{"title":"Capital Punishment Controversy, The","authors":"W. O. Hochkammer","doi":"10.4324/9781315081809-6","DOIUrl":"https://doi.org/10.4324/9781315081809-6","url":null,"abstract":"","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":"60 1","pages":"360"},"PeriodicalIF":1.8,"publicationDate":"2017-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46157354","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Supreme Court’s decision in Herring v. United States authorizes police to defeat the Fourth Amendment’s protections through a process we call evidence laundering. Evidence laundering occurs when one police officer makes a constitutional mistake when gathering evidence and then passes that evidence along to a second officer, who develops it further and then delivers it to prosecutors for use in a criminal case. When courts admit the evidence based on the good faith of the second officer, the original constitutional taint disappears in the wash. In the years since Herring was decided, courts have allowed evidence laundering in a variety of contexts, from cases involving flawed databases to cases stemming from faulty judgments and communication lapses in law enforcement teams. Courts typically zero in on individual officer behavior, or limit their review to a single incident rather than considering the entire course of conduct. In so doing, they have taken the concept of good faith to unprecedented heights.The expanded good faith doctrine that Herring embodies makes visible the individualistic view of police work that is implicit in much of Fourth Amendment doctrine. This atomistic perspective, however, fails to appreciate the realities of modern policing, which depends heavily on teamwork and delegation. At the same time, the increased emphasis on police intentions and on balancing the costs and benefits of exclusion brings our courts into closer alignment with courts elsewhere in the world. As the exclusionary rule doctrine in the U.S. converges with its counterparts abroad, comparative work offers useful insights about future doctrinal developments and the likely effects of the transformed exclusionary rule.
{"title":"Evidence Laundering in a Post-Herring World","authors":"Kay L. Levine, J. I. Turner, R. Wright","doi":"10.2139/SSRN.2558737","DOIUrl":"https://doi.org/10.2139/SSRN.2558737","url":null,"abstract":"The Supreme Court’s decision in Herring v. United States authorizes police to defeat the Fourth Amendment’s protections through a process we call evidence laundering. Evidence laundering occurs when one police officer makes a constitutional mistake when gathering evidence and then passes that evidence along to a second officer, who develops it further and then delivers it to prosecutors for use in a criminal case. When courts admit the evidence based on the good faith of the second officer, the original constitutional taint disappears in the wash. In the years since Herring was decided, courts have allowed evidence laundering in a variety of contexts, from cases involving flawed databases to cases stemming from faulty judgments and communication lapses in law enforcement teams. Courts typically zero in on individual officer behavior, or limit their review to a single incident rather than considering the entire course of conduct. In so doing, they have taken the concept of good faith to unprecedented heights.The expanded good faith doctrine that Herring embodies makes visible the individualistic view of police work that is implicit in much of Fourth Amendment doctrine. This atomistic perspective, however, fails to appreciate the realities of modern policing, which depends heavily on teamwork and delegation. At the same time, the increased emphasis on police intentions and on balancing the costs and benefits of exclusion brings our courts into closer alignment with courts elsewhere in the world. As the exclusionary rule doctrine in the U.S. converges with its counterparts abroad, comparative work offers useful insights about future doctrinal developments and the likely effects of the transformed exclusionary rule.","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":"106 1","pages":"627-680"},"PeriodicalIF":1.8,"publicationDate":"2017-05-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2558737","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42818143","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Barbara O'Brien, Catherine M. Grosso, Abijah P. Taylor
Scholarship about racial disparities in jury selection is extensive, but the data about how parties examine potential jurors in actual trials is limited. This study of jury selection for 792 potential jurors across twelve randomly selected North Carolina capital cases uses conversation analysis to examine the process that produces decisions about who serves on juries. To examine how race influences conversations in voir dire, we adapted the Roter Interaction Analysis System, a widely used framework for understanding the dynamics of patient–clinician communication during clinical encounters, to the legal setting for the first time. This method allows us to document the conversational dynamics of actual questioning of potential jurors that precedes the decision to seat or strike a juror, or to excuse her for cause. Our preliminary analysis of this uniquely rich archival data suggests ways in which the discourse of jury selection varies by race, and provides the foundation for future work looking at the ways in which the evaluation of fitness for jury service itself is skewed and contributes to racial disparities in jury selection.
