N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Tag: Criminal Law and Procedure Page 1 of 3

Why the Original Meaning of the Confrontation Clause Governs the Admissibility of Video Testimony at Criminal Trials

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On April 20, 2023

In Contributions

by Daniel Cook*

The Sixth Amendment’s Confrontation Clause calls into question an increasingly common practice during the COVID-19 pandemic: testimony by two-way video teleconferencing at criminal trials. Proponents of video testimony argue that it is consistent with Maryland v. Craig, which held that the Confrontation Clause might be satisfied absent a physical confrontation as long as the denial of confrontation is necessary for trial and the testimony’s reliability is otherwise assured. Opponents of video testimony rely on Crawford v. Washington, which was decided two decades after Craig and held that the Sixth Amendment’s original meaning categorically mandates confrontation, at least with respect to testimonial hearsay. Importantly, Crawford held that judicial determinations of reliability are an insufficient basis for departing from the original meaning of the Confrontation Clause. Although Crawford did not directly address video testimony, some courts and commentators believe that Crawford supplanted Craig with a categorical rule requiring face-to-face confrontation, which video testimony may violate. This Contribution argues that Crawford embodied a sea change in Confrontation Clause jurisprudence, such that Craig no longer governs the admissibility of video testimony at criminal trials.

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The Constitutionality of Policing Technology: Evaluating Network Investigative Techniques Under Fourth Amendment Search Doctrine

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On November 15, 2022

In Contributions

by Madison Gonzalez*

Courts review the constitutionality of digital surveillance technologies in criminal investigations under Fourth Amendment search doctrine. In order to constitute a search, a law enforcement practice must either violate an individual’s reasonable expectation of privacy or constitute a physical trespass on private property. In this Contribution, Madison Gonzalez (’23) argues that the use of a Network Investigative Technique (“NIT”) to collect an Internet Protocol (“IP”) address directly from an individual’s computer is a Fourth Amendment search under either test.

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Falsifying a Social Security Number Is Not Morally Turpitudinous

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On October 6, 2022

In Contributions

by Claire Lisker*

A conviction for a “crime involving moral turpitude” renders an undocumented immigrant ineligible for cancellation of removal, a discretionary form of relief that the Attorney General may grant to individuals who have remained in the United States for ten or more years. This Contribution argues that falsifying a Social Security number, as criminalized under 42 U.S.C. § 408(a)(7)(B), is not a crime involving moral turpitude.

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Gatekeeping or Gaslighting? How Courts Mislead Juries by Excluding Expert Testimony on the Accuracy of Eyewitness Identifications

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On September 22, 2022

In Contributions

by Zoe Farkas*

Historically, eyewitness identifications have been considered the gold standard of trial evidence. There’s little that’s more convincing than a witness on the stand confidently pointing at a defendant and proclaiming, under oath, “that’s the one!” However, over the last half century it has become clear that eyewitness identification may actually be one of the most fallible evidentiary tools, despite common misconceptions of its accuracy. Even in the face of growing research demonstrating the unreliability of eyewitness identification, courts have been slow to allow experts to testify to that unreliability in the courtroom. Judges instead bar them as unqualified or unhelpful under Federal Rule of Evidence 702. This Contribution argues that these experts are not only qualified and helpful, but absolutely essential to help juries fulfill their fact-finder duties.

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Forcing a “Low-Tech Peg” into a “Cutting-Edge Hole”: Why Applying the Pre-Digital Age Foregone Conclusion Exception to Smartphones Would Impermissibly Narrow the Fifth Amendment

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On June 6, 2022

In Contributions

by Heather Globerman*

The majority of courts are in agreement that the implied admissions from a person being forced to produce a cellphone passcode—that the evidence sought exists and is authentic, and that the phone’s owner possessed that evidence—are testimonial and therefore protected by the Fifth Amendment privilege against self-incrimination. But can the government force this production regardless by arguing for the application of the foregone conclusion exception to the privilege, a doctrine that the Supreme Court has never applied outside of an analogue business or tax context? In this Contribution, Heather Globerman (‘22) argues that both Supreme Court precedent and practical considerations forestall the extreme narrowing of the Fifth Amendment that would follow such an application of the foregone conclusion exception to a modern, personal, and digital context.

