The Yale Law Journal

Criminal Procedure


Seeking Equity in Electronic Monitoring: Mounting a Bearden Challenge

Ryanne Bamieh

In Bearden v. Georgia, the Supreme Court held a defendant cannot be imprisoned for failure to pay a fine they could not afford. Yet, many defendants remain incarcerated because they cannot pay for Electronic Monitoring. This Comment seeks to remedy that disparity by applying Bearden to Electronic Mo…


The Fourth Amendment and General Law

Danielle D’Onfro & Daniel Epps

This Article contends that courts should interpret the Fourth Amendment by looking to “general law”—common-law rules under the control of no particular sovereign. This approach finds strong support in the Fourth Amendment’s text, doctrine, and historical background, and would protect the Amendment’s…


Excessive Sentencing Reviews: Eighth Amendment Substance and Procedure

Matt Kellner

Using Louisiana law as a case study, this Essay describes the consequences of the lack of substantive limits on noncapital sentences. It then critiques the focus on procedural rights that results from this vacuum of substantive rights, and discusses how to harness procedural changes to address exces…


Equalizing Access to Evidence: Criminal Defendants and the Stored Communications Act

Rebecca Steele

The Stored Communications Act poses an increasing threat to criminal defendants’ ability to access evidence. This Note analyzes pathways criminal defendants can pursue to access evidence within the current statutory framework and argues that the statute is unconstitutional as applied to cases where …


Fruit of the Racist Tree: A Super-Exclusionary Rule for Racist Policing Under California’s Racial Justice Act

Marnie Lowe

What would it take for a state to eliminate racial bias in policing? This Comment explores one intervention set forth in California’s new Racial Justice Act: a guarantee of charging or sentencing relief for anyone subjected to police racism during arrest or investigation.



The Ostensible (and, at Times, Actual) Virtue of Deference

Anthony O’Rourke

Rethinking Police Expertise reveals how litigators can use police officers’ assertions of expertise against them. This Response questions the value, however, of urging judges to treat police expertise as a “professional technology” as opposed to a “professional virtue.” Insisting on this conceptual …


Probable Cause Pluralism

Andrew Manuel Crespo

According to the Supreme Court, the most important phrase in the Fourth Amendment, probable cause, is not possible to define. This Article disagrees. It proposes a novel and comprehensive account of probable cause—one that offers meaningful and predictable constraints on law enforcement, while avo…


The Power of Police Officers to Give “Lawful Orders”

James Mooney

Forty-four states, the District of Columbia, and the federal government criminalize disobeying the “lawful orders” of police officers. But it is uncertain which orders are lawful. This Comment proposes a model statute that would clarify and limit police authority while informing civilians about the …


(Un)Constitutional Punishments: Eighth Amendment Silos, Penological Purposes, and People’s “Ruin”

Judith Resnik

Timbs v. Indiana reaffirms the Constitution's role in determining the bounds of licit punishment. This Essay weaves together doctrines that are often siloed but answer the same question: what can't governments do as punishment? I argue that the law has begun to build the principle that governments n…


A Proposal to Stop Tinkering with the Machinery of Debt

Brandon Buskey

In the wake of the Supreme Court’s 2019 decision in Timbs v. Indiana, which applied the Excessive Fines Clause to the States, this Essay argues that defendants are better protected by replacing the clause’s “gross disproportionality” standard with the more rigorous proportionality guarantee of the E…


Financial Hardship and the Excessive Fines Clause: Assessing the Severity of Property Forfeitures After Timbs

Beth A. Colgan & Nicholas M. McLean

This Essay sketches the outlines of a forfeitures jurisprudence under the Eighth Amendment’s Excessive Fines Clause in which the effect of property deprivations on individuals and their families—in particular, the infliction of financial hardship—is a core criterion in assessing a forfeiture’s sever…


Bias In, Bias Out

Sandra G. Mayson

The rise of criminal justice risk assessment has generated concerns about its disparate racial impact. Yet the prevailing responses to this problem, this Article contends, are inadequate. The real issue is the nature of prediction itself, and this demands a fundamental rethinking of risk assessment …


Jury Selection as Election: A New Framework for Peremptory Strikes

Ela A. Leshem

The ability of peremptory strikes to contribute to impartial juries has long been debated. This Note argues that both defenders and critics have overlooked an important value served by peremptory strikes beyond impartiality: democratic legitimacy. Just as elections help legitimate the state’s coerci…


The Voluntariness of Voluntary Consent: Consent Searches and the Psychology of Compliance

Roseanna Sommers & Vanessa K. Bohns

The Fourth Amendment allows police to perform warrantless searches of individuals if they give consent to be searched and that consent is voluntary. Based on original laboratory research, this Essay posits that fact-finders assessing voluntariness underappreciate the extent to which suspects feel pr…


The High Stakes of Low-Level Criminal Justice

Alexandra Natapoff

Alexandra Natapoff reviews Misdemeanorland, summarizing the book’s key contributions and extending its insights about New York City’s system of misdemeanor managerial social control to illuminate the broader dynamics and democratic significance of the U.S. misdemeanor process.


