This Note analyzes the relationship between “malice aforethought,” the mens rea required to commit murder, and self-defense, a potential justification for a killing. Although both concepts are well-established in criminal law, there is a dearth of jurisprudence dealing with their intersection. Specifically, many jurisdictions, including the Second Circuit, have yet to conclusively address the issue of whether the mental state required for proving a self-defense justification is incompatible with the mens rea of malice aforethought required for committing murder under the primary federal murder statute, 18 U.S.C. § 1111. Because under federal law, self-defense is an issue of common law, rather than statutory, the existing case law on this question in federal jurisdictions is inconsistent, inconclusive, and often nonexistent. Some circuits have indicated, often in dicta, that malice is incompatible with the reasonable fear for one’s safety that is required when acting in self-defense, while other courts have found it consistent for a defendant to possess a preformulated intent to kill another person but also act (and therefore kill) in the moment due to a fear for his or her life or safety. While both positions present analytical difficulties, these problems all stem largely from the definitional ambiguity surrounding “malice aforethought” and courts’ subsequent inconsistent applications of the concept in murder trials. Therefore, this Note argues for the adoption of a clear and consistent definition of “malice aforethought” which encompasses its common law definition, requiring a depraved or evil mental state beyond mere intent to kill.
It is a common lament that prosecutors in our criminal justice system are too adversarial. This Article argues that in a deeper sense, prosecutors may not be adversarial enough. The issue—which I call adversarial asymmetry—is that, as political actors, prosecutors have no inherent desire to seek maximal punishment, at least in any consistent way. While commentators tend to see this as a good thing, adversarial asymmetry helps explain a range of seemingly disparate pathologies in the criminal process. A number of problems—including the coerciveness of plea bargaining; pretextual prosecution; discriminatory charging practices; the proliferation of overly broad criminal statutes; the difficulty in deterring prosecutorial misconduct; and use of the grand jury as political cover for unpopular decisions—would not exist, or at least could be more easily solved, in a world where prosecutors were more single mindedly focused on maximizing victory in the criminal process. In fact, a more consistently adversarial system might have surprising advantages over our own, providing more accountability for prosecutors while being more consistent with the rule of law. And while heightened adversarialism unquestionably poses risks, alternative institutional structures could minimize those dangers. Even if actually implementing such a system is unrealistic or unappealing, the proposal has value as a thought experiment, for it exposes deep fault lines in the theoretical foundation of our system of criminal prosecution. Our current approach combines an adversarial process with politically accountable prosecutors—yet we lack a compelling account of what precise level of adversarialism is optimal or why political accountability is the right tool for producing good behavior from prosecutors. It should thus be unsurprising that our system often works poorly in practice. Absent a better reason to think that our current approach is the only option, we should be more willing to reconsider basic structural arrangements in criminal justice.
Of all the agencies of executive government, those that police—that employ force and engage in surveillance—are the most threatening to the liberties of the American people. Yet, they are the least regulated. Two core requisites of American constitutionalism are democratic accountability and adherence to the rule of law. Democratic accountability ensures that policy choices are vetted in the public arena and have popular support; the rule of law requires that those choices be constitutional as well. Legislative enactments governing policing are few and far between. Although police departments have internal rules, these rules are rarely made public or publicly debated. When it comes to regulating policing, we rely primarily on ex post judicial review, which at best ensures policing practices are constitutional (though it often fails on this score), and does nothing to assure democratic accountability or sound policymaking.
This Article argues that it is fundamentally unacceptable for policing to remain aloof from the ordinary processes of democratic governance. All police practices—such as use of drones or other surveillance equipment; SWAT, Tasers, and other means of force; checkpoint stops, administrative inspections, and other warrantless searches and seizures—should be legislatively authorized, subject to public rulemaking, or adopted and evaluated through some alternative process that permits democratic input. In addition to spelling out the ways in which the ordinary processes of governance can be utilized to regulate policing, this Article fills in substantial gaps in the existing literature by analyzing why this has not been the case in the past, and explaining how, within the existing framework of administrative and constitutional law, courts can motivate change. It also directs attention to the manifold questions that require resolution in order to move policing to a more democratically accountable footing.
Dataveillance, a method of surveillance that collects and analyzes massive amounts of data about individuals, poses a threat to information privacy because it allows companies to uncover intimate personal information that individuals never consented to disclose. No comprehensive legal framework currently exists to regulate dataveillance. A potential remedy lies in the common law torts designed to protect privacy. However, the most applicable of these privacy torts, the tort of intrusion upon seclusion, faces several doctrinal hurdles in regulating dataveillance because courts and commentators consider the initial collection of data to be the only potential privacy intrusion from dataveillance. This Note proposes that the tort of intrusion upon seclusion could be updated to effectively regulate dataveillance if courts recognize that dataveillance’s observation of new personal information constitutes its own privacy intrusion, distinct from the intrusion at the data collection stage. This doctrinal shift would overcome the doctrinal barriers to applying the intrusion upon seclusion tort to dataveillance.
