Prosecutorial Discretion: When Is Enforcement Discriminatory?

Dinesh D'Souza

In criminal law, those accused of wrongdoing typically claim innocence and maintain that they have done nothing wrong.  But what about when an individual admits to the crime itself while arguing that the enforcement of the specific law against him is discriminatory in nature?

Guest Post: 5 Reasons Why Rape Victims Struggle for Justice

Throughout history rape has been recognized as a crime, although criminal codes – and the very definition of rape – have varied from culture to culture and from one era to another.  Whether rape victims get justice has always depended upon where (and when) they lived.  In the modern-day United States we like to think we are relatively enlightened in this regard.  We have the advantage of heightened educational and legislative efforts over the past forty years, driven largely by the feminist and human rights movements. Groundbreaking books such as Susan Brownmiller’s classic 1975 work, Against Our Will: Men, Women and Rape, explored the dynamics of rape.  Contrary to the subtitle, Brownmiller’s book tackled not just male-on-female rape, but also homosexual rape (particularly in prisons) and the sexual assault of children.  The net result of four decades of education is that attitudes and laws are more protective of the victims than they used to be, at least in the U.S. and many other First World countries.

Two Implications from the Fernandez v. California Ruling

On February 25, 2014, in an apparent exercise in judicial restraint, the Supreme Court reaffirmed that a co-occupant’s physical presence is key in determining whether her objection to a warrantless search of her home overcomes a co-occupant’s permission in Fernandez v. California.  The majority opinion, written by Justice Alito, narrowed the exception laid out in Georgia v. Randolph, which held a co-occupant’s present objection overrides a separate co-occupant’s willingness to consent.  In Fernandez, a co-occupant’s objection is valid only as long as the co-occupant is physically present.  In practice, in scenarios involving a co-occupant willing to grant consent to a warrantless search, the police need only wait till the objecting co-tenant leaves or remove him from the premises so long as the removal is justified as a reasonable seizure. 

Presumptive Specificity: Examining the Duquenois-Levine Field Test for Marijuana

Practitioners who have handled cases involving marijuana are likely to be familiar with the Duquenois-Levine field test.  As of 2008, the NIK NarcoPouch 908 was the most commonly used marijuana field testing kit utilizing the Duquenois-Levine Reagent.  However, despite its wide use, forensic drug expert John Kelly stated in a 2008 report to the California Attorneys for Criminal Justice (CACJ) that there were no published studies examining the validity of the field test.  Kelly’s report, which was written pursuant to one such study, criticizes the Duquenois-Levine field test as being non-specific and rendering false positives, which he asserts violate Supreme Court rulings and undermines the integrity of tens of thousands of marijuana convictions.  

“Gosh, we’re putting somebody to death, we should have a 100% confidence level” -- Justice Sotomayor, Hall v. Florida 2014

The Eighth Amendment of the United States Constitution bars the infliction of cruel and unusual punishments.  On Monday, March 3, 2014, the Supreme Court heard arguments in Hall v. Florida, a case that presents the biggest challenge to the death penalty in over a decade; the Court is being asked to decide if under the Eighth Amendment, Florida can put to death a man who may be mentally delayed given its statutory scheme for determining "mental retardation."  If this sounds familiar it is because in 2002, the Court decided Atkins v. Virginia, in which it held that “executions of mentally retarded criminals were cruel and unusual punishments prohibited by the Eighth Amendment.”  However, in Atkins, the Court also left it to the states to “enforce the constitutional restriction” it announced, which is where Hall v. Florida comes in.

Liar Liar: The Fine Line between Deception and Coercion

We have all seen scenes like this one play out on TV shows like Law and Order: a suspect is taken into an interrogation room and a police officer or two tries to elicit a confession from the suspect.  The suspect is uncooperative, so the officers begin to rely on deceptions, lies, and other trickery.  Maybe something like: we found some fingerprints, and we are running them right now, and we know they are going to match, so you might as well confess before that happens and pray that gets you some leniency.  Courts have generally held that confessions obtained because of deception can be used as evidence.  However, on February 20, 2014, the New York Court of Appeals ruled unanimously that the deception can only go so far, drawing a line between police tactics that are tolerable and the ones that move into coercive territory.

Using Expert Witnesses to Mitigate the Prejudice to Defendants In Regard to Identification Procedures

There are many prejudicial effects that a criminal defendant can encounter throughout his proceedings.  One of the most prejudicial effects, and currently in hot contest, revolves around eyewitness identifications.  In-court identifications are very prejudicial and detrimental to a defendant's case, but there are also problems with any extra-judicial identification procedures.  Many jurisdictions are now taking measures to heighten the accuracy of identification procedures, but this still might not be enough to outweigh the innate obstacles that come with eyewitness identification.  This issue has been on the back burner of the judicial system since the early 1900’s.  As early as 1907, Hugo Munsterberg published “On the Witness Stand,” where he questioned the reliability of eyewitness identification. Yale Professor Edwin Borchard later wrote “Convicting the Innocent,” after he studied sixty five wrongful conviction cases and found that eyewitness misidentification was the leading cause of wrongful convictions.  Now it is finally time to bring the issue into the spotlight.  

Unlocking A Deadlock

On February 15^th, 2014, news reports announced that a panel of Florida jurors found Michael Dunn guilty on three charges of attempted second-degree murder, and one count of firing a weapon into a vehicle.  These charges stemmed from a November 2012 altercation over loud music between Dunn and four teenagers at a local Jacksonville convenience store that left seventeen year-old Jordan Davis dead.  During the verbal exchange, Dunn saw what he believed to be a weapon.  He brandished a handgun from his car’s glove compartment and fired ten shots, nine of which hit the vehicle containing Tevin Thompson, Leland Brunson, Tommy Stornes, and Jordan Davis.  Of the nine shots that hit the car, three hit Davis.  Officers later discovered that the teenagers were unarmed.