The Present Crisis in American Bail

Kellen Funk

This Essay reviews the recent rise of systemic injunctions against money bail systems and a major question they raise: what level of scrutiny applies to allegedly unconstitutional bail systems. It concludes that, in light of history and precedent, strict scrutiny is the appropriate standard. 


Fourth Amendment Reasonableness After Carpenter

Alan Z. Rozenshtein

In Carpenter v. United States, the Supreme Court held that a warrant is required when the government collects certain categories of third-party data. This Essay argues that a categorical warrant requirement for electronic surveillance is a mistake, and that, when faced with warrantless electronic su…


Democratic Policing Before the Due Process Revolution

Sarah A. Seo

Prevailing narratives of the Warren Court’s Due Process Revolution emphasize how it constrained police behavior. This Essay questions this account. It returns to the legal culture before the Revolution, focusing on three lectures by the prominent scholar Jerome Hall. Due process, it concludes, as mu…


The Punishment Bureaucracy: How to Think About “Criminal Justice Reform”

Alec Karakatsanis

The “criminal justice reform” movement is in danger. Efforts to change the punishment bureaucracy are at risk of being co-opted by bureaucrats who have created and profited from mass human caging. This Essay seeks to understand the true functions of the punishment bureaucracy and to offer suggestion…


What Break Do Children Deserve? Juveniles, Crime, and Justice Kennedy’s Influence on the Supreme Court’s Eighth Amendment Jurisprudence

Reginald Dwayne Betts

Many read Justice Kennedy’s landmark Eighth Amendment sentencing cases to herald a fundamental change in how juveniles are treated in the criminal justice system. But the better reading is more modest. Instead, they force us to ask what it means to say that youth is relevant to the determination of …


The Pope and the Capital Juror

Aliza Plener Cover

The Pope recently pronounced capital punishment impermissible. Counterintuitively, this might make capital punishment less popular but more prevalent. This Essay anticipates this dynamic, and explores how “death qualification” of juries insulates the death penalty even as community morality evolves …


In the Shadow of Child Protective Services: Noncitizen Parents and the Child-Welfare System

Tal D. Eisenzweig

The noncitizen parent exists between two often-conflicting legal identities: that of an immigrant and that of a parent. This Essay argues that state child services should strive to mitigate the tension between these identities and take an active role in shielding these parents from immigration conse…


Beyond the Box: Safeguarding Employment for Arrested Employees

Shelle Shimizu

Most criminal system reform efforts neglect the collateral consequences experienced by individuals with pending criminal cases. This Essay argues that meaningful reform requires enhanced protections for current employees and applicants with open criminal cases.


Dangerous Defendants

Sandra G. Mayson

Bail reformers aspire to untether pretrial detention from wealth and condition it instead on the risk that a defendant will commit crime if released. In setting this risk threshold, this Article argues that there is no clear constitutional, moral, or practical basis for distinguishing between equall…


Government Hacking

Jonathan Mayer

The United States government hacks computer systems for law enforcement purposes. This Article provides the first comprehensive examination of how federal law regulates government malware, and argues that government hacking is inherently a Fourth Amendment search—a question on which the courts have …


Machine Testimony

Andrea Roth

Machines play increasingly crucial roles in establishing facts in legal disputes. Some machines convey information—the images of cameras, the measurements of thermometers, the opinions of expert systems. When a litigant offers a human assertion for its truth, the law subjects…


Cops and Pleas: Police Officers’ Influence on Plea Bargaining

Jonathan Abel

abstract.Police officers play an important, though little-understood, role in plea bargaining. This Essay examines the many ways in which prosecutors and police officers consult, collaborate, and clash with each other over plea bargaining. Using original interviews with criminal justice of…


The Bostic Question

Charles C. Bridge

Introduction Federal criminal procedure regularly struggles with a tension between fairness and finality. The Constitution provides defendants with special privileges and protections designed to prevent injustice,1 but systemic concerns about efficiency, comity, and finality make i…


