One Rule of Law Project in Post-Soviet Russia

One Rule of Law Project in Post-Soviet Russia is published as Chapter 9 of the book At Home Abroad: Friendship First - A Look at Rule of Law Projects and Other International Insights, (ed. Joseph Nadeau, New York: Austin Macauley Publishers LLC, 2019). This book provides personal insights into an international cooperative effort to promote the rule of law in emerging democracies around the world. Professor Scherr\u27s chapter examines the cultural context within a study of the rule-of-law project that was conducted between 1999 and 2004 in Vologda, Russia

Brief for Professor Albert E. Scherr as Amicus Curiae in Support of Petitioner

INTRODUCTION AND SUMMARY OF ARGUMENT Professor Scherr agrees with petitioner that review is warranted because the Maryland Court of Appeals decision is erroneous. The Fourth Amendment does not sanction police harvesting of DNA without probable cause and a warrant and without the subject’s knowledge or consent, to be used however the authorities deem appropriate and without restriction. The Maryland Court of Appeals’ decision is contrary to the Supreme Court’s jurisprudence as articulated in the Riley v. California – Maryland v. King – United States v. Jones trilogy. This case fits squarely in the center of the triangle formed by that trilogy. The petition should be accepted to remedy this conflict at the intersection of this Court’s jurisprudence on the newest forensic technology and the Fourth Amendment. Professor Scherr also agrees with the petitioner that this Court should accept this petition to resolve a conflict between a Federal Court of Appeals and a state court of appeals. In United States v. Davis, 690 F.3d 226 (4th Cir. 2012), the Fourth Circuit found that the police implicated the suspect’s Fourth Amendment privacy interest when it sought to obtain a DNA profile from his blood found on clothing it held legally. In this case the Maryland Court of Appeals found the opposite. As surreptitious harvesting cases continue to enter the criminal justice system, it is an opportune time for this Court to resolve this conflict and offer guidance to state and federal courts

Genetic Privacy & the Fourth Amendment: Unregulated Surreptitious DNA Harvesting

Genetic privacy and police practices have come to thefore in the criminal justice system. Case law and storiesin the media document that police are surreptitiouslyharvesting the out-of-body DNA of putative suspects.Some sources even indicate that surreptitious databanking may also be in its infancy. Surreptitiousharvesting of out-of-body DNA by the police is currentlyunregulated by the Fourth Amendment. The few courtsthat have addressed the issue find that the police are freeto harvest DNA abandoned by a putative suspect in apublic place. Little in the nascent surreptitious harvestingcase law suggests that surreptitious data banking wouldbe regulated either under current judicial conceptions ofthe Fourth Amendment.The surreptitious harvesting courts have misapplied theKatz reasonable-expectation-of-privacy test recentlyreaffirmed in United States v. Jones by the SupremeCourt. They have taken a mistakenly narrow property-based approach to their analyses. Given the potential forfuture abuse of the freedom to collect anyone\u27s out-of-bodyDNA without even a hunch, this Article proposes that the police do not need a search warrant or probable cause toseize an abandoned item in or on which cells and DNAexist. But they do need a search warrant supported byprobable cause to enter the cell and harvest the DNA.An interdisciplinary perspective on the physical,informational, and dignitary dimensions of geneticprivacy suggests that an expectation of privacy in thekaleidoscope of identity that is in out-of-body DNA. Usinglinguistic theory on the use of metaphors, the Article alsoexamines the use of DNA metaphors in popular culture asa reference point to explain a number of features of coreidentity in contrast to the superficiality of fingerprintmetaphors. Popular culture\u27s frequent uses of DNA as areference point reverberate in a way that suggests thatsociety does recognize as reasonable an expectation ofprivacy in DNA

Genetic Privacy and the Fourth Amendment: Unregulated Surreptitious DNA Harvesting

