N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Tag: Fifth Amendment

A Second Bite at the Apple: Why Acquitted-Conduct Sentencing Must be Addressed by SCOTUS

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On March 13, 2024

In Contributions

by Natalie Lalama*

The United States Supreme Court recently passed on deciding the constitutionality of the use of acquitted conduct in federal sentencing by denying certiorari in McClinton v. United States. The Court denied certiorari in deference to the United States Sentencing Commission, which has recently collected public comment on proposals to amend the practice of acquitted-conduct sentencing. This Contribution argues that the amendments put forward by the Sentencing Commission are insufficient to address the significant constitutional questions raised by acquitted-conduct sentencing because they do not address root causes of procedural unfairness. These amendments do not rectify the unfairness inherent in giving the government a second bite at the apple, increasing the trial penalty for defendants, or the stigma and bias defendants face in sentencing. Acquitted-conduct sentencing as a practice contravenes the Due Process Clause of the Fifth Amendment; therefore, the Supreme Court is much better situated to determine this pressing constitutional question. 

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Press to Unlock: How Biometric Phone Locks Endanger Fifth Amendment Rights and Individual Privacy

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On November 22, 2023

In Contributions

by Aaron Chow*

Today, nearly every individual carries at all times an extremely detailed account of their personal lives: the contents of their cell phone. Due to recent advances in biometric scanning technology, cell phones can now be unlocked with a mere touch of a finger. Federal courts are currently divided on whether law enforcement may compel these fingerprint scans in order to access the potentially incriminating contents of an accused’s cell phone. Because a vast majority of Fifth Amendment jurisprudence predates the advent of modern cell phones, it is ill-equipped to address the risk of self-incrimination and privacy violations that fingerprint locks create. This Contribution argues that federal courts must adapt historical precedent in order to prevent unconstrained cell phone searches and to safeguard Fifth Amendment rights.

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Preserving the Bivens Doctrine in the Fourth Amendment Context

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On October 4, 2022

In Contributions

by Tina LaRitz*

The Bivens doctrine allows plaintiffs who suffer constitutional violations at the hands of federal officers to claim monetary damages from federal courts, absent the statutory recognition of such a right. Recent jurisprudence has increasingly sought to limit this right in a show of judicial conservatism at the expense of deserving plaintiffs. This Contribution argues that the Bivens doctrine must be preserved broadly within the Fourth Amendment unreasonable search context.

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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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Pleading the Fifth in State Regulatory Proceedings Concerning State-Sanctioned Medical Marijuana Use

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On May 4, 2022

In Contributions

by Andrew Wells*

To date, thirty-six states have legalized the possession and use of medical marijuana. However, marijuana possession—regardless of use—is still a federal crime under the Controlled Substances Act (21 U.S.C. § 811). This discrepancy means that an individual legally using medical marijuana under state law can still be prosecuted for violating federal law. In this Contribution, Andrew Wells (’22) argues that Fifth Amendment privilege invocation is proper in such circumstances because the Fifth Amendment protects individuals against compelled disclosures that would create the possibility of prosecution.

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The Right Against Self-Incrimination in the Digital Age

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On September 20, 2021

In Contributions

by Diego Wright*

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.

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The Fifth Amendment: No Safe Harbor for First Amendment Retaliation

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On February 22, 2021

In Contributions

by Hannah Beattie*

This Contribution examines whether compliance with the Fifth Amendment should shield a federal condemnation action from a First Amendment retaliation claim. Hannah Beattie (’21) argues that the rationales for carving out safe harbors for government action to be free from First Amendment scrutiny if in compliance with the Fourth Amendment do not extend to the Fifth Amendment context. Ultimately, this Contribution concludes that an individual should be able to raise a First Amendment retaliation defense to a condemnation action, even if the government complied with the Fifth Amendment.

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