Over the last fifty years, courts and scholars have debated the utility and reliability of informants—individuals who alert law enforcement to the occurrence of crime, point law enforcement in the direction of potential perpetrators, and help law enforcement prosecute those eventually charged. There are three primary types of criminal justice informants: (1) criminal and confidential informants, (2) anonymous tipsters, and (3) citizen-informants. Judicial examinations and scholarly critiques of informants have focused almost exclusively on the first two categories. These informants are deemed suspect, either because they are so enmeshed in the justice system that they have questionable motives, or because they inculpate others under a veil of anonymity. Meanwhile, the third category of informant—the citizen-informant—has evaded rigorous scrutiny because of the “citizen-informant doctrine,” a premise embraced by the federal courts and many state courts. The citizen-informant doctrine reasons that individuals who witness or fall victim to crime and willingly identify themselves to law enforcement officers are presumptively reliable. This presumption enables law enforcement officers to conduct searches and seizures that would otherwise be unlawful based on uncorroborated reports from untested civilians. The citizen-informant doctrine has major consequences for the robustness of the Fourth Amendment’s protection against unjustified government intrusions, and it has an enormous impact on the integrity of police investigations and criminal prosecutions. Yet this doctrine rests on shaky foundations that have heretofore been insufficiently probed. This Note proposes that courts require law enforcement officers to conduct more exacting inquiries before relying on the word of a so-called citizen-informant.
In Padilla v. Kentucky, the Supreme Court declared that defense attorneys must give advice to noncitizen defendants regarding the risk of deportation in order to meet the constitutional standard for effective assistance of counsel. Acknowledging the confusing nature of immigration law, the Court stated that when the law is not straightforward, a criminal defense attorney need do no more than advise a noncitizen client that a conviction may carry a risk of adverse immigration consequences. However, when the deportation consequence is clear, the attorney must give similarly clear advice. Some lower courts have chipped away at Padilla’s holding, allowing vague advice—either from the defense attorney or from other sources—to be deemed effective even in cases where Padilla would seem to require more specific advice. In treating vague defense attorney advice as reasonable, or allowing generic warnings from the court or arresting officers to “cure” a lack of immigration advice from defense attorneys, courts are circumventing Padilla’s demand for specific advice in situations where the consequences of a guilty plea are clear, and thus undermining the underlying concerns of the Supreme Court’s reasoning. Especially in cases where deportation is virtually mandatory, receiving general advice that there is a “risk” of deportation leaves a client with the impression that there is a chance to stay in the country. This impression could have a serious effect on the defendant’s ultimate decision to plead guilty or go to trial. Furthermore, these courts’ approach gives little incentive for defense attorneys to look into the immigration consequences of their clients’ convictions. This Note argues that courts should not allow generalized and unclear advice to meet the standard for effective assistance of counsel when the immigration consequences are actually clear-cut, because doing so undercuts the purpose of the Padilla decision and is unhelpful to noncitizen clients.
This Note argues that both Jewish and American law express skepticism about self-incriminating statements based on concerns of reliability, respect for the individual, and the religious belief that confessions can be offered only to God. However, both traditions also recognize that certain circumstances necessitate the use of self-incriminating statements. This Note compares the two traditions to unearth a deep tension within legal and cultural conceptions of self-incrimination and confession. Specifically, the Note proposes that both Jewish and American law reflect conflicting desires—to simultaneously accept and reject self-incriminating statements. On the one hand, confessions appear to be powerful evidence of guilt, as well as a helpful part of the process of punishing and rehabilitating criminal offenders. On the other hand, confessions uncomfortably turn the accused into his own accuser, raising concerns about whether the confession was the result of unreliable internal self-destructive instincts or external coercion. Future decisions involving self-incriminating statements must be made with an awareness of both the benefits and the hazards of utilizing such statements.
In recent years, the Supreme Court has increasingly made “reasonableness” the central inquiry of whether a search or seizure is constitutional under the Fourth Amendment. The rise of the reasonableness approach has coincided with originalist scholarship that claims this interpretation is more consistent with the Amendment’s text and history. This Note looks at Framing-era search-and-seizure practice and argues that the Court’s modern reasonableness interpretation is, in fact, ahistorical and inconsistent with Framing-era practice and the Amendment’s original understanding. Not only is there scant evidence that the legality of searches and seizures turned on their reasonableness during the Framing era, but the arguments made in favor of the Court’s modern reasonableness approach are based on flawed historical assumptions. As a result, the Court’s various applications of its reasonableness interpretation are all inconsistent with Framing-era practice and the Amendment’s original understanding.
In 2004, the Supreme Court overhauled the established interpretation of the Confrontation Clause of the Sixth Amendment when it decided Crawford v. Washington. This Note attempts to augment the existing literature by elucidating the Crawford standard in the context of terrorism prosecutions in Article III courts. It details the shifts between Ohio v. Roberts and Crawford, analyzes subsequent federal case law, and tests the new framework on hypothetical terrorism fact patterns. This Note anticipates that for some types of evidence, such as ex parte affidavits and written summaries of testimony, the Crawford test will create significant hurdles for prosecutors in terrorism cases. A viable solution to this problem is for the government to make greater use of witness depositions abroad pursuant to Federal Rule of Criminal Procedure 15(c)(3).