Dishonest Ethical Advocacy?: False Defenses in Criminal Court

This Note examines this dilemma and recent judicial approaches to it. Judges disagree about how guilty criminal defendants should be permitted to mount defenses at trial. Some have forbidden defense counsel from knowingly advancing any false exculpatory proposition. Others have permitted guilty defense attorneys to present sincere or truthful testimony in order to bolster a falsehood. And still others have signaled more general comfort with the idea that an attorney aggressively can pursue an acquittal on behalf of a guilty client. This Note seeks to resolve this issue by parsing the range of false defense tactics available to attorneys and evaluating the propriety of each under the Model Rules of Professional Conduct. This Note reads the Model Rules in the context of the adversary system’s twin aims to seek truth and safeguard individual rights; it defines and categorizes specific false defense tactics; and it offers practical, context-specific recommendations to courts and attorneys evaluating knowingly false defenses as they occur in the real world

Immigration-Related Worksite Enforcement: Performance Measures

[Excerpt] Over the past few years, the media have been filled with reports about worksite enforcement operations, commonly referred to as immigration raids. These operations represent the public face of efforts by the Department of Homeland Security (DHS) to curtail the employment of unauthorized immigrants (illegal aliens). According to 2006 estimates, there are some 7.8 million unauthorized workers in the U.S. civilian workforce. DHS’s U.S. Immigration and Customs Enforcement (ICE) is responsible for Immigration-related worksite enforcement, or enforcement of the prohibitions on unauthorized employment in Section 274A of the Immigration and Nationality Act (INA). The INA §274A provisions, sometimes referred to as employer sanctions, make it unlawful for an employer to knowingly hire, recruit or refer for a fee, or continue to employ an alien who is not authorized to be so employed. Today, ICE’s worksite enforcement program is focused primarily on cases that involve critical infrastructure facilities and cases involving employers who commit “egregious violations” of criminal statutes and engage in worker exploitation. Employers who violate INA prohibitions on the unlawful employment of aliens may be subject to civil monetary penalties and/or criminal penalties. Criminal investigations may result in defendants being charged with crimes beyond unlawful employment and being subject to the relevant penalties for those violations. Various measures are available to examine the performance of ICE’s worksite enforcement program. They include Final Orders for civil monetary penalties, administrative fines, administrative arrests, criminal arrests, criminal indictments and convictions, and criminal fines and forfeitures. In recent years, ICE has generally focused less on administrative fines and more on administrative and criminal arrests, criminal prosecutions, and criminal fines and forfeitures. The data presented here show increases in these latter measures in recent years. At the same time, however, when considered in terms of the estimated size of the unauthorized workforce or the potential number of employers employing these workers in violation of the law, ICE’s worksite enforcement program can seem quite small. Enforcement activity by the Department of Labor (DOL) is also relevant to a discussion of federal efforts to curtail unauthorized employment. DOL, which is responsible for enforcing minimum wage, overtime pay, and related requirements, focuses a significant percentage of its enforcement resources on a group of low-wage industries that employ large numbers of immigrant—and presumably large numbers of unauthorized—workers. Related background information can be found in CRS Report RL33973, Unauthorized Employment in the United States: Issues and Options, and a discussion of related legislation can be found in CRS Report RL34204, Immigration Legislation and Issues in the 110th Congress. This report will be updated when new data become available

Domestic Drone Surveillance: The Court’s Epistemic Challenge and Wittgenstein’s Actional Certainty

This article examines the domestic use of drones by law enforcement to gather information. Although the use of drones for surveillance will undoubtedly provide law enforcement agencies with new means of gathering intelligence, these unmanned aircrafts bring with them a host of legal and epistemic complications. Part I considers the Fourth Amendment and the different legal standards of proof that might apply to law enforcement drone use. Part II explores philosopher Wittgenstein’s notion of actional certainty as a means to interpret citizens' expectations of privacy with regard to their patterns of movement over time. Part III discusses how the theory of actional certainty can apply to the epistemic challenge of determining what is a “reasonable” expectation of privacy under the law. This Part also investigates the Mosaic Theory as a possible reading of the Fourth Amendment

Lenz v. Universal Music Corp. And the Potential Effect of Fair Use Analysis Under the Takedown Procedures of §512 of the DMCA

The notice and takedown/putback procedures in §512 of the Digital Millennium Act fail to adequately protect the rights of individuals who post content on the internet. This iBrief examines the notice and takedown/putback procedures and Judge Fogel\u27s decision in Lenz v. Universal Music Corp., which requires a copyright owner to conduct a fair use evaluation prior to issuing a takedown notice. This iBrief concludes such a requirement is an appropriate first step towards creating adequate protection for user-generated content on the Internet

Immigration-Related Worksite Enforcement: Performance Measures

[Excerpt] In the spring of 2009, the Department of Homeland Security (DHS) issued new guidance on immigration-related worksite enforcement—the enforcement of prohibitions on the employment of unauthorized aliens in the United States. In the words of DHS, the updated guidance “reflects a renewed Department-wide focus targeting criminal aliens and employers who cultivate illegal workplaces by breaking the country’s laws and knowingly hiring illegal workers.” According to 2008 estimates, there are some 8.3 million unauthorized workers in the U.S. civilian workforce. Questions arise as to how rigorous and effective DHS’s worksite enforcement efforts have been under the Obama Administration and in past years. The department maintains data on several measures that can be used to examine the performance of its worksite enforcement program. Enforcement activity by the Department of Labor (DOL) is also relevant to a discussion of federal efforts to address unauthorized employment. DOL, which is responsible for enforcing minimum wage, overtime pay, and related requirements, focuses a significant percentage of its enforcement resources on a group of low-wage industries that employ large numbers of immigrant—and presumably large numbers of unauthorized—workers

Immigration-Related Worksite Enforcement: Performance Measures

[Excerpt] According to the estimates by the Department of Homeland Security (DHS), some 11.4 million unauthorized immigrants were living in the United States in 2012.1 The Pew Research Center’s unauthorized alien population estimate for 2012 was 11.2 million, which included some 8.1 million unauthorized workers in the U.S. civilian workforce.2 It is widely believed that most unauthorized aliens enter and remain in the United States in order to work. Six years ago, in 2009, DHS issued new guidance on immigration-related worksite enforcement—the enforcement of prohibitions on the employment of unauthorized aliens in the United States. In the words of DHS at the time, the 2009 guidance “reflects a renewed Department-wide focus targeting criminal aliens and employers who cultivate illegal workplaces by breaking the country’s laws and knowingly hiring illegal workers.”3 Under this guidance, promoting compliance also has taken on a larger role in DHS’s worksite enforcements efforts. Questions arise as to how rigorous and effective DHS’s worksite enforcement efforts are and have been in past years. The department maintains data on several measures that can be used to examine the performance of its worksite enforcement program. Enforcement activity by the Department of Labor (DOL) is also relevant to a discussion of federal efforts to address unauthorized employment. DOL, which is responsible for enforcing minimum wage, overtime pay, and related requirements, focuses a significant percentage of its enforcement resources on low-wage industries that employ large numbers of immigrant—and presumably large numbers of unauthorized—workers

In Praise of the Lawless Jury

Jury nullification is justified by the principle that individuals are prima facie ethically obligated to avoid causing unjust harms. Safeguarding justice against unjust laws and punishments of the government is the central function of the jury