Articles Posted in Criminal Procedure

Cornell law professor Sherry F. Colb explains how a better understanding of consent in a police interrogation context can inform our understanding of consent in a sexual context. Colb argues that the solution to both is to educate everyone more effectively about what will and will not successfully make things (the interrogation or the sexual activity) stop.

Cornell law professor Sherry F. Colb comments on the US Supreme Court’s precedents recognizing, yet not clearly defining, “curtilage”—the area near one’s house that is constitutionally protected against warrantless searches by law enforcement. As Colb explains, the Court’s cases involving curtilage, including its recent decision in Collins v. Virginia leave many Fourth Amendment questions unanswered.

Cornell law professor Sherry F. Colb comments on the US Supreme Court’s recent decision in Carpenter v. United States, in which the Court held that the government must have a search warrant to obtain an individual’s cell-site location information (CSLI). Colb describes the Court’s holding and the dissenting opinions, and considers the Court’s minority (but growing) view that only property, and not privacy, is protected under the US Constitution—particularly when privacy rights encompass the right of a woman to obtain an abortion and the right of same-sex couples to engage in private, consensual sexual acts.

Cornell law professor Sherry F. Colb comments on the recent decision by the US Supreme Court in Byrd v. United States, in which the Court unanimously held that a lawful but contractually unauthorized driver of a rental car has a reasonable expectation of privacy against police searches of the car. Colb explains that the Court’s ruling is significant for more than its face value; it signals a rejection of property-linked formalism and bolsters the ability of the Fourth Amendment to keep certain types of police in check.

Cornell University law professor Sherry F. Colb comments on the case before the US Supreme Court, McCoy v. Louisiana, in which the Court will decide whether a criminal defendant has a Sixth Amendment right to stop his attorney from announcing to a jury that his client killed the victims for whose murder he is standing trial. Colb considers the argument that the lawyer's behavior constituted deficient performance counsel and argues that in that case, the defendant's conviction should be reversed and remanded for a new trial.

Cornell University law professor Sherry F. Colb compares the requirement that police officers advise suspects in custody of their Miranda rights with the proposal that we as a society adopt a "Yes means yes" requirement for sexual consent. Colb describes how many of the fears about Miranda never actually came to fruition and points out how both the strengths and weaknesses of Miranda can help us to figure out how best to design the rules defining sexual assault.

Cornell University law professor Sherry F. Colb considers a question raised, but most likely not to be decided, in a criminal procedure case currently before the US Supreme Court. That case, Collins v. Virginia addresses the automobile exception to the Fourth Amendment warrant requirement, and Colb explores some reasons for eliminating the automobile exception altogether.

Cornell University law professor Sherry F. Colb comments on the recent oral argument in Carpenter v. United States, in which the US Supreme Court will consider whether the Fourth Amendment requires the government to obtain a warrant before demanding that a cell phone service provider reveal location data about a target’s phone for a certain period of time. Colb notes that during oral argument, the Court’s newest justice, Justice Neil Gorsuch, conspicuously avoided using the word “privacy”—a choice that Colb suggests reflects his views on substantive due process and the rights that flow from that constitutional principle, such as abortion and physician assistance in dying.

Cornell University law professor Sherry F. Colb comments on a case the US Supreme Court recently agreed to hear regarding the scope of the automobile exception to the Fourth Amendment warrant requirement. Colb explains the facts leading up to the controversy, the arguments on both sides, and the unusual nature of the case. Colb points out that the Court was likely motivated to hear the case to resolve a question the case does not even squarely present, namely whether the presence of a car in a driveway is a reason not to apply the automobile exception.

Cornell University law professor Sherry F. Colb considers the reasoning behind an appeals court's allowing law enforcement to acquire, without a warrant or probable cause, cell phone records that include a user’s approximate location over a period of several months. Colb expresses relief that the U.S. Supreme Court has decided to consider the issue so that we can know whether, by using a cell phone, we are thereby exposing our location to the police (and not just to our wireless service providers).

In response to a recent episode of the podcast Radiolab that relates the story of a juror who was prosecuted for attempting jury nullification, Cornell University law professor Sherry F. Colb considers how we ought to think about the power of jurors to acquit for any reason. Colb explains what jury nullification is and describes some situations in which it is most clearly appropriate and some in which it is problematic. She also proposes a solution to address bias in all phases of the criminal process, rather than just prosecution and trial.

Cornell Law professor Joseph Margulies comments on the issues that Americans face and fear, and those which Americans ignore. Margulies explains why certain attacks represent greater challenges to our society than others.

Cornell University law professor Sherry F. Colb considers one recent instance in which the U.S. Supreme Court endorsed a standard because it was factually more accurate than a prior standard, and several other instances in which the Court has done the opposite. Colb points out that, unfortunately, the law often seeks facts that facilitate a desired outcome rather than facts a more just or correct outcome.

Cornell University law professor Sherry F. Colb comments on a recent decision in which the U.S. Supreme Court held that a juror’s use of racial stereotypes to vote for conviction may be used to invalidate the verdict, despite evidentiary rules that otherwise prohibit the use of juror testimony to challenge a verdict. Colb argues that the Supreme Court should have either extended the Sixth Amendment exception to cover other types of juror misconduct, or repealed the rule that prohibits the use of post-verdict juror testimony to impeach a verdict.

Cornell University law professor Sherry F. Colb examines the how ineffective assistance of counsel and equal protection interact in cases involving race to produce results different from what might result from similar cases not involving race. Specifically, Colb looks at whether the U.S. Supreme Court’s conclusion of ineffective assistance of counsel in Buck v. Davis would have been different if the issue of race had not been involved.

John W. Dean, former counsel to President Nixon, converses with author David Dorsen about whether President Trump’s pick for the U.S. Supreme Court, Judge Neil Gorsuch, is going to be ideologically consistent with the late Justice Antonin Scalia, whose seat Gorsuch would fill. Led by Dean’s questions, Dorsen explains that Scalia was not as across-the-board conservative as many thought him to be, and Gorsuch may not be either, at least not on topics such as trial by jury and double jeopardy.

Cornell University law professor Michael C. Dorf comments on a case before the U.S. Supreme Court that presents the issue whether and when a criminal defendant should pay with his life for an error made by his lawyer. Dorf explains the facts behind the case as well as the relevant legal precedents. He argues that Davila, the criminal defendant in this case, might convincingly argue that his first real opportunity to complain about the ineffectiveness of counsel on direct appeal is in a state habeas proceeding.

Cornell University law professor Sherry F. Colb critiques a decision by the U.S. Court of Appeals for the Sixth Circuit holding that it was reasonable for police officers to kill two dogs in a home they searched. Colb first explains the facts behind the case and then argues that the police should have asked the dogs’ owner to subdue the dogs prior to the search, and that not doing so was unreasonable and led to the unnecessary killing of the dogs.

Cornell University law professor Sherry F. Colb considers the arguments on both sides of a difficult question currently before the Supreme Court—whether a defendant is entitled to use juror testimony to impeach a verdict based on racial bias, notwithstanding a contrary rule of evidence. Colb describes the facts leading up to the case and discusses the jurisprudence that will most likely affect the justices’ ultimate decision.

Cornell University law professor Sherry F. Colb comments on a recent decision by the Arizona Supreme Court holding that a state statute properly created an affirmative defense to sexual abuse or child molestation when it placed the burden of proving no sexual motive on the defendant. Colb describes the court’s reasoning and explains why the U.S. Supreme Court should revisit its jurisprudence affirmative defenses to crimes and hold that some conduct may simply not be classified as an affirmative defense to be proved by the defendant in a criminal case.