The United States Supreme Court has long determined what criminal punishments violate the Eighth Amendment by asking whether they fall short of the American people’s standard of decency. It has relied mostly on state legislation to reflect what people think is decent. In 1972, Justice Marshall suggested the Court should factor expert knowledge of the actual workings of death penalty systems into its analysis. The Author refers to this approach as “informed decency.” Marshall believed doing so would make the death penalty unconstitutional because the American people would reject it if better informed. This has come to be known as “the Marshall Hypothesis.” Some forty years later, in Hall v. Florida, the Court finally did something akin to what Marshall suggested with regard to a particular feature of the death penalty. The Court relied on the knowledge of professional psychological organizations to find unconstitutional the manner in which Florida determined ineligibility for the death penalty based on intellectual disability. In this Article, the Author explains that if such an informed decency is adopted on a larger scale, and applied to the death penalty itself, current views of experts in science and law would provide strong evidence to find the death penalty violates the American standard of decency and, as a result, the Eighth Amendment.

The public safety exception to the Miranda doctrine allows law enforcement officers to conduct interrogations without informing an individual of his or her Miranda rights and to use the individual’s responses as evidence against him or her in court. This exception allows officers to conduct un-Mirandized interrogations when the officer’s questions are reasonably prompted by a concern for public safety. Initially intended to avoid further danger to the public, the public safety exception has exceeded its intended bounds, resulting in an infringement upon the public’s Fifth Amendment rights.

This Article explains the reasoning behind the Miranda decision and tracks the various exceptions that have been created since that decision. The Author then discusses how these exceptions, particularly the public safety exception, have slowly eroded the constitutional protections of Miranda. The public safety exception, arising from the Supreme Court’s decision in New York v. Quarles, was intended to be a narrow exception distinguishing permissible “custodial questioning” from impermissible “investigatory questioning.” Since its creation, a number of circuits have expanded the public safety exception to include situations that involve no threat to public safety at all, representing a clear violation of the Fifth Amendment and a purposely narrow exception. The Author proposes a reverse Miranda warning that would allow officers to conduct custodial interrogation in the name of public safety, but would stop short of allowing the information obtained through these interrogations to be admissible at trial. By informing an individual that his or her answers to police questioning will not be admissible at trial, a reverse Miranda warning would still allow officers to perform public safety questioning while preserving the individual’s protection against selfincrimination, effectively balancing both the government’s and individual’s interests.

This Article examines the use and effectiveness of victim impact statements―a type of victim impact evidence―in criminal cases. These statements may be written or oral and are authorized for use in both state and federal courts. Although impact statements are considered the most simple and frequently used form of victim impact evidence, other evidence used by prosecutors may include professionally produced, edited, narrated, and musically scored videos and photographs designed to incite emotional reactions. These alternative forms of victim impact evidence may carry great potential for subjecting defendants to substantial unfair prejudice.

The Article analyzes selected cases in which courts in various jurisdictions, lacking guidance from the Supreme Court, have attempted to define the limits of what can be presented as victim impact evidence when it contains emotionally charged and perhaps inflammatory pictures or videos and may be substantially and unfairly prejudicial against defendants. The Article analyzes the degree of correlation between perceived benefits and detriments of victim impact statements versus the empirical evidence supporting such conclusions based on studies from the United States and other countries. The Article then presents and discusses the Author’s detailed and comprehensive survey of judges, prosecutors, and public defenders in the Ninth Judicial Circuit of Florida regarding the use of victim impact statements in actual practice. The responses include a number of suggestions from judges and trial lawyers on how to improve the victim impact evidence process and enable those who use, or defend against, this type of evidence to do so more effectively.

The Author concludes that, under normal circumstances, victim impact statements give victims a voice in the criminal justice process and that any perceived detriment is not entirely founded. However, when victim impact evidence consists of videos and photographs that are designed to inflame the emotions of juries and judges, they may carry with them a potential to be unfairly prejudicial. Due to the fact that the Supreme Court has declined to provide guidance to the allowable limits of victim impact evidence, lower courts have been left to the task of setting their own limits, making uniformity across state and federal jurisdictions difficult, if not impossible, to achieve.

In June 2015, the United States Supreme Court decided Obergefell v. Hodges, holding that it is unconstitutional for states to ban same-sex marriages. Because many states ban same-sex marriage by way of constitutional amendments, some state courts may eventually construe Obergefell as overturning these amendments in their entirety. However, this Article addresses the conceivable consequences of the Supreme Court’s holding by examining the possibility that some state courts may construe Obergefell as only partially invalidating state constitutional amendments banning same-sex marriage, leaving the door open to limitations on the benefits provided to same-sex couples. This Article begins by evaluating the various state constitutional amendments that preclude same-sex marriages, analyzing the reach of the Supreme Court’s holding in light of the expansive constructions of the state amendments. To help rationalize the various interpretations of state constitutional amendments concerning marriage, the Author explores stepparent and second-parent adoption statutes in regards to the legal benefits acquired by marriage.

This Article continues by discussing the scope of state constitutional amendments in relation to current demographics of co-habitating, unmarried partners. The Author suggests two ways state legislatures may treat unmarried partners in accordance with evolving demographics: (1) state legislatures may choose not to provide any of the benefits or burdens of marriage upon a couple who chooses not to marry; or (2) state legislatures may offer different benefits and burdens to couples depending on their status (i.e. married or unmarried but cohabitating). The Author concludes by emphasizing the potential effects the Supreme Court’s holding may have on the institution of marriage, whether it be by restricting a state’s ability to provide benefits to non-marital couples, or allowing some burdens imposed on same-sex couples by state constitutional amendments to remain unabated by the vague language imposed in Obergefell.

In 2014, the Supreme Court decided Fernandez v. California, holding that an individual who objects to a warrantless search but is later lawfully removed from the premises can have his or her objection to the search superseded by a co-tenant. Such act of third-party consent, when a co-tenant who is not the suspect in the crime being investigated gives the police consent to search the home, is one of many setbacks in the long history of the erosion of the Fourth Amendment.

This Article addresses Fernandez and its impact on Fourth Amendment rights. The Article begins by discussing the myth of true consent to searches and how police officers have the appearance of authority, which triggers an ingrained need to comply with search requests. The Author also explores the ability of police to lawfully arrest a co-tenant who is objecting to a search and take him or her off premises to acquire consent from another co-tenant. The Author then calls for the abolition of consent searches altogether, emphasizing the relative ease of obtaining a search warrant—the preferred method to lawfully search a home and a method that has become increasingly convenient due to evolving technology. In the alternative to abolishing consent searches altogether, the Author suggests either: 1) requiring officers to apprise an individual of his or her right to refuse a search; or 2) redefining the word “present” so a suspect who has objected but has been subsequently arrested is still present and, therefore, his or her objection still stands and cannot be overridden by a co-tenant. The Author concludes by warning that without consent search reform, the Fourth Amendment will become nothing but words on a page.