Welcome to ACLR Online! While our blog program, Mens Rea, has been a great success, the ACLR has chosen to expand our online content beyond our student contributors. ACLR Online will host legal scholars and practitioners in addition to student work. You will also find our online content available through Westlaw.
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In today’s pop-culture climate, there is no shortage of shows depicting the American criminal justice system. In the 2015–2016 season, thirteen of the top fifty shows on broadcast network television (based on viewership) were crime dramas or police procedurals. 1 Thirteen new network shows of the 2016–2017 season have some kind of criminal justice element.2 Law and Order: Special Victims Unit is currently the longest-running scripted, non-animated U.S. primetime series, followed closely by NCIS, another procedural.3 The public’s fascination with the criminal justice system is thus reflected in these media sensations.
Many Americans get their knowledge of the criminal justice system from these television programs, rather than personal experience.4 Given the overwhelming popularity of the genre, this piece explores the potential effects these programs have on the criminal justice system. Evidence suggests that crime media affects the general public’s perception of crime, and commentators have spoken extensively on the effect that crime dramas supposedly have on jury members. Although it is not clear whether these programs have any significant effects on the outcome of trials, evidence suggests that any such effects are more closely correlated to influences on attorneys, rather than influences on jury members.
On Wednesday, October 5th, the Supreme Court heard oral arguments in Salman v. United States, an insider trading case involving an investment banker who provided his brother with information about pending confidential business transactions. The brother, in turn, shared the information with his brother-in-law, defendant Bassam Salman. The case is about when a “remote tippee”—a person who is steps removed from an insider source and trades on inside information—can be held criminally liable for trading on the information. The Ninth Circuit held that because the tippee had a “close familial relationship” with the inside source, he could be held criminally liable. This stands in contrast with the Second Circuit’s 2014 holding in United States v. Newman that the exchange of information must pose potential pecuniary gain for the insider who made the first disclosure, in order for a remote tippee to be found criminally liable. On its face, Salman is a vehicle for the Court to resolve the circuit split on this narrow issue. However, oral arguments indicated that the Court may also use Salman as an opportunity to examine and speak on the fundamental purposes of insider trading law. This article is part of a two-part series about Salman. This piece presents Salman’s background and prior insider trading cases to shed light on the precedential ambiguities the Court confronted during oral arguments. It further discusses the flaws in both Salman’s and the government’s arguments and potential repercussions of the Supreme Court adopting either of the dueling standards. The second piece in this series will explore scholars’ proposals seeking to resolve the present difficulty of determining tippee liability by focusing on whether the confidential information was misappropriated.
The brain plays an integral role in criminal law, whether it comes to determining what a defendant was thinking at the time of a crime or what behavior a convict is predisposed to commit in the future. Neuroscience provides a potential avenue to better understand these mental aspects of criminal trials. As the scientific field continues to grow and change, courts should be careful about the way in which they use neuroscience evidence and what weight such evidence is given.
Since the Snowden revelations, law enforcement agencies’ broad technological surveillance tactics have come under greater public scrutiny. One such surveillance technique is the StingRay, which is a device used to gather information. Unlike other devices, the StingRay can collect serial numbers and locations from surrounding cell phones without the phone owners’ knowledge. StingRays are substantially different than previous phone-tracking technology, as they are not only capable of revealing phones’ location, but they also record phone numbers and the content of voice and text communication. Law enforcement agencies go to great lengths to keep StingRays mired in obscurity and maintain their secrecy. As these devices are challenged in courts, their use implicates numerous, unaddressed concerns under the Fourth Amendment.
Recently, the Supreme Court of Kansas overturned a conviction based on police officers’ failure to honor the defendant’s assertion of his right to remain silent. The court held that the defendant’s statement, “This—I guess where, I, I’m going to take my rights . . . ” was an invocation of the right to remain silent, regardless of the wavering words “I guess” and the defendant’s follow-on assertion that he wanted to continue helping the police. The defendant’s ambiguous invocation could have resulted from the failure of the Miranda warning he received to specify how to assert his rights. To reduce instances of ambiguous invocation, the Supreme Court should revise Miranda warnings to specify words sufficient to invoke Fifth Amendment Miranda rights.
