Symposium: Pandemics and the Constitution: Why the Special Needs Doctrine Is the Most Appropriate Fourth Amendment Theory for Justifying Police Stops to Enforce COVID-19 Stay-at-Home Orders

Despite the fact that the steps the federal and state governments take to curtail the spread of the viral infection are presumably taken in the best interest of public health, governmental actions and actors must comply with the U.S. Constitution even during a pandemic. Some public health measures, such as stay-at-home orders, restrict the exercise of personal freedoms ranging from the rights to travel and freely associate to the ability to gather in places of worship for religious services. This Essay explores several completing doctrines that might justify the authority of law enforcement to stop people who are out of their homes when a public health order has directed people to shelter-in-place during the COVID-19 pandemic

A Synthesis of the Science and Law Relating to Eyewitness Misidentifications and Recommendations for How Police and Courts Can Reduce Wrongful Convictions Based on Them

The empirical literature on perception and memory consistently demonstrates the pitfalls of eyewitness identifications. Exoneration data lend external validity to these studies. With the goal of informing law enforcement officers, prosecutors, criminal defense attorneys, judges, and judicial law clerks about what they can do to reduce wrongful convictions based on misidentifications, this Article presents a synthesis of the scientific knowledge relevant to how perception and memory affect the (un)reliability of eyewitness identifications. The Article situates that body of knowledge within the context of leading case law. The Article then summarizes the most current recommendations for how law enforcement personnel should—and should not—conduct eyewitness identification procedures. Finally, the Article concludes by making law and policy recommendations for handling eyewitness identification evidence in ways that can reduce wrongful convictions

A Content Analysis of Criminal Cases Concerning Unattended Children in Vehicles Between 1990 and 2021:Empirically-Based Suggestions for Reform

Leaving children unattended in vehicles is one of the leading causes of vehicle deaths not associated with a crash. Intended deaths that are purposefully caused via this phenomenon are quite rare. Rather, such fatalities are typically a result of a caregiver either forgetting a child in a vehicle or making a conscious decision to leave the child unattended without realizing the dangers attendant to that decision. Either way, the resultant harm sparks moral outrage in the media and the community. This, in turn, can prompt prosecution of caregivers under circumstances in which their actions may not align with the elements of the crimes with which they are charged. This Article synthesizes the extant literature on the phenomenon of children left unattended in vehicles (“CLUV”) by examining the dangers associated with the behavior and both the prevalence and conditions under which the phenomenon occurs. The Article then analyzes the laws that some state legislatures enacted to curb the CLUV phenomenon, focusing on criminal legal responses. By conducting an original, mixed-method content analysis of cases from across the United States, the Article presents a typology of how courts adjudicate CLUV cases that include both pediatric hyperthermia fatalities and those in which children survived CLUV incidents. Qualitative analysis reveal three overarching themes in CLUV cases, including those that involve disputes regarding the sufficiency of the evidence (often focusing on mens rea), questions of statutory construction, and challenges to the collateral consequences of convictions. Quantitative analyses demonstrate that across these three themes, the prosecution prevails in CLUV cases by a ratio of more than two to one. This appears to be due, in part, to the fact that in roughly one out of every five cases, the caregiver’s actions were attendant to either being under the influence of alcohol or other drugs at the time of the CLUV incident or participating in other criminal behaviors. Nonetheless, the cases in the research sample had a 32.6% reversal rate for sufficiency of the evidence claims— a rate quadruple that of the national reversal rate for all other crimes challenged on appeal on such grounds. This finding, in turn, suggests that prosecutors should rethink their approaches to CLUV cases. Additionally, legislatures could take steps to clarify the elements of CLUV-related offenses. Toward that end, the Article offers a suggested statute that would address the questions raised in the cases analyzed in this research. Finally, the Article concludes by offering and alternative ways to address children being harmed while unattended in vehicles using both formal and informal social controls

A Synthesis of the Science and Law Relating to Eyewitness Misidentifications and Recommendations for How Police and Courts Can Reduce Wrongful Convictions Based on Them

The empirical literature on perception and memory consistently demonstrates the pitfalls of eyewitness identifications. Exoneration data lend external validity to these studies. With the goal of informing law enforcement officers, prosecutors, criminal defense attorneys, judges, and judicial law clerks about what they can do to reduce wrongful convictions based on misidentifications, this Article presents a synthesis of the scientific knowledge relevant to how perception and memory affect the (un)reliability of eyewitness identifications. The Article situates that body of knowledge within the context of leading case law. The Article then summarizes the most current recommendations for how law enforcement personnel should—and should not—conduct eyewitness identification procedures. Finally, the Article concludes by making law and policy recommendations for handling eyewitness identification evidence in ways that can reduce wrongful convictions