Law enforcement agencies are increasingly seeking to compel the disclosure of passwords from the owners of password-protected encrypted devices, such as cell phones. Does the government have the right to compel this disclosure? In this Contribution, Diego Wright (‘22) argues that the Fifth Amendment right against self-incrimination protects an individual from being forced to disclose their passcode when analyzed under the “foregone conclusion” doctrine unless the government can demonstrate they already know the testimonial communications tacit in the act of providing the passcode.
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.
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.
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.