N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Tag: Criminal Law and Procedure Page 1 of 3

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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Seizures Conducted Absent Physical Force: Momentary Compliance Versus Submission

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On October 5, 2020

In Contributions

by Dean S. Ache­son*

This Con­tri­bu­tion exam­ines whether police have effec­tu­at­ed a Fourth Amend­ment seizure by show of author­i­ty when an indi­vid­ual flees from a momen­tary encounter. Dean S. Ache­son (’21) argues that, under Fourth Amend­ment prece­dent, pre-flight com­pli­ance does not con­sti­tute sub­mis­sion to a show of author­i­ty in a police inter­ac­tion that con­sists of answer­ing brief ques­tions and engag­ing in eva­sive behavior.

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