Analysis and Commentary on Criminal Procedure

The Supreme Court Considers Whether to Pierce Jury Secrecy for Evidence of Racial Bias

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.

Allocating Burdens of Proof in a Criminal Case: An Arizona Decision Raises Questions

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.

Indiana Court Rules in Favor of Cell Phone History Privacy

Cornell University law professor Sherry Colb comments on a recent decision by the Court of Appeals of Indiana, holding that police violated their suspect’s Fourth Amendment rights by acquiring, without a warrant, the suspect’s cell site information from his cell phone provider. Colb explains the Indiana court’s reasoning and discusses the evolving law regarding people’s privacy expectations in information their cell phones store and transmit.

Is Taking Blood from a Dog a “Search” of the Dog’s Owner?

In light of a recent decision by the Oregon Supreme Court, Cornell University law professor Sherry F. Colb considers whether taking blood from a dog constitutes a search of the dog’s owner for Fourth Amendment purposes. Colb identifies good and bad features of the court’s opinion and expresses what, in her view, would have been the ideal resolution of the case.

What’s the Matter With “Bomb Robots”?

In light of recent events in Dallas, Texas, Cornell University law professor Michael C. Dorf considers the use by local police of a “bomb robot” to kill the man who shot twelve police officers and two civilians. In particular, Dorf addresses (1) whether the use of the bomb robot represents an important change in policing, (2) whether the robot is a military tool inappropriately used in a domestic policing situation, and (3) whether its use in this instance violated the Constitution.

Birchfield v. North Dakota: An Acceptable Compromise

Cornell University law professor Sherry F. Colb comments on the U.S. Supreme Court’s recent decision in Birchfield v. North Dakota, in which the Court held that states may criminalize the refusal to take a breathalyzer test but may not criminalize the refusal to take a blood test, absent a warrant, as an ordinary incident of an arrest for driving while impaired. Colb explains why the Court distinguished the two types of tests and argues that the decision effectively balances competing interests in public safety and individual privacy.

A Potential Landmine in Waiting in Utah v. Strieff

Cornell University law professor Sherry F. Colb discusses the U.S. Supreme Court’s recent decision in Utah v. Strieff, holding that evidence found in that case as a result of a Fourth Amendment violation was not the direct consequence of the violation and was therefore properly admitted into evidence against the defendant under the attenuation doctrine. Colb explains how one throwaway line in the opinion, if taken to its logical conclusion, could potentially spell the death of the exclusionary rule.

Finding Justice in Baltimore

Cornell University law professor Joseph Margulies explains why a criminal conviction of police officers is neither a necessary nor sufficient component of justice. In fact, Margulies argues that those who would dismantle the carceral state should not be the first to invoke it by seeking convictions as the sole means of justice.

What Montgomery v. Louisiana Portends for Future Juvenile Sentencing

Cornell University law professor Sherry F. Colb considers the changing meaning of the U.S. Supreme Court’s opinion in Miller v. Alabama, which held that mandatory life sentences without the possibility of parole. Colb discusses specifically the Court’s decision earlier this year in Montgomery v. Lousiana, which held that Miller must be applied retroactively on state collateral review.

Prisoner Case Underscores Justice Scalia’s Legacy

Cornell University law professor Michael Dorf discusses a recent unanimous decision by the U.S. Supreme Court that illustrates the lasting impact Justice Scalia had on the Court’s approach to statutory interpretation. Dorf describes the shift from purposivism to textually constrained purposivism over the past half century, and explains how they differ from the textualism Justice Scalia espoused.

Discrimination & Criminal Justice in the 21st Century

Cornell University law professor Joseph Margulies comments on last week’s decision by the U.S. Supreme Court in Foster v. Chatman, in which the Court considered whether a prosecutor’s use of peremptory challenges to remove all eligible black jurors constituted impermissible race discrimination. Margulies argues that true criminal justice reform requires us to acknowledge the pervasiveness of implicit bias in society and let go of the idea that the behavior is an individual wrong by one person against another, and reconceive it as a social wrong by a person against the community.

When Illegal Stops Lead to the Discovery of Outstanding Warrants: Utah v. Strieff

Cornell University law professor Sherry F. Colb comments on a case currently before the U.S. Supreme Court, in which the Court will decide whether evidence located during a search incident to arrest after an unlawful stop will be admissible in evidence against the arrestee. Colb discusses this and also the broader question of the future role of the exclusionary rule in the law of the Fourth Amendment.

The U.S. Supreme Court Evaluates Criminal Penalties for Refusing Blood/Breath Alcohol Content Tests

Cornell University law professor Sherry Colb comments on a case on which the the U.S. Supreme Court recently heard oral argument that presents the question whether a state law may, absent a search warrant, attach criminal penalties to a DUI suspect’s refusal to undergo a chemical test of the suspect’s blood, urine, or breath to determine alcohol concentration. Colb predicts that the Court will decide that any test of a person’s internal state—whether through a blood draw, a breathalyzer, or a urine sample—requires a search warrant in the absence of exigent circumstances.

Are Long Death Penalty Delays Unconstitutional?

Cornell University law professor Michael Dorf considers whether long delays in carrying out capital punishment render the practice unconstitutional. Dorf responds specifically to an argument put forth by the late Justice Scalia that execution delays are chiefly the result of the extensive procedures that the Court’s liberals have required for carrying out an execution.

The Second Circuit Honors the Threshold of the Home in a Fourth Amendment Opinion

Cornell University law professor Sherry Colb discusses a decision by the U.S. Court of Appeals for the Second Circuit holding that when police are outside the threshold of a home arresting a suspect who is inside the threshold, it is a “home arrest” requiring a warrant. Colb explains why the decision is significant in protecting the home as a space where a person can feel the highest degree of privacy and comfort, free from unreasonable government intrusions.

The Bottoson Effect

Cornell University law professor Joseph Margulies discusses the problem of states executing death row inmates under laws subsequently found to be unconstitutional, as has happened in Texas and in Florida, and likely in many other cases. Margulies laments that the United States continues to experiment with capital punishment when experience demonstrates the procedures for imposing this irreversible sentence are rife with problems.

Bill Cosby and the Rule Against Character Evidence

Cornell University law professor Sherry Colb discusses the role of Pennsylvania Rule of Evidence 404 in the criminal trial against Bill Cosby. Colb argues that the rule against character evidence serves a specific purpose in “whodunit” cases (where the perpetrator is unknown) but that it may serve a different purpose in “what was done” cases, such as the present case against Cosby.

Insight From Oregon

Cornell University law professor Joseph Margulies explains how the peaceful protesters at a federal facility in Oregon could advance the cause for criminal justice reform. Margulies reminds us that that the triggering event for the protest was an order by a federal judge that two ranchers serve a prison sentence mandated by federal statute that was far longer than the judge considered fair.

Meet our Columnists

Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois Co... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar, a Professor of Law at The George Washington Univ... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb tea... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.  Bef... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has w... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of L... more

Marci A. Hamilton
Marci A. Hamilton

Marci A. Hamilton is one of the leading church/state scholars in the United States, a Fox Distinguis... more

David S. Kemp
David S. Kemp

David S. Kemp is an attorney, writer, and editor at Justia. He received his B.A. in Psychology from... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record... more

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of... more

Ronald D. Rotunda
Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at... more