FRUITLESS POISONOUS TREES IN A PARALLEL UNIVERSE: HUDSON V. MICHIGAN, KNOCK-AND-ANNOUNCE, AND THE EXCLUSIONARY RULE
David J.R. Frakt
On June 15, 2006, the Supreme Court announced in Hudson v. Mi-chigan that the remedy of the exclusionary rule would not be avail-able to suppress evidence found in searches after Fourth Amendment knock-and-announce violations. The decision represents the demise of the knock-and-announce rule and has broad significance for the future of the exclusionary rule. Hudson creates a potentially broad new exception to the exclusionary rule (the parallel universe exception) which relies on what police officers hypothetically could have done in-stead of what they actually did. It also creates a new class of Fourth Amendment violations (fruitless poisonous trees) which are automatically ineligible for the exclusionary rule. This Article provides a critical analysis of the majority opinion, responding to each argument made and addressing major logical flaws and inconsistencies in the rationales and reasoning offered by Justice Scalia. The Article also places Hudson in the broader context of the Court’s jurisprudence and addresses the implications of the decision for the exclusionary rule.
ELUSIVE EQUALITY IN DOMESTIC AND SEXUAL VIOLENCE LAW REFORM
This Article evaluates the application of sex equality theory to the harms resulting from domestic and sexual violence. Sex equality theory and related antidiscrimination remedies widely have been heralded as holding the potential both to advance victims’ economic recovery and to transform public understanding of the problem. Laws such as the civil rights remedy of the 1994 Violence Against Women Act struck by the U.S. Supreme Court in United States v. Morrison are rooted in this theory. Because Morrison rested on questions of federalism, the decision neither resolved nor addressed a large cate-gory of concerns that led to the enactment of that and similar laws.
To reinvigorate discussion of those important issues, this Article reconsiders the value of framing the harm that flows from domestic and sexual violence as a civil rights violation. I argue that civil rights remedies are important legal tools for victims of domestic and sexual violence. Nevertheless, their practical appeal necessarily will be bounded by realities inherent in the nature of the remedy and in the nature and experience of abuse. A variety of considerations, including survivors’ rational reluctance to reengage with an abuser, will deter victims from invoking civil rights remedies. Civil rights remedies’ transformative potential to produce either policy or other forms of social change will be limited unless their enactment and use are closely tied to grassroots organizing efforts. I advocate alternative and complementary approaches to the remedies’ dual and laudable goals of expanding avenues for economic recovery and transforming the discriminatory attitudes that allow domestic and sexual violence to persist.
THE EVER-EXPANDING HEALTH CARE CONSCIENCE CLAUSE: THE QUEST FOR IMMUNITY IN THE STRUGGLE BETWEEN PROFESSIONAL DUTIES AND MORAL BELIEFS
Maxine M. Harrington
During the past few years, the debate over whether health care professionals should be required to provide services that conflict with their personal beliefs has focused primarily on pharmacists refusing to fill prescriptions.1 According to one media account, during a six-month period in 2004 there were approximately 180 reports of pharmacists refusing to dispense routine or emergency oral contracep-tives.2 This controversy, however, extends beyond the pharmacy into every facet of the health care system.
TWO-WAY VIDEO TRIAL TESTIMONY AND THE CONFRONTATION CLAUSE: FASHIONING A BETTER CRAIG TEST IN LIGHT OF CRAWFORD
Marc Chase McAllister
The use of videoconference technology to capture the testimony of remote trial witnesses raises complex legal issues for which the United States Supreme Court has provided little guidance. Such technology has been used in state and federal civil cases, where its use is widely accepted.1 Use of this technology in federal criminal trials, however, raises a host of constitutional concerns. At the top of those concerns is whether the Sixth Amendment’s Confrontation Clause generally requires live trial testimony over video testimony. Whether and under what circumstances two-way video transmission of remote witness testimony violates the Sixth Amendment’s guarantee of confrontation are issues in need of clearer guidelines.
THE ADMISSIBILITY OF CO-CONSPIRATOR STATEMENTS IN A POST-CRAWFORD WORLD
Michael L. Seigel; Daniel Weisman
The Supreme Court’s decision in Crawford v. Washington1 has significantly changed the status quo regarding the types of statements that may come into evidence in criminal trials. Inculpatory out-of-court statements that a prosecutor could once count on to be admitted against a defendant at trial through various hearsay exceptions are now being suppressed. The government is in damage-control mode, and defense lawyers are pushing to find out just how much more protection the Confrontation Clause2 will afford their clients. Courts are being forced to reexamine the constitutional validity of hearsay exceptions long thought to be “firmly rooted.” In addition to its far-reaching holding, the Crawford opinion reverberated with obiter dictum reflecting suspicions of both hearsay declarants and the law enforcement personnel who coax them into speaking.
PARENTING AGREEMENTS, THE POTENTIAL POWER OF CONTRACT, AND THE LIMITS OF FAMILY LAW
Katherine M. Swift
There has been a trend among feminists and family law scholars to-ward privatization. The idea is that private agreements can take the place of public marriage contracts. Private agreements can determine property disposition, confer the right to make medical decisions, and, potentially at least, also confer parental status on a nonbiological parent. But the scholarly trend does not fully address how courts treat private family agreements when children are involved. In short, family courts do not enforce contracts regarding children. Biology and adoption tend to be the only way to achieve parentage. In custody and visitation proceedings, courts follow the “best-interests-of-the-child” doctrine to determine who should play the part of parent, regardless of contrary parental intent. This Article describes the conflict between the scholarly trend toward privatization and the family court reality. The Article then argues that properly drafted parenting agreements should be enforced by family courts, both in determining parental status and in determining custody. In other words, custody courts should not be al-lowed to disregard parenting agreements in the course of an ad hoc best-interests analysis. Parents—biological, adoptive, and contractual—should be on the same footing in the best-interests evaluation.
THE DANGER OF FUTURE DANGEROUSNESS IN DEATH PENALTY USE
In spite of thousands of years of science, humankind is distinctly unable to predict the future. And yet, the judicial system is called upon to do just so daily. In bail considerations, judges predict flight risk. In parole hearings, officials contemplate the likelihood of re-offense. And in three states, a defendant convicted of a capital crime will live or die based on what a judge and jury thinks he will do in an unknown future. It has been observed that “what separates the executioner from the murderer is the legal process by which the state ascertains and condemns those guilty of heinous crimes. If that process is flawed . . . the legitimacy of our legal process is threatened.” When states execute based in part on the defendant’s future actions, the legal process is confronted with several complex questions. If they cannot be satisfactorily answered, the state risks collapsing the distinction between murderer and executioner.