Systemic Triage: Implicit Racial Bias in the Criminal Courtroom

L. Song Richardson

Crook County: Racism and Injustice in America’s Largest Criminal Court By Nicole van cleve Stanford university press, april 2016 author. Professor of Law, U.C. Irvine School of Law. A.B. Harvard College, J.D. Yale Law School. I wish to thank Rick Banks, Erwin Chemerins…


From False Evidence Ploy to False Guilty Plea: An Unjustified Path To Securing Convictions

Katie Wynbrandt

introduction On June 20, 1991, two police officers brought an African American man named Anthony Gray into custody for questioning related to the unsolved rape and murder of a woman in Calvert County, Maryland.1 During the interrogation, the detectives lied to Mr. Gray about the evid…


Innocence and Override

Patrick Mulvaney & Katherine Chamblee

For the past three decades, the practice of judicial override in capital cases has allowed Alabama judges to impose the death penalty even where the jury voted for life. However, recent developments have cast doubt on the future of override in Alabama. The United States Supreme Court struck down par…


Ideological Imbalance and the Peremptory Challenge

Joshua Revesz

Legal scholars, by and large, revile peremptory challenges. Allowing parties to unilaterally strike prospective jurors without explanation has been attacked as undemocratic,1 as prone to manipulation,2 as a potential First Amendment violation,3 and—most often of all—as racist.4 Judge…


The New Public

Sarah A. Seo

By exploring the intertwined histories of the automobile, policing, criminal procedure, and the administrative state in the twentieth-century United States, this Essay argues that the growth of the police’s discretionary authority had its roots in the governance of an automotiv…


Will Putting Cameras on Police Reduce Polarization?

Roseanna Sommers

In the wake of national outrage and polarization over several high-profile police shootings of unarmed citizens, reformers have called for police officers to wear body cameras. This Note argues that, despite the seeming objectivity of the camera, video footage remains susceptible…


The Lost “Effects” of the Fourth Amendment: Giving Personal Property Due Protection

Maureen E. Brady

In addition to “persons, houses, [and] papers,” the Constitution protects individuals against unreasonable searches and seizures of “effects.” However, “effects” have received considerably less attention than the rest of the categories in the Fourth Amendment. Rec…


Roundup: Recent Developments in Criminal Justice and Mental Health Law

Michael Clemente

Over the past few weeks, several major developments have occurred at the intersection of criminal justice and mental health law. This Roundup briefly summarizes these matters and discusses how each reflects current trends in the criminal justice system’s approach to individuals with mental …


Riley's Implications for Fourth Amendment Protection in the Cloud

Ryan Watzel

In June 2014, the Supreme Court unanimously held in Riley v. California1 that the digital content of cell phones does not fall within the search-incident-to-arrest exception to the Fourth Amendment’s prohibition against unreasonable searches. The Court provided a clear answer “to the qu…


A Conversation with Justice Sotomayor

Justice Sonia Sotomayor & Linda Greenhouse

On February 3, 2014, Justice Sonia Sotomayor delivered the James A. Thomas Lecture at Yale Law School. This transcript is adapted (with slight editing) from that lecture, which took the form of a conversation between Justice Sotomayor and Linda Greenhouse. The lecture touched on topics including Jus…


Secrecy, Intimacy, and Workable Rules: Justice Sotomayor Stakes Out the Middle Ground in United States v. Jones

Miriam H. Baer

In this Essay, Professor Miriam Baer focuses on Justice Sotomayor’s concurrence in United States v. Jones, which has attracted widespread notice due to Justice Sotomayor’s suggestion that the Court reconsider its reasonable expectation of privacy test and the related third-party doctrine. Professor …


Justice Sotomayor and Criminal Justice in the Real World

Rachel E. Barkow

As part of the symposium to reflect on Justice Sotomayor’s first five years on the Supreme Court, this Essay explores Justice Sotomayor’s contributions to the Court’s criminal law jurisprudence. Professor Rachel Barkow argues that Justice Sotomayor’s prior experience working on criminal law cases as…


Reading Michigan v. Bryant, “Reading” Justice Sotomayor

I. Bennett Capers

What are we to make of Justice Sotomayor’s criminal procedure jurisprudence? In this Essay, Professor I. Bennett Capers attempts to answer that question by offering three readings of her Confrontation Clause decision in Michigan v. Bryant. All three close readings, coupled with details from her memo…


Justice Sotomayor and the Jurisprudence of Procedural Justice

Tracey L. Meares & Tom R. Tyler

In this Essay, Professors Tyler and Meares highlight the ways in which recent social science research supports the model of jurisprudence articulated by Justice Sotomayor. Her model defines building identification with political and legal institutions as an important goal for the Court.  It further …


