Analysis and Commentary on Criminal Procedure
U.S. Supreme Court Considers Whether the Fourth Amendment Allows Reasonable Mistakes of Substantive Law Part One of a Two-Part Series of Columns

In the first of a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb discusses a Fourth Amendment case in which the U.S. Supreme Court recently granted certiorari to resolve a circuit split. In that case, Heien v. North Carolina, the Court is considering whether the Fourth Amendment protects against stops by a police officer who acts on the basis of a reasonable but erroneous interpretation of state law. Colb reviews the facts of Heien, explains what “reasonable seizures” are under the Fourth Amendment, and describes the differences between legal and factual errors. The second column, which will appear on Verdict on May 5, will address the “good faith” exception to the exclusionary rule and the impact of a ruling on the basis of good faith.

The U.S. Supreme Court’s View of Consent in Fernandez v. California

Justia columnist and Cornell law professor Sherry Colb comments on the United States Supreme Court decision in Fernandez v. California, upholding the search of a co-occupied apartment upon the consent of just one of the residents. Colb notes that the case offers a refinement on an earlier decision that had invalidated a search to which one occupant consented, while the second occupant simultaneously objected.

The Supreme Court Considers What Role States May Play in Intellectual Disability Determinations

Justia columnist and Cornell Law professor Michael Dorf discusses an upcoming U.S. Supreme Court case addressing how to determine whether a criminal defendant is intellectually disabled and thus ineligible for the death penalty. Dorf explains the potentially far-reaching implications of the case, Hall v. Florida, and cautions that a ruling for Florida could undermine the uniformity of federal constitutional law.

A Murder Case Highlights an Odd Exception to the Sixth Amendment

Justia columnist and Cornell law professor Sherry Colb comments on the logic of the “forfeiture by wrongdoing” exception to the Confrontation Clause and considers whether the distinction between its proper application and its application in the case on which Colb focuses holds up to critical analysis.

The Supreme Court’s Responsibility for Recent Death Penalty Mishaps

Justia columnist and Cornell law professor Michael Dorf argues that what the late Justice Harry Blackmun famously called “the machinery of death” still remains deeply flawed. Dorf illustrates his point through two recent, controversial executions that illustrate how the practice of capital punishment continues to defy attempts to civilize it, and suggests that the responsibility is to be placed at the Court's door.

Coming Out of the Turn: Charting a New Course in Criminal Justice

Justia guest columnist and Northwestern law professor Joseph Margulies explains why American criminal justice appears to be coming out of its prior, punitive turn in criminal justice. With even the Attorney General acknowledging that our criminal justice system is, in many ways, broken, Margulies suggests strong evidence that the punitive turn is waning, and may well be superseded with new and better approaches to criminal justice.

The Warrant Requirement for GPS Tracking Devices

Justia columnist and attorney David Kemp discusses a recent decision by the U.S. Court of Appeals for the Third Circuit requiring law enforcement officers to have a valid warrant before installing a GPS tracking device on a suspect’s vehicle. Kemp describes the facts of the case and the reasoning the court used to reach its decision. He argues that the court’s interpretation of the Fourth Amendment is not only correct, but also indicative of what is necessary to ensure that constitutional law keep up with the technology available to law enforcement.

The Weight of Capital Punishment on Jurors, Justices, Governors, & Executioners

Justia guest columnist and Loyola Law School professor Paula Mitchell continues her series of columns on the death penalty, describing the punishment’s effect on jurors, justices, governors, and executioners. She presents testimonies from various people involved in different parts of the process of capital sentencing and execution. She concludes that the public should consider the impact capital punishment has on those individuals who have to make the decisions of life and death.

The U.S. Supreme Court Considers Anonymous Tips Part Two of a Two-Part Series of Columns

In Part Two of this two-part series of columns, Justia columnist and Cornell law professor Sherry Colb continues her examination of Navarette v. California, the case in which the U.S. Supreme Court will decide whether anonymous tips are sufficient to create reasonable suspicion to support a stop by officers. The case involves the relationship between probable cause and reasonable suspicion, as well as the role of known informants and anonymous informants in helping police meet each of these standards, in turn, to shed light on what is normally required to justify an arrest or stop.

The U.S. Supreme Court Considers Anonymous Tips: Part One of a Two-Part Series of Columns

In Part One in a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb considers the Supreme Court case of Navarette v. California, which asks whether police may lawfully stop a vehicle for reckless driving on the basis of an anonymous tip. Colb explains why that question is difficult, for two key reasons.

A Federal Court Holds New York Stop-and-Frisk Policy Unconstitutional in Floyd v. City of New York

Justia columnist and Cornell law professor Sherry Colb discusses a recent federal court decision finding New York City liable for its stop-and-frisk policy. The court found that the City had violated the Fourth Amendment’s guarantee against unreasonable searches and seizures, as well as the Fourteenth Amendment’s Equal Protection Clause’s guarantee against discrimination. Colb notes that the ruling is significant in that it validates the sense of some New Yorkers, especially those who belong to minority groups, that there has been unsupportable and arbitrary police behavior in this respect. In addition, Colb raises a narrow disagreement with a portion of the court's analysis that may help clarify some of the obstacles we face in detecting discriminatory intent, in this and other contexts where the issue arises. Relatedly, Colb also comments on the use of baselines in decisionmaking.

