Contributions

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.

Contributions

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.

Contributions

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.

Contributions

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.