Justice Sotomayor and the Supreme Court’s Certiorari Process

Robert M. Yablon

The Supreme Court’s certiorari process is generally a black box. Occasionally, however, Justices issue statements explaining their dissent from or concurrence in the denial of certiorari. Since she joined the Court, Justice Sotomayor has produced more of these statements than any of her colleagues. …


On Estimating Disparity and Inferring Causation: Sur-Reply to the U.S. Sentencing Commission Staff

Sonja B. Starr & M. Marit Rehavi

In this Essay, Professors Starr and Rehavi respond to the U.S. Sentencing Commission’s empirical staff’s criticisms of their recent article, which found, contrary to the Commission’s prior work, no evidence that racial disparity in sentences increased in response to United States v. Booker. As Starr…


Why Judges Matter at Sentencing: A Reply to Starr and Rehavi

Glenn R. Schmitt, Louis Reedt, & Kevin Blackwell

In this Essay, researchers at the United States Sentencing Commission respond to criticisms by Sonja Starr and Marit Rehavi, published in the Yale Law Journal, of the Commission’s past analyses of demographic differences in federal sentences. The researchers explain the legal and practical foundatio…


Why Civil Gideon Won’t Fix Family Law

Rebecca Aviel

This Essay explains why we should hesitate before throwing full support behind a civil Gideon initiative for family law, regardless of how wholeheartedly we embrace the proposition that parental rights are as important as physical liberty. The comparable importance of these interests does not necess…


Gideon Exceptionalism?

John H. Blume & Sheri Lynn Johnson

122 Yale L.J. 2126 (2013).

There is no doubt that Gideon v. Wainwright is extraordinary, but in thinking about its uniqueness, we are reminded of “American exceptionalism” and the diametrically opposed meanings that advocates have ascribed to the phrase. Gideon too is exceptional, in both the laudato…


Poor People Lose: Gideon and the Critique of Rights

Paul D. Butler

122 Yale L.J. 2176 (2013).

A low income person is more likely to be prosecuted and imprisoned post-Gideon than pre-Gideon. Poor people lose in American criminal justice not because they have ineffective lawyers but because they are selectively targeted by police, prosecutors, and law makers. The crit…


Celebrating the “Null” Finding: Evidence-Based Strategies for Improving Access to Legal Services

Jeanne Charn

122 Yale L.J. 2206 (2013).

Recent empirical studies tested whether litigants with access to lawyers fared better than litigants with access only to advice or limited assistance. Two of the three studies produced null findings—the litigants with access to lawyers, the treatment group, fared no better …


Race and the Disappointing Right to Counsel

Gabriel J. Chin

122 Yale L.J. 2236 (2013).

Critics of the criminal justice system observe that the promise of Gideon v. Wainwright remains unfulfilled. They decry both the inadequate quality of representation available to indigent defendants and the racially disproportionate outcome of the criminal process. Some hop…


Searching for Solutions to the Indigent Defense Crisis in the Broader Criminal Justice Reform Agenda

Roger A. Fairfax, Jr.

122 Yale L.J. 2316 (2013).

As we mark the fiftieth anniversary of the Gideon v. Wainwright decision, the nearly universal assessment is that our indigent defense system remains too under-resourced and overwhelmed to fulfill the promise of the landmark decision, and needs to be reformed. At the same t…


Gideon’s Amici: Why Do Prosecutors So Rarely Defend the Rights of the Accused?

Bruce A. Green

122 Yale L.J. 2336 (2013).

In Gideon v. Wainwright, twenty-three state attorneys general, led by Walter F. Mondale and Edward McCormack, joined an amicus brief on the side of the criminal accused, urging the Supreme Court to recognize indigent defendants’ Sixth Amendment right to appointed counsel in…


Valuing Gideon’s Gold: How Much Justice Can We Afford?

M. Clara Garcia Hernandez & Carole J. Powell

122 Yale L.J. 2358 (2013).

In this Essay, we explore Gideon’s impact in our community, El Paso, Texas, which has the will to try to meet Gideon’s challenge, but lacks the resources to deliver fully Gideon’s promise. We look at the origins of our community’s indigent defense reform and examine our off…


Investigating Gideon’s Legacy in the U.S. Courts of Appeals

Emily Hughes

122 Yale L.J. 2376 (2013).

This Essay investigates the legacy of Gideon by examining the de facto courts of last resort for convicted offenders: the federal courts of appeals. Part I focuses on the U.S. courts of appeals’ judges and caseloads, revealing that very few federal appellate judges have pri…


