Criminal Procedure
The Reverse-Batson: Wrestling with the Habeas Remedy
119 Yale L.J. 1739 (2010).
Discovery Audits: Model Rule 3.8(d) and the Prosecutor's Duty To Disclose
119 Yale L.J. 1339 (2010).
Fourth Amendment Seizures of Computer Data
119 Yale L.J. 700 (2010). What does it mean to “seize” computer data for Fourth Amendment purposes? Does copying data amount to a seizure, and if so, when? This Article argues that copying data “seizes” it under the Fourth Amendment when copying occurs without human observation and interrupts the stream of possession or transmission. It offers this position by reaching back to the general purposes of regulating seizures in Fourth Amendment law and then applying those functions to the new environment of computers. The test prevents the government from copying data without regulation and yet also meets and answers the objections that have puzzled scholars and made it difficult to apply the old definition of seizures in the new computer environment.
Our Imperial Criminal Procedure: Problems in the Extraterritorial Application of U.S. Constitutional Law
118 Yale L.J. 1660 (2009). From the early days of the Republic, courts have encountered the question of whether and to what extent provisions of the Constitution establishing individual rights have force beyond the borders of the United States—that is, whether the Constitution has “extraterritorial” force. Despite nearly two centuries of decisions on this issue, the law remains unsettled, and no framework for analyzing these claims is clearly defined, much less well established. This Essay draws on that body of decisions to develop an approach for evaluating whether a particular constitutional provision should have overseas application in a particular case. In so doing, it considers competing theories of the Constitution—one envisioning the document as a “compact” between the government and the governed, and the other construing it as a charter from which “organically” flow both the power of the government and the limitations of that power—and how these competing theories shape views on whether constitutional provisions should have force abroad. The question of extraterritorial applicability has arisen in numerous contexts in our history, including continental expansion, colonial administration, and conventional war. In modern times, however, we see it raised most often in the context of criminal prosecutions and antiterror operations. Because the focus of this Essay is on contemporary criminal prosecutions, it examines the basis in international law for a nation to prosecute individuals residing beyond its borders. It then discusses the body of law addressing the question of extraterritorial application and, avoiding a rigid, dogmatic theory, gleans from these decisions a set of considerations that can guide future decisionmaking in this complex area of law.
The Example of America
Owen M. Fiss, Sterling Professor of Law at Yale Law School, tackled legal issues involved in the war on terror on March 5, 2009 at the 13th Annual John W. Hager Distinguished Lecture at The University of Tulsa College of Law. The Pocket Part is pleased to present an adapted version of Professor Fiss's lecture, The Example of America. For an audio version of this piece read by the author please access the podcast here. On May 12, 2009, Professor Fiss published an article based on this piece in The Huffington Post, which can be accessed here.
John Doe Subpoenas: Toward a Consistent Legal Standard
118 Yale L.J. 320 (2008). This Note considers the rising trend of anonymous online harassment and the use of John Doe subpoenas to unmask anonymous speakers. Although anonymity often serves as an important shield for valuable speech, it also protects online harassment that can chill or completely silence the speech of its targets. This Note argues that the public figure doctrine should be adapted to John Doe subpoenas to distinguish between online harassment and more valued anonymous speech. It then divides John Doe subpoena standards into six constituent factors, evaluates each one, and proposes a final standard that consistently balances the needs of plaintiffs and defendants and helps judges to distinguish online harassment from other forms of anonymous speech.
The Sentence Imposed Versus the Statutory Maximum: Repairing the Armed Career Criminal Act
118 Yale L.J. 369 (2008).
Comparative Corporate Criminal Liability: Exploring the Uniquely American Doctrine Through Comparative Criminal Procedure
118 Yale L.J. 126 (2008). In the United States, corporations—as entities—can be criminally tried and convicted for crimes committed by individual directors, managers, and even low-level employees. From a comparative perspective, such corporate liability marks the United States as relatively unique. Few other Western countries impose entity liability, and those that do impose such liability comparatively infrequently and under the threat of far less serious punishment. The question of why the United States—and the United States virtually alone—imposes corporate criminal liability has been the subject of limited scholarly attention. This Note seeks to fill that void through the prism of comparative law. Using Germany—a country that imposes no corporate criminal liability—as a foil, this Note argues that the American doctrine can best be explained not through criminal theory but rather through criminal procedure. American criminal procedure imposes unique difficulties on American investigators and prosecutors seeking to root out individual white-collar criminals. But it also imparts powers to those prosecutors that are unknown to their German counterparts. Among them is the power to threaten criminal indictment, one that allows prosecutors to force American corporations to cooperate, to waive the attorney-client privilege, and to cut ties to individual employees under investigation, thereby facilitating the prosecution of those individual defendants. Using differences in criminal procedure rather than criminal theory to explain the uniquely American doctrine, this Note concludes by suggesting how the criminal procedure approach can best be used to understand—and potentially to reform—an American system that critics increasingly decry as broken.
