Granted, some limits — such as date restrictions — are easy to apply. But consider the 11th Circuit’s suggestion that “the warrants could have limited the request to messages sent to or from persons suspected at that time of being prostitutes or customers.” How is Facebook supposed to know which messages are from people suspected of being prostitutes or customers? Is the warrant supposed to give Facebook a list of specific suspected prostitutes and customers, such that only messages to and from them (from Facebook accounts known in advance, I gather) can be legally turned over to the government? If so, that seems problematic to me. The point of a warrant is to discover evidence in the place to be searched. I don’t see why relevant evidence involving then-unknown suspects or customers should be off-limits.
Wednesday, August 23, 2017
Whether an author realizes it or not, it is impossible to create an interesting, albeit fictional, depiction of the criminal justice system without having something to say about its real-world counterpart.
Tuesday, August 22, 2017
From The Guardian, via the NACDL news scan:
In May, Sessions reversed his predecessor’s initiative, claiming, without evidence, that Holder’s sentencing changes had led to America’s sudden 10.8% increase in murders in 2015.
. . .
The change in direction in the US has come at a time when America has been also seeing an increasing number of states liberalizing laws on the consumption and sale of marijuana. Into this evolving international and national context has stepped Sessions, with a very different approach.
Orin Kerr has this post at The Volokh Conspiracy. In part:
The U.S. Court of Appeals for the D.C. Circuit handed down an important computer search case Friday, United States v. Griffith. The case is about computer search warrants, and specifically whether they can authorize a seizure of all devices that investigators discover that might contain the evidence sought. The frustrating part of the opinion is that there are a few different ways to interpret it, and I’m not sure which way is right. I thought I would explain why the case is important, why I’m not sure how to interpret it, and how it is in tension with other decisions.
The sub-judice principle prohibits the media from publishing information that may alter the course and results of the trial. Its purpose is to ensure the defendants right not to have an unfair trial, due to a bias opinion of the judge in charge of the case.
There has been almost no attention paid to its potential impact on a critical intersection between the criminal trial process and inquiries into mental or psychological status: a defendant’s trial competency. Less than a handful of reported cases consider this question, and it is “under the radar” for most relevant scholarship as well, notwithstanding that (1) this inquiry is, numerically, the most important “disability law” question relevant to criminal law, (2) the costs of these hearings are staggering, and (3) the incompetency status in no way admits or presumes factual guilt. It is imperative that the ways in which neuroimaging may influence competency determination be studied and understood.
Monday, August 21, 2017
From the Associated Press, via the NACDL news scan:
Some of that science — analysis of bite marks, latent fingerprints, firearms identification, burn patterns in arson investigations, footwear patterns and tire treads — was once considered sound, but is now being denounced by some lawyers and scientists who say it has not been studied enough to prove its reliability and in some cases has led to wrongful convictions.
Even so, judges nationwide continue to admit such evidence regularly.
By considering the role of revenge and psychological satisfaction in human disputes, this essay explores the benefits to human persons that could accrue through the corporeal punishment of robots. Along the way, the paper discusses dueling, deodands, free will, rogue gardeners, shooting down drones, and destroying printers with baseball bats.
Probable Cause to Believe What? Partial Marijuana Legalization and the Role of State Law in Federal Constitutional Doctrine
I've posted a draft of the my above-titled article (forthcoming, Criminal Law Bulletin) on SSRN. Here's the abstract:
When simple possession of marijuana was invariably illegal under state law, a dog alert or a police officer’s own perception of the scent of raw or burnt marijuana sufficed to permit a search for the source of the scent. As states went beyond decriminalization to legalize possession, for medical or recreational use, the smell of marijuana became less probative on the question of whether the state’s laws were being violated. But even in legalization states, courts have upheld an officer’s right to search a car upon detecting the scent of marijuana. The courts’ explanations have been analytically troubling. Analyzing the problem is complicated by more general phenomena: the Supreme Court’s reluctance to specify in greater detail the nature of the probable cause requirement, and the Court’s differing approaches to the significance of state law in federal constitutional doctrine.
I still have time to make changes feel free to email comments to me.
Sunday, August 20, 2017
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Saturday, August 19, 2017
Brooklyn Law School
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Vanderbilt University - Law School & Dept. of Biological Sciences and University of Minnesota Law School
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York University, Osgoode Hall Law School, Students
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University of North Carolina (UNC) at Chapel Hill - School of Law
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University of Virginia School of Law and U.S. Department of Justice - Computer Crime & Intellectual Property Section, Criminal Division
Date Posted: 04 Aug 2017 [new to top ten]
Friday, August 18, 2017