Using the DNA Testing of Arrestees to Reevaluate Fourth Amendment Doctrine

With the advent of DNA testing, numerous issues have arisen with regard to obtaining and using evidence developed from such testing. As courts have come to regard DNA testing as a reliable method for linking some people to crimes and for exonerating others, these issues are especially significant. The federal government and most states have enacted statutes that permit or direct the testing of those convicted of at least certain crimes. Courts have almost universally approved such testing, rejecting arguments that obtaining and using such evidence violates the Fourth Amendment. More recently governments have enacted laws permitting or directing the taking of DNA samples from those arrested, but not yet convicted, for certain serious crimes. Courts had been far more divided about the constitutionality of DNA testing for arrestees than they were for the comparable testing of those already convicted of crimes. Given the division in the holdings among both state and federal courts and the increasing importance of DNA evidence in criminal investigations, it was hardly surprising that the Supreme Court agreed to hear a case regarding the constitutionality of a Maryland statute allowing for such testing. Section II of this article will provide a brief description of the science of DNA testing as it is used in the criminal justice system. Section III will discuss the Supreme Court\u27s decision in Maryland v. King. Section IV will address the argument of the opponents of the DNA testing of arrestees - that it violates the presumption of innocence. The chief focus of the article will appear in Sections V and VI, which will respond to the arguments posed by those who claim such testing violates the Fourth Amendment. Section V will address the balancing test for such searches and seizures long employed by the Supreme Court. Section VI describes and critiques the use of the primary purpose test as an important factor in determining whether the Fourth Amendment has been violated. This test looks to whether the primary purpose of the government\u27s search or seizure was something other than to ferret out ordinary criminal wrongdoing, and only in such situations excuses the absence of individualized suspicion

Suggestive Identifications: The Supreme Court\u27s Due Process Test Fails to Meet Its Own Criteria

There are perhaps few procedures in our system of criminal justice more inexact than eyewitness identification of criminal suspects. This is due in large measure to the many subtle psychological influences that affect any person\u27s ability to observe, retain, and recollect events, particularly when stress is present. The author discusses the current constitutional standard for the admissibility of eyewitness identifications and examines whether this test serves the interests it purports to uphold. After discussing the impact of psychological factors and suggestive police practices, the author offers some guidelines for more consistent application of the existing test

Whither Reasonable Suspicion: The Supreme Court\u27s Functional Abandonment of the Reasonableness Requirement for Fourth Amendment Seizures

Although the United States Supreme Court’s approach to issues governing application of the probable cause requirement of the Fourth Amendment has mutated over the years, at least one aspect of its approach has remained constant. Before information leading to probable cause or its lesser iteration of reasonable suspicion is found to exist, the government must demonstrate in some meaningful way the reliability of the person providing the information or of the information itself. Lacking such reliability, no search or seizure based on probable cause or reasonable suspicion is permitted. In its recent decision in Navarette v. California, the Court largely abandoned the requirement that this reliability be meaningful. It did so by holding that an anonymous 911 call without any impactful corroboration could supply the reasonable suspicion necessary to effect a seizure protected by the Fourth Amendment. This abandonment significantly increases the ability of the government to deprive a person of his or her freedom in conducting a seizure. Now, such a seizure can be effected without the government demonstrating that the individual who provided the information justifying the seizure is worthy of belief in any manner that has traditionally been used by the Court to show reliability. In its effort to justify this approach to reliability, the Court in Navarette misinterpreted rather egregiously its previous holdings on reliability in similar cases, and then offered new arguments to buttress its decision. These new arguments are unpersuasive in their application to the facts of Navarette and, even more troubling, are at odds with the principles embodied in the Fourth Amendment. Section I of this Article will examine the Supreme Court’s foundational decisions regarding the requirements for the government to show probable cause and the lower standard of reasonable suspicion for less intrusive searches and seizures. Section II will focus on the Court’s application of the reliability requirement for determining reasonable suspicion in the two cases that are directly on point with the facts and legal issues raised in Navarette. Section III will explore the Court’s holding in Navarette—examining the Court’s misapplication of the principles of previous holdings and the flawed reasoning used to justify the reliability of an anonymous, uncorroborated 911 call. One of the methods offered by the Court to show reliability involved the application of arguably related hearsay exceptions. Accordingly, Section IV will assess the propriety of using evidentiary principles in reaching determinations of constitutional law. The Article will conclude with a suggested approach for determining reliability in cases that rely on the presence of reasonable suspicion to justify a seizure protected by the Fourth Amendment

Proportionality in Non-Capital Sentencing: The Supreme Court\u27s Tortured Approach to Cruel and Unusual Punishment

This Article examines the Supreme Court\u27s treatment of the Eighth Amendment with respect to claims of excessive prison sentences. Specifically, it addresses the issue of whether and to what degree the Eighth Amendment requires that a punishment not be disproportionate to the crime. In analyzing all of the modern holdings of the Court in this area, this Article finds significant fault with each. The result of this series of flawed opinions from the Supreme Court is that the state of the law with respect to proportionality in sentencing is confused, and what law can be discerned rests on weak foundations. This Article begins with an analysis of the modern proportionality decisions of the Supreme Court in non-capital cases. It discusses the various approaches taken by members of the Court and tracks these approaches through each of the cases. The second portion discusses the philosophical justifications of punishment and the impact these justifications have on attempts to frame a proportionality standard. This Article concludes by recommending a constitutional standard consistent with accepted philosophical justifications of punishment and embodying principles determined by the Supreme Court to be of critical importance