A Case Against the Six-Person Jury for Serious Crimes

In light of debate surrounding the recent Zimmerman murder trial and its six-person jury, Justia columnist and attorney David Kemp discusses the U.S. Supreme Court’s jurisprudence on the size of juries in criminal trials. He describes the role of the jury as understood both by our nation’s founders and by the Supreme Court and explains how that understanding has changed over time. Kemp ultimately calls for a return to the traditional twelve-person criminal jury panel to advance both the appearance and reality of justice.

What Does the Sixth Amendment Right to Jury Trial Protect?: The Supreme Court Decides Alleyne v. United States

Justia columnist and Cornell law professor Sherry Colb comments on the Supreme Court’s recent decision in Alleyne v. United States, which concerns the Sixth Amendment right to a jury trial. The Court ruled there that a jury, not a judge, must make factual findings that raise the mandatory minimum sentence for an offense. Colb analyzes both the majority opinion and Chief Justice Roberts’s dissent, and explains which she finds more persuasive, and why. She also draws on social psychology research in her analysis.

The Road to Justice Scalia Is Paved With (Some) Intentions: The Supreme Court Decides Maryland v. King

Justia columnist and Cornell law professor Sherry Colb comments on the Supreme Court’s recent decision upholding a Maryland law authorizing the collection of DNA samples from people who are arrested for violent crimes, and Justice Scalia’s dissent to that decision, raising Fourth Amendment concerns. She covers the three main points of the majority’s decision, and the three main points that the dissent raised, examining the logic and persuasiveness of each.

The U.S. Supreme Court Rules That Blood Tests for Drunk Driving Suspects Require a Search Warrant: A Wise Decision?

Justia columnist and Cornell law professor Sherry Colb considers the merits of the Supreme Court’s approach to cases where drunk driving is suspected, as set forth in Missouri v. McNeely. There, the Court held that police must conduct a “totality of the circumstances” exigency analysis to determine whether seeking a warrant prior to performing a blood test would significantly undermine the efficacy of the search in an individual case. Colb considers whether the Court’s ruling makes sense, in light of what generally happens in DWI cases, and discusses an alternative approach that was proposed by the Chief Justice, as well as the approach described in Justice Thomas’s dissent and its witty hypothetical.

Miranda’s Public Safety Exception: How It Does and Does Not Affect the Evidence Against the Boston Marathon Bombing Suspect

Justia columnist and attorney David Kemp discusses Miranda warnings and the proposed reliance on the “public safety” exception in the case of the suspected Boston Marathon bomber. Kemp first describes the Supreme Court’s seminal decision in Miranda v. Arizona, as well as the subsequently established public safety exception. Kemp cautions that despite the characterization by some authorities of the exception as a carte blanche to question criminal suspects in blatant disregard of their constitutional rights, the exception should be preserved as an evidentiary rule employed only by impartial courts, not by interrogating officers.

The U.S. Supreme Court Declares Warrantless Dog Sniffs of Private Front Porches Unconstitutional, Or Does it? A Closer Look at Florida v. Jardines

Justia columnist and Cornell law professor Sherry Colb comments on the recent Supreme Court Fourth Amendment case concerning the constitutionality of the police’s conducting a warrantless dog sniff on the front porch of a private house in order to detect drugs. Colb analyzes both the majority and concurring opinions from the High Court, and explains why the drugs that were found by the police were suppressed, so that they could not be admitted into evidence in a criminal case against the defendant, Jardines. She also predicts the result that will follow when a similar, but not identical, Fourth Amendment case arises in the future, as it surely will.

Do People Under Arrest Have a Privacy Right in Their DNA? The U.S. Supreme Court Hears Argument in Maryland v. King Part Two in a Two-Part Series of Columns

In Part Two of a two-part series of columns on the Supreme Court case of Maryland v. King, Justia columnist and Cornell law professor Sherry Colb continues her analysis of the case, which raises questions about the Fourth Amendment significance of DNA collection from arrestees, in light of the government interests and privacy entitlements that are at stake when a person is taken into custody. Part One of this series appeared on March 20, here on Justia’s Verdict.

Do People Under Arrest Have a Privacy Right in Their DNA? The U.S. Supreme Court Hears Argument in Maryland v. King Part One in a Two-Part Series of Columns

In Part One in a two-part series of columns relating to the pending Supreme Court case Maryland v. King, Justia columnist and Cornell law professor Sherry Colb considers the Fourth Amendment significance of DNA collection from arrestees, in light of the government interests and privacy entitlements that are at stake when a person is taken into custody. Part Two of this series will appear next Wednesday, March 27.

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... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, holds the James J. Freeland Eminent Scholar... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in... more

John Dean
John Dean

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

Michael C. Dorf
Michael C. Dorf

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

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is the Dwight D. Opperman Professor, Director, Center for Labor and Employment... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... 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... more

Marci A. Hamilton
Marci A. Hamilton

MARCI A. HAMILTON is the Fels Institute of Government Professor of Practice, and Fox Family... more

Joseph Margulies
Joseph Margulies

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

Austin Sarat
Austin Sarat

Austin Sarat is Associate Provost, Associate Dean of the Faculty and William Nelson Cromwell... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more