Gideon at Guantánamo

Neal Kumar Katyal

122 Yale L.J. 2416 (2013).

The right to counsel maintains an uneasy relationship with the demands of trials for war crimes. Drawing on the author’s personal experiences from defending a Guantánamo detainee, the Author explains how Gideon set a baseline for the right to counsel at Guantánamo. Whether …


Enforcing Effective Assistance After Martinez

Nancy J. King

122 Yale L.J. 2428 (2013).

This Essay argues that the Court’s effort to expand habeas review of ineffective assistance of counsel claims in Martinez v. Ryan will make little difference in either the enforcement of the right to the effective assistance of counsel or the provision of competent represen…


Gideon’s Law-Protective Function

Nancy Leong

122 Yale L.J. 2460 (2013).

Gideon v. Wainwright
dramatically affects the rights of indigent defendants by entitling them to representation. But Gideon has another systemic consequence as well. In addition to protecting the rights of individual defendants in particular trials, Gideon also protects the…


Gideon’s Shadow

Justin F. Marceau

122 Yale L.J. 2482 (2013).

The right to counsel is regarded as a right without peer, even in a field of litigation saturated with constitutional protections. But from this elevated, elite-right status, the right to counsel casts a shadow over the other, less prominent criminal procedure rights. Elabo…


Gideon at Guantánamo: Democratic and Despotic Detention

Hope Metcalf & Judith Resnik

122 Yale L.J. 2504 (2013).

One measure of Gideon v. Wainwright is that it made the U.S. government’s efforts to isolate 9/11 detainees from all outsiders at Guantánamo Bay conceptually and legally unsustainable. Gideon, along with Miranda v. Arizona, is part of a democratic narrative shaped over dec…


Fear of Adversariness: Using Gideon To Restrict Defendants’ Invocation of Adversary Procedures

Pamela R. Metzger

122 Yale L.J. 2550 (2013).

Fifty years ago Gideon promised that an attorney would vindicate the constitutional rights of any accused too poor to afford an attorney. But Gideon also promised more. Writ small, Gideon promised to protect individual defendants; writ large, Gideon promised to protect our …


Federal Public Defense in an Age of Inquisition

David E. Patton

122 Yale L.J. 2578 (2013).

This Essay asks whether federal criminal defendants receive fairer process today than they did in 1963, when Gideon v. Wainwright was decided. It concludes that in many situations they do not; indeed, they often receive far worse. Although Gideon and the Criminal Justice Ac…


Effective Trial Counsel After Martinez v. Ryan: Focusing on the Adequacy of State Procedures

Eve Brensike Primus

122 Yale L.J. 2604 (2013).

Everyone knows that excessive caseloads, poor funding, and a lack of training plague indigent defense delivery systems throughout the states, such that the promise of Gideon v. Wainwright is largely unfulfilled. Commentators have disagreed about how best to breathe life int…


Implicit Racial Bias in Public Defender Triage

L. Song Richardson & Phillip Atiba Goff

122 Yale L.J. 2626 (2013).

Despite the promise of Gideon, providing “the guiding hand of counsel” to indigent defendants remains unmanageable, largely because the nation’s public defender offices are overworked and underfunded. Faced with overwhelming caseloads and inadequate resources, public defend…


Effective Plea Bargaining Counsel

Jenny Roberts

122 Yale L.J. 2650 (2013).

Fifty years ago, Clarence Earl Gideon needed an effective trial attorney. The Supreme Court agreed with Gideon that the Sixth Amendment guaranteed him the right to counsel at trial. Recently, Galin Frye and Anthony Cooper also needed effective representation. These two men,…


Lessons from Gideon

Erwin Chemerinsky

122 Yale L.J. 2676 (2013).

Why has the promise of Gideon gone largely unfulfilled and what can be learned from this? Gideon was an unfunded mandate to state governments, requiring them to provide the money to ensure competent counsel for all criminal defendants facing possible prison sentences. Gideo…


Gideon at Fifty: A Problem of Political Will

Carol S. Steiker

122 Yale L.J. 2694 (2013).

Although it is fitting to celebrate Gideon’s promise of representation for indigent criminal defendants at this landmark anniversary, it is important also to note that part of Gideon’s legacy should be our recognition of the limits of law in the fulfillment of that promise.…


Mere Negligence or Abandonment? Evaluating Claims of Attorney Misconduct After Maples v. Thomas

Wendy Zorana Zupac

122 Yale L.J. 1328 (2013).

In recent terms the Supreme Court has attempted to carve out remedies for habeas petitioners with negligent lawyers. This Note explores the analysis used by the Court in these cases and applies a novel descriptive model to explain how the Court has applied two different mod…