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The Prison Mailbox Rule and Represented Appellants

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On May 31, 2022

In Contributions

by Rose Kent*

The prison mailbox rule, as codified in Federal Rule of Appellate Procedure 4(c), states that an incarcerated litigant’s notice of appeal is considered timely filed if it is deposited in the prison’s internal mailing system on or before the filing deadline. The Supreme Court introduced this rule in the context of a pro se prisoner, and it remains unclear whether represented prisoners may also benefit from the rule. In this Contribution, Rose Kent (’22) argues that Rule 4(c) applies to all incarcerated people, regardless of whether they are represented by counsel.

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The Fourth Amendment in the Digital Era: Applying the Private Search Doctrine to Flash Drives and Other Electronic Media Storage Devices

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On March 28, 2022

In Contributions

by William G. Walant*

There is currently a circuit court split as to how the private search doctrine, a judicially-created framework under the Fourth Amendment, applies in the context of electronic media storage devices, such as flash drives—either via a “narrow approach” or a “broad approach.” Without further guidance from the Supreme Court, police officers in some jurisdictions are effectively given authority to end-run around the Fourth Amendment. In this Contribution, William Walant (‘22) argues that the Supreme Court should adopt the “narrow approach,” which focuses on the unique nature of digital media devices. This focus is embraced in Riley v. California and is consistent with the private search doctrine’s underlying principles. However, unlike as has been suggested by some recent scholarship, the private search doctrine need not be altered to fit electronic media storage devices, and the narrow approach does not create insurmountable and undesirable consequences. Instead, by adopting a narrow approach, the private search doctrine can be preserved while reaching a positive outcome for society: an officer, absent exigent circumstances or other exceptions, will be incentivized to obtain a warrant to examine the contents of an electronic device handed over by a private party.

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Dismantling Crimmigration: Why No One Should Be Deported for a “Crime Involving Moral Turpitude”

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On March 29, 2021

In Contributions

by Kameron Johnston*

Crimmigration is the intersection of immigration law and criminal law. At this intersection, officials are widening the net of deportable offenses at an alarming rate to make immigrants more susceptible to removal. The “crime involving moral turpitude” provision of the Immigration and Nationality Act has been one means by which officials have arbitrarily expanded the reasons why a person may be deported out of the United States. But is the moral turpitude provision in 8 U.S.C. § 1227(a)(2)(A)(i) of the Immigration and Nationality Act—used to justify deporting “criminal aliens,” including lawful permanent residents—void for vagueness pursuant to the Fifth Amendment? In this Contribution, Kameron Johnston (’21) argues that the recent Supreme Court decisions Johnson v. United States and Sessions v. Dimaya require that the exacting vagueness test used in criminal contexts be applied to immigration law as well. Finally, this Contribution demonstrates that the moral turpitude provision has provoked unpredictability and judicial confusion that simply cannot be reconciled with the fair notice and enforcement standards that due process demands.

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Fear of Needles or Guilty Conscience? The Fourth Amendment and the Use of BAC Test Refusal Evidence in DUI Prosecutions

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On March 2, 2021

In Contributions

by Max Baumbach*

When a motorist is arrested on suspicion of intoxicated driving, the government cannot compel him to submit to a blood draw without a warrant or warrant exception, nor can it make his refusal to submit to a blood draw a crime. But can the government use the refusal as evidence of guilt in a subsequent DUI prosecution on the basis of an implied consent statute? In this Contribution, Max Baumbach (’21) argues that the Fourth Amendment prohibits the use of blood test refusal evidence in a DUI prosecution where the test itself would have been unlawful to conduct in the first instance.

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Does the Supreme Court’s Decision in Carpenter v. United States Implicate the Government’s Use of Pole Cameras?

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On February 8, 2021

In Contributions

by Jack Derewicz*

Does the Supreme Court’s decision in Carpenter v. United States constrain the government’s warrantless use of pole cameras to surveil people it suspects are engaging in criminal activity? In this contribution, Jack Derewicz (’21) argues that the Carpenter opinion does not implicate this particular investigatory technique because pole cameras do not retroactively collect the type of information that, when aggregated, present the government with information it could not have otherwise obtained.

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