{"title":"Examining Jurors: Applying Conversation Analysis to Voir Dire in Capital Cases, a First Look","authors":"Barbara O'Brien, Catherine M. Grosso, Abijah P. Taylor","doi":"10.2139/ssrn.3428712","DOIUrl":"https://doi.org/10.2139/ssrn.3428712","url":null,"abstract":"Scholarship about racial disparities in jury selection is extensive, but the data about how parties examine potential jurors in actual trials is limited. This study of jury selection for 792 potential jurors across twelve randomly selected North Carolina capital cases uses conversation analysis to examine the process that produces decisions about who serves on juries. To examine how race influences conversations in voir dire, we adapted the Roter Interaction Analysis System, a widely used framework for understanding the dynamics of patient–clinician communication during clinical encounters, to the legal setting for the first time. This method allows us to document the conversational dynamics of actual questioning of potential jurors that precedes the decision to seat or strike a juror, or to excuse her for cause. Our preliminary analysis of this uniquely rich archival data suggests ways in which the discourse of jury selection varies by race, and provides the foundation for future work looking at the ways in which the evaluation of fitness for jury service itself is skewed and contributes to racial disparities in jury selection.","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":"107 1","pages":"687-732"},"PeriodicalIF":1.8,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68592817","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"FOURTEENTH AMENDMENT-DUE PROCESS AND AN INDIGENT ' S RIGHT TO COURT-APPOINTED PSYCHIATRIC ASSISTANCE IN STATE CRIMINAL","authors":"B. Levine","doi":"10.2307/1143501","DOIUrl":"https://doi.org/10.2307/1143501","url":null,"abstract":"","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":"1 1","pages":""},"PeriodicalIF":1.8,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1143501","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68403888","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"JUVENILE JUSTICE AND STRATEGIES TO CONTROL YOUTH VIOLENCE : IS THERE A CONFLICT ?","authors":"Thomas F. Geraghty","doi":"10.2307/3491377","DOIUrl":"https://doi.org/10.2307/3491377","url":null,"abstract":"","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":"1 1","pages":""},"PeriodicalIF":1.8,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3491377","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69210183","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Theory predicts that sexual reproduction is difficult to maintain if asexuality is an option, yet sex is very common. To understand why, it is important to pay attention to repeatably occurring conditions that favour transitions to, or persistence of, asexuality. Geographic parthenogenesis is a term that has been applied to describe a large variety of patterns where sexual and related asexual forms differ in their geographic distribution. Often asexuality is stated to occur in a habitat that is, in some sense, marginal, but the interpretation differs across studies: parthenogens might not only predominate near the margin of the sexuals' distribution, but might also extend far beyond the sexual range; they may be disproportionately found in newly colonizable areas (e.g. areas previously glaciated), or in habitats where abiotic selection pressures are relatively stronger than biotic ones (e.g. cold, dry). Here, we review the various patterns proposed in the literature, the hypotheses put forward to explain them, and the assumptions they rely on. Surprisingly, few mathematical models consider geographic parthenogenesis as their focal question, but all models for the evolution of sex could be evaluated in this framework if the (often ecological) causal factors vary predictably with geography. We also recommend broadening the taxa studied beyond the traditional favourites.This article is part of the themed issue 'Weird sex: the underappreciated diversity of sexual reproduction'.