Asymmetries and Incentives in Plea Bargaining and Evidence Production

Saul Levmore & Ariel Porat

122 Yale L.J. 690 (2012).

Legal rules severely restrict payments to fact witnesses, though the government can often offer plea bargains or other nonmonetary inducements to encourage testimony. This asymmetry is something of a puzzle, for most asymmetries in criminal law favor the defendant. The asymm…


Targeting the Twenty-First-Century Outlaw

Jane Y. Chong

122 Yale L.J. 724 (2012).

This Note proposes using outlawry proceedings to bring legitimacy to the government’s targeted killing regime. Far from clearly contrary to the letter and spirit of American due process, outlawry endured for centuries at English common law and was used to sanction lethal for…


Confronting Crawford v. Washington in the Lower Courts

Dylan O. Keenan

122 Yale L.J. 782 (2012).

Crawford v. Washington is arguably the most significant criminal procedure decision of the last decade. Critics have argued that the Crawford line is a doctrinal muddle that has led to arbitrary and unpredictable results in the lower courts. I respond to this critique by pre…


Burden of Proof

Louis Kaplow

121 Yale L.J. 738 (2012).

The burden of proof is a central feature of all systems of adjudication, yet one that has been subject to little normative analysis. This Article examines how strong evidence should have to be in order to assign liability when the objective is to maximize social welfare. I…


Padilla v. Kentucky: The Effect of Plea Colloquy Warnings on Defendants’ Ability To Bring Successful Padilla Claims

Danielle M. Lang

121 Yale L.J. 944 (2012).


In Padilla v. Kentucky, the Supreme Court held that a lawyer’s failure to advise her noncitizen client of the deportation consequences of a guilty plea constitutes deficient performance of counsel in violation of a defendant’s Sixth Amendment rights. In the plea conte…


Baseline Framing in Sentencing

Daniel M. Isaacs


121 Yale L.J. 426 (2011).

When judges sentence criminal offenders, they begin their analysis with a baseline sentence established by statutes or guidelines. Cognitive biases will likely cause this initial baseline to frame judges’ thought processes, such that judges will impose different sentenc…


Deal or No Deal? Remedying Ineffective Assistance of Counsel During Plea Bargaining

David A. Perez

120 Yale L.J. 1532 (2011). 

What happens when a defendant receives defective counsel during plea bargaining but subsequently receives a fair trial? This Note discusses three different approaches: no remedy, specific performance of the plea bargain, and a retrial. It argues that specific performance…


Neuroscience and Institutional Choice in Federal Sentencing Law

Rebecca Krauss

120 Yale L.J. 367 (2010). 


The Reverse-Batson: Wrestling with the Habeas Remedy

Elina Tetelbaum

119 Yale L.J. 1739 (2010). 


Discovery Audits: Model Rule 3.8(d) and the Prosecutor's Duty To Disclose

Christina Parajon

119 Yale L.J. 1339 (2010). 


Fourth Amendment Seizures of Computer Data

Orin S. Kerr

119 Yale L.J. 700 (2010). 

What does it mean to “seize” computer data for Fourth Amendment purposes? Does copying data amount to a seizure, and if so, when? This Article argues that copying data “seizes” it under the Fourth Amendment when copying occurs without human observation and interrupts the …


Our Imperial Criminal Procedure: Problems in the Extraterritorial Application of U.S. Constitutional Law

José A. Cabranes

118 Yale L.J. 1660 (2009).


From the early days of the Republic, courts have encountered the question of whether and to what extent provisions of the Constitution establishing individual rights have force beyond the borders of the United States—that is, whether the Constitution has “extraterritor…


The Example of America

Owen Fiss

Owen M. Fiss, Sterling Professor of Law at Yale Law School, tackled legal issues involved in the war on terror on March 5, 2009 at the 13th Annual John W. Hager Distinguished Lecture at The University of Tulsa College of Law.