Discovering Arrest Warrants: Intervening Police Conduct and Foreseeability
118 Yale L.J. 177 (2008).
Undermining Excessive Privacy for Police: Citizen Tape Recording To Check Police Officers' Power
117 Yale L.J. 1549 (2008).
Federal Sentencing in 2007: The Center Holds—The Supreme Court Doesn't
117 Yale L.J. 1374 (2008). This essay takes stock of federal sentencing after 2007, the year of the periphery. On Capitol Hill, Attorney General Alberto Gonzales resigned in the face of widespread criticism over his role in the replacement of several U.S. Attorneys. In the Supreme Court, the trio of Rita v. United States, Gall v. United States, and Kimbrough v. United States clarified and perhaps extended the breadth of license given to district judges in an advisory guideline regime. In contrast to the Supreme Court’s sentencing cases, which focus on the allocation of authority between judges and juries, and the bulk of the sentencing literature, which pits prosecutors against judges, the institutional pairing highlighted here is Main Justice versus the districts, with Department of Justice (DOJ) sentencing policies since 2001 considered in the larger context of DOJ efforts to exercise power over U.S. Attorneys’ offices. What has often been framed as “judicial discretion” might better be seen as a coordinated exercise in local norm setting—an exercise in which line prosecutors, through charging power and shared control over investments in information gathering (in tandem with agencies) inevitably play a critical role. The extent to which prosecutors will be allowed to explicitly embrace the power they tacitly exercise already, and whether an illusory regime of sentencing uniformity will give way to a real one of collaborative norm articulation and development, remains to be seen. But the suggestion here is that the new sentencing cases may point the way to a healthier federal criminal justice system.
The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion
117 Yale L.J. 1420 (2008). Early scholarship on the Federal Sentencing Guidelines focused on the transfer of sentencing authority from judges to the Sentencing Commission; later studies examined the transfer of discretion from judges to prosecutors. Of equal significance are two other institutional competitions for power: one between local federal prosecutors and officials in the Department of Justice in Washington (“Main Justice”), and the other between Congress and the Supreme Court. Congress’s enactment of the Feeney Amendment in 2003, in reaction to sentencing data and decisions appearing to reveal that sentencing judges were willfully ignoring the Guidelines, represented a direct challenge to every level of the federal judiciary, to the Sentencing Commission, and to front-line federal prosecutors. By design, this legislation simultaneously empowered Main Justice, which was Congress’s partner in the endeavor to achieve nationwide “compliance” with the Sentencing Guidelines. In its 2005 decision in United States v. Booker, the Supreme Court undid the Feeney Amendment, introduced the opportunity for judges openly to exercise judgment independent of the Guidelines, constrained the leverage that inheres in prosecutors in a mandatory sentencing regime, and counteracted the centralizing impulse of Main Justice. The Court’s recent decisions elaborating Booker confirm that, once again, sentencing is to a significant extent a “local” event. The Sentencing Commission and Main Justice may still be calling signals but the decision makers on the playing field—judges and prosecutors—need not follow them. The pendulum of sentencing practice may increasingly swing back toward the exercise of informed discretion as newly appointed local decision makers are able to see beyond the narrow and arbitrary “frame” of the Federal Sentencing Guidelines.
The Case Against Automatic Reversal of Structural Errors
117 Yale L.J. 1180 (2008). This Note describes the case law governing three structural errors and shows that the rule of automatic reversal has led appellate courts to narrow the scope of the rights at issue. To avoid this effect, the Note proposes a new framework for determining whether a given type of error is “structural” and thus requires automatic reversal. The rule of automatic reversal should apply only to types of error that never contribute to a verdict.
Re-Justifying the Fair Cross Section Requirement: Equal Representation and Enfranchisement in the American Criminal Jury
116 Yale L.J. 1568 (2007) This Note proposes a new justification for the fair cross section (FCS) requirement governing criminal jury composition. While the Supreme Court has defended the requirement by invoking demographic conceptions of the jury’s legitimacy, many scholars have observed that this approach is at odds with contemporary jury law and practice. This Note argues that courts should instead defend the FCS requirement as a means of ensuring that eligible participants are included in the jury franchise. Besides solving an intractable doctrinal puzzle, an enfranchisement-based approach draws attention to ways in which widespread juror selection practices exclude underrepresented groups and thereby undermine the jury’s democratic character.
Right and Responsibility in Fourth Amendment Jurisprudence: The Problem with Pretext
Since Whren v. United States, Fourth Amendment analysis has failed to appreciate the serious wrongfulness of pretextual police behavior—especially searches and seizures. This is not because a pretext test is impractical or philosophically unsound. Rather, the problem lies in the current focus of our Fourth Amendment analysis, which puts undue emphasis on the individual’s “right to privacy” and insufficient emphasis on responsible police behavior. The state’s investigatory power is held in trust by the police for the people. If we refocus our attention on the idea that the police power must be deployed in a responsible manner in keeping with that trust, we can see clearly what is problematic about pretext. Read Eric Citron's Pocket Part Commentary adapted from this Note. Read Professor Margaret Raymond's Response, On Rights and Responsibilities: A Response to The Problem with Pretext. Read Judge James Robertson's Response, How Whren Protects Pretext.