{"title":"What does the geography of parthenogenesis teach us about sex?","authors":"Anaïs Tilquin, Hanna Kokko","doi":"10.1098/rstb.2015.0538","DOIUrl":"10.1098/rstb.2015.0538","url":null,"abstract":"<p><p>Theory predicts that sexual reproduction is difficult to maintain if asexuality is an option, yet sex is very common. To understand why, it is important to pay attention to repeatably occurring conditions that favour transitions to, or persistence of, asexuality. Geographic parthenogenesis is a term that has been applied to describe a large variety of patterns where sexual and related asexual forms differ in their geographic distribution. Often asexuality is stated to occur in a habitat that is, in some sense, marginal, but the interpretation differs across studies: parthenogens might not only predominate near the margin of the sexuals' distribution, but might also extend far beyond the sexual range; they may be disproportionately found in newly colonizable areas (e.g. areas previously glaciated), or in habitats where abiotic selection pressures are relatively stronger than biotic ones (e.g. cold, dry). Here, we review the various patterns proposed in the literature, the hypotheses put forward to explain them, and the assumptions they rely on. Surprisingly, few mathematical models consider geographic parthenogenesis as their focal question, but all models for the evolution of sex could be evaluated in this framework if the (often ecological) causal factors vary predictably with geography. We also recommend broadening the taxa studied beyond the traditional favourites.This article is part of the themed issue 'Weird sex: the underappreciated diversity of sexual reproduction'.</p>","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":"49 1","pages":""},"PeriodicalIF":6.3,"publicationDate":"2016-10-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5031622/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90363754","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-10-15Epub Date: 2016-09-19DOI: 10.4049/jimmunol.1600033
Tara M Strutt, Karl Kai McKinstry, Yi Kuang, Caroline M Finn, Ji Hae Hwang, Kunal Dhume, Stewart Sell, Susan L Swain
Memory T cells can often respond against pathogens that have evaded neutralizing Abs and are thus key to vaccine-induced protection, yet the signals needed to optimize their responses are unclear. In this study, we identify a dramatic and selective requirement for IL-6 to achieve optimal memory CD4 T cell recall following heterosubtypic influenza A virus (IAV) challenge of mice primed previously with wild-type or attenuated IAV strains. Through analysis of endogenous T cell responses and adoptive transfer of IAV-specific memory T cell populations, we find that without IL-6, CD4+, but not CD8+, secondary effector populations expand less and have blunted function and antiviral impact. Early and direct IL-6 signals to memory CD4 T cells are required to program maximal secondary effector responses at the site of infection during heterosubtypic challenge, indicating a novel role for a costimulatory cytokine in recall responses.
记忆 T 细胞通常能对逃避中和抗体的病原体做出反应，因此是疫苗诱导保护的关键，但优化其反应所需的信号尚不清楚。在这项研究中，我们发现了在小鼠接受异亚型甲型流感病毒（IAV）挑战后，为了达到最佳的记忆CD4 T细胞召回效果，对IL-6有显著的选择性要求。通过分析内源性 T 细胞反应和 IAV 特异性记忆 T 细胞群的收养性转移，我们发现如果没有 IL-6，CD4+（而非 CD8+）次级效应细胞群的扩增较少，其功能和抗病毒作用也会减弱。在异种亚型挑战过程中，需要向记忆性 CD4 T 细胞发出早期和直接的 IL-6 信号，才能在感染部位产生最大的次级效应物反应，这表明成本刺激细胞因子在回忆反应中发挥了新的作用。
{"title":"Direct IL-6 Signals Maximize Protective Secondary CD4 T Cell Responses against Influenza.","authors":"Tara M Strutt, Karl Kai McKinstry, Yi Kuang, Caroline M Finn, Ji Hae Hwang, Kunal Dhume, Stewart Sell, Susan L Swain","doi":"10.4049/jimmunol.1600033","DOIUrl":"10.4049/jimmunol.1600033","url":null,"abstract":"<p><p>Memory T cells can often respond against pathogens that have evaded neutralizing Abs and are thus key to vaccine-induced protection, yet the signals needed to optimize their responses are unclear. In this study, we identify a dramatic and selective requirement for IL-6 to achieve optimal memory CD4 T cell recall following heterosubtypic influenza A virus (IAV) challenge of mice primed previously with wild-type or attenuated IAV strains. Through analysis of endogenous T cell responses and adoptive transfer of IAV-specific memory T cell populations, we find that without IL-6, CD4<sup>+</sup>, but not CD8<sup>+</sup>, secondary effector populations expand less and have blunted function and antiviral impact. Early and direct IL-6 signals to memory CD4 T cells are required to program maximal secondary effector responses at the site of infection during heterosubtypic challenge, indicating a novel role for a costimulatory cytokine in recall responses.