The Pocket Part is pleased to present an adapted version of Professor Fis…


John Doe Subpoenas: Toward a Consistent Legal Standard

Nathaniel Gleicher

118 Yale L.J. 320 (2008).


This Note considers the rising trend of anonymous online harassment and the use of John Doe subpoenas to unmask anonymous speakers. Although anonymity often serves as an important shield for valuable speech, it also protects online harassment that can chill or completel…


Discovering Arrest Warrants: Intervening Police Conduct and Foreseeability

Michael Kimberly

118 Yale L.J. 177 (2008).


Comparative Corporate Criminal Liability: Exploring the Uniquely American Doctrine Through Comparative Criminal Procedure

Edward B. Diskant

118 Yale L.J. 126 (2008).

In the United States, corporations—as entities—can be criminally tried and convicted for crimes committed by individual directors, managers, and even low-level employees. From a comparative perspective, such corporate liability marks the United States as relatively uniqu…


Federal Sentencing in 2007: The Center Holds—The Supreme Court Doesn't

Daniel C. Richman

117 Yale L.J. 1374 (2008).

This essay takes stock of federal sentencing after 2007, the year of the periphery. On Capitol Hill, Attorney General Alberto Gonzales resigned in the face of widespread criticism over his role in the replacement of several U.S. Attorneys. In the Supreme Court, the trio o…


The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion

Kate Stith

117 Yale L.J. 1420 (2008).

Early scholarship on the Federal Sentencing Guidelines focused on the transfer of sentencing authority from judges to the Sentencing Commission; later studies examined the transfer of discretion from judges to prosecutors. Of equal significance are two other institutional…


The Case Against Automatic Reversal of Structural Errors

Steven M. Shepard

117 Yale L.J. 1180 (2008).

This Note describes the case law governing three structural errors and shows that the rule of automatic reversal has led appellate courts to narrow the scope of the rights at issue. To avoid this effect, the Note proposes a new framework for determining whether a given ty…


Re-Justifying the Fair Cross Section Requirement: Equal Representation and Enfranchisement in the American Criminal Jury

Richard M. Re

116 Yale L.J. 1568 (2007)

This Note proposes a new justification for the fair cross section (FCS) requirement governing criminal jury composition. While the Supreme Court has defended the requirement by invoking demographic conceptions of the jury’s legitimacy, many scholars have observed that this…


The Organizational Guidelines: R.I.P.?

Peter J. Henning

In a recent issue of this Journal, Timothy A. Johnson argues that Congress may not make the Federal Sentencing Guidelines provisions on the sentencing of organizations (the “Organizational Guidelines”) mandatory because United States v. Booker guarantees the constitutional right of corporations…


Right and Responsibility in Fourth Amendment Jurisprudence: The Problem with Pretext

Eric F. Citron

Since Whren v. United States, Fourth Amendment analysis has failed to appreciate the serious wrongfulness of pretextual police behavior—especially searches and seizures. This is not because a pretext test is impractical or philosophically unsound. Rather, the problem lies in the current focus of our…


Throwing Away the Key

Ellen S. Podgor

The problem today is not only the draconian sentences that white-collar offenders are receiving, but the fact that because of the elimination of parole they will actually have to serve them. For example, if Michael Milken had been sentenced under today's sentencing regime, and if he had been made to…


Should the Criminal Defendant Be Assigned a Seat in Court?

Steven Shepard

115 Yale L.J. 2203 (2006)

In this Comment I question the U.S. Attorney's claim that every criminal defendant should be required to sit at the table farthest from the jury. Courtroom seating is properly within a trial judge's discretion, and there are good reasons for seating some criminal defendants …


Unaccountable at the Founding: The Originalist Case for Anonymous Juries

Kory A. Langhofer

115 Yale L.J. 1823 (2006)

This Comment argues that the courts overlook important Founding-era evidence on juror accountability. It concludes that the Public Trial Clause does not require juror identification. Part I describes the Public Trial Clause accountability argument made against the anonymous …


A Fair Trial Remedy for Brady Violations

Elizabeth Napier Dewar

115 Yale L.J. 1450 (2006)

This Note proposes a new remedy for criminal defendants when the government fails to fulfill its constitutional duty to disclose favorable evidence. When evidence that should have been disclosed earlier emerges during or shortly before trial, the court should consider instru…


Managing Transitional Moments in Criminal Cases

Toby J. Heytens

115 Yale L.J. 922 (2006)

As long as some courts review the work of others, there will be situations in which governing precedent shifts during the interval between an initial decision and the underlying dispute's ultimate resolution. Although such "transitional moments" follow many appellate court de…


A Quantitative Look at the Two-Suspect Scenario

Brian Netter

115 Yale L.J. 1167 (2006)

Two men are placed at the scene of a homicide. Each has an unsavory past and either could be the murderer--or an innocent man. It all depends on whether a witness should be believed, how the evidence is pieced together, and how the prosecutor decides to proceed. Should he tr…


Viewing CSI and the Threshold of Guilt: Managing Truth and Justice in Reality and Fiction

Tom R. Tyler

The "CSI effect" is a term that legal authorities and the mass media have coined to describe a supposed influence that watching the television show CSI: Crime Scene Investigation has on juror behavior. Some have claimed that jurors who see the high-quality forensic evidence presented on CSI raise th…


Can Attorneys and Clients Conspire?

Allon Kedem

114 Yale L.J. 1819 (2005)

A conspiracy is traditionally defined as "[a]n agreement between two or more persons to commit an unlawful act." The condition that two or more persons be involved is known as the "plurality" requirement. In Farese v. Scherer, the Eleventh Circuit held that an attorney acti…


Overlooking a Sixth Amendment Framework

Jason Colin Cyrulnik

114 Yale L.J. 905 (2005)

As the Supreme Court further plunges the world of criminal sentencing into turmoil, state courts in particular are scrutinizing their own statutory sentencing schemes and judicial practices. Ever since the Court's holding in Apprendi v. New Jersey (recently reformulated and…


Solving the Due Process Problem with Military Commissions

Nicholas Stephanopoulos

114 Yale L.J. 921 (2005)

The terrorist attacks of September 11, 2001 prompted the creation of two new adjudicatory bodies within the Department of Defense. First, military commissions were established by presidential order just two months after the attacks in order to prosecute members of al Qaeda fo…


Integrating Remorse and Apology into Criminal Procedure

Stephanos Bibas & Richard A. Bierschbach

114 Yale L.J. 85 (2004)

Criminal procedure largely ignores remorse and apology or, at most, uses them as proxies for an individual defendant's badness. The field is preoccupied with procedural values such as efficiency, accuracy, and procedural fairness, to the exclusion of the criminal law's substan…


Dual Sovereignty and the Sixth Amendment Right to Counsel

David J. D'Addio

113 Yale L.J. 1991 (2004)

United States v. Bird, 287 F.3d 709 (8th Cir. 2002); United States v. Avants, 278 F.3d 510 (5th Cir.), cert. denied, 536 U.S. 968 (2002).

In Texas v. Cobb, the Supreme Court affirmed that the Sixth Amendment right to counsel is "offense specific" and attaches only to charg…


What Feeney Got Right: Why Courts of Appeals Should Review Sentencing Departures De Novo

Andrew D. Goldstein

113 Yale L.J. 1955 (2004)

Last summer, when a panel of the U.S. Court of Appeals for the First Circuit issued its initial ruling in United States v. Thurston, it plunged into a war between federal judges and Congress, as well as between district and appellate courts, over how much flexibility trial j…


A Better Interpretation of "Special Needs" Doctrine After Edmond and Ferguson

Jonathan Kravis

112 Yale L.J. 2591 (2003)


Why Contempt Is Different: Agency Costs and "Petty Crime" in Summary Contempt Proceedings

Eric Fleisig-Greene

112 Yale L.J. 1223 (2003)

For as long as they have existed, contempt proceedings have been the source of significant controversy, their necessity and abuse hotly contested by the legal community, the legislature, and the judiciary. The raw, unchecked power of summary contempt--the ability of a judge …


Are Police Free To Disregard Miranda?

Steven D. Clymer

112 Yale L.J. 447 (2002)

This Article contends that the common understanding of Miranda as a direct restraint on custodial interrogation by police is mistaken. Instead, Miranda, like the privilege against compulsory self-incrimination that serves as its constitutional foundation, is a rule of admissi…


Local Policing After the Terror

William J. Stuntz

111 Yale L.J. 2137 (2002)

Crime waves always carry with them calls for more law enforcement authority. What happened on September 11, 2001 was, among other things, a crime wave--because of that one day, the number of homicides in America in 2001 will be twenty percent higher than the year before. It…


Unreasonable Probability of Error

Jed Handelsman Shugerman

111 Yale L.J. 435 (2001)


Jury Secrecy During Deliberations

Alison Markovitz

110 Yale L.J. 1493 (2001)



Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas

Stephanos Bibas

110 Yale L.J. 1097 (2001)

Last June, in Apprendi v. New Jersey, the Supreme Court held that any fact that increases a defendant's statutory maximum sentence must be proved to a jury beyond a reasonable doubt. This rule, like most of criminal procedure law and scholarship, rests on the assumption that…


Rethinking the Puzzle of Escalating Penalties for Repeat Offenders

David A. Dana

110 Yale L.J. 733 (2001)

The general principle of escalating penalties based on offense history is so widely accepted that it strikes most people as simple common sense. This principle, however, tests the explanatory limits of economics. Contrary to the assumptions in the existing literature, probabi…


DNA's Dark Side

Geoffrey Christopher Rapp

110 Yale L.J. 163 (2000)