Analysis and Commentary on Criminal Procedure
What Purpose Does the Double Jeopardy Clause Serve?: The U.S. Supreme Court Grants Review in Blueford v. Arkansas

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.

One Way or Another, I’m Gonna Find Ya: The U.S. Supreme Court Considers Whether GPS Tracking of Suspects’ Cars Requires a Search Warrant

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.

The U.S. Supreme Court Considers the Constitutionality of Unreliable Eyewitness Identifications: Does a Lack of Police Misconduct Rule Out a Due Process Claim?

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.

The Supreme Court Agrees to Review the Constitutionality of Strip Searching All Arrestees Who Enter a Jail

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?

Why Suppress Illegally Obtained Evidence? The U.S. Supreme Court Decides Davis v. United States

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.

A Disingenuous Dissent: The U.S. Supreme Court Says a Suspect’s Youth Is Relevant to Miranda Rights

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.

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