Making the Most of United States v. Jones in a Surveillance Society: A Statutory Implementation of Mosaic Theory

article published in law journalIn the Supreme Court's recent decision in United States v. Jones, a majority of the Justices appeared to recognize that under some circumstances aggregation of information about an individual through governmental surveillance can amount to a Fourth Amendment search. If adopted by the Court, this notion sometimes called "mosaic theory"-could bring about a radical change to Fourth Amendment jurisprudence, not just in connection with surveillance of public movements-the issue raised in Jonesbut also with respect to the government's increasingly pervasive record-mining efforts. One reason the Court might avoid the mosaic theory is the perceived difficulty of implementing it. This article provides, in the guise of a model statute, a means of doing so. More specifically, this article explains how proportionality reasoning and political process theory can provide concrete guidance for the courts and police in connection with physical and data surveillance

Peeping Techno-Toms and the Fourth Amendment: Seeing Through Kyllo\u27s Rules Governing Technological Surveillance

This article suggests that the Supreme Court\u27s decision in Kyllo v. United States may not be as protective of the home as it first appears. Kyllo held that use of a thermal imager to detect heat sources inside the home is a fourth amendment search, requiring a warrant and probable cause. But it also held that use of technology that is in general public use or that only discovers what a naked eye observer could see from a public vantage point is not a search, even when the location viewed is the interior of the home. This article shows that both the general public use and naked eye exceptions are inscrutable, conceptually incoherent, and normatively objectionable. In making the normative argument in favor of eliminating both exceptions, it looks at historical material, current Peeping Tom legislation and empirical findings. It then argues that technological surveillance of the home should be regulated either through a proportionality approach, which varies the level of cause the government must have to search with the search\u27s intrusiveness, or through a legislative approach, using Title III\u27s regulation of communications surveillance as the model

Let\u27s Not Bury TERRY: A Call for Rejuvenation of the Proportionality Principle

Thirty years ago, Terry v. Ohio established a conceptual framework for the Fourth Amendment that makes more sense than any alternative the courts or commentators have come up with since. That frame-work, which I call the proportionality principle, is very simple: a search or seizure is reasonable if the strength of its justification is roughly proportionate to the level of intrusion associated with the police action. As the Court put it, there is \u27no ready test for determining reasonableness other than by balancing the need to search or seize against the invasion which the search or seizure entails.\u27 In Terry itself, this principle led to the holding that a stop and a frisk need be justified only on reasonable suspicion, rather than the higher probable cause standard required for more invasive arrests and full searches. If only the Court had applied Terry\u27s proportionality framework in a consistent fashion and extended it to the entire Fourth Amendment universe, we\u27d be in much better shape than we are today. Contrary to the suggestions of many commentators, I think that if the promise of Terry had been realized by the Court, our law regulating search and seizure would be more, not less, coherent. We would have more protection of individual privacy, not less. And race would be less of an issue in the law enforcement context, not the all-pervasive problem it is now

Cause to Believe What? The Importance of Defining a Search\u27s Object--Or, How the ABA Would Analyze the NSA Metadata Surveillance Program

Courts and scholars have devoted considerable attention to the definition of probable cause and reasonable suspicion. Since the demise of the “mere evidence rule†in the 1960s, however, they have rarely examined how these central Fourth Amendment concepts interact with the “object†of the search. That is unfortunate, because this interaction can have significant consequences. For instance, probable cause to believe that a search “might lead to evidence of wrongdoing†triggers a very different inquiry than probable cause to believe that a search “will produce evidence of criminal activity.†The failure to address the constraints that should be imposed on the object of a search has particularly acute implications in the context of records searches. This article explores the ramifications of this gap in Fourth Amendment jurisprudence both generally and in connection with the NSA’s metadata program, with particular attention to how the American Bar Association’s Standards on Government Access to Third Party Records, the topic of the symposium for which this article was written, resolve the relevant issues

The Case for a Federal Criminal Court System (and Sentencing Reform)