Immigration law finds its roots early in the creation of the United States. The Constitution gives Congress the power to enact laws governing the naturalization of non-citizens, underscoring the importance of both immigration and citizenship to this country. The subsequent Naturalization Act of 1790 laid down the first requirements for obtaining citizenship and helped set the precedent that immigration status, particularly citizenship, was a benefit to be given at the discretion of the government. Throughout the history of the United States, immigration law has developed into a complex area of civil law, reflecting the view that immigration law is a type of public benefit law. Immigrants who come to the United States are allowed to do so out of the good will of our lawmakers and our citizens. Thus, the taking away of immigration status should not be looked at as a punishment, but rather as a remedy for violating the laws of American society. This notion has been well established in immigration law since the Supreme Court’s decision in Fong Yue Ting v. United States, in which the Court held that, because deportation was not a punishment for a crime, constitutional due process protections were not implicated in removal proceedings.
New Hampshire is poised to be the first state in the country to pass legislation requiring judges to inform juries of their right to “nullify.” Jury nullification has existed since the nation’s founding and allows juries to acquit defendants in cases where conviction would proper under the law but would result in an unjust verdict. The Supreme Court, however, has held that judges are not required to tell juries of their right to nullify, and some states have even allowed arresting individuals who inform juries of their right to nullify. New Hampshire’s move towards requiring judicial instructions about jury nullification is thus exciting and daunting all at the same time—it is an opportunity to see what could happen if juries really know about nullification.
Police departments commonly use drug dogs to detect the presence of illegal narcotics. In a recent case, United States v. Beene, the Fifth Circuit held that the use of a dog to find narcotics within a car parked in the defendant’s driveway was not a search. The Fifth Circuit erred in its reasoning. The scenario in Beene constituted a search, and the Supreme Court should evaluate the Fifth Circuit’s decision.
Fred Robinson was placed on probation for eleven months and twenty-nine days after he was unable to pay a $2500 fine for misdemeanor marijuana charges.1 The court in Rutherford County, Tennessee placed his case under the care of a private probation service— a for-profit company managing Mr. Robinson’s probation. Over four years later, Mr. Robinson is still paying back his debt.2 He has been unable to pay off the fine and the additional fees and penalties that the private probation companies have levied against him. Moreover, Mr. Robinson suffers from health conditions that make him dependent on a disability public benefits.3 The only violations he committed during his probation were failures to pay these fines, which can lead to jail time.4 As such, Mr. Robinson, like so many other indigent probationers, is trapped in a system that ultimately extracts far more than just the initial court-imposed fine and can eventually lead back to incarceration. These private probation practices have come under scrutiny in recent years. Though due process challenges have largely failed, recent cases comparing private probation to unconstitutional debtors’ prisons and bills in state and federal legislatures suggest solutions to ending private probation.
While there is some contention amongst different advocacy groups over whether the Supreme Court’s decision in Miller is a step in the right direction, most experts agree that juveniles have the capacity to change, and the Court’s decision in Montgomery is only one in a long line of recent cases that have reformed the ways in which the Eighth Amendment provides additional protections to juveniles convicted of crimes.
The Hobbs Act was adopted in 1946 to combat what was, at the time, most frequently referred to as “extortion,” “paying of tribute,” or, more colorfully, “highway robbery.” Though the Hobbs Act may have been designed to affect only those “robberies” occurring on the highway, its reach has since grown much larger. In United States v. Culbert, the Supreme Court held that the Hobbs Act was not limited to acts of racketeering but included robbery and extortion traditionally addressed through state laws.
In Commonwealth v. Doleras, the Supreme Judicial Court of Massachusetts upheld a warranted search of a defendant’s iPhone photo library and found that the warrant affidavit showed probable cause to justify searching the entire phone. The court, in validating the search warrant, set a narrow scope for Massachusetts’ Fourth Amendment protections against unreasonable searches of smartphones. The court’s decision also highlights the challenge U.S. courts face in defining the bounds of the Fourth Amendment right against unreasonable search and seizure as applied to increasingly sophisticated technology.