</p>","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":"29 1","pages":"3260-3270"},"PeriodicalIF":0.0,"publicationDate":"2016-10-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5101150/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90336495","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Body Worn Cameras are spreading worldwide, under the assumption that police performance, conduct, accountability, and legitimacy, in the eyes of the public, are enhanced as a result of using these devices. In addition, suspects’ demeanor during police–public engagements is hypothesized to change as a result of the video-recording of the encounter. For both parties—officers and suspects—the theoretical mechanism that underpins these behavioral changes is deterrence theory, self-awareness theory, or both. Yet evidence on the efficacy of Body Worn Cameras remains largely anecdotal, with only one rigorous study, from a small force in Rialto, California, validating the hypotheses. How Body Worn Cameras affect police–public interactions in large police departments remains unknown, as does their effect on other outcomes, such as arrests. With one Denver police district serving as the treatment area and five other districts within a large metropolitan area serving as comparisons, we offer mixed findings as in the Rialto Experiment, not least in terms of effect magnitudes. Adjusted odds-ratios suggest a significant 35% lower odds for citizens’ complaints against the police use of force, but 14% greater odds for a complaint against misconduct, when Body Worn Cameras are used. No discernable effect was detected on the odds of use of force at the aggregate, compared to control conditions (OR=0.928; p>0.1). Finally, arrest rates dropped significantly, with the odds of an arrest when Body Worn Cameras not present is 18% higher than the odds under treatment conditions. The outcomes are contextualized within the framework of reactive emergency calls for service rather than proactive policing. We further discuss officers’ decisions and the degree of the necessity of arrest in policing more broadly, because the burden of proof for tangible evidence necessary for making a legal arrest can be challenged with the evidence produced by Body Worn Cameras: officers become “cautious” about arresting suspects when Body Worn Cameras are present. Limitations associated with the lack of randomly assigned comparison units are discussed, as well, with practical recommendations for future research on Body Worn Cameras.
{"title":"Police Body Cameras in Large Police Departments","authors":"B. Ariel","doi":"10.17863/CAM.12683","DOIUrl":"https://doi.org/10.17863/CAM.12683","url":null,"abstract":"Body Worn Cameras are spreading worldwide, under the assumption that police performance, conduct, accountability, and legitimacy, in the eyes of the public, are enhanced as a result of using these devices. In addition, suspects’ demeanor during police–public engagements is hypothesized to change as a result of the video-recording of the encounter. For both parties—officers and suspects—the theoretical mechanism that underpins these behavioral changes is deterrence theory, self-awareness theory, or both. Yet evidence on the efficacy of Body Worn Cameras remains largely anecdotal, with only one rigorous study, from a small force in Rialto, California, validating the hypotheses. How Body Worn Cameras affect police–public interactions in large police departments remains unknown, as does their effect on other outcomes, such as arrests. With one Denver police district serving as the treatment area and five other districts within a large metropolitan area serving as comparisons, we offer mixed findings as in the Rialto Experiment, not least in terms of effect magnitudes. \u0000 \u0000Adjusted odds-ratios suggest a significant 35% lower odds for citizens’ complaints against the police use of force, but 14% greater odds for a complaint against misconduct, when Body Worn Cameras are used. No discernable effect was detected on the odds of use of force at the aggregate, compared to control conditions (OR=0.928; p>0.1). Finally, arrest rates dropped significantly, with the odds of an arrest when Body Worn Cameras not present is 18% higher than the odds under treatment conditions. The outcomes are contextualized within the framework of reactive emergency calls for service rather than proactive policing. We further discuss officers’ decisions and the degree of the necessity of arrest in policing more broadly, because the burden of proof for tangible evidence necessary for making a legal arrest can be challenged with the evidence produced by Body Worn Cameras: officers become “cautious” about arresting suspects when Body Worn Cameras are present. Limitations associated with the lack of randomly assigned comparison units are discussed, as well, with practical recommendations for future research on Body Worn Cameras.","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":"8 