In their article in this issue, Professors Peter Menell and Ryan Vacca describe a federal court docket that is overloaded and unable to process cases efficiently. As they depict it, justice in the federal courts is either delayed or denied, disparity in legal outcomes among circuits is increasing, and the Supreme Court is falling farther and farther behind in resolving circuit splits. While these problems have been around for a while, Menell and Vacca argue they are getting worse and will only continue to worsen if radical action is not taken. Their article provides enough of a factual record to raise the concern that, because of their workload, the federal courts are not resolving cases as capably as they could. While Menell and Vacca focus on civil litigation in the federal system, this Article looks instead at criminal cases. It first considers whether the problems Menell and Vacca describe on the civil side afflict criminal litigation to the same extent. On the assumption that the problems in the criminal docket are similarly acute, it then considers whether anything can be done about them. Part I of this Article assesses the efficiency, uniformity, and quality of criminal justice in the federal system. It starts by noting that, while the federal criminal docket is not as overloaded as the civil docket on which Menell and Vacca focus, the number of criminal and prisoner cases commenced in federal court has far outpaced increases in judgeships. Perhaps as a result, resolution of these cases at the district court level has slowed appreciably over the past several decades, and while the rate at which criminal cases are terminated at the appellate level has not changed substantially, that stability appears to have come at a serious cost. Significant circumstantial evidence suggests that the federal appellate courts are not resolving criminal matters as carefully as they once did, in large part because over three-quarters of federal court cases are now handled through decisional shortcuts such as unpublished opinions and surrogate decision-makers, practices that are particularly prevalent in litigation affecting criminal defendants and prisoners. Making matters worse, the Supreme Court has become increasingly less able, or less willing, to resolve circuit court conflicts over criminal law issues

Public Privacy: Camera Surveillance of Public Places and the Right to Anonymity

Government-sponsored camera surveillance of public streets and other public places is pervasive in the United Kingdom and is increasingly popular in American urban centers, especially in the wake of 9/11. Yet legal regulation of this surveillance is virtually non-existent, in part because the Supreme Court has signalled that we have no reasonable expectation of privacy in public places. This article, written for a symposium on the intersection of the Fourth Amendment and technology, contests that stance, at the same time it questions whether the traditional, probable-cause-forever view of Fourth Amendment protections makes sense in this technological age. Based on an analysis of the panoptic effects of government camera surveillance among them anticipatory conformity, fear that private facts will be exposed, and possible decreased loyalty to a surveillance-driven government this article first argues that the courts should recognize a constitutional right to anonymity in public places. Although courts have rejected constitutional challenges to public camera surveillance, they have yet to address the constitutionality of overt camera *systems*, with zoom and nightvision capacity and the storage and dissemination advantages that digitization brings. Such camera surveillance can chill speech and association, infringe on the rights to movement and repose, and undermine the general right to privacy. It also infringes the Fourth Amendment interest in avoiding unregulated government intrusions. To bolster the latter point, the article reports a study I conducted to ascertain the relative intrusiveness of overt, systematic camera surveillance in the eyes of the public. The results of a survey of almost 200 prospective jurors indicate that camera surveillance is viewed as more intrusive, to a statistically significant degree, than a number of investigative techniques the Supreme Court has found to implicate the Fourth Amendment, including roadblocks. Building on this latter finding, the article relies heavily on the Court\u27s roadblock jurisprudence in constructing a framework for regulating public camera surveillance. The Court\u27s recent decision in Edmond v. Indianopolis held that a brief seizure at a roadblock set up with the primary purpose of detecting crime may not take place in the absence of individualized suspicion, a significant, difficult-to-detect crime problem (such as illegal immigration), or a crime problem that immediately threatens life and limb (such as drunk driving). The article argues that this caselaw should be read to limit camera systems to areas where a significant crime problem exists, and to require individualized suspicion for targeted camera surveillance. Based on Fourth Amendment and related constitutional jurisprudence, it also contends that the camera location decision must be made by politically accountable officials with public input, that rules governing notice of the surveillance and maintenance and disclosure of surveillance results are mandatory, and that accountability requires direct sanctions on those who violate these rules and periodic dissemination of information about surveillance practices. The article concludes with the suggestion that the traditional Fourth Amendment model requiring probable cause, backed by the exclusion remedy serves neither societal or individual interests well. Surveillance of large numbers of people cannot be justified at the probable cause level, and should not have to be. Nor is the suppression remedy an effective deterrent in this context, since at best it benefits an infinitesimally small number of people subjected to illegal surveillance, and in any event is a poor remedial fit with the types of violations that public surveillance is likely to involve. The dissonance between public surveillance and the individualized suspicion/exclusionary rule model suggests a need for rethinking both the type of justification and the manner of implementation the Fourth Amendment requires

Scientizing Culpability: The Implications of Hall v. Florida and the Possibility of a “Scientific Stare Decisis”

The Supreme Court’s decision in Hall v. Florida held that “clinical definitions” control the meaning of intellectual disability in the death penalty context. In other words, Hall “scientized” the definition of a legal concept. This Article discusses the implications of this unprecedented move. It also introduces the idea of scientific stare decisis—a requirement that groups that are scientifically alike be treated similarly for culpability purposes—as a means of implementing the scientization process

Psychiatric Evidence in Criminal Trials: To Junk or Not to Junk?

