Justia columnist and Cornell law professor Sherry Colb comments on a double jeopardy case that the Supreme Court will hear during this coming term. As readers may know, the Constitution’s Double Jeopardy Clause provides, “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” The Clause’s application is simple in some scenarios—for instance, if a defendant is tried for murder and acquitted, and yet the very same prosecutor then brings the same murder charges against the same defendant again. However, Colb points out that the double jeopardy case that the Court will address is far from simple. There, the question is whether the Double Jeopardy Clause applies to the following scenario: A defendant’s jury has announced to the judge that it cannot reach a verdict on a lesser included offense, but it has also voted unanimously to find the defendant “Not guilty” of two greater offenses. (A lesser included offense is a less serious version of another, greater offense.) The judge refused to allow the two “Not guilty” verdicts to be recorded, and declared a mistrial. Can the defendant then be re-tried on the greater offenses? Colb considers this interesting and complicated constitutional question.

Justia columnist and Cornell law professor Sherry Colb comments on a recent case in which a Queens, New York, woman named Barbara Sheehan was acquitted of second-degree murder on the ground that she had acted in self-defense. It was undisputed that Sheehan shot her husband, but the shooting had followed a history of domestic violence he had inflicted upon her. With her two children’s support, Sheehan successful raised the “battered woman’s defense.” In this column, Colb—who, in addition to teaching criminal law and procedure, has had experience with assisting battered women—contends that the Sheehan jury reached the right verdict—arguing that it would be unrealistic to only apply the battered woman’s defense when the woman in question reacts to her battering directly after it occurs. In explaining her position, Colb analyzes the reasons for both the law’s duty of retreat, and its imminence requirement.

Justia columnist and Cornell law professor Sherry Colb comments on a Mississippi initiative that aims to amend the state’s constitution. If passed, the initiative would define a “person” to “include every human being from the moment of fertilization, cloning or the functional equivalent thereof.” The law, Colb notes, plainly clashes with Supreme Court precedent, by banning abortion even very early on in a pregnancy. However, Colb focuses, instead, on how the initiative raises the question of who is a person—arguing that this question only muddies the debate over abortion. She contends that there are two key debates about abortion: a factual debate about embryonic and fetal development, and a moral debate about the consequences of those facts (many of which are well established) for the law. Using the word “person,” Colb contends, might make the speaker seem as if he or she is stating a fact, but really should be characterized as reflecting the speaker’s normative point of view, whether it is pro-life or pro-choice—and thus, confuses the debate. To illustrate the point, Colb gives examples of several ways in which using the word “person” mixes moral and factual points and clouds clear thinking. She also points out that rhetorical problems here are not limited to the pro-life side, pointing out that it also clouds debate to refer to abortion as merely “health-care” as some pro-choice advocates do.

Justia columnist and Cornell law professor Sherry Colb comments on United States v. Jones, a case that the Supreme Court will hear this year, and that The New York Times called “the most important Fourth Amendment case in a decade.” The case raises the question whether police who track a suspect’s movements over time, via a global positioning system (GPS) device, intrude on the suspect’s Fourth Amendment right against unreasonable searches and seizures. Colb covers an earlier High Court precedent involving the older police practice of putting a “beeper” in a container before a suspect loads the container into his vehicle, and then following the beeper’s trail, but she explains why that scenario is very different from the use of GPS. Colb also connects the GPS case, Jones, to the interesting concept of “innocent privacy”—that is, the privacy of innocent people, and everyone’s privacy vis-à-vis the innocent but personal parts of their lives. In addition, Colb contrasts the likely Fourth Amendment statuses of GPS location information versus cellphone location information, which is now frequently procured without a warrant.

