N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Tag: Herbert Wechsler National Criminal Law Competition

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

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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.

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Rights on ICE: A Determination Delayed is Due Process Denied

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On November 28, 2017

In Contributions

by Sharon Tur­ret*

How long may Immi­gra­tion and Cus­toms Enforce­ment detain a nonci­t­i­zen before he or she must go before a judge? In this Con­tri­bu­tion, Sharon Tur­ret (’18) ana­lyzes the Due Process Clause issues with a “rea­son­able­ness” test for length of deten­tion and the need for a bright-line rule. This Con­tri­bu­tion argues that the Due Process Clause requires a bright-line rule that the length of deten­tion be pre­sumed unrea­son­able after six months. That very bright-line rule is now before the Supreme Court in Jen­nings v. Rodriguez.

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