This Article begins, in Part I, with a brief review of the past four decades of psychiatric and psychological testimony in criminal trials (henceforth referred to simply as psychiatric testimony ). Although this review cannot be called comprehensive, it does make clear that, contrary to what the popular literature would have us believe, psychiatric innovation is neither at an all time high nor the prevalent form of opinion testimony by mental health professionals. At the same time, such nontraditional expert opinion from clinicians, on those rare occasions when it does occur, has changed over the past few decades in both content and objective. Part II canvasses historical developments in the law governing the admissibility of psychiatric testimony With the Supreme Court\u27s recent decision in Daubert v. Merrell Dow Pharmaceuticals, this law has undergone a metamorphosis, at least on the surface. What is also clear, however, is that evidentiary changes have not, to date, affected the admissibility of most psychiatric testimony. Traditional psychiatric testimony continues to be admitted regardless of its reliability. Further, while novel psychiatric testimony is usually subjected to Daubert-type or other screening tests, the continuing ambiguity of these tests means that nontraditional evidence is still admitted, excluded, or limited in its scope for reasons that are not always immediately apparent. A better method of parsing out truly junk testimony is needed. Part III offers ways of improving the evidentiary analysis. A good framework for such analysis already exists-under the Federal Rules of Evidence, the admissibility of any expert testimony hinges on its materiality, probative value, helpfulness, and understandability.\u27 Most courts, however, perhaps not attuned to the subtly different versions of behavioral science, could benefit from an elaboration of this framework as it applies to psychiatric testimony. The most important contention in Part III concerns the assessment of probative value. The thesis here is that a distinction should be made between psychiatric evidence presented to prove past mental state and psychiatric evidence proffered to prove acts. Given the difficulty, in theory and in practice, of proving past mental state,15 the reliability assessment that is part of gauging probative value should be less demanding for psychiatric evidence on this issue. At the same time, psychiatric testimony that focuses on whether an act occurred-an objective and scientifically verifiable fact-should have to meet a more stringent test. In short, assessment of probative value should take into account the extent to which accuracy is possible. Part III also makes suggestions aimed at improving analysis of the other three components of the admissibility framework: materiality, helpfulness, .and countervailing factors. First, courts should pay much closer attention to the substantive scope of the law governing mental state defenses, a move that should curtail some of the more outlandish claims. At the same time, the law should define the helpfulness inquiry in broad terms, focusing on the extent to which psychiatric evidence offers counterintuitive explanations. Finally, courts must consider whether the evidence will be subject to adversarial testing, given the importance of ensuring the evidence is understood for its actual worth. Part IV concludes the Article with a discussion of an interesting implication of the foregoing arguments: the ultimate impact of the proposed framework is to allow criminal defendants more leeway than the government in presenting psychiatric evidence. Part IV briefly presents two normative justifications for this outcome, the first derived from the constitutional right to present a defense and the second based on utilitarian concerns about what would happen if that right were seriously abridged. Taken together, the arguments made in this Article suggest that suspect psychiatric science has a role to play in the criminal courtroom, but normally only when it supports claims concerning the past mental state of a defendant

The Integrationist Alternative to the Insanity Defense: Reflections on the Exculpatory Scope of Mental Illness in the Wake of the Andrea Yates Trial

On June 20, 2001, Andrea Yates took the lives of her five children by drowning them, one by one, in a bathtub. At her trial on capital murder charges nine months later, she pleaded insanity. Despite very credible evidence that she had long suffered from serious mental disorder, a Texas jury convicted Yates of murder and sentenced her to life in prison. Her tragic and controversial case led many to question whether the so-called M\u27Naghten test for insanity, which forms the basis for the insanity defense in Texas, adequately defines the exculpatory effect of mental disorder. This article is based on a talk given at a conference entitled The Affirmative Defense of Insanity in Texas, which took place in the wake of the Yates trial