N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Tag: Herbert Wechsler National Criminal Law Competition Page 1 of 2

Fishers Meet Fischer: How Fischer May Help Loper Bright Weaken the Administrative State

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On October 29, 2024

In Contributions

by Joshua Averbach*

On June 28, 2024, the United States Supreme Court decided two controversial, seemingly unrelated cases: Fischer v. United States and Loper Bright Enterprises v. Raimondo. Fischer narrowly interprets a federal criminal obstruction statute, vacating the convictions of some January 6 insurrectionists and weakening the related prosecution of Donald Trump. Loper Bright overturned Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., a landmark case requiring courts to defer to reasonable agency interpretations of ambiguous statutes. This Contribution will discuss how Loper Bright weakens the administrative state by expanding courts’ ability to strike down agency action. It argues that Fischer stands for a narrow brand of statutory interpretation that may bolster the regulatory challenges made possible by Loper Bright.

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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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Striking “the Average Person as Quite Strange”: Why the Supreme Court Should Not Heed Justice Alito’s Concerns if It Chooses to Take Up the Issue of Acquitted-Conduct Sentencing

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On November 29, 2023

In Contributions

by Lindsay Campbell*

The Supreme Court recently denied certiorari in McClinton v. United States—a case which would have required the Court to consider whether the use of acquitted conduct in sentencing violates criminal defendants’ rights under the Constitution. This piece considers and responds to Justice Alito’s concurrence in the Court’s denial, arguing that Justice Alito misconstrues the constitutional issues presented by Petitioner’s claims. Specifically, he inaccurately conflates acquitted conduct and uncharged conduct; he overemphasizes the role stare decisis would play in the Court’s ruling; and he expresses concerns over the workability of criminal sentencing absent the use of acquitted conduct—concerns which only serve to highlight the unconstitutionality of the United States’ present sentencing scheme. If the Supreme Court were to take up this issue, Justice Alito’s considerations should not bar the Court from finding that the use of acquitted conduct in sentencing violates criminal defendants’ right to due process under the Fifth Amendment and their right to a trial by jury under the Sixth Amendment.

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Why the Original Meaning of the Confrontation Clause Governs the Admissibility of Video Testimony at Criminal Trials

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On April 20, 2023

In Contributions

by Daniel Cook*

The Sixth Amendment’s Confrontation Clause calls into question an increasingly common practice during the COVID-19 pandemic: testimony by two-way video teleconferencing at criminal trials. Proponents of video testimony argue that it is consistent with Maryland v. Craig, which held that the Confrontation Clause might be satisfied absent a physical confrontation as long as the denial of confrontation is necessary for trial and the testimony’s reliability is otherwise assured. Opponents of video testimony rely on Crawford v. Washington, which was decided two decades after Craig and held that the Sixth Amendment’s original meaning categorically mandates confrontation, at least with respect to testimonial hearsay. Importantly, Crawford held that judicial determinations of reliability are an insufficient basis for departing from the original meaning of the Confrontation Clause. Although Crawford did not directly address video testimony, some courts and commentators believe that Crawford supplanted Craig with a categorical rule requiring face-to-face confrontation, which video testimony may violate. This Contribution argues that Crawford embodied a sea change in Confrontation Clause jurisprudence, such that Craig no longer governs the admissibility of video testimony at criminal trials.

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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 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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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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Weighing Allegations of Terrorism & the Accused’s Criminal Record in the Probable Cause Calculous

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On March 4, 2019

In Contributions

By Daniel Kugler*

Do allegations of terrorist conduct along with the accused’s unrelated criminal records, establish probable cause under the Fourth Amendment? In this Contribution, Daniel Kugler (’19) discusses how circuits have approached this and similar questions using the Supreme Court’s totality of the circumstances framework. This Contribution argues that an ex-spouse’s allegations of terrorism—such as stockpiling weapons and posting terrorist propaganda on social media—are insufficient to establish probable cause to search for contraband when accompanied only by the accused’s unrelated criminal records.

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Criminalizing Poverty: Designing Constitutionally Sound Inquiries into Defendants’ Ability to Pay their Fees and Fines

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On October 15, 2018

In Contributions

by Leah Romm*

What principles should courts keep in mind when inquiring into a defendant’s financial situation? In this Contribution, Leah Romm (’19) discusses the equal protection and due process challenges to incarcerating individuals because of their inability to pay fees or fines. Ultimately, this Contribution argues that courts are constitutionally required to inquire into and determine the financial status of individuals who fail to pay the fees or fines they owe.

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