1","pages":"729-768"},"PeriodicalIF":1.8,"publicationDate":"2016-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67572180","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Inspired by the Innocence Movement, the American Bar Association has approved an unprecedented new obligation on defense counsel in the form of an “Innocence Standard.” This new Standard imposes an affirmative “duty to act” upon criminal defense attorneys who learn of newly discovered evidence that a former client may be innocent or wrongfully convicted. The new Standard, while well-intentioned, reconceives the traditional defense attorney function, creating an ethical parity between prosecutors and defense attorneys in innocence cases while overlooking the fact that the two sides play distinct and incompatible roles in our adversarial system. While prosecutors must to seek the truth and administer justice, defense counsel’s obligation is to zealously defend her current client. The Innocence Standard has the unintended effect of potentially destabilizing that primary and paramount relationship. It may require counsel to place the interests of a former client above those of a current client. It may expose counsel to allegations of ineffective assistance in the representation of the former client. And, perhaps most importantly, it may require labor-intensive, complex work that will draw scarce resources away from current clients because most defense attorneys are already under-resourced and staggering under excessive caseloads. In an ideal world, every defense attorney would embrace the work of freeing a wrongfully convicted former client, but in the real world, is it practicable to demand that they do so and fair to suggest that they are unethical if they do not?This Article - the first scholarship to discuss the Innocence Standard - examines how the innocence movement’s influential emphasis on accuracy may be eroding other important values and aims served by the adversarial process. The Innocence Standard asks defense counsel to serve two masters, her client and the truth. The creation of this dual obligation conflicts with centuries of defense tradition and decades of well-established doctrine. The truth-seeking function has traditionally rested with prosecutors, judges and juries: defense counsel’s primary obligation has always been to zealously represent her present-day client. Shifting the truth-seeking burden onto defense counsel after her representation of a client has ended threatens to erode the adversarial system, the historical loyalties of defense counsel, and the meaning of zealous advocacy.
{"title":"The Long Goodbye: After the Innocence Movement, Does the Attorney-Client Relationship Ever End?","authors":"L. Bazelon","doi":"10.2139/ssrn.2764499","DOIUrl":"https://doi.org/10.2139/ssrn.2764499","url":null,"abstract":"Inspired by the Innocence Movement, the American Bar Association has approved an unprecedented new obligation on defense counsel in the form of an “Innocence Standard.” This new Standard imposes an affirmative “duty to act” upon criminal defense attorneys who learn of newly discovered evidence that a former client may be innocent or wrongfully convicted. The new Standard, while well-intentioned, reconceives the traditional defense attorney function, creating an ethical parity between prosecutors and defense attorneys in innocence cases while overlooking the fact that the two sides play distinct and incompatible roles in our adversarial system. While prosecutors must to seek the truth and administer justice, defense counsel’s obligation is to zealously defend her current client. The Innocence Standard has the unintended effect of potentially destabilizing that primary and paramount relationship. It may require counsel to place the interests of a former client above those of a current client. It may expose counsel to allegations of ineffective assistance in the representation of the former client. And, perhaps most importantly, it may require labor-intensive, complex work that will draw scarce resources away from current clients because most defense attorneys are already under-resourced and staggering under excessive caseloads. In an ideal world, every defense attorney would embrace the work of freeing a wrongfully convicted former client, but in the real world, is it practicable to demand that they do so and fair to suggest that they are unethical if they do not?This Article - the first scholarship to discuss the Innocence Standard - examines how the innocence movement’s influential emphasis on accuracy may be eroding other important values and aims served by the adversarial process. The Innocence Standard asks defense counsel to serve two masters, her client and the truth. The creation of this dual obligation conflicts with centuries of defense tradition and decades of