Criminal Law and Procedure – Page 3

by Savannah Ashby*

Should the Fourth Amendment exclusionary rule apply when an officer acts in good faith in the execution of a warrant based on tainted evidence? In this Contribution, Savannah Ashby (’18) discusses the differing ways in which Courts of Appeals have applied the good faith exception to the exclusionary rule in situations where the warrant is based on tainted evidence. Ultimately, this Contribution argues that the good faith exception to the exclusionary rule should not apply to evidence obtained in execution of a warrant based on tainted evidence as it more consistent with the goal of the exclusionary rule: deterring officers from committing Fourth Amendment violations.

The Element in the Room: Requiring Probable Cause of Every Element of a Crime

By Ryan Knox

On December 6, 2017

In Contributions

by Kimberly La Fronz*

When conducting a warrantless search or seizure, must a police officer have probable cause for all elements of the crime, including mens rea? In this Contribution, Kimberly La Fronz (’18) discusses what the circuits include in their totality of the circumstances analysis to determine probable cause. This Contribution argues that in order to effect a warrantless arrest a police officer must have probable cause with respect to every element of the crime in order to effect a warrantless arrest and must not ignore exonerating evidence in their totality of the circumstances analysis.

The Importance of Privacy in Shared Spaces

By Andrew Debbins

On November 3, 2017

In Contributions

by Rachel Lerner*

Does the Fourth Amendment protect a tenant’s privacy in a shared storage unit? Can law enforcement search the whole space if her cotenant consents? In this Contribution, Rachel Lerner (’18) analyzes whether a tenant has a reasonable expectation of privacy in the space and whether it is reasonable for police to search the space upon a third-party’s consent. The Contribution argues that the Fourth Amendment protects a shared storage unit either as curtilage under Dunn or under the Katz test, and law enforcement cannot reasonably search a well-demarcated section of the unit if another cotenant consents.

Search, Seizure, and the Smartphone: Rethinking Privacy Protections in the Digital Age

By Michael Klurfeld

On April 19, 2017

In Contributions

by Christopher J. Rydberg*

In the digital age, how should privacy concerns constrain police investigations? In this Contribution, Christopher J. Rydberg considers this problem with respect to forcing suspects to unlock smartphones and specificity requirements with respect to smartphone search warrants. Ultimately, the Contribution argues that smartphones are different in kind because of the massive scope of data they contain, and thus historical doctrines of police process will have to change to accommodate the smartphone era.

The New Panopticon: Location Tracking and the Fourth Amendment

By Harry Grabow

On November 11, 2016

In Contributions

by Hogan Paschal*

Does warrantless, prolonged location tracking violate the Fourth Amendment’s protections against unreasonable searches? Hogan Paschal (’17) examines this question, based on her experience at the 2016 Spong Moot Court Tournament, hosted by William & Mary Law School on February 12-13th, 2016. The location tracking tools employed by Government investigators have become more sophisticated and widespread, often eroding the practical constraints that government resources previously imposed on search power. This Contribution posits a more holistic reading of the Fourth Amendment, that simultaneously acknowledges its historical context and modern investigative challenges. Ultimately, it argues that courts should restore Fourth Amendment safeguards by requiring a warrant as a precursor to the government’s use of prolonged location tracking.

Hacking from the Inside-Out: Can the CFAA Impose Liability on Employees who Misuse Employer Data?

By MCB Staff Editor

On April 13, 2016

In Contributions

by Susanna Griffith*

Can an employee who has accessed computer database information in violation of use restrictions and direct instructions from his employer be convicted under the Computer Fraud and Abuse Act for accessing data “without authorization” or “exceed[ing] authorized access”? Susanna Griffith (’17) reflects on this question, based on her experience at the 2016 Spong Moot Court Tournament, hosted by William & Mary Law School. Her Contribution discusses the legal landscape and circuit split regarding the applicability of the statute to employees who have violated use restrictions and directives from employers. The Contribution argues that the narrow, code-based view is preferable as the clearly constitutional reading that also comports with standards of excellence in the field of cyber-security.

Rejecting the Split Personality Prosecutor

By MCB Staff Editor

On April 4, 2016

In Contributions

by Rahul Hari*

Can the exculpatory testimony of a witness before a grand jury be entered against the government under the “Former Testimony” exception to the ban on hearsay? Rahul Hari (’16) examines this question, presented at the 2015 National Moot Court Competition. For exculpatory testimony provided by a witness before the grand jury to be admissible at a subsequent trial in which the same witness is no longer available to testify, the proponent of that evidence must show that the prosecutor had a similar motive in developing that witness’s testimony at the grand jury stage as she would have had if the witness were now available to testify at trial. This Contribution argues that the broad interpretation of “similar motive,” as employed by a majority of the Circuit Courts of Appeals, adheres to the text of the Federal Rules of Evidence, more accurately captures the multiple motives a prosecutor might have in questioning a witness, and protects against prosecutorial abuse.

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Exploring New Approaches to Unsettled Legal Questions

Tag: Criminal Law and Procedure

Don’t Depart From Deterrence: The Exclusionary Rule And Warrants Based On Tainted Evidence

The Element in the Room: Requiring Probable Cause of Every Element of a Crime

The Importance of Privacy in Shared Spaces

Search, Seizure, and the Smartphone: Rethinking Privacy Protections in the Digital Age

The New Panopticon: Location Tracking and the Fourth Amendment

Hacking from the Inside-Out: Can the CFAA Impose Liability on Employees who Misuse Employer Data?

Rejecting the Split Personality Prosecutor