Genetic privacy and police practices have come to the fore in the criminal justice system. Case law and stories in the media document that police are surreptitiously harvesting the DNA of putative suspects. Some sources even indicate that surreptitious data banking may also be in its infancy. Surreptitious harvesting of out-of-body DNA by the police is currently unregulated by the Fourth Amendment. The few courts that have addressed the issue find that the police are free to harvest DNA abandoned by a putative suspect in a public place. Little in the nascent surreptitious harvesting case law suggests that surreptitious data banking would be regulated either under current judicial conceptions of the Fourth Amendment. The surreptitious harvesting courts have misapplied the Katz reasonable-expectation-of-privacy test recently reaffirmed in U.S. v. Jones by the Supreme Court. They have taken a mistakenly narrow property-based approach to their analyses. Given the potential for future abuse of the freedom to collect anyone’s out-of-body DNA without even a hunch, this article proposes that the police do not need a search warrant or probable cause to seize an abandoned item in or on which cells and DNA exist. But, they do need a search warrant supported by probable cause to enter the cell and harvest the DNA. An interdisciplinary perspective on the physical, informational and dignitary dimensions of genetic privacy suggests that an expectation of privacy expectation in the kaleidoscope of identity that is in out-of-body DNA. Using linguistic theory on the use of metaphors, the article also examines the use of DNA metaphors in popular culture as a reference point to explain a number of features of core identity in contrast to the superficiality of fingerprint metaphors. Popular culture’s frequent uses of DNA as a reference point reverberate in a way that suggests that society does recognize as reasonable an expectation of privacy in DNA

Genetic Privacy & the Fourth Amendment: Unregulated Surreptitious DNA Harvesting

Genetic privacy and police practices have come to thefore in the criminal justice system. Case law and storiesin the media document that police are surreptitiouslyharvesting the out-of-body DNA of putative suspects.Some sources even indicate that surreptitious databanking may also be in its infancy. Surreptitiousharvesting of out-of-body DNA by the police is currentlyunregulated by the Fourth Amendment. The few courtsthat have addressed the issue find that the police are freeto harvest DNA abandoned by a putative suspect in apublic place. Little in the nascent surreptitious harvestingcase law suggests that surreptitious data banking wouldbe regulated either under current judicial conceptions ofthe Fourth Amendment.The surreptitious harvesting courts have misapplied theKatz reasonable-expectation-of-privacy test recentlyreaffirmed in United States v. Jones by the SupremeCourt. They have taken a mistakenly narrow property-based approach to their analyses. Given the potential forfuture abuse of the freedom to collect anyone\u27s out-of-bodyDNA without even a hunch, this Article proposes that the police do not need a search warrant or probable cause toseize an abandoned item in or on which cells and DNAexist. But they do need a search warrant supported byprobable cause to enter the cell and harvest the DNA.An interdisciplinary perspective on the physical,informational, and dignitary dimensions of geneticprivacy suggests that an expectation of privacy in thekaleidoscope of identity that is in out-of-body DNA. Usinglinguistic theory on the use of metaphors, the Article alsoexamines the use of DNA metaphors in popular culture asa reference point to explain a number of features of coreidentity in contrast to the superficiality of fingerprintmetaphors. Popular culture\u27s frequent uses of DNA as areference point reverberate in a way that suggests thatsociety does recognize as reasonable an expectation ofprivacy in DNA

Rule of Law Project Meets \u27Arbitrary and Capricious\u27 Obstacles in Vologda, Russia

This article reports on the results of a cross-cultural program focused on post-secondary and graduate education funded by the Bureau of Educational and Cultural Affairs (ECA) at the United States Department of State (State Department) through the Freedom Support Act. The participating institutions were two schools from the United States, Franklin Pierce Law Center (FPLC) and University of New Hampshire (UNH) as well as one from Russia, the Vologda State Pedagogical University (VSPU). The program included classroom observation, research, and visits to legal and judicial offices in New Hampshire for Russian participants, and demonstration teaching by New Hampshire participants in Vologda. For U.S. participants, the grant provided the opportunity to become familiar with post-Soviet Russia and to observe the transition from the pre-Gorbachev Soviet era to the post-Soviet Putin era on location. Goals for the Russian participants included the establishment of clinical education at the Vologda law school, the development of new course offerings, and to gather materials for comparative teaching and research. Although the partnership met many of its stated goals, it was also noted that the program has faced many obstacles. Due to the number of problems that were encountered over the first four years that the program took place, the participants decided to suspend activities and have yet to determine whether to continue the partnership through the final sum of funds available