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Full-text available at SSRN. See link in this record. ; This Article looks at the intersection of the Fourth Amendment, which protects Americans' personal security against arbitrary and oppressive searches by law enforcement officials, and the Eighth Amendment, which proscribes excessive bail. The focus is on the validity and effectiveness of an arrested person's agreement to relinquish some or all of her Fourth Amendment rights as a means of gaining freedom from pre-trial detention. In other words, can an arrested person validly "consent" to waive some of her Fourth Amendment rights to avoid pre-trial detention? Recently, in a case of first impression in the federal courts of appeal, the Ninth Circuit invalidated a search of a home that rested on such a waiver. In United States v. Scott, the Ninth Circuit concluded that such a waiver is not always effective. In borderline cases, in which the judicial officer is leaning toward detention, the waiver issue can be the deciding factor. The ability of arrested persons to bargain away some of their Fourth Amendment rights may prove especially important to indigent defendants who have little or no money, property or means to offer as collateral. With the capacity to relinquish some of their Fourth Amendment protections, indigent defendants would gain an additional bargaining tool to obtain their release from jail. This Article contends that such waivers are legally effective and can be properly limited. The Fourth Amendment, the Eighth Amendment, the Bail Reform Act, the Unconstitutional Conditions Doctrine, and basic offer and acceptance principles of contract law will confine waivers and protect pre-trial defendants from potential abuse by the government, which might otherwise capitalize on an arrested person's vulnerability to subordinate one constitutional right to protect another.

Full-text available at SSRN. See link in this record. ; The Supreme Court's Fourth Amendment jurisprudence has been oft criticized. The criticism is not surprising or undeserved. After all, the express language of the Fourth Amendment requires that the government act reasonably whenever it intrudes on a person's privacy, liberty or dignity by conducting a search or seizure. But the Court's Fourth Amendment opinions have authorized conduct that looks anything but reasonable. This Article contends that the unreasonableness of the Court's Fourth Amendment decisions is advanced by the Court's poor allocation of mixed issues - those asking someone to determine whether the historical facts in the case satisfy the constitutional standard of reasonableness - between fact finders (a trial judge or jury) and law declarers (appellate judges or Supreme Court Justices). This article proposes a fresh approach to return reasonableness to the Court's Fourth Amendment jurisprudence. Specifically, the article urges the Court to adopt three distinct models of Fourth Amendment reasonableness and assign whole categories of issues to the different models, depending on the characteristics of the issues as fact-laden, law-laden or mixed. Furthermore, mixed issues will be further divided into at least two sub-groups - a government subset and a citizen subset. The government subset will be left for de novo review by the Supreme Court, but the citizen subset will be decided by local judges or juries and subject only to clear-error review on appeal.

Full-text available at SSRN. See link in this record. ; Scholars have often criticized the government for relying on "cooperating" defendant/witnesses in obtaining convictions of other persons. Such scholars contend that cooperating witnesses are powerfully motivated to parrot information a prosecutor wants to hear and that as naturally biased advocates, prosecutors overlook and ignore signs that cooperating defendants are lying. This article asserts that defendants who "cooperate" with the government by substantially assisting in the prosecution of other crimes and criminals in exchange for a hope of receiving a more lenient sentence are invaluable crime prevention tools and should be encouraged. Nevertheless, the article recognizes the inconsistent manner in which prosecutors assess such witnesses, primarily because of the unfettered discretion prosecutors wield over cooperators. The law imposes no duty on prosecutors to deal critically or carefully with cooperating defendants. If prosecutors bear such a duty, and the article contends that they do, the obligation originates with a prosecutor's ethical duty "to do justice." The article explores a void in the legal and ethics literature regarding the federal prosecutor's ethical obligations around cooperating defendants. It discusses the nebulous nature of the duty to "do justice" in the context of evaluating, selecting or rejecting cooperation and ultimately concludes that the Department of Justice can further the prosecutor's ethical responsibility of dealing thoughtfully and thoroughly with cooperators by fostering an office culture in which critical and thoughtful assessment of such witnesses is rewarded.

Full-text available at SSRN. See link in this record. ; Some eight million citizens report for jury duty every year. Arguably, jury duty is one of the most significant opportunities to participate in the democratic process. For the accused, the jury acts as an indispensable safeguard against government overreaching. One might expect, therefore, that our justice system would treat putative jurors with care and tact. The opposite is true. During voir dire, potential jurors are required to share insights into their own lives, quirks, proclivities, and beliefs. Litigants have probed jurors' sexual orientation, criminal histories, criminal victimization, health, family relations, and beyond. A few scholars have chided the system for abusing jurors, but courts and scholars alike have conceived of this invasion into juror privacy as a necessary part of protecting the accused's Sixth and Fourteenth Amendment rights to fair trial and impartial jury and the media and public's First Amendment rights to observe the criminal process. In this article, I examine this overly-simplistic view, which fails to account for the probability that by infringing on juror privacy, the justice system causes more jurors to lie and to withhold material information revealing their true biases, thus undermining the accused's constitutional rights. Ultimately, I contend that juror privacy is an imperative complement to the accused's rights, and I urge a procedural modification to the voir dire process, a juror voir dire strike, protecting both jurors and the accused without undercutting the public's and media's First Amendment rights to observe criminal trials.