well-established doctrine. The truth-seeking function has traditionally rested with prosecutors, judges and juries: defense counsel’s primary obligation has always been to zealously represent her present-day client. Shifting the truth-seeking burden onto defense counsel after her representation of a client has ended threatens to erode the adversarial system, the historical loyalties of defense counsel, and the meaning of zealous advocacy.","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":"106 1","pages":"2"},"PeriodicalIF":1.8,"publicationDate":"2016-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68301769","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Fourth Amendment doctrine has been home to two competing models: the Warrant Model and the Reasonableness Model. The Warrant Model, emphasizing the Amendment’s Warrant Clause, holds that search and arrest via warrant is the preferred method and the default rule, though allowing for exceptions when obtaining a warrant is impracticable. The Reasonableness Model, which stresses the Amendment’s Reasonableness Clause, holds that the Amendment imposes a generalized reasonableness standard on searches and seizures by which the question is not whether dispensing with a warrant is reasonable but whether the search or seizure itself is reasonable. These polar positions have been replicated in the scholarly literature on the history surrounding the adoption of the Fourth Amendment. Some adhere to a reading of the historical record that roughly supports the Warrant Model while others have found that history more strongly supports the Reasonableness Model.This Article interprets the historical record differently than either of the two dominant schools, and introduces a third model of the Fourth Amendment: the Local-Control Model. It situates the Fourth Amendment as the culmination of a decades-long, continent-wide struggle by Americans for local control over search-and-seizure policy as against central authority. And it posits the Fourth Amendment as the result of an effort on the part of the Anti-Federalists, those who demanded a Bill of Rights, to maintain local control over search-and-seizure policy. On this view, the Fourth Amendment demands neither that federal officers generally use warrants for searching and seizing nor that federal officers act pursuant to a general reasonableness standard. Rather, the Local Control Model supports the view that federal officers must generally follow state law in conducting searches and seizures.
{"title":"The Local-Control Model of the Fourth Amendment","authors":"M. Mannheimer","doi":"10.2139/SSRN.2721014","DOIUrl":"https://doi.org/10.2139/SSRN.2721014","url":null,"abstract":"Fourth Amendment doctrine has been home to two competing models: the Warrant Model and the Reasonableness Model. The Warrant Model, emphasizing the Amendment’s Warrant Clause, holds that search and arrest via warrant is the preferred method and the default rule, though allowing for exceptions when obtaining a warrant is impracticable. The Reasonableness Model, which stresses the Amendment’s Reasonableness Clause, holds that the Amendment imposes a generalized reasonableness standard on searches and seizures by which the question is not whether dispensing with a warrant is reasonable but whether the search or seizure itself is reasonable. These polar positions have been replicated in the scholarly literature on the history surrounding the adoption of the Fourth Amendment. Some adhere to a reading of the historical record that roughly supports the Warrant Model while others have found that history more strongly supports the Reasonableness Model.This Article interprets the historical record differently than either of the two dominant schools, and introduces a third model of the Fourth Amendment: the Local-Control Model. It situates the Fourth Amendment as the culmination of a decades-long, continent-wide struggle by Americans for local control over search-and-seizure policy as against central authority. And it posits the Fourth Amendment as the result of an effort on the part of the Anti-Federalists, those who demanded a Bill of Rights, to maintain local control over search-and-seizure policy. On this view, the Fourth Amendment demands neither that federal officers generally use warrants for searching and seizing nor that federal officers act pursuant to a general reasonableness standard. Rather, the Local Control Model supports the view that federal officers must generally follow state law in conducting searches and seizures.","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":"108 1","pages":"253-304"},"PeriodicalIF":1.8,"publicationDate":"2016-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68273210","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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