Justia columnist and Cornell law professor Sherry Colb comments on a fascinating criminal procedure case that the U.S. Supreme Court will resolve during this coming term. The case, Perry v. New Hampshire, will answer the following question: If an eyewitness first identifies a perpetrator under highly suggestive circumstances that seriously compromise the reliability of the identification, but the police did not orchestrate those circumstances, should a court then exclude the identification evidence? Or, stated differently, is police misconduct necessary to the successful due process exclusion of unduly suggestive eyewitness identification evidence? Colb explains the reasons why we might—and might not—require police misconduct before this type of constitutional claim may be made, and notes that the issue here is of great importance, as empirical research has now exposed the central role of mistaken eyewitness identifications in wrongful convictions. Colb also makes a case that, in the end, the best resolution here may be to inform jurors of the problems with suggestive identifications, and then simply have them evaluate such identifications accordingly, as they do with other unreliable evidence.

Justia columnist and Cornell law professor Sherry Colb discusses the constitutional issues raised by government strip searches, and the relevant Supreme Court precedents. She focuses, as well, on a Supreme Court case that will be decided during this coming Term, Florence v. Board of Chosen Freeholders. There, the Court will—for the first time since 1979—consider whether officials in a jail may strip search inmates in the absence of any individualized suspicion. Colb notes that the case will raise a key question for the Court to consider: Does the Constitution extend any protection for privacy to the people who reside in a detention facility?

Justia columnist and Cornell law professor Sherry Colb contends that laws broadly preventing certain mentally ill persons from possessing firearms may not be as obviously a good idea as they might seem at first glance. Currently, Colb explains, there is a federal law—passed in the wake of the Virginia Tech shootings—to simplify the identification and tracking of persons who have previously been committed to a mental hospital, and who have therefore been divested of their right to possess firearms; those rights, though, can later be restored. Interestingly, though, Colb notes that in other contexts, members of certain groups (such as men) may be statistically far more likely than their counterparts (such as women) to commit gun violence, and yet, are allowed to carry guns nonetheless. Colb also points out that certain types of mental illness, which might lead to commitment to a mental hospital, are not connected to gun violence at all, yet still are swept in by the law.

Justia columnist and Cornell law professor Sherry Colb clarifies for readers one of the most complicated issues within the Supreme Court’s jurisprudence: the suppression of evidence that the police have obtained illegally. Colb focuses, in particular, on a case decided during the past Supreme Court term that presented a thorny question: If police follow appellate court precedent while performing a search, but the Supreme Court later reverses that very precedent, was the search legal (because appellate case law authorized it at the time) or illegal (because the Court decided later that the appeals court had erred)? In addition to discussing this issue, Colb also focuses on a number of major Court decisions in the area, to shed light on the evolution of Court doctrine.

Justia columnist and Cornell law professor Sherry Colb discusses a Supreme Court case from earlier this year concerning the Constitution's Confrontation Clause, which guarantees the right to confront one's accuser. She also, and more broadly, comments on the ongoing difficulties within the Court's Confrontation Clause jurisprudence as it has evolved over the years—difficulties that she argues call for important doctrinal revisions. Colb notes that the Court has read the confrontation right to confer an entitlement to cross-examine testifying witnesses, and that the right can apply to some out-of-court statements, as well—due to a rule with a rationale rooted in the early, troubling precedent of Sir Walter Raleigh's Case. Colb also makes clear the relationship between confronting one's accuser and the admission of hearsay in court.

Justia columnist and Cornell law professor Sherry Colb comments on the Supreme Court's recent, 5-4 decision in J.D.B. v. North Carolina. There, the Court held that when police interrogate a suspect under the age of eighteen, the suspect’s youth bears on the question whether he was in “custody” at the time-- and was therefore entitled to hear the Miranda warnings before questioning began. Colb discusses the role of custody and interrogation in Miranda's protections, and explains the arguments that the majority and dissenting Justices marshaled to justify their respective positions. In addition, she contends that the dissenters in the case -- four conservative Justices -- essentially opined as they did due to a fundamental dislike for Miranda itself, rather than due to the wish that they cited for greater certainty and clarity in Miranda's application.