Hot Crimes: A Study in Excess

Societies appear to be subject, every now and then, to periods of moral panic. . . . [I]ts nature is presented in a stylized and stereotypical fashion by the mass media; the moral barricades are manned by editors, bishops, politicians and other right thinking people; socially accredited experts pronounce their diagnoses and solutions; ways of coping are evolved or (more often) restored to; . . . sometimes the panic passes over and is forgotten . . . at other times it has more serious and long-lasting repercussions and might produce such as those in legal and social policy or even in the way society conceives itself. In the fall of 1984, after a jury acquitted two parents she had accused of sexually molesting their children and before she was forced to drop charges against the twenty-one remaining defendants she had accused of child sex abuse related charges, the chief prosecutor in Jordan, Minnesota said that she was sick to death of things like the presumption of innocence. After the tragic mass murders at Columbine High School in 1999, Mothers Against Drunk Driving ( MADD ) issued a press release classifying the murders as \u27insignificant\u27 compared to those killed in alcohol-related traffic accidents. What do these two announcements have in common? This Article suggests that each is but one manifestation of the pathology that exists regarding certain crimes and the reaction to them on the part of the public, the media, legislative bodies, law enforcement authorities, and ultimately members of the judicial system. For a long time, crimes such as these were either not treated with the seriousness they deserve (i.e. drunk driving) or the extent of their prevalence in society was significantly underestimated (i.e. child sex abuse). Fortunately, in ways this Article discusses, the previous undervaluation or under appreciation of these crimes was brought to the attention of different elements of American society, and people were educated about the nature of these crimes and the degree of harm they cause. As a result of this heightened attention, the public and particularly victims\u27 rights groups began to call for more action in preventing and punishing these crimes. Legislatures on both the state and federal levels responded to these calls with new laws designed to accomplish both goals. Prosecutors investigated these crimes with more urgency and charged and prosecuted them more strictly. Judges began to sentence individuals convicted of these offenses more harshly. In other words, each affected group in society took action in an appropriate way to deal with the dangers that child sex abusers and drunk drivers posed. There came a point, however, when reaction turned into over-reaction and remedial measures became excessive. This Article examines some of that over-reaction, seeks to explain why it occurs with certain crimes, fleshes out the lessons to be learned from the overreactions, and offers suggestions on how to avoid recurrences of this type of social pathology. For the most part, this Article uses those crimes related to the serious problems that child sex abusers and drunk drivers pose as illustrations of how crimes become hot crimes and then how such crimes are treated. Section II of this Article discusses the genesis of a hot crime, what factors appear to be needed for a crime to become hot, and how each factor contributes to the way in which such crimes are ultimately treated. Section III looks at the types of excesses that hot crimes breed. Section IV examines the kind of flaws in society\u27s responses to hot crimes that breed these excesses, Section V discusses how the concept that has been referred to as moral panic explains the hot crimes phenomenon. Lastly, Section VI explores ways in which society, particularly law enforcement and legal institutions, can respond to serious crimes without the need to react with excessive and arguably unconstitutional measures

Proportionality in Non-Capital Sentencing: The Supreme Court\u27s Tortured Approach to Cruel and Unusual Punishment

This Article examines the Supreme Court\u27s treatment of the Eighth Amendment with respect to claims of excessive prison sentences. Specifically, it addresses the issue of whether and to what degree the Eighth Amendment requires that a punishment not be disproportionate to the crime. In analyzing all of the modern holdings of the Court in this area, this Article finds significant fault with each. The result of this series of flawed opinions from the Supreme Court is that the state of the law with respect to proportionality in sentencing is confused, and what law can be discerned rests on weak foundations. This Article begins with an analysis of the modern proportionality decisions of the Supreme Court in non-capital cases. It discusses the various approaches taken by members of the Court and tracks these approaches through each of the cases. The second portion discusses the philosophical justifications of punishment and the impact these justifications have on attempts to frame a proportionality standard. This Article concludes by recommending a constitutional standard consistent with accepted philosophical justifications of punishment and embodying principles determined by the Supreme Court to be of critical importance

Suggestive Identifications: The Supreme Court\u27s Due Process Test Fails to Meet Its Own Criteria

There are perhaps few procedures in our system of criminal justice more inexact than eyewitness identification of criminal suspects. This is due in large measure to the many subtle psychological influences that affect any person\u27s ability to observe, retain, and recollect events, particularly when stress is present. The author discusses the current constitutional standard for the admissibility of eyewitness identifications and examines whether this test serves the interests it purports to uphold. After discussing the impact of psychological factors and suggestive police practices, the author offers some guidelines for more consistent application of the existing test

Consistently Inconsistent: The Supreme Court and The Confusion Surrounding Proportionality in Non-Capital Sentencing

(Adapted by permission from 84 Ky. L. J. 107 (1995)) This article examines the Supreme Court\u27s treatment of the Eighth Amendment with respect to claims of excessiveness regarding prison sentences. Specifically, it addresses the issue of whether and to what degree the Eighth Amendment requires that a punishment not be disproportional to the crime punished. In analyzing all of the modern holdings of the Court in this area, one finds significant fault with each. The result of this series of flawed opinions from the Supreme Court is that the state of the law with respect to proportionality in sentencing is confused, and what law can be discerned rests on weak foundations