, the Article provides a thick description of the problems of cross-remedial adjudication in criminal procedure, focusing in particular on how unprincipled or incoherent approaches undermine the regulatory force of constitutional criminal procedure. The Article then proposes and applies a framework of 'rights translation' to ameliorate these deficiencies. While rights translation in criminal procedure involves certain unique remedial and systemic dynamics, the model of adjudication developed in the Article promises to illuminate other cross-remedial arenas of constitutional adjudication.