Criminal Procedure

“Victim” or “Complaining Witness”: Why Kyle Rittenhouse’s Verdict May Depend on the Distinction

November 9, 2021

The decision of Judge Bruce Schroeder, the judge presiding over the Kyle Rittenhouse trial, to bar the prosecution from referring to the people he shot as “victims” has sparked debate. This Essay discusses the significance of this distinction as researched in a recent study. In August 2020, Kyle Rittenhouse traveled from Illinois to Kenosha, Wisconsin,…

Recent Case: Cantu v. Dothan

October 14, 2020

It is, perhaps, a severe understatement to claim that qualified immunity—the legal doctrine shielding police officers and other government officials from liability for constitutional violations in all but the most egregious cases—is a doctrine in need of reform. A recent Eleventh Circuit ruling in Cantu v. Dothan, however, exemplified how deeply this need for reform…

Constitutional Criminal Procedure Post-COVID

May 19, 2020

The current epicenters of COVID-19 in the United States are our jails and prisons, which has come as no surprise to public health experts and criminal law scholars who have predicted this entirely  predictable tragedy for months now.  Until recently, Cook County Jail, in Chicago, had the largest number of cases in a single location….

Recent Case: United States v. Wanjiku

April 16, 2019

United States v. Wanjiku is one of many recent Fourth Amendment cases that have come before circuit courts regarding border searches of cell phones. This batch of litigation sprung in part from the Supreme Court decision in Riley v. California, which held that officers generally need a warrant to conduct incidental searches of cell phones…

Recent Case: United States v. Korte

April 3, 2019

Roughly thirty years after the explosion of harsh punitive statutes like “three strikes” laws, legal and political momentum is building toward criminal justice reform. Any discussion of reform is incomplete without a discussion of supervised release and parole, regimes under which roughly 4.5 million Americans live. As more and more incarcerated people are released into…

Future-Proofing the Fourth Amendment

June 25, 2018

In Carpenter v. United States, Chief Justice John Roberts began the process of future-proofing the Fourth Amendment. In a majority opinion marked by technological sophistication and powerful arguments about arbitrary government surveillance, but overshadowed by four separate dissenting opinions, Carpenter both reframes the Fourth Amendment and reveals its fractured soul. To understand Carpenter is to…

Redefining Strickland Prejudice after Weaver v. Massachusetts

May 22, 2018

Obtaining postconviction relief based on a defense attorney’s ineffective trial performance is notoriously difficult, but the U.S. Supreme Court may have just made it a little easier. In this post, we explain how the Supreme Court’s decision last term in Weaver v. Massachusetts offers a little-noticed but potentially powerful new way for criminal defendants to…


Double Jeopardy All Over Again?

April 30, 2018

What if Donald Trump pardons people identified as targets by Robert Mueller before, during, or after they are prosecuted in federal court? Would those people escape accountability for their acts, or would a state—particularly New York State, which has jurisdiction over Trump Tower and several key players—be able to prosecute them for what is defined…

Carpenter and the Property Vocabulary

December 8, 2017

Last week, the Supreme Court heard oral argument in Carpenter v. United States, which will decide whether the government may acquire — without a warrant, and without probable cause — records of a person’s movements, using cell-site location information. It was a lively argument, but I’m going to focus on Justice Gorsuch’s questions about what…

Carpenter and Our Third-Party Future

October 27, 2017

Later this year, the Supreme Court will hear argument in Carpenter v. United States. The question presented is whether the government may, without a warrant and without probable cause, obtain your location information from a third party that has it (like your cell-phone provider). In Carpenter, the government learned where a criminal suspect had gone…