Emerging Issues in Criminal Law

Issues to Watch

“Actually, Eye Didn’t See a Thing!”: How Jury Instructions in New Jersey May Affect the Jury’s Ability to Effectively Weigh Eyewitness Identification

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“Actually, Eye Didn’t See a Thing!”: How Jury Instructions in New Jersey May Affect the Jury’s Ability to Effectively Weigh Eyewitness Identification

Beatrice Campbell*

One of the most essential pieces in identifying whether a crime has taken place is if someone witnessed that crime take place. It has long been held that eyewitness identification is an integral part of the process of prosecuting an accused, and it is often given great deference when considering whether the defendant is guilty. Over the past three decades, however, the research behind the malleability of memory has become more prevalent in the scientific community, and many researchers have made efforts to inform courts of the inaccuracies of eyewitness identifications, thus prompting the Supreme Court to create a test that establishes when to admit eyewitness identification. See Manson v. Brathwaite, 432 U.S. 98, 114–15 (1977). While the state of New Jersey has adopted that test as a guideline as to when to admit eyewitness identifications, it did not prevent researchers from “cast[ing] doubt on some commonly held views relating to memory” and “call[ing] into question the vitality of the current legal framework for analyzing the reliability of eyewitness identifications.” State v. Henderson, 208 N.J. 208, 217 (2011); see also State v. Madison, 109 N.J. 223, 235–37 (1988).


Issues to Watch


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Maryland’s Justice Reinvestment Act: What You Need to Know

Brett Smoot*

On May 19, 2016, Governor Larry Hogan signed the Justice Reinvestment Act (JRA) into law.  Proponents of the JRA believe that the Act represents a progressive and necessary step in reforming the state’s criminal justice system.  However, the JRA also represents the largest and most comprehensive criminal justice reform to pass in a generation.  This raises several questions.  What issues caused this legislation to be passed?  What exactly does the JRA do?  What are some of the potential flaws in the Act?  For anyone involved in Maryland’s criminal justice system, the answers to these questions are pertinent.


Issues to Watch


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The Holding That Career Offenders Should Be Waiting for: Beckles v. United States

Stephen A. Ortiz*

Defendants who are classified as career offenders and found guilty of a crime typically receive an enhanced sentence.  U.S. Sentencing Commission, Guidelines Manual, § 4B1.1 (Nov. 1, 2015), http://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2015/GLMFull.pdf.  The United States Sentencing Guidelines (USSG) state:

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offence of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offence; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. Id. § 4B1.1(a).

Under this definition, the term “crime of violence” has been argued to be vague and therefore unconstitutional.  Beckles v. United States, 616 F. App’x 415 (11th Cir. 2015), cert. granted, 136 S. Ct. 2510 (2016).  After agreeing to hear a case that brings this issue to the forefront, the United States Supreme Court must now decide whether the term “crime of violence” is unconstitutionally vague.  Kevin Daley, This Is One Of The Biggest Pending SCOTUS Cases You Haven’t Heard Of, Daily Caller (Aug. 23, 2016, 9:43 PM), http://dailycaller.com/2016/08/23/this-is-one-of-the-biggest-pending-scotus-case-you-havent-heard-of/.


Articles, Online Series

King v. Maryland

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On Friday, November 9, 2012, the Supreme Court announced that it would review Maryland v. King this year, and in the process rule on the constitutionality of the state’s controversial DNA collection law, which allowed police to obtain a DNA sample from arrestees suspected of violent crimes or burglary for comparison against the state’s database before they are found guilty of the underlying crime.

The case has been a source of debate since the Maryland Court of Appeals ruling, and was the subject of the University of Baltimore’s journal write-on competition this past summer. The winning case note for the 2012 academic year, authored by incoming Law Review  Editor in Chief John Baber, analyzes the Maryland high court’s decision as we await word from the Supreme Court:

Case Note by John Baber

Archive Issues, Issues, Volume 42

Volume 42 Issue 3

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Our March 28, 2013 symposium, Privacy Rights and Proactive Investigations: Emerging Constitutional Issues in Law Enforcement, brought together leading scholars and practitioners to explore three issues that have once more thrust Maryland to the frontier of law enforcement: the validity of DNA databases, new approaches and the latest thinking on witness identifications, and the use of tracking devices after United States v. Jones. Issue 3 is dedicated entirely to the articles that served as fodder for both sides of the debate that day, with a foreword by symposium moderator Thiru Vignarajah, Chief of the Major Investigations Unit at the Baltimore City State’s Attorney’s Office; article synopses are available here.

Post-Jones: How District Courts Are Answering the Myriad Questions Raised by the Supreme Court’s Decision in United States v. Jones by Jason D. Medinger

Back to the Future: United States v. Jones Resuscitates Property Law Concepts in Fourth Amendment Jurisprudence by Nancy Forster

Location, Location, Location: Balancing Crime Fighting Needs and Privacy Rights                       by Nancy K. Oliver

Research and Reality: Better Understanding the Debate Between Sequential and Simultaneous Photo Arrays by Frederick H. Bealefeld III

Research and Reality: Better Understanding the Debate Between Sequential and Simultaneous Photo Arrays  by Rebecca Brown & Stephen Saloom

Indecent Exposure: Genes are More than a Brand Name Label in the DNA Database Debate by Jessica D. Gabel

 Why DNA Databasing is good for Maryland – A DNA Analyst’s Perspective by Rana Santos