Criminal Law & Procedure

Civility and Efficiency Can Still Co-Exist

by Kayleigh Long, 2L Note Candidate

In a political climate of gridlock where the Senate refused to act on President Obama’s nomination of Merrick Garland to the United States Supreme Court, Justice Ruth Bader j16_4156Ginsburg reminded the nation of the art on how to disagree vehemently within the bounds of civility after the untimely passing of Justice Antonin Scalia. As several commentators remarked, “[t]hough the liberal Ginsburg and conservative Scalia frequently sparred over judicial matters, they shared a deep friendship and respect for each other’s intellect and wit.” Fang, Marina, Ruth Bader Ginsburg Remembers Antonin Scalia, Her Dear Friend and Sparring Partner, THE HUFFINGTON POST (Feb. 14, 2016, 2:14 PM), http://www.huffingtonpost.com/entry/scalia-ginsburg-friendship_us_56bfb717e4b0b40245c6f436 [https://perma.cc/M8B5-TCNZ]. This past April, the Indiana Supreme Court saw its own departure of the role model of civility with the retirement of Justice Brent E. Dickson.

As the authors of In Majority and Dissent: Justice Dickson’s Contribution to Indiana Criminal Law point out, Dickson’s time spent on the Indiana Supreme Court helped spur reforms to Indiana criminal law, and he wrote almost nine hundred opinions. In the wake of Dickson’s retirement, testimony of his character repeated itself throughout the legal community. Indiana Justice Steven David characterized Dickson as “Captain Civility,” and Indiana Justice Robert D. Rucker described him as being “cool, collected, rock solid and a steady hand.” Nelson, Jennifer, Dickson’s Tenure on Supreme Court Celebrated, The Indiana Lawyer (Apr. 29, 2016), http://www.theindianalawyer.com/dicksons-tenure-on-supreme-court-celebrated/PARAMS/article/40218 [https://perma.cc/XJ28-WP33]. In Majority and Dissent: Justice Dickson’s Contribution to Indiana Criminal Law outlines specific instances where Dickson responded with civility in both his majority and dissenting opinions throughout various areas of criminal law. Examples the authors point to include formulating helpful jury instructions on the meaning of reasonable doubt and the jury’s role in determining law and fact.

As the American public faced a contentious presidential election and a stalled Congress with just an eleven percent approval rating, the Hoosier state just experienced a period of judicial reform within criminal law without sacrificing civil, working relationships on the Indiana Supreme Court bench for the past three decades. Shabad, Rebecca, Congress’ Approval Rating Drops to 11 Percent, CBS News (Nov. 11, 2015, 3:45 PM), http://www.cbsnews.com/news/poll-congress-approval-rating-drops-to-11-percent/ [http://perma.cc/3KGY-QGQR]. When it appears that those in the three branches of government cannot seem to get along or accomplish meaningful change, Justice Dickson’s tenure reminds us civility and efficiency are still possible.

To read more about Justice Dickson’s contributions to Indiana criminal law check out In Majority and Dissent: Justice Dickson’s Contribution to Indiana Criminal Law in this issue of the Indiana Law Review. Daylon L. Welliver & Joel M. Schumm, In Majority and Dissent: Justice Dickson’s Contribution to Indiana Criminal Law, 50 Ind. L. Rev. 15 (2016) (available at http://mckinneylaw.iu.edu/ilr/pdf/vol50p15.pdf).

Something Must Be Done: Finding a Solution to America’s Tumultuous and Complex Relationship with the Police during Traffic Stops

by Zachary J. Mahone, 2L Note Candidate

This past July, the haunting cell phone footage of Philando Castile’s death sent shockwaves through the already shaky ground of police and public relations. After being pulled over for a broken taillight, Castile was shot and killed by a Minnesota police officer over a miprofessional-headshot-1sunderstanding involving a legally registered hand gun. Eliott C. McLaughlin, Woman Streams Aftermath of Fatal Officer-Involved Shooting, Cnn (July 8, 2016, 4:57 PM), http://www.cnn.com/2016/07/07/us/falcon-heights-shooting-minnesota/ [https://perma.cc/CD6Z-RU8Z]. Castile’s death, like many of the unfortunate police shootings before it, ignited a conversation on how law enforcement officers should behave during traffic stops.

Unfortunately, this dialogue to arrive at a solution has had an inconsistent focus. While the public has demanded body cameras and police accountability, some government agencies have turned to tactics on the other side of the spectrum directed at educating citizens on how to behave when pulled over. Both of these solutions have questionable effectiveness, limited scope, and ultimately fall short in being a definitive resolution.

Although many view body cameras as the key to healing police and public relations, the science on why or how body cameras work is uncertain. In studies done across the nation, the success of body cameras has varied mysteriously. In some areas, body cameras work amazingly well, and in others they seemingly increase the use of force. Barak Ariel, Do Police Body Cameras Really Work?, IEEE Spectrum (May 4, 2016, 7:00 PM), http://spectrum.ieee.org/consumer-electronics/portable-devices/do-police-body-cameras-really-work [https://perma.cc/HJA7-HM6N]. Further, body cameras for all their potential benefit will never be able to depict a situation fully. In a study highlighted by the New York Times, body camera footage was found to be subject to “deceptive intensity” in which body camera footage tends to make events appear more violent than they actually are. Timothy Williams et al., Police Body Cameras: What Do You See?, The New York Times (Apr. 1, 2016), http://www.nytimes.com/interactive/2016/04/01/us/police-bodycam-video.html?_r=0 [https://perma.cc/KZZ3-GH5S]. Body cameras, although a helpful tool to deter police aggression, are limited and can ironically deceive. Thus, body cameras should not be viewed as a final solution.

A solution on the other side of police accountability and body cameras is public education on proper behavior during traffic stops. For example, the FBI in Springfield, Illinois is working on an educational video directed at teaching high school students how to behave during traffic stops. FBI Video to Show Illinois Teens How to Act in Traffic Stops with Police, Chicago Tribune (Oct. 1, 2016, 4:31 PM), http://www.chicagotribune.com/news/local/breaking/ct-fbi-video-illinois-teens-traffic-stops-20161001-story.html [https://perma.cc/NTW5-Z3U2]. Along with showing the video, schools across Illinois will be expected to teach students how to handle being stopped by a police officer as a part of the driver’s education curriculum. This approach may be viewed as a step in the right direction but it is only focused on one side of the police and public relations formula. An educational video would have done nothing to help Philando Castile. Both body cameras and educational videos fail in that they are restricted and can only do so much. Instead, what is needed is a complex and dynamic solution to match the complex and dynamic problem.

In his Note, Policing the Police: Re-examining the Constitutional Implications of Traffic Stops, Benjamin Jaqua proposes police regulation through new department policies and state legislation. Jaqua finds that solutions to fix public and police relations must consider three competing considerations: the police officer’s interest in clarity, society’s interest in effective law enforcement, and the individual’s interest in privacy and dignity. Uniquely, Jacqua’s Note is influenced by his personal experience as an officer with the Memphis Police Department. Jaqua hopes to provide guidance to limit police shootings and to heal the rift that exists between the public and police officers. Philando Castile’s death is a call for a practical solution that is aimed at the complex relationship between the police and the public. Benjamin Jaqua’s Note addresses this complexity and provides a workable solution. Jaqua, Benjamin, Policing the Police: Re-examining the Constitutional Implications of Traffic Stops, 50 Ind. L. Rev. 345 (2016) (available at http://mckinneylaw.iu.edu/ilr/pdf/vol50p345.pdf).

Criminalization of HIV: Spread of the Viral Underclass

by Tyler J. Smith
J.D., 2015, Indiana University Robert H. McKinney School of Law


H-I-V. Arguably, no three letters in American society have generated more fear of a “viral underclass” [1] than those associated with the Human Immunodeficiency Virus (“HIV”). In many states, including Indiana, simply having HIV is a crime with potentially severe consequences. The criminalization of HIV is founded on a fear of something many people do not fully understand and the stigma of “HIV’s association with an ‘outlaw’ sexuality, anal intercourse, gay men, people of color, and people who use drugs.” [2] Indeed, convictions under these statutes rarely have anything to do with actual HIV transmission or risk of transmission. [3] Over thirty states currently have HIV specific criminal statutes “based on perceived exposure to HIV, rather than actual transmission of HIV to another.” [4] (more…)

Badged Bullies Belittling the Brazen: A Look into How School Resource Officers Contribute to the School-to-Prison Pipeline

by Marcus Alan McGhee
2015 Fellow, Program on Law and State Government
J.D. Candidate, 2016, Indiana University Robert H. McKinney School of Law
M.P.A., 2012, Northern Kentucky University
B.A., cum laude, 2010, Northern Kentucky University


Starting a few decades ago, school districts across the nation began to adopt and strictly adhere to zero-tolerance policies related to student behavior. [1] As a result, hundreds—if not thousands—of youth were funneled into the criminal justice system. [2] This over-criminalized reaction has been exacerbated by the presence of the school resource officers (“SROs”) [3] in some jurisdictions. Minor infractions once left to the resourcefulness of teachers or principals are now under the purview of in-house police officers. [4] As a result, more students are receiving the end-of-school designation of felon instead of high school graduate. [5] Of course, not all instances result in a conviction. Nonetheless, simply being arrested is sufficient to create a lasting record in the criminal justice system. Furthermore, the arrests discussed in this Article are not the ones of gun wielding deviants, but instead are those resulting from behavior most would argue typify adolescence: things like back talk and disobedience. [6] Indeed, after reading some arrest reports one might assume that the reports were drafted for mock trials instead of genuine criminal hearings: a fourteen-year-old arrested for texting, [7] a thirteen-year-old arrested for passing gas, [8] and a six-year-old arrested for throwing a temper tantrum. [9]

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Getting Social Media Into Evidence

by Michele Lorbieski Anderson
Managing Associate
Frost Brown Todd
201 North Illinois Street, Suite 1900
Indianapolis, IN 46244-0961
317-237-3216
manderson@fbtlaw.com
Attorney Profile Webpage


All of the social media sites and applications available today share one thing in common: the users provide the content.  As such, social media can be a good source of electronically stored information (“ESI”) about those users, most commonly in the form of pictures, statements, or videos.  The phrase “you can’t trust everything that you see on the internet” hints at the most obvious barriers to the admission of evidence from social media